The Nigerian evidence Act 2011 is a piece of legislation that has come to put an end to the common practice of seeking refuge under the English Common Law in the task of interpreting the Evidence Act hitherto indulged in by Nigerian courts. With the provision of section 3 of the Act which states inter alia

“Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria”.  Discuss

The Nigeria Evidence Act is a piece of legislation which came into force on the 3rd of June 2011. One of the major effects this Act is that it repealed the 2004 Evidence Act which was in force in Nigeria before 3rd of June 2011. Prior to the British colonization, the courts existing in Nigeria were mainly customary courts. The rules of evidence applied in this court were otherwise known as customary rules of evidence. The Evidence act is the main source of evidence law, however, up to the year 1945, the Nigerian law of evidence in the English court was the English common law rule of evidence

It is common knowledge that the provisions of the Act were taken basically from the Digest of the Law of Evidence by Sir James Fitzergerald Stephen which was a recommendation to the British Parliament in an attempt to codify the Common Law rules of evidence and make the common law rules into one single body. Now to the main Topic of this subject matter which is the expulsion of S5(a) of the old evidence act cap C112 in the new evidence act is the eradication of the section 5(a) of the old evidence act. The section 5(a) found no space in the new evidence act, thus its complete removal. The section 5(a)[1] states

  “Nothing in this act shall prejudice the admissibility of any evidence which would apart from the provision of this act be admissible”

Meanwhile S3[2] states

“Nothing in this act shall prejudice the admissibility of any evidence made admissible by any other legislation validly in force in Nigeria”

Even though as a matter of fact

S2 of the New Evidence Act 2011 states that

“for the avoidance of doubt, all evidence given in accordance with the section 1, shall, unless excluded in accordance with or any other act, or any other legislation validly in force in Nigeria be admissible in judicial proceedings to which this act applies: provided that the admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this act”It is safe to say that S3 was added to the new Evidence act

The disadvantage of this legislation is that our courts may lack the necessary expertise to analyze and bring each case to fit into this act properly. It therefore means that where a particular case is not covered by the evidence act, the courts can still make an attempt to turn back to the old rules of common law by virtue of

S32 (1&2) of the interpretation act which goes thus:

(1)        Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were m force in England on the 1st day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.[3]

(2)        Such Imperial laws shall be in force so far only as the limits of the local jurisdiction and local circumstances shall permit and subject to any Federal law.[4]

Before the creation of S3 of the new evidence act Nigerian courts were said to have always continually resulted to the English common law rules of evidence in This trend was criticized by the supreme court in the case of UTTEH V STATE, where it held that the rules of evidence at common law are not applicable in Nigeria where the provisions of the Evidence act specifically deals with such a given situation.

In his lecture Professor Taiwo Osipitan, SAN stated that the attitude of the courts in the interpretation of Section 5(a)[5][6] in some cases[7] left much to be desired which necessitated the need for an amendment as evidenced in S3 of the new Evidence Act. According to him,[8] some courts resorted to wholesale application of the common law rules or sought guidance from English decisions in situations when the old Evidence Act contained identical rules or wider provisions than the English common law rules of evidence.


There is no gainsaying that the new evidence act is a welcome legislation which will help in the administering of the rules of evidence in Nigeria. S3[9] tries to restrict the ways through which the court can access the common law rules it does succeed to an extent but by virtue of S32[10] the common law rules of evidence are still very much applicable in Nigeria though there use has been severely curtailed.


[1] S(5)a Evidence act 2004

[2] S3 New Evidence Act 2011

[3] S32(1) INTERPRETATION ACT CAP. 192 LFN 1990 ACT CAP I23 L.F.N. 2004


[4] S32(2) INTERPRETATION ACT CAP. 192 LFN 1990 ACT CAP I23 L.F.N. 2004

[5] See Professor Taiwo Osipitan, SAN paper presentation on “Reflections on Evidence Act” delivered The Law Week of the Nigerian Bar Association, Ibadan Branch on the 26th October, 2011.

[6] Of the old Evidence Act 2004

[7] See R. v. Itule supra; Sule Iyhanda Salawu v. State (1971) NMLR 249;; Okokor(1969) NMLR 189

[8] Professor Taiwo supra

[9] Evidence Act 2011



Author : Alao Adavize Moses