hearsay evidence and its exceptions

Hearsay evidence is any evidence, oral, written or otherwise made a person other than the particular witness tendering it before the court as proof of the facts it portrays or purports. That is, the witness through whom the statement is to be tendered is neither the maker, nor does he have any personal knowledge of what it says which he, the witness, wants the court to admit as proof of those facts. Section 37 of the Evidence Act, 2011.The main disqualifying factor is when it is tendered as proof of the fact by the person tendering it even though he has no personal knowledge of the fact therein. **Section 38 of the Evidence Act, 2011 **renders such evidence inadmissible, except where it falls under any one of the exceptions listed in S. 39 - 50 of the Evidence Act, 2011. JAMB V. ORJI (2008) 2 NWLR (Pt. 1072) 552; NBC V. UBANI (2009) 3 NWLR (Pt. 1129) 512; Aso Savings & Loans Plc V. Adamu (2017) HELAR ratio 1; Osinowo V Nigerian Navy (2019) HELAR ratio 2

Yes, the court is right to reject the testimony of such witness as it is based on hearsay. Hearsay evidence is generally not admissible. An evidence is hearsay where a witness seeks to establish the truth of a statement not made by him. Hearsay evidence is best described as second hand evidence. This is because the witness does not give testimony to a fact he profess to know, rather he gives testimony on the fact told him by another person. F.R.N V. Usman (2012) All FWLR (Pt. 632) 1652; Section 37 Evidence Act, 2011;Aso Savings & Loans Plc V. Adamu (2017) HELAR ratio 1; Osinowo V Nigerian Navy (2019) HELAR ratio 2; Olaiya V The State (2017) HELAR ratio 7

No, that is not always the case. Although hearsay evidence are generally not admissible, it is important nevertheless to note that to every generally rule exceptions may exist. Where the purpose of the hearsay testimony is to state as a matter of fact whether such testimony or statement was indeed made, and not to establish the truth of the statement, then such evidence will be admissible.

For instance, where ‘A’ testifies in court that a certain statement was made my ‘B’ (who himself is not a witness) and the purpose of ‘A’s’ testimony is not to determine whether the statement of ‘B’ is true or not, then ‘A’s’ testimony is not hear say and thus would be admissible.

Also statements made by a person who is dead, who cannot be found or incapable of giving evidence or whose attendance cannot be procured without unreasonable financial expenses are admissible and are not hearsay.

Section 39 – 50 Evidence Act, 2011; F.R.N V. Usman (2012) All FWLR (Pt. 632) 1652; Aso Savings & Loans Plc V. Adamu (2017) HELAR ratio 1

The attitude of the court is based on the premise that hearsay evidence as a second hand evidence cannot be subjected to cross-examination thus the truth of that statement cannot really be known. The court is a court of justice, it bases its decisions on proper evidence which had gone through the rigours of cross-examination. It evaluates same and arrives at a conclusion. This is not the case for hearsay evidence. What a witness says he heard from another person is unreliable for so many reasons. For instance, he may not properly understood the informant or interpreter or he may say things that were never said.

F.R.N V. Usman (2012) All FWLR (Pt. 632) 1652.

Whether the opposing party or his counsel objects or not to a hearsay evidence, the law makes it inadmissible, and so such evidence cannot be a basis upon which the court can rely to give judgment. Hearsay evidence is inadmissible unless it falls within the exceptions provided under the Evidence Act.

Sections 39-50 Evidence Act, 2011; Iwuoha V. Mobil Production (Nig) Unltd. (2013) All FWLR (Pt. 664) 153; Aso Savings & Loans Plc V. Adamu (2017) HELAR ratio 1; Osinowo V Nigerian Navy (2019) HELAR ratio 2

Absolutely. The court need not call counsel to address it where it intends to expunge hearsay evidence. As stated before, hearsay evidence are not good evidence the court can base its judgment on except it falls within the exceptions. The court is not bound or expected to invite counsel to address him before he expunges such evidence or attaches little or no weight to such evidence. Iwuoha V. Mobil Production (Nig) Unltd. (2013) All FWLR (Pt. 664) 153; Surakatu V. Adekunle (2019) HELAR ratio 4

Where a person in an affidavit deposes his belief in a matter of fact and such belief is derived from any source other than his own personal knowledge, such deposition will amount to hearsay where the deponent does not state clearly the fact and circumstances forming the basis for his belief. Where a deponent withholds the source of his information, such affidavit will be rejected as an inadmissible hearsay. Where a deponent holds a belief derived from another person, he must state the name of his informant.

A.C.N v. Nyako (2013) All FWLR (Pt. 686) 455.

No, where the content of a document is based on hearsay, such document is inadmissible in evidence except where the purpose of the testimony in regards to such document is not to establish the truth of the content contained in the document but only of the fact that document was actually made.

Furthermore, oral evidence of a document based on hearsay is not admissible. The fact that it is a document does not give it any special recognition.

Ojo V. Gharoro (2006) 10 NWLR (Pt. 987) 173 (at 203); ACB V. Apugo (1995) 6 NWLR (Pt. 399) 65 (at 85); Aso Savings & Loans Plc V. Adamu (2017) HELAR ratio 1; Osinowo V Nigerian Navy (2019) HELAR ratio 2

Yes. Registered/incorporated businesses are juristic persons who can only through natural persons (usually their officials). Such businesses are ordinarily expected to keep accurate records. Any servant or agent of such business can give evidence and tender documents to establish any transaction entered or activities undertaken by the business.

Anaja V. UBA Plc (2010) LPELR – 3769 (CA); UBA Plc V. Ezikpe (2017) All FWLR (Pt. 915) 1312 – 1313; Aso Savings & Loans Plc V. Adamu (2017) HELAR ratio 1

Where he gives evidence to establish the fact that a statement was made regarding what had transpired in the other office and not to establish the truth of the contents of the document, then it will not be improper and it will not amount to hearsay evidence. If however, the opposite is the case, then it will be highly improper and an invalid evidence.

A witness can only give evidence of business records of the business establishment he represents and not business records or evidence as to what transpired in a completely different office.

UBN Plc. V. Ezikpe (2017) All FWLR (Pt. 915) 1312-1314; Olaiya V The State (2017) HELAR ratio 7

Absolutely, this is one of the exceptions to the general rule that a hearsay evidence is an inadmissible evidence. A statement made by a person as to the cause of his death or as to the circumstance of the events which resulted in his death will be admissible as long as the cause of the persons death is in question even when the person who made the statement believed himself to be in danger of approaching death, notwithstanding that the deceased had entertained the hope of recovery when making the statement.

Basically where the cause of “A’s” death is an issue, the statement by “B” that he heard “A” say “C” is responsible for his death will be admissible as valid evidence in court.

Section 40 Evidence Act, 2011; Isiekwe V. State (1999) 9 NWLR (Pt. 617) 43 CA; Aso Savings & Loans Plc V. Adamu (2017) HELAR ratio 1

Although a dying declarations falls within exceptions of hearsay and inadmissible evidence, a declaration does not become admissible because it was made by the deceased at the moments of his death. For a dying declaration to be valid evidence and admissible, the following conditions must be present:

The declaration must be relevant facts;

The declarant must have died before evidence of the declaration is required to be given.

The declaration must relate to the cause of death of the declarant or as to any of the circumstances of the transaction which resulted in death and the cause of the declarant’s death must be in questions at the trial;

The declaration is relevant only in trials for murder or for manslaughter of the declarant;

The declarant must have believed himself to be in danger of approaching death (and the trial court must make specific finding that the deceased did in fact believed in the danger of approaching death when making the declaration).

Section 40 Evidence Act, 2011; Isiekwe V. State (1999) 9 NWLR (Pt. 617) 43 CA; Ujang V. The State (2017) HELAR ratio 6

Notwithstanding the nature of hearsay evidence and the fact that traditional history are oral narrations of events, such would nevertheless be valid evidence in proof of title to land as it is one of the exceptions to the hearsay rule. Where title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.

Section 66 Evidnece Act, 2011; Eno V. Ani (2004) 3 NWLR (Pt. 861) 610; Okwaraononi & Ors. V. Mbadugha & Ors. (2013) 6 – 7 (Pt. 111) M.J.S.C 26; Purification Technique (Nig) Ltd V. Jubril (2012) All FWLR (Pt. 642) 1683; SulemanV. Ukana(2019 ) HELAR ratio 3

Very valid. Where the will of a testator and his testamentary intentions are in dispute, the statements made by the deceased person stating his testamentary intention and the content of the Will is valid evidence and will be admissible. Where the Will is lost, or there is questions as to its content, or question as to whether the Will is genuine or properly obtained or question as to which of the existing document constitute the Will of the deceased, the statement made by a person that he heard the declaration of the deceased testator as to his testamentary intention and as to the content of his Will are admissible. This is another exception to the hearsay rule. It is not necessary whether the deceased made the declaration before or after the making or loss of the Will.

Section 45(1) Evidence Act, 2011.

Ordinarily, evidence in previous proceeding has no value in a subsequent proceeding. Even where the witness who testified in a previous proceeding testifies again in a subsequent proceeding, the previous evidence has no greater value than its use in cross-examination.

However, evidence of a witness in previous proceeding who was not called as a witness in the present case although ordinarily inadmissible as hearsay will nevertheless be admissible where it complies with the provision of the Evidence Act to wit:

That both proceedings where between the same parties and their representation.

That the adverse party in the first proceeding had the right and opportunity to cross-examine.

That the questions in issue in both proceedings are substantially the same.

Dada V. Bankole (2008) 5 NWLR (Pt. 1079) 26 (at 62); Owoyemi V. Adekoya (2003) 18 NWLR (Pt. 852) 307 (at 336); Section 46(1) Evidence Act, 2011.

Where the statement contained in a book or document is in fact hearsay, such would nevertheless be valid evidence if it falls within the exception provided by the Evidence Act. By Section 41 Evidence Act, 2011, a statement is admissible when made by a person in the ordinary course of business and when it consist of any recording made by him in a book or electronic device kept in the ordinary course of business and when discharging his professional duty etc as long as such statement was recorded at almost the same time with the transaction recorded or at a later time the court in its discretion considers likely that the transaction is still fresh in his memory.

Thus, the recordings contained in a book of a deceased police officer was held to be admissible in evidence against an accused person on the ground that it was made during the course of his professional duty.

Section 41 Evidence Act, 2011; R. V. Taoridi Lawani (1959) L.LR 97; Aso Savings & Loans Plc V. Adamu (2017) HELAR ratio 1; Edet V. THE STATE (2019) HELAR ratio 3

It will not be hearsay evidence where a person giving his testimony relies on the opinion of another person in proving the existence of public right, particular custom, public or general interest as long as if such existed, the maker would have been likely to be aware.

Section 43(1) Evidence Act, 2011.

Yes, where the statement as to the opinion of a person regarding the existence of any public right or custom or matter of public or general interest is made at the time or after the time any controversy as to the existence of such right, matter custom had arisen , then such statement will be inadmissible. The limitation revolves on what time the opinion of that other person later sought to be relied on was expressed.

Section 43(2) Evidence Act, 2011

Apart from the others already stated, the following will be admissible in evidence notwithstanding that they are hearsay:

Statement made by a person against his pecuniary interest especially where he has no interest to misrepresent the matter or where the statement, if true, would expose the maker to either criminal or civil liability.

Statement which relates to the existence of a relationship by blood, marriage or adoption between people made by a person having special means of such knowledge.

Sections42 and 44 Evidence Act, 2011.

The proper way to communicate same to the court is to send to the court any of the following: A federal gazette,

A telegram

An email

Or a letter purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the court the reason for his default.

Umoren V. The Queen (1963) N.S.C.C 293 SC; Section 50 Evidence Act, 2011.

No. The mere fact that a document is prepared or tendered by an expert does not mean that the court must accept and act on any or everything that it contains. The court has duty to consider the weight if any to be attached to any documentary evidence.

Elukpo & Sons Ltd. v. Federal Housing Authority (1991) 3 NWLR (Pt. 179) 322 (at 333).