HEARSAY EVIDENCE

 HEARSAY EVIDENCE

Hearsay evidence is a repetition by a witness who is testifying in court of what some other person had told him in order to prove the truth of the facts stated.

Professor Cross defines “hearsay” as follows: “An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.”

Generally, hearsay evidence is inadmissible to prove the fact of the truth asserted in it.  Note that in its strict sense, a witness is not allowed to state his previous statement in proof of a fact in issue. This is known as “the rule against self-corroboration.”

A piece of evidence infringes the rule against hearsay where such evidence does not derive its probative value solely from the credit given to the witness but rests on the veracity of some other person not present in court. Despite the fact that our courts always refer to the term, “hearsay” in their decisions, the same term “hearsay” is nowhere used in the Evidence Act. However, the substance of the rule against hearsay is embodied in our law by virtue of Section 77 of the Evidence Act.

A clear exposition of the aforesaid rule was given in the case of Subramanian v. Public Prosecutor (1955) 1 WLR 965 as follows:

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the witness is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the witness not the truth of the statement but the fact that it was made.”

HEARSAY EVIDENCE ADMITTED ON THE PRINCIPLE OF CORPORATE PERSONALITY

1.      Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (PT. 5) 116 illustrates the admission on the principle of corporate personality evidence that might otherwise be rightly regarded as hearsay evidence. The plaintiff in that case was an incorporated company. Its claim against the defendant was payment of prices of goods supplied. The only witness called by it was its sales manager who, however, happened not to be in the services of the plaintiff at the time of the transactions that led to the litigation. Accordingly, he did not and could not have negotiated these transactions or had any personal knowledge of them. His evidence could not have therefore been direct as stipulated under Section 77 of the Evidence Act. The trial judge thus rejected his evidence as hearsay. On appeal, the Court of Appeal held otherwise and said that the evidence was admissible by virtue of the principle of corporate personality. This decision was affirmed on further appeal to it by the Supreme Court.  

2.      Aiworo v. The State (1987) NSCC (PT. 2) 710. This case is where a psychiatrist based his opinion as to the accused person’s background on the story of his relatives, it was held that his evidence suggesting that the accused could be suffering from schizophrenia at the time the offence was committed was rightly regarded as hearsay by the trial judge because the psychiatrist neither saw nor examined the accused at that material time.  

3.      In Utteh v. State (1992) 2 NWLR (PT. 223) 257, one of the main contentions of appeal against the conviction of the accused was that the evidence of the demand for bribe as given by the PW 2 was hearsay since the complainant was not called as witness.  Rejecting this, the Supreme Court upheld the decision of the Court of Appeal that the evidence of PW2 could not be said to be hearsay as it was direct evidence of what he had seen and heard and cited Sections 76 and 77 of the Evidence Act.

REASONS 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 cross-examination.

2.      The depreciation of the truth in the process of repetition.

3.      Opportunities for fraud, misrepresentation and injustice may arise.

4.      It would lead to prolonged enquiries.

5.      It would lead to substitution of weaker evidence for stronger evidence.

EXCEPTIONS TO THE HEARSAY RULE

Paradoxically, the hearsay rule is better known for its numerous exceptions than the rule itself.  Some of the exceptions are as follows:

1.      RES GESTAE – Facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places – section 7 of the Evidence Act.

2.      DYING DECLARATIONS – These are necessary exceptions to the hearsay rule as a relevant statement by a dead person must be proved by someone else. It is a basic condition of admissibility that the death of the maker must be proved at the trial. The statement may be oral or written.  Where the statement is written, any of the methods of proving the contents of document is used. No formality is required in making these statements even though they are usually referred to as “declarations”. They are just ordinary statements. Section 33 of the Evidence Act provides for six different cases in which statements by deceased persons are admissible as exceptions to the hearsay rule.

POWERS OF A JUDGE OR MAGISTRATE TO PUT QUESTIONS TO WITNESSES

Under section 223 of the Evidence Act, a judge or magistrate may ask any question he pleases from a witness in order to discover or obtain proper proof of relevant facts, whether relevant or irrelevant and neither the witness or his counsel can make any objection to it.

However, the power does not confer an opportunity to take over the conduct of the examination. Uso v. C.O.P; Okoduwa v. The State.

The judge or magistrate may also call a witness whose evidence he considers to be material to the determination of the case.

What determines whether or not the judge or magistrate has abused this power is the quality and not the number of questions. For example how material and unbiased are such questions – R. v. Donald Matthews; Onuoha v. The State; Okorie v. The Police; The Police v. Olatilewa; Ayub-Khan v. The State. CLICK ON YOUR LEFT OR RIGHT HAND SIDE FOR MORE INSIGHTS

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