CRITICAL APPRAISAL ON OPINION EVIDENCE

 

 

 

TABLE OF CASES

NIGERIA

• The state V. Alexander Okafor & Ords, AA/27C/77 of 14th Dec., 1979 (UN).
• State V Ezekiel Adekunle (1989) 1 CLRN 346.
• Banjo V Alli Journal (unreported), Ibadan, suit no 1/122/09, judgment dated June 3, 1970.
• Bello Adedibu, Badamosi Adewoyin and another (1951) 13 WACA 191.
• Shell Petroleum Co. Ltd V Otoko (1999) 6 NWLR (pt 189), 693.
• Salami Lawal V Commissioner of Police.
• Shell Petroleum Development Co. Isaiah (1997) NWRL pt 508 Q236.
• Iduche V Esseh (1996) 5 NWLR pt 451 at 218.
• Ogunze V State (1998) NWLR pt 551 at 521.
• Yau Tittidabale V Sokoto Native Authority (unreported) at (1994) 1 Nigeria Law journal 123.
• R V Onisunmi (1946) 12 WACA pg. 58.
• Aloba Pharmaceutical Chemist Limited V Balogun (1997) 6 NWLR (pt 509) at 509.
• Ehigie V Ehigie.
• Akinrinmade V Lawal (1996) NWLR pt. 429 at 218.
• Shell Petroleum Development Co Isaiah (1997) NWLR part 508 at 236
• Sunday Omega V The State

UNITED KINGDOM

• R V Turner [1975] 1 Q.B 834
• R V Robert [1990] Crim LR122
• Earl Robert V Lord Birdpart [1845] 8 Beau 52 at 537
• R V Rishworth (1842) 2 Q.B 476
• R V Cox (1898) Q.B 179
• R V Tolson (1864) 4 f & f 103
• Wright V Jathan (1838)
• R V Davies (1962) 1 WLR 11.11
• Harnett V Bond (1924) 2 KB 517
• R V Mason (1911) 7 CR App. R 67
• R V Loake (1911) 17 CR App R 71
• Folkes V Chadd (1782) 3 Dong K.B 157 at 158.
• R V Kealley (1992) 2 All ER 343.
• R V Loake (1991) 17 Cr App R 71.
• Melwani V Chanlira Corp (1995) 6 NWLR pt 402 at 438.
• R V Silverlock (1894) 2 Q.B 766.

TABLE OF STATUTES

• Evidence Act, CAP 112 LFW 1990.
• Civil Evidence Act, 1972.

LIST OF ABBREVIATION

• AC             – Appeal Cases
• ALL ER – All England Report
• – Another
• CLR             – Common Wealth Law Reports
• CR APP – Criminal Appeal
• CRIM LR – Criminal Law Report
•             – Edition
• KB             – Kings Bench
• LFN             – Laws of the Federation of Nigeria
• NLR             – Nigerian Law Report
• NWLR – Nigerian Weekly Law Report
•             – Others
• QB             – Queen Bench
• WACA – West African Court of Appeal
• WLR – Western Law Report

 

TABLE OF CONTENTS

 

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0  INTRODUCTION

1.1.0  DEFINITION OF EVIDENCE

1.1.1  CLASSIFICATION OF EVIDENCE

1.2.0:  BACKGROUND OF THE STUDY

1.3.0  FOCUS OF STUDY

1.4.0. SCOPE OF STUDY

1.5.0. METHODOLOGY

1.6.0. LITERATURE REVIEW

1.7.0. CONCLUSION

CHAPTER TWO

INTRODUCTION OF OPINION EVIDENCE

2.0.0: INTRODUCTION

2.1.0: ADMISSIBILITY IF OPINION EVIDENCE

2.2.0: EXAMINATION OF THE GENERAL RULE

2.2.1: RATIONAL FOR EXCLUSIONARY RULE

2.2.2:  EXCEPTION OF THE EXCLUSIONARY RULE

2.3.0:  CONCLUSION

CHAPTER THREE

OPINION OF EXPERTS WITNESS

3.0.0: INTRODUCTION

3.1.0. THE SCOPE FOR EXPERT WITNESS

3.2.0: CREDENTIALS OF EXPERT WITNESS

3.3.0: OPINION AS TO FOREIGN LAW

3.4.0:  OPINION AS TO NATIVE LAW AND CUSTOM

3.5.0:  OPINION AS TO SCIENCE AND ART

3.6.0:  OPINION AS TO HANDWRITING AND FINGER IMPRESSION

 

3.7.0  CONCLUSION
CHAPTER FOUR OPINION OF NON-EXPERTS WITNESS
4.0.0:  INTRODUCTION
4.1.0:  OPINION AS TO HANDWRITING
4.2.0:  OPINION AS TO GENERAL CUSTOM OR RIGHT
4.3.0:  OPINION AS TO USAGES AND TENETS
4.4.0:  OPINION AS TO RELATIONSHIP 4.5.0:  OTHER INSTANCES WHERE OPINION OF  NON EXPERTS ARE ADMISSIBLE
4.6.0:  OPINION AS TO SPEED
4.6.1:  OPINION AS TO AGE
4.6.2:  OPINION AS TOI IDENTITY
4.6.3:  OPINION AS TO MENTAL AND PHYSICAL HEALTH
4.6.4:  OPINION AS TO INTOXICATION
4.7.0:  CONCLUSION CHAPTER FIVE GENERAL CONCLUSION
5.1.0:  RECOMMENDATION

5.2.0: CONCLUSION

BIBLIOGRAPHY

BOOKS

ABSTRACT

Generally, where a court is faced with the problem of determining a suit before it, such can only be solved after making an enquiry into the relevant facts of the evidence put before it by the parties, drawing inferences from those facts, and listening to arguments of parties to the case or of their counsel. Evidence is there from called as a means by which those facts can be proved.

Evidence of what the witness thinks, believes or infers in regard to facts in dispute, as distinguished from personal knowledge of the facts themselves. The Rule of Evidence ordinarily do not permit witnesses to testify as to opinions or conclusions when this type of evidence is expressed by an expert witness, it may be used only if scientific, technical, or specialized knowledge will aid the trial of fact in understanding the Evidence or determining a fact in issue.

Opinion Evidence refers to Evidence of which the witness thinks, believes, or infers in regard to facts as distinguished from personal knowledge of the facts themselves. In common law jurisdictions, the general rule is that a witness is supposed to testify as to what was observed and not to give an opinion on what was observed. However, there are two exceptions to this rule: Expert Evidence and Non-expert Evidence opinion given by laymen which people in their daily lives reach without conscious rationalization.

 

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0    INTRODUCTION

According to Professor Cross^[1],

“Evidence is the testimony hearsay, documents, things and facts which account will accept as evidence of the fact in issue in a given case”.

Evidence as to opinion could be said to have emanated from the conception of

Aguda^[2] when he stated that:

“Judicial Evidence is the means by which facts are proved but excluding inferences and arguments. It is common knowledge that a fact can be proved by the oral testimony of persons who receive the fact by production of document or by inspection of things and places”.

The general rule of common law is that witness may only give evidence of facts of which they have knowledge. In other words witness may testify only what they themselves did say, heard on witnessed. The cardinal rule provides the foundation not only for the hearsay rule but also for a further common law rule which prohibits witness from expressing their opinion about what happened or may have happened.

1.1.0    DEFINITION OF EVIDENCE

According to the Blacks Law Dictionary^[3], evidence is defined as:

“any specie of proof or probative matter legally present at the trial of an issue by the act of the parties and through the medium of witness, records, documents, exhibits, concrete subjects, etc. including belief in minds of the court or jury as to their contention.”

According to Akinola Aguda^[4], evidence is:

“The means by which facts are proved but exclude inference and arguments, it could either be by oral testimony of persons who perceived the fact or by production of documents, it is sometimes used in connection with admissibility”

According to Professor Cross^[5], it is:

“A testimony whether oral, documentary or real which may be legally received in order to prove or disprove some facts in dispute.”

1.1.1    CLASSIFICATION OF EVIDENCE

Evidence can be classified into three main classes, which are oral evidence, real evidence and documentary evidence.

ORAL EVIDENCE

This is defined as statement and assertion of a witness in court offered as proof of the truth of that which is ascertained or evidence given by words of mouth in court on oath or in affirmation. It is also known as testimonial evidence and it include signs made by dumb^[6]. It must be directed and ipso facto. If it relate to a fact which could be seen, heard, or perceived, it must be an evidence of the witness who say he saw, heard and perceived such act ^[7].

REAL EVIDENCE

According to Professor Noakes, it is the material object other than documents produced for the inspection of the chart. In other words, its anything which is produced and examined by court or tribunal as means of proof, it includes good allegedly stolen, weapon of office, items caring blood stain or finger prints etc.

DOCUMENTARY EVIDENCE

This is simply a statement made in a document which is offered to the court in proof of any fact in issue. In other words, it is evidence tendered through or by the use of documents, documents include books, map plains, drawings, photographs and any matter expressed or described upon any substance by means of letter, figure or marks^[8], etc.

 

 

1.2.0: BACKGROUND OF THE STUDY

Opinion simply refers to ideas, beliefs or judgment based mainly on feelings it exists in the thinking, imagination and understandingly of the maker. Therefore is essentially judgmental.

According to Afe Babalola^[9]:

“The word opinion refers to a belief based on certainty or knowledge but on what seems true or probable. It is a product of the exercise of personal judgment, evaluation or estimation of some information that seems to be true or probable”.

An opinion is different from a fact with which it is often confused whereas a fact refers to a state of thins as they are or as they actually happened, opinion refers to how the giver of the opinion thinks, believes or infers in regards to the facts in dispute, as distinguished from his personal knowledge of the facts themselves. This opinion exists in the thinking, imagination or understanding of the maker of facts refers to reality the true or actual state of things.

Therefore, opinion evidence refers to evidence what the witness thinks, believes or infers in regard to facts, as distinguished from personal knowledge of the facts themselves, which the knowledge of the facts themselves, which the court may accept as proving the fact in issue.

1.3.0    FOCUS OF STUDY

The focus of this essay is to critically look into the admissibility and validity of opinion Evidence by the court of law. Also what forms of Evidence may be admitted as opinion Evidence and also what grounds they can be admitted and cases as they are applicable as provided by the Evidence act.

1.4.0. SCOPE OF STUDY

The long essay cuts across the forms of opinion Evidence which are admissible and also those which are not admissible. Also the General rule, as well as times when opinion Evidence would and wouldn’t be admissible in the court of law. This research work would be confirmed to the examination of the General rule and the General rule of Exclusion, the Rationale for the exclusion any rule, opinion of Experts and non-Experts.

There will also be a study as to the various areas as deemed necessary, likewise statutory and judicial authorities in order to achieve the aim of the long essay.

1.5.0. METHODOLOGY

To achieve an intellectual result in the course of this research work on opinion evidence, emphasis will be laid on primary sources of information gathered from textbooks, law reports, articles by legal authors, internet resources, law journals and all these will give an holistic approach to the subject matter of this course.

1.6.0. LITERATURE REVIEW

There are lots of articles and statues and authors that have written extensively on the topic opinion Evidence.

The major purpose of this work is to take a clear look at the position of law vis-àvis opinion Evidence and for the proper establishment or discussion of this project a number of authorities have been referred to. Different authors and scholars gave their views on what opinion Evidence is.

PETER MURPHY in his book A Practical Approach to Evidence^[10], stated:

“The general rule of common law was the opinions, beliefs and inferences of a witness were inadmissible to prove the truth of the matters believed or inferred if such matters were in issue or relevant to facts in issue in the case”.

 

From this general rule, it is clear that opinion evidence is inadmissible and a witness may only speak of facts that he personally perceived and not inferences drawn from those facts similarly stated by Adrian Keane A. in the book The Modern Law of Evidence^[11].

And also in the Nigerian law of Evidence^[12],

“The general rule on opinion Evidence is that it is not admissible.”

This is well expressed in section 66^[13] of the Evidence Act which states thus:

“The fact that any person is of the opinion that a fact in issue or relevant to the issue does not exist is irrelevant to the existence of such fact except as provided in ^[14]section 57-65 of the act.

In the book Law of Evidence in Nigeria, by T.K. Aguda^[15], opinion is stated to mean “ideas, a belief or judgment based mainly on feeling, opinion exist in the thinking, imagination and understanding of the author. It is therefore essentially judgmental”.

The various authors examined the exceptions to the general rule and also the exceptions to the general rule and also the Evidence Act section 57-65 provides for these exceptions which can broadly be categorized into two expert opinion and non expert.

Section 57^[16] (i) of the Evidence Act which defines an expert opinion:

“When the court has to form an opinion upon a point of foreign law, native or custom, or of sciences or art, or as to identity of handwriting or finger impression, the opinion upon that point of persons specially skilled in such foreign law, native law or custom or science or art, or in questions as to identity of handwriting or foreign impression are relevant facts”.

Section 61-64^[17] makes provision for non experts in the Act.

1.7.0. CONCLUSION

It would suffice to state that this introductory chapter as stated the background to the work into fully understanding the topic of the study and it methodological way of expressing the aims, objectives, research, methodology and definition of the essential terms of the study. It also shed light to what opinion Evidence is.

The subsequent chapters will discuss these subject matters in details.

[1] Cross, On Evidence, (4th Ed.) pg. 1.

[2] Aguda, The Law of Evidence, pg. 98-99.

[3] Henry Campbell Blacks Law Directory (6th Edition) 199, West Publishing Co. pg. 555.

[4] Aguda: The Law of Evidence Spectrum Law Series (4th Edition) pg. 3.

[5] th

Cross, on Evidence(4 Edition) pg.1

[6] Section 156, Evidence Act

[7] Section 77, Evidence Act

[8] Section 2(1) Evidence Act

[9] Afe Babalola: Law and Practice of Evidence in Nigeria (1st Edition) 2001 pg.115.

[10] Peter Murphy: A Practical Approach to Evidence (London, Black Stone).

[11] The Modern Law of Evidence (London, Butterworth), 1994.

[12] Aguda A., Nigerian Law of Evidence (London, Sweet and Maxwell), 1990.

[13] Section 66, Evidence Act.

[14] Section 57-65, Evidence Act.

[15] T.K. Aguda , Law of Evidence in Nigeria.

[16] Section 57 (i), Evidence Act.

[17] Section 61-64 of the Evidence Act.

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