ADMISSIBILITY AND RELIABILITY OF HEARSAY EVIDENCE

Hearsay evidence is inadmissible when it is sought to use as a statement to establish the truth of what is contained in the statement. It is not hearsay and is admissible when the statement is proposed to establish by evidence the fact that it was made and not the truth of the statement.

In a legal context, evidence is essential for establishing facts and supporting claims or defenses. It can be in various forms such as oral, documentary, real, direct, circumstantial, and hearsay. Each of these type of evidence has their various functions but hearsay evidence is particularly notable for it's admissibility and reliability.

Hearsay evidence refers to a statement made outside of court that is offered in court to prove the truth of the matter asserted in the statement. Essentially, it is a second hand evidence, that is a testimony based on what a witness heard from someone else rather than from their own direct knowledge or experience.

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.

Hearsay is generally inadmissible because it lacks the reliability of direct testimony, as the original speaker is not under oath and cannot be cross-examined. It can only be used to inform a court about what a witness heard another say and not to establish the truth of an event. 

However, there are certain exceptions to this rule and one of them is a dying declaration. For further understanding of hearsay evidence and the exception of dying declaration, further explanation has been given by the unanimous decision of the Supreme Court justices in the case of IDAHOSA V IDAHOSA (2020) 6 NWLR (PT. 1720) 254.

The summary of the fact of this case is that: 

Upon the death and burial of Pa Egharevba Idahosa, a respected elder in Benin City, his eldest son stepped forward to claim his traditional inheritance known as the igiogbe, the ancestral home located at No. 150 Gbelaka Street. According to their Bini customary law, the eldest son is expected to take possession of the igiogbe upon the father’s death, and so the Respondent, believing himself to be the rightful heir, assumed his role as head of the family and took control of the property.

But not long after the respondent claimed the role of the head of the family and took control of the property(igiogbe), the respondent’s younger brother, the appellant, challenged his right to the igiogbe. He claimed that the respondent was not the biological son of their late father, Pa Egharevba Idahosa. According to him, the respondent had no right to the igiogbe because he was not truly an Idahosa by blood. The appellant told a story that dated back many years to a time when their mother, Madam Onaiwu Idahosa, had temporarily separated from her husband. During that period, she had begun a relationship with a man named Pa Osayande, and it was during that time, the appellant claimed, that she gave birth to the respondent and their sister, Mrs. Comfort Ekwebelem.

He further insisted that shortly before Madam Onaiwu died, she confessed this truth to both himself and the respondent, that the respondent and Mrs. Comfort were fathered by Pa Osayande, not Pa Egharevba Idahosa, his father. The appellant maintained that it was after this period that Madam Onaiwu reunited with her husband and moved to Lagos, where she bore other children including himself for Pa Egharevba Idahosa.

The matter was taken to the Oba’s palace for traditional resolution but before the palace could deliver a final verdict, the respondent took the matter to court. At the High Court, he asked for a declaration affirming that he was the eldest son of Pa Egharevba Idahosa, and by extension, the rightful head of the family. He also sought a declaration that the appellant and others had no authority to dispute or decide who the eldest son was under Bini customary law.

In response, the Appellant reiterated that the respondent was born during a period of separation between their parents, and that his true father was Pa Osayande. In court, he tried to validate his claim by stating that it was the dying confession of Madam Onaiwu that confirmed his claim and these final words of Madam Onaiwu confirmed the respondent’s illegitimacy.

The High Court gave its judgment and sided with the appellant, accepting that Madam Onaiwu had Indeed made a dying declaration confessing the paternity of the respondent and Mrs. Comfort. Based on that, the court concluded that the respondent was not entitled to the igiogbe of Pa Egharevba Idahosa and dismissed his claim.

Aggrieved by this outcome, the Respondent took his case to the Court of Appeal. There, the judges examined the trial court’s ruling and the evidence presented. They held that the alleged dying declaration was nothing more than a presumption and there was no supporting witness to confirm such a confession ever took place. On that basis, the Court of Appeal rejected the trial court’s findings and overturned the judgment and declared that he was indeed the eldest son of Pa Egharevba Idahosa and entitled to the igiobe.

So, the Appellant (Respondent at the Court of Appeal) aggrieved by the outcome of the Court of appeal further appealed to the supreme Court and the justices of the supreme Court all adopted the decision of the Court of appeal and dismissed the appeal. They held that:

“Hearsay evidence is inadmissible when it is sought to use as a statement to establish the truth of what is contained in the statement. It is not hearsay and is admissible when the statement is proposed to establish by evidence the fact that it was made and not the truth of the statement. In the instance case, the so-called confession or dying declaration of the appellant’s mother in the absence of the respondent and his sister fell into the category of hearsay evidence as it was sought to use the statement to establish the truth of what was contained in the statement and so made it inadmissible to be used to prove what the appellant asserted.”

The Supreme Court justices established the fact that although a dying declaration is an exception to hearsay evidence and as such can be admissible in court, the circumstances surrounding the dying declaration by Madam Onaiwu in this case does not apply as a dying declaration and as such renders it inadmissible and therefore a hearsay evidence.

Also, the court further explained that a dying declaration is a statement made by someone who believes they are near death, describing how they were injured or the cause of their death, and identifying the person responsible. Such declarations are typically only allowed as evidence in homicide cases. Also, even in homicide or civil cases, a statement made by someone who believes death is imminent about the cause or circumstances of their expected death is allowed as evidence, despite the hearsay rule. But in Madam Onaiwu’s case, her confession did not relate to the cause of her death, so the rule on dying declarations did not apply.

The Supreme Court’s affirmation with the decision of the Court of Appeal is as a result of the fact that the confession of Madam Onaiwu was not corroborated with any other statement and no other witness was even available to affirm the statement. This made it hearsay in the sense that the appellant only heard it from his mother though in his own assumption is a dying declaration but according to the court, this does not suffice as a dying declaration and so it is hearsay evidence and therefore inadmissible to admit his claim. The dying declaration of the mother alone does not suffice to affirm the paternity of the respondent.

By way of conclusion, this case has critically examined the admissibility and relevance of hearsay evidence in a court of law. Though not admissible, in certain circumstances it has an exception where it can be used and it has been deeply analysed. 

About the Author:

Mohammed Khadijat Ometere is a member of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. She can be reached via; 09124028355.