CHARACTER EVIDENCE

Character[1] is about one’s reputation, that is, what one is known for. The opposite of character is disposition (the tendency to behave in a particular way once in a while). We will be looking at character evidence in the light of reputation or personality traits. The relevant sections are sections 77-82 EA. S. 77 EA says character means someone’s reputation as opposed to his disposition. There are two sides of the coin; the positive and negative sides. On the positive side we have what is called the good character and on the negative side is what we call the bad character.
It is important to state that character evidence is relevant in both civil and criminal cases depending on the circumstances of the case. Also note that character evidence is not restricted to that of the parties before the court. A witness can be asked questions on his character in order to cast doubt on his credibility and to persuade the court not to believe his evidence.

Civil Trials
Generally, in civil cases, character evidence is not too relevant. The court is concerned with whether the defendant has committed the tort or breached a contract. But there are cases where character is relevant. S. 78 EA provides the general rule that the character evidence of any person concerned with in a civil proceeding[2] (the plaintiff, the defendant and their witnesses) isn’t normally relevant to render probable or improbable any conduct imputed to them except in so far as such character appear from the facts otherwise relevant. Thus, the only instance where character evidence is relevant is where the facts of the case dictate that character evidence is relevant.
By S. 79 EA, character evidence of any person is relevant where it will affect the amount of damages the person will be awarded. Therefore, the good character of a plaintiff is important in deciding whether to award aggravated damages in his favour. For instance, in a divorce case evidence of bad character of a spouse[3] would be relevant in order to determine the amount of damages to be awarded (Butterworth v Butterworth). Evidence of character is also relevant in cases of breach of promise of to marry (Jones v Jones).
Let’s also look at S. 223 EA which deals with cross-examination of a witness. Where a person comes to court to testify in favour of a party to the proceeding, the other party to the proceeding or their lawyer may cross-examine such witness to show that he is of bad character. Here, the credibility of the witness is what is being attacked. This is applicable in both civil and criminal cases to show that the witness lacks credibility and the testimony or evidence of the witness would be useless.
By virtue of S. 63(1) EA, evidence of previous conviction of an offence by a court of competent jurisdiction shall be admissible for the purpose of proving, where to do so is relevant to any issue in those proceedings that he committed the offence. For example, if a person has been convicted of dangerous or reckless driving in a criminal case, the evidence of such conviction is admissible in subsequent civil case to prove a case of negligence against such person. Such past conviction would only be admissible where it is relevant to any matter before the court. To this extent, we can say relevancy determines admissibility. 
Ultimately, character evidence is relevant with regard to the tort of defamation which is all about reputation. In a suit libel, a defendant who relies on the defence of justification is at liberty to tender evidence of bad character of the plaintiff by way of prior previous conviction of the plaintiff who subsequently sues for defamation (Goody v Odhams Press). In Din v African Newspapers, the appellant had held a press conference where he stated that he resigned voluntarily from the Nigerian Army with unblemished record. The authorities of the Nigerian Army held its own press conference where it was stated that he was dismissed from the Army and that his record of service was tainted. The respondents’ reporters reported the press conference held by the Nigerian Army. The appellant sued the respondent for libel. The respondent pleaded the defence of justification in answer to the claim. His claim was dismissed by the courts. The appellate court quoted with approval the pronouncement in the case of MC’pherson v Daniels to the effect that “For the Law will not permit a man to recover damages in respect of any injury to a character which he does not…possess”.

Criminal Trials
We now turn to character evidence in criminal cases. The evidence of good character of the accused person is generally relevant and admissible[4]. Such evidence can be given by the defendant testifying on his own behalf. He could also call someone to give evidence of his good character provided this person is also above board since such persons would also be subject to scrutiny. Evidence of good character of the accused may be elicited or extracted from the prosecution witnesses during cross examination. The whole idea of such evidence is to create doubt on whether he committed the offence or not. Please note that evidence of good character of an accused person is also relevant after he has been convicted but before he is sentenced. At the sentencing stage, evidence of good character of the accused is relevant in order to guide the court on the appropriate punishment or sentence which will be imposed on the accused. At this point, an allocutus[5] may be made for the defendant. In Haruna v Police, the accused was charged with abetting (aiding) robbery in a bank. He called his bank manager as a witness. The manager testified thus “I know the accused’s financial background. He is financially sound. Since I have known the accused, I don’t remember him getting involved in any trouble”. It was held that the above piece of evidence is admissible as evidence of the accused’s good character. The moment the accused gives evidence of his good character, the prosecution is entitled to rebut evidence of accused’s good character by tendering rebutting evidence of his bad character. 
Where there is doubt as to whether the accused committed an offence or not, evidence of his good character may affect the court to arrive at the conclusion on his innocence. However, where the accused is found or caught in the act, his good character will not affect him in getting a verdict of not guilty. He would be convicted of the offence. As rightly observed by Professor Nokes noted:
“If an alarm of theft is raised at a church bazzer and the thief slips a stolen purse into the pocket of the bishop, the episcopal character of the bishop may allay the suspicion. But if a bishop should be caught in the act of ‘shoplifting’ the episcopal character would only appear to be unmerited”
With regard to criminal cases, the bad character of an accused person is generally irrelevant[6]. The burden of proof is always on the prosecution every element of the offence must be proven and the prosecution is not allowed to rig the trial by tendering evidence of bad character of the accused. However, there exists exceptions to the rule as to when bad character becomes relevant. These exceptions we will find in S. 82(2) EA[7]:
a.                  Evidence of bad character is relevant when the bad character of the defendant is a fact in issue[8].
In this regard, the provisions of sections 249-250 C.C. are relevant. By S. 250 (1), in order to convict a person for being a rogue and vagabond, there must be proof that he had been previously convicted of being idle or disorderly person under S. 249.
By S. 405(2) Penal Code, proof of previous conviction of being a vagabond is necessary in order to prove and convict a person for the offence of being an incorrigible vagabond.
Evidence of bad character of the accused is also relevant in cases of receiving stolen properties. In such cases the fact that other property stolen within the period of 12 months before the date of the offence charged was found in the possession of the accused can be given in evidence. Further, evidence of the fact that within five years before the date of the offence charged, he was convicted of any offence involving fraud or dishonesty is relevant.
b.                 Evidence of bad character is relevant when the defendant has given evidence of his good character[9].
As noted earlier, an accused person may give evidence of good character by calling witnesses or through the cross-examination of the prosecution’s witnesses. Here, the prosecution is entitled to adduce evidence of his bad character in order to neutralize the evidence given by him. The objective is not to prove the charge but to show that the character of the accused is not as such as he wants the court to believe. In other words, the objective of tendering evidence of the bad character is to neutralize the evidence of good character already given by the accused person or given on behalf of the accused person.
In order to rebut the accused’s good character evidence, the prosecution may call independent evidence on the bad character of the accused person or where the accused person decides to give evidence, the prosecution may ask him questions about his bad character.
Please note S. 82(4) EA which is to the effect that whenever evidence of bad character is admissible, evidence of a previous conviction is also admissible. Also note the provision of S. 82(5) EA which is to the effect that in cases where both evidence of bad character and previous convictions are admissible, the court shall only admit evidence of previous convictions which are related in substance to the offence charged. Thus, it is not every previous conviction that is relevant. *S. 82(b) EA applies mainly to an accused person who is not in the witness box. See R v Ferguson; R v Samuel.

c.                    The final situation is where the proviso to S. 180 (g) EA applies. S. 180 (g) focuses on an accused person who has elected to give evidence from the witness box and therefore liable to be cross-examined by the prosecution. It tries to protect him. Where he decides to testify from the witness box, such a person can’t be asked any question apart from questions connected to matters before the court. In other words, the accused person enjoys immunity against incriminating questions tending to show the commission of or conviction for other offences. First, he is a competent witness but a non-compellable witness.
Please note the words “tending to show” as used in that subsection. The words have been interpreted to mean revealing for the first time (Jones v DPP). Therefore, if the questions he is being asked relate to issues that have been previously revealed, the accused can’t claim the protection. He can be asked what he had revealed about was bad character or previous conviction. In the case of Jones v DPP, an appellant had during his evidence set up an alibi in answer to a charge of rape. He went ahead to testify that he was a suspect because of his earlier trouble with the Police. He was asked a question on the previous trouble which show his bad character. It was held that the question should be allowed because the previous trouble had been revealed by him and was not being revealed for the very first time.
We must also look at the implication of the words “…that he has committed or been convicted of or been charged with any offence other than that with which he is then charged…..” The implication of this is that the accused can’t be compelled to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that with which he is then charged. For instance, X is being tried for the offence of stealing, where he gives his testimony in the witness box, the prosecution can’t compel him to answer questions of previous criminal proceedings not related to the offence of stealing (e.g. rape). Also, questions about whether he was suspected or accused of an offence prior to the one he is standing trial are not allowed. Similarly questions about an acquittal of the accused are not allowed.  In Maxwell v DPP, a prisoner, charged with manslaughter of a woman by performing upon her an illegal operation, gave evidence of his good character. Thereupon counsel for the prosecution asked him the question: “This is the second time that sudden death has come to a woman patient of yours, is it not? The first time was in 1927. And were you tried for manslaughter? And you were acquitted by the jury? The prisoner answered the questions in the affirmative and he was found guilty of manslaughter. On appeal, the court held that these questions were not admissible, inasmuch as the fact that the prisoner had been acquitted on a previous charge of manslaughter was not relevant to the issue before the jury and did not tend to impair the credibility of the prisoner as a witness. His conviction was quashed[10]. In Stirland v DPP, the accused was charged with forgery, he gave evidence of good character and official record and called a witness to depose that he had never been charged before. In rebuttal, the prosecutor sought to cross examine as to whether the employer had suspected or questioned the accused about a suspected forgery. It was held inadmissible. It has also been held in the Nigerian case of Popoola v Commissioner of Police that questions cannot be asked of a charge brought against the accused but later abandoned.
Summary of the above: A person standing trial has three options. First, he may decline to give evidence. Secondly, he may decide to give evidence but inside the dock in which case he is not sworn and can’t be cross-examined. Thirdly, he may decide to give evidence in the witness box in which case he is sworn and can be cross-examined. Where he decides to give evidence in the witness box, the provision of S. 180(g) EA comes to his aid. The proviso to that section provides that he is a competent but not a compellable witness. The section further states that he can’t be asked any question; the prosecution can’t any question beyond the one he is standing trial for. This is a shield to be enjoyed by the accused person. Also note that even when the accused has lost his shield, he can only be asked questions on previous convictions; the prosecution can’t ask him questions bordering on past cases where the accused was acquitted neither can the accused be asked questions on cases where he was merely suspected.
Please note that the accused may lose the above immunity in any of the following instances:
a.                  By nature of the offence, evidence of bad character is relevant[11]. For example, the provision in the Criminal Code as to the accused person being a rogue and vagabond. The difference is in S. 82 EA, the accused hasn’t entered the witness box but in S. 180, he is in the witness box.
b.                 He has given evidence of his good character or where he has attacked[12] the prosecutor or prosecution witnesses. Please note that this would only apply where he has stepped into the witness box and he is prone to be cross-examined by the prosecution[13]. It must be bad character that is strikingly similar to the charge. If the case is for fraud, for example, the accused can’t be asked questions on bad character as to a drug peddler or as a child trafficker; objection will be taken. It must be something that is related since nobody is expected to have a sinless character.
The law draws a line between imputation and emphatic denial[14]. Where it is an emphatic denial in strong words, the accused will not lose his shield or protection. To call a prosecutor a liar is not an imputation (R v Rouse) but to call him a horrible liar that his brother won’t speak to him is an imputation which will open up the accused to cross examination (R v Rappolt).  In the latter, the accused isn’t just saying the prosecution is a liar, he is imputing bad character on the prosecution. To suggest that identification parade was not properly conducted does not amount to an attack on the investigations as to justify loss of prosecution afforded by that section. However, a suggestion that a confession was obtained by threats or bribes will amount to imputation of character on prosecution which will justify cross-examination of the accused on his character.
c.                  Where there are more than one accused person, one may give (damaging) evidence which is against another. The accused loses this protection and is liable to be cross-examined by Counsel to the person against who he has testified.
A fundamental requirement of this proviso is that the accused person and the co-accused person against who evidence has been given must be standing trial for the same offence. Therefore, where the two are standing joint trial but for different offences, the provision will not apply (R v Roberts; R v Hawden).
Also note that the court generally has a discretion to exclude an otherwise relevant evidence of the bad character is relevant and admissible. With regard to (c) above, the court has no such discretion.
Question
Character evidence is always relevant in civil cases. Discuss.


[1] In the ordinary language, ‘character’ means general reputation as distinct from disposition which refers to tendency to act, think or feel in a particular way.
[2] The word ‘any person’ as used in this section means that it is not limited to the plaintiff or the defendant. The phrase extends to their witness(es) if any.
[3]…….such as where adultery and seduction are relied upon.
[4] S. 81 EA provides that in criminal proceedings, evidence of the fact that a defendant is of good character is admissible.
[5] In Nigeria the term “allocutus” is used, and simply put, it is a plea in mitigation of sentence. It is normally made after conviction but before sentence is passed, the court will inquire from the convict whether he has anything to say in mitigation of sentence or why sentence should not be passed on him according to law. See Akoma Yougreen v. State (1978) 11 FCA. The plea can be made by the convict in person or through a witness to give evidence of previous good character and good works of the convict. Where evidence of good character is given by way of allocutus, the prosecution is also at liberty to produce evidence of previous conviction. See also Odunayo v The State (2013) LPELR-21459(CA).
[6] S. 82 (1) EA
[7] This section applies to a witness who is either in the dock or in the witness box. A dock is where the accused stands at the beginning of the trial. A witness box is where the accused and his witnesses stand to give evidence. The accused person can give evidence from the dock or from the witness box. What is the difference between these two? In the former, the accused person gives evidence without being sworn and he can’t be cross-examined by the prosecution. But where he steps down to the witness box to give evidence, he may be sworn and cross-examined.
[8] S. 82 (2)(a) EA
[9] S. 82 (2)(b) EA
[10] The point to note here is that had the accused been convicted in the previous case, the prosecution may have been allowed to ask the accused questions relating to the case.
[11] A ready example of when this provision would apply is the evidence of similar fact. Here, the prosecution is allowed to adduce evidence of similar facts in order to show guilty knowledge or rebut defence of innocent association.
[12] In the sense that he has made certain imputations or aspersions on them while defending himself.
[13] Whenever S. 180(g) EA is sought to be applied, it must bad character as to an offence similar with what the accused is being charged.
[14] In Andu Maizanko v Superintendent General of Police, the first appellant in his evidence made allegations that the police had yielded to threats by one of the prosecution’s witnesses to prefer a false charge against him and the other appellants and that the prosecution witnesses were not speaking the truth. On appeal, it was held that the appellant had cast imputations on the character of the prosecution witnesses, hence, the evidence of his previous conviction was rightly admitted. However, if what is said by the accused amounts in reality to no more than a denial of the charge, expressed, may be in emphatic language, it should not be regarded as coming within the provision. Thus, in R v General Majella Nelson in which a prosecution witness, a police detective, gave evidence thereby put in issue and no rebuttal by the prosecution will be permitted. Therefore, the cross-examination of an accused should not be conducted in such a way to incite him to make imputation on the prosecution’s witness. The position is the same if the evidence of good character is inadvertently given (R v Redd).

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