Similar Facts Evidence
Similar Facts evidence connotes proving a fact before the court by relying on past dealings of the defendant which are similar to the issue at hand. It is applicable to both criminal and civil proceedings.
As a general rule, Evidence of Similar Facts is not admissible in trial. However, this is subject to certain exceptions derived from common law and the Nigerian Evidence Act, 2011.
Similar fact evidence is one of the four exclusionary rules of evidence. Others include Hearsay, Character, and Opinion evidence. Most of the rules of similar facts are derived largely from common law, a major source in the Nigerian corpus juris.
Assuming Mr A stole a car belonging to Mrs B. Thereafter, A was arrested, charged and convicted for stealing punishable under Section 383 of the Nigerian Criminal Code1, as well as Section 286(1) of the Penal Code2. And on a later date, A is being prosecuted for the theft of C’s car. If the prosecution at trial, intends to adduce the previous criminal conduct of the accused for the purpose of concluding that he is guilty of the present charge, he will be resorting to Similar facts evidence.
Delivering the leading judgment in Nurudeen Adewale Arije V. Federal Republic Of Nigeria (2014) LPELR-CA/L/770/2009, Samuel Oseji, J.C.A., stated that, “… The whole essence of excluding evidence of an accused person’s previous disposition is premised on the principle that, if admitted, would be prejudicial to him in the actual trial he is currently facing.”
In the criminal case of Makin v. Attorney-General for New South Wales (1894) AC 57, Lord Herschell stated the general rule as follows:
“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. …”
Therefore in criminal cases, similar facts evidence is excluded from being used in proving the guilt of the accused person.
This statement has been given judicial credence in a plethora of cases, including the case of R v. Ball (1911) AC 47, Thompson v. R (1918) AC 221 and R v. Thomas (1958) 3 FSC 8.
The application of the inadmissibility of Evidence of Similar Facts in civil cases is seen in the case of Hodingham v. Head (1858) 27 L.J.C.P 241. The issue in this case was whether the contract between the plaintiff and defendant was subject to certain terms. Evidence showing that similar contracts entered by the plaintiff were subject to the same special terms were held inadmissible. See also Brown v. Lambeth Corporation 32 T.L.R 61; Holcombe v. Hewton (1810) 3 Camp 391.
In all, the general rule in Similar Facts Evidence is to the effect that the fact that a person acted or reacted in one way at one time, does not make it probable that he acted that way at another time. Therefore, similar facts are inadmissible in proving either the guilt of the accused or the wrong of the defendant.
Exceptions to the exclusion of Similar Facts Evidence
There are exceptions in both criminal and civil cases relating to the admissibility of evidence of similar facts. Some of these exceptions are derivable from the dictum of Lord Herschell in Markin’s case (supra).
The continuation of the dictum is as follows:
“… on the other hand, the mere fact that the evidence adduced tends to show the commission of other offences does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the offence charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be opened to the accused.”
As derivations of this dictum, similar facts evidence will be admissible if it is relevant to an issue before the court, to rebut a defence which would otherwise be opened to the accused, or it bears upon the question whether the acts alleged to constitute the offence charged in the indictment were designed or accidental.
Apart from the dictum of Lord Herschell, Similar facts evidence is admissible under the common law where:
(1) the fact in issue and other facts similar to it have a common origin;
(2) the fact in issue and other facts similar to it show a system or systematic course of conduct by a person;
(3) the fact in issue and other facts similar to it show identity of a person as one having abnormal propensity.
(4) Also in action for damages by domestic animals.
This exceptions shall now be considered individually.
1. Common Origin
Under this exception, similar facts evidence are admissible when the objects of evidence are derived from the same origin or process. This admissibility is based on the undeniable connection between the subject-matters.
In the case of Manchester Brewery v. Coombs 82 L.T 347 @ 349, the issue was whether the beer sold to the brewer by the publican was good. Evidence showing similar beer sold to other publicans was admissible, given that the supplies were from the same brewing.
Also, in Winkinson v. Clarke (1916) 2 KB 363, the quality of milk delivered by a dairy-man was in question. Evidence showing other deliveries made to another customer was admissible given the two deliveries were extracted from the same cows and at the same milking.
2. To Show System or Systemic Course of conduct
Similar facts evidence can also be admissible to show that the accused was engaged in actions that reveal a system. This usually arises in criminal actions. In showing a system, one criminal act done in the past by the accused is not enough. At least two former acts are needed to show a system with the present one.
In R v. Smith (1915) 11 C. A. R 279, a man was on trial for the murder of his wife. The woman was found died in her bath, shortly after the man insured her life in his favour. There have been two other past cases where the wives of the man had died after been life-insured in his favour. In showing that the accused was perpetrating a system of killing his wives for the claiming of insurance benefits after their deaths, evidence of the two former acts were allowed.
Also, in Makin v. Attorney-General, New South Wales (supra), a man and his wife were charged with the murder of their adopted child. The body of the child was found buried in the garden of the accused persons and was in such a state that the cause of death could not be ascertained. Evidence showing that other infants earlier adopted by the accused persons had also disappeared with bodies of unidentified infants found in the gardens of their former houses were held admissible to show system.
3. Prove of Identity
Evidence of Similar Facts may also be admissible when it is necessary to show that the accused is one with abnormal propensity needed for committing the offence charged.
In R v. Straffen (1952) 2 QB 911, the accused strangled the deceased to death for no apparent reason. There was no sexual assault and the body was no hidden. In determining whether the accused was the murderer, evidence showing two other girls previously killed by him in the same manner was held admissible to prove his identity as having abnormal propensity.
4. Action for damages by domestic animals
This relates to actions in Tort. In an action for damages by a domestic animal which is naturally not vicious or dangerous, evidence of past damages to the knowledge of its owner is relevant and admissible. In Lewis v. Jones 49 J. P. 198, the fact that a dog belonging to the plaintiff had killed the defendant’s sheep was held admissible to prove that other sheep of the defendant were killed by the plaintiff’s dog.
Statutory Exception to exclusion of Evidence of Similar Facts
Certain exceptions to the general rule excluding similar facts evidence in trials can be found in the Evidence Act, 2011.
1. Section 12 Evidence Act
The major exception is contained in Section 12, and others are in Sections 35 and 36.
Section 12 of the Evidence Act, 2011, provides:
“When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention or to rebut any defence that may otherwise be open to the defendant, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.”
This provision of the law is relevant to both criminal and civil cases. A major effect of Section 12 of the Evidence Act 2011 is that similar facts evidence is admissible to rebut any defence that may otherwise be opened to the accused.
Noticeably, this is similar to the dictum of Lord Herschell in Markin’s case (supra). This exception has therefore been in use in Nigeria, even before the enactment of the Evidence Act.
In R v. Adeniji & ors, the appellant was charged with being in possession of moulds for minting coins under Section 148(3)(c) of the then Criminal Code. The West Africa Court of Appeal (WACA) held that evidence of previous uttering of counterfeit coins by him was admissible in order to prove guilty knowledge.
2. Section 36 Evidence Act
Providing a similar exception, Section 36 of the Evidence Act, 2011, provides:
“(1) Whenever any person is being proceeded against for receiving any property, knowing it to have been stolen or for having in his possession stolen property, for the purpose of proving guilty knowledge there may be given in evidence at any stage of the proceeding –
a. the fact that other property stolen within the period of twelve months preceding the date of the offence charged was found or had been in his possession;
b. the fact that within the five years preceding the date of the offence charged he was convicted of any offence involving fraud or dishonesty.”
Therefore Similar facts evidence is admissible for proving guilty knowledge in cases of stolen property. See Okoroji v. State (2001) FWLR (Pt. 77) 871.
3. Section 35 Evidence Act
“Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”
This section provides that acts made in ownership of a land can be used to prove ownership of a similar or connected land. It is noted that this one of the ways of proving title to land highlighted in Omonua v. Okpere (1991) 5 NWLR (Pt 186).
Evidence of Similar Facts is one of the exclusionary rules of evidence. As a general rule, applicable to both criminal and civil cases, it is inadmissible. However, this is subject to certain exceptions seen in common law and statutory provisions. And finally, the court has the discretionary power to disallow similar facts evidence if the prejudicial effect against the accused outweighs the probative value of the evidence.
1Applicable in the Southern region of Nigeria
2Applicable in the Northern region of Nigeria
CREDIT: Lecture note by Mr Alayinde, Obafemi Awolowo University, Ile-Ife.