Classification of Facts

Introduction:

In a previous note, we defined facts as things or states of things that can be perceived by the senses. In this note, we will discuss the classification of facts: facts in issue and relevant facts.

1. Facts in Issue:

A. Meaning of Facts in Issue:

Facts in issue, also known as factum probandum, principal facts, or material facts, are facts that must be proved by a party to succeed in a litigation. These may be the existence of a contract, the existence of the elements of a criminal offence, among others.

The following characterisations of facts in issue will aid your understanding:

In the case of Shagang Shipping Company Ltd (in liquidation) v HNA Group Company Ltd [2020] UKSC 34 , the House of Lords, in defining facts in issue, said:

This phrase commonly - and in our view most usefully - refers to those facts which as a matter of law it is necessary to prove in order to establish a claim or a defence: see eg Phipson on Evidence, 19th ed (2018), para 7-02; Cross and Tapper on Evidence, 13th ed (2018), p 30

According to Dennis [1], facts in issue are:

all the facts that it is necessary for a party to prove in order to succeed in the litigation . They comprise the facts constituting a cause of action in a civil proceeding, or the facts that make up the offence charged in a criminal case, together in either case with any facts that must be proved by the defendant to establish a defence. In any given case the facts in issue are determined by reference to the substantive law and the statements of case, which include for this purpose the indictment, information or written charge 6 in criminal proceedings. [1]

Similarly, Keane and Mckeown [2] defined facts in issue as

those facts which the claimant (or the prosecutor) must prove in order to succeed in his claim (prosecution) together with those facts which the defendant (or the accused) must prove in order to succeed in his defence.

Finally, Opoku-Agyemang [3] described facts in issue as “facts which are in dispute.” Understandably, the reason why some facts are in dispute is because the parties recognise that their success in the action is dependent on proving their own version of the facts.

The case of Shagang Shipping Company Ltd (in liquidation) v HNA Group Company (supra) clearly illustrates what constitute facts in issue. In that case, the appellant concluded a charterparty with Grand China Shipping Co. The respondent, HNA Group, acted as guarantor for Grand China Shipping Co. Grand China defaulted in fulfilling its obligations under the charterparty, and Shagang instituted the present action to recover money from HNA. In defence, HNA argued that the contract was unenforceable because there was fraud and illegality during the conclusion of the charterparty contract. It advanced that one Mr Xu, an employee of Shagang, had confessed to paying a bribe to cause the charterparty agreement to be approved as quickly as possible. In response, Shagang advanced that this confession statement was procured by the torture of Mr Xu by the Chinese Public Security Bureau, and therefore inadmissible. Per the House of Lords, the following were the facts in issue:

in the present case the facts that the charterparty and the guarantee were entered into and that Grand China failed to pay hire in accordance with the terms of the charterparty were all facts in issue which Shagang had to prove in order to establish its claim (until those facts were formally admitted by HNA). The fact that a bribe was paid by an employee of Shagang to an individual connected with HNA was also, and remained throughout the trial, a fact in issue which it was necessary for HNA to prove in order to establish a defence that the charterparty (and therefore its guarantee) was unenforceable by reason of bribery. Indeed, this was the key fact in issue in the case

The House of Lords then pointed out that the fact that Mr Xu was tortured to confess, was not a fact in issue. It delivered itself as follows:

On the other hand, the fact that torture was used to procure the confessions of Mr Xu, Mr Jia T and Mr Shen was not a fact in issue as we are using the term. There was no claim for relief made by Shagang for which it was legally necessary, in order for the claim to succeed, to prove that torture had been used by the PSB. It was therefore unnecessary for the judge to make any finding as to whether on the balance of probabilities torture had taken place in order to decide the facts in issue in the case.

B. Facts in Issue in Civil and Criminal Cases:

There are various ways of identifying the facts in issue in both civil and criminal cases. In civil cases, Keane and Mckeown [2] advanced that:

…the facts in issue are usually identifiable by reference to the statement of case, its very purpose being to set out the factual (and legal) issues on which the parties agree and disagree so that they and the court know in advance exactly what matters are left in dispute and what facts, therefore, have to be proved or disproved at the trial.

Here, it should be noted that the facts in issue go beyond factual issues like the age of a person, whether a person is a man or a woman, among others, but may even include legal issues such as whether an advertisement amounts to an offer, whether an action is unconstitutional, among others. For example, in the case of Kpebu v. Attorney General No. J1/13/2015 (Kpebu No. 2) , the fact in issue was whether section 96(7) of Act 30 is inconsistent with Article 19(2)(c) of the 1992 Constitution , as the plaintiff needed to prove that the section was inconsistent with that constitutional provision in order to succeed, and the defendant needed to prove otherwise to succeed.

In criminal cases, particularly those in which the accused pleads not guilty, they advanced that:

…the facts in issue are all those facts which the prosecution must prove in order to succeed, including the identity of the accused, the commission by him of the actus reus, and the existence of any necessary knowledge or intent on his part,3 together with any further facts that the accused must prove in order to establish any defence other than a simple denial of the prosecution case

For example, in prosecuting a person for murder, the prosecution, in order to succeed, generally has to prove that

a. A person dies.

b. The death of the victim was caused by unlawful harm.

c. The unlawful harm was caused by the accused (causation).

d. In inflicting the harm on the victim, the accused had the intention to kill (see Dua v the State) (malice aforethought).

The accused, in order to succeed and secure a not guilty verdict, equally has to prove that

a. The person he is accused of murdering, is not dead.

b. That he did not cause the death by unlawful harm. For example, that he was under lawful instructions to cause death.

c. That he did not have the intention to kill.

The accused person may concede that the victim is dead, that the death was caused by unlawful harm, but challenge the fact that the unlawful harm was caused with an intention to kill. If he proves that there was no intention to kill, he will succeed in the litigation and not be found guilty of murder. Here, the fact in issue was intention of the accused when he caused unlawful harm to the victim.

C. Types of Facts in Issue:

Usually, two types of facts in issue are distinguished. These are:

i. Facts in issue as a matter of substantive law

ii. Facts in issue deduced from the law of evidence.

These are now explained.

i. Facts in Issue as a Matter of Substantive Law:

These are also known as primary facts in issue, or restricted facts in issue. Primary facts in issue are facts which a party must prove to succeed or those facts which a legal rule requires that they be proven for a party to succeed, such as the existence of a right or liability, among others. These rights and liabilities are established by substantive law such as the law of contract, constitutional law, criminal law, among others. For instance, from the law of contract, a fact in issue can be whether an act or omission amounts to a breach of contract. The plaintiff seeking to recover damages for breach of contract must therefore use the law of contract to establish the breach and the quantum of damages.

ii. Facts in Issue Deduced from the Law of Evidence:

These are also referred to as extended facts in issue, preliminary facts in issue, subordinate facts in issue, or collateral facts. They are facts arising out of the rules of evidence such as those on admissibility of evidence, qualification of a person as a witness, or the existence or non-existence of a privilege (see Section 3 of NRCD 323 ). Also, in Shagang Shipping Company Ltd (in liquidation) v HNA Group Company (supra) , the following were cited as examples of preliminary facts in issue:

Examples of preliminary facts which may need to be determined in civil proceedings are: the fact that a communication between a lawyer and client was made in confidence for the purpose of giving or receiving legal advice (in order to decide whether the communication is protected by legal professional privilege); the fact that a person is capable of understanding the nature of an oath and of giving rational testimony (in order to decide whether the person is competent to testify as a witness); and facts which it is necessary to determine for the purpose of deciding whether evidence is admissible.

Proving a preliminary fact in issue (such as competency of a person to testify as a witness), does not necessarily translate into succeeding in the case. Thus, proving that a person is qualified to testify as a witness, does not, without more, cause a party to succeed because the testimony of the witness will still be evaluated, assigned weight, and considered in the context of other evidence. Also, in the Shagang Shipping Company Ltd (in liquidation) v HNA Group Company (supra) case , proving that torture was used to obtain the confession of Mr. Xu only went to the reliability and admissibility of his confession as evidence and did not go to the core of the litigation.

Assignment from Manual for Law of Evidence:

You are to refer to one criminal and one civil case. Identify both the restricted and extended facts in issue for the determination of the court.

Proposed Solution to Assignment:

Civil Case: In the case of Routledge v McKay [1954] 1 WLR 615 , The claimant entered negotiations with the defendant for the acquisition of a motorcycle. Although the motorcycle was a 1936 model, the claimant was orally informed by the defendant that the motorcycle was a 1942 model. A written agreement was drawn up which did not include the model of the motorcycle and which also ended with the words “it is understood that when the £30 is paid over that this transaction is closed". In that case, there were both restricted and extended facts in issue:

i. Restricted Fact in Issue: Whether or not the representation on the model of the motorcycle constituted a term of the contract.

ii. Extended Fact in Issue: Whether or not oral representations on the model number of the motorcycle could be admitted to form part of the terms of the contract.

Criminal Case: In the case of Republic v. Konkomba, [1979] GLR 270–284 , the accused was being prosecuted for murdering his nephew. During the period he was being investigated for the crime, he denied committing the offence. Subsequently, the police obtained intelligence that he was packing his belongings to leave the community, and they therefore went to his house, where they found him in a pool of his own blood from a self-inflicted injury. He was taken to the hospital. At the hospital, fearing that the accused may die, a policeman got a second statement from the accused, by which he admitted to killing his nephew.

i. Restricted Fact in Issue: Here, all the elements of murder will be facts in issue if challenged by the accused (for example if he only challenges intention to kill, the restricted fact in issue will be intention to kill).

ii. Extended Fact in Issue: The admissibility of the second statement as evidence.

In the Republic v. Konkomba case, the court actually decided that the second statement from the accused was not admissible. However, the mere fact that the court did not admit this evidence, did not mean that the accused was not guilty. The guilt of the accused was to be ascertained by proving the restricted facts in issue.

2. Relevant Facts or Facts Relevant to the Facts in Issue:

A. Meaning of Relevant Facts:

In addition to facts in issue, facts may also be classified as relevant facts. This is also known as facts relevant to the facts in issue, evidentiary fact, or factum probans. Relevant facts, when proven, provide indirect evidence that prove or disprove the facts in issue.

For instance, in a murder case, there may be no direct evidence, such as an eyewitness account of the accused delivering the fatal blow to the victim, making it challenging to establish the fact in issue—the victim’s death caused by unlawful harm. However, the relevant fact that the accused came out of the victim’s house with a blood-stained knife could, if proved, prove the fact in issue that the accused caused the death of the victim by unlawful harm.

We may now examine some scholarly definitions of relevant facts. Per Black’s Law Dictionary, 9 ^th ed., a relevant fact is:

A probative or evidentiary fact; a subsidiary fact tending to prove a principal fact in issue.

According to Keane and Mckeown [2], a relevant fact “is a fact from which the existence or non-existence of a fact in issue may be inferred.” They then proceeded to explain the importance and application of this class of facts as follows:

If the only facts which were open to proof or disproof were facts in issue, many claims and defences would fail. If, for example, the fact in issue is whether a man shot his wife, obviously an eye-witness to the incident may be called to give evidence that he saw the shooting. However, in many cases a statement by a witness that he perceived a fact in issue with one of his senses, which is described as ‘direct evidence’, is quite simply unavailable. Very often the only available evidence is that which can establish some other fact or facts relevant to the fact in issue, for example the evidence of a gunsmith that on the day before the shooting the man bought a gun from him, the evidence of a policeman that after the shooting he found that gun buried in the garden of the man’s house, and the evidence of a forensic expert that the gun bore the man’s fingerprints.

Thus, while there is no direct evidence from an eye witness that the man shot his wife, the fact in issue, that the man caused the death of his wife by unlawful harm, can be proved by proving the relevant facts that the man bought a gun prior to the shooting of his wife, that he buried the gun in his garden, and that he had held the gun, thereby leaving fingerprints. These relevant facts, when proved, collectively lead to the logical conclusion that the man caused the death of his wife by unlawful harm.

B. Circumstantial Evidence as Evidence Used to Prove Relevant Facts:

When evidence is provided for relevant facts, the evidence is described as circumstantial evidence. In the case of R. v. Taylor (1928) 21 CR. App. R. 20 at p. 21, C.C.A , Lord Hewart C.J explained the importance of circumstantial evidence as follows:

It has been said that the evidence against the appellant is circumstantial, so it is but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.

Similarly, in various conspiracy cases, the courts have held that the fact in issue, that the accused persons agreed to act together to commit a crime, is often difficult to prove by direct evidence and may therefore be proved by circumstantial evidence. In the case of Commissioner of Police v Afari and Addo (1962) 1 GLR 483 , for instance, the Supreme Court of Ghana stated that:

it is rare in conspiracy cases for there to be direct evidence of the agreement which is the gist of the crime. This usually has to be proved by evidence of subsequent acts, done in concert and so indicating a previous agreement. In the view of this court the conduct of appellants on that Sunday in March, 1961, in the house of first appellant shows some collaboration between them which is evidence of a previous agreement to carry a criminal design into effect. There was in this case sufficient evidence directed and confined to the facts which constitute the anterior conspiracy, and therefore in the opinion of this court the inclusion of a count of conspiracy in the instant charge was perfectly justified. This ground of appeal therefore fails.

Thus, while the fact in issue is that the accused persons agreed to act together to commit a crime, the relevant fact was that they subsequently conducted themselves in a way that revealed an earlier agreement to act together to commit a crime. To prove the fact in issue, the prosecution could simply prove the relevant fact of their subsequent conduct.