Hearsay Evidence

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.

  1. The unreliability of the original maker of the statement, whose statement was neither on oath nor subjected to the process of cross-examination.
  2. The depreciation of the truth in process of repetition.
  3. It will lead to prolonged inquiry;
  4. It will lead to the substitution of weaker evidence for stronger evidence.
  5. 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.

Hearsay rule exceptions

The exceptions recognized under the Act are provided in Section 39 to 50 as follows:

Statements by deceased persons, those who cannot be found or incapable to testify

The oral or written statement of a deceased, of a person who cannot be found or who is incapable of testifying or whose attendance cannot be procured without unreasonable delay, is admissible as one of the most important exceptions to the hearsay rule. where the statement of any such person is relevant and admissible, such a statement, must, inevitably, be proved by a living person. However, before such a statement is admitted in evidence, the death, unavailability, incapacity of the maker or that unreasonable delay will be occasioned before he can be found must be proved at the trial. This is a fundamental condition which cannot be waived since it is the fact of death, unavailability or incapacity of the maker which justifies the reception of such statements from a person other than the maker.

It is important to not that statements of the persons referred to above which may become relevant and ipso facto admissible, may be oral or written and where the statement is written, its content may be proved by any of the means of proving the content of a document.

Evidence of a witness in former proceedings

Section 46 of the Act makes evidence given in previous judicial proceedings relevant and admissible in certain cases stipulated by the section. For its aptness, the section is reproduced as follows:

“Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is admissible for the purposes of proving, in a subsequent judicial proceeding, or in later stage of the same judicial proceeding, the truth of the facts which is states, if:-

  • The witness is dead;
  • The witness cannot be found;
  • The witness is incapable of given evidence;
  • The witness is kept out of the way by adverse party;
  • The presence of the witness cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable.

Where a person employed in the public service of the Federation or a State is required to give evidence for any purpose connected with a judicial proceeding, it shall be sufficient to account for his non-attendance at the hearing of the said judicial proceedings if there is produced to the court, either federal Gazette, or a telegram or a letter purporting to emanate from the head of his department sufficiently explaining to the satisfaction of the court his apparent default.

Statements made in special circumstances

Under certain circumstances, statements made in certain documents are specially declared relevant and admissible by the Evidence Act notwithstanding the fact that the object of tendering them in evidence is to prove the truth of their content and the person who made the statements are not called as witnesses. To use these statements as evidence, they have to be tendered in court. As such, they constitute exceptions to the hearsay rule.

  • Entries in books of account
  • Entry in public record made in performance of duty
  • Statements in maps, charts and plans
  • Statements as to facts of public nature contained in acts or notifications,
  • certificates of specified Government Officers,
  • Written Statements of Investigating police officers.

For clarity, a brief examination of each of these statements and the conditions of their relevancy and admissibility will now be undertaken.

Statements in public documents

Statements contained in public documents, as a rule, are proved by the production of certified true copy of the document containing the statement. Indeed, it is arguably that the original copy is inadmissible. Besides, the law presumes the genuineness of the contents of every public and as such, the author of the statement is not called as a witness. This being the case, it is clear that when a statement contained in a public document is admitted in evidence, it is hearsay evidence which is in fact admitted.

Consequently, statements in public documents are exceptions to the hearsay rule. The general grounds for the admission of statements in public document have been articulated as follows:

  • That they have been made by authorized agents of the public in the course of the official duties;
  • That the facts recorded are of public interest and;
  • That it would not only be difficult but often impossible to prove facts of a public nature by means of actual witnesses examined on oath.

what is hearsay evidence

The rule against hearsay evidence has been well stated by many learned authors. according to Cross & Wilkins, “a statement, other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion stated”. Phipson puts the rule thus:

“Oral r written statements made by persons who are not parties and who are not called as witnesses are inadmissible to prove the truth of the matter stated.”

cross formulation is not materially different from the above formulations but for its clarity it may be noted as follows:

“Express or implied, assertion other than one made by a person while giving evidence in the proceedings is inadmissible as evidence of any fact asserted.

On the basis of this principle, in order to establish a fact in any judicial proceedings, reliance cannot be placed on the evidence of a witness who merely repeats in court what some other person had told him.

The rationale for the exclusion and inadmissibility of hearsay evidence is predicated on some well established facts which may be noted as follows:

  1. The unreliability of the original maker of the statement, whose statement was neither on oath nor subjected to the process of cross-examination.
  2. The depreciation of the truth in the process of repetition.
  3. It will lead to prolonged inquiry.
  4. It will lead to the substitution of weaker evidence for stronger evidence.
  5. It gives opportunity for fraud, misrepresentation and injustice.

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