The teem ‘hearsay’ is an expression by a person if what he claims to have heard which may not

be true or false. Hearsay evidence is strictly not admissible, because it does not have any
evidential or probative value.

Reasons For The Inadmissibility Of Hearsay Evidence

*prolonged enquires.

*No opportunity to observe the demeanor of the original maker in court.

*Tendency of misrepresentation of facts thereby creating room for fraudulent intent which gives
rise to injustice.

*Unreliability of the original maker of the statement, whose statement was neither on oath, nor
subjected to cross-examination.

*substitution of a weaker evidence for a stronger one.

*The watering down or adulteration of the truth as a results of repetitions

EXCEPTIONS TO HEARSAY EVIDENCE

Exceptions to Hearsay Evidence.

The provision of the exceptions to hearsay evidence is clearly enacted by s.38 of the Evidence
Act, 2011

Hearsay evidence is not admissible, except as provided in this Part under any other provision of
this or any other Act.

In light of the foregoing provision, the exceptions to hearsay rule provided under the Evidence
Act are captured in sections 4, 39 through 66, 105 and 115. These sections shall be appraised.
 1. Section 39 – Statements made by a person who cannot be called as witness because
of any of the following reasons, namely:

(a). He is dead.

(b) He cannot be found.

© He has become incapable of giving evidence.

(d) Waiting to procure his attendance to court will cause unreasonable delay to the determination
of the action.

2. Section 40 – Statement relating to the cause of death of a person who himself cannot
testify as a witness; particularly where the cause of his death comes into question.

For the statement relating to the cause of death to be admissible, it must be shown that the
deceased who made it believed himself to be in danger of approaching death, notwithstanding
that he may have entertained hopes of recovery at the time of making it.

This type of statement is otherwise termed dying declaration, admissible in the following
circumstances:

a) The maker must have died.

b) The trial relates to the cause of death of the deceased maker.
c) The deceased victim from his exclamation must have entertained fear of death,
notwithstanding his expression of hopes of recovery.
d) The declaration reveals the circumstances of the victim’s death.

In the case of Alpan v State! The statement of the deceased as narrated by a boy called as witness
that the deceased screamed, ‘Sunday has killed me’ was admissible as dying declaration.
Similarly, in Okoro v. State, the Supreme Court upheld as dying declaration the statement of the
deceased’s wife called as witness that when her husband went to ring the Church bell in the early
hours of the morning she heard a gunshot, followed by a scream from her husband that ‘Okoro
has shot me which statement her husband narrated and repeated on his dying bed at the hospital.

3. Section 41 – Statements made in the course of business transaction whether the

maker is dead or alive.

If the maker is alive, it must be established that he cannot be found or that by reason of
incapacity, he cannot be procured to give evidence without an amount of delay which may be
unreasonable delay to the Court.

The purport of this exception to hearsay rule is that statements made by a person who cannot be
called to testify may be admissible in evidence, provided it is established that the maker made
the statements in the ordinary course of business of which the records of the transaction were
either kept in books, receipts, invoices, or electionic devices operated in the course of such
business. In R v Lawani it was held that entries in a Police Accident Report Book by a police
officer who had

Died at the time of trial was admissible because it was recorded by the deceased officer in the
course of his duties as facts within his personal knowledge.

4. Section 42 – Statement against interest of the maker, with special knowledge.

This means that a statement would be admissible where if it is true, would expose the maker to
either civil o1 criminal liability. This is predicated on the reasoning that no reasonable witness
would want tc expose himself to liability without that fact being true. It is like swearing an oath
to die, in order for the oath taker to establish his innocence. This does not however rule out the
possibility that some hardened congenital liars may prefer to die taking an oath, rather than stay
alive to face the shame and humiliating consequences of their acts.
Conditions for the admissibility of statement against the interest of the maker

a) The maker must have special knowledge of the facts contained in the statement.
b) The statement is against the pecuniary or propriety interest of the maker. In
Taylor v. Wtham the Court admitted entries made in a book by the deceased, to
the effect that the borrower hac repaid part of the loan, leaving only some balance.
c) The maker at the time of making the statement must not have had any interest to
misrepresent the facts/matter.
d) The statement if true should be capable of exposing the maker to either criminal
or civi. Liability.

5. Section 43 – Statement of opinion as to public right or custom and matters of

general interest within the knowledge of the maker provided the statement was
made before any controversy arose in respect of such right, custom or matter.

6. Section 44 – Statements relating to the existence of a relationship by blood, marriage

or adoption by the person who had special knowledge of such relationship are
admissible where:
a) Patemity of a person is in issue. I
b) The statement is made by a person related by blood to the person whose paternity
is questioned.
c) The statement is made by the husband or wife of the person whose paternity is
questioned.
d) The statement if made by a deceased parent that he married the other parent after
the birth 01 the child is relevant:

To determining the paternity of such child with respect to his right to inherit real Personal
property of the deceased under any legislation.
 (i) To determine the identity of the parents of the child.

e) The statement must have been made before the dispute arose; particularly if it was made
for this purpose of preventing the dispute.

7. Section 45 – Declaration of deceased testator as to the content of his Will, where:

a. The Will is lost.

b. There is a question as to the contents of the Will.
c. There is a question as to the genuineness of the Will.
d. There is a dispute that the Will was improperly procured or obtained.
e. There is a dispute as to the documents referred to in the will.

In Re Macggillivray it was held that an oral account of the daughter of a testator who knew the
contents of her father’s will was admissible as secondary evidence to prove the contents of the
will. It is immaterial whether the declarations were made before or after the loss of the will.

8. Section 46 – Evidence of a witness in previous proceedings.

By this section, the written testimony of a witness in previous judicial proceedings can be
tendered in a subsequent proceeding in proof of the facts contained therein, or in order to
contradict a particular witness who testified contrary to that previous record.
Conditions for tendering evidence of witness in a previous proceeding

a) The proceeding must relate to the same parties or their representatives.

b) The adverse party must have been given the opportunity to cross-examine the party
seeking to tender the evidence (record).
c) The issue for determination must be substantially the same with the issue that was
determined in the previous proceeding.

9. Section 47 – Statement made by a material witness for a criminal proceeding, who is

unable to attend Court because he is dangerously ill, provided that such deposition
was extracted from the material witness at a date, time and place communicated to
both the Defendant and the prosecutor, and the defendant had the opportunity of
cross-examining the material witness at the time of making the statement. This
provision underscores the purport of sections 362 and 363 of the Administration of
Criminal Justice Act.20

10. Section 48 – Statement of defendant at preliminary investigation or coroner’s

inquest are admissible in evidence where the facts of such investigation or inquest
are relevant in the issue for determination.

11. Section 49 – Statements of investigating police officers who cannot be procured to

give evidence in Court, their written and signed statement may be admitted in
evidence, provided:
a) The defense does not object to the admissibility of the statement, and
b) The Court allows the admission of such statement.
The statement that hearsay evidence is inadmissible in the law of evidence is generally accurate.
Hearsay evidence is generally defined as an out-of-court statement offered to prove the truth of
the matter asserted in the statement. Because the person who made the statement is not present in
court to be cross-examined and to provide firsthand testimony about the statement’s accuracy,
hearsay evidence is generally considered to be less reliable and less trustworthy than other types
of evidence.

However, it is important to note that the admissibility of hearsay evidence can be complex and
can vary depending on a variety of factors, including the jurisdiction, the type of case, and the
specific facts of the case. Therefore, it is important to consult with a qualified legal professional
in order to fully understand the rules surrounding hearsay evidence in a particular case or
jurisdiction.