LAW OF EVIDENCE NOTES MLT.

INTRODUCTION
According to "Phipson " Evidence may be defined in general terms as any material which has the
potential to change the state of a fact finder's view with respect to any factual proposition which is
to be decided and which is in dispute. Whereas the law of evidence is a collection of rules
governing what facts may be proved in court. The law is decided into SUBSTANTIVE: which
defines the rights, duties and liabilities on one hand and
ADJECTIVE: It defines the procedure, pleading and proofs by which the substantive law is applied
in practice. According to Phipson the rules of procedure regulate general conduct of litigation. The
object of pleading is to ascertain for the guidance of the party and the court the material issue in
which there is a dispute. Proof of the establishment of such facts by proper legal means to the
satisfaction of the court which in a sense include their disproof. The province of the law of evidence
is twofold:
1. To lay down rules as to what material is or is not admissible for the purpose of establishing facts
in disputes and
2. The manner in which such matters can be placed before the court. Whether any proof is required
or not is a matter of question of law.

READING ASSIGNMENT.
AGAINST NEXT CLASS.
DISTINGUISH BETWEEN LAW AND FACTS BASED ON EVIDENCE.

EVIDENCE NOTES ON PRIVILEGE.

(SECTION 14 CIVIL EVIDENCE ACT 1968)
A witness is said to be privileged, when he may validly claim as per some evidential basis for
refusal to answer as required or to supply information that would be relevant for the determination
of an issue in any proceedings or trial. Among other things this view has been applied to Attorney
– Client communication which in many jurisdictions has found favour in court. It has been held in
some schools of thought that:" Since it results in the exclusion of evidence, the doctrine of privilege
communication between Attorney - Client runs counter to the fundamental theory of our judicial
system that the fullest disclosure of facts will best lead to the truth and ultimately to the triumph
of Justice". Because of such rules, the effect is to deprive the tribunal of relevant evidence,
powerful or strong arguments which are required to justify their existence and the tendency of the
modern law of evidence has been to reduce both their number and their scope, although this has in
some cases been balanced by an increase or promulgation of statutes. This was confirmed in the
case of R V DERBY MAGISTRATES - EX PARTE 1996 APPEAL CASE OR 1995 EDITION
OF 4 ALL ENGLAND REPORT 526.
Privilege is categorized into four groups:
1. Privilege against self-incrimination.
2. Legal professional privilege.
3. Privilege made for statements made without prejudice.
4. Privilege derived from the former for statements made to a conciliator.
Such views as the nature of privilege have resulted in limitations of its exercise with the result that
often, it's undermining its purpose of justiciability. Some schools of thought have submitted that
the reverse is true i.e the admissibility of communications between lawyer and client is a
fundamental exception to a more fundamental policy that all communications between lawyer and
client should be kept confidential. The canons of professional ethics provide that it is the lawyers
duty to preserve his client's confidence, subject to a limited privilege to disclose in certain cases
or certain instances.
Further, some schools of thought have raised a preliminary observation which in the first place
have to place a privilege of that of a particular person or class matters covered but it should always
be proved by other persons and evidence. This was confirmed in the case of BOND V TOUHY
1995 - 128 ACR 595. (Not too sure of the citation. Can someone please look it up????) In LLOYD
V MOSTYN, It was held by BARON PARK that " where an attorney entrusted confidentially with
a document, communicate content or suffers another to take a copy, surely the secondary evidence
so obtained may be produced. Suppose the instruments were even stolen and a correct copy taken,
will it not be reasonable to admit it?" The administration of Justice endeavors to get to the truth of
the matter on the basis of the evidence before the court produced by the parties involved. A court
must act not only on the evidence before it but also on the type of evidence exposed and canvassed.
The duty of the court therefore is to decide between the parties on the basis of the evidence that
has been demonstrated, canvassed and argued in court. IVIENAGBOR V BAZUAYE and
OTHERS 1996.6 Supreme Court of Nigeria 235 - 243. Part of the opinion proffered is that " Ideally
the court should not be impeded in it's very delicate assignment of getting at the truth of the matter
before it. All relevant oral and documentary evidence in respect of any such matter ought to be
made available for consideration of the court without any hindrance whatsoever - no parties should
be entitled to frustrate or hinder the administration of Justice, by withholding from the other party
and from the court any evidence which is relevant and admissible or for that purpose may in some
cases be conclusive of the matter before the court"
On the ground of public policy, relevant evidence may be excluded where it concerns matters of
state interest. Similarly, where a witness is competent and compellable to give evidence and is
entitled to claim privilege either for himself or the one, he is representing and he does so, may be
entitled to refuse to give evidence or produce documents on matters relevant to the issue before
the court. In most cases privilege for most witness is that available to a party to the action except
in the case of communication with a legal adviser in which the privilege belongs to a party and a
party not protected by privilege cannot avail itself of it. R V KINGAGE 1870 2 COS CC 499.
Privilege is not certain and not absolute. It may be waived by the person entitled to claim it either
expressly or by the person allowing evidence to be delivered in respect of matters in which
privilege may be claimed. In JUDGE COLAND LTD. V BLACKBURN ROBINSON COATES
and COMPANY 1972 3 AER 959 or 1972 1 WLR 1338, it was held that: Where evidence is
admissible on the grounds of public policy, it seems there is no privilege that can be waived. This
was also held in the case of ROGERS V HOME SECRETARY 1973. APP Case 388. In ROGERS
it was opined that: The court had no powers to order the protection of privilege documents in the
absence of an agreement between the parties for a waiver of privilege. This was also settled in the
case of CAUSTON V MANN EDGERTON (JOHNSON) 1974 - 1 AER 453 or 1 WLR 162.
A party may not waive privilege with respect to the part of the communication which is favourable
to him and claim privilege with respect to the other parts unless the different parts are severable
and deal with different subject. In the case of GREAT ATLANTIC INSURANCE COMPANY V
HOME INSURANCE COMPANY AND OTHERS 1981 2OR 485, the court held and confirmed
the position. However, the party entitled to claim privilege may obtain an order of injunction to
restrain a party in possession from making use as in the case of LORD ASHBURNTON V PAPE
1913 2 CH 469 the party may receive an injunction from restraining the other from making use of
such secondary evidence. It does not necessarily follow that an appeal will be allowed where a
trial judge has wrongly received privileged evidence or refuse to accept non privilege evidence.
Generally, it may be a miscarriage of Justice has been occasioned by the trial judge. In modern
times for convenience, a privilege can be exercised in most cases in a strict manner or ways.
LAW OF EVIDENCE NOTES CONTINUED.
21/04/21
COMMUNICATION BETWEEN HUSBAND AND WIFE.
The communication between husband and wife can be regarded as privileged. The husband or wife
of an accused shall not be compelled to disclose any communication made to him or her by the
wife or husband during their marriage. There must be evidence that the marriage is a monogamous
relationship. The difficulty is that where in cases when there are Islamic or Customary marriages
the privilege can be revoked in such situations. In the case of FAREMILKE AND OTHERS V
THE STATE (1974) WACA 86 the position was that the appellants were convicted of murder. At
the trial of the wife of the first appellant, evidence was given by the wife as PW 11. The marriage
was contracted under customary law. On appeal it was raised and argued that it was wrong for the
prosecution to have asked the wife of the first appellant to give evidence without the consent of
the first appellant. The court held that the first appellant and the 11th prosecuting witness were not
husband and wife under the Nigerian Law of Evidence to invoke or benefit from privilege.
PRIVILEGE UNDER JUDICIAL COMMUNICATIONS.
As to judicial communications it is established that no judge except upon special order of the court
i.e the High Court, or no Magistrate shall be compelled to answer any question as to his own
conduct as such Judge or Magistrate or as to anything which came to his knowledge in court whilst
presiding as a Judge or Magistrate. Privilege however does not extend to Judges as to matters
which will occur in his presence while he was acting. See R V HARVEY 1858 KC 99.
PRIVILEGE AS TO COMMUNICATION BETWEEN JURORS.
It has been held that evidence of a juror as to what happened among the Jury in the discharge of
their duties are privileged. A juror can however give evidence as to matters taking place in court.
In R V RITZ 1974 APPEAL CASES 405 the court refused to receive as affidavit evidence from a
juror who desired to say that she has really not been in agreement with the verdict of guilty. While
in R V HOOD 1968 the court received an affidavit from the juror which did not deal with what
took place in the jury room or the manner in which the jury arrived at their verdict.
PRIVILEGE REGARDING LEGAL PROFESSIONAL COMMUNICATION.
It was established as a general rule that no legal practitioner at any time being permitted, unless
with his client's consent, to disclose any communication made to him in the course and for the
purpose of his employment as such legal practitioner by or on behalf of his client or to state the
content and condition of any document with which he had become aquatinted in the course and for
the purpose of professional employment or even to disclose any advice given by him in the course
and for the purpose of such employment. It was further opined that based on the principle provided,
nothing in the opinion of the professional or any existing law shall protect from disclosure, firstly
any such communication made in the furtherance of any illegal purpose. Secondly, in fact observed
by any legal practitioner in the course of his employment such as showing that any crime or fraud
has been committed since the commencement of his employment. Thirdly, it is immaterial whether
the attention of such legal practitioner was not directed to such fact by and on behalf of his client.
Lastly, the obligation started as to whether it should go on when the employment has seized. In
HORN V RICHARD it was held by JUSTICE HOLDEN 1963 2 ALL NIGERIAN LAW
REPORT, that every client is entitled to feel safe when making a disclosure to his solicitor or
counsel and there are cases establishing firmly that counsel cannot give any evidence which will
infringe the client's privilege or privacy.
PRODUCTION OF DOCUMENTS OF WITNESS NOT A PARTY
Regarding the production of documents such as tittle deeds of witnesses not a party this can be
done by effecting a search for instance at the office of the Administrator and Registrar General
and findings of the search can be tendered in court as evidence even without the knowledge of the
owner of the title deed.
PRIVILEGE OF SELF INCRIMINATION AND STATE PRIVILEGE.
For state privilege the rule is that no party should be entitled to frustrate or hinder the doing of
Justice in any proceedings by withholding from his opponent or from the court evidence which is
relevant and admissible for that purpose. Subject to public policy, certain evidence should not be
disclosed to a party because of the likelihood of danger to national interest of public service. In
GUNWAY V RIMMER 1968 1 AER, it was held by LORD REID who explained in the rule as
follows: "It is universally recognized that there are two kinds of public interests which if not
handled carefully may clash. That public interest that harm shall not be done to the nation or the
public service by disclosure of certain documents and there is public interest that the administration
of Justice shall not be frustrated by withholding of documents which must be produced if Justice
is to be done. There are many cases where the nature of the injury which would or might be done
to the nation or the public service is of so grave a character that no other interest be it public or
private can be allowed to prevail over it" It is therefore suggested that the court by this approach
has succeeded in giving cogency to the fair hearing provisions in the constitution to all humans.
COMMUNICATION MADE "WITHOUT PREJUDICE"
See R V MAKAY (1935)19 COURT OF APPEAL 68. See also R V IMRAN (1921) 16 COURT
OF APPEAL 38.
NEXT CLASS WE LOOK AT DOCUMENTARY EVIDENCE.
LAW OF EVIDENCE NOTES 28/04/21
DOCUMENTARY EVIDENCE
The constitution of Sierra Leone endowed parliament with executive powers to make laws for
peace, order and good governance of the republic of Sierra Leone or any part thereof with respect
to any matter included in the exclusive legislative list of parliaments. Cap 26 of the laws of Sierra
Leone. Documentary Evidence Act Vol. 1 of 1960, deals with documentary evidence.
Documentary evidence deals with both primary and secondary evidence as established by
Evidence Act Cap 26 of 1960. The evidence deals with the exclusion of oral documentary
evidence. Being statutory provisions in applying them, they have to be interpreted. The rules of
interpretation of statutes are well settled. It is trying to get the intention of the legislature through
the words used in statutes. Where the provisions of the statutes and the words used are clear and
unambiguous the role of interpretation is to give words their plain, natural, grammatical, ordinary
and literary meaning. IN GARUBA ABIOYI & FOUR OTHERS V SA' ADU YAKUBU & FIVE
OTHERS, it was held by the Chief Justice of Nigeria Bello " that in constructing the provisions of
the statutes, where the words are clear and unambiguous, it is the words used that govern". This
was also confirmed in SAKA ATUYEYE V EMMANUEL ASHAMU 1987 Supreme Court of
Nigeria Law report 427. The first approach to interpretation is to look at it and examine the words
in their natural and ordinary meaning. In constructing the provisions of a statute where the words
are clear and unambiguous, it was held by Chief Justice in ATUYEYE that the clear and plain
words used are the words that govern. In ODGERS CONSTRUCTION OF DEEDS AND
STATUTES 5the edition at page 297 it was held that " If the words are plain and there is of course
no difficulty and no necessity to involve any canon of construction". What does create difficulty
is the question when are the words plain. What is plain to one mind may just be the reverse to
another. The purpose of the court is to interpret statutes and to discover the true intention of the
law makers. The most appropriate grounds and a key to the intention of the law maker and therefore
the purpose of the law is through the words used.
LAW OF EVIDENCE NOTES
DOCUMENTARY EVIDENCE CONTINUED.
05/05/21.
As per proof of content of documents it is important to remember that the rule has its limitations.
Firstly, it applies only to cases in which direct relevance is placed on words relating to the
document. In R V HOLY TRINITY, KINGSTON - UPON - HULL (INHABITANTS) (1827)
ALL CRIM. LAW REPORT. 7 B&C 611, it was held that the fact that a pauper was a tenant in a
particular parish could be proved without reference to the original lease, as could the value of the
premises. Relationships such as those of landlord and tenant, or partnership, may be created by a
document, but they can be proved by other evidence, such as the payment of rent or a witness's
assertion that someone is his partner.
Secondly, the rule does not prevent reference being made to the terms of a document for the
purpose of identifying it. A distinction must be drawn between referring to the contents of a
document as marks of identification and as a means of communicating ideas.
Thirdly, if the bare fact of the existence of a document is in issue, it may be proved without recourse
to the original, but the rule applies the moment reliance is placed upon the contents of the
document.
TYPES OF PRIMARY EVIDENCE OF THE CONTENTS OF A DOCUMENT.
1. FIRSTLY, IT MUST BE ORIGINAL.
The primary Evidence par excellence of the contents of a document is the original. Generally
speaking, there can be no great difficulty in determining which of several documents is the original
though in some instances it is necessary to have regard to the purpose for which or the party against
whom the contents are tendered in evidence.
2. PRIMARY EVIDENCE AS A COPY OF DOCUMENT REQUIRING ENROLMENT.
There are certain private documents which must be filled in a court or other public office, and
when they are this filled the copy issued by the court or other office may be treated as the original.
Once again, everything turns on the purpose for which the contents of the document are tendered
in evidence. The probate is, for instance, conclusive evidence of the words of the Will in respect
for which the grant was made and, for this purpose, it constitutes primary evidence, but it is a duty
and incumbent on the court on the question of construction for the court to examine the original.
3. ADMISSION OF A PARTY.
In SLATTERIE V POOLEY, (1840) and in PRICE V WOODHOUSE (1849), 3 EXCH. 616, it
was held that admission of a party though informal to any litigation may constitute primary
evidence against him of the contents of the document. His opponent is thus dispensed from the
necessity of producing the original or showing that the case comes within one of the exceptions to
the rule requiring this to be done. Documentary evidence in writing or other documents must be
authenticated before the evidence is admissible. An exception to the general rule is that all
proceedings in court shall be by oral evidence in some instances, the court has discretion proof by
affidavit evidence and this discretion is exercised judiciously. It was held by one school of thought
"That the court may in civil proceedings make an order at any stage of such proceedings directing
that specified facts may be proved at the trial with or without the attendance of the opponent for
cross examination" FLOWER MILLS OF NIGERIA LTD. V R F OSEI 1997 NLR and TURAY
V REGINA 1964 APP. CASES ALR and COLE V CUMMINGS and CUMMINGS. NO. 2
COURT OF APPEALS, CIV. APP CASES 1964.
An affidavit is a voluntary declaration of facts written and sworn by declarant before an officer
enthroned to administer the oath before any judge, officer or person authorized by law to make or
take an affidavit such as commissioners of oath or legal practitioners appointed under the Notaries
Act. An affidavit must be filed in court and served on the other party before it can be used and
where such affidavit is admissible. Admissibility of documentary evidence under the hearsay
evidence under English Common Law is admissible but so far as admissibility in any civil
proceedings where direct oral evidence of a fact could be admissible was an exception to the rule
of hearsay under the Evidence Documentary Act.
SEE THE CASE OF ABRAHIM MOMUDU ALLIE SUING AS ADMINISTRATOR OF THE
ESTATE ALHAJI ASUMANI ALLIE V HAJA FATMATA KATTER SUPREME COURT
311/60. MANLEY, HARDING AND DEEN V R 1968/69 ALR SIERRA LEONE SERIES 1994.
MANSARAY V WILLIAMS ALR SIERRA LEONE COURT OF APPEALS DECISION, CIVIL
APPL. FILE 68. (READ THE OPINION OF MARCUS JONES, JUSTICE OF THE APPEALS
COURT BY THEN) UNITED AFRICA COMPANY LTD V METROPOLITAN INDUSTRIES
SL. LTD. AND THE REGISTRAR OF TRADE MARKS ALR SL SERIES, SUPREME COURT
DECISION, CIVIL APPL. 21/6/67. FOR PRIVLEGE: READ CONTEH V REGINAM WACA
CRIM. APP. NO 10/57
Evidence Notes.
Opinion Evidence.
12/05/21
A witness will be disallowed from giving his opinion as to the existence or non-existence of a fact
in issue or relevant fact as such opinion would be relevant. It is only the courts that are capable of
drawing inference and conclusion. However, there are exceptions to the rule. The exceptions cover
opinion of experts and non- expert opinion. An expert is one competent and skilled in the area of
specialization in which he or she is giving evidence. The question of who is an expert is determined
by the judge as per definition. "Skilled" for this purpose is not determined only by academic
qualification but also by experience. It is a duty incumbent on opposing counsel to cross-examine
an expert witness as this qualification or experience, where the expertise of such a witness is
doubtful. When the opinion of the expert conflicts of is inconsistent with common sense and logic,
the courts in most instances would reject the opinion. If an opinion is renown or from a renowned
expert as expressed by some schools of thought and that opinion is geared towards. .......such
opinion or expert cannot be called as a witness but the opinion could be admissible but before such
opinion becomes part of the evidence it must be presented by an expert in the same field. CONCHA
V MURRIETA. BAMIRO V SOUTHERN COURT 1993. ANSU V THE STATE.
In support of CONCHA V MURRIETA see the case of BYRLE V RHODESIA 1910. Opinion
evidence can be sought for various reasons. Among other things it can be sought for include
science and art, foreign law, native law and custom and it can be sought for handwriting. Other
instances include as established in the case of R V SCOT 1998. Also, MODUPEH V (LAST
NAME NOT CLEAR). It can also be sought on insanity. Opinion could be given by expert and
non-expert as in BORNET V BURN 1924 2KB 517. Also on health, intoxication as established in
the case of R V DAVIES 1992. On value in passing off trademark and identity.
Evidence Notes.
Opinion Evidence.
12/05/21
A witness will be disallowed from giving his opinion as to the existence or non-existence of a fact
in issue or relevant fact as such opinion would be relevant. It is only the courts that are capable of
drawing inference and conclusion. However, there are exceptions to the rule. The exceptions cover
opinion of experts and non- expert opinion.
An expert is one competent and skilled in the area of specialization in which he or she is giving
evidence. The question of who is an expert is determined by the judge as per definition. "Skilled"
for this purpose is not determined only by academic qualification but also by experience. It is a
duty incumbent on opposing counsel to cross-examine an expert witness as this qualification or
experience, where the expertise of such a witness is doubtful. When the opinion of the expert
conflicts of is inconsistent with common sense and logic, the courts in most instances would reject
the opinion. If an opinion is renown or from a renowned expert as expressed by some schools of
thought and that opinion is geared towards. .......such opinion or expert cannot be called as a
witness but the opinion could be admissible but before such opinion becomes part of the evidence
it must be presented by an expert in the same field. CONCHA V MURRIETA. BAMIRO V
SOUTHERN COURT 1993. AZU V THE STATE.
In support of CONCHA V MURIETA see the case of BRAILEY V RHODESIA
CONSOLIDATED LTD 1910. Opinion evidence can be sought for various reasons. Among other
things it can be sought for include science and art, foreign law, native law and custom and it can
be sought for handwriting. Other instances include as established in the case of R V COX 1898.
Also see SUNDAY MODUPEH V THE STATE 1988.It can also be sought on insanity. Opinion
could be given by expert and non-expert as in HARNETT V BOND 1924 2KB 517. Also on health,
intoxication as established in the case of R V DAVIES 1992. On value in passing off trademark
and identity.
LAW OF EVIDENCE NOTES
OPINION EVIDENCE CONTINUED.
19/05/21
Some legal schools have tried to establish whether an expert must be called as a witness. It is right
that an expert must be called as a witness on any of the categories mentioned above where a witness
or an expert is needed before he can give evidence. An expert must state his qualification and
experience before he begins to give evidence if at all. An advance party is at liberty to challenge
the expert's view as to his qualification and experience and this can be done by cross examining
the witness with a view to discredit him as an expert witness. See JOHN MICHAEL AOUAD &
OTHERS V INSPECTOR GENERAL IF POLICE. An expert witness was called to give evidence
but was not cross examined as to his qualification or as to his ability to perform certain tests or as
to the accuracy of his conclusions. He was presented by the prosecution as an expert and was
accepted by the Magistrate as thus. It was held that the nature and duty of a witness public office
and the technical test he performs which were not challenged, constituted prima facie evidence of
his qualification to be admitted as an expert witness. The evidence of an expert will amount to
hearsay and therefore, inadmissible where such expert gives his opinion on a report and he is not
called as a witness and cross examined. In a criminal trial, the court must be wary of admitting a
prepared report by an expert and not at the instance of the police but at the behest of the
complainant. It was held by a judge that such an expert report must be taken with a pinch of salt.
Similarly, a judge will be right to prefer credible evidence of an expert on the same issue where
the former is an independent witness whilst the latter prepared the evidence simply for a case on
hand on the direction of the party calling him. The court in most cases will be qualified in its choice
if there is surrounding evidence from the reality or totality of the evidence before the court
supporting the testimony of the independent witness. Evidence of an expert witness is generally
an aspect of the entire evidence to be evaluated by the court.

(QUESTION: CAN THE COURT OF APPEAL REJECT AN EXPERT EVIDENCE THAT HAS
BEEN WRONGLY
RECEIVED UNCHALLENGED AT A TRIAL?)
ANSWER: The court is at liberty to reject an unchallenged expert evidence if it finds such
evidence, although unchallenged at trial, illogical and unreasonable. There is nothing in law or
practice which can compel the entire court to admit unreasonable and illogical evidence regardless
of the qualification of the expert who gave the evidence. In ALADU V THE STATE 1998, 8
NIGERIAN WEEKLY LAW REPORT it was opined: " The trial judge rejected the opinion of the
medical expert and held (I do not accept PW 1 evidence that the round wound would be caused by
an application of a sharp instrument to the affected part of the body such as a sharp knife or iron
in view of the statement of the accused. Round wound in my opinion is consistent with a gunshot
wound)"
In the same matter it was opined by an appeal judge of equal jurisdiction " It is in respectful view
most unreasonable and illogical that any jury faced with these facts would accept hook, line and
sinker the opinion of the medical doctor that a knife could be used to inflict a round wound
measuring half inches in diameter which PW 1 observed on the deceased and not a gunshot".
In my view, the learned judge held that the jury was absolutely justified in rejecting the opinion of
PW 1 on the point and forming its opinion based on the fact overwhelming in evidence before him.
The criticism made of the learned trial judge in my opinion is wrong, unwarranted and unprovoked.
LAW OF EVIDENCE NOTES 26/05/21
ESTOPPEL
The word Estoppel is an ancient English word which originally is based precisely on the same
meaning as the ancient English word "Stop" where wrong is merely a variant. The word estoppel
is said to be derived from the French word "estouper" and from it the English word "stop" emerged
and it is called an estoppel or conclusion because a man's own act or acceptance prevent him from
alleging the contrary. Whatever the meaning or origin of estoppel, its legal meaning is certainly
not in doubt. Estoppel is defined " where a person by clear and unequivocal representation of a
fact either with knowledge or with falsehood or either with intention of whether it be acted upon
or has so conducted himself that another would as a reasonable man in his full faculties understand
that a certain representation of fact was intended to be acted upon and that other person infect acted
upon that representation whereby his position was thereby altered to his detriment. An estoppel
arises against the person who made the representation and would not be afterwards allowed to aver
that the representation is what he presented it to be.
Estoppel can be categorized as Estoppel of Record and Issue Estoppel.
Estoppel of Record.
This can also be referred to as estoppel quasi of record and estoppel per rem judicata i.e where an
issue of fact has been judicially considered and determined to finally or to the exhaustion of all
judicial remedies or where an earlier decision is by account of record the result of that, will be
called estoppel by record. Or where a decision is by a tribunal it could be referred to as estoppel
by a quasi-record. Simply put, estoppel means prevention or disability where a party is said to be
estopped, it means to be prevented or disabled from pleading reliance or denying the existence of
certain facts by his actions or inactions relied upon by another party based on representation to the
detriment of a party which may also be as a result or futile attempt to secure judicial
pronouncement on the existence of the right or state of affairs in his favour. It can also be described
as when one person has made his declaration or by his declaration, act or omission intentionally
caused or permitted another person to believe a thing to be true and to act upon such belief neither
he nor his representatives in interest shall be allowed in any proceedings between himself and such
person or such person's representative in interest to deny the truth of that thing.
EVIDENCE NOTES 02/06/21
In the case of SASU V AMUA'SEKI the Supreme Court of Accra CA J4/2004 Supreme Court of
Ghana law report you see particular reference of Estoppel vis a vis res judicata. The question is
whether failure to plead per rem judicata or failure to plead estoppel as required by law is curable
by evidence on record and where the evidence or plea of res judicata is obvious. Generally, there
is a confusion as to usually the thought of the subject of estoppel and waiver in our day to day
understanding of the law is curable. In law, waiver is taken to imply an intentional relinquishment
of known right or conduct and warrants an intentional act and implies consent to dispense with or
forego something to which one has a right. On the other hand, estoppel may arise in the absence
of an intention on the part of the person estopped to relinquish or change any existing right. This
is seen in the case of DAWSON BANK LTD V JAPAN COTTON TRADING COMPANY LTD.
In support of the above case LOMBANK LTD it was held that waiver on contract expressed or
implied between the parties, whilst estoppel in the other hand is primarily a rule of evidence
whereby a party to litigation in certain circumstances is prevented from doing something which he
has previously asserted to be true. In AMOUR' SEKI V OTHERS the court of appeals held that a
judgement of the presiding judge was tendered in evidence. The record of one of the appeal judges
is deemed to have read it. That judgement plainly tells the whole case of estoppel per rem judicata.
In general terms a presumption may be defined as a probable consequence of facts either certain
or proved by direct fact. Whilst estoppel has the effect of not permitting a party from doing the
part of a representation. If such representation that he believes in are acted on by another party in
case of any rebuttable presumption a party is at liberty to adduce evidence to prove the contrary.
One school of thought has submitted that it is difficult and impossible to lay down a definition
completely comprehending fraud as understood in law. The general principles governing fraud are
laid down in the case of DERRY V PEAK. It was held that " I think that authority established the
following proposition, firstly in other to sustain an action for deceit, there must be proof of fraud.
Nothing short of that will suffice. Fraud is proved when it is shown that a false representation has
been made. This is made either knowingly or without belief in its truth or recklessly whether it be
true or false. To prevent a false statement there must be firstly an honest belief in the truth or where
the fraud is proven, the motive of the person's guilt is immaterial. It matters not that there was no
intention to cheat or injure the person to whom the statement was made.

FOR NEXT CLASS

READ
ESTOPPEL AND ADMISION AND WHETHER ESTOPPEL IS MERELY A RULE OF
EVIDENCE WHICH CANNOT FOUND AN ACTION AND THE CLASSIFICATION OF
ESTOPPEL. DOCTRINE OF RES JUDICATA BY DEED AND BY CONDUCT.
(Can someone kindly cross check the cases and send notes on the topics mentioned below?)
Thanks!
EVIDENCE NOTES 09/06/22
THE DOCTRINE OF THE
RES GESTAE.
Res gestae in other jurisdictions known as the seen utterance rule. A rule of evidence that stretches
back to the old English law itself. In Sierra Leone because of the umbilical relationship with our
colonial masters, it has prompted the adoption of a British legal system together with English
Common Law doctrines. Res gestae though initially a common law doctrine adopted from
England, it has been incorporated into most common wealth jurisdictions and having found footing
in our legal system, gaining legitimacy in our legislative process by inclusion into our Evidence
Act, it has been used to refer to many principles of admissibility of evidence. The most common
include the hearsay exception for spontaneous exclamations including exited utterances and certain
impressions. It is defined as a second statement considered trustworthy for the purpose of
admission as Evidence in a law suit when repeated by the witness because they were made
spontaneously and concurrently with an event. It has also been defined as the act, circumstances
and statements that are incidental to a principal fact of a litigated matter and are admissible in
evidence given their relevant association with the fact.
For res gestae to be invoked, the event with which the thought is concerned must be
contemporaneous. The doctrine denotes a rule of relevance according to which events forming part
of the res gestae are admissible. An exception to the rule against hearsay under which statements
forming part of the res gestae are admissible. Res gestae consist of a fact or statement of fact or
opinion which is closely associated in time, place and circumstances with some act or even state
of affairs which is in issue and which can be said to form part of the same transactions or
occurrence as a fact or issue itself admissible in evidence. The doctrine stems from the justification
of admitting such evidence which sheds light on a particular fact in issue. The possibility of a
particular fact to be misunderstood or becoming ambiguous or inexplicable makes the admission
of fact which bears a close association to the fact in issue and which forms part of the same
transaction or occurrence as the fact in issue. The doctrine stands out as one of the exceptions to
the doctrine of hearsay which makes inadmissible in evidence a narration by a witness of statement
made by another person who is not called as a witness. There are different schools of thought of
the doctrine and it is prudent to further state that different perceptions of the doctrine abound. One
such school of thought is that the res gestae is viewed as a single fact, an event or transaction going
to make a largely composite whole. Secondly, res gestae is perceived or seen as several distinct
facts, event or transaction of a deed. It is perceived as a notion or particulars of business or a piece
of business given to a great or series of connected transaction governed by conspiracy. Thirdly,
the doctrine is viewed as a part of the composite whole so made up. Fourthly, the doctrine of res
gestae is seen as evidential or illustrative facts of a concomitant circumstances or surrounding
circumstances as distinguished from central facts so attended. Also, the view is that it is seen as a
total whole embodying the central fact with its entire bulk of circumstances. Also, it is perceived
as facts that relate to central fact and some of its surroundings much of which are relevant or
material to the case in question. It is worth noting that each view, thought or perception is
subjective depending on how much the subject's res gestae is perceived.