Admissibility Of Illegally Obtained Evidence

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Under common law, illegally ob
tained evidence was admissible as evidence as long as it was relevant to the matters in issues before the court. In other words and not the manner (legal or illegal) in which the evidence was obtained was the hub of admissibility at common law. This position was expressed by Crompton J. in R V Leatham (1861) 8 Cox crim cases 498,501. The learned trail judge stated that “it matters not how you get it, if you steal it even, it would be admissible in evidence. The common law discretion was summarized by Lond Diplock in R V. Sang (1980) AC 402 as follows:
A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.
Nigeria courts, however, have followed the English judicial authority on the admissibility of illegally obtained evidence, until the enactment of the Evidence Act 2001. Before the 2011 Evidence Act, the law in Nigeria was that relevance to the fact in issue was the hub of admissibility and the manner in which the evidence as obtained was irrelevant to its admissibility. Such evidence was admissible even if the method of obtaining it was illegal. According to Coker J.S.C in Musa Sadau & Anor V. The state (1968) ANLR 125,129. There is no general rule of law in civil as well as on criminal cases that evidence which is relevant is excluded merely by the way  in which it has been obtained. This is subject in criminal cases to the discretion of the trial judge to set the essentials of justice above the technical rule, if the strict application of the latter would operate unfairly against the accused”. In other words the judge can, where the interest of justice demands it to exclude evidence which would otherwise be relevant considering the circumstances of its discovery and production. In Musa’s case (Supra) the accused was charged with illegal printing and selling of vehicle licences. Upon the execution of warrant at the house of the accused, a large quantity of forged documents where recovered. The court held that the incriminating evidence was relevant and admissible not withstanding the improper manner in which the search was conducted.