EVIDENCE OF SIMILAR FACTS

Resolution of a fact in issue in any proceeding (civil or criminal) is done by the court by
going through the evidence adduced by the parties thereto. A similar fact (i.e. the evidence of
the improper conduct of a party on other occasion(s)) in this context, means a fact similar to
the fact in issue.
For example: That a man once burgled a neighbour’s house and was convicted of that
offence may be a well-known fact. The fact in issue in a court wherein the same man is being
prosecuted for a later burglary offence is whether he burgled the house of another neighbour
this time. If the prosecution merely calls in aid the earlier conviction of the accused for the
offence of burglary in order to prove its case against the accused person in the pending
charge, he would be resorting to similar fact evidence.
As a general rule, evidence of similar facts is inadmissible to prove a fact in issue and
this rule applies to both criminal and civil proceedings. (Simply because it is generally
irrelevant to the fact in issue. See section 1(b) Evidence Act 2011). It provides:
This section shall not enable any person to give evidence of a fact
which he is disentitled to prove by any provision of the law for the
time being in force.
This general rule is not provided for by the Evidence Act. The principles are mainly drawn
from the Common Law and the Evidence Act only contains one of the main exceptions.
In its application to criminal cases, this general rule was stated in Makin v. Attorney-
General for New South Wales (1894) AC 57 by Lord Herschell L. C. as follows:
“It is undoubtedly not competent for the prosecution to adduce
evidence tending to show that the accused person 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…..”
This statement of the law has since been approved by the House of Lords in many
cases. See R v. Ball (1911) AC 47; Thompson v. R (1918) AC 221; Harris v. DPP (1952)
AC 693; R v. Thomas (1958) 3 FSC 8.
The exclusion of similar facts evidence in criminal cases therefore relates mainly to its
use purposely to prove the guilt of the accused person.
Although the dictum of Lord Herschell L. C. as quoted in the above applies to criminal
cases, the principle of exclusion of similar facts evidence extends also to civil action. The
application of the rule in a civil case was illustrated by the case of Hodingham v. Head
(1858) 27 L.J.C.P 241. The issue in that case was whether the contract between the plaintiff
and the defendant was subject to certain terms. Evidence that similar contracts made by the
plaintiff with other parties were also subject to the same very special terms was held
inadmissible. Rationalizing the decision, it was stated that the fact that a man has once or
more, in his life, acted in a particular way does not make it probable that he so acted on a
given occasion. See also R v. Whitehead (1848) 3 C & K 202; Brown v. Lambeth
Corporation 32 T.L.R 61; Holcombe v. Hewton (1810) 3 Camp 391.
 Exceptions to the rule excluding similar facts evidence
The continuation of the dictum in Makin’s case (supra) states the exceptions thus:
“… 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.”
In other words, evidence of similar facts will be admissible if:
- It is relevant to an issue before the court;
- It is relevant for the determination of whether the acts constituting the offence
charged were designed or accidental;
- It is relevant for rebutting any defence which would otherwise be open to the
accused.
Apart from the exceptions incorporated in the dictum in Makin’s case, similar facts
evidence is also admissible under the Common Law where:
(1) the fact in issue and other facts similar to it have a common origin;
(2) where the fact in issue and other facts similar to it show a system or systematic
course of conduct by a person;
(3) where 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.

The above four exceptions will be considered individually.

Common Origin
In this type of case, the similar facts are generally similar acts done with respect to the
subject-matters which are different parts of a common whole. The logical basis on which
such evidence is admitted is the connection between the subject-matters. See Manchester
Brewery v. Coombs 82 L.T 347 @ 349. Here the question was whether a brewer sold good
beer to a publican. It was held that evidence of the fact that the brewer had sold good or bad
beer to other publican was admissible if all the supplies were from the same brewing. In
Winkinson v. Clarke (1916) 2 KB 363, the quality of milk delivered by a dairy-man to a
customer was in issue. Evidence of other delivery made to another customer was admissible
once the two deliveries were extracted from the same cows and at the same milking.
To show System
This use arises mostly in criminal cases and a single similar act is not admissible. See R
v. Bond (1906) 2 KB 389. A serial of almost identical incidents is required. If the earlier facts
by a person similar to the fact in issue were shown to be a system designed by him or a
systematic course of his conduct, then the facts in issue before the court would be most
probably part of the system or systematic cause of conduct. See R v. Smith (1915) 11 C. A. R
279. In that case, the accused was on trial for the murder of his wife. She was found dead in
her bath and that was shortly after he had insured the wife’s life in his favour. Previously, two
former wives of the accused had also died in similar circumstances, that is, in their baths after
he had insured the life of each in his favour. The contention of the accused was that the wife
died of epilepsy. To show that the death was part of a system devised by the accused with the
object of claiming insurance benefits after killing the wives, the prosecution was permitted to
give evidence of the two previous deaths and their circumstances.
In Makin v. Attorney-General, New South Wales (supra), a man and his wife were
charged with the murder of a child. They were charged with killing the child whom they had
adopted on payment of small premium by the child’s mother. The body of the child was
found buried in the garden of the accused persons and was in such condition that the cause of
death could not be ascertained. Evidence that the accused had received other infants from
their mothers on similar terms that had afterwards disappeared and that the bodies of
unidentified infants were found in the gardens of other houses occupied by the accused was
admitted to prove system.
In the later case of R v. Ball (supra), a brother and a sister had been sharing a bed and
had born a child together. But this was before the passing into law of a legislation outlawing
incest in the United Kingdom. The “couple” was still sharing the bed after the law had been
passed. Upon being charged for incest, therefore, evidence was adduced and properly held to
be so, of their “similar” acts of incest that resulted in the child being born before the coming
into force of the anti-incest legislation.
Proof of Identity
At times in criminal cases, the point in issue may be the identity of the accused as the
perpetrator of the crime. Where this is the case, the prosecution must establish that the
accused is the actual offender.
A particular crime may show by its very nature that only a person with some abnormal
propensity could have committed it. Where an accused charged with such a crime had
committed similar ones before, evidence of those similar offences will show in him the
requisite abnormal propensity and may therefore be admissible to show his identity as the
person responsible for the offence charged.
Note that for similar facts evidence to be admissible in this type of cases, abnormal
propensity (to commit the sort of offence the accused is charged with) is a very necessary
pre-requisite. In R v. Straffen (1952) 2 QB 911, the deceased was strangled to death for no
apparent reason. She was not interfered with sexually and no steps were taken to hide the
body. The issue at the trial was whether the accused was the murderer. To identify him as
such, evidence was admitted that he had previously killed two other little girls in the same
manner. See also Twomey v. R (1971) CR.L.R 277.
Action for damages by domestic animals
In an action in tort for damages caused by a domestic animal which is not vicious or
dangerous by its nature, evidence of past damages by the animal to the knowledge of its
keeper is relevant. Therefore, in order to prove that certain sheep belonging to the plaintiff
was killed by the defendant’s dog, the fact that the same dog had killed another sheep
belonging to the plaintiff was held admissible – Lewis v. Jones 49 J. P. 198.

STATUTORY EXCEPTIONS
 These are contained in the Evidence Act. The main one is section 12 while the two
others are sections 35 & 36 of the Evidence Act 2011. 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 part of a series of similar occurrences, in
each of which the person doing the act was concerned, is relevant.”
Note that this provision applies to both criminal and civil cases. Section 12 is applicable
for the purpose of rebutting any of the defences implied in it i.e. defences to the effect that the
act or omission by the accused which constitutes the offence charged was accidental or
unintentional or done without (not done or made with) the requisite intent.
Note further that section 12 is a statutory version of an almost identical principle in the
English Common Law.
In any case where section 12 or the second part of the dictum applies, there is a
complete rebuttal of the defence put up by the accused. Accordingly, a single similar act is
admissible to rebut any of the defences. See R v. Evans (1950) C. A. R 72. In R. v. Francis
(1874) LR 2 C. C. R 128, the accused was charged with obtaining money by false pretences
that a worthless thing was valuable, evidence of earlier similar representation was allowed to
rebut the defence that he did not know the thing was worthless. See also R v. Mortimer
(1935) 25 C. A. R 150.
The last limb of the exceptions which says “to rebut any defence that will otherwise be
open to the accused is wider in its terms and is more often resorted to. This is shown by the
Nigerian cases decided before the coming into force of the Evidence Act and its section 12.
See the following cases:
R v. Adeniji & ors – 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
held that evidence of previous uttering of counterfeit coins by him was admissible in order to
prove guilty knowledge. See also Akerele v. The King (1940) 8 WACA 5; Thomas v. C. O. P
(1949) 12 WACA 490.
The appellant was charged with the offence of stealing among others. The case of prosecution
against the appellant was that he issued with books of “tote” tickets for sale to the public at a
race meeting. It was proved in evidence that he had removed a few tickets from the top
downwards serially. Evidence was given that on a former occasion on which tickets had been
entrusted to him for the same purpose, some had been found to have been removed from the
bottom of the books as in the present case. The appellant was found guilty and he appealed. It
was held on appeal that the piece of evidence stated was both relevant and admissible.
In Akerele v. The King (supra), the appellant, a medical doctor, was convicted of
manslaughter of a child in that he had knowingly administered over-dose or poisoned
injection on the child. The defence contended that the drug administered on the child was not
over-dose and that the child died because of its peculiar health conditions. To negate this
defence however, the prosecution tendered similar evidence concerning the symptoms, ill
health and death of other children attended to by the appellant using the same drug. It was
held by the Privy Council that this similar negative evidence adduced by the prosecution was
properly received in evidence.
 Note that the principle cannot be properly invoked where the accused has not raised any
of the specific defences for the rebuttal of which it is provided. See Wilson v. The Queen
(1959) 4 FSC 175.
In the same vein where the case of the accused is a complete denial of the charge,
similar fact evidence is inadmissible. See Bruima Al-Hassan v. C. O. P (1944) 10 WACA
238.
Note further that the similar acts of which evidence is admissible may be prior to or
subsequent to the one in issue but they must have occurred within a reasonable limit of time.
R v. Rhodes (1899) 1 Q. B 77.
Section 36 Evidence Act
In the case of a charge of receiving stolen property, the Evidence Act specially provides
for the admission of similar facts evidence in order to prove guilty knowledge. See Section 36
of the Evidence Act 2011. See also Okoroji v. State (2001) FWLR (Pt. 77) 871.
Section 35 Evidence Act
A form of similar fact evidence is enacted in section 35 Evidence Act. It is of frequent
application in land cases being also one of the five ways of proving title to land. Omonua v.
Okpere (1991) 5 NWLR (Pt 186).
The purport of the section is that acts of ownership exercised over a piece of land is also
evidence of ownership of another similar and connected piece of land in a commonly locality.
Therefore, if the ownership of the latter piece is in issue, acts of ownership exercised by the
owner of the former are admissible evidence of also his ownership of the latter. See
Okechukwu & Ors v. Okafor & Ors (1961) 1 All NLR 685.
Note particularly that the exceptions to the rule of exclusion of similar facts evidence
operate also in civil cases. See Mood Music Publishing Co. Ltd v. De Wolfe Ltd 32 T.L.R
413 – the claim was for infringement of copyright of a musical work. The defendants raised
as a defence, coincidental similarity between their work and that of the plaintiff. To rebut this
defence, the plaintiff tendered in evidence other recordings of the defendants which bore a
striking resemblance to another plaintiff’s work still in copyright and which the defendants
had reproduced without the consent of the plaintiff. The ruling of the trial judge admitting this
evidence was upheld on appeal to the Court of Appeal, England. See also Bebee v. Sales 32
T.L.R 412.
Note finally that the trial judge has discretion to disallow similar facts evidence if its
prejudicial effect against the accused outweighs the probative value of the evidence.