MARIAM IBRAHIM ANTAR

LAW OF EVIDENCE Q&A PASTPAPERS 2022-2020

When, and subject to what safeguards, should a court inspect a place or object out of court?
Courts may inspect a place or object out of court when it is necessary to ascertain a matter
in dispute or to provide evidence in a legal case. This is often referred to as a "view" or
"inspection" by the court.
The decision to conduct an out-of-court inspection is within the discretion of the court, and the
court must balance the benefits of such an inspection against the potential costs, including the time
and expense required to conduct the inspection. In addition, the court must consider the potential
impact of the inspection on the rights of the parties involved in the case.
When deciding whether to conduct an out-of-court inspection, the court may consider a variety of
factors, including the nature of the evidence to be collected, the reliability of the evidence, and the
availability of alternative means of obtaining the evidence. The court may also consider the
potential impact of the inspection on the parties involved in the case, including their privacy and
property rights.
In addition, the court must ensure that appropriate safeguards are in place to protect the rights of
the parties involved in the case. These safeguards may include providing notice to the parties of
the proposed inspection, allowing the parties to be present during the inspection, and ensuring that
the inspection is conducted in a manner that is fair and impartial.
Overall, the decision to conduct an out-of-court inspection is a complex one that requires the court
to balance a variety of factors and to ensure that appropriate safeguards are in place to protect the
rights of the parties involved in the case.

When should material objects be admissible in evidence and why do they need to be
accompanied by oral testimony?
Material objects may be admissible in evidence if they are relevant to the issues in the case and
meet the requirements of the rules of evidence. Material objects, such as physical evidence or
documents, may be admitted to provide proof of a fact in dispute, such as the existence of an object,
the location of a crime scene, or the terms of a contract.
In order for a material object to be admissible in evidence, it must be properly identified and
authenticated, which means that it must be shown to be what it purports to be. This is usually done
through the testimony of a witness who has personal knowledge of the object, such as the person
who collected it or created it. This oral testimony is necessary to establish the chain of custody of
the object and to show that it has not been tampered with or altered in any way.
In addition to authentication, oral testimony may also be necessary to provide context or explain
the significance of the object. For example, a witness may need to testify about the circumstances
under which an object was found or the meaning of a particular symbol or code on a document.
Overall, material objects may be admissible in evidence if they are relevant and properly
authenticated, but oral testimony is usually necessary to establish their authenticity and provide
context for their significance.

Where a party to litigation wishes to admit a document in evidence, (a) should he be required
to establish that it was written, signed, or attested by the person or persons by whom it
purports to be written, signed, or attested, and if so, (b) how should these matters be
established?

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If a party wishes to admit a document in evidence, it must first be established that the document is
what it purports to be, and that it was written, signed, or attested by the person or persons by whom
it purports to be written, signed, or attested. This process is known as authentication or proof of
the document's genuineness.
There are several ways in which a party may establish the authenticity of a document. The most
common methods include:
1. Testimony of a witness: A witness who has personal knowledge of the document or the
circumstances under which it was created or executed may testify as to its authenticity.
2. Self-authentication: Certain types of documents, such as public records or notarized
documents, may be considered self-authenticating and do not require additional proof of
authenticity.
3. Chain of custody: If the document has been in the possession of multiple parties, it may be
necessary to establish a chain of custody to demonstrate that the document has not been
altered or tampered with.
4. Comparison with known standards: If the document contains a signature or handwriting, it
may be compared to known samples of the person's signature or handwriting to establish
authenticity.
Once the authenticity of the document has been established, it may be admitted into evidence,
subject to any objections or challenges by the opposing party.
Overall, it is important for a party to establish the authenticity of a document before it is admitted
into evidence, in order to ensure that the document is reliable and accurate. The methods used to
establish authenticity will depend on the specific circumstances of the case and the nature of the
document in question.

Where a party to litigation wishes to adduce in evidence a statement contained in a

document, (a) should it be open to proof- as an alternative to proof by production of the
document itself by production of a copy and, if so, (b) in what circumstances and subject to
what safeguards?
If a party to litigation wishes to adduce in evidence a statement contained in a document, it is
generally necessary to produce the original document or a copy of the document, rather than simply
relying on oral testimony about the contents of the document. This is because the best evidence of
the contents of a document is the document itself.
However, there are some circumstances in which a party may be permitted to adduce secondary
evidence of the contents of a document, such as a copy, rather than the original document itself.
This is known as the "best evidence rule."
The best evidence rule generally requires that the original document be produced, but it recognizes
certain exceptions where the production of a copy may be allowed. These exceptions may include
situations where the original document has been lost or destroyed, where the original is in the
possession of the opposing party and cannot be obtained, or where the original is located in a
distant place and its production would be inconvenient or impractical.
If a party wishes to adduce a copy of a document in evidence, the party must provide a satisfactory
explanation for the inability to produce the original document. The party must also ensure that the
copy is a true and accurate copy of the original document and must be prepared to provide evidence
of the copy's authenticity.

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In addition, the opposing party may challenge the admissibility of a copy on the grounds that it is
not a true and accurate copy, or that the circumstances of its production raise doubt about its
authenticity. The court will then determine whether the copy is admissible in evidence, taking into
account the circumstances of the case and the safeguards necessary to ensure that the copy is
reliable and accurate.
Overall, while the best evidence rule generally requires the production of the original document,
there are certain circumstances where a copy may be admitted in evidence, subject to safeguards
to ensure its authenticity and accuracy.

"The purpose of evidence law is regulating the process of proof and making the search of
truth to be completed within a short period of time and with a little cost of litigation.
Conversely, the rule which gives privileges to the spouses not to testity against each other is
against this purpose". Discuss
The purpose of evidence law is indeed to regulate the process of proof and to facilitate the search
for truth within a reasonable time and cost of litigation. However, the rule which gives privileges
to spouses not to testify against each other is not necessarily against this purpose, but rather serves
a different purpose.
The spousal privilege is a legal principle that allows a spouse to refuse to testify in court against
their spouse. This privilege is grounded in the belief that marital harmony and privacy are
important values that should be protected, and that forcing spouses to testify against each other
may damage their relationship and their family unit. The spousal privilege is therefore designed to
promote the stability of the marital relationship and to prevent harm to the family as a whole.
While the spousal privilege may make it more difficult to prove certain facts in a case, it serves an
important social and legal function by preserving the sanctity of the marital relationship. The
privilege also recognizes the reality that spouses often share intimate and private information with
each other, and that forcing one spouse to testify against the other could violate their privacy and
personal autonomy.
Moreover, it is important to note that the spousal privilege is not an absolute rule, and may be
subject to exceptions. For example, the privilege may not apply in cases where one spouse has
committed a crime against the other, or in cases where the testimony of one spouse is critical to
proving a case involving a serious crime or national security.
In conclusion, while the spousal privilege may create some limitations on the admissibility of
evidence in certain cases, it serves an important social and legal purpose in preserving the sanctity
of the marital relationship and protecting privacy and personal autonomy. The rule strikes a
balance between competing interests and recognizes the importance of safeguarding not only the
search for truth, but also the values of marital harmony, privacy, and personal autonomy.

What are the advantages and disadvantages of the existence court's discretionary power in
determining the relevance of evidence?
The existence of a court's discretionary power in determining the relevance of evidence has both
advantages and disadvantages.
Advantages:
1. Flexibility: The court's discretionary power allows for flexibility in the application of rules
of evidence, which may help to ensure that the truth is uncovered and justice is done.

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2. Efficiency: The court's discretion in determining relevance can help to expedite the trial
process by allowing the court to exclude evidence that is not relevant, which may reduce
the time and cost of litigation.
3. Judicial Expertise: The court has expertise in determining relevance and can apply its
knowledge and experience to make a decision based on the specific facts and circumstances
of the case.
4. Avoidance of Prejudice: The court's discretion can prevent the admission of evidence that
could prejudice the jury or judge, which may negatively impact the fairness of the trial.
Disadvantages:
1. Inconsistency: The court's discretionary power can lead to inconsistent rulings, as different
judges may apply different standards of relevance or may weigh evidence differently.
2. Unpredictability: The court's discretion can create unpredictability in the trial process, as
litigants may not know whether evidence will be admitted or excluded until the judge
makes a ruling.
3. Subjectivity: The court's discretion can be influenced by the personal views and biases of
the judge, which could result in unfair or inconsistent rulings.
4. Lack of Clarity: The court's discretion can make it difficult for lawyers and litigants to
predict which evidence will be admitted or excluded, which may hinder trial preparation
and strategy.
In conclusion, while the court's discretionary power in determining the relevance of evidence has
advantages such as flexibility, efficiency, judicial expertise, and avoidance of prejudice, it also has
disadvantages such as inconsistency, unpredictability, subjectivity, and lack of clarity. Ultimately,
the appropriate exercise of discretion will depend on the specific facts and circumstances of the
case, as well as the legal and ethical obligations of the court.

What facts are subject of Judicial Notice?

Judicial notice is the recognition and acceptance by a court of certain well-known and indisputable
facts without requiring formal proof. These facts are considered to be common knowledge and
therefore do not need to be proven by evidence or testimony. The types of facts that may be subject
to judicial notice include:
1. Facts of common knowledge: These are facts that are generally known within the
jurisdiction and are not subject to reasonable dispute.
2. Legislative facts: These are facts that are relevant to a legal issue and are derived from
sources such as statistical reports, public records, or government publications.
3. Historical facts: These are facts that are commonly accepted as true within the historical
record. For example, the date and location of a significant historical event, or the identity
of a well-known historical figure.
4. Technical or scientific facts: These are facts that are commonly accepted in a particular
field of study, such as science or medicine.
It is important to note that judicial notice is discretionary and not mandatory. A court may choose
to take judicial notice of a fact if it is satisfied that the fact is beyond dispute, well-known, and
easily verifiable. However, if the fact is subject to reasonable dispute or controversy, the court may
require formal proof or further evidence.

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"Law of evidence is principally about proof of fact than proof of laws. Thus, judicial notice
of law is not subject of evidence laws. Do You Agree in The Above Stated Proposition? If yes
(why) or if no (why)
I partially agree with the proposition that the law of evidence is principally about proof of fact
rather than proof of laws, and that judicial notice of law is not subject to evidence laws. However,
there are some qualifications and nuances to this statement.
Firstly, it is true that the law of evidence is concerned primarily with the proof of facts rather than
the proof of laws. The rules of evidence govern the admissibility and weight of evidence offered
to prove or disprove the facts at issue in a legal proceeding. The law of evidence does not address
the validity or applicability of legal principles or rules themselves, which is the province of
substantive law.
Secondly, it is generally true that judicial notice of law is not subject to the rules of evidence.
Judicial notice is the recognition and acceptance by a court of certain well-known and indisputable
facts or laws without requiring formal proof. For example, a court may take judicial notice of a
law that is widely known, such as the Constitution, without requiring proof or testimony to
establish its existence or content.
However, there are some exceptions to this general rule. In some cases, a party may challenge the
validity or applicability of a law or legal principle, and the court may require formal proof or
evidence to address the issue. For example, if a party challenges the constitutionality of a law or
statute, the court may require expert testimony or other evidence to determine the issue.
In conclusion, while the law of evidence is primarily concerned with proof of facts rather than
proof of laws, and judicial notice of law is generally not subject to the rules of evidence, there are
some exceptions and qualifications to these principles. Ultimately, the admissibility and weight of
evidence and judicial notice of law will depend on the specific facts and circumstances of the case,
as well as the applicable legal principles and rules.

Application of Evidence Act in Customary and Native Courts.

In many countries, customary and native courts operate alongside the formal legal system,
applying traditional laws and customs to resolve disputes and administer justice. In such
jurisdictions, the rules of evidence may differ significantly from those applicable in the formal
legal system. However, in some cases, the Evidence Act may be applied in customary and native
courts.
The Evidence Act generally governs the admissibility, relevancy, and weight of evidence in civil
and criminal proceedings in formal legal systems. However, in some jurisdictions, the Evidence
Act may be applied in customary and native courts, either through legislative enactment or judicial
decision.
The application of the Evidence Act in customary and native courts may have several implications.
For example, the Evidence Act may require that evidence be presented in a particular form or
manner, such as through written affidavits or oral testimony under oath. The Act may also impose
restrictions on the admissibility of certain types of evidence, such as hearsay or opinion evidence.
However, the application of the Evidence Act in customary and native courts may also pose
challenges. For example, the traditional practices and customs of these courts may conflict with
the formal rules of evidence, making it difficult to apply the Act in a meaningful way. Additionally,
the judges or adjudicators in these courts may not be trained or experienced in the application of
the Act, leading to inconsistent or incorrect rulings.

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It is also worth noting that in some cases, the Evidence Act may not be applicable in customary
and native courts at all. For example, where the laws and customs of these courts are based on oral
traditions rather than written records, the strict rules of evidence contained in the Act may not be
suitable or relevant.
In conclusion, the application of the Evidence Act in customary and native courts may be complex
and challenging, and may require a careful balance between respecting traditional practices and
customs and ensuring the fair and just administration of justice. Ultimately, the extent to which
the Evidence Act is applied in these courts will depend on the specific legal and cultural context
of each jurisdiction.

When and why should a statement made out of court and tendered as evidence of the facts
asserted be admissible in civil proceedings?
In civil proceedings, statements made out of court may be admissible as evidence of the facts
asserted if they meet certain criteria.
Firstly, the statement must be relevant to the issues in the case. This means that the statement must
have some bearing on the facts that are in dispute and must be able to assist the court in reaching
a decision.
Secondly, the statement must be reliable. This means that the court must be satisfied that the
statement is likely to be true and accurate. The court will consider factors such as the credibility
and expertise of the person who made the statement, whether the statement was made under oath
or affirmation, and whether there is any reason to doubt the accuracy of the statement.
Thirdly, the statement must comply with the rules of evidence. This means that the statement must
be properly authenticated and must not be subject to any exclusionary rule, such as the rule against
hearsay.
Some examples of statements that may be admissible as evidence of the facts asserted include
witness statements, expert reports, and business records. However, whether a particular statement
is admissible will depend on the specific circumstances of the case and the applicable rules of
evidence.

if admissible, should the party tendering the evidence be required to apply for leave to
adduce it? If so, when should leave be granted?
The party tendering the evidence may be required to apply for leave to adduce it, depending on the
rules of evidence in the jurisdiction and the specific circumstances of the case. In some
jurisdictions, certain types of evidence, such as hearsay evidence, require leave of the court before
they can be adduced.
The decision whether to grant leave to adduce evidence will depend on the particular circumstances
of the case and the applicable rules of evidence. Generally, the court will consider factors such as
the relevance and reliability of the evidence, whether it would be unfair to admit the evidence, and
whether the evidence would unduly prolong or complicate the proceedings.
In some cases, leave to adduce evidence may be granted subject to conditions, such as requiring
the party to provide further information or documentation to support the evidence.
It is important for parties to carefully consider the admissibility of evidence and any requirements
for obtaining leave to adduce it, as failure to comply with the rules of evidence can result in
evidence being excluded or the case being dismissed.

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Should the party be required to give notice of intention to adduce the evidence? If so, what
should the notice requirements be?
The party tendering the evidence may be required to give notice of their intention to adduce the
evidence, depending on the rules of evidence in the jurisdiction and the specific circumstances of
the case. Giving notice helps to ensure that the other party has a fair opportunity to prepare their
case in response to the evidence.
The notice requirements will depend on the applicable rules of evidence and the specific
circumstances of the case. Generally, the notice should include a description of the evidence, the
purpose for which it is being adduced, and any other relevant information, such as the identity of
the person who made the statement.
The notice may need to be given within a specified time frame, such as a certain number of days
before trial or a pre-trial conference. Failure to give notice may result in the evidence being
excluded or the court imposing sanctions, such as costs or adjournment of the proceedings.
It is important for parties to carefully review the rules of evidence and any requirements for giving
notice of intention to adduce evidence, to ensure compliance and avoid potential adverse
consequences.

Should the other party be permitted to call the maker of the statement with a view to cross-
examining him? If the author is not called for cross-examination, what opportunities should
the other party have to impeach his credibility?
If the party tendering the evidence has not called the maker of the statement as a witness, the other
party may be permitted to call the maker with a view to cross-examining them, depending on the
applicable rules of evidence and the specific circumstances of the case. Cross-examination is an
important tool for testing the credibility of witnesses and exposing any weaknesses in their
evidence.
If the maker of the statement is not called for cross-examination, the other party may have
opportunities to impeach their credibility through other means. For example, they may be able to
challenge the reliability of the statement by questioning the circumstances in which it was made,
such as whether it was made under duress or whether the maker had a motive to lie. They may also
be able to call other witnesses or introduce other evidence to contradict or cast doubt on the
statement.
The specific opportunities available to the other party to impeach the credibility of the maker of
the statement will depend on the applicable rules of evidence and the specific circumstances of the
case. It is important for parties to carefully consider their options and seek legal advice, if
necessary, to ensure they are taking the appropriate steps to protect their interests.

How much weight should be given to hearsay evidence in civil proceedings?

Hearsay evidence is generally considered less reliable than direct evidence, as it is based on what
someone else said or wrote, rather than on what the witness directly experienced or observed.
However, the weight that is given to hearsay evidence in civil proceedings will depend on the
specific circumstances of the case and the applicable rules of evidence.

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In some cases, hearsay evidence may be admissible if it falls within an exception to the hearsay
rule. For example, in some jurisdictions, business records or certain official documents may be
admissible as hearsay evidence if they are deemed to be sufficiently reliable.
Even if hearsay evidence is admissible, the weight that is given to it will depend on factors such
as the credibility and reliability of the source of the hearsay, the circumstances in which the
statement was made, and whether there is any corroborating evidence to support the hearsay. The
court will consider these factors and any other relevant evidence in determining the weight that
should be given to the hearsay evidence.
In general, parties should be cautious about relying on hearsay evidence in civil proceedings, as it
may be subject to challenge and may be given less weight than other types of evidence. Parties
should carefully consider the admissibility and reliability of hearsay evidence and seek legal
advice, if necessary, to ensure they are presenting the strongest possible case.

If a hearsay statement is contained in a document, how may it be proved?

If a hearsay statement is contained in a document, it may be proved through the introduction of the
document as evidence in civil proceedings. The document itself may be admissible if it falls within
an exception to the hearsay rule or if it is deemed to be sufficiently reliable.
To prove the contents of the document, a party may need to call a witness who can authenticate
the document and confirm that it is a true and accurate representation of the original statement.
The witness may need to have personal knowledge of the circumstances in which the statement
was made, or they may be able to provide evidence of the reliability of the document itself.
In some cases, the party may need to provide additional evidence to support the reliability of the
document, such as evidence of the qualifications or expertise of the person who made the
statement, or evidence of the procedures or systems used to create or maintain the document.
The specific requirements for proving a hearsay statement contained in a document will depend
on the applicable rules of evidence and the specific circumstances of the case. Parties should
carefully review the rules of evidence and seek legal advice if necessary, to ensure they are
presenting the strongest possible case.

When, and why, should the fact that a person has been convicted of an offence be admissible
in evidence for the purpose of proving that he committed that offence
(a) in subsequent civil proceedings; and (b) in subsequent criminal proceedings?
(a) In subsequent civil proceedings, the fact that a person has been convicted of an offence may be
admissible in evidence for the purpose of proving that they committed that offence, depending on
the specific circumstances of the case and the applicable rules of evidence.
In general, the fact of a criminal conviction is relevant in civil proceedings where the same or
related facts are in issue. For example, if a person has been convicted of theft, evidence of that
conviction may be admissible in a subsequent civil proceeding where the issue is whether the
person stole something.
The rationale behind admitting evidence of a prior conviction is that it may help to establish the
person's propensity to engage in the conduct in question. However, the court must also consider
the potential prejudicial effect of admitting such evidence and balance that against its probative
value.

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(b) In subsequent criminal proceedings, evidence of a person's prior conviction for the same or a
related offence may be admissible for the purpose of establishing their guilt, subject to certain
limitations.
In general, evidence of prior convictions may be admissible if they are relevant to an issue in the
case, such as the accused's identity or propensity to commit the offence. However, the court must
also consider the potential prejudicial effect of admitting such evidence and balance that against
its probative value.
The specific rules governing the admissibility of evidence of prior convictions will depend on the
applicable laws and rules of evidence in the relevant jurisdiction. It is important for parties to
carefully consider the admissibility and potential impact of such evidence and seek legal advice if
necessary.

what is the difference, if any, between accepting evidence from an expert witness and taking
judicial notice of a fact after inquiry?
The difference between accepting evidence from an expert witness and taking judicial notice of a
fact after inquiry is that expert evidence is a form of direct evidence presented by a witness, while
judicial notice is a form of indirect evidence that is considered by the court without the need for a
witness.
Expert evidence is typically presented by a witness who has specialized knowledge or expertise in
a particular area and is called upon to give their opinion on a matter that falls within their area of
expertise. The expert may be asked to explain complex technical or scientific concepts, offer an
interpretation of the evidence, or provide an opinion on the credibility or reliability of evidence
presented in the case. The court will consider the expert's evidence along with all other evidence
presented in the case and make a determination based on the totality of the evidence.
Judicial notice, on the other hand, is a process by which a court takes notice of a fact without
requiring any proof or evidence to be presented. The court will simply declare the fact to be true
based on its own knowledge or after conducting its own research or inquiry. Judicial notice may
be taken of facts that are generally known and accepted.
The distinction between expert evidence and judicial notice is important because the weight given
to each type of evidence may differ. Expert evidence is subject to examination and cross-
examination by the parties, and the court will assess the credibility and reliability of the expert and
their evidence. Judicial notice, on the other hand, is considered to be incontrovertible, and the
parties may not challenge the fact that is subject to judicial notice.
In summary, the key difference between expert evidence and judicial notice is that expert evidence
is presented by a witness and subject to examination and cross-examination, while judicial notice
is a fact that is considered by the court without requiring any proof or evidence to be presented.

Examine the attempts made by some writers to define Evidence.

Evidence can be defined as the information, facts, or materials presented to a court or other tribunal
to establish the existence or non-existence of a disputed fact or issue. The definition of evidence
has been the subject of much discussion and debate among legal scholars and practitioners.
Some writers have attempted to define evidence in various ways, including:
1. The Oxford English Dictionary defines evidence as "that which furnishes proof or
conviction; something which tends to prove or disprove something; testimony; proof." This

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definition highlights the idea that evidence is something that provides proof or
confirmation of a fact or issue.
2. According to Sir Rupert Cross, a prominent legal scholar, evidence can be defined as "any
fact or statement or document or thing which tends to prove or disprove any matter in
issue." This definition emphasizes that evidence can take various forms and includes
anything that tends to prove or disprove a fact in dispute.
3. John Henry Wigmore, another influential legal scholar, defined evidence as "any species
of proof, or probative matter, legally presented at the trial of an issue, by the act of the
parties and through the medium of witnesses, records, documents, exhibits, concrete
objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their
contention". This definition emphasizes the types of materials that can be presented as
evidence and the purpose of evidence as being to persuade the court or jury of a particular
contention.
Overall, these definitions share the common theme that evidence is information or materials
presented to a court or tribunal to establish or challenge the existence of a disputed fact or issue.
However, the specific definition of evidence may vary depending on the context and jurisdiction
in which it is used.

what is the difference, if any, between accepting evidence from an expert witness and taking
judicial notice of a fact after inquiry?
The difference between accepting evidence from an expert witness and taking judicial notice of a
fact after inquiry is that expert evidence is a form of direct evidence presented by a witness, while
judicial notice is a form of indirect evidence that is considered by the court without the need for a
witness.
Expert evidence is typically presented by a witness who has specialized knowledge or expertise in
a particular area and is called upon to give their opinion on a matter that falls within their area of
expertise. The expert may be asked to explain complex technical or scientific concepts, offer an
interpretation of the evidence, or provide an opinion on the credibility or reliability of evidence
presented in the case. The court will consider the expert's evidence along with all other evidence
presented in the case and make a determination based on the totality of the evidence.
Judicial notice, on the other hand, is a process by which a court takes notice of a fact without
requiring any proof or evidence to be presented. The court will simply declare the fact to be true
based on its own knowledge or after conducting its own research or inquiry. Judicial notice may
be taken of facts that are generally known and accepted.
The distinction between expert evidence and judicial notice is important because the weight given
to each type of evidence may differ. Expert evidence is subject to examination and cross-
examination by the parties, and the court will assess the credibility and reliability of the expert and
their evidence. Judicial notice, on the other hand, is considered to be incontrovertible, and the
parties may not challenge the fact that is subject to judicial notice.
In summary, the key difference between expert evidence and judicial notice is that expert evidence
is presented by a witness and subject to examination and cross-examination, while judicial notice
is a fact that is considered by the court without requiring any proof or evidence to be presented.

What exceptions should there be to "without prejudice" privilege?

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The "without prejudice" privilege is a legal rule that protects parties in a dispute from having their
settlement negotiations used against them in court. This rule allows parties to negotiate freely
without fear that their statements and concessions made during negotiations will be used against
them in court if the negotiations fail to result in a settlement.
However, there are certain exceptions to the "without prejudice" privilege that may apply in certain
circumstances. Some of the exceptions to the "without prejudice" privilege include:
1. Fraud: If one of the parties engaged in fraudulent behavior during settlement negotiations,
then the "without prejudice" privilege may not apply. For example, if a party made false
representations during negotiations, the court may allow evidence of those representations
to be introduced in court.
2. Waiver: If one of the parties waives the "without prejudice" privilege, then the other party
may be able to use evidence from the negotiations in court. For example, if a party refers
to the settlement negotiations in a public statement, they may have waived the privilege.
3. Estoppel: If one of the parties makes an admission during settlement negotiations that is
inconsistent with their position in court, the other party may be able to use that admission
to their advantage. For example, if a party admits liability during settlement negotiations
but later denies liability in court, the other party may be able to introduce evidence of the
admission.
4. Public policy: In rare circumstances, the court may determine that public policy
considerations outweigh the "without prejudice" privilege. For example, if a party makes
a threat of violence during settlement negotiations, the court may allow evidence of that
threat to be introduced in court.
It's important to note that the exceptions to the "without prejudice" privilege are applied narrowly
and on a case-by-case basis. The purpose of the "without prejudice" privilege is to encourage
parties to negotiate and settle disputes outside of court, and exceptions to the privilege are only
allowed in limited circumstances where public policy considerations or unfair behaviour justify
allowing evidence from settlement negotiations to be introduced in court.

What is the justification for the rule that a party to civil proceedings should not be compelled
to answer questions about what was said during negotiations held with the other party to the
proceedings and designed to settle their dispute?
The justification for the rule that a party to civil proceedings should not be compelled to answer
questions about what was said during negotiations held with the other party to the proceedings and
designed to settle their dispute is to encourage parties to negotiate and settle their disputes without
fear that their statements and concessions made during negotiations will be used against them in
court if the negotiations fail to result in a settlement.
This rule is based on the public policy of promoting settlement of disputes and avoiding
unnecessary litigation. If parties are allowed to negotiate freely without fear that their statements
and concessions made during negotiations will be used against them in court, they are more likely
to reach a settlement that is mutually acceptable and beneficial.
The rule is known as the "without prejudice" rule, and it allows parties to speak freely during
settlement negotiations, without worrying that their statements may be used against them later.
This promotes a more honest and open negotiation process, which in turn increases the likelihood
of reaching a settlement that is acceptable to both parties.

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The inspection of material objects outside the court includes a visit to the scene of the crime-
locus in quo and the procedure to be followed during such visit was laid down by the West
African Court of Appeal in R.vs. Dogbe. Analyze the procedure to be followed at the locus
in quo and the consequences of failure to follow it.
In R. vs. Dogbe, the West African Court of Appeal laid down a procedure to be followed during a
visit to the scene of the crime, also known as the locus in quo. The procedure includes the following
steps:
1. The visit must be made by the judge, the prosecution, the defense, and any necessary
witnesses.
2. The visit must be made in daylight hours.
3. The visit must be made as soon as possible after the alleged offense was committed, and
before any significant changes are made to the scene.
4. The visit must be made with a view to identifying and examining any physical objects or
features of the scene that may be relevant to the case.
5. The parties must be given an opportunity to point out any relevant features or objects.
6. The proceedings during the visit must be recorded by a court official, and any relevant
observations or discoveries must be included in the court record.
7. The judge must ensure that the visit does not unduly prejudice the case of either party.
If these steps are not followed, the consequences can be significant. Failure to follow the procedure
may lead to challenges to the admissibility or weight of evidence gathered during the visit. The
court may also be criticized for conducting an unfair or incomplete investigation of the scene,
which could affect the overall integrity of the trial.
Additionally, the failure to follow the procedure could also result in the loss of important evidence
or the inability to locate and examine significant objects or features of the scene. This could be
particularly problematic if changes are made to the scene after the visit, as it may become
impossible to accurately recreate the conditions at the time of the alleged offense.
Overall, the procedure laid down by the West African Court of Appeal in R. vs. Dogbe is designed
to ensure that the visit to the locus in quo is conducted in a fair and thorough manner, with due
regard for the interests of both parties. Failure to follow the procedure may have serious
consequences, and it is important for judges, prosecutors, and defense attorneys to take the
necessary steps to ensure that the procedure is followed correctly.

Olufosoye vs. Olorunfemi (1989) INWLR (Pt. 95) 26

The case concerned a dispute over a piece of land located at Gbagada in Lagos State. The appellant,
Olufosoye, claimed ownership of the land, while the respondent, Olorunfemi, also claimed
ownership. The case was initially heard by the Lagos High Court, which ruled in favor of the
respondent. The appellant then appealed the decision at the Court of Appeal.
One of the key evidential issues in the case was the admissibility of certain documents as evidence.
The appellant sought to rely on a survey plan, a receipt for payment of land use charge, and a letter
from the Lagos State Government, as evidence of his ownership of the land. The respondent
objected to the admissibility of these documents on the grounds that they were hearsay and not
properly authenticated.

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The Court of Appeal upheld the objection raised by the respondent, ruling that the documents were
inadmissible as evidence. The court held that the survey plan was not certified by the Surveyor-
General of Lagos State, and therefore could not be relied upon. The court also held that the receipt
for payment of land use charge was hearsay and lacked proper authentication. Finally, the court
held that the letter from the Lagos State Government was also hearsay and lacked proper
authentication.
Another evidential issue in the case was the weight to be attached to the oral testimony of
witnesses. The court held that the trial judge had properly evaluated the testimony of the witnesses
and had come to a reasonable conclusion based on the evidence before him. The Court of Appeal
therefore declined to interfere with the findings of the trial judge on this issue.
In conclusion, Olufosoye vs. Olorunfemi is an important case that highlights the importance of
proper authentication and admissibility of evidence in civil proceedings. It also underscores the
need for a thorough evaluation of oral testimony and other evidence in order to arrive at a just and
fair decision.

Harris vs. D. P.P (1952) AC 708

The case concerned the prosecution of Harris for the murder of a police officer during a robbery
in London. The evidence against Harris was largely circumstantial, and the main issue in the case
was the admissibility of certain statements made by Harris to a police officer after his arrest.
Harris had initially denied any involvement in the robbery and murder, but later made a series of
statements to a police officer in which he admitted to being present at the scene of the crime, but
denied having any role in the murder. The prosecution sought to rely on these statements as
evidence against Harris at trial.
The defense argued that the statements were inadmissible as they had been obtained by oppressive
and unfair means, and that Harris had not been properly cautioned before making them. The
defense also argued that the statements were not voluntary, as Harris had been under the influence
of drugs at the time of his arrest and had not fully understood the implications of making the
statements.
The House of Lords rejected these arguments and held that the statements were admissible as
evidence against Harris. The court held that the statements had been properly obtained and that
Harris had been properly cautioned before making them. The court also held that Harris had made
the statements voluntarily, despite being under the influence of drugs.
The court further held that the trial judge had properly directed the jury on the weight to be attached
to the statements, and that the jury had been entitled to consider them as evidence against Harris.
Ultimately, Harris was found guilty of the murder and sentenced to death.
In conclusion, Harris vs. D.P.P is an important case that illustrates the admissibility of statements
made by a suspect during an investigation, even in cases where the evidence against them is largely
circumstantial. The case also highlights the importance of proper cautioning and fair treatment of
suspects during police interrogations, and the need for a thorough evaluation of the evidence before
arriving at a just and fair decision.

Elimare vs. Emhonyon (1985) INWLR (Pt. 95)177

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The case concerned a dispute over land ownership between Elimare and Emhonyon. Elimare
claimed that he had purchased the land from its previous owner, while Emhonyon claimed that he
had inherited the land from his father.
The main issue in the case was the admissibility of certain oral evidence that had been presented
by both parties to support their claims of ownership. Elimare had presented several witnesses who
testified that he had purchased the land from its previous owner, while Emhonyon had presented
witnesses who testified that his family had owned the land for several generations.
The court had to consider whether the oral evidence presented by both parties was admissible
under the Nigerian Evidence Act. The court held that the oral evidence presented by Elimare was
admissible, as it related to a transaction involving the sale of land, which was an exception to the
hearsay rule.
However, the court held that the oral evidence presented by Emhonyon was inadmissible, as it
related to a family tradition and did not fall within any of the exceptions to the hearsay rule. The
court noted that while family traditions can be admissible under certain circumstances, Emhonyon
had not provided sufficient evidence to prove the existence and continuity of the tradition.
The court ultimately found in favor of Elimare, holding that he had proved his claim of ownership
of the land through the admissible oral evidence presented by his witnesses. The court ordered
Emhonyon to vacate the land and pay damages to Elimare.
In conclusion, Elimare vs. Emhonyon is an important case that illustrates the application of the
hearsay rule and the exceptions to the rule in Nigerian law. The case also highlights the importance
of presenting admissible evidence in civil disputes, and the need for a thorough evaluation of the
evidence before arriving at a just and fair decision.

"Any party who is desirous of setting up res judicata by way of estoppel whether he is relying
on such res judicata as a bar to his opponent's claim or as the foundation of his own and who
has taken the preliminary steps required in order to qualify for that purpose must establish
all the constituent elements of an estoppel of this description". Do you agree?
Yes, I agree with the statement that any party who is seeking to rely on res judicata as an estoppel
must establish all the constituent elements of the estoppel. Res judicata is a legal principle that
prevents parties from re-litigating issues that have already been finally determined by a court of
competent jurisdiction. The principle is based on the idea that once a matter has been litigated and
decided, it should not be re-litigated again, as doing so would be unfair, a waste of resources, and
contrary to the public interest.
In order to establish res judicata as an estoppel, a party must show that:
1. The previous decision was made by a court of competent jurisdiction;
2. The previous decision was final and conclusive on the issue in question;
3. The parties in the current case are the same as, or privies to, the parties in the previous case;
4. The issue in the current case is the same as, or substantially the same as, the issue in the
previous case; and
5. The issue in the current case was actually decided in the previous case.
If any of these elements are missing, the party cannot establish res judicata as an estoppel.
Therefore, it is important for the party seeking to rely on res judicata to carefully analyze the
previous decision and ensure that all the necessary elements are present. If the party fails to
establish all the elements, the court may not apply res judicata as an estoppel, and the party may
be required to litigate the issue again.

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A party can admit evidence which consists of, among other things, everything said and done
during the incident or transaction that is the subject of the trial. The evidence if admitted
can be hearsay or non-hearsay.
Cockburn C.J. had held That a res gestae statement cannot be made after a transaction...it was also
opined that since the statement was made after the incident; it cannot amount to res gestae...".
Evaluate this decision in line with Ratten vs. R. (1972) A.C 378.
The decision of Cockburn C.J. in the case cited is in line with the traditional view that a res gestae
statement must be made contemporaneously with the transaction or incident it describes, in order
to be admissible as part of the res gestae. However, this traditional view has been subject to
criticism and has been gradually modified in modern times.
In Ratten v. R., the House of Lords held that the traditional view of res gestae is no longer tenable
and that the admissibility of evidence as part of the res gestae depends on the probative value of
the evidence in question. In that case, the House of Lords held that evidence of a complaint made
by the victim of a sexual assault some hours after the incident was admissible as part of the res
gestae, because the complaint was made in response to a question from a police officer, and was
therefore part of the transaction or incident.
The decision in Ratten v. R. suggests that the admissibility of evidence as part of the res gestae is
not dependent solely on contemporaneity, but on the probative value of the evidence in question.
The decision also suggests that the traditional view of res gestae is no longer tenable and that the
admissibility of evidence as part of the res gestae should be determined by a flexible approach,
based on the facts and circumstances of each case.
The foremost requirement for the applicability of res gestae is that the fact must be fulfilled in a
part of the "same transaction". The requirements must be fulfilled to conclude that the facts are a
part of the same transaction. With the aid of case law, state and explain the requirements.
The doctrine of res gestae, which is Latin for "things done", refers to a principle of evidence law
that allows for the admission of certain statements or actions that are part of the same transaction
as the issue being litigated, even if they would normally be considered hearsay. The basic
requirement for the application of the doctrine is that the statements or actions must be spontaneous
and contemporaneous with the event or transaction in question. However, there are several
additional requirements that must be met for the evidence to be admissible.
The first requirement is that the statements or actions must be closely connected in time and space
to the event in question. In other words, they must have occurred during the same sequence of
events as the event being litigated. This requirement ensures that the statements or actions are
relevant to the issue at hand and are not being introduced simply to confuse or mislead the court.
The second requirement is that the statements or actions must be made by a person who is a
participant in the event or transaction, rather than a mere bystander or spectator. This requirement
is based on the idea that the statements or actions of a participant are more likely to be reliable and
accurate than those of someone who is simply observing from a distance.
The third requirement is that the statements or actions must be made under circumstances that
indicate they are trustworthy and reliable. This may include the presence of physical or emotional
stress, excitement, or shock, which can indicate that the person is reacting instinctively and
honestly to the situation.
One case that illustrates the application of these requirements is Ratten v. R. (1972) A.C. 378. In
this case, the defendant was charged with assaulting a police officer during a riot. The prosecution

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sought to introduce evidence of statements made by the defendant's accomplice, who had been
arrested at the same time, that implicated the defendant in the assault. The defendant argued that
the statements were hearsay and therefore inadmissible.
The House of Lords held that the statements were admissible under the res gestae doctrine, as they
were made by a participant in the same transaction as the assault and were closely connected in
time and space to the event. The court also found that the statements were made under
circumstances that indicated they were trustworthy and reliable, as the accomplice was under
emotional stress and excitement at the time.
In conclusion, for evidence to be admissible under the res gestae doctrine, the statements or actions
must be closely connected in time and space to the event in question, made by a participant in the
event or transaction, and made under circumstances that indicate they are trustworthy and reliable.
The requirements serve to ensure that the evidence is relevant, reliable, and not being introduced
for an improper purpose.

"Estoppel is based on the principle that it would be most inequitable and unjust that if one
person, by manifestation, or by conduct amounting to representation, has induced another
to act on as he would not otherwise have done, a person who made such representation should
be enabled to refute or repudiate or disavowed the consequence of his preceding statement,
to the expense and injury of the person who acted on it". Do you agree?

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