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18 Jan

EVIDENCE 2.2B HEARSAY EVIDENCE 2 (OTHER EXCEPTIONS TO THE HEARSAY RULE)

Apart from Section 83 (DISCUSSED IN THE PREVIOUS LECTURE[1]), there are other EXCEPTIONS TO HEARSAY RULE. They include:

  1. Dying declaration: Section 40. (1) A statement (oral or written[2]) made by a person as to the cause of his death, or as to any of the Statements[3] relating to 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[4] although he may have entertained at the time of making it hopes of recovery[5].

Such statements are presumed to be true because: (as was noted in Nembhard V R) nobody would wish to die with a lie on his lips. Such statements are made in a spontaneous manner with little incentive to fabricate-Achora V AG Bendel[6]. In Sunday Akpan V The State “Sunday has killed me” were held admissible in. “Igri has killed me” admissible in Peter V State[7]. The statement can however be impeached/rebutted-Section 238.

  1. Statements[8] made in the Course of Business: Statements made in the ordinary course of business in form of entry or memo in books kept in the ordinary course of business or in the discharge of professional duty is admissible notwithstanding that the maker is not called as a witness. Provided the statement is still fresh in the witness’s memory. See Section41 EA 2011.
  2. 3. Declaration against Interest: Section 42; A statement is admissible where the maker had peculiar means of knowing the matter stated and such statement is against his pecuniary or proprietary interest and(a) he had no interest to misrepresent the matter; or (b) the statement, if true, would expose him to either criminal or civil liability. The provision can be likened to the issue of admission and confession. Because ordinarily, a person would not make a statement that is injurious to his interest… if he does, then he is most likely telling the truth-Re Perton[9]
  3. Declaration as to Public Right or Custom: Section 43; (1) A statement is admissible when such statement gives the opinion of a person as to the Statements of opinions existence of any public right or custom or matter of general interest, the existence of which, if it existed, the maker would have been likely to be aware. (2) provided it was made before any controversy as to such right, custom or matter, had arisen. For example when a person gives historical account of a custom, the court can admit it-Olaleye V Adejumo. See Elegushi V Oseni, where the court noted that proof of ownership of land by traditional history is usually based on hearsay evidence handed down from generation to generation.
  4. Declaration as to the Existence of Relationship: Section 44 a statement is admissible when it relates to the existence of relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge.
  5. Declaration by Testators: Section 45(1) The declarations of a deceased testator as to his testamentary intentions and as to the content of his will, are admissible[10] when (a)his will has been lost, or its validity is being challenged. Parole evidence can also be used. See Sugden V Lord Saint Leonards
  6. Statements made in Previous Proceedings: Section 46[11] (1) Evidence given by a witness in a previous judicial proceeding… is admissible… for the purpose of proving in a subsequent judicial proceeding… or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called… for any of the reasons specified in Section 39[12], or is kept out of the way by the adverse party: Provided that — (a)the proceeding was between the same parties or their representatives in interest; (b) the adverse party in the first proceeding had the right and opportunity to cross-examine[13]; and (c) the questions in issue were substantially the same in the first as in the second proceeding[14].
  7. Affidavit Evidence/Statements in affidavits: You can dispense with the requirement of calling a witness through the use of an affidavit. Section 115(3) provides; When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief[15]. He should state the name of the informant, date and circumstances in which the information was made and also state that he believes the statement to be true.[16]Section115(1). Orji V Zaria Industries Ltd[17]
  8. Evidence of Corporate Transactions: Corporate bodies though legal personalities are not natural persons therefore they need a natural person to speak, act and function for them-Kate Entreprises Ltd V Daewoo. Therefore a representative who has knowledge of the transaction can represent the company[18]Ishola V Societe Generale Bank Ltd.
  9. Evidence of Medical Expert about the condition of a patient (whom he is treating) who could not talk at the time he was brought for medical attention is admissible.

Certificate issued under the Authorisation of the CBN governor-See Okoli V FBN.

 

[1] EVIDENCE 2.2A ISOCHUKWU.COM

[2] Laxman V State of Maharashtra.

[3] The statement should be concise, unequivocal and complete-Hausa V The State. In Waugh V R, “…the man has an old grudge on me simply because…” and the deceased gave up the ghost. Court held that no one can tell what the deceased was about to add therefore the statement was not admitted

[4] In Okoro V State, the deceased was shot and was bleeding profusely when he uttered the statement. Court held that it is admissible. Similarly in Eyo V State where deceased was found in a pool of blood when he uttered the statement. It was admissible. Concocted evidence should be prevented-Ekpoisong V State (where Owoade J.C.A) noted that; “it is not every statement form a victim who later became deceased that would pass as dying declaration to constitute an exception to the hearsay rule”.

[5] At common law, the person must entertain no hope of recovery

[6] 1990 7 NWLR at page 92.

[7] On dying declaration, see also; Aiworo V The State 1987 NSCC Vol 18 at page 710. Isiekwe V The State 1999 9 NWLR at 617 at page 43.

[8] Note that statements here can be oral or written.

[9] In this case the witness said he is an illegitimate child. The court admitted this statement since it was made against his interest and affected his entitlement to the property.

[10] i.e. someone else that knows the declaration can tell the court.

[11] This Section was also explained in Ikenye V Ofune.

[12] Maybe the witness in the previous proceeding is dead, cannot be found or is incapable of giving evidence…

[13] Sanyaolu V Coker 1983 NSCC at page 119.

[14] Bakare V Bello 2000 FWLR part 107 at page 298.

[15] Abiodun V Chief Judge of Kwara State 2007 18 NWLR part 1065 at page 109.

[16] Edu V Cawrrd 2001 FWLR Part 55 at page 433.

[17] 1992 1 NWLR Part 216 at page 124.

[18] Anyway, it makes no sense to say that the company itself should come.

Isochukwu

Quite eccentric really

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