As a general rule, hearsay evidence is inadmissible under the common law, to establish any fact in court. Hearsay evidence refers to evidence or statement of a witness in court which is a repetition of what some other person had told him. See Section 38 of the Evidence Act which provides that: Hearsay evidence is not admissible except as provided in this part or by or under any other provision of this Act or any other Act.
Rationale for the Inadmissibility of Hearsay Evidence.
- The unreliability of the original maker of the statement, whose statement was neither on oath nor subjected to the process of cross-examination.
- The depreciation of the truth in process of repetition.
- It will lead to prolonged inquiry;
- It will lead to the substitution of weaker evidence for stronger evidence.
- It gives opportunity for fraud, misrepresentation and injustice.
See the case of Ijioffor V. The State, where the Supreme Court commenting on the operation and application of the hearsay rule stated that:
“By reasons of this rule, courts are enjoined and indeed under a duty not to accept and / or convict an accused person, upon testimony of witnesses who did not see, hear or had perceived by any other sense or in any other manner the facts given in their testimony at a criminal trial of an accused person…, or even in a civil case”. See the case of Spark V. R
In Ekpo V. State the Court of Appeal Calabar judicial Division held that:
“Hearsay is inadmissible and cannot form the basis of any judgment given by any court and it is immaterial whether the evidence was objected to or not by the other party.
Exceptions to Hearsay rule – Hearsay Evidence
The exceptions recognized under the Act are provided in Section 39 to 50 as follows:
- Statements by deceased persons
- Evidence of a witness in former proceedings;
- Statements made in special circumstances;
- Evidence of traditional communal history in land matters;
- Statements in public documents;
- Evidence admissible under Section 91 of the Act;
- Admissions and confessions;
- Statements admissible as Res Gestae
- Depositions in affidavit.
The practical implications of the exceptions is that, the truth of the facts asserted whether orally or in writing by a person may be established by someone other than the maker.
However, persons who cannot be called as witnesses and whose statements are relevant and admissible hearsay have been extended by Section 39 of the New Act to include:
- A person who is dead;
- A person who cannot be found;
- A person who has become incapable of giving evidence; and
- A person whose attendance cannot be secured without unreasonable delay being occasioned.