“HEARSAY EVIDENCE IS ORDINARILY INADMISSIBLE IN THE LAW

OF EVIDENCE “. CRITICALLY ASSESS THE VIABILITY OF THIS

STATEMENT WITH ALL THE EXCEPTIONS TO HEARSAY USING
JUDICIAL AND STATUTORY AUTHORITIES.

Ordinarily hearsay evidence is inadmissible in law of evidence as it name states, it’s not
gotten from a witness but often from second hand sources and hearsay evidence can be gotten
from either grandparents, friends of witness etc.

The Evidence Act 2011 defines Hearsay,” as a statement either

 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.

Under the hearsay rule, hearsay evidence is not admissible except as provided in this part
or by or under any other provision of this or any other Act.

According to Cross and Tapper, hearsay evidence is not admissible in court because of
the increased danger of impaired perception, bad memory, ambiguity and insincerity, coupled
with the decreased effectiveness of conventional safeguards for checking fabricated evidence in
court. Another reason why hearsay evidence is not admissible is because of the absence of any
opportunity to cross-examine the original maker of the statement in court.

In other words, since the court cannot cross-examine the original maker of a statement in
court, it is not wise to accept such statement as evidence. But where the maker is in court and he
admits that he actually made the statement, the court may accept it in evidence.
 EXEMPTIONS TO HEARSAY

As a result of the injustice caused by the inflexibility of the hearsay rule, several
exceptions were created by the common law where hearsay evidence will be admissible in the
court. These exceptions include:

Dying Declaration:

A dying declaration is a statement made by a person who may die from the injury
received from a person who the deceased person identified as the person who inflicted on him
the injury that eventually caused his death. It is one of the exceptions to the rule of direct
evidence to prove facts in issue.

At common law, for a statement made by a deceased to be a dying declaration, he must

have been, at the time of making the statement, in a settled hopeless expectation of death and not
merely believed himself to be in danger of approaching death.

Statement made in the ordinary course of business

A statement is admissible when made by a person in the ordinary course of business, and
in particular when it consists of any entry or memorandum made by him in books, electronic
device kept in the ordinary course of business, or in the discharge of a professional duty, or of an
acknowledgement written or signed by him of the receipt of money, goods, securities or property
of any kind, or of a document used in commerce written or signed by him or of date of a letter or
other document usually dated, written or signed by him.

Provided that the maker made the statement contemporaneously with the transaction
recorded or so soon thereafter that the court consider it likely that the transaction was at the time
still fresh in his memory.
 In R v Lawani (1958) LLR 97, an entry made in an Accident Report Book by a police
officer who later died before the trial was held admissible since it was made in the course of his
duty.

Also, in R v McGuire, the defendant was being tried for arson. A report prepared by a
deceased scientific officer who visited the scene of the fire shortly after it happened, stating the
extent of the damage, state of the building, was held to be admissible even though they were not
given directly by him.

Statement made against the interest of the maker with special knowledge

When a statement is against the pecuniary or proprietary interest of the person making it
and the said person had peculiar means of knowing the matter and had no interest to misrepresent
it, such statements are admissible.

The above provision Is the same under common law. In Sussex Peerage Case, the House
of Lords held that a statement made by a clergyman who later died, which exposed him to
criminal prosecution would not be admissible under this heading.

However, in Higham v Ridgeway (1808) 10 East 109, an entry made by a mid wife that
he had been paid for services rendered in connection with the birth of a child was held to be
admissible since it was against his pecuniary interest.

Statement as to public right, custom and matter of general interest

Under section 43 of the Evidence Act (Nigeria), a statement made by a deceased person
as to an opinion as to the existence of any public right or custom or matter of public or general
interest, of the existence of which, if it existed, he would have been likely to be aware, and when
such statement was made before any controversy as to such right, custom or matter has arisen, is
admissible.
 Statement that Relates to existence of relationship

A statement of relevant facts made by a deceased person is relevant and admissible in

court when the statement relates to the existence of any relationship, marriage or adoption
between persons, if the person making the statement had special means of knowledge of such
relationship.

Under this exception, a statement made by “A” before his death that he was present at the
wedding ceremony between Miss “X” and Mr “Y” will be relevant in a trial in which the court
has to determine whether a marriage exists between the parties.

Declaration by Testators

Declaration by a deceased Testator as to his testamentary intention and as to the content

of his will are, under certain circumstances, deemed relevant. These circumstances include:

When the will of the testator has been lost and there is a question as to what were its
contents

When the question is whether an existing will is genuine or not

When the question is whether any and which of the more existing documents than one
constitutes his will.

In summary, I must restate that the reason why all these exceptions were created by
common law is because of the injustice administered by the previous rule that hearsay evidence
is not admissible in court. Meanwhile, it is pertinent to note that these rule does not apply to the
legal system of every state. I basically used the Evidence Act of Nigeria (2011) to deduce some
of the exceptions mentioned above but like I said, not all of them is applicable in every state.
 In summary also, it is important to note that it is hearsay and inadmissible when the
object of the evidence is to establish the truth of what is contained in the statement.

While it is not hearsay and is admissible when it is proposed to establish by the evidence,
not the truth of the statement, but the fact that it was made.
Reference.

• Evidence Act 2011 with selected supreme court, judgements on evidence

• Bsc sholarly