Section 120 of the Evidence Act, 1975 (NRCD 323) requires the prosecution to prove that a confession statement was made voluntarily where its admissibility is challenged. The section provides as follows: “(1) In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which (a) constitutes; or (b) forms an essential part of; or (c) taken together with other information already disclosed by him is a basis for an inference of, the commission of a crime for which he is being tried in the action is not admissible against him unless the statement was made voluntarily. (2) Evidence of a hearsay statement shall not be admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness (other than a police officer or member of the Armed Forces) approved by the accused.”
Section 120(2): independent witness to a statement made in custody
Section 120 does not prescribe a rigid procedure for selecting an independent witness. Its purpose is to ensure the transparency and reliability of confession statements. That purpose was fulfilled. The law is concerned with substance rather than technicalities, and a voluntary confession should not be excluded because of minor procedural irregularities that do not affect its fairness.
Certainly, the burden of proof of identity of the land could not be discharged by a lay opinion. The expert had to come into the box to demonstrate how his conclusion was reached and avail himself for cross-examination if found necessary. It occurs to us that the statutory condition to call for the adduction of evidence pursuant to Section 122 of the Evidence Act (NRCD 323) was triggered. The provision states: “If the subject of the testimony is sufficiently beyond common experience that the opinion or inference of an expert will assist the court or tribunal of fact in understanding evidence in the action or in determining any issue, a witness may give testimony in the form of an opinion on inference concerning any subject on which the witness is qualified to give expert testimony.
In any case, such extraneous oral evidence contradicted the documented agreement of the parties, and consequently, the documentary evidence of the parties would take precedence. 47. The parole evidence rule was particularly essential in this regard as it must operate to debar the Defendant from seeking to adduce extrinsic evidence to add to, vary or contradict the terms of the tenancy agreement, which for all intents and purposes constituted the sole repository of the terms of the contract.
We must add that, the doctrine has, since 1975, also found statutory expression in Section 26 of the Evidence Act, 1975 (NRCD 323), which provides: “Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall, as against that party, be conclusively presumed in any proceedings between that party and such relying person or his successor in interest.” The section, though couched in the language of conclusive presumption rather than estoppel simpliciter, has been recognised by this Court in numerous decisions as the statutory embodiment of the equitable doctrine of estoppel by representation, of which promissory estoppel is but one species.
Section 48(2): presumption of ownership from acts of ownership
The presumption under Section 48(2) thus: “A person who exercises acts of ownership over property is presumed to be the owner of it” avails him and in the absence of a rebuttal evidence from the Plaintiff, the law recognizes his ownership in the face of which the Plaintiff’s collapsed case of title must fly.
Section 5: erroneous admission or exclusion of evidence
It must, however, be bornein mind that, an appeal or review based on erroneous admission of evidence may succeed only where it was established that the erroneous admission or exclusion had occasioned a substantial miscarriage of justice.
Section 51: relevance as the basis of admissibility
While relevancy is the basis of admissibility (section 51 of The Evidence Act,1975), it is the court which determines what weight to be put on a tendered document when evaluating the evidence.
Section 60 (1) of the Evidence Act which he finds solace in is not couched in mandatory terms. The section reads: “A witness may (our emphasis) not testify to a matter unless sufficient evidence is introduced to support a finding that he has personal knowledge of the matter”, and by section 42 of the Interpretation Act 2009, Act 792: “In an enactment the expression “may” shall be construed as permissive and empowering, and the expression “shall” as imperative and mandatory. But more importantly, if counsel for the applicant has gone a step further to read section 60 (2) of the Evidence Act, the provision in section 60 would have been clearer. Section 60 (2) provides: “Evidence to prove personal knowledge may but need not consist of the testimony of the witness himself”. (Our emphasis)
This court is under section 9(1) of the Evidence Act, 1972 (NRCD 323) permitted to take judicial notice of the stature, might and behavior of guard dogs to unknown persons. As a matter of fact, it is these characteristics, amongst others that make such dogs to be referred to as "Guard Dogs". This is a notorious fact known to all.
Sections 11(1) and 14: burden of producing evidence
The effect of sections 11(1) and 14 and sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant. In the light of statutory provisions, literally relying on the common law principle that a defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant
Sections 26 and 119(b): estoppel by conduct and adoptive admissions
In the circumstances of this case and by his silence or lack of protest at these proceedings, the Plaintiff had manifested his adoption of Abeebange’s admission of 1st Defendant’s title and cannot be permitted to assert otherwise. Section 119 (b) of the Evidence Act, 1975(NRCD 323), permits such testimony to be admissible when offered against such a person. Moreover, by his conduct the Plaintiff is bound by Abeebange’s admission within the intendment of section 26 of the Evidence Act,1975 (NRCD 323). The binding nature of this admission is based on estoppel by conduct and not estoppel per res judicata, which in my view, would have among others, required a valid and binding arbitral award.
