Fides Media Living the Faith
By Amaka Ezeno, MCLArb,
People are often heard saying, ‘I hear say….’ In fact, it is a major part of daily conversations. A lot of persons are not witness to many things they say, but the law requires that we must have witnessed the event with any of our sense organs in order to be true witnesses.
According to the court in Buhari v. Obasanjo, hearsay evidence is of no evidential value and even where it has been wrongly admitted, it should be expunged. Hearsay evidence was described by the Supreme Court in FRN v. Usman as second-hand evidence. According to the court, hearsay is unreliable as the person may not have understood what was said.
Section 37 of the Evidence Act 2011 defines hearsay as
Hearsay means a statement-
- Oral or written made otherwise than by a witness in a proceeding; or
- 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.
The succeeding section declares that hearsay evidence is not admissible. Evidence is hearsay and inadmissible when the purpose of the evidence is to establish the truth of what is contained in the statement. In other words, it is not hearsay when it is proposed to establish by evidence not the truth of the statement but the fact that it was made. In this situation, it is admissible. It follows then that a piece of evidence may or may not be hearsay. It depends on the purpose for which it is given.
Therefore, a witness ought to testify in court on oath on what he or she has personal knowledge of. It should also be pointed out that hearsay evidence could be in the form of document. In FRN v. Usman, the court held that evidence of a confessional statement in the absence of the interpreter is hearsay. Similarly, evidence of the content of a letter written by another person is hearsay.
It is settled that every law has exception, and the hearsay rule is not exempted from this. Thus, the dynamic nature of human relationships has made exceptions to the hearsay principle inevitable. Consequently, the Evidence Act has provided for a number of exceptions to this rule.
According to Section 39 of the Evidence Act, the exceptions must include any of the following persons: that is, a maker of the statement or document who is dead, who cannot be found, or has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable.
The first exception is statement relating to cause of death, otherwise called dying declaration. According to Section 40 of the Evidence Act,
A statement made by a person as to the cause of his death, or as to any of the circumstances of the events which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death, although he may have entertained at the time of making it hopes of recovery.
From the above section, for a statement relating to cause of death to be admissible, it must be shown that the statement concerns the cause of death of the deceased or circumstances that resulted in his death. Secondly, the cause of death must be in question whether civil or criminal. Lastly, the statement must have been made with the deceased believing himself to be in danger of approaching death.
It does not matter that the deceased may have entertained hope of recovery. This principle has received judicial blessing in the case of Okoro v. State. In that case, the deceased was shot, bleeding and was rushed to the hospital. On the hospital bed, he said, “If I die, you caused it.” The court held that it was a dying declaration. On the contrary, in R v. Ogbuewu, the deceased made a statement to a police officer, a day after he had been wounded.
He was weak and in pain and while trying to obtain a statement from him, the police officer asked him, “Do you think you will die?” In reply, he said, “I don’t know whether I am going to die.” The court held this to not be a dying declaration in the absence of proof that the deceased believed himself to be in danger of approaching death when he made the statement.
Dying declaration is admissible because it is a statement made in extremity when all hope of this world is gone and motive to falsehood is absent. It guarantees a certain great degree of trustworthiness in the belief of imminent death which excludes the possibility of fabrication by the maker. Therefore, as a general rule, ‘I hear say’ has no weight in law except it falls under any of the exceptions one of which is dying declaration.