18 Jan



Also referred to as “second-hand evidence”. From the interpretation of Section 37[2] and Ojo V Gharoro, we can deduce that hearsay occurs where a person who is not the maker of (that is to say that he is not the author, signatory, or privy to) the document seeks to prove its content.

:: Section 38: Hearsay evidence is not admissible[3] EXCEPT as provided in… other provision of this or any other Act.

:: Sebastine Tar Hon pointed out that the rationale is because “hearsay evidence cannot be trusted for the purpose of fair adjudication”. Hearsay may be tainted with fraud, depreciation[4], alteration, misunderstanding, and so on[5]. In R V Saunders and Glinski V McIver, the courts reiterated that it would resist hearsay evidence. Because it is presumed that only the maker is in a position to answer questions arising from the document.

:: For companies, a duly authorized/designated officer can tender the document on the company’s behalf-Ishola V Societe Generale Bank Ltd.

:: If document sought to be tendered is not tendered through the maker, then proper foundation must be laid else it would be inadmissible. Section 83 gives us an insight.

Section 83(1) In a proceeding where direct oral evidence of a fact would be admissible. Any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

(a) if the maker[6] of the statement either: (i) had personal knowledge of the matters dealt with by the statement[7], or (ii) where the document in question is or forms part of a record purporting to be a continuous record made by the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record[8] information supplied to him by a person who had, or might reasonably be supposed to have personal knowledge of those matters[9]: AND (b) If the maker of the statement is called as a witness in the proceeding.

:: In essence; Section 83(1) (above) generally mandates that the person tendering the document should be the maker of the documentKate Enterprises V Daewoo. In Oloruntoke V Johnson, the court noted that the survey plan sought to be tendered should be tendered through the surveyor who drew it. In Flash Fixed Odds Ltd V Akatugba, the court maintained that extracts in police record prepared by a police should be tendered by the police and not the father of the plaintiff. Coker V Farhat[10]. Recital of will not admissible as maker was not called as witness. The document to be admitted should have been duly executed by the maker-In the Estate of Powe (1956 p 100). Ordia V Piedmont (1995 2 NWLR pt 379 p 516).

:: however, Section 83 goes further to say: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.

:: In essence, (as was noted in A.G Oyo V Fairlakes Hotels (No.2)) where a person other than the maker is presenting document, he must lay a proper foundation as to the whereabouts of the maker… he should explain why the maker of the document cannot come-Bowskill V Dawson 1954 1 qb 288, Anatogu V Iweka II. Udo V Eshiet.

:: Section 83(2) provides an additional exception thus: In any proceeding[11], the court may (at any stage of the proceeding, if having regard to the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused) order that such a statement as is mentioned in subSection (I) of this Section shall be admissible as evidence or may without any such order having been made, admit such a statement in evidence notwithstanding that –(a) the maker of the statement is available but is not called as a witness: and (b) the original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

:: However, *note* Section 83(3) which provides; Nothing in this Section shall render admissible as evidence any statement made by a person interested[12] at a time when proceedings were pending or anticipated[13] involving a dispute as to any fact which the statement might tend to establish. This provision was applied in Onuh V Idu to reject a reply letter which was made while litigation was pending. Same was done in Isah V Kamba[14] on similar facts.

This is because a person may prepare a document to defeat the course of justice during pending proceedings or when proceedings are anticipated-Gwar V Adole. Sebastine Tar Hon notes that an independent contractor[15] or experts[16] are generally presumed to be unbiased/uninterested except the contrary is shown-Ize-Iyamu V Alonge. In Amadiume V Ibok, the respondents were sent on compulsory leave. They challenged this. While the suit was pending their employment was terminated. The employers sought to tender the termination letter in court. This was rejected since the letters were prepared by persons interested (employers) when the suit was pending. See also Bamgboye V Olusoga. Compare however with Jarman V Lambert and Cook Contractors ltd[17]  where court allowed claim particulars made when proceeding was anticipated. Note also Robinson V Stern[18].

:: Who is a maker? Section 83(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand or was signed[19] or initialed by him or otherwise recognized bv him in writing as one for the accuracy of which he is responsible.

(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of this section, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner[20].

[1] Our discussion is still within the confines of documentary evidence o.

[2] Section 37. Hearsay means a statement(a) oral or written made otherwise than by a witness in a proceeding; (that is to say that the witness in the proceeding was not the one that made the statement) 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. (i.e. when you try to use statements contained in an inadmissible record.

[3] Little V Petit.

[4] Lord Reid in Meyers V DPP.

[5] FRN V Usman per Rhodes-Vivour J.S.C. (in my words); You hear of people saying “Ahn Ahn, Mr Bako, that is not what I said na. I said you should visit the course not reseat the course… please o, don’t mis-quote me abegi”. This is because Mr Bako did not hear him well.

[6] A maker has been defined as a person who expressly authored the document or signed it[6]

[7] Here he is referred to as the maker of the first degree.

[8] Edmonds V Edmonds. Evidence on oath to judge/oath commissioner was held as supplying information to such judge.

[9] This person is referred to as the maker of second degree.

[10] 1952. 14 WACA 216. There are a host of other cases; Chief Philip Anatogu and 2 others (representing Ogbo family of Onitsha V HRH Igwe Iweka and ors (Repping Obosi people). Ogunsanya V Taiwo 1970 1 All NLR 147. Armels Transport V Martins 1970 1 ALNR 27 Case WUPRA. Simpson V Lever 1963 1 QB 517. Ioannou V Demetrion 1952 1 Aller 179. Barkway V Southwales Transport Ltd Asquith L.J. declared if a man dictates a letter to his typist it doesn’t mean that the typist is being informed.

[11] This used to be “in any civil proceeding” under the Old Evidence Act Section 91.

[12] A person is interested where he is likely to be affected by the result of the proceedings. E.g. financial interest. The question is whether he would be tempted to depart from the truth. Whether he would be partial-Highgrades Maritime Services V FBN. He should be impartial, independent and unbiased-Bearmans Ltd V Metropolitan Police District Receiver (1961 1 WLR 634). Ya’u V Dikwa, Mohammed V Kayode. Consolidated Breweries Plc V Aisowieren. “interested” is determined by the facts and circumstances of each case. E.g. a statement of the plaintiff’s watchman has been admitted. In Anyeabosi V R.T Briscoe (1987 3 NWLR pt 59 p 84) Accountant of the plaintiff was also allowed to give evidence. See Kelleher V T.Walls and Sons Ltd : Plomien Fuel Economizer V National Marketing (Co. 1941 Ch. 248) : However; The Atlantic and the Baltyk (1946 62 TLR 461)  master of a ship involved in a collision was held to be interested but two other engineers also in the ship held not interested. Evans V Noble (1949 1 KB 222). Nitel Plc V Rockonoh Property Co (1995 2 NWLR pt 378 at 50), court held that since the witness stood to gain financially, he was interested and anticipated litigation when his vehicle was towed.

[13] Anticipated defined in Barkey V Southwales Transport Co (1949 1 KB 54 at 61) as apprehension that litigation would occur.

[14] (2009) All FWLR (Pt. 456) 1901 C.A.

[15] Owena Bank Plc V Olatunji.

[16] Apena V Aiyetobi.

[17] (1951 2 KB 937).

[18] 1939 2 KB 260.

[19] IN Goodman V Eban, the court noted that to sign means to attest or confirm the document by adding one’s signature. In Lararus Estate V Beasley, the court noted that unnatural persons like companies may sign through their authorised/designated representatives. The company’s seal may also be affixed to the document.

[20] The Old Evidence Act included the phrase


Quite eccentric really

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