Sources of Nigerian Law of Evidence: From the 1943 Ordinance to the Evidence Act 2011

In 1952, a man stood trial in a Nigerian High Court and his counsel tried to argue that certain evidence should be admitted based on an English common law rule that existed before the Evidence Ordinance came into force. The court had to decide: does that old English rule still operate in Nigeria, or has it been replaced by the statute? The answer depended entirely on understanding where Nigerian evidence law comes from and how the different sources rank against each other.

That question has not gone away. In fact, it became more complicated when the Evidence Act 2011 replaced the old Evidence Act in June of that year, because the 2011 Act changed the relationship between Nigerian statute law and the English common law of evidence in a way that many practitioners and students still do not fully appreciate. Understanding the sources of Nigerian evidence law is therefore not a matter of historical curiosity. It determines which rules actually govern a trial today.

This article traces the development of Nigerian evidence law from the pre-colonial period through the Evidence Ordinance of 1943, the Independence Act of 1960, the Evidence Act 2004, and finally the Evidence Act 2011. It then identifies each recognised source of Nigerian evidence law and explains how they rank against each other.

Before 1943: The Era Without a Written Evidence Code

Before the British formalised their colonial administration, Nigerian communities already had sophisticated systems for settling disputes and establishing facts. These were not chaotic or lawless. They were simply different from the English model.

In the Southern parts of what would become Nigeria, disputes were resolved before traditional rulers, chiefs, and elders. The rules governing how evidence was given and weighed were customary, unwritten, and community-specific. The objective was not to establish abstract legal truth but to reconcile interests and restore social harmony.¹ In the Northern parts, particularly in areas that had come under the influence of Islamic governance, disputes were resolved in Alkali courts. The rules of evidence in those courts were drawn from the Quran and Islamic jurisprudence, administered by Imams and Alkalis who were learned in Arabic and Islamic law.²

When the British arrived and began establishing formal courts around 1861, they initially acknowledged these existing systems. Traditional rulers continued to preside over customary courts in the South, and Islamic courts continued to operate in the North. The British did not immediately impose a uniform evidence code.

The problem arose as commercial activity increased. The Royal Niger Company and other colonial enterprises expanded trade and created disputes that crossed ethnic and geographical boundaries. Courts dealing with these disputes needed a more uniform framework. The courts established by the British administration, the Magistrates’ Courts, the High Courts, and later the courts of appeal, applied English common law rules of evidence. But there was no Nigerian statute codifying those rules. Judges applied the common law as best they could, drawing on English decisions that were not always suited to Nigerian conditions.³

This was the gap that the Evidence Ordinance of 1943 was designed to fill.

The Evidence Ordinance of 1943: Nigeria Gets Its First Written Evidence Code

The first Evidence Ordinance was No. 27 of 1943. It did not come into operation immediately upon enactment. It became operative on 1 June 1945.⁴ The delay gave courts and practitioners time to familiarise themselves with its contents.

The Ordinance drew heavily from Sir James Fitzjames Stephen’s Digest of the Law of Evidence.⁵ Stephen was a nineteenth-century English jurist and judge who had also drafted the Indian Evidence Act of 1872. His Digest was a systematic codification of the common law rules of evidence organised into clear propositions. The framers of the Nigerian Evidence Ordinance used Stephen’s work as their template, which is why the structure and content of Nigerian evidence law has always had a strong resemblance to the Indian Evidence Act.

The Ordinance applied to judicial proceedings in the Magistrates’ Courts, High Courts, the West African Court of Appeal, and later the Federal Supreme Court. It did not apply to customary courts, Islamic courts, or arbitration tribunals. These excluded courts continued to use their own rules. That basic structure of a written code for the superior courts with exclusions for customary and Islamic tribunals has been carried forward in every subsequent evidence statute right through to section 256(1) of the Evidence Act 2011.

The content of the Evidence Ordinance remained largely stable for decades. As the court in Onyeanwusi v Okpukpara⁶ observed as early as 1953, it was the Evidence Act, or if it was silent, the English common law of England that applied in the High Court. This confirmed that even after the Ordinance came into force, the common law remained available to fill gaps.

Independence and the Renaming: October 1960

When Nigeria became independent on 1 October 1960 and the Federal Legislature assumed sovereign authority, the Evidence Ordinance was renamed the Evidence Act. This was not a substantive change. The content of the law did not change significantly. The significance was constitutional. Nigeria was now legislating for itself, and the rules of evidence in its courts were Nigerian law, not a colonial ordinance.

An important constitutional development came with the inclusion of Evidence on the Exclusive Legislative List in the Constitution. This means that only the National Assembly, not State Houses of Assembly, can legislate on the law of evidence in Nigeria.⁷ The consequence is that a state government cannot create its own parallel evidence code or modify the Evidence Act for proceedings in its State High Court. When the Rivers State House of Assembly passes a law, or when the Lagos State House of Assembly legislates on some matter, neither can validly alter the rules of evidence that govern how facts are proved in courts within their states. This constitutional arrangement gives the Evidence Act a kind of supremacy within its subject area that most students do not pause to appreciate.

The Evidence Act 2004: A Consolidation Without Revolution

The Evidence Act went through several amendments between 1960 and 2004. The most significant consolidation was the Evidence Act Cap E14, Laws of the Federation of Nigeria 2004. This was not a new law in any meaningful sense. It was a consolidation of the existing provisions, updated and reorganised. The substance of the law remained essentially what it had been since 1945, with some modifications to deal with developments in documentary evidence.

This version of the Act governed Nigerian courts for most of the early twenty-first century. Many of the cases you will encounter in Nigerian evidence law reports, particularly on confessions, hearsay, and corroboration, were decided under the 2004 Act. This matters because, as we will see, the 2011 Act changed several of these rules significantly. Cases decided under the 2004 Act are not automatically good law under the 2011 Act, and one of the most commonly examined traps in evidence law examinations is treating old authorities as if they still represent the current position.

The Evidence Act 2011: The Current Law

The Evidence Act 2011 came into force on 3 June 2011. It was signed by President Goodluck Jonathan and it repealed the Evidence Act Cap E14, LFN 2004.⁸ This was genuine legislative reform, not just a consolidation. Several significant changes were introduced.

The 2011 Act gave statutory recognition to electronic evidence through section 84, which sets out conditions for the admissibility of computer-generated documents. This had been a gap in Nigerian law that courts had tried to fill through creative interpretation of the old Act.

The 2011 Act revised the voluntariness requirements for confessions. Section 29 replaced the old section 28 and introduced an explicit definition of oppression in section 29(5), which includes torture, inhuman or degrading treatment, and the use or threat of violence. This brought Nigerian law closer to the constitutional guarantees of dignity and fair treatment.

The 2011 Act also changed the hearsay provisions and reordered the sections governing admissions, res gestae, and opinion evidence. We examine these changes in the specific articles covering each topic.

The most doctrinally significant change, and the one most commonly misunderstood, is what the 2011 Act did to the relationship between Nigerian statute law and the English common law of evidence. We turn to that now.

The Sources of Nigerian Law of Evidence Today

Having traced the history, we can now identify each source of Nigerian evidence law as it currently stands and explain how they relate to each other.

The Evidence Act 2011

The Evidence Act 2011 is the primary and dominant source of Nigerian evidence law. It applies to all judicial proceedings in or before courts in Nigeria, subject to the exceptions in section 256(1).⁹ Where the Act speaks to a matter, it governs. No other source can override it within its field of application.

The Constitution of the Federal Republic of Nigeria 1999

The Constitution sits above the Evidence Act in the hierarchy of laws. If any provision of the Evidence Act conflicts with the Constitution, the Evidence Act provision is void to the extent of that inconsistency.¹⁰

More importantly, the Constitution is itself a direct source of evidence law in Nigeria. Section 36 of the 1999 Constitution is the most significant constitutional provision in this context. It guarantees fair hearing and contains specific rights that shape how evidence must be gathered, admitted, and evaluated.

Section 36(5) establishes the presumption of innocence. Every person charged with a criminal offence is presumed innocent until proved guilty according to law. This is the constitutional foundation of the beyond-reasonable-doubt standard in criminal cases.

Section 36(6) guarantees the right of an accused person to examine witnesses called by the prosecution and to call his own witnesses. This means the rules of cross-examination in the Evidence Act 2011 are not merely statutory courtesies. They implement a constitutional right. A denial of the right to cross-examine is a constitutional violation, not just a procedural irregularity.

Section 36(11) provides that no person tried for a criminal offence shall be compelled to give evidence at trial. This is the constitutional basis for the accused’s right to silence and for the prohibition on drawing adverse inferences from silence that applies in Nigerian courts.

In Gwonto v The State,¹¹ the Court of Appeal emphasised that the provisions of section 36 are mandatory and that non-compliance by a court amounts to a fundamental defect, not a mere irregularity. Any evidence gathered in violation of these constitutional rights is tainted at source.

Students who understand that the Constitution is an independent source of evidence law, and not just background context, write examination answers at a different level from those who do not.

The English Common Law: A Restricted Source

This is where the most significant and most misunderstood change introduced by the 2011 Act lies.

Under the old Evidence Act 2004 and its predecessors going back to 1945, section 5(a) preserved the operation of the English common law. Courts could admit evidence that would have been admissible under the common law rules that existed before the Ordinance came into force in 1945. This meant the common law operated as a genuine gap-filler. Where the Act was silent, the English common law stepped in.

Section 3 of the Evidence Act 2011 says something different. It provides that nothing in the Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.¹²

The critical word is “legislation.” Legislation means a statute, an Act of the National Assembly, a Law of a State House of Assembly, or delegated legislation made under statutory authority. Common law is not legislation. It is judge-made law. It is not a statute or a law validly in force in Nigeria in the sense that section 3 uses that phrase.

The consequence is that section 3 of the 2011 Act no longer preserves the operation of the English common law as an independent source of admissibility. If a party wants to argue that a particular piece of evidence is admissible, they must point to the Evidence Act 2011 or some other Nigerian statute. They cannot simply point to an English common law rule.

This has practical consequences that have been felt in areas like res gestae, which was previously admitted through section 5(a) of the old Act by reference to the common law doctrine. Under the 2011 Act, res gestae as a common law doctrine no longer operates in Nigeria. What operates instead is section 4 of the 2011 Act, which covers similar ground but on its own statutory terms. We examine this in the article on res gestae and section 4.

There is, however, a genuine tension here that courts have not fully resolved. Section 3 says nothing in the Act shall prejudice admissibility under other Nigerian legislation. It does not say common law is excluded. It simply does not preserve it. Some academics argue this distinction matters: the Act has not abolished the common law, it has merely stopped preserving it. Courts will continue to work this out in the years ahead.

In R v Itule,¹³ the court observed that resort to English common law can only be made where there is no provision in the Act. That case was decided under the old Act. Under the 2011 Act, the position is more restrictive: resort to the common law is not available merely because the Act is silent. The gap must be filled by another Nigerian statute.

Judicial Decisions: Case Law

Case law is a recognised source of Nigerian evidence law, as it is of all Nigerian law. As we explain in the article on sources of law more generally, the doctrine of judicial precedent means that decisions of superior courts are binding on courts below them. Supreme Court decisions on evidence bind all other courts. Court of Appeal decisions bind the High Courts within each division.

The significance of case law as a source of evidence law is particularly high in Nigeria because the Evidence Act 2011, like all legislation, uses general language that requires interpretation. What counts as “oppression” in section 29(5)? What does it mean for a confession to be “voluntary”? When has an accused “given evidence of his good character” within the meaning of section 82(2)(b)? These questions are answered by the cases, and those answers become part of the law.

There is a complication worth flagging. Many of the leading Nigerian cases on evidence were decided under the Evidence Act 2004 or even earlier versions. When the 2011 Act changed a provision, decisions under the old provision may no longer represent the law. Students must be alert to this. When you cite a case on confessions, for example, you need to check whether the principle it establishes is based on a provision that still exists in the same form in the 2011 Act. Cases on the old section 28 on confessions, for instance, need to be read carefully against the revised section 29 of the 2011 Act.

Academic Writing and Texts

Academic texts are a persuasive but not binding source of Nigerian evidence law. The major Nigerian texts, Aguda’s The Law of Evidence, Nwadialo’s Modern Nigerian Law of Evidence, Igbokwe’s Law of Evidence in Nigeria, and Phipson on Evidence on the English side, are frequently cited by Nigerian courts. When a court is working through an unsettled question of evidence law, it will often look to what the leading writers say.

The persuasive character of academic writing means that it cannot override a clear statutory provision or a binding precedent. But in areas where the law is developing or where a point has not been directly decided by the courts, a well-reasoned academic argument can carry real weight.

The Hierarchy of Sources: How They Rank

When sources conflict, the ranking is as follows.

The Constitution is supreme. Any provision of the Evidence Act that is inconsistent with the Constitution is void to the extent of the inconsistency.

The Evidence Act 2011 is next. It governs all judicial proceedings in the courts to which it applies. No other non-constitutional source can override it.

Other Nigerian legislation follows. Section 3 of the Evidence Act allows other legislation to create additional categories of admissible evidence. The Administration of Criminal Justice Act 2015, for example, contains provisions on confessional statements that operate alongside the Evidence Act.

Judicial decisions interpret and apply the Act. They are binding on courts below in accordance with the doctrine of stare decisis.

English common law is no longer a direct source of admissibility. It may still be relevant as a background framework for understanding concepts that Nigerian courts use, such as the voluntariness test for confessions, but it cannot independently make evidence admissible.

Academic texts are persuasive only.

A Quick Reference Table

Source	Status	Key Provision/Reference
Evidence Act 2011	Primary statutory source, supreme within its field	ss 1, 3, 256 EA 2011
Constitution of Nigeria 1999	Supreme law, overrides the Act if inconsistent	s 36 CFRN 1999
Other Nigerian Legislation	Admissible alongside the Act	s 3 EA 2011; ACJA 2015
Judicial Decisions	Binding (superior courts) or persuasive (other courts)	Doctrine of stare decisis
English Common Law	No longer a direct source of admissibility under 2011 Act	s 3 EA 2011 (contrast old s 5(a))
Academic Texts	Persuasive only	Aguda, Nwadialo, Phipson

Key Cases

Onyeanwusi v Okpukpara (1953) 14 WACA 311 The West Africa Court of Appeal stated that it is the Evidence Act, or if it is silent, the English common law of England that applies in the High Court. This represents the pre-2011 position and demonstrates that the common law was a recognised gap-filler under the old framework. The 2011 Act changed this.

R v Itule (1961) 1 All NLR 462 The court held that resort to English common law can only be made where there is no provision in the Act. Decided under the pre-2011 framework. Still cited for the principle of statutory primacy, though the 2011 Act goes further.

Gwonto v The State (1982) NCLR 312 The Court of Appeal held that non-compliance with the constitutional provisions on fair hearing is a fundamental defect, not a mere irregularity, and cannot be saved by any other enactment. This is the foundational authority for treating section 36 of the Constitution as a direct and supreme source of evidence law.

Isiyaku Mohammed v Kano Native Authority (1968) 1 All NLR 424 The court identified the true test of fair hearing as whether a reasonable person present at the proceedings would be of the opinion that justice had been done. This test from fair hearing law feeds directly into evidence law whenever a party argues that a procedure for gathering or admitting evidence was fundamentally unfair.

Problem Question Framework

When an examination question asks you to discuss the sources of Nigerian evidence law, or when a scenario involves a dispute about whether a particular rule applies, use this framework.

First, identify the relevant provision in the Evidence Act 2011. The Act is the starting point. Is there a section that directly addresses the question?

Second, if the Act is clear, apply it. Do not look for a common law rule that might say something different. The Act prevails.

Third, if the Act is silent or ambiguous, check whether another Nigerian statute covers the point. The Administration of Criminal Justice Act 2015 is the most important example for criminal proceedings.

Fourth, check whether any constitutional right is engaged. If the evidence was obtained in circumstances that raise fair hearing concerns under section 36 of the Constitution, or if the procedure for admitting it violates a specific constitutional guarantee, the constitutional argument is available alongside the statutory one.

Fifth, consult case law to understand how courts have interpreted the relevant provisions. Remember to check whether the case was decided under the 2011 Act or an earlier version, and whether the provision being interpreted has changed.

Sixth, you may refer to academic texts if the point is unsettled and no direct authority exists, but always make clear that you are citing a persuasive rather than a binding source.

Common Student Mistakes

The most common mistake is treating the English common law as if it still automatically fills gaps in the Evidence Act 2011. It does not. Section 3 of the 2011 Act restricts gap-filling to other Nigerian legislation. Students who write “where the Act is silent, the common law applies” are stating the pre-2011 position as if it were still the law.

The second mistake is citing cases decided under the Evidence Act 2004 on provisions that were substantially changed by the 2011 Act. This is particularly dangerous on the topics of confessions, corroboration, and hearsay. Always verify the statutory basis of a case before you rely on it.

The third mistake is treating the Constitution as background scenery rather than an active source of evidence law. Section 36 of the 1999 Constitution is not just a preamble to the Evidence Act. It generates enforceable rights that shape admissibility, procedure, and the consequences of non-compliance.

The fourth mistake is forgetting that Evidence is on the Exclusive Legislative List. This means state legislatures cannot supplement the Evidence Act with their own evidence rules. When a student says “the Oyo State House of Assembly could fix this gap by passing a law,” that is constitutionally wrong.

The fifth mistake is a failure to appreciate the transitional problem created by the shift from 2004 to 2011. Nigerian evidence law has not been static. Students who do not engage with the question of which Act was in force when a case was decided are skating on thin ice.

---

Footnotes

¹ S A Fagbemi, Law of Evidence I: Lecture Notes (University of Ibadan, Department of Public Law 2021) 8.

² ibid 9.

³ T A Aguda, The Law of Evidence (4th edn, Spectrum Law Publishing 1999) 4.

⁴ Evidence Ordinance No 27 of 1943 (Nigeria), operative 1 June 1945.

⁵ Sir James Fitzjames Stephen, Digest of the Law of Evidence (12th edn, Macmillan 1936).

⁶ Onyeanwusi v Okpukpara (1953) 14 WACA 311.

⁷ Constitution of the Federal Republic of Nigeria 1999, Second Schedule, Part I, Item 23 (Exclusive Legislative List).

⁸ Evidence Act 2011, s 257.

⁹ Evidence Act 2011, ss 1, 256(1).

¹⁰ Constitution of the Federal Republic of Nigeria 1999, s 1(3).

¹¹ Gwonto v The State (1982) NCLR 312 (Court of Appeal).

¹² Evidence Act 2011, s 3.

¹³ R v Itule (1961) 1 All NLR 462.