EXCEPTIONS TO THE RULE AGAINST HEARSAY I

Contents

1.0  Introduction

2.0  Objectives

• Main Contents
• Statements made by Persons who have since died
• Statements made in the Cause of Business

4.0       Conclusion

5.0       Summary

6.0       References/Further Reading

INTRODUCTION

In the last Unit, you learnt about the exclusionary rule  of  hearsay  evidence  –  its  definition, scope and justification. As evidence of what a witness  has  heard  another person, not the defendant or the Counsel say, not in the presence or hearing of that defendant or accused, hearsay evidence is generally inadmissible.  However there are a  large number of statutory exceptions to this rule. You will be learning some of them in this unit particularly as the rule relates to statements made by a deceased person on different situations in life.

OBJECTIVES:

This Unit is set out to enumerate instances where statements made by deceased persons would be regarded as an exception to the hearsay rule and all other allied matters.

MAIN CONTENT

As earlier stated, “Hearsay Evidence” is an oral or written statement, made by a person, not called as witness or a statement contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of the Evidence Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. (See Section 37 of the Evidence Act 2011). Generally hearsay evidence is excluded and held inadmissible from evidence except as otherwise provided for or permitted in the Evidence Act or any other legislation (See Section 38 Evidence Act 2011).

The exclusionary rule in both the Evidence Acts 2004 and 2011 are substantially similar, and as Aguda has said:

‘The general rule is that a witness can give evidence only of facts of which he has personal knowledge, something, which he has perceived  with  one  of  his  five  senses. His statement must be accepted as prima facie evidence of his possession of such knowledge for there would be an infinite regress  if this fact  had to be proved  by another witness’.

There are a large number of exceptions to this general rule. Some of them are listed as follows:

1. Dying declaration Section 40 Evidence Act 2011
2. Statement made by a deceased person in the ordinary course of business Section 41 Evidence Act 2011

• Statement by a deceased person against his pecuniary (financial) interest Section 42 Evidence Act 2011

1. Statement as to pedigree by a deceased person Section 44 Evidence Act 2011
2. Facts showing the existence of a state of mind or bodily feeling

Admission and confession Part III, Evidence Act

• Depositions taken at the preliminary investigation under certain circumstances
• Statements contained in Public documents Section 52 Evidence Act 2011

1. Statements accompanying and explaining an act forming part of res Applicable by Section 4 Evidence Act 2011
2. Statements of  affidavits  especially  in an originating   summons    or    interlocutory proceedings
3. Other matters eg. Status, complaints in sexual offences. We shall discuss some of these exceptions in greater detail

• Statements made by Persons who have since died. See Section 39

Among the exceptions to the rule of exclusion is the statement made by the following persons:

• Person who has since died. Section 39
• Person who is beyond the sea
• Person who is unfit as witness (i.e. incapable of giving evidence)
• Person who is kept out of the way by the adverse party
• Person who cannot be identified or found
• Person who cannot reasonably be expected to have any  recollection  of matters relevant to the accuracy or otherwise of the statement
• Person whose presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable

It is not every statement made by persons in the category listed above that is admissible. The particular statement in issue must be one of the following:

• Statement made by them in the course of business
• Statement made by them against their own interest
• Statements as to Pedigree
• Statements as to Public and General Rights
• Statements by testators
• Dying declarations
  • Statements made in the Ordinary Course of business

A verbal or written statement made in the ordinary cause of business by a person, who has since died is admissible in proof of facts which  was the person’s duty to state on record.  The Evidence Act, 2011, Section 41 states:

“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 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 the 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 considers it that the transaction was at that time still fresh in his memory”.

In essence for a statement in issue to become admissible, you need to establish to the satisfaction of the court that:

1. The statement is written or verbal according to the course of business in question and it is relevant fact
2. The maker of statement died before the evidence  of  the  statement  became necessary
3. The statement relates only to the acts of the person making it and to no one else’s.
4. It must have been made in the course of his or her duty
5. If the statement is not made contemporaneously, it must have been made within a reasonably short time of the performance of the acts. (The court has rejected a record of collision which was made two days after the collision. Conversely, the admitted a drayman’s record of delivery of beer made in the evening whereas the delivery was in the morning).
6. There must be a duty to act and to report or record such act
7. The duty must be owed to a third party and the action recorded must have been performed by the maker him or herself
8. The statement is only admissible as to the matters covered by the maker’s duty.

Electronic device is an innovation bringing law of evidence in line with contemporary development. Unlike the old law, the Evidence Act 2011 demands that the statement has to be made contemporaneously with the transaction. The addition of the clause ‘or so soon thereafter that the court considers it likely that the transaction was at the time still fresh in his memory” reflects judicial decisions such that it can be said that except for the introduction of electronic device, there is no material difference between the old and new law of evidence.

The Common Law requires additional pre-condition that the statement must have been made without any motive or interest to misrepresent the facts at the time of making the statement. The Evidence Act is silent on this.

In R v TAORIDI LAWANI (1959), The Prosecutor sought to tender in evidence  a Police  Report  Book” in which entry was made by a Police officer who has since died.  The book  was not “a public or other book.” The deceased Police Officer did not personally perform the acts he had recorded. The statement was held admissible. The grounds for allowing the  entry was that  the  deceased  Police  officer  made  it  in  the  cause  of  his business and  that the entry relates to matters within his personal knowledge.

Suppose in a criminal proceeding, the place of arrest has become an issue requiring proof. Can the prosecutor prove this by putting into evidence a warrant by a deceased constable containing such a record?

The short answer is ‘No’. The reason is simply because there is no duty imposed on the deceased to record the place of arrest on a warrant of arrest.

Admissibility of a statement of the category in discourse is of limited purpose. The  statement is not accepted as proof of the whole contents. They are evidence only of these facts, which are within the maker’s duty to record or report.

• STATEMENT AGAINST PERSON’S OWN INTEREST

This is under Section 42 Evidence Act, 2011. 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

• he had no interest to misrepresent the matter or
• the statement, if true, would expose him to either criminal or civil liability

Section 42 (b) is novel, as it is not contained in the Evidence Act prior to 2011. Such statement as will be admissible under this section includes:

• The statement is admissible to prove collateral matters provided some part of the statement is against the maker’s interest
• The declarant must have known that the declaration was against his or her interest, at the time when it was made
• It is not sufficient to show that the statement was against the maker’s general interest.
• It must have been against his or her pecuniary or proprietary interest. For instant, an admission by a clergyman that he performed irregular marriage ceremony is unrelated to pecuniary or proprietary interest and therefore inadmissible.
• It is sufficient that the statement was prima facie contrary to his or her pecuniary or property interest even if it later turns out to the contrary
• Pecuniary or proprietary interest encompasses: 
  • A statement that the maker owes money
  • A statement that the maker has received money owed to him or her contrary to his or her pecuniary interest
  • A statement tending to lessen the maker’s interest in property

ILLUSTRATION

A statement that the deceased paid rent is admissible to rebut the presumption of ownership of the property

T seeks to renew his tenancy of Baba’s premises. T promises to pay the rent the next day, pleading that he forgot his cheque book in the office. In anticipation of T paying him the rent the next day, Baba issues out a receipt to T. T defaults and shortly afterwards dies.

Baba’s representatives seek to recover his unpaid rent from T who resists the claim and seeks to produce the receipt as evident of payment. Once it is shown that the maker knew that the statement, at the time it was being made, was against his or her interest, the matter is settled.

There is the inclination to hold that the statement against one’s interest is probably true, otherwise it would not be made. The reasoning is that no reasonable person would, in the nature of human transaction, be expected to make an untrue statement against his or her interest.

You need to note that in relation to a statement against one’s pecuniary interest, the motive to represent or mis-represent is not an essential condition precedent to its admissibility.

A statement against interest which contains collateral matters, which are connected with  the statement against interest, is admissible even if it favours the interest of the maker as well.

The statement need not necessarily be contemporaneous with the facts stated.

There is a high authority for the views that the maker must have personal knowledge of the facts stated, as there are judicial decisions to the contrary. See SUSSEX PEERAGE CASE (1844) 11 CL. & F. 85; In that case, a clergyman who has since died made a statement exposing him to the risk of a criminal prosecution for irregular celebration of marriage. The House of Lords held that the statement did not come within the exception because the interest of the clergyman thus affected was neither pecuniary nor proprietary. See also CREASE v BARRATT (1835) 1 CR. M. & R. 919.

Examples of cases where statements against pecuniary interest have been accepted are:

1. Taylor v Williams (1876). In this case, the deceased made entries in his day book stating that he made a loan to X and admitting also the repayment of interest and repayment of the loan to him, leaving some balances outstanding. The court admitted all these entries on the ground that the acknowledgement of receipts of interest and repayment of the loan to him were declarations against deceased pecuniary interest.
2. Higham v Ridgeway (1808) 10 East 109. The deceased was a male mid-wife. He made entry in his dairy acknowledging payment for the birth of a child on a peculiar day. This entry was admitted being a declaration against the deceased pecuniary interest.

Examples of a declaration of proprietary interest are illustrated in Sly v Sly (1877) [as cited  in Nwadialo] and Obawale v Williams (1996) 12 KLR (Pt. 46) 2123.

In Sly v Sly, the deceased was an occupant of a land; He apparently held an absolute interest on the land but had declared that he only held a life interest under a Will with two named persons as Executors. The declaration was held to be against the deceased’s (declarant’s) interest and admissible.

The latter case of Obawale V Williams (1996) 12 KLR (Pt. 46) 2123 was a land dispute. The Supreme Court in that case, admitted the evidence of payment of rent to the ancestors of the defendants as a declaration against the proprietary interest  of  the  Plaintiff’s  progenitor through whom they claimed title.

CONCLUSION

The evidence of statement written or oral, of relevant facts made by a person who is dead is itself relevant, where the 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.

SUMMARY

In this Unit, you considered the Evidence Act, 2011, Sections 41 and 42. You learnt two exceptions to the hearsay rule. Among the exceptions to the rule against hearsay are the statements made by the deceased in the course of business or against pecuniary or proprietary interest. Some decided cases were cited to illustrate the operation of the exclusionary rule and the exceptions.

TUTOR MARKED ASSIGNMENT

1. State the hearsay rule, giving examples of its application
2. In what    circumstances   may    the    evidence   against   a   person’s    interest    be permissible in Evidence?

REFERENCES/FURTHER READINGS

1. F. (1999) 2nd Ed. Modern Nigerian Law of Evidence, University of Lagos Press, Lagos.
2. Aguda T. (2007) The Law of Evidence, Spectrum Law Series,
3. Afe, B. (2001) Law and Practice of Evidence in Nigeria, Printer,