Res Gestae and Section 4 of the Evidence Act 2011: What Happened to the Common Law Doctrine?

There is a phrase that appears regularly in old Nigerian evidence law reports: “part of the res gestae.” Counsel would use it to get otherwise inadmissible evidence before the court, arguing that certain words spoken during or immediately after an event were so connected to that event that they formed part of it. Judges would accept or reject the argument depending on how spontaneous the statement appeared.

That phrase, and the common law doctrine behind it, caused more confusion than almost any other concept in evidence law. It was never clearly defined, its boundaries were contested, and courts applied it inconsistently. When the Evidence Act 2011 came into force, the common law doctrine was effectively replaced by section 4. But the replacement has its own complexity, and students who simply memorise “res gestae means part of the transaction” without understanding what section 4 actually does will struggle in examination.

This article explains what res gestae was, what section 4 of the Evidence Act 2011 does in its place, and why this matters for how you analyse evidence questions today.

What Was Res Gestae Under the Common Law?

Res gestae is a Latin phrase meaning “things done” or “the transaction.” Under the English common law, the doctrine allowed certain statements to be admitted as evidence even though they were technically hearsay, on the basis that those statements were so connected to the event in question that they formed part of it. If a statement was made in the heat of the moment, as part of and simultaneously with the event, the law treated it as an extension of the act itself rather than as a separate out-of-court assertion.

The doctrine was justified on reliability grounds. A statement made spontaneously, without time for reflection, fabrication, or self-interest, was thought to carry inherent reliability. The original maker of the statement did not have time to lie. What they said was, in a sense, what they saw and felt in the moment.

The doctrine operated in several overlapping categories. Statements accompanying and explaining an act were admitted as part of the transaction. Spontaneous exclamations, sometimes called excited utterances, were admitted. Statements of existing mental or physical state were admitted. The boundaries between these categories were blurry and courts drew them inconsistently, which led critics to describe res gestae as an admission that the hearsay rule itself was being manipulated rather than applied.

Aguda observed that the res gestae doctrine was essentially a judicial safety valve. When strict application of the hearsay rule would produce an injustice and the statement in question was obviously reliable, courts invoked res gestae to admit it. But because the doctrine had no clear principle, it was applied ad hoc.¹

The Position Under the Old Evidence Act

Under the Evidence Act 2004 and its predecessors, section 5(a) preserved the operation of the English common law as a gap-filler. Courts used this provision to admit res gestae evidence: statements admitted through section 5(a) on the grounds that they would have been admissible as part of the res gestae under the English common law that existed before the Evidence Ordinance 1945.

In R v Itule,² the Federal Supreme Court invoked the common law through this provision to resolve a question the Act did not address. The position was clear: where the Act was silent, the common law filled the gap, and res gestae was one of the doctrines the common law provided.

What Section 4 of the Evidence Act 2011 Does

Section 4 of the Evidence Act 2011 is the provision that now covers the ground previously occupied by the res gestae doctrine. It provides that facts forming part of the same transaction as the fact in issue are relevant, whether they occurred at the same time and place or at different times and places.

The section contains an important illustration. Where the question is whether an act was committed, the circumstances under which it was committed, any statement made at the time of committing it, and any statement indicating the purpose of the act are all relevant facts.

Section 4 is therefore broader than the common law res gestae doctrine in one sense: it does not require the statement to have been made spontaneously at the exact moment of the event. Statements made shortly before or after the main act, and facts that formed part of the broader transaction even if not simultaneous with it, are captured by section 4.

However, section 4 is also narrower in another sense: it operates within the structure of the Evidence Act 2011 as a relevance provision. A fact made relevant by section 4 is still subject to the general admissibility rules of the Act. It can still be excluded if it is hearsay and does not fall within one of the hearsay exceptions in sections 39 to 52.

This is the critical distinction that most student treatments of this topic miss. Under the common law, res gestae was an exception to the hearsay rule that admitted otherwise inadmissible hearsay. Under the Evidence Act 2011, section 4 makes certain facts relevant to the transaction. But the hearsay rule under sections 37 and 38 still applies independently. A statement that is relevant under section 4 but is also hearsay must still find an exception under sections 39 to 52 before it can be admitted.

Why the Common Law Doctrine No Longer Operates Independently

As we explain in the article on sources of Nigerian evidence law, section 3 of the Evidence Act 2011 limits the gap-filling role of common law to cases where other Nigerian legislation makes evidence admissible. The old section 5(a), which explicitly preserved the operation of the common law, has been replaced by section 3, which only preserves what other Nigerian legislation provides.

The consequence is that res gestae as an independent common law exception to the hearsay rule no longer operates in Nigeria. When counsel in a Nigerian court today argues that a statement is admissible as part of the res gestae, they must ground that argument either in section 4 (as a relevance point) or in one of the specific hearsay exceptions in sections 39 to 52. A bare reference to the common law doctrine is no longer sufficient.

This change has not been fully absorbed into Nigerian legal practice. Older cases still cite res gestae freely, and some counsel still invoke it as if the 2004 Act were still in force. Students who understand the shift from the old Act to the 2011 Act on this point are ahead of many practitioners.

What Section 4 Covers: The Transaction

The concept of the “transaction” in section 4 is central to understanding its scope. A transaction is a group of facts so connected that they form part of a single event or course of events. The connection can be of time, place, purpose, or causation.

In a murder case, the transaction would include the acts leading up to the killing, the killing itself, and the immediate aftermath. A statement made by the victim moments before being struck, or by a bystander during the attack, falls within the transaction. A statement made by the accused an hour before the killing in which they expressed an intention to harm the deceased also falls within the transaction because it shows purpose.

In a contract dispute, the transaction would include the negotiations, the making of the agreement, and the conduct of the parties immediately following it. Statements made during negotiations to explain what the parties intended are relevant under section 4 because they form part of the same transaction as the formation of the contract.

In a road accident case, the transaction would include the events immediately before the collision, the collision itself, and the immediate aftermath. A statement made by a passenger in the car immediately after the impact saying “he ran a red light” is relevant under section 4 as part of the transaction.

Spontaneous Statements and the Hearsay Question

The most practically significant question is whether a spontaneous statement admitted under the res gestae doctrine at common law can now be admitted under the Evidence Act 2011.

The answer is yes, but through a different route. Section 4 makes the statement relevant as forming part of the same transaction as the fact in issue. The statement is then admissible if it falls within a hearsay exception. The most relevant exceptions are:

Section 46 of the Evidence Act 2011, which makes relevant statements of persons who cannot be found, are dead, are incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense. If the person who made the spontaneous statement at the scene is unavailable, section 46 may provide the exception.

Section 41 of the Evidence Act 2011, which covers statements made in the ordinary course of business. If the statement was part of a regular recording process, it may be admissible under this section.

The dying declaration exception under section 40, where the person who made the statement died and the statement related to the cause of their death.

Where none of these exceptions apply, the statement remains hearsay and is inadmissible despite being relevant under section 4. This is the gap that the common law res gestae doctrine used to fill, and it is a gap that the 2011 Act has left open.

The Constitutional Connection

The hearsay rule exists partly to protect the accused’s right to cross-examine witnesses against them, guaranteed by section 36(6)(d) of the 1999 Constitution. A statement admitted under the old res gestae doctrine was admitted without the original maker being available for cross-examination. This sits uneasily with the constitutional guarantee.

The 2011 Act’s approach is more principled. By treating res gestae as a relevance matter under section 4, and requiring hearsay exceptions to be found in sections 39 to 52, the Act maintains a framework where hearsay is only admitted when specific reasons justify the departure from the cross-examination principle. This is a more constitutionally defensible approach than the flexible and unprincipled common law doctrine.

A Quick Reference Table

Key Cases

R v Itule (1961) 1 All NLR 462 The Federal Supreme Court invoked the common law through section 5(a) of the old Act to resolve a question the Act did not address. This case illustrates the pre-2011 position and demonstrates that the common law previously filled gaps in the Act.

Onyeanwusi v Okpukpara (1953) 14 WACA 311 The court held that where the Evidence Act is silent, the common law of England applies. This was the position under the old Act. The 2011 Act changed it.

Oladele v Nigerian Army (1994) 6 NWLR (Pt. 349) 103 The court considered res gestae statements in the context of military tribunal proceedings and affirmed that spontaneous statements forming part of a transaction were admissible. The reasoning in this case relied on the common law doctrine and must now be read in light of the 2011 Act.

Problem Question Framework

When a problem question involves a statement made at or around the time of an event, apply this analysis.

First, ask whether the statement forms part of the same transaction as the fact in issue under section 4 of the Evidence Act 2011. Was it made at the time of the event, immediately before, or immediately after? Does it explain, form part of, or relate to the act in question? If yes, it is relevant under section 4.

Second, ask whether the statement is hearsay under section 37. Is it an oral or written statement made otherwise than by a witness in the proceeding, tendered to prove the truth of what it says? If yes, it is hearsay and the general rule of inadmissibility applies.

Third, if it is hearsay, identify whether any exception in sections 39 to 52 applies. The most relevant are sections 40 (dying declaration), 41 (statements in ordinary course of business), 46 (statements by persons who cannot be called), and 47 (statements in former proceedings).

Fourth, do not invoke the common law res gestae doctrine as an independent ground of admissibility. It no longer operates independently under the 2011 Act. Any argument based on the common law must be translated into the statutory framework of the Act.

Fifth, consider the constitutional dimension. If admitting the statement without the opportunity to cross-examine the maker would violate the accused’s right under section 36(6)(d) of the 1999 Constitution, that is an additional ground to challenge admissibility.

Common Student Mistakes

The most common mistake is treating res gestae as a surviving common law doctrine that can be invoked by name under the 2011 Act. It cannot. It must be translated into the statutory framework of section 4 and the hearsay exceptions.

The second mistake is treating section 4 as an independent admissibility rule. It is a relevance rule. A fact made relevant by section 4 must still clear the admissibility hurdle, including the hearsay rules.

The third mistake is treating the spontaneous statement problem as resolved by section 4 alone. Section 4 makes the statement relevant. But if the statement is hearsay and no exception applies, it is still inadmissible.

The fourth mistake is citing cases decided under the old Evidence Act as if they represent the current position on admissibility through res gestae. Those cases relied on common law gap-filling that section 3 of the 2011 Act no longer preserves.

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Footnotes

¹ T A Aguda, Law and Practice Relating to Evidence in Nigeria (4th edn, Spectrum 1999) 21.

² R v Itule (1961) 1 All NLR 462.