AN ANALYSIS OF THE USE OF TESTIMONY AS A MEANS OF PROOF IN NIGERIA

AN ANALYSIS OF THE USE OF TESTIMONY AS A MEANS OF PROOF IN NIGERIA

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ABSTRACT

It is natural and common in human society to have between individuals a kind of

dispute that may probably arise. Islamic Law had laid down and provides the

procedures through which such dispute can be judicially determined. Nigerian

Courts are enjoined to apply principles and Rules enunciated by Makili School of

jurisprudence.

Complete application of Islamic law of Evidence in Nigeria has been limited and

most of the texts on Islamic law of Evidence are classical and written in Arabic

language. The rules of Islamic law of Evidence pronounced by the classical books

are yet to be comprehensively codified to guide Nigerian Courts in conducting trials.

Regrettably the poor level of knowledge of Islamic law of Evidence rules among

lawyers and the lower courts judges has led to erroneous appreciation and

application of the rules.

The scope to be covered by this research is: the sources of Islamic law of Evidence,

the cardinal principles governing the use of testimony, the application of testimony

as means of Proof in Establishing both Criminal and Civil Cases. The research

methodology of the thesis is doctrinal and analytical.

In the course of the research, some findings or observations were made. The

research found that there is no clear distinction between substantive and procedural

law in Islamic Law and most of the texts on the subject are written in classical

Arabic which is technical in nature. The jurisdiction of Shari‟a Court of Appeal in

Nigeria is limited to Islamic personal Status. Suggestions were made in the research

as proffered solutions to the enumerated findings/observations.

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

The word Testimony means: the evidence of a witness usually given in court and

usually under oath.1The first source of the proof of a crime or a right in islamic law

is SHAHADA i.e Testimony literally means: information of what one has witnessed

or seen or beheld with his eyes, declaration of what one knows, decisive

information, it also means to be present.

Technically means: to give true information before a competent court of law what

one has seen or known for the purpose of proving or disproving a right or crime.2

The law of evidence encompasses the rules and legal principles that govern the proof

of facts in a legal proceeding, these rules determine what evidence must or must not

be considered by the trier of fact in reaching its decision and sometimes the weight

that may be given to that evidence.

The law of evidence is also concerned with the quantum (amount) quality of proof is

how reliable such evidence should be considered. This includes such concepts as

hearsay authentication, admissibility, reasonable doubt and clear and convincing

evidence.

There are several types of evidence, depending on the form or source, evidence

governs the use of testimony (e.g oral or written statements, such asaffidavit),

exhibits (e.g physical objects), documentary material, or demonstrative evidence

1. Bone, S., Osborn’s Concise Law Dictionary, Sweet and Maxwell, London, 2001, p.376. 2. Cowdhury, A., The Islamic Law of Evidence, Kitab Bhavan, New Delhi, India, 2006, p.19.

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which are admissible i.e allowed to be considered by the trier of fact, such as jury in

a judicial or administrative proceedings, e.g a court of law when a dispute whether

relating to a civil or criminal matter, reaches the court there will always be a number

of issues which one party will have to prove in order to persuade the court to decide

in his favour.The law must ensure certain guidelines are set out in order to ensure

that evidence presented to the court can be regarded as trustworthy.

In Nigerian law the rule of corroboration in criminal cases requires that there must

be two pieces of evidence, to prove each essential fact, eventhough this

corroboration requirement is no longer applies in civil cases with the exception of

some areas of family law, such as divorce, when another individual not party to the

marriage must act as witness.

Also in nigerian law, evidence that would otherwise be admissible at trial may be

excluded at the discretion of the trial judge if it would be unfair to the defendant to

admit it.Evidence of a confession may be excluded because it was obtained by

oppression or because the confession was made in consequence of anything said or

done to the defendant that would be likely to make the confession unreliable. In

these circumstances, it would be open to the trial judge to exclude the evidence of

the confession.

Further the authentication requirement has import primarily in jury trials, if evidence

of authencity is lacking in a bench trial, the trial judge will simply dismiss the

evidence as unpersuasive or irrelevant.

In systems of proof    based on the Nigerian law almost all evidence must be

sponsored by a witness, who has sworn or solemnly affirmed to tell the truth. The

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bulk of the law of evidence regulates the types of evidence that may be sought from

witnesses and the manner in which the interrogation of witness is conducted such as

during direct examination and cross of witnesses.

Other types of evidentiary rules specify the standards of persuation (e.g proof

beyond a reasonable doubt) that a trier of fact whether judge must apply when it

assesses evidence.

Today all persons are presumed to be qualified to serve as witnesses in trials and

other legal proceedings and all persons are also presumed to have legal obligation to

serve as witnesses if their testimony is sought. However legal rules sometimes

exempt people from the obligation to give evidence and legal rules disqualify people

from serving as witnesses under some circumstances.

Witness competence rules are legal rules that specify circumstances under which


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