Hearsay Evidence in Nigeria: The Rule, the Reasons, and the Exceptions

A police officer walks into court and says: “The witness told me that she saw the accused stab the deceased.” The accused’s counsel is on their feet immediately: objection. The officer did not see anything. He is simply repeating what someone else told him. If the court accepts his evidence to prove that the stabbing happened, it is convicting on the basis of a statement that was never tested under cross-examination, made by a person who is not before the court, on oath.

That is the problem with hearsay evidence. And it is why, across centuries of common law and now under the Evidence Act 2011, the general rule is that hearsay is inadmissible.

This article explains what hearsay is, why the law excludes it, how the rule operates in Nigerian courts, and when the exceptions apply. It also addresses the constitutional dimension that most treatments of hearsay overlook.

What is Hearsay Evidence? The Statutory Definition

Section 37 of the Evidence Act 2011 defines hearsay evidence. It is a statement, whether oral or written, made otherwise than by a witness in a proceeding, or contained or recorded in a book, document or any record, proof of which is not admissible under any provision of the Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.¹

Two elements are essential.

First, the statement must have been made outside the current proceeding. A statement made by a witness in the witness box, in these proceedings, to this court, is not hearsay. It is direct oral evidence under section 126. It is only when the statement was made elsewhere, whether to a police officer during investigation, in a previous conversation, or in a document, that it becomes potentially hearsay.

Second, the statement must be tendered to prove the truth of what it says. This is the critical element. A statement is not hearsay merely because it was made outside the courtroom. It becomes hearsay when it is offered as evidence of the truth of its contents.

If the police officer says “the witness told me that she saw the accused stab the deceased,” and that is offered to prove that the accused actually stabbed the deceased, it is hearsay. But if the officer says the same thing to prove that the officer then went and investigated the claim, or to explain the sequence of events in the investigation, the statement is not being offered to prove the truth of the stabbing. It is being offered to prove that the officer heard it and acted on it. That is original evidence, not hearsay.

The cases confirm this distinction consistently. In Idi v State,² Okolo v FRN,³ and Saraki v FRN,⁴ the Supreme Court held that evidence of a statement made by a person not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object is to establish the truth of what is contained in the statement.

Black’s Law Dictionary defines hearsay as testimony that is given by a witness who relates not what they know personally but what others have said, and that is therefore dependent on the credibility of someone other than the witness.⁵ The courts adopted this definition in Edosa v Ogiemwanre⁶ and Haruna v Kano State.⁷

Nature and Rule of Hearsay Evidence

The Rule is Established by Statute

According to Aguda, the rule against hearsay is an English common law rule and is not per se part of Nigerian law.⁸ However, the Evidence Act 2011 gives the rule statutory form through sections 37 to 52. Section 37 states the rule of inadmissibility. Sections 38 to 52 provide the exceptions.

The rule in English law was established through early nineteenth-century cases including Stobbert v Dryden,⁹ Robinson v Markis,¹⁰ and Haines v Guthrie.¹¹ The Nigerian courts have recognised the rule’s development and applied it consistently.

Hearsay May Be Oral or Documentary

The hearsay rule applies equally to documents. Where it is required to establish the truth of a statement in a document, the maker must be called as a witness unless the document belongs to a class exempted from the rule.

In Sokoto v INEC,¹² the Supreme Court applied this principle strictly. Witnesses had made depositions in Hausa language but only the English translations were tendered without the originals. The court held that the depositions were incompetent and struck them out.

In Osigwelem v INEC,¹³ the court held that the content of a document can only be proved by its maker or by a person with personal knowledge of its contents. Inability to call the maker renders the document hearsay and generally inadmissible.

Hearsay is Secondhand Evidence

Hearsay evidence is secondhand evidence. It can only tell the court what a witness heard another person say. It cannot establish the truth of the event the other person described.¹⁴ In Okolo v FRN¹⁵ and Ali v State,¹⁶ the courts held that hearsay evidence can only inform the court of what was said, not establish the truth of events.

Hearsay is Generally Irrelevant and Inadmissible

Under the Evidence Act, any fact declared irrelevant is inadmissible. Hearsay is irrelevant under the structure of the Act because it does not fall within the categories of facts the Act declares relevant, and because its admission is prohibited by section 37. In Idi v State¹⁷ and Edosa v Ogiemwanre,⁶ the courts held that hearsay is generally irrelevant and therefore inadmissible.

Why the Law Excludes Hearsay: Seven Reasons

Understanding the policy reasons behind the hearsay rule is important for examination answers. Students who explain the rule and its policy foundation write better answers than those who merely state the rule.

The first reason is protection of the accused. The hearsay rule protects an accused person from being convicted on the testimony of a witness who did not personally see, hear, or perceive the facts they are describing. In Simeon v State¹⁸ and Offiong v State,¹⁹ the courts held that this protective purpose is fundamental.

The second reason is reliability. A statement made by the original maker may be unreliable because it was not made on oath and was not subject to cross-examination when made.

The third reason is depreciation. Statements deteriorate in truth and accuracy as they pass from person to person. What the original maker said may be quite different from what the hearsay witness now repeats in court.

The fourth reason is the opportunity for fraud. Hearsay evidence creates opportunities for fabrication that direct evidence does not.

The fifth reason is efficiency. Hearsay tends to prolong proceedings because verifying a statement not made by the original maker may require additional evidence and witnesses.

The sixth reason is the quality of proof. Admitting hearsay substitutes weaker evidence for stronger evidence. If the original maker can be called, they should be called.

The seventh reason is demeanour assessment. Hearsay deprives the court of the opportunity to observe and assess the demeanour of the original maker of the statement. The judge cannot see how the original witness gave their account, whether they hesitated, were evasive, or gave evidence with the natural detail of truth. This is important to fair decision-making.²⁰

The Constitutional Dimension

The hearsay rule has a constitutional foundation that examination answers should engage with.

Section 36(6)(d) of the 1999 Constitution of Nigeria gives every person charged with a criminal offence the right to examine in person or by their legal practitioner the witnesses called by the prosecution. This constitutional right to confront and cross-examine witnesses is one of the foundational justifications for the hearsay rule.

When a prosecution witness repeats what someone else said outside court, the accused cannot cross-examine the original maker of the statement. That person is not in the witness box. The accused cannot challenge their perception, memory, sincerity, or communication. Admitting hearsay therefore risks violating the constitutional right to confront witnesses.

This constitutional grounding means that in a criminal case, the stakes of the hearsay rule are not merely evidentiary but constitutional. A conviction based substantially on hearsay evidence that denied the accused the opportunity to cross-examine the original source may be challenged not only as a violation of the Evidence Act but as a violation of section 36(6)(d) of the 1999 Constitution.

Exceptions to the Hearsay Rule

Section 39 of the Evidence Act 2011 provides the gateway to the exceptions. The general rule of inadmissibility applies except where the exceptions under the Act exist. The major exceptions include the following.

Dying Declarations: Section 40

A statement made by a person who believed themselves to be dying, concerning the cause of their death or the circumstances of the transaction resulting in their death, is admissible in proceedings for the murder or manslaughter of that person, even though the person died before making the statement on oath. In Ishaya v State,²¹ the Supreme Court applied this exception.

The dying declaration is the most commonly examined exception. The conditions are: the maker must have believed they were dying when they made the statement; the statement must concern the cause of the maker’s death or the circumstances of the transaction resulting in it; the proceeding must be for the murder or manslaughter of the maker.

Admissions and Confessions: Sections 20 to 29

Admissions made by a party to the proceedings are admissible as an exception to the hearsay rule. In Ali v State,²² the court held that admissions and confessions are exceptions to the hearsay rule. A statement made by an accused against a co-accused in a conspiracy trial may be admissible against the co-accused.

Affidavit Evidence

An affidavit is a written statement made on oath. It is an exception to the hearsay rule as confirmed in Apph v Oturie.²³ Affidavit evidence is used extensively in interlocutory applications and other proceedings where the parties do not call oral evidence.

Police Officer Investigations

In Rowaye v FRN,²⁴ the Court of Appeal held that the evidence of a police officer reporting on the results of their investigation is an exception to the hearsay rule. This reflects the practical reality that police investigations involve gathering information from various sources and that requiring every piece of investigative information to be given by its original source would make criminal proceedings unworkable.

Documentary Exceptions: Sections 41 to 52

Sections 41 to 52 provide various categories of documentary evidence that are exceptions to the hearsay rule. These include statements made in the ordinary course of business (section 41), statements made by persons who are unavailable (section 46), statements made in former proceedings (section 47), and entries in public records (sections 48 to 50).

A Quick Reference Table

Key Cases

Edosa v Ogiemwanre (2019) 8 NWLR (Pt. 1673) 1 SC The Supreme Court defined hearsay as testimony given by a witness who relates what others said rather than what they personally know. The court held that hearsay is generally inadmissible.

Saraki v FRN (2018) 16 NWLR (Pt. 1646) 405 SC The Supreme Court held that evidence of a statement made by a person not called as a witness is hearsay and inadmissible when tendered to establish the truth of what the statement contains.

Sokoto v INEC (2022) 3 NWLR (Pt. 1818) 577 SC The Supreme Court held that depositions made in Hausa language but tendered only in English translation were incompetent and struck them out, affirming the rule that the maker of a document must be called or the document is hearsay.

Offiong v State (2020) LPELR-49574(CA) The court held that the hearsay rule protects an accused person from being convicted on testimony of a witness who did not personally perceive the facts given in evidence.

Ishaya v State (2019) 4 NWLR (Pt. 1662) 76 SC The Supreme Court applied the dying declaration exception and confirmed the conditions that must be met for a dying declaration to be admissible.

Ali v State (2019) 14 NWLR (Pt. 1692) 314 CA The court confirmed that admissions and confessions are exceptions to the hearsay rule and that a statement made by an accused against a co-accused may be admissible in a trial for conspiracy.

Problem Question Framework

When a problem question involves a witness testifying about what another person said or wrote, apply this framework.

First, identify the statement. When was it made? By whom? In what form? Is it oral or documented?

Second, ask whether it is being tendered to prove the truth of its contents. If the purpose is to show the truth of what was said, it is hearsay. If the purpose is to show that the statement was made, to explain subsequent conduct, or to prove something other than the truth of the contents, it may be original evidence, not hearsay.

Third, if it is hearsay, apply the general rule of inadmissibility under section 37.

Fourth, check whether any exception applies. Go through sections 39 to 52 systematically. Is there a dying declaration? An admission? A business record? An unavailable witness situation? A former proceeding?

Fifth, engage the constitutional dimension. In a criminal case, if the hearsay evidence would be used against the accused, ask whether its admission would violate the accused’s right to cross-examine under section 36(6)(d) of the 1999 Constitution.

Sixth, if no exception applies, conclude that the statement is inadmissible hearsay.

Common Student Mistakes

The first mistake is treating all out-of-court statements as hearsay. They are not. A statement is only hearsay when it is tendered to prove the truth of what it says. A statement tendered for another purpose is original evidence.

The second mistake is thinking that the hearsay rule only applies to oral statements. It applies equally to documents and records. If a document is tendered to prove the truth of what it states, it is hearsay unless it falls within an exception.

The third mistake is listing exceptions without analysing whether they actually apply to the facts. Each exception has specific conditions. The dying declaration exception requires that the maker believed they were dying and that the proceedings are for murder or manslaughter of that maker. Simply saying “dying declaration exception applies” without checking these conditions is inadequate.

The fourth mistake is ignoring the constitutional dimension. In criminal cases, the hearsay rule has a constitutional foundation in section 36(6)(d). An analysis that engages only the statutory rules without the constitutional dimension is missing a significant layer.

The fifth mistake is treating the police officer exception as broader than it is. The exception covers the results of a police investigation, not every statement a police officer might relay. Evidence of what a witness told a police officer, if tendered to prove the truth of what the witness said, remains hearsay.

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Footnotes

¹ Evidence Act 2011, s 37.

² Idi v State (2019) 15 NWLR (Pt. 1696) 448 SC.

³ Okolo v FRN (2019) 7 NWLR (Pt. 1671) 348.

⁴ Saraki v FRN (2018) 16 NWLR (Pt. 1646) 405 SC.

⁵ Black’s Law Dictionary (9th edn, West 2009) 790.

⁶ Edosa v Ogiemwanre (2019) 8 NWLR (Pt. 1673) 1 SC.

⁷ Haruna v Kano State (2020) LPELR-50869(CA).

⁸ T A Aguda, Law and Practice Relating to Evidence in Nigeria (4th edn, Spectrum 1999) 71; O Bamgbose, Hearsay Evidence (University of Ibadan Faculty of Law Lecture Slides 2021) slide 7.

⁹ Stobbert v Dryden 150 ER 581.

¹⁰ Robinson v Markis 174 ER 322.

¹¹ Haines v Guthrie (1884) 13 QBD 818.

¹² Sokoto v INEC (2022) 3 NWLR (Pt. 1818) 577 SC.

¹³ Osigwelem v INEC (2011) 9 NWLR (Pt. 1253) 425 CA.

¹⁴ Bamgbose (n 8) slide 10.

¹⁵ Okolo v FRN (2019) 7 NWLR (Pt. 1671) 348 CA.

¹⁶ Ali v State (2019) 14 NWLR (Pt. 1692) 314 CA.

¹⁷ Idi v State (2019) 15 NWLR (Pt. 1696) 448 SC.

¹⁸ Simeon v State (2018) 13 NWLR (Pt. 1635) 128 SC.

¹⁹ Offiong v State (2020) LPELR-49574(CA).

²⁰ Bamgbose (n 8) slides 11 to 12.

²¹ Ishaya v State (2019) 4 NWLR (Pt. 1662) 76 SC.

²² Ali v State (2019) 14 NWLR (Pt. 1692) 314 CA.

²³ Apph v Oturie (2019) 6 NWLR (Pt. 1667) 111 CA.

²⁴ Rowaye v FRN (2018) 18 NWLR (Pt. 1650) 21 CA.