Introduction to the Law of Evidence

Introduction:

This note discusses the meaning of the law of evidence, its relevance, the general notions underlying the law of evidence, and its relationship with substantive law.

Meaning of the Law of Evidence:

At its core, the law of evidence is a set of rules that govern how and when evidence is obtained, presented, accepted, and evaluated by a court or adjudicating body.

In technical legal terms, the law of evidence is a set of rules and principles that govern the admissibility, relevance, weight, and sufficiency of evidence in legal proceedings. It determines what evidence can be presented to a court or tribunal, how it should be presented, and how it should be evaluated in reaching a decision.

The above definitions reflect various scholarly characterisations of the law of evidence. For instance, according to Keane and Mckeown [1],

Evidence is information by which facts tend to be proved, and the law of evidence is that body of law and discretion regulating the means by which facts may be proved in both courts of law and tribunals and arbitrations in which the strict rules of evidence apply [emphasis added].

The above submission first defines evidence as information by which facts tend to be proved [or disproved], and then defines the law of evidence as the body of rules that regulates evidence.

Relevance of the Law of Evidence:

At the end of every litigation is a judicial decision. In arriving at a judicial decision, the judge will examine the facts in light of the law. For instance, in arriving at a decision whether a plaintiff is entitled to the remedy of specific performance, the judge will examine whether the subject matter of the contract is unique and the rules governing the grant of specific performance, such as the adequacy of remedies, among others. Expressed mathematically, judicial Decision = facts + law.

In litigation, both the facts and the law may be disputed, with factual disputes being particularly common. The law of evidence lays down the rules by which facts in dispute can be proved or disproved. It is for this reason that Opoku-Agyeman [2] states that “the function of the law of evidence is to lay down rules according to which facts can be proved or disproved.” Without the law of evidence, there will be no such rules, and parties could present any piece of information as evidence, which could lead to confusion and injustice.

General Notions or Principles Underlying the Law of Evidence:

Underpinning the law of evidence are certain fundamental principles or notions. These principles are only briefly explained under this section and will be thoroughly discussed in subsequent notes.

1. Relevance of Evidence:

There is a rule or principle that evidence must be relevant to be admitted by the court. Thayer [3], for instance, advanced that:

(1)... without any exception, nothing which is not, or is not supposed to be, logically relevant is admissible; and (2)... subject to many exceptions and qualifications, whatever is logically relevant is admissible…

Evidence is considered relevant if it has the tendency to prove a matter of fact significant to the case. Per Section 51(1) of the Evidence Act, 1975 (NRCD 323) , relevant evidence means "evidence... which makes the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Per the Black’s Law Dictionary, 9 ^th ed., relevant evidence is “evidence tending to prove or disprove a matter in issue.” For example, in a criminal trial against a person for murder, a video recording of him shooting the victim is relevant evidence. However, information that the accused is a top student of the law of evidence is not relevant because the academic prowess of the accused is not at issue or disputed.

What amounts to relevant evidence will be discussed extensively in subsequent notes.

2. Admissibility of Evidence:

There is rule or principle that evidence must be admissible. Evidence is admissible if it is of such nature that it can be permitted by the court to be introduced at trial to be considered in deciding the case. Put differently, evidence is admissible if it can be legally presented to a court of law and considered by a judge or jury to help determine the outcome of a case.

As a general rule, all relevant evidence is admissible and all irrelevant evidence is inadmissible, per Section 51(2) and (3) of NRCD 323. According to Keane and McKeown [1],

The most important feature of the English law of evidence is that all evidence which is sufficiently relevant to prove or disprove a fact in issue and which is not excluded by the judge, either by reason of an exclusionary rule of evidence or in the exercise of her discretion, is admissible [the opposite is true].

Similarly, in Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587 at 594 CA , Goddard LJ advanced that:

nowadays, it is relevance and not competency that is the main consideration; and, generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded.

3. Exclusionary Discretion of Judges:

There is a rule that even when evidence is relevant, and for which reason it is generally admissible, judges have exclusionary discretion in admitting such evidence (see Section 52 of NRCD 323 ). This rule was recognised by Keane and McKeown [1] in their statement on the most important feature of the English Law of Evidence under point two (supra).

In the exercise of this discretion, a judge may exclude evidence that is relevant and admissible (the grounds for this will be discussed later). However, judges do not have the discretion to admit irrelevant evidence. For example, in a suit for breach of contract to supply goods, evidence regarding the defendant's personal financial history or unrelated prior legal disputes would generally be considered irrelevant, and the judge has no discretion to admit such evidence.

4. Production of Evidence by Parties:

In an adversarial legal system, the parties to a suit produce evidence to prove or disprove facts in issue. For instance, in an action for breach of contract, the plaintiff is likely to produce evidence of the existence of a contract and its terms and evidence on the conduct of the defendant, which he alleges amounts to a breach.

5. Determination of the Weight of Evidence by the Court:

In attempting to prove or disprove a fact, parties often present several pieces of evidence. For instance, in an action for specific performance where there is a dispute over whether the plaintiff accepted the defendant’s offer, the plaintiff may present various pieces of evidence to show acceptance, such as letters, text messages, and other communications. Each piece of evidence has its own degree of persuasiveness, believability, and credibility, collectively referred to as the "weight of evidence." The court evaluates the weight of each piece of evidence at the end of the trial.

6. Recognition of the Tendencies of Man

In the law of evidence, there is a recognition that man will not make declarations against himself unless those declarations are true, and that whenever man is in difficulty, he will make a declaration for himself.

Relationship of the Law of Evidence with Substantive Law:

Law may be substantive or procedural. Law is said to be substantive if it “creates, defines, and regulates the rights, duties, and powers of parties” (Black’s Law Dictionary, 9 ^th ed.). For instance, constitutional law is substantive law because, among others, it regulates the powers of government and guarantees the rights of individuals. Similarly, the law of contract is substantive law because it makes provisions for the rights and duties of contracting parties. Finally, criminal law is substantive law because it makes provisions on the elements that must be proved to make a person guilty of an offence.

On the other hand, law is said to be procedural, or adjectival if it sets down the rules to govern legal procedures. For example, laws on issuing a writ are procedural in nature.

Fundamentally, the law of evidence is procedural in nature and consequently lays down the rules for parties to prove the existence of rights, liabilities, or the guilt of accused persons. In the case of Ram Jas v. Surrendra Nath [1980] A.I.R. 385, the court emphasised that:

The law of evidence does not affect substantive rights of parties but only lays down the law facilitating the course of justice. The Evidence Act lays down the rules of evidence for the purposes of the guidance of the courts. It is procedural law which provides, inter alia, how a fact is to be proved.

Conclusion:

This note discussed the meaning of the law of evidence as that branch of law that lays down rules for how evidence is obtained, presented to the court or an adjudicating body, accepted, and evaluated by the court. The relevance of the law of evidence was underscored, given that facts are often disputed, and evidence is essential for establishing or refuting these facts in court. Further, we discussed six principles or notions that underlie the law of evidence and concluded with how the law of evidence relates to substantial law.

References:

[1] Keane, A., & McKeown, P. (2022). The modern law of evidence. Oxford University Press.

[2] Opoku-Agyeman, Manual on the Law of Evidence.

[3] J.B. Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston: Little,

Brown, 1898), p.226.