EVIDENCE – HEARSAY EVIDENCE – Whether hearsay evidence is admissible; meaning and nature of an hearsay evidence


“Yes, the position of the law is that hearsay evidence, which is the testimony by a witness of what others have said and not what he or she knew personally, is inadmissible. It is not hearsay and is, therefore, admissible, if it is only intended to be used to show the fact that it was made – see Utteh V. State (supra), wherein this Court quoted with approval the Judgment of the Privy Council in Subramanian V. Public Prosecutor (supra), and Nnaemeka-Agu, JSC, further explained that – A piece of evidence is hearsay if it is evidence of the contents of a statement made by a Witness, who is himself not called to testify. It presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth and testifying to facts within his personal knowledge, subject to recognized exceptions – – As Taylor has put it in his classic on “Evidence” (12th Ed.): “In its legal sense, hearsay evidence is all EVIDENCE, which does not derive its values solely from the credit given to the Witness himself, but which rests also, in part, on the veracity and competence of some other person”. If any such evidence is designed to prove the truth of the statement and not merely the fact that the statement was made, then it is hearsay and inadmissible: see Subramanian V. Public Prosecutor … What a Witness heard in the presence of an Accused cannot be hearsay. Unlike the Evidence Acts of 1990 and 2004, which made no reference to the term “hearsay evidence”, the Evidence Act 2011 contains two substantive provisions dealing with hearsay evidence. Section 37 of the said Evidence Act provides that: Hearsay means a statement- (a) Oral or written made otherwise than by a witness in a proceeding: or (b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. Section 38 of the said Evidence Act, 2011, further provides as follows- Hearsay evidence is not admissible except as provided in this part or by or under any other provision of this or any other Act. Clearly, when evidence of a statement, oral or written, by someone other than the witness testifying before a Court, is inadmissible as hearsay evidence, depends on the purpose for which the evidence is given or tendered by the witness in Court. In effect, the focus is on the purpose or use of the statement rather than the mere fact that it was made by a person not called as a Witness. If the only relevance of the statement is the truth it asserts, it is a hearsay statement, see FRN V. Usman (2012) 8 NWLR (Pt. 1301) 141 at 160, wherein Rhodes Vivour, JSC, observed: A Witness is expected to testify in Court on oath on what he knows personally, if the Witness testifies on what he heard some other person say, his evidence is hearsay. Such evidence is to inform the Court of what he heard the other person say … if … his testimony is to establish the truth of an event in question … it is hearsay and inadmissible evidence. Hearsay evidence is secondary evidence of an oral statement best described as second-hand evidence. What a Witness says he heard from another person is unreliable for many reasons. Where, however, the statement is relevant for some purpose other than the truth of their contents, it is not a hearsay statement, and it is admissible in evidence – Utteh V. State (supra), Arogundade V. State (supra), Ojo V. Gharoro (supra).” Per AMINA ADAMU AUGIE, JSC SAMA’ILA v. STATE (2021-LCER-40498-SC) (Pp 17 – 20; Paras B – A)

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