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Download the complete Law project topic and material (chapter 1-5) titled THE PROPRIETY OF ADMISSIBILITY OF IMPROPERLY OBTAINED EVIDENCE IN CRIMINAL TRIALS IN NIGERIA here on See below for the abstract, table of contents, list of figures, list of tables, list of appendices, list of abbreviations and chapter one. Click the DOWNLOAD NOW button to get the complete project work instantly.



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The rules relating to the admissibility of illegally obtained evidence in a criminal proceeding is a matter of court discretion; it question of whether this kind of evidence ought to be rejected because it was obtained illegally, that is, by a crime, a tort, or a breach of the constitution or other laws, involves a different choice between two competing policies in support, it is argued that since its reliability is not affected by the manner it was obtained it ought to be rejected since the consequence would often bet that a guilty person would be acquitted on the other hand. It is argued that to admit such evidence involves the tacit encouragement of improper practices by the authorities, and such practices constitute at least as great evil as the occasional accused guaranteed by the constitution of Nigeria it is therefore recommended that the court in exercising its discretionary power should adopt an exclusionary rule to execute evidence methodology adopted in this work is a comparative analysis of other jurisdiction. Finally a panacea is proposed which is aimed at curing the defect in the Nigeria law on the admissibility of illegally obtained evidence in Nigeria with reference to relevant materials.




1.1       Background ofthe Study

The sensitivity as to the nature of the subject matter is my motivation, and inspiration to write on the subject, this is because any misapplication or undue consideration of illegally obtained evidence amount to injustice to the accused

1.2       Statement of Problem

The problem which is intended to be tackled by writing on this topic or subject include

  1. a) Infringement of the right of the accused (fundamental rights)
  2. b) The injustice that will be meted out to the accused.
  3. c) Violation of government officials in obtaining evidence

In undertaking the study, the writer kept the following pertinent questions at the back of his mind:

  • What is the end of justice in criminal matters?
  • Will it be dependent on application of the doctrine of technical issues?
  • Will any harm come to an accused person, by the admissibility of improperly obtained evidence in criminal trial

1.3       Objective of the Study

The objectives of this study include;

  • Whether it is proper to admit illegally obtained evidence.
  • Whether the admissibility of the illegally or improperly obtained evidence will serve the cause of law (which is to do justice)

1.4       Scope of the Study

For the purpose of this research, the scope of the study will include, Nigeria certain West Africa states and some common law countries and also some European countries will be considered to compare and contrast with our own jurisprudence. In order to recommend better solutions. The relevance of this research cannot be over emphasized. Law as a means of social control deals with humans and cases of that are criminal in nature, evidence must be adduced, this research looks at the means ofobtaining this evidence and whether it is right to admit such evidence.

1.5       Research Question

This study aims at answering the following research question namely:

  1. a) What is the end of justice in criminal matters, will it be dependent on application of the doctrine of technical issues? To address this, a brief definition of justice is required.[1] The concept of justice differs in every culture in early theory of justice was set out by the Ancient Greek philosopher Plato in his work (The Republic) advocates of divine command theory argue that justice issues from God.

In a world where people are inter connected but they disagree, institutions are required to instantiate ideals of justice these institutions may be justified by their approximate institution of justice or they may be deeply unjust when compared with ideal standard consider the institution of slavery. Justice is an ideal the world fails to live up to sometimes due to deliberate opposition to justice despite understanding, which could be disastrous; the question of institution justice raises issues of Procedure, Codification and Interpretation. Although there are different and various definition of justice. (this research is more concerned with justice as regards to law that is legal justice criminal matter- this is the aspects of our jurisprudence that deals with crime in order to maintain harmony in the states. actions are usually instituted by the state in criminal matter the aim of this is to do justice and to see that justice is done.

In summary the aim of law is to do justice. Justice should not be sacrificed because of technicality

  1. b) Will justice be met in spite of the admissibility of improperly obtained evidence?
  2. c) Will any harm come to an accused person, by the admissibility of improperly obtained evidence in criminal trial?

1.6 Research Methodology

The method of researching will include:

  • Analytical approach: making use of analysis to break a problem down into the elements necessary to solve it. This approach will be used in this research work.

Interviews: meeting of people face to face especially for consultation.  An interview is a conversation where question are asked and answers are given[2]in common parlance, the

[1] Justice is the legal or philosophical theory by which fairness is administered. (Definition of justice) accessed 12th may 2017 (www.meriam

[2] Merriam W,Merriam webster dictionary interview definition,[www.merriam Webster][accessed on 10thjuly 2017.














Definition of Terms and Preliminary Matters

2.1       Meaning of Evidence

Evidence, broadly contused, is anything presented in support of an assertion[2]. This support may be strong or weak. The strongest type of evidence is that which provide direct proof of the truth of an assertion. At the other extreme is evidence that is merely consistent with an assertion but does not rule out other contradictory assertions, as in circumstantial evidence in law, rules of evidence govern the types of evidence that are admissible in a legal proceeding types of legal evidence include testimony, documentary evidence and physical evidence. The parts of a legal case which are not in controversy are know, in general as the facts of the case beyond any facts that are undisputed, a judge or jury is usually tasked with being a tier of facts for the other issues of a case evidence and rules one used to decide questions of fact that are disputed, some of which may be determined by the legal burden of proof relevant to the case. Evidence in certain case (e.g capital crimes) must be more compelling than in other situations (eg minor civil disputes) which stoically affect the quality and quantity of evidence necessary to decide a case.

Scientific evidence consist of observation and experimental results that serve to support, repeat, or modify a scientific hypothesis or theory when collected and interpreted in accordance with the scientific method. In philosophy the study of evidence is closely tied to epistemology, which considers the nature of knowledge and how it can be acquired.


2.2       Burden of Proof

Legal burden of proof and philosophic burden of proof. The burden of proof is the obligation of a party in an argument or dispute to provide sufficient evidence to shift the other party’s or a third party’s belief from their initial position. The burden of proof must be fulfilled by both establishing confirming evidence and negating oppositional evidence. Conclusion drawn from evidence maybe subject to criticism based on a perceived failure to fulfill the burden of proof

Two principal considerations are:

1) On whom does the burden of proof rest?

2) To what degree of certitude must the assertion be supported?

The latter question depends on the nature of the point under contention and determines the quantity and quality of evidence required to meet the burden of proof. In a criminal trial in the United States, for example, the persecution carries the burden of proof since the defendant is presumed innocent until proven guilty beyond a reasonable doubt. Similarly, in most civil procedures, the plaintiff carries the burden of proof and must convince a judge or jury that the preponderance of the evidence is on their side. Other legal standards of proof include “reasonable suspicious” “probable cause” (as for arrest) prima facie evidence “credible evidence” substantial evidence and clear and convincing evidence.

In a philosophy debate, there is an implicit burden of proof on the party asserting a claim, since the default is unbelief. Each party in a debate will therefore carry the burden of proof for any assertion they make in the argument, although some assertions may be granted by the other party without further evidence. If the debate is set up as a resolution to be supported by one side and refuted by another, the overall burden of proof is on the side supporting the resolution.

2.3       Evidence in Law

Evidence forms the very fundamental of legal system without which law would be subject to the whom of those with power in law, the production and presentation of evidence depends first on establishing on whom the burden of proof lays. Admissible evidence is that which a court receives and considers for the purposes of deciding a particular case two primary burden of proof consideration exist in law. The first is on whom the burdens rests. In many, especially western Courts, the burden of proof is placed on the prosecution in criminal cases and the plaintiff in civil cases. These and consideration is the degree of certitude proof must reach depending on both quality of evidence. These degrees are different for criminal and civil cases, the former requiring evidence beyond a reasonable doubt, the latter considering only which side has the preponderance of evidence, or whether the proposition is more likely true or false. The decision maker, often a jury, but sometimes a judge, decides whether the burden of proof has been fulfilled. After deciding who will carry the burden of proof, evidence is first gathered and then presented before the court.

2.3.1    Gathering Evidence

In criminal investigation, rather than attempting to prove an abstract or hypothetical point, the evidence gathered attempt to determine who is responsible for a criminal act. The focus of criminal evidence is to connect physical evidence and reports of witnesses to a specific person.



2.3.2    Evidence before the Court

The path that physical evidence takes from the scene of a crime or the arrest of a suspect to the courtroom is called the chain of custody in a criminal case this path must be clearly documented or attested to by those who handled the evidence. If the chain of evidence is broken, a defendant may be able to persuade the judge to declare the evidence inadmissible.

Presenting evidence before the court differs from the gathering of evidence in important ways. Gathering evidence may take many forms presenting evidence that tend to prove or disprove the point at issue is strictly governed by rules. Failure to follow these rules leads to any number of consequences. In law certain policies allow (or require) evidence to be excluded from consideration based either on indicia relating to reliability or broader social concerns. Testimony (which tells) and exhibits (which show) are the two main categories of evidence presented at trial or hearing. In the United States, evidence in federal courts is admitted or excluded under the federal rules of evidence[2] while in Nigeria it is governed by the evidence act 2011[2]

2.3.3    Admissibility

Digital evidence is often ruled inadmissible by courts because it was obtained without authorization[2]. In most jurisdictions a warrant is required to seize and investigate digital devices. In a digital investigation this can present problem where, for example evidence of other crimes are identified while investigating another. During 1999 investigation into online harassment by Reith Schroeder investigation found pornographic images of children on his computer. A second warrant had to be obtained before the evidence could be used to charge Schroeder[2].


2.3.4    Definition of Evidence

It is relevant to state that evidence like other legal concepts does not yield easily to one acceptable definition. the[2]defined evidence as something including testimony, documents and tangible objects that tends to prove or disprove the existence of an alleged fact. [2]when he stated that evidence is any matter of fact which is furnished to a legal tribunal, otherwise than by reasoning or a reference to what is noticed without proof, as the basis of inference in ascertaining some other matter of fact. Evidence has also been defined as every type of proof legally presented at trial which is intended to convince the judge and jury of alleged fact material to the case[2]. The court of appeal,[2]adopted the black’s law dictionary definition of evidence and this held evidence to be any species of proof or probative matters legally prosecuted at the trial of an issue by the act of the parties and through the medium of witnesses, documents, exhibits concrete objects, etc for the purpose of including belief on the mind of the court. The above definition shows that evidence is any fact or set of facts by which the existence or non existence of facts is proved or disproved it is pertinent to state that evidence may be classified in several ways depending on the author involved. Some authors for instance Nwadialo, Modern Nigeria Law of Evidence classify evidence into direct and circumstantial oral, documentary and real evidence.

Proof Should Also be Considered

A proof is sufficient evidence or a sufficient argument for the truth of a preposition[2]. With both the nature of evidence or justification and the criteria for sufficiency being over dependent. In the area of oral and written communicator such as conversation, dialogue, rhetoric, etc, a proof is a persuasive elocutionary speech act, which demonstrates the truth of a preposition.[2] In any area of mathematics defined by its assumption or axioms and from other previously established theorems.[2]The subject of the logic in particular proof theory, formalized and studies the notion of formal proof. In some areas of ejastemology and theology the nation of justification plays approximately the role of proof[2] while in jurisprudence the corresponding term is evidence, with burden of proof as a concept common to both philosophy and law.


In most disciplines, evidence is required to prove something. Evidence is drawn from experience of the world around us, with science obtaining its evidence from nature[2] law obtaining its evidence from witnesses and forensic investigation[2] and so on a notable exception is mathematics, whose proofs are drawn.

Properly Obtained Evidence

Evidence is a crucial element to any trial including both verbal and physical elements the purpose of evidence is to prove a crime was committed. Ultimately, it is the evidence that can make or break a trial and become the deciding factor between freedom and imprisonment while evidence is an essential part of any trial, in order for the evidence to be permitted in a court of law, it must be legally obtained.



What is Considered Evidence                                                                      

Evidence comes in many different form and can be used against an individual in a court of law assuming it has been obtained legally evidence generally falls into one or two categories: verbal: physical evidence on the other hand is any tangible evidence . some common forms of these types of evidence are.;

LegallyObtained Evidence

Evidence can be legally obtained in numerous ways depending on the specifics of the case searches and warrant, among other actions, are all common ways to gather evidence depending on how the evidence is gathered is what deems it legally obtained or illegally obtained. For example, searches and warrants are generally only allowed if probable cause has been found.

Evidence can be excluded in a trial in the following circumstances

  • Hearsay
  • Plea Bargains
  • Self-Incrimination .
  • Unfairness
  • Character Evidence.

Most evidence is permissible in the court of law however there are certain rules that can exclude from being used during a trial such as these circumstances.

  • Hearsay: Hearsay is a complex area of the law of evidence. Whether or not heresy is admissible on trial depends on circumstances, generally heresy is not permitted
  • Plea Bargains: These are statements that cannot be used against the defendant during the trial
  • Self incrimination: Defendants hold the right to refuse to take the stand during the trial if the cross- examination by the prosecutor could lead to the defendant the nominating him or herself.
  • Unfairness: anytime evidence has been obtained in a manner that can be defined unfair, the evidence may not be used.
  • Character evidence: This laws states that prosecutors cannot use the defendant personality trails in order to prove they have committed the crime.

2.5       Warrant in law

A warrant is generally a specific type of authorization, that is, a note issued by a competent officer, usually a judge or magistrate, whom permits an otherwise illegal act that would violate individual rights and affords the person executing the written protection from damages if the act is performed. According to the US constitution, the person investigated or arrested or having their property seized will be given a copy.

A warrant is usually issued by a court and is directed to a Sheriff, constable or a police officer. Warrants normally issued by a court include search warrant, arrest warrant, and execution warrants. A typical arrest warrant in the United States will take the approximate form of these court orders the sheriff or constable to find the named person, wherever he may be found, and deliver said person to the custody of the court. Generally a US. Arrest must contain the caption of the court issuing the warrant, the name (if known) of the person to be arrested, the offence charged, the date of issue, the officer(s) to whom the warrant is directed, and the signature of the magistrate.[2]Professional John N. Ferdice, Henry Fradell a, Christopher Totten; Cengage Learning, 2015 page 246.

Warrants are also issued by other governmentsentities, particularly legislature, since most have the power to compel the attendance of their members. This is called a call of the house. In the United Kingdom, senior public appointments are made by warrant under the royal sign manual, the personal signature of the monarch, on the recommendation of the government. In any interesting survival from medieval homes, these warrant abate (lose their force) on the death of the sovereign if they have not already been executed. This particularly applied to death warrant in the days when England authorized capital punishment. Perhaps the most celebrated example of this occurred on 17 November 1558 when several protestant heretics were to their stake in smith field and  the fire wood bundles were about to be lit when a royal messenger rode up to announce that Mary1 had died and that warrant had lost its force. The first formal act of Mary’s successor, elizabeth1, was to declare to issue the warrants, and the heretics were released a few weeks later. For many years, the English government had used a general warrant to enforce its laws these warrants were broad in nature and did not have specific as to why they issued or what the arrest was being made for. A general warrant placed almost no limitation on the search or arresting authority of a soldier or sheriff. This concept had become a serious problem when those in power issue general warrant to have their enemies are arrested when no wrong doing had been done. During the mid-18th century, the British government outlawed all general warrants this study of the history of England made the American founding fathers ensure that general warrant would be illegal in the United States as well when the fourth Amendment to the U.S constitution was ratified in1791.

2.6       Illegally and Improperly Obtained Evidence

What is illegally or improperly obtained evidence?Illegally or improperly obtained evidence consists of evidence obtained in violation of a person’s human rights guaranteed by the European Convention of human rights. It will usually be in breach of their right to respect for parent life under article 8ECHR union violation of the prohibition of the torture in human or degrading treatment or punishment guaranteed by article 3ECHR. What constitutes illegally or improperly obtained evidence?

It is a fundamental principle of English law and a requirement of the European convention of human rights that in a criminal trial, the persecution beans the burden of proving the guilt of the accused. Article 6 European convention of human rights required a presumption of innocence on the accused. To prove guilt, the prosecution must obtain evidence to support of their position. The persecution mat result to improper means to gather evidence on support of their position especially if obtaining evidence in conventional ways proves untruthful.


Is all Evidence Admissible?

In criminal proceedings, all relevant evidence presented by the parties is prima facie admissible as the UK courts have adopted an inclusionary approach towards evidence in order to favor the victim and ensure fair trial. In a case in 1861 it was confirmed evidence is admissible even if it were stolen.

A Historical Overview of the Issue

The governing principle in this area of criminal evidence in England is that stated by Lord Goddard in Kuruma v Rin 1955. (1)

The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. It is, it is admissible and the court is not concerned with how it was obtained.

As a matter of law illegally or improperly obtained evidence is admissible. This principle which has never been doubted in the cases has been recently affirmed by the court of appeal in R V Khan 1994. As it was stated in that recent case, evidence obtained by illegal means is prima facie admissible if it is relevant to the issue of the accuser’s guilt in this way English law still differs from the law in Scotland and the law in U.S.A. in Scottish law, illegally obtained evidence is prima facie in admissible unless the illegally can be excused in some way.[2] In the U.S.A evidence obtained from an illegal search and seizure in violation of the fourth amendment to the U.S constitution has been subject to a strict exclusionary since the rule in Mapp v Ohio (1961). Only comparative recently have exceptions been made by the courts to the strict operation of the rule seeR v Leatham 1861 and Jones v Owen 1870.

However, it is possible to point to the much earlier case ofR v Warrick Shall[2]. As some authority for the proposition that improperly obtained evidence is admissible as a matter of law. In Warrick Shall a confession was ruled inadmissible on the basis that it was involuntary. However incriminating facts that were discovered as a result of the inadmissible confession were held to be admissible in evidence.

Although confessions improperly obtained cannot be received in evidence that any acts done afterwards might be given in evidence no withstanding that they were done on consequence of such confession

This old principle has been embodied in S.76(4) of Police and Criminal Evidence Act.

The fact that a confession is wholly of partly excluded in pursuance of this section shall not affect the admissibility in evidence (a) of any facts discovered as a result of the confession

This does not mean that to say that those facts should always be admitted to trial. S 76(4) Police and Criminal Evidence Act merely allow those facts to be admitted. It does not say they should be admitted. In an appropriate case S78 might be used to rule those facts inadmissible under the discretion. Robertson comments that

If a policeman points a revolver at a suspected terrorist and threats to shoot him unless he confesses the where about of an unexploded time bomb, the court should on principle exclude not only the ensuring confession and the fact that the time bomb was found as a result of it but also (under S78of Police and Criminal Evidence Act) any forensic evidence connecting the bomb with the defendant.

Any conviction based on evidence which was secured by such police method is unlikely to command moral authority and hence S.78 of Police and Criminal Evidence Act should be involved to exclude the forensic science evidence. Robertson’s position here is similar to the position advocated by Zander in his not of dissent to the RCCJ that any serious violence in the cause of a criminal investigation against the suspect should lead to a collapse of the prosecution case by the exclusion of all evidence.

The real development in the English law on illegally obtained evidence has been, it will be argued in the scope and rationale of the discretion to exclude illegally or improper obtained evidence from the criminal trial. This discretion was only first recognized in 1955 in lordGoddards diction in Kuruma,and to R V Sangonly to evidence obtained from the accused after the commission of the offence and by analogy to the privilege against pre-trial. The passage of S.78 of the police and criminal evidence Act 1884 represents a noticeable shift in the scope see R V Cooke 1995.

Court of appeal to confirmation of the fact that S.78 is substantially wider dissection than the common law discretion and rationale of the discretion to exclude illegally obtained evidence. But seeR V Chalkley (1988)

For a judicial opinion rejecting a wide application of section 78. It is proposed now to examine the common law rule of admissibility in law for illegally obtained evidence and to suggest that the conditions in which it was adopted have changed rule to the extent that departure from the rule in terms of the exercise of the discretion to exclude illegally obtained evidence is much more warranted in the mid nineteenth century. The common law as developed inR V Leathan and jones V Owen.[2]. reflected a fundamental principle of English evidence law; all relevant evidence is admissible unless it is subject to an exclusionary rule or discretion. In deciding whether there should be an exclusionary rule or discretion the judges at common law in the nineteenth century would obviously have considered whether there was a sound reason for excluding such evidence. With regard to the problem of the credit worthiness of confessions there was obviously good sense in formulating a rule which excluded a confession obtained by threat or an inducement on the ground that such confessions are likely to be unreliable see[2]. However, with regard to evidence obtained illegally it is arguable that there was no such sound reason for exclusion. Indeed all the considerations pointed towards inclusion of the evidence, as Jones v Owen[2]

“I think it would be a dangerous obstacle to the administration of justice if we were to hold that, because evidence was obtained illegal means it would not be used against a party charged with an offence”.

For most of the nineteenth century there was not the perceived modern institutional reliance on the police by the criminal court system. The ideal of a powerful state apparatus for the detection and investigation of offenders and the collection of evidence against them for use in court was not fully developed in the nineteenth century. However, by the late nineteenth century the police were the main agency for the gathering evidence and the prosecution of offenders. The judges rule the investigation side of police work, namely questioning of suspects, was some evidence of this core role of the police and its official recognisition. The criminal courts became dependant on the police for the construction of cases and production of evidence for use in courts against offenders. However, this fact did not mean that in this period judicial attitudes to evidence obtained improperly or illegally by the police changed.

Discretion to exclude a confession obtained in violation of the judges rule was recognized in[2]. but no such discretion was recognized for the exclusion of improperly obtained non-confession evidence until 19555. The Ortho 101 view as repeated by Lord Diplockas late as 1979 in[2].

The function of judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of the judges’ function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is concerned with is not how the evidence adduced by the prosecution has been obtained but with how it is used by the prosecution at the trial

An extremely limited discretion to exclude non-confession evidence obtained in an improper way by the police was recognized in Kurumaas late as 1955 but most cases of illegally or unfairly obtained evidence fell outside the operation of this discretion and were therefore subject to Lord Diplock’s statement of the unyielding inclusion any principle. Evidence. Evidence from an illegal search and evidence from entrapment are two examples mentioned by Lord Diplock as falling outside the Kuruma discretion.

Lord Diplock commented that discretion was limited to

“Evidence tantamount to a self incrimination admission which was obtained from the defendent after the offence has been committed”

As Lord Taylor pointed out in[2].

In view of the terms of those dicta, the paucity of cases in which the discretion has been exercised so as to exclude legally admissible evidence is not surprising

Despite the increasing reliance by the criminal courts on police by the beginning of the twentieth century there was still perceived to be a clear distinction between the investigatory process conducted by the police and the fact finding process at trial hence, Diplocks comment as late as 1979 that the judge is solely concerned with the use of evidence at trial not with how it was obtained by the police or anybody else. If particular behavior in the obtaining of evidence was considered to be offensive and in need of checking then the judges had the mechanism of a judiciary rebuke in open court to make their feeling well known to the police. Indeed this device of the judicial rebuke whilst admitting the improperly obtained evidence became the normal judicial response to other instances of polices impropriety. Discretion to exclude a confession may have been recognizing[2]. But breach of the rules rarely led to exclusion judicial rebuke seems to have been the most. The police could have feared from their breach of the rules in obtaining a confession e.g[2]. if in a more cynical age, the notion of a few sharp words from the bench to the police seems an inadequate response to police impropriety in the obtaining of evidence it is appropriate to remember that thirty years ago a judicial rebuke would have carried a hot more weight with police and public than at the present time when the public reputation of the judiciary has declined so much in support of this claim or declaiming confidence in the judiciary, see the following remark by[2].

In 1936 the lord chief justice Lord Hewart said her majesty’s judges are satisfied with the almost universal admiration in which they are held.R V Sangreestablished the old principle that all relevant evidence is admissible irrespective of how it was obtained and that any discretion to exclude is very narrow in scope and certainly does not encompass evidence obtained from entrapment.Only five years later[2] was legislated which was based on a view that the judiciary should be concerned with how evidence is obtained[2].

“It is no part of a judge’s function to exercise disciplinary powers over the police or prosecutions as respect the way in which evidence to be used at trial is obtained by them”.

However, during the debate on the PACE Bill Leon Brittan, the home secretary, commented,

In our view it can indeed be a proper part of the judges function to have regard to the way in which evidence has been obtained and to refuse to admit it if those circumstances bear upon the fairness of  the proceeding that is a principle which are prepared to see erected for the first time in statute.

Lord Scarman whose own amendment was rejected in favor of the amendment drafted by Lord Chancellor, made the important point that his amendment extending the power of a judge to exclude evidence obtained unlawfully should be viewed in the context of the police and criminal evidence Bill as a whole. In common law discretion known to lord Goddard. Lord parker and LordWidegery and his own amendment for discretion to exclude illegally obtained evidence, Lord Scarman said,

One small significant answer tells the whole story. It is because there was no police and criminal evidence act in their day and we are discussing this amendment in the light of a codification known for the moment as the police and Criminal Evidence Bill.

This comment is significant for understanding the rationale of exclusion under[2]. The PACE Act represented between the interest of the police and the suspect. It was recognized that the police have the duty to investigate crime on behalf of the community and for this socially important purpose enhanced powers were given to the police to gather evidence for use in the prosecution of offenders.

However, as Lord Scarman commented, the PACE Bill also recognized the principle of,

Safeguarding citizens against the misuse of police power in the collection of evidence for purpose of criminal proceedings

Although parliament rejected Lord Scarman’s ‘revised on us’ rule on illegally obtained evidence (prima facie inadmissible unless the illegality could be excused) and adopted S.78 (drafted by Lord Hailshan, the Lord Chancellor) instead, Lord Scarman’s comment quoted above is a use   full insight into hoe parliament understood the ideological rationale of the creation of statutory discretion to exclude illegally or improperly obtained evidence. The focus of the old common law discretion still retained by S.82(3) was on fairness to the accused ie the discretion was seen as protecting one vital interest of the accused trial, namely his privilege against self- incrimination at trial then it might have seemed sensible to extend protection to the pre-trial privilege against self incrimination through use of an exclusionary discretion. The point is that if a suspect was unfairly induced to incriminate himself in the police station then the damage would already have been done when the trial begins and his privilege against self incrimination at trial would have lost it bite if the defendant had been tricked or unfairly induced to incriminating himself to the police state. This analysis perhaps explain why the house of Lords in R V Sang (Supra) stated that the exclusionary discretion only extended to protecting the privilege against self incrimination of the suspect pre trial. It would have been hypocritical to assert that the defendant enjoyed the right no to testify at trial whilst allowing the police pre trial to unfairly induce the suspect to incriminate himself.

The Concept of Admissibility

Evidence comes in four basic forms

  • Demonstrative Evidence
  • Documentary Evidence
  • Real Evidence
  • Testimonial Evidence.

2.7       The Concept and Basis OF Admissibility

Admissible evidence in a court of law is any testimonial documentary, or tangible evidence that may be introduced to a fact finder usually a judge or jury to establish or to bolster a point put forth by a party to the proceeding for evidence to be admissible, it must be relevant without being unfairly pre judicial, and it must have some indicia of reliability, the general rule in evidence is that all relevant is admissible and all irrelevant evidence is inadmissible

2.7.1    Relevance

For evidence to be admissible, it must tend to prove or disprove some fact at issue in the proceedings. However, if the utility of this evidence is outweighed by its tendency to cause the fact finder to disapprove of the party it is introduced against for some unrelated reason. It is not admissible. Furthermore, certain public policy considerations bar the admissibility of otherwise relevant evidence.


2.7.2    Reliability

For evidence to be admissible enough to be admitted, the party prospering the evidence must be able to show that the source of the evidence makes it so. If evidence is in the form of witness testimony, the party that introduce the evidence must lay the ground work for the witness credibility and knowledge if the evidence is documentary, the party prospering the evidence must be able to show state that it is authentic, and must be able to show state the chain of custody from the original author to the present holder. The trial judge performs a “gate keeping” role in excluding unreliable testimony. The United States Supreme Court first addressed the reliability requirement for experts in the land mark case.[2]. the court laid out four non-exclusive factors that trial courts may consider when evaluating scientific expert reliability.

  1. Whether scientific has been tested.
  2. Whether the evidence has been subjected to peer review or publication
  3. Whether a potential rate of errors known and.
  4. Whether the evidence is generally accepted in the scientific community[2] later extended the Daubert analysis to include all expert testimony. It began an effect on the verdict of the court.

Facts in Issue, Relevance of Fact and Res Gestae

It is important to note that the entire law of evidence is dependent, in most parts, on the rules governing admissibility and inadmissibility of evidence whether a piece of evidence is admissible or not is dependent upon whether the fact to be established by evidence is a fact in issue or is relevant to facts in issue. Note also that the law of evidence. Relevance is judged by the provisions of the evidence Act and not by any rules of logic. In other words, the determining factor in the determination of what is relevant is the provision of the evidence Act.

The phrase “fact in issue” is the main basis of the topic “realizing of facts”. It is necessary than to say a few words about “facts in issue” section 258, which is the definitional section of the evidence Act, defines “fact in issue” as including

“any fact from which either by itself or in conjunction with other facts the existence and non- existence, nature or extent or any right liability or desirability asserted or denied in any suit or proceeding necessarily follows”.

From the above provision, facts in issue are such facts that a plaintiff in a civil case must prove in order to establish his claim, and also such facts as the persecutor in a criminal case must prove in order to such a conviction facts in issue also include what a defendant must pay in order to establish his defense. In the circumstance, a factor issue must be determined by substantial law on the subject matter of the action and also by the pleadings of the parties in[2]Osulu V osuluthe supreme court held that the phrase “facts in issue” is arrived at in civil suits when the parties have answered one another’s pleadings in such a way that they have arrived at some point or matter of fact affirmed by one party and denied by the other. The parties are said to have joined issues on the point. That is the fact in issue.

2.8       Relevance and Admissibility

As a general rule, it is only facts which are relevant to the fact in issue or some other fact relevant to the fact in issue that can serve as the foundation for the admissibility of a piece of evidence. In other words, evidence will be admitted only in proof of

  • Facts in issue
  • Facts relevant to the facts in issue
  • Facts relevant to some other facts which are relevant to the facts in issue.

According to the SC in[2]. Note: Relevant evidence is that it is intended to prove or disprove any question of fact in issue between the piece of evidence is automatically inadmissible in ACB V Gwagwada (1994)[2]the Sc held that before a court considers the admissibility of any evidence in support of a party’s case, it must be shown that the piece of evidence is relevant. The importance of relevance and admissibility’s understood by the evidence Act. Section 1 there of providers.

Evidence may be given in any suit or proceeding of the existence or non-existence of the fact in issue and of such other facts as are here after declared to be relevant and of no other provides that

  1. The court may exclude evidence of facts with though relevant or deemed to be relevant to the issue. Appears to it to be too remote to be material in all the circumstances of the case and
  2. This section shall not enable any person to give evidence of a fact which is disentitled to prove by any provision of the law for the time being in force.

This underscores the important role played by the court in deciding issues of relevant and admissibility.[2] When either party proposes to give evidence of any fact the court may ask the party proposing to give the evidence in what manner the alleged fact if proved would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved would be relevant and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact. Such last mentioned fact must be proved before evidence is given of the fact first mentioned. Unless the party undertakes to give proof such fact and the court is satisfied with such undertaking.

If the relevancy of one alleged fact depends upon another allege fact being first proved the court may in its discretion, either permit evidence of the first fact to be given before the second fact is proved or require evidence to be given of the second fact before evidence is given of the first fact.

Admissibility is based on relevance facts, facts in issue facts relevant to facts in issue.

2.9       Relevance of Certain Facts

This deals with facts specifically declared relevant by the evidence Act. These are, Note: by Section 3 of the repealed evidence Act, one fact is said to be relevant to another when one is connected with the other in any of the ways referred to in the provisions of this act relating to relevancy of facts.

  • Facts in issue and facts relevant to facts in issue: Combined reading of section 1 and section 3 of the Evidence Act which provides for the admissibility of evidence that is made admissible by any other legislation validly in force in Nigeria

In this regard, please bear in mind that a fact in issue is interpreted to include any fact from which either by itself or in connection with other facts the existence, non existence nature or extent of any right, liability or disability asserted or denied in any proceeding necessary follows in the case of[2]. The Sc held that in acclaim for trespasses, what is primarily in issue is possession of the land in dispute. This is so because the issue of possession is different from radical title to the land by any of the means prescribed by the supreme court in[2]. however, where a plaintiff pleads his root title to land and the defendant denies that averment, that denial by the defendant becomes a relevant fact and title to the land because an issue. It does not matter that the defendant does not himself claim title to the land so held the court of appeal in the case of[2].

Note also that it is the law that a chain for damages for trespass to land coupled with a claim for perpetual injunction, put title to the land in issue.

Section 4 of the evidence Act provides that facts forming part of the same transaction are relevant. According to the section,

“facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time and place or at different times and places”.

A fact forms part of the same transaction with a fact in issue when that fact becomes relevant to the fact in issue because it throws light on it as a result of its proximity to it in point of time, place or circumstances. Section 4 is are production of the repealed section 7 of the evidence Act under which Nigeria courts applied the common law doctrine of Res gestae it is to be understood that facts which are admissible as forming parts of the res gestae are usually declarations and acts which constitute, accompany or explain the fact in issue the doctrine does not admit anything said after the incidents. Before a statement can be admissible as forming part of the res gestea, it must fulfill three conditions namely;

  1. It must be nearly contemporaneous with the fact in issue. For this condition, it is essential that it should be associated with the action or event which it accompanies in time place and circumstances that they are part of the same thing being done.[2] The accused person was changed with the murder of a woman. Evidence that the woman had rushed out of a house with a cut throat where she had been together with the accused person exclaiming “oh aunt see what harry has done to me” was held to be inadmissible as it was something stated by her after it was all over. It follows therefore that anything uttered by her at the time the act was being done would have been admissible. Bedding field was followed by the WACA in[2] which case the accused person was charged with murder and the only important evidence against him was the statement of the deceased shortly after he had been stabbed that: “Bang has shot me” which he made in the absence of the accused person. It was held that this statement was inadmissible as forming part of the res-gestae.

i           The statement must explain the fact in issue

ii    The statement must have been made by the action.

It is to be observed that the common law doctrine of res gestae is not directly applicable under the evidence Act. Indeed, the problem of section 4 of the evidence act covers a wilder field than is covered by the doctrine section 4 (formerly section 7) was applied in Ishola V The state (1978)[2].

In that case the appellant was changed for murder in that he shot and killed the deceased. Part of the evidence that culminated in his conviction was that prior to the incident the appellant have been having problems with the villages including the deceased, in discrimination his appeal, the supreme court reaffirmed the relevance of facts so connected with the facts in issue as enacted in section )formerly section 7) when it held as follows:

Surely, the general rule in criminal law as well as in civil cases that evidence must confined to the point in issue cannot be applied where the facts which constituted distinct offences are at the same time part of the transaction which are closely and inextricably mixed up with the history of the criminal act itself as to form part of one chain of relevant circumstances and so on, could not be excluded in the presentation of case without the evidence being thereby rendered intelligible thus in cases of murder, evidence is admissible to show prior assaults by the accused person or to show conversely, the irritating behavior by the deceased to the accused again, the relation of the murdered man to his assistant, so far as they may reasonably be explanatory of the conduct of the person charged with the crime can be admitted as proof of integral parts of the history of the alleged crime for which the accused is on trial.

  1. facts which are the occasion cause or effect of facts in issue:(section 5) however all-embracing this provision maybe, it has been held in[2] that the provision is not an authority or license for the admissibility for hearsay evidence under a similar provision in England marks at or hear the scene of a murder suggesting a struggle were held to be admissible in evidence as relevant facts.

Section 6 deals with the relevance of facts which shown or constitute a motive or preparations for any fact in issue or relevant fact as well as previous or subsequent conduct. Of particular importance is section 6 (4) which provides that when the conduct of any person is relevant, any statement made to him or in his presence and having which affects such conduct is relevant. Thus, as in the English case of[2] if the question was whether it was A who assaulted B, A,s defense being an alibi then a declaration by B in the presence of A that it was a who assaulted him, is relevant  under the provision.

Section 7 is about facts necessary to explain or introduce relevant facts.

Section 8 deals with thing said or done by conspirators in furtherance of their common intention. But note the provisions of section 8(2) to effect that statements made by individual conspirators and the measures taken on the execution or furtherance of such common intention are not deemed to be relevant as such against any conspirator, except those by whom or in whose presence such statements are made.

Note also that in furtherance of the power and discretion of the court to exclude evidence and on consonance with the provision of section 8(3), evidence of acts or statements deemed to be relevant under this section may not be given until court is satisfied that, apart from them there are prima facie grounds for believing in the existence of the conspiracy to which they relate. See the case of[2] but once conspiracy is established to exist, evidence admissible against one conspirator is also admissible against the others[2].

Section 9 relates circumstances under which are not otherwise relevant may become relevant. An illustration of the operation of section 9 of the evidence Act which deals with facts in consistent with the fact in issue is the decision of federal Supreme Court in[2] that case, the plaintiff sued defendant for a declaration of title to a place of land which was a plot of land out of many other plots on a layout. In order to establish the identity of the land in dispute, the plaintiff tendered deeds of conveyance with survey plans attached in respect of other plots of land on the same layout which were executed in favor of other purchased by the same person who sold to the plaintiff. The trial court rejected these conveyances as not being relevant but on appeal, the F.S.C held that these conveyances were relevant under the provision of section 9 of the Evidence Act.

Section 12 talks of facts bearing on the question whether act was accidental or intentional. Under the section, when there is a question whether an act was accidental or intentional, or done with a particular knowledge or intentional to rebut any defense that may otherwise be open to the defendant, the fact that such act formed part of series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

The fact that somebody had done something yesterday doesn’t mean he will do it today except to prove that what happened is not accident, or to rebut the defendant’s defense, this evidence will only be accepted here. But if it is not for the following motives it will not be admitted, because one might do a thing today and not do it tomorrow.

Taken together with other sections of the Evidence Act, Section 12 states that statutory form, the English common law rule as to the admissibility of similar facts evidence. Incidentally, the section show clearly the distinction between relevance and admissibility, for even if evidence is said to be relevant under Section12, the court may nevertheless exclude it if it considers the evidence prejudicial to the fair trial of the accused persons. In the[2] evidence of other transactions similar to that which was the subject of the charge was admitted by the lower court. Such evidence showing the accused person only to be a dishonest man and hawing little probative value. It was held on appeal that such evidence ought not to have been admitted and the appeal was allowed.

Finally on relevant facts as enumerated by the Evidence Act section 13 says that when there is a question whether a particular was done, the existence of any course of business according to which it naturally would have been done is a relevant fact. For example, as [2] if it is necessary to prove that a particular letter was posted evidence that is was delivered to a clerk who was in the habit of taking all letters to the post office for posting even though he cannot remember the particular letter is relevant. in[2] whatever illegality was used to get an evidence to be admissible.

S.14E.A. evidence that was illegally obtained that is relevant to the facts in issue is admissible also see the following cases[2].

2.10     The Nature of Criminal Trial in Nigeria

The sole object of criminal law is bring offenders to book and meet adequate sanctions for violation of the law. The punishment ranges from prison term, payment of fines, flogging to outright execution of the guilty. Save for monetary payment in civil action, none of these sanctions can apply.

An act is a crime only if it is defined as such and penalty therefore is prescribed in a written law[2] the constitution provides that in respect of declaring an act a crime, only the National Assembly and a House of Assembly of a state can by act or law respectively, do so pr that it was done by means of a subsidiary legislation or instrument under the provisions (or authority) of a law.

This means that unwritten customary law offences cannot be treated as crimes[2]. On the other hand, an act regarded under customary law as normal, sound and unimpeachable may under statutory law be declared criminal and treated as such. In Southern states of Nigeria, where the criminal code is operational criminal law may further be categorized as simple offence, missed meaner, and felony.Types of Legal System

1,         Inquisitorial legal system

2,         Adversarial legal system

Inquisitorial Legal System

The inquisitional system is a legal system where the court or a part of the court is actively involved in investigation the facts of the case as opposed to adversarial system where the role of the court is primarily that an impartial referee between the prosecution and the defense. Inquisitorial systems are primarily in countries with civil legal systems as opposed to common law systems. Countries using common law, include the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations the distinction between an adversarial and inquisitorial system. Some legal scholars consider inquisitorial misleading, and prefer the word non adversarial[2] the function is often vested in the office of the public procurator, as in Russia, China, Japan, Germany, and Scotland. This system is mostly used in civil law countries.



Adversarial Legal System

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly[2]. It is in contrast to the inquisitorial system used in some civil laws systems (ie those deriving from Roman law or the Napoleonic code) where a judge investigates the case.

The adversarial system is the two-sided structure under which criminal trial courts operate that puts the prosecution against the defense.

Basic Features

As an accused is not compelled to give evidence in a criminal adversarial proceeding, they may not be questioned by a persecutor or judge unless they choose to do so. How ever , should they decide to testify, they are subject to cross examination and could be found guilty of perjury. As the election to maintain an accused persons right to silence prevents examination or cross examination of that persons position it follow that the decision of counsel as to what evidence will be called is a crucial tactics in any case in the adversarial system and hence it might be said that it is a lawyer’s manipulation of the truth. Certainly, it requires the skills of counsel on both sides to be fairly equally filter and subjected to an impartial judge. By contrast, while defenders on most civil law systems can be compelled to give a statement. This statement is not subject to cross examination by the persecutor and not given under oath. This allows the defendant to explains his side of the case without being subject to cross-examination by a skilled opposition. However, this is mostly because it is not the persecutor but the judge who question the defendant. The concept of cross examination is entirely due to adversarial structure of the common law.

Judges in an adversarial system are impartial in ensuring the fair play of due process or fundamental justice. Such judges decides often when called upon by counsel rather than of the own motions, what evidence is to be admitted when there is a dispute, though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision, rendering obsolete the judicial process in question-rule of law being illicit subordinated by rule of man under such discriminating circumstances.

The rules of evidence are also developed based upon the system of objections of adversaries and on what basis it may tend to prejudice the Trier of fact which maybe the judge or the jury in a way the rules of evidence can function to give a judge may exclude evidence he/she believes is not trustworthy or irrelevant to the legal issue at hand. All evidence must be relevant and not hearsay evidence.

The adversarial method is mostly used in common law countries, Nigeria is a common law country thus it adopted this system.


In criminal trial the burden of proof’s on the prosecution to proof the guilt of the accused beyond reasonable the highest standard of proof that must be met in any trial it is the standard of proof used to convict defendant charged with crimes in a criminal justice system it is a proof that make you firmly convinced of the defendant’s guilt that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty as prescribed in S 36(5) of the constitution of the Federal Republic of Nigeria 1999.

Generally the prosecution bears the burden of proof and is required to prove their version of events beyond reasonable doubt[2]. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no “reasonable doubt” in the mind of a reliable person that the defendant is guilty in[2] the supreme court held that it is a cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution, who should prove such fact beyond reasonable doubt. Note therefore, that this does not mean that no doubt exits as to the guilt of the accused. There can still be a doubt, but only to the extent that it would not affect a reasonable person’s belief regarding whether or not the defendant is guilty. What the does the proof beyond reasonable doubt signify? In the case of[2] the accused/appellant was convicted and sentenced to death by the high court on a two count change or Armed Robbery Contrary to section 1(2)(a) of the robbery and fire arms (special provisions)[2]at the trial court, the prosecution fielding four witnesses and tendered confessional statements the trial judge found that the prosecution proved its case beyond reasonable doubt on appeal, the court of appeal maintained that a judgment of the trial court but committed the death sentence to 21 years imprisonment. On further appeal to the Supreme Court, the appellant contended that the confessional statement ascribed to him was not direct and voluntary. He postulated that there was no corroborative evidence outside the confessional statement of the accused/appellant was tendered during the trial without objections but only belatedly assayed to retreat same on appeal. He submitted that the confessional statement being direct and positive required no corroboration. He said the testimony of the prosecution witness proved the case against the accused beyond reasonable doubt. The Supreme Court held the submission of the respondent, dismissing the appeal and affirming the judgment of the court below

A confession is relevant if it proves beyond reasonable doubt the ingredients of the crime for which the accused person’s charged. SeeIgbinovia V State [2] proof beyond reasonable doubt does not mean proof beyond all doubt it means the persecution establishing the guilt of the accused person compelling evidence which is consistent with a high degree of probability. Proof beyond reasonable doubt is not achieved by the prosecution calling several witnesses to testify rather the court is only interested in the testimony of a quality witness if the court convicts on the extra-judicial confessional statement of an accused person, proof beyond reasonable doubt would be achieved if the statement was made voluntarily and the accused person did not retract from his confessional statement when he gave evidence in court on oath.




Improperly evidence can be obtained by various means and used in criminal trial these include;

  • Confessions
  • Entrapment
  • Illegal searches and seizures
  • Warrants


3.1       Confessions

In the law of criminal evidence, a confessional statement by a suspect in crime which is adversarial to that person some secondary authorities, such as Black’s law Dictionary, define a confession more narrow terms, eg a statement admitting in acknowledging all facts necessary for commission of a crime which would be distinct from a mere admission of certain facts that, if true, would still not, by themselves, satisfy all the elements of the offense. The equivalent in civil cases is a statement against interest.

3.1.1    Voluntary Confession

Section 28, Evidence Act 2011, defines confession

“An admission made at any time by a person charged with the commission of a crime stating or suggesting the inference that he committed the crime”.

Confession in a simple language is the admission of guilt. InNwachukwu V The State (2004) 17 NWLR (pt 1062)[2]the court held that a true and voluntary confession of guilt whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction. Confession could be judicial or extra-judicial, extra judicial confession are the ones made outside the court on like a police station, while judicial confession are made inside the court room. This present topic is concerned with extra judicial confession because it is often fraught with plans and irregular while judicial confessions are free from such plans.

Confessional statements cannot be made before the commission of the crime but could be made any where after the commission of the crime; every confessional statement must be direct and positive[2]also confessional statement could be made where the accused is charged with the commission of the crime in question.

Note also that in a confessional statement the accused must confess to the act constituting the offence as well as the requisite men’s rea.[2] A confessional statement must be made by the accused himself and not his lawyer.Note that confessional statements are usually the best and fastest means by which the guilt of an accused person is established in criminal proceedings[2]

3.1.2    Involuntary Confessions

Once a confessional statement is involuntary it is inadmissible, it is immaterial that the defendant did not raise any objection as to its admissibility at the trial court. By Section 29 (1) Evidence Act, for a confession to be admissible, it must be relevant. S.29 (2) Evidence Act 2011 provides that a confessional statement is irrelevant if it is obtained by oppression or inconsequence of anything said or done which may likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against the defendant except the prosecution is able to prove beyond reasonable doubt that the confession was not obtained in a manner contrary to the provisions of this section.

Therefore from all indications the onus lies on the prosecution to prove beyond reasonable doubt the confessional statement was voluntary.

Note that by the provisions of S.29(4) Evidence Act the confessional statement of a co-accused is not binding on other co-accused[2].

S.29 (5) EA

“Oppression includes torture inhuman or degrading treatment and use of treat of violence whether or not amounting to torture”

S.31 EA Provides that promise of secrecy practice of deception will not render a voluntary confessional statement inadmissible.[2]

Denial of voluntariness of confessions and conduct of trial. This procedure was over the years put in place to determine the voluntariness of a confessional statement failure or refusal or neglect to carry out the mandatory trail within trial is fatal to the trial[2]. The Supreme Court held that in extra-judicial confessional statements to the police by an accused person confirmation before and endorsement by a superior office is not a requirement of the law but a commendable precaution only. Failure to neglect to observe the practice will not necessarily render the statement in admissible in[2]

3.2       Entrapment

A person is entrapped when he is induced or persuaded by law enforcement officers or their agents to commits a crime that he had no previous interest to commit and the law as a maker of policy for bids conviction in such a case. However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a fair able opportunity for the person to commit the crime. For example, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction with the person. So, a person would not be a victim of entrapment if the person was ready, willing and able to commit the crime charged in the indictment whenever opportunity was offered, and that government officer or their agents did no more than offer an opportunity. On the other hand, if the evidence leaves a reasonable doubt whether the person had any intent to commit the crime except for inducement or persuasion on the part of some government officers or agent then the person is not guilty.

In slightly different words; even though someone may have (sold drug) as charged by the government if it was the result of entrapment then he is not guilty Government agents entrapped himself three things occurred.

  • The ideal for committing the crime came from the government agents and not from the person accused of the crime.
  • The government agents then persuaded or talked the persons into committing the crime. Simply giving him the opportunity to commit the crime is not the same as persuading him to commit the crimes.
  • The person was not ready and willing to commit the crime before the government agents spoke with him. On the issue of entrapment, the government must prove beyond a reasonable doubt that the defendant was not entrapped by government agents.

The word entrapment, from the verb to “entrap” meaning to catch in a trap was first used in this sense in 1889. “Online etymology dictionary” in the United States Federal Court case of[2]the 1828 edition of Noah Webster’s American Dictionary of the English Language defines entrap as.

To catch as in a trap, to insane (sic) used chiefly or wholly in a figurative sense. To catch by artifices; to involve in difficulties or distresses; to entangle; to catch or involve in contradictions; in shirt, to involve in any difficulties from which an escape is not easy or possible. We are sometimes entrapped in our own words.

3.2.1    Entrapment in the United States     

Entrapment defenses the United States have evolved, mainly through case law. Two competing tests exist for determining whether entrapment has taken place, known as the “subjective” test looks at the defendant’s state of mind. Entrapment can be claimed if the defendant had no “predisposition” to commit the crime the “objective” test looks instead at the government’s conduct; entrapment occurs when the actions of government offices would usually have caused a normally law-abiding person to commit a crime (entrapment – the two approaches to entrapment)

Courts took a diffetent view of the defense at first “(it) has never availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian, ethics, it never will”. A New York Supreme Court said in 1864[2] forty years later, and the judge in that state would affirm that rejection arguing counts should not hesitate to punish the crime actually committed by the defendant when rejected entrapment claimed in a ground larceny case[2] other states, however, had already begun reversing convictions on entrapment grounds[2]federal courts recognize entrapment as a defense stating with[2]. The US Supreme Court declared to consider the question of entrapment in[2] since the facts in the case where the vague to definitely rule on the question but four years later it did in[2]SCOTUS unanimously reversed the conviction of a North Caroline factory worker who gave into an undercover prohibition officer’s repeated  entreaties to get him some liquor. It identified the controlling question “whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which other product of the creative activity of its own officials[2]. The court considered a similar case in agents one recovery drug addict working with agents of the Federal bureau of Narcotics (a predecessor agency to today’s Drug Enforcement Administration (DEA) solicited another to sell him drugs on the premise that his own efforts were failing. Again unanimous, its opinion focused more clearly on the defendants predisposition to commit the offense and, on that basis, overturned Sherman’s conviction as well since, although he had two prior drug convictions, the most recent dated back five years. Furthermore, he was attempting to rehabilitate himself, he had made no profit on the sales, and no drugs were found in his apartment when it was searched suggesting the absence of a predisposition to break drug law.To determine whether entrapment has been established.a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal,[2] prosecutors won the next two times entrapment came before the court, in [2] Albert by narrow margins. In the former the court upheld the conviction of a Washington man for manufacturing methamphetamine even though an undercover agent has supplied some of the ingredients and also pondered an outrageous government conduct defense though it did not enable Hampton let stand, by a similar margin the conviction of a mission, man who had upon seeing track marks on a DEA informants arms, expressed interest in selling him heroin. After several sales to the informant and undercover agents he was arrested. The defendant alleged he had been led to believe by the informant that he was not selling heroin but a counterfeit. The court found he was adequately predisposed to sell heroin in any event. This became known as the “subjective’ test of entrapment, since it focused on the defendant’s state of mind. However, in all cases concerning opinions had advocated an “objective” test focusing instead on whether the conduct of the police or other investigators would catch only those “ready and willing to commit crime”[2]under the objective approach the defendant’s personality his predisposition to commit the crime would b in material  and the potential for the police conduct to induce a law abiding person considered in the abstract would be the test. This supporters argued, avoided the dubious issue of an unexpressed legislative intent on which the  court had relied and intend grounded the entrapment defense, like the exclusionary rule in the court’s supervisory role over law enforcement and like the exclusionary rule, they would have had judges, not juries, decide whether a defendant had been entrapped as a matter of law[2]

In the Supreme Court’s last major ruling on entrapment,[2] which overturned the conviction of a Nebraska man for receiving child pornography via the mail, the subjective Vs objective debate was completely absent. Both the majority and dissenting opinions focused solely on whether the predisposition for purchasing such material. (which had only recently outlaw edit the time of his arrest) since no other material was found in his home, save what he had purchased from the undercover postal inspector, justice Byron White believed the operation had implanted the idea in his mind though mailings decrying politicians for assaulting civil liberties by passing laws such as the one the inspector hoped he could break. Sandra day o’ Connor disagreed on her dissert arguing that the record did indeed established that Jacobson was interested in continuing the purchases analysis believed that was the court’s indication it considered the subjective vs objective the debate settled.

University of Arizona law professor Gabriels j. Chan posits out that the entire federal entrapment defense rests on stationary construction an interpretation of the will of congress in passing the criminal statutes. As this is not a constitutional prohibition congress may change or over ride. This interpretation by passing a law


Whenever law enforcement is engaging in a search and seizure, there are a number of rules and exceptions that apply. These rules are derived directly from the US constitution; specifically the Fourth Amendment as well as court opinions because of the broad range of rule that can apply to searches and seizures, a number of question can often arise. Below are some of the most commonly asked questions regarding your rights when police search you, your home or your car. At what point are police considered “searching’ during an investigation

In general a court will ask the following questions to determine whether police investigations turned into a search.

  • Is the person whose home or properly were being investigated/ searched expected a degree of privacy?
  • Is that expectation of privacy reasonable (usually based on sectional attitudes)?

For a investigation to turn a search must conclude that the investigation infringed or intruded upon a person’s legitimated expectation of privacy. This is found when the answers to the two questions are yes. If the two questioned asked can be answered in the negative meaning that the person being search either did not have something to keep private or if the expectation of privacy was no reasonable, then there was no “search’’ for purposes of Fourth Amendment is my private property really that private?

Property that is within your house or on your property is generally considered to be private if the police have to enter onto your property in order to get a look at evidence that they wish to do so. However, there are certain situations like stopping suspect from destroying evidence in which police can search and seize property in your home without a warrant this is because the situation itself demands prompt action by the police. So, now that we have the general rule, what does this mean for you? In most situation law enforcement officers are allowed o take photographs or air above your home or can eave drop on your conversations in order to get enough information to get a warrant. When listening to conversations, police cannot use hi-tech equipment in either of these circumstances without rendering the eavesdropping an illegal seizure

Generally speaking, the more sophisticated the listening or photography equipment, the more likely it will be that police will be required to obtain a warrant.The police must normally make a minimum showing to the judge issuing the search warrant in order for the judge to make the decision to grant the order. Police have to show the judge that

  • Probable cause exists that a crime has occurred and
  • Evidence or contraband linked to that crime will more than likely be found in a certain location on the property or person at issue.

In order to make this showing, police will need to give information that is either base upon their own observations or the observation of others including informants.

Part 18 of the Administration of Criminal Justice Act 2015 deals with SEARCH WARRANT S.143-507                                                                                                                                           S 143 where an investigation under this act is being made by a police officer, he may apply to a court of justice of the peace within the local limits of whose jurisdiction is for the issue of a search warrant

S 144(1) where a court of justice of the peace is satisfied by information on oath and on writing that there is reasonable ground for believing that there is any building, ship, carriage receptacle, motor vehicle, air craft or plane

  1. Anything upon o in respect of which any offense has been or is suspected to have been committed
  2. Anything which there is reasonable ground for believing will provide to the commission of an offense, or
  3. Anything which there is reasonable ground for believing is intended to be used for the purpose of committing an offence.

The court or justice of the peace may at anytime issue a warrant or authorized an officer of the court, members of the police force or other persons named to act in accordance  subsection (2) of this section

  • A search warrant issued under subsection (1) of this section shall authorized the officer of the court, a police officer are person named to
  1. Search such building, ship, carriage, receptacle, motor vehicle, air craft or place for any such thing and to seize any such thing until further trial proceeding before the court issuing the search warrant or some other court to be dealt with according to law
  2. Arrest the occupier of the hose or place where the thing was found where the court deems fit to direct on the warrant.

145: where the occupier of any building or the person in whose profession a thing named in a search warrant is found and is brought before a court or justice of the peace and a complaint is not made that he has committed an offence the court or justice of the peace shall immediately discharge him.

146;(i) a search warrant shall be under the hand of the judge, magistrate or justice of peace issuing it

        (ii) A warrant shall remain in force until it is executed or cancelled by the court which issued it.

147:     a search warrant maybe directed to one or more persons and, where directed to more than one or more of them

S.148  a search warrant may be issued and executed at any time on any day, including a Sunday or public holiday







The Sang Care (Supra)

Has provoked a spate of academic comments from various writers[2] especially from the commonwealth countries. The concentration has however been on the English. Speaking countries even when the issue of admissibility or otherwise of unlawfully obtained evidence is considered on a comparative basic.

Attention has none the less been focused solely on accidental countries. Yet non English speaking countries whose legal systems have their amnesty in the common law have had to grapple with the issue this article is intended to adumbrate the judicial approach to the question of admissibility of illegally or unfairly procured evidence in Nigeria. Although Nigeria shares the common law tradition her adjectival law in the main to be found in statutes. These are the Evidence Act 1985 now Evidence act 2011, the criminal procedure Act 1958 now administration of criminal justice act 2015 and the criminal procedure code act 1960 no1 of 1960. Operators in the Northern part of Nigeria aside from those three major statutes, each successive constitution adopted in the country since independence in 1960 contains whole chapters devoted exclusively to fundamental human rights e.g[2]which guarantee inter ala the right to a fair trial in all proceedings. Although the Courts in Nigeria have not specifically pinned down the issue of admissibility of improperly obtained evidence on constitutional grounds, they have made reference to the ‘general principle of our jurisprudence that justice must not only be done but must be manifestly seen to be done”[2]they have also emphasized the right of an accused person to have a fair trial.

Nevertheless, the source of the Nigeria position on the issue is to be found in[2] although the evidence Act pur points to deal expansively with its subject matter and sets out in considerable detail the rules relating to relevance and per force admissibility of evidence and contains a ‘saving’ section of the evidence act is only inclusionary and not exclusionary in nature since it merely allows the courts to admit evidence which is admissible under common law and is not expressly or implied excluded by the act. This is the old view, the new evidence actof 2011 allows the admissibility of improperly obtained evidence as long as it won’tamount to miscarriage of justice under common law, illegally obtained evidence admissible as evidence long as it was relevant to the matters in issue beforethe court in other word and not in manner (legal or illegal) in which the evidence was obtained was the hub of admissibility at common law this position was expressed by Compton. in[2] the learned trial judge stated that it matters is not how you get it. If you steal it even it would be admissible in evidence. The common law discretion was summarized by Lord Diplock in R v Sang (1980) Ac 402 as follows

A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in its opinion the prejudicial effect outweighs its probative value. Nigeria courts however, have followed the English judicial authority on the admissibility of illegally obtained evidence, until the enactment of the evidence act 2011. Before the 2011 Evidence Act, the law in Nigeria was that relevance to the fact in issue was the hub of admissibility and the manner in which the evidence is obtained was irrelevant to its admissibility. Such evidence was admissible even if the method of obtaining it was illegal. According to Coker ..c in[2]. There is no general rule oflaw in civil as well as of criminal cases that evidence which is relevance is excluded merely by the way in which it has been obtained. This I the subject in criminal cases to the discretion o0f the trial judge above the technical rule if the strict applies of the latter would operate unfairly against accused. In other words the judge can, where the interest of justice demands it to examine evidence which would otherwise be relevant considering the circumstances of its discovery and production in Musa’s case (supra)the accused was charged with illegal printing and selling of vehicle licenses. Upon the execution of warrant at the house of the accused, a large quantity of forged documents were recovered the court held that the incriminating evidence was relevant and admissible notwithstanding the improper manner in which the search was conducted.

3.5       The Effect of Chapter Four of the CFRN on the Propriety of Admissibility of Improperly Obtained Evidence

Here we will consider some fundamental rights and the effect on admissibility of improperly obtained evidence

3.5.1    What is Fundamental Human Right?

Fundamental human right as found in Chapter IV of the CFRN 1999 are human right provisions which are basically contained and are justifiable (actionable) perse contrary to some rights that are not justice able as found in chapter 11 of the CFRN 1999 class of their own.

The uniqueness of fundamental human right was further illustrated in RansomeKuti V AG federation 95 (1985) NWLR  (pt.6).211.OputaJSC as he then was who stated that

“Not every civil or legal right is fundamental, the idea and concept of fundamental right derive from the premise of inalienable rights of man to life, liberty and pursue it of happiness which are enshrined in such constitutions and are clearly spelt out”

KayodeEsoJsc as he then was, in same matter opined that thenature of fundamental rights is that it is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society. That it is a primary condition to a civilized existence. Note that fundamental rights cut across all aspect of life and living. Therefore, chastises remedy to infringement of right issues that conveniently fall within other areas of law like tort, contract, criminal land and family law are sought under fundamental rights. Where that is done, it must not of law vitiate seeking remedy in the courts rather the matter should be withdrawn and the matter reinstituted in the proper court using the correct process or processes. InUzokwu V Ezeonu[2]it was held that fundamental rights remain in the class of domestic law which are guaranteed by the supreme law of any country (constitution)

Below we will discuss some of the fundamental rights relevant to the issue.

3.5.2    Right to Dignity of Human Person S.34 CFRN: every individuals entitled to respect for the dignity of his person and accordingly.

  1. No person shall be subjected to torture or inhuman or degrading treatment
  2. No person shall be in slavery or servitude and
  3. No person shall be required to perform forced or compulsory labor.

The pertinent question here is what can be regarded as inhuman or degrading treatment without much ado things like corporal punishment (flogging), physical chastisement of any sort as well as capital punishment are conveniently regarded as degrading to the human person. Let the Nigeria Penal Code regards chastisement of the wife by her husband as ideal just as nothing is seen as wrong on the manner of extracting so- called confessions by alleged criminals[2].Security agencies in obtaining evidence improperly tend to torture individuals, this is a clear violation of their constitutional right in the above section.

3.5.3    Right to Personal Liberty S.35 C.F.R.N

Every person shall be entitled to personal liberty and no person shall be deprived of such liberty save as in the following cases and as permitted by law

The qualification (save in) here manifestly creates room for abuse for instance, arbitrary arrests and detention[2]. Liberty here according to Lord Denning in his book freedom under the law means the freedom of every law abiding citizen to thank what he will. To say what he will on his lawful occasion without let or hindrance from any other person.

3.5.4    Right to Fair Hearing S.36 CFRRN

In the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality. This is the commonest agitated rights on our law courts. This point was highlighted in[2]Here the supreme court held that fair hearing was envied because the accused was represented improperly, half heartedly and in affectively, for his counsel was but  only a Youth Copper. Often time the issue of rights fair hearing is infringed by employers in dismissing their employees. The old principles of nemo judge in casuasua (no one can be a judge in his own case) and audialteremPatem (hear both sides) must be applied. The courts have always held that no matter the gravity of the offence that the affected parties must be given adequate opportunity to defend themselves in accordance with S.36 (2) CFRN in Federal Civil service commission V Laoye (1989) 2 NWLR (pt 106) p 652. The respondent in that case was a senior civil servant of the ministry of external affairs based in the USA. He was accused of collision with intent to defraud the Government of Nigeria. Tried in absentia and was demised on grounds contrary to federal civil service rules. The trial court held in favor of the respondent. The judgment was affirmed by both the court of appeal and Supreme Court the Sc observed inter alia

“The duty of the court is to protect the right of the individual in a democratic society governed by the rule of law. That protection must necessarily be accorded to an individual deprived of his office without furtheranceto the rulesmade specifically to govern appointment and the removal’’    .irrespective of obtaining evidence illegally, this doesn’t negate or vitiate the accused right to fair hearing, He is entitle to his right to fair hearing to be able to defend himself.

3.5.5    Right to private and family life-s.37

“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected” this right is occasionally violated by the apex authority through its security agentsguardian news paper V Ag federation (1996) (pt 487). In the course of gathering the illegal evidence, the accused right is violated  ,his constitutional right of privacy.


3.3.6    Justifiability of Illegally Obtained Evidence Under Section 45 of the Nigeria Constitution

S 45(1) Nothing in section 37,38,39,40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society

  1. In the interest of defense, public safety public or the public morality or public health
  2. For the purpose of protecting the right and freedom of other persons

An act of the National Assembly shall not be invalidated by reason only that it provides for the taking during periods of emergency of measures that derogate from the provision of section 33 or 35 of this constitution; but no such measures shall be taken in pursuance of any such act during any periods of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exist during that period of emergency

Provided that nothing in this section shall authorize any derogation from the provision of section38 of this constitution except in respect of death resulting from acts of wars or authorize any derogation from the provisions of S. 36(8) of this constitution

(3) In this section “period of emergency” means any period during which there is in force a proclamation of a state of emergency declared the president in exercise of the power conferred. on him .From the above the constitution seems to be in support of improperly obtained evidence subject to certain circumstances. During the state of emergency any violation of an individual’s right is excusable in law.



Comparative Analysis of the Admissibility of Improperly Obtained Evidence in Other Jurisdictions

In this chapter we will look at some common law countries and some other countries and their position on the admissibility of improperly obtained evidence.

4.1       Admissibility of Improperly Obtained Evidence in United Kingdom

The state of evidence obtained in violation of the requirements of private life will generally be determined by the police and Criminal Evidence Act 1978 S.78910 which provides that a court may refuse to allow evidence on which the prosecution proposes to rely to be  the case given if it appears to the court that, having regard to all the circumstances including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the of the fairness of the proceedings. That the court ought not to admit it the reliance on this test that in a number of cases has been upheld by the[2]the rule in the 1978 act does not distinguish between the source of the evidence and also the fact that the with the interference to the right to respect for private life  have been perpetrated by private persons rather than state agents would not be relevant unless in the particular factual situation this could be seen as somehow affecting the fairness of the proceeding however, courts in the United kingdom are required by the human rights act 1998 to take into account the case of European court Human Rights and they are thus likely to follow its assessment as to   whether the status of a person obtaining evidence could have a bearing on whether its use in a trial would be unfair.

4.2       Admissibility of Improperly Obtained Evidence in United States of America

The American legal system takes another step from the Scottish approach and lay down that if evidence is obtained giant someone without their consent and if their constitutional rights are violated even in the slightest then such evidence to be produced as a part of this shall not be held admissible. The courts have said that the Victim of illegal search and seizure takes his stand and either direct examination or cross-examination denies possession of the materials seized from him because of the illegal search and seizure[2]. The stand taken by the US courts must been seen with other caveats that the power of the state to enforce certain powers conferred on it by the people will not be done because of the very rights that they fight for. Oppose, a criminal is know by an entire neighborhood to be a habitual delinquent but there is not enough evidence or facts for the police to issue a warrant to conduct a search and seizure of that criminal’s house or properties. Even if the police officers going against their posts and their jobs conduct a search and seizure without a warrant would be illegal the evidence collected would not be admissible as the victim of such an illegal search and seizure has the right to stand on trial and the possession of whatever evidence that may be used against him.

4.3       Admissibility of Improperly Obtained Evidence in Scotland

The law of Scotland does not seem to have followed its United Kingdom partner, England in this matter. The Scottish courts have held that evidence that is illegally obtained should not be allowed to enter within the confines of the court are it is not pure and it was tainted by ulterior motives

The Scottish Courts had laid down that they are torn between the interest of the citizens and the interest of the rights of their citizen are inalienable that the state shall not defile the rights of the people that it is meant to protect. In the case ofLawrie V Muir [2] the Scottish courts held that the evidence found by the police officers in that case was not made admissible and that a conviction should be quashed. The courts said that they were well exceeding the limits of their authority. The Scottish courts observed that the evidence obtained as part of an irregularity is not necessarily considered inadmissible fatally but they have brought about a broad subjective discretionary jurisdiction to include improperly obtained evidence. They laid down that if

  • The inspectors acted in good faith, in a mistaken belief as to their powers and in an Endeavour in the public interest to vindicate the law[2]
  • Evidence may be excluded where there are no circumstances of urgency[2]
  • Found by chance in the cause of an otherwise legal search for another purpose.[2]

The search approach has along with it an added power that the judiciary may reap the people practices under scrutiny, and the subjective approach, owing to the judges, has proved to be its positive but even though the very fact that it is a subjective leads one to under how it can be a negative as well.

From the above it can be deduce that the admissibility of illegally obtained evidence varies from one jurisdiction to another although some are influenced by another.



















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