EVIDENTIARY RULES ON ADMISSIBILITY OF DOCUMENTARY EVIDENCE UNDER NIGERIAN EVIDENCE ACT 2011: A CRITICAL APPRAISAL

EVIDENTIARY RULES ON ADMISSIBILITY OF DOCUMENTARY EVIDENCE UNDER NIGERIAN EVIDENCE ACT 2011: A CRITICAL APPRAISAL

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ABSTRACT

This Dissertation provided a critical conceptual discourse into the Evidentiary Rules On Admissibility of Documentary Evidence Under Nigerian Evidence Act 2011. It appraised the bases for the admissibility of documentary evidence, rules of evidence, relevance and conditions for the admissibility of secondary evidence, public document, proof of documentary evidence, custody and production of public documents, proof of execution of documents, admissibility of statements made in computers, and conditions for the admissibility of documentary evidence as to fact in issue. It also appraised the rules on admissibility of documentary evidence under the Nigerian Law to ascertain what factors that determine the admissibility and inadmissibility of documentary evidence and it examined the extent to which computer generated evidence is made part of admissible documentary evidence under the Evidence Act 2011. Evidence is the cornerstone of litigation and indispensable for a fair justice system in Nigeria. This dissertation therefore aimed at bringing out issues faced by the Lawyers, Courts, theorists and Students of Law relating to the admissibility of documentary evidence; solving problems faced by Students of Law and Lawyers on issues of proper foundation to be laid and the mode of tendering the documentary evidence and principally, recommending areas and manner of legal reform as to the admissibility of documentary evidence by making an exposition on a very fundamental rule on documentary evidence. The separation of section 89 and 90 of the Evidence Act and the alteration of sections in 1990 Evidence Act which has the same principles under 2011 Evidence Act, made comprehension and interpretation of above sections difficult. The five subsections in section 83 constitute a sort of nightmare to many Students of Law and even the Lawyers sometimes are confused as to the application of its provisions. Making it worse is the use of the words „provided‟, „except‟, and „unless‟. Also, in addition to the issues raised above, the failure of the Act in not defining the nature of electronic signature compounded the confusion, difficulties and obscurity of meaning of evidence it sought to enshrine, legislate or enforce and so we can only conclude that the provisions of section 83 are cumbersome and they ordinarily portend challenges to understanding and thus interpretation and would need material revision and redrafting. The legal research methodology adopted in collecting information is the doctrinal method. The doctrinal research is priori research method which involves research in text books, statute and cases. The findings of the study significantly included the difficulty which the separation of S. 89 and 90 Evidence Act posed to Students of Law, and the absence of the definition of the nature of electronic signature. It is therefore recommended that there is immediate need for legislative reform to redress the issues for proper drafting, interpretation and understanding for-instance the issues relating to the use of simple English to replace the words „provided‟, „except‟, and „unless‟ for easy understanding. The need for legislative amendment of S. 89 and 90 which was separated, should be redrafted under one section for easy interpretation and understanding and the amendment of Section 83(4) to provide for the nature of electronic signature for its admissibility purposes.

CHAPTER ONE

GENERAL INTRODUCTION

1.1       Background to the Study

Documentary evidence forms part of the entire gamut of the Law of Evidence. And of

course, if a thing is self evident, it does not require evidence.1Section 882 provide that

“document shall be proved by primary evidence except in the cases mentioned in this

Act”.

It is submitted that, documentary evidence is anything in which statement is written on,

which can be on paper, electronic device, walls, trees, rocks, human body or in picture

form.

Documentary evidence is one of the major recognised modes of proof. Documentary

evidence is thus of such tremendous importance in Court proceedings as it is the

yardstick by which the veracity of oral testimony is tested3 it is for this reason that the

Law of Evidence permits trial Courts to substitute the eye for the ear in the reception of

evidence when the need arises.4

Among the three modes of evidence: oral, documentary and real evidence, oral

evidence seems to constitute the platform for the presentation in Court of the other two

categories. Truly, it is in the course of oral testimony in Court that a document or some

kind of real evidence is tendered. In spite of this, the input of documentary evidence

and its significance in the modern probative process seems to almost overshadow the

1 Onamade, P.A: (2002). Documentary Evidence Cases and Materials. (Philade Co. Ltd. Lagos, Nigeria) Vol. 1. p.1

2 Evidence Act, Laws of the Federation of Nigeria 2011 3 Onamade, P.A: op cit p. vii

4 Ibid. p. 2

1


other two categories.5 Steven Uglow, noting the importance of documentary evidence in

the probative process stated that:

Documentary evidence is of considerable importance in both            civil     and     criminal      proceeding…reliance     on documentary evidence is often worthwhile as it is regarded as having greater weight. often the information has been complied closer to the events, and unlike a witness, a document will not be shaken by cross Examination6

It is submitted that, documentary evidence in essence, is of great significance as a

means of proof in any proceeding . It speaks for itself once tendered thereby making

Court proceedings easier once the specified conditions are followed and the principles

also guide the electronically generated evidence once due compliance to the

requirements were followed and if proved abortive, will not be admissible in evidence.

Generally, the rule that governs the admissibility of any document is the test of the


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