THE HEARSAY RULE
The definition of hearsay is contained in S. 37 EA. There are two definitions of the word. First, ‘hearsay’ means a statement, whether oral or written, made otherwise than by a witness in a proceeding. Secondly, ‘hearsay’ means a statement contained or recorded in a book, document or any record whatever proof of which is not admissible under the Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
The general rule is that evidence must be proven by direct evidence. Hearsay evidence operates as an exception to this general rule. Hearsay may be defined as statements, oral or documentary, by a person who is not the original author of the statement. It can also be defined as when a witness repeats a statement made by someone else or tenders a document written by another person in order to prove the truth of the facts stated. See S. 37 EA.
As a general rule, hearsay evidence isn’t admissible. There are two main reasons why the law clearly excludes the admissibility of hearsay evidence. First, the author of the statement may deliberately falsify the facts or his powers of observation memory or narration may be defective to a certain extent, the oath administered in court and the cross-examination may reduce the inaccuracies engendered by these defects. Secondly, the demeanour or outward appearance or behaviour of a witness which may assist the court in forming an opinion as to the truth or otherwise of the oral testimony may not be easily observed.
In deciding whether a particular evidence is hearsay, there are two tests;
a. ascertaining the status of the person making the statement or tendering the documents. Is he the maker of the document or the percipient of the fact stated? If the answer is positive, then it is not hearsay. If negative, then it is hearsay.
b. to establish the purpose of the statement made or the document being tendered. If the purpose is just to establish the fact that it was made, then it is not hearsay. But if it is meant to establish the truth of the fact stated, then it is hearsay and therefore inadmissible.
In JAMB v Orji, some students were offered admission to study law but after the screening but within a year, they were asked to withdraw since they didn’t have Lit-in-English. The dean was called to give evidence. He claimed that some of the students had told him that the subject wasn’t a prerequisite to gaining admission. The dean’s statement was admitted at the trial court but on appeal, it was rejected as hearsay evidence. See also Ajiboye v The State.
Exceptions to Hearsay
1. Dying declaration:
A statement oral or written by a person who is dead may be admissible if the statement relates to the cause of death or circumstances leading to the death and where the deceased made the statement while on the verge of approaching death although he may entertain little hope of recovery.
First, the statement must be oral or documentary. Secondly, the author of the statement must have made the statement while on the verge of approaching death. Third, the statement was made with little or no hope of recovery. Fourth, he must have died before the statement can be offered in evidence. Fifth, the statement must relate to the cause of death or circumstances leading to the death of the author. See Akpan v The State, Achora v A-G., Bendel State, Aiworo v The State, Isiekwe v The State.
2. Course of business:
Statements made in the ordinary course of business in form of entry or memo in books kept in the ordinary course of business or in the discharge of professional duties is admissible.
3. Declaration against interest:
Where a declaration is against the financial or proprietary interest of a person making it, and the said person had peculiar means of knowing the matter and had no interest to misrepresent it, the court will admit it as exception to hearsay. See Re Perton. A person was said to have made a declaration that he was an illegitimate child, this was held to be a declaration against his pecuniary interest in the subject-matter.
4. Declaration as to public rights or custom:
The opinion of a deceased as to the existence of any public right or custom or matter of general or public interest will be admissible provided he will have been likely to be aware of the existence of such matter and that the statement was made before any controversy as to such right, custom or mater had arisen.
5. Declaration as to the existence of relationship:
This is where the statement relates to the existence of any relationship by blood, marriage or adoption when the person making the statement had special means of knowing the facts.
6. Declaration by testators:
Declaration by deceased testators are relevant when they relate to testamentary intentions or as to the content of their will. This may arise where the will is lost or where there is a question as to the content or whether or not the will is genuine.
The origin of this rule came out in Sugden v Lord St. Leonard. After his (the testator’s) death his will was missing but his daughter was able to recollect the contents of a most intricate document. The Court of Chancery accepted her evidence and granted probate, admitting into the probate a paper propounded as containing the provisions of the lost will. This decision established the proposition that the contents of a lost will, that can be proven to have existed, may be proved by secondary evidence, even of a single witness. The daughter submitted sworn testimony that Lord Saint Leonards was in the habit of reading his will every night, such that his daughter had to listen to it and over some years memorized it. This decision became a well-known fact and narrow precedent in legal circles, departing from provisions of the Wills Act 1837 which remained the principal legislation governing an area shaped by equity (law) and later by common law.
7. Statements made in previous proceedings:
Ordinarily, evidence given in previous proceedings should be considered hearsay but the court is permitted to admit evidence given in previous proceeding if the following conditions are met:
a. the witness in the previous proceedings is dead or can’t be found or is incapable of giving evidence
b. both the previous and present proceedings must be judicial in nature
c. the proceedings must be between the same parties or their representatives in interest.
d. the witness in the previous proceeding was cross-examined.
See the case of Sanyaolu v Coker and Bakare v Bello.
8. Affidavit evidence:
Affidavits are also forms of evidence. One may dispense with calling physical witness but depend on affidavits. A deponent can make use of facts outside its own knowledge. S. 115(1) EA. Permits a deponent to use facts either of his own personal knowledge or from information which he believes to be true. But where a person deposes to a fact and his belief is derived from any source other than his own personal knowledge, he must set out the facts and circumstances firming the ground of his belief. See. S. 115(3) EA. See the cases of Abiodun v The Chief Judge of Kwara State, Edu v Cawrrd, Orji v Zaria Industries Ltd.
9. Statements made in documents:This will be discussed later.