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Hearsay in the Nigerian Law of Evidence (Admissibility, Exceptions) – Victor Odii

Hearsay in the Nigerian Law of Evidence

Hearsay Evidence

The rules of hearsay evidence prevents a witness to testify that he heard another person say that an accused committed an offence, if the aim is to establish the truth that such person committed the offence.


In many instances, the court has been meticulous in admitting testimonies of a person, other than that who had witnessed a particular fact in issue. The general principle of law is that such testimonies are inadmissible evidence. This is thus referred to as hearsay evidence and has been classified amongst exclusionary rules of evidence.

Both at common law and in Nigeria, hearsay evidence arises where a witness in his own testimony makes a statement, oral or written made by another person who experienced, heard and saw an incident happen in order to establish the truth asserted.

Simply put, the rules of hearsay evidence prevents a witness to testify that he heard another person say that an accused committed an offence, if the aim is to establish the truth that such person committed the offence. But, he can give evidence of what someone told him as a proof that someone was his informant and not when the purpose of the evidence is to establish the truth of what is contained in the statement asserted.

For instance, Mr. Frank robbed a UNN student returning home from night class on gunpoint and Chioma saw Franklin while he was doing the act. However, the next day Chioma traveled abroad but told Mr. Chima about what she witnessed. Then the question becomes: if Mr. Franklin is arrested and brought before the court, can Mr. Chima give evidence to prove the fact that he saw Franklin robbing the student or can he testify as to the truth of who the armed robber was?

The legal implication as expounded in Section 37 of the Evidence Act 2011, is that Mr. Chima can only give evidence to prove the fact that Chioma informed him, but he is prevented from testifying as to the truth of the information.

Most legal scholars have argued that the basis for the exclusion of hearsay evidence is the weakness and untrustworthiness of such to be relied upon by the court, same not being a testimony of a person who witnessed the event, and absent before the court to prove the veracity of such.

Nevertheless, there are exceptional circumstances in which the law permits the admissibility of hearsay evidence, to avoid wreaking hardship on a particular party. This paper is an appraisal of the general principle and the exceptions to the admissibility of hearsay evidence.

The Concept Of Hearsay Evidence

Pursuant to Section 37 of the Evidence Act, the phrase hearsay evidence is defined as a statement:

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(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.

Similarly, Section 39 of the Nigerian Evidence Act defines hearsay evidence as statements, whether written or oral of facts in issue or relevant facts made by a person: (a) who is dead; (b) who cannot be found; (c) who has become incapable of giving evidence, or (d) 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 Sections 40 to 50.

Accordingly, as posited by Cross & Tapper, hearsay evidence is a statement other than one made by a person while giving oral evidence in the proceedings and is inadmissible as evidence of any fact stated.

The learned authors further stated that the rationale is contingent upon the increased dangers of impaired perception, bad memory, ambiguity, and insincerity coupled with the decreased effectiveness of conventional safeguards, that hearsay is regarded as so particularly vulnerable as to require a special exclusionary rule.

Admissibility of Hearsay Evidence

The rule governing the admissibility of hearsay evidence was given judicial confirmation by the Privy Council, in the case of Subramanian v. Public Prosecutor[1], where it was held thus:

Evidence of a statement made to a witness by a person who is not himself called a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence 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 evidence, not the truth of the statement, but the fact that it was made.

The above court verdict was further approved in Mawaz Khan v. The Queen[2], where Lord Hodson held thus:

Before considering the facts of this case it is convenient to state what is meant by ‘hearsay’ rule for the contravention of rule makes evidence inadmissible. The accepted textbooks in the Law of Evidence are at one in saying that such statements are inadmissible to prove the truth of the matter stated. Wigmore on Evidence, puts the matter clearly in this way: The prohibition of the hearsay rule, then does not apply to all words or utterances merely as such.

If the fundamental principle is clearly realized, its application is a comparatively simple matter. The hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence of the truth of the matter asserted.

The effect of such evidence is to discountenance it as was held in Orji v. Ugochukwu[3], such that where it has been utilized by the court, it should be regarded as inadmissible evidence and expunged.

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Exceptions to the Rule against Hearsay Evidence

In recognition of the main objective for the attainment of justice, the evidential statute provides for instances where hearsay evidence can be admissible, as enshrined in Section 39 of the Evidence Act. This exceptions are as follows:

1. Dying Declaration

Section 40 of the Evidence Act provides for the admissibility of statements made by deceased persons, relating to the cause of their death. This provision applies to all court proceeding. However, in Okoro v. The State[4], it was held that before a statement can be admitted as dying declaration, it must meet the conditions that:

the declarant must have died before the statement, written or verbal is made; the statement must relate to the deceased’s cause of death; the cause of the death must be in issue in the trial in which the statements is to be proved; and the declarant, at the time of making the statement, must have believed himself to be in danger of death.

In R v. Woodcock[5], it was held that the general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.

2. Statement made in the ordinary course of business

Section 41 of the same Act provides for the admissibility of a statement, whether written or oral, made by a person in the ordinary course of his business. Thus, in R v. Lawani[6], an entry made by a police officer in an Accident Report Books before his death, was held admissible before the court, having been made in the course of his duty.

3. Statement made against the interest of the maker with special knowledge

Section 42 of the Act allows the admissibility of a statement made by a person against his own proprietary or pecuniary interest, such that the said person has special means of knowing the matter and has no interest to misrepresent it.

4. Statements made by a person regarding an opinion as to the existence of any public right or custom or matter of public or general interest

Section 43 provides for the admissibility of statements made by a person regarding an opinion as to the existence of any public right or custom or matter of public or general interest, in that if it existed, he would have been likely to be aware, notwithstanding whether any controversy arises after such statement is made.

5. Statements in respect of the existence of a relationship

As provided under section 44, hearsay is admissible in respect to the existence of a relationship, where a person who had made the statement had special means of knowledge of such relationship, such as marriage or adoption between persons.

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6. Declarations made by a deceased testator

Section 45 of the Act provides for the admissibility of declarations made by a deceased testator, regarding his testamentary intentions and as to the contents of his will.

This pertains to circumstances where: the will of the testator has been lost and the contents are in question; the question is whether an existing will is genuine or not; and where the question is to determine whether out of various documents, any and which constitutes his will.

In the case of Sudgen v. Lord St. Leonards[7], the will of Lord St. Leonard, a famous Judge was missing at his death and the question before the court was the content of the will. His daughter who knew most of the contents was able to quote most of it from her memory.

Corroboratively, some other witnesses testified as to statements made by the deceased before and after the execution of the will concerning its contents. The court of Appeal held that the statements made by the deceased before or after he had executed the will were admissible as exceptions to the hearsay rule.


Apparently, hearsay evidence is generally inadmissible, due to its susceptible nature, which also makes it vulnerable to fabrication of facts.

It has been reasoned that a person reiterating such statements may have misperceived the actual wordings of the original maker or usurping the role of an interpreter as to the implication of what was said.

However, both legislative enactments and judicial precedents have recognized the admissibility of hearsay rule in some exceptional circumstances.

[1] [1956] 1 WLR 965.

[2] [1967] 1 AC 454.

[3] [2009] 14 NWLR, part 1161, p. 228 at p. 233.

[4] [1967] NMLR 189.

[5] [1789] 1 Leach 500.

[6] [1959] L.L.R 97.

[7] [1876] IPD.

About Author

Victor Odii is a law student at the University of Nigeria, Enugu Campus. With the advancement of technology and digitisation, he has demonstrated enthusiasm in the area of digital rights protection as well as campaigns for robust incorporation of technology in the dispensation of court justice which promises more efficiency.

Odii Victor

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