Relevancy, Admissibility and Weight of Evidence Under the Evidence Act 2011

There is a scene that plays out in Nigerian courts more often than most students realise. A counsel tenders a document. The opposing counsel objects. The judge says: “Counsel, is your objection to relevance or to admissibility?” The counsel who cannot tell the difference has already lost the argument, because these are not the same question, they carry different consequences, and the court will treat them entirely differently.

These three concepts, relevancy, admissibility, and weight, are the structural backbone of the Nigerian law of evidence. Every other rule in the Evidence Act 2011 is, in some sense, an elaboration of how these three operate in specific contexts. You cannot properly understand hearsay, character evidence, confessions, or privilege without first understanding the relationship between these three ideas.

This article builds on the article on facts in issue and relevant facts and provides the complete picture of how Nigerian courts move from identifying what is potentially provable to deciding what can legally be admitted and how much it is worth.

Relevancy: What the Act Actually Requires

A fact is relevant under the Evidence Act 2011 when its existence renders another fact more probable, and when it falls within one of the categories recognised by the Act.¹

Both parts of that sentence matter. The first part, the probability test, is the logical element. If the existence of one fact increases or decreases the probability of another fact, there is a logical connection between them. The second part is the statutory element. The Evidence Act does not make every logically connected fact relevant. It specifies which kinds of logical connections qualify.

This is why sections 5 to 19 of the Evidence Act 2011 list specific categories of relevant facts. Facts that are the cause or effect of facts in issue fall under section 5. Facts showing motive or preparation fall under section 6. Facts necessary to explain or introduce a fact in issue fall under section 7. Statements by conspirators fall under section 8. Facts showing the existence of customs or rights fall under section 9. Facts showing state of mind or bodily condition fall under sections 11 and 16. We examine all of these in the article on facts in issue and relevant facts.

The practical point is this: if a fact does not fall within any of the categories in sections 5 to 19, it is irrelevant under the Act regardless of how logically connected it may seem. Logic alone is not enough.

Relevancy is a question of fact. When a court considers whether a piece of evidence is relevant, it is asking an empirical question: does this fact, if proved, make any fact in issue more or less probable? That question does not have a legal answer. It has a factual one, based on ordinary reasoning about how the world works. The judge resolves it by applying common sense and the categories in the Act.

All Relevant Evidence is Admissible Unless Excluded

This is the foundational principle of admissibility in Nigerian evidence law.

Section 1 of the Evidence Act 2011 provides that evidence may be given in any proceeding of the existence or non-existence of every fact in issue and of such other facts as are declared relevant by the Act, and of no others.

Reading this alongside sections 5 to 19, the default rule is clear: relevant evidence is admissible. If a fact falls within one of the recognised categories of relevance, it can generally be placed before the court. The court will hear it.

But the Act immediately creates a series of exceptions to this default rule. Certain categories of evidence are excluded from the courtroom even when they are relevant. Hearsay is generally excluded under sections 37 to 38, with exceptions under sections 39 to 52. Evidence of bad character is generally excluded under section 82. Privileged communications are protected under sections 192 to 205. Opinion evidence is restricted under sections 67 to 76. These exclusions operate as a filter on top of the relevance test.

The exclusionary rules exist for policy reasons. Hearsay is excluded because the original maker of a statement cannot be cross-examined to test its reliability. Character evidence is generally excluded to prevent courts from convicting people for who they are rather than for what they did in a specific case. Privilege protects relationships and communications that the law values for reasons beyond the immediate litigation, such as the confidentiality of legal advice.

Admissibility is a question of law. This is the critical distinction from relevancy. When a court asks whether evidence is admissible, it is asking a legal question: does the Act permit this evidence to be placed before the court? That question has a legal answer derived from the specific provisions of the Evidence Act 2011 and the Constitution. The court has no discretion to admit evidence that the Act excludes, and in principle no discretion to exclude evidence that the Act declares admissible.

In Abubakar v Chuks,² the court stated clearly that evidence which is legally receivable is admissible whether or not it is logically probable. This confirms the asymmetry: a piece of evidence can be legally admissible even if the court thinks it is unlikely to be true. Questions of likelihood go to weight, not admissibility.

The Three-Step Sequence

The concepts operate in a fixed sequence. Understanding the sequence prevents the confusion that costs students marks.

Step one is relevancy. Ask: does this fact fall within a category in sections 5 to 19 of the Evidence Act 2011? If yes, it is relevant. If no, it is irrelevant and the inquiry stops there. Irrelevant evidence is excluded entirely.

Step two is admissibility. Ask: does any rule of the Evidence Act 2011 or the Constitution exclude this evidence? If a rule of exclusion applies, the evidence is inadmissible even though it is relevant. If no rule of exclusion applies, the evidence is admissible.

Step three is weight. Ask: now that this evidence has been admitted, how much probative value should the court give it? This is assessed after admission, by reference to all the circumstances.

A piece of evidence can fail at any step. It can be irrelevant and therefore excluded at step one. It can be relevant but inadmissible and therefore excluded at step two. It can be relevant and admissible but given very little weight at step three because it is not credible or is contradicted by stronger evidence.

Admissibility Cannot Be Waived by Agreement

One consequence of admissibility being a question of law is that parties cannot agree to make inadmissible evidence admissible. In R v Agwuna,³ the West African Court of Appeal stated that there is no provision in the Act which allows any evidence to be rejected as inadmissible save as provided in the Act itself. This cuts both ways. Just as the Act cannot be overridden to exclude admissible evidence, it cannot be overridden to admit inadmissible evidence.

In practice, this means that if both parties agree to tender a document that is inadmissible under the Act, the court is still not bound to admit it. A trial judge who admits inadmissible evidence at the consent of counsel has made an error that can be corrected on appeal.

There is, however, a nuance. Certain objections to admissibility must be taken at the point when evidence is being tendered. A party who fails to object at the appropriate time may lose the right to complain on appeal. This is not because the evidence has become admissible by consent. It is because the appellate court may decline to interfere where no objection was raised and where the admission of the evidence did not cause a miscarriage of justice.

The Constitutional Dimension of Admissibility

The relationship between section 36 of the 1999 Constitution and the admissibility of evidence is one of the most important and least taught dimensions of Nigerian evidence law.

Section 36(1) of the Constitution guarantees fair hearing. Where the method by which evidence was obtained violates the constitutional rights of the person against whom it is tendered, there is an argument that admitting the evidence itself violates the Constitution.

The most significant constitutional admissibility question in Nigeria arises with confessions. Section 29(1) of the Evidence Act 2011 provides that a confession is only admissible if it is voluntary. Section 29(2) excludes confessions obtained by oppression or in circumstances that render them unreliable. Section 29(5) defines oppression to include torture, inhuman or degrading treatment, and the use or threat of violence.

These statutory provisions implement the constitutional prohibition in section 34(1)(a) of the 1999 Constitution against torture and in section 36(11) against compelled self-incrimination. When police extract a confession through beatings, as happens with disturbing frequency in Nigerian police stations, the constitutional question and the statutory question arise simultaneously.

The tension here is real and unresolved. Nigerian courts have sometimes admitted confessions that were retracted by the accused on grounds of duress, reasoning that the burden of proving the duress lies on the accused once the prosecution has established that a confessional statement was made. Critics argue that this approach sits uneasily with section 36(5)’s presumption of innocence and section 34(1)(a)’s prohibition on torture. We examine this tension in detail in the article on confessions.

Weight: The Final Assessment

Weight is the probative value attached by the court to evidence that has been admitted. It is the court’s assessment of how much the evidence actually advances the case of the party who tendered it.

Section 34(1) of the Evidence Act 2011 directs the court to take into account all the circumstances surrounding how evidence was obtained when assessing its weight. This open-ended instruction gives the court considerable latitude to assess the reliability of evidence in context.

Several factors regularly affect weight in Nigerian courts.

The interest of the witness. A witness who is related to a party, is a close friend, or has a financial interest in the outcome of the proceedings may be less credible than a disinterested witness. Courts routinely note whether a witness is an “interested party” when assessing weight.

Consistency with other evidence. Evidence that fits well with other independently established facts carries more weight than evidence that contradicts the rest of the record. In Nwabuoku v Onward Enterprise Ltd,⁴ the court emphasised that weight must be assessed by reference to the totality of the evidence.

The demeanour and manner of the witness. Trial courts have an advantage over appellate courts in assessing witness credibility because they can observe how a witness gives evidence. Did the witness hesitate? Were they evasive? Did they give their evidence with the natural detail of someone recounting a true event? These observations feed into the court’s assessment of weight.

Previous inconsistent statements. Under section 232 of the Evidence Act 2011, if a witness’s oral testimony in court contradicts a previous written or oral statement, that inconsistency is relevant to the weight of their evidence. A party cross-examining a witness can put the previous statement to them and use the inconsistency to undermine the credibility of their current testimony.

How evidence was obtained. While the Act does not generally exclude evidence merely because it was obtained by improper means, the manner in which evidence was obtained is relevant to weight under section 34(1). Evidence obtained through trickery or in dubious circumstances may be given less weight even if it is technically admissible.

Hostile witnesses. Under section 230 of the Evidence Act 2011, where a witness called by a party gives evidence materially unfavourable to that party, the court may, on the application of that party, declare the witness hostile. Once declared hostile, the party may cross-examine their own witness and the witness’s evidence is practically stripped of any weight in their favour.

Relevancy, Admissibility and Weight in Practice: An Illustration

Consider this scenario. Tunde is charged with obtaining money by false pretences. The prosecution wants to prove that Tunde made a false representation to the victim by sending a text message. The prosecution also wants to call a witness who will say that Tunde had previously defrauded another person in a similar way three years ago.

For the text message: Is it relevant? Yes, under section 6 it shows preparation and under section 7 it introduces and identifies the method of the fraud. Is it admissible? The text message is a computer-generated document and must satisfy the conditions in section 84 of the Evidence Act 2011 for electronic evidence. If those conditions are met, it is admissible. What weight should it carry? That depends on whether the contents of the message are clear, whether the prosecution can establish that Tunde sent it, and whether it is consistent with other evidence.

For the evidence of a previous fraud: Is it relevant? Possibly, under section 12, if the similar act is being used to show that the act in question was not accidental but intentional. Is it admissible? This is where the exclusionary rule in section 82 on character evidence creates a hurdle. The general rule is that bad character evidence is inadmissible in criminal proceedings. The exception in similar facts evidence may apply. We examine that in the article on similar facts evidence. What weight would it carry? Even if admitted, its weight depends on how similar the previous act was and how clearly it was proved.

This illustration shows why the three-step sequence matters in practice. Treating all three concepts as one question produces wrong answers.

A Quick Reference Table

Concept	Question Asked	Who Decides	Key Section
Relevancy	Does this fact fall within a recognised category of connection to the facts in issue?	Court (question of fact)	ss 5 to 19 EA 2011
Admissibility	Does the law permit this evidence to be placed before the court?	Court (question of law)	ss 1, 37, 67, 77, 192 EA 2011
Weight	How much probative value does this admitted evidence carry?	Court (discretionary assessment)	s 34(1), 223, 230, 232 EA 2011
Exclusionary rules	Categories of relevant evidence that are still inadmissible	Governed by specific provisions	ss 37, 82, 192 EA 2011
Hostile witness	A witness whose evidence is given no weight in favour of the party who called them	Declared by the court on application	s 230 EA 2011

Key Cases

Abubakar v Chuks (2007) 18 NWLR (Pt. 1066) 386 The court held that evidence which is legally receivable is admissible whether or not it is logically probable. Admissibility is a question of law and relevancy is a question of fact. Questions of probability go to weight, not admissibility.

Nwabuoku v Onward Enterprise Ltd (2006) 1 NWLR (Pt. 962) 511 The court distinguished between admissibility and weight, holding that it is one thing for evidence to be admitted and another for it to carry probative value sufficient to prove the case.

R v Agwuna (1947) 12 WACA 456 The court held that there is no provision in the Evidence Act which allows evidence to be rejected as inadmissible except as provided in the Act itself. Admissibility is governed solely by the statute, not by agreement of the parties.

Olufosoye v Olorunfemi (1989) 3 NWLR (Pt. 108) 275 The court affirmed that facts in issue must be genuinely disputed and that relevancy is determined by reference to those disputed facts.

Problem Question Framework

When you encounter a question involving whether evidence should be admitted, use this three-step structure in your answer.

First, address relevancy. Identify the facts in issue from the charge or pleadings. Ask whether the evidence in question relates to those facts in issue or to any fact that is relevant to them under sections 5 to 19 of the Evidence Act 2011. Identify the specific section that makes the fact relevant. If no section applies, the fact is irrelevant and your analysis ends here.

Second, address admissibility. Assuming the fact is relevant, identify whether any exclusionary rule applies. The most commonly relevant exclusionary rules are the hearsay rule under section 37, the character evidence rule under section 82, the privilege rules under sections 192 to 205, and the electronic evidence requirements under section 84. If an exclusionary rule applies, the evidence is inadmissible despite being relevant. State the rule and its statutory basis.

Third, address weight. If the evidence survives both the relevancy and admissibility tests, assess what weight the court is likely to give it. Consider the interest of the witness, consistency with other evidence, the manner in which the evidence was obtained, and any issues of credibility.

Always keep these three analyses separate. Confusion between them is the most reliable way to lose marks on a Nigerian evidence law examination.

Common Student Mistakes

The most common mistake is collapsing relevancy and admissibility into a single question. Students who say “this evidence is relevant so it is admissible” are making a logical error. Relevant evidence can still be inadmissible if an exclusionary rule applies.

The second mistake is the reverse: saying that because evidence is inadmissible it is also irrelevant. This is also wrong. Evidence can be relevant but inadmissible. The exclusionary rules presuppose relevance. You only need to exclude what is first relevant.

The third mistake is treating admissibility as a matter of discretion. The Act does not give the court a general discretion to exclude relevant and admissible evidence because the court thinks it is unfair or dangerous. Exclusion must be based on a specific rule. This distinguishes Nigerian evidence law from English law, where courts have a broader discretionary power to exclude prejudicial evidence.

The fourth mistake is treating weight as determined at the moment of admission. Weight is assessed at the end of the case, in the light of all the evidence. A piece of evidence admitted early may be given less weight at judgment because of what other evidence revealed later.

The fifth mistake is ignoring the constitutional dimension. Where the manner in which evidence was obtained raises a section 36 or section 34 concern, the constitutional argument must be engaged alongside the statutory analysis. Treating the Evidence Act as the only relevant law misses half the picture.

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Footnotes

¹ M Adigun, Relevancy, Admissibility and Weight (University of Ibadan Faculty of Law Lecture Slides 2021) slide 2; Evidence Act 2011, ss 3, 5 to 19.

² Abubakar v Chuks (2007) 18 NWLR (Pt. 1066) 386.

³ R v Agwuna (1947) 12 WACA 456 at 458.

⁴ Nwabuoku v Onward Enterprise Ltd (2006) 1 NWLR (Pt. 962) 511.