HEARSAY EVIDENCE BY: ADENIREGUN MICHAEL

ABSTRACT

The law of evidence forms the basis upon which facts are proved and disproved. The purpose of this paper is to justify how hearsay evidence can be admissible in any judicial proceeding. The interesting fact about evidence is that a person who comes to court to testify must ‘in fact’ be aware of the fact and such evidence must be direct. Remember that, oral evidence shall in all cases and in whatever circumstances be direct –See Section 126 of the Evidence Act 2011(hereinafter referred to as the Act), if it refers to;

1. A fact which could be seen, must be the evidence of a witness who says he saw that fact;
2. A fact which could be heard, it must be the evidence of a witness who says he heard the fact;
3. A fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
4. If it refers to an opinion or to the ground in that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

However, it is impracticable that a person who is to give evidence may in all circumstances be present and capable of giving such evidence. If the author is dead or cannot be found, or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable, then such evidence can be given by another person and admitted in Court. This is called ‘Hearsay Evidence’. MEANING OF HEARSAY EVIDENCE:(Sections 37 and 38of the Act).
For instance, suppose an investigating police Officer (IPO) is investigating a case of stealing (theft) against X; Y said to him, I saw X running away with the bag in question. Such a “valuable” narration by the IPO is however, hearsay. Hearsay evidence is generally inadmissible(1). Simply put that hearsay evidence is evidence based on what has been reported to a witness by others rather than what he or she has observed or experienced. What a witness says he heard from another person is inadmissible for many reasons. For example, he may not have understood the informant/interpreter, or he may say things that were never said. In Eze V. Obiefuna(2), it was stated that a piece of evidence that is hearsay is unreliable and should be rejected by the Court. In addendum, FRN V. Usman(3) held that hearsay evidence is secondary evidence known as second-handevidence. Note that hearsay statement is admissible when the objector the evidence is to establish not the truth of the statement but the fact that it was made, See JAMB V.Orji(4). As stated in the closing paragraph of the previous sub-heading,it maybe impracticable to call the person to give evidence directly in court in some circumstances. It will be necessary to discuss how a reported statement may become admissible in Court.

EXCEPTIONS TO HEARSAY RULE:(Sections 40 to 50 of the Act) Over the years, many exceptions have sprung up against the hearsay rule. Most of these exceptions have been created by statues while others are creations of the courts. The reason for this is that the truth of the facts asserted in an oral statement or in a document made by a person maybe established by getting another person as a witness to repeat that statement or to tender that document. At this point, it is necessary to discuss some exceptions to the hearsay rule. SECTION 39 of the Act makes a covering provision touching on admissibility of statements of persons who cannot be called as witnesses. During the course of this paper, reference would be made to the category of persons in the section; Statements of facts in issue or relevant facts made by a person:

1. Who is dead;
2. Who cannot be found
3. Who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under Section 40 to 50 of the Act.

STATEMENTS RELATING TO CAUSE OF DEATH: (READ Section 40 of the Act).
Under this section, statement made by a deceased person as to the cause of his death or as to any of the circumstances or transactions which resulted in his death are relevant, provided at the time of making it, he believed himself to be in danger of approaching death though he entertained hopes of recovery. This is commonly known as dying declaration.
The following conditions must be satisfied:

1. The declaration must be of relevant facts;
2. The declarant must have died before such evidence can be given.
3. The declaration must relate to the cause of death or circumstances and the death of the declaration must be in question/issue;
4. A declaration is only relevant in trials for murder or manslaughter of the declarant;
5. The declarant must believe himself to be in danger of approaching death although he may have entertained at the time of making the declaration hopes of recovery.

In Akpan V. State(5), the statement of the deceased that “Sunday has killed me” was held admissible as a dying declaration. SEE also Peter V. State(6), (READ the case of Hausa V. State(7). In R V. John Ogbuewu where the deceased while in pains and very weak was asked by a police constable a day after his injury whether he thought he was going to die and he replied:”I don’t know whether I am going to die”. Thereafter, the deceased made a statement as to the cause of injury. It was held that it was inadmissible as a dying declaration as there was no proof that the deceased when making the statement believe him to be in danger of approaching death.

STATEMENTS MADE IN THE COURSE OF BUSINESS:(READ Section 41 of the Act).Subject to Section 39 Of The Act, this section relates to statements made in the ordinary course of business whether in a document or electronic device provided that such statement must have been contemporaneously and in the opinion of the court the transaction (e.g. robbery or contract of sale of goods) that led to the statement is still fresh in the memory of the maker. For instance, the statement may be a police report as to the investigation of a crime scene or a confessional statement. The best illustration to understand this section perfectly is the case of R V. Lawani(8), where the court held that entries made in a Police Accident Report Book by a police officer who was already dead at the time of the trial was admissible under this section as it was made by the deceased in the professional course of his duties, which were also within his knowledge. Note that he may not have been the person who investigated the crime but he must have recorded and signed the document, which must however be within his personal knowledge.
The following conditions must be satisfied:

1. The declaration is relevant;
2. The declarant must have been in the situation listed under section 39 of the Act (although he maybe alive) before such evidence is given;
3. The statement must have been made in the ordinary course of business provided it was made contemporaneously with the occurrence of the transaction that led to the statement;
4. Such transaction that led to the statement must have been done by him or by a third party provided he recorded and signed the document himself, which must however be within his personal knowledge.

STATEMENT AGAINST INTEREST OF MAKER WITH SPECIAL KNOWLEDGE:(READ Section 42 of the Act).
This section provides for admissibility of declarations made (subject to the conditions in section 39) against interests of the maker provided that the following conditions are satisfied:

• The maker must have peculiar means of knowing the facts stated as at the time he made the statement. Tucker V. OldBury(9)
• The statement must be against the pecuniary or proprietary interest of the maker- A pecuniary interest is related to monetary interest of the maker. The best illustration to understand admissibility against pecuniary interest is the case of Taylor V. Witham(10) where the deceased made entries in his day book stating that he advanced a loan to someone and part payment had been repaid by the person, leaving only the outstanding balance. The entries were admitted as the acknowledgment of receipt and repayment of part of the loan were declarations against the pecuniary interest of the deceased.

Declarations against the proprietary interest (interest in property) are statements that are injurious to the interest of the property of the maker. The case of Obawole V Williams(11) was a land dispute. the supreme court in that case, admitted that the evidence of payment of rent to the ancestors of the defendants as a declaration against the proprietary interest of the Plaintiff’s progenitor through whom they claimed title. See also Sly V. Sly(12).

1. The declarant must have no interest to misrepresent the matter upon which the declaration was made. The law is straight here, that the statement will be taken as proved immediately it is established that the maker had peculiar knowledge about the matter and such is against this pecuniary and proprietary interest. However, in my own opinion I think this condition is far-fetched and should be open for debate.
2. If the statement is true, it would expose the maker to either criminal or civil liability.

STATEMENTS OF OPINIONS AS TO PUBLIC RIGHT OR CUSTOM AND MATTERS OF GENERAL INTEREST:(READ Section 43 of the Act). Conditions to be satisfied:

1. The statement must be an opinion of public right, custom or general matters (oral or documentary).
2. The declarant must possess some level of knowledge about such matter.
3. The maker must have been aware of the public right or custom.
4. The declaration must have been made before the commencement of any suit or controversy.

STATEMENTS RELATING TO THE EXISTENCE OF A RELATIONSHIP: (READ Section 44 of the Act)
A statement made by a person who is related by blood and who has special knowledge of the relationship between persons whether by blood, marriage or adoption as touching on such relationship is admissible provided the pedigree between the parties must be in issue but notrelevant. Pedigree according to the Black’s Law Dictionary, 5th edition means: lineage, descent, and succession of families, line of ancestors from which a person descends genealogy. Under this section, for example, a closed neighbor of the deceased (both husband and wife) cannot give evidence in this instance as to the pedigree of the deceased child even if he had peculiar knowledge because he is not related by blood.
Conditions to be satisfied:

1. The maker must have been related (e.g. by blood or marriage) to the person to whom the statement refers.
2. The case in which the statement is sought must be one in which the relationship (i.e. Pedigree) is in issue.
3. The statement is inadmissible if it is designed to serve the maker’s own interest.

DECLARATIONS BY TESTATORS:(READ Section 45 of the Act)
A declaration, written or oral made by a testator either before or after the execution of his (or her) Will is, in the event of its loss, admissible as secondary evidence of its contents. Conditions to be satisfied:

1. The witness must have heard the deceased say it or read the contents of the Will.
2. This can only be achieved where the Will is lost, its genuity is in question or a dispute as to which of the documents actually constitute the will of the testator.
3. Evidence of such declarations would still be relevant irrespective of the time it was made either before or after making or loss of the will. For example in the English case of Re Macgillivray, the court admitted the oral account of the daughter of a testator (deceased) who knew the content of his father’s Will.

EVIDENCE OF A WITNESS INFORMER PROCEEDINGS:(READ Section 46 of the Act)
This section provides that the court could dispense without the appearance of the maker of a statement provided the conditions stipulated by the section are satisfied. The conditions are:

1. That the proceedings in which the witness had earlier testified must have been between the same parties, as in the present proceedings or their representatives in interest.
2. The adverse party in the previous proceedings must have been given the opportunity to cross-examine the witness, whose statement/testimony in that previous proceeding is sought to be tendered in the present judicial proceeding. Although he may not exercise the right to cross-examine but he must have been given the opportunity, OkoroV.State.
3. Questions of fact in issue in the present proceedings must substantially be the same in the previous proceedings.

Note however, that a criminal trial or inquiry shall be deemed to be a judicial proceeding under this section.

QUICK QUESTION: Will the answer above be different if the first proceeding was set up by a disciplinary committee of a chamber in determination of such questions in the LASUSU Court?

STATEMENT MADE UNDER ANY CRIMINAL PROCEDURE LEGISLATION:(READ Sections 47 of the Evidence Act, 290, 291 and 319 of the Criminal Procedure Act (hereinafter referred to as CPA).
This section relates to deposition taken by a witness who cannot testify directly in court for any of the reasons specified in Section 39 of the Act and such statement must be in accordance with Sections 290 and 291 or 319 (dangerously ill or injured) of the CPA. Before the statement can be admissible in court, at the trial it must be proved either by a certificate signed by the magistrate before whom the deposition was taken or by the oath of a credible witness, that the deposition was taken in the presence of the accused and that the accused or a legal practitioner on his behalf had full opportunity of cross-examining the witness and such deposition was indeed signed by the magistrate before whom it was taken. For example, a material evidence of a sick person who cannot come to court directly will be admissible only if such statement was taken in the presence of the accused and the accused or his legal practitioner had full opportunity to cross-examine the person provided the intention to do same was reasonably communicated to the accused in advance.
Conditions to be satisfied:

1. The evidence must be material to the case at the trial.
2. The declarant must have been dangerously ill or seriously injured as at the time of the trial and as such cannot be called to give the evidence directly for any reasons specified in Section 39 of the Act.
3. The deposition of the witness must be taken in the presence of the accused.
4. The accused or his legal practitioner must have been given the full opportunity to cross-examine the witness.
5. There must be a signed certificate by the magistrate or by the oath of a credible witness and that such deposition was indeed signed by the magistrate to prove that the accused was indeed given the opportunity to cross-examine.
6. Such deposition can only be valid provided a reasonable notice of the intention was communicated to the accused in advance.

WRITTEN STATEMENTS OF THE INVESTIGATING POLICE OFFICERS: (READ Section 49 of the Act)
This section provides that the written and signed statement of an IPO whose non-attendance in court to tender the evidence directly falls under the reasons stipulated in Section 39, such evidence if tendered by another person will be admissible in court if;

1. The defence does not object to the admissibility of the statement at the point of tendering it unless the objection is unmeritorious. This is because once an objection is raised in any judicial proceeding; it is the right of the parties to address the grounds of the objection. However a judge can rule against an incompetent objection and still admit the statement. See Elabanjo V. Dawodu(13).
2. The court must consent to its admission of the statement. This is because at the stage of tendering the statement, what the court looks at isthe substance and merit in terms of relevance to the suit to decide whether to consent to its admission or not. This shows that admitting the non-attendance of the IPO to be reasonable does not automatically consents to the statement but must be meritorious.

ABSENCE OF PUBLIC OFFICERS:(READ SECTION 50OF THE ACT) According to this section, the non-accountability of the absence of a public officer as to his inability to be at a proceeding to testify personally or present a document which could be as evidence under any of the grounds stated in Section 39 of the Act would render such evidence inadmissible. However, such evidence will be admissible if the public officer is dead or cannot be found, or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable provided such reason must be communicated to the court either through a gazette, telegram, email or letter from the head of his department before his evidence can be admitted. The Supreme Court in UMOREN V. QUEEN overturned the decision of the trial that admitted the deposition of the Doctor who was not himself present to give evidence without reasonable account for his absence. (READ the case of IZIOGO V. QUEEN in law of evidence by Wigwe at page 129).
Conditions to be satisfied:

1. The declarant must be a public servant under the federal or state service.
2. This evidence can only be given by a public officer who is dead or cannot be found, or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable as provided in Section 39 of the Act.
3. The declarant must have tangible knowledge of thefact The declarant must account through his departmental head on the grounds for his non-attendance in court either by a public gazette (Federal or State as the case maybe) or Telegram, Email or Letter.

QUICKQUESTION:CananabsentInvestigatingPolicerOfficeralso rely on this section for his admissibility of his evidence without prejudice to Section 49?

CONCLUSION: Generally, hearsay evidence is irrelevant and therefore inadmissible. However, the court may admit, as exceptions to the rule as treated above. In this lecture, we have been able to treat more of the exceptions to the rule against hearsay as enumerated on Section 39 of the Evidence Act. In other words, all the above 10 hearsay rules i.e. from Sections 40 to 50 of the Act are only applicable to persons who are dead or cannot be found, or have become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable. These are not all the exceptions of hearsay rule but the purpose of this lecture was to treat rules subject to Section 39 of the Act.

REFERENCES

1. Section 38 of the Evidence Act
2. (1995) 6 NWLR (pt.404) 639
3. (2012) 8 NWLR (pt.1301) 141
4. (2001) 10 NWLR (pt.722) 742
5. (1967) NMLR 185
6. (1994) 5 NWLR (pt.342) 45
7. (1992) 1 NWLR (pt.219) 600
8. (1959) LLR 97
9. (1912) 2 KB 317
10. (1878) 3 Ch. D 605
11. (1996) 12 SCNJ
12. (1877) 2 P.B. 91
13. (2006) 15 NWLR (pt. 1001) 76

Evidence Act 2011 Black’s Law Dictionary 5thEdition Introduction to law of evidence in Nigeria by Chris C. Wigwe The Hearsay evidence under the Nigerian law: myth or reality by M. O. Akhigbe

DISCLAIMER: The above article is not a lecture note, but for elementary understanding of the subject matter. Readers are advised to consult other materials including textbooks for research and study purposes.

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