The Concept of Character Evidence Under the Evidence Act

If common sense were to be given free rein it would be proper to take the good or bad character of a party to a suit into consideration in deciding the question whether he is liable for civil wrong or guilty of an offence. An obvious example would be a case of murder in which the accused is a member of a dreaded notorious gang. But one of the objects of the law of evidence is to prevent common sense from having a free rein because there are cases in which to permit it might lead to an unjust result where a party is either unduly favoured or prejudiced. In order to guide against any of these results, special rules have been developed to regulate the extent to which evidence of character can be adduced in a trial.  

This paper examines the extent which evidence may be adduced on the character of a party in civil and criminal cases as entrenched in the Evidence Act 2011. It attempts to address issues such as: what is character evidence, in what circumstances is such evidence relevant? Does a trial judge have a discretionary power to admit or, disallow the adduction of character evidence? If yes, what is the extent of such a power? What is the obligation of a counsel and prosecution to guard against the adduction of character evidence? In our discussion of these issues, we shall focus as much as possible on Nigerian cases and statutory provisions in order to determine the law and practice on this subject in Nigeria.  

Character evidence is specie of evidence of previous misconduct. Whatever form the evidence takes, it is affected by exclusionary rules. However, care must be taken to distinguish between the rules that regulate the admissibility of character evidence and similar fact evidence and possibly also the rationale for their admissibility. It suffices to say that the provisions of sections 77-79 and section 82(1-)(d) of the Evidence Act mainly govern character evidence in Nigeria. The word “character” is used no less than fifteen times in these provisions. In Stirland v D.P.P.  Lord Simon L.C. said:  

“There is perhaps some vagueness in the use of the term ‘good character’ in this connection. Does it refer to the good reputation which a man may bear in his own circle, or does it refer to the man’s real disposition as distinct from what his friends and neighbour may think of him? “ 

Against the background of the above statement, it will be appropriate at this stage to consider the meaning of “character” within the provisions of the Act.  

The Meaning of Character

 In the ordinary language, “character” means general reputation as distinct from disposition which refers to tendency to act, think or feel in a particular way.  It may mean evidence regarding someone’s general personality traits or propensities, of a praise worthy or blameworthy nature, evidence of a person’s moral standing in a community. The Evidence Act 2011, in section 77 defines character as, reputation as distinguished from disposition. It provides that: In Section 77-82 the expression “character” means reputation as distinguished from disposition, and except as mentioned in those sections, evidence may be given only of general reputation, and not of particular acts by which reputation or disposition is shown. In the old English case of R v Rowton, Cockburn CJ said; 

Now, in determining this point, it is necessary to consider what the meaning of evidence of character is. Does it mean evidence of general reputation or evidence of disposition? I am of opinion that it means evidence of general reputation. What you want to get at is the tendency and disposition of the man’s mind towards committing or abstaining from committing the class of crime with which he stands charged; but no one has ever heard the question, what is the tendency and disposition of the prisoner’s mind?, put directly. The only way of getting at it is by giving evidence of his general character founded on his general reputation in the neighbourhood in which he lives. That, in my opinion, is the sense in which the word ‘character’ is to be taken, when evidence of character is spoken of. The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried.

A person who has the tendency to act in a good way on certain occasions may be reputed to be a person of bad character.  There had been a controversy in England on whether the word “character” as used in section 1 (1) of the Criminal Evidence Act, 1898 includes disposition or specific instances of good or bad behaviour. 

In Jones v. D.P.P., Lord Denning took Lord Hewart’s view that it is too late to argue that ‘character’ as used in the Act means reputation’ and nothing else, but Lord Devlin expressed the opinion that that was the meaning intended by the draftsman of the statute. 

It is however now settled since the decision of the House of Lords in Selvey v. D.P.P. that ‘character’ when used in the English Criminal Evidence Act of 1898 means both reputation and disposition. 

 The Nigerian Evidence Act however makes a distinction between reputation and disposition. This definition and principle are underlined in section 77, which provides that:  In section 78 to 87 the word “character” means reputation as distinguished from disposition, and except as previously mentioned in those sections, evidence may be given only of general reputation and not of particular acts by which reputation and disposition is shown.

There would have been fundamental divergences between our law and the English law and of course the relevance of English cases on this subject in Nigeria if not for the above underlined words in section 77. There are specific provisions in our Evidence Act, which permit evidence of disposition or particular acts to be given even when they do not technically amount to evidence of character.

Therefore evidence of both reputation and disposition can be adduced wherever they are declared to be relevant under the Act.  On the contrary, evidence of bad character under the Act is given a wider definition to include previous conviction. Section 82(4) of the Evidence Act provides that “whenever admissible of bad character is relevant evidence of a previous conviction is also admissible. When a witness is asked about the character of a party with regard to certain matters, it must be made plain to him that he is being asked what he knows about that person’s reputation and not his opinion concerning his character.In R v Rowton, Rowton was charged with an indecent assault upon a man. He called a witness to speak about his good moral character. In reply to a question concerning Rowton’s character for decency and morality of conduct, the witness said:  I know nothing of the neighbourhood’s opinion because I was only a boy at school when I knew him, but my own opinion and that of my brothers who were also pupils of his, is that his character is that of a man capable of the grossest indecency and the most flagrant immorality.  Rowton was convicted, but his conviction was quashed on appeal on the ground that the witness was not competent to speak on the character of the accused person. 

Purposes of Character Evidence

  “Character evidence” may be employed for two purposes. First, to impeach the witness’s credibility. This does not-directly touch upon the issues that are directly relevant to the case. It serves only as a means of persuading the court that the evidence of the impeached witness is unreliable in so far as it might bear upon the issue. Impeachment of this kind is governed by the provisions of the Evidence Act on cross-examination and is therefore strictly speaking out of the scope of character evidence. Second, “character evidence” may be employed for substantive purposes. Here, evidence of character is used to prove “substantive facts, which are in issue.” Sections 77-82 and section 220 of the Evidence Act govern such use of character evidence.  

Consequently, since the rules governing character evidence depend upon the particular purpose for which it is being employed, a distinction should always be drawn between the substantive and credibility purposes. While easy to articulate in theory, this distinction occasionally becomes difficult for many students, legal practitioners and judges to make in practice. Younger succinctly stated the significance of drawing the distinction thus:  In all likelihood, your mastery of character evidence will reflect the extent to which you are able to keep its substantive and credibility component analytically distinct”. Regrettably, writers in Nigeria have not expressed this distinction between the substantive and credibility objectives of character evidence clearly. Rather, the distinction seems to have been confused. For instance, while distinguishing between the rationale for the admissibility of character evidence and similar fact evidence a distinguished writer, has this to say:  In criminal cases for example, except where other specific provisions are made similar fact evidence may be used by the prosecution to establish guilt of the accused, character evidence is essentially directed at bolstering or destroying the credibility of witnesses. It shall soon become clear that as a rule any (character) evidence for the purpose of impeaching credibility is relevant and admissible if it relates to a witness but character evidence relating to substantive issue is affected by the exclusionary rules as enacted in the Evidence Act.  We now turn to the consideration of the question. When is character evidence admissible in Nigeria under the Evidence Act? This question will be discuss separately under civil and criminal trials.