EXCEPTIONS TO THE RULE AGAINST HEARSAY EVIDENCE II.

Content

1.0       Introduction

2.0       Objectives

• Main Content
• Statement as to Pedigree
• Statement as to Public and General Rights
• Dying Declaration
• Depositions
• Declaration by Testators

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Reading

INTRODUCTION

Hearsay evidence is not, as a general principle, admissible in evidence. In the last unit, you learnt, as exceptions to this rule that hearsay testimony is receivable if it is a statement made by the deceased in the ordinary course of his or her business or against his or her own pecuniary or proprietary interest. In this unit you shall learn more of the exceptions to the general rule. Specifically, you shall be looking at statements of a deceased person as to pedigree, public rights, dying declaration and depositions.

OBJECTIVES

This unit will consider a whole lot of issues which includes: the examination of the statements as to pedigree, public and general rights and statements by a testator. It will also consider the Definition and explanation of the terms: dying declaration, deposition, recent complaints.

MAIN CONTENT

Pedigree according to the Black’s Law Dictionary, 5^th edition means lineage, descent, and succession of families, line of ancestors from which a person descends genealogy. It is an account or register of a line of  ancestors. Simply put, it means family relationship.  Section 44 Evidence  Act  2011  relates  to  statements  relating  to  the  existence  of  a relationship. It states:

• Subject to subsection (2) of this section, a statement is admissible when it relates to the existence of relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge
• A statement referred to in subsection (1) of this section shall be admissible under the following conditions:
  • that it is deemed to be relevant only in a case in which the pedigree to which it relates is in issue, and not to a case in which it is only relevant to the issue; and
  • that it must be made by a declarant shown to be related by blood to the person  to whom it relates, or by the husband or wife of such a person provided that;
    • a declarant by a deceased parent, that he or she did not marry the other parent until after the birth of the child is relevant to the question of the paternity of such child upon any question arising as to the right of the child to inherit real or personal property under any legislation; and
    • in proceeding for the determination of the paternity of any person, a declaration made by a person who, if an order were granted, would stand towards the petitioner in any of the relationships mentioned in paragraph
  • of this subsection, is deemed relevant to the question of the identity of the parents of the petitioner; and
  • that the statement must be made before the question in relation to which it is to be proved had arisen, but it does not cease to be admissible because it was made for the purpose of preventing the dispute from arising.

From the foregoing, it can be deduced that statements written or verbal of relevant facts made by a person, who is dead are themselves relevant facts if they relate to the existence of a relationship.

Under the old law, (unlike the present law) a documentary declaration relating to a matter  of pedigree would be received if that declaration would be admissible, had the Evidence Act not been enacted. The  reason  was  that  it  was  admissible  at  Common  Law  and therefore part of the Nigerian law by reason of Section 5(a) Evidence Act, 2004. This is no longer good law because under Section 3, Evidence Act, 2011, the only evidence now admissible in Nigeria is that made admissible by legislation validly in force in Nigeria. The Common law on evidence and judicial decision based on it or other source of law which do not form part of Nigerian law have become ineffectual.

• Requisites for admissibility

An oral or written statement made by a relative (who is now deceased) ante litem motam (i.e before the question in relation to which it is sought to be proved had arisen) is admissible to prove matters of pedigree in cases of pedigree.

Written statements by pedigree may be found in Family Bibles, engravings in Jewellery, tomb stones, plagues or brasses in the churches. They commonly relate to dates of births, deaths and marriages and legitimacy.

A statement made in order to avoid a future dispute may not  be  admissible.  Why? Because, the chances of these being disputed at all is already present in the maker’s mind and this was capable of influencing him or her.

The statement must relate to the existence of a relationship, by marriage, blood  or  adoption between persons as to whose relationship by marriage, blood or adoption the maker had special knowledge.

The statement may not necessarily be contemporaneous nor made from personal knowledge. The statement may be oral or written (e.g. in the family Bibles  or tombstones) or even by conduct (by treating the child as legitimate).

Such statement must be one in which:

• The maker must have been related (e.g. by blood or marriage ) to the person to whom the statement refers
• The case in which the statement is sought must be one in which the relationship (i.e. Pedigree) is in issue
• The statement is inadmissible if it is designed to serve the maker's own interest.

See the case of HAINES v GUTHRIE (1884) 13 QBD 818. H took out an action for the price of goods sold to which the defence of infancy was pleaded; the date of birth being thus in question. A statement by the defendant’s deceased father as to this date made in an affidavit in a previous action between different parties, was held inadmissible, this action, not being a pedigree case.  As explained  by  Brett, M.R , the questions   of family,   whose son the defendant was, whether a legitimate or a natural son, the oldest or youngest or what position he occupied with regard to the rest of the family are all immaterial. The only question is “What was the date of the birth of the defendant”. The statement by the defendant’s deceased father in the present case is prima facie hearsay evidence and the general rule of law is that hearsay evidence is not admissible and this case does not fall within the recognized exceptions to the general rule.

• Statement of opinion as to Public and General Rights or Custom and Matters of General Interest. These include:
  1. A statement is admissible when such statement gives the opinion of a person as to the existence of any public right or custom or matter of general  interest, the existence of which, if it existed, the maker would have been likely to be aware
  2. A statement referred to in subsection (1) shall not be admissible, unless it was made before  any  controversy  as  to  such  right,  custom  or  matter,  had arisen (Evidence Act 2004 Section 33 (1) (d); Evidence Act 2011 Section 43).

Before the statement is received in evidence, the following conditions must be satisfied:

1. It is admissible only after the maker’s death to prove the rights in question
2. The right must be a public right or a general right. A public right is one enjoyed by the public at large (e.g. the right to use the high way). A  general right is one  affecting a defined class of the population. Example is the right of common, which affects only the inhabitants of a village such as their boundary lines

It must have been made by a person with competent knowledge who can reasonably be expected to have accurate knowledge of the facts.

The subject of the statements must be the existence or non-existence of the right; No evidence which is neither of its existence nor of right, or evidence of collateral issues or of particular facts which may support or negate it. For instance, if the right of highway is in issue, it is not sufficient to adduce evidence that His Excellency, the Vice President of the Federal Republic of Nigeria planted a tree to mark this boundary.

The statement may be oral or written. The fact that the maker has an  interest in this  subject matter does not render the statement inadmissible unless it obviously was made to serve  his  or  her  own  interest.

• Declarations by Testators. This is provided for under Section 45 (1&2) as follows:
• The declarations of a deceased testator as to his testamentary intentions and as to the content of his will are admissible when:-

1. his will has been lost, and when there is question as  to  what  were its contents; or
2. the question as to whether an existing will is genuine or was improperly obtained; or
3. the question as to which of more existing documents than one constitute his will

• In the cases mentioned above, it is immaterial whether the declarations were made before or after the making or loss of the lines

A declaration, written or oral made by a Testator either before or after the execution of his (or her) Will is, in the event of its loss, admissible as secondary evidence of its contents.

The contents of a lost Will may be proved by the evidence of a single witness, though interested, whose veracity and competency are un-impeached.

Thus, Section 45 allows in evidence, statements of persons who have since died if they relate to declarations by testators. The origin of this rule is traceable to the old case of SUDGEN v LORD ST LEONARDS (1876) 1 PD. In this case, the Will of Lord St Leonard, a Lawyer and a famous judge was missing at his death and the question before the court was the content of the Will. His daughter knew most of the contents of the Will. She was able to quote most of it from her memory. She and some other witnesses were able to testify as to statements made by the deceased before and after the execution of the Will concerning its contents. The Court of Appeal held that the statements made by the deceased before or after he had executed the Will were admissible as exceptions to the hearsay rule.

This decision has been re-affirmed in the case of MCGILLIVARY, RE (1946) 2 ALL E.R. 301 and also represents the law applicable in Nigeria.

• Statements relating to cause of death. This is known as Dying Declaration

Dying Declaration has been defined by the Black’s Law Dictionary 5^th Edition to mean statements made by a person who is lying at the point of death, and is conscious of his approaching death, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them.

This is also defined in Section 40, Evidence Act, 2011 as:

• Statement made by a person as to the cause of his death or as to any of the circumstances of the events which resulted in his death in cases in which the cause of the person’s death comes into question is admissible, where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery (Identical with Section 33(1) (a). Evidence Act, 2004)

• A statement referred to in subsection (1) of this section shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question

A dying declaration is a statement, not on oath of an injured and dying person who, at the time of making it, believes him or herself, to be in danger of approaching death, although he or she may have entertained hope of recovery as to the facts and circumstances which caused his or her death.

It is a statement made by the person, who is dead as to the cause of his or her death or as to the circumstances of the transactions which resulted in his death in the case where the cause of his or her death is an issue. Such a statement is relevant and admissible, subject to the following conditions:

The declaration may be written or verbal and of relevant facts. Requisites of relevance are  as follows:

1. Declarant must have died before the evidence of the declaration
2. It is admissible only in trials for murder (homicide not punishable with death) or manslaughter (homicide not punishable with death), where the accused is alleged to have caused the death of the deceased/declarant.

• The statement must be made by the victim of the alleged crime (i.e. the deceased) and must relate to the cause of his or her own death

1. The statement must contain some expression of hope of recovery or doubt as to his death. That is, the deceased-declarant, at the time of making this declaration, must have believed himself or herself to be in danger of approaching death, although he may have entertained hopes of recovery. The trial judge is required to make a specific finding that the deceased did in fact believe in the danger of approaching death when making the declaration.
2. The declarant must have been a competent witness if he or she were alive. The declaration must not be or include hearsay; it may include an opinion
3. The declaration can be oral, or written or by signs

• (vii) Where the declaration is admitted, it must be complete.
•        It is  not competent to shift the parts that are favourable from those that are not.

The statement must not have been elicited by leading questions but this does not necessarily make the declaration inadmissible, all else being equal.

It is immaterial that the declarant does not die after a prolonged period of time after making the statement.                                     The principle of dying declaration is formulated in the belief that in the peculiar circumstances, and in the last stages of one’s life, one will avoid any further occasions of sin and when faced with imminent death, one will tell the truth as he or she may soon face his or her maker.

Who may record a dying declaration? Any of the following may:

• Any person who happens to be present at the time
• A Police Officer
• A Medical Doctor
• Other witness(es)

It is not a requirement of law that oath has to be administered but it is necessary that the records should show the exact words, and the questions and answers. If it is possible, it should be witnessed by the person(s) present.

Eyre, C.B explained the rationale of this rule as follows:

“The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful, is considered by the law as creating an obligation equal to that when is imposed by a positive oath administered in a Court of Justice” ( SEE R v WOODCOCK (1789)1 LEACH 500 OR (1789) 168 ER 353 )

• ACTIVITY

From the above teaching, briefly discuss the conditions that could make dying declaration admissible in evidence.

• DEPOSITION: What is a Deposition? A deposition may be defined as

1. A witness’s out-of-court testimony that is recorded in writing, usually by a Magistrate for later use in court or for discovery purpose
2. A written record of the sworn evidence given by a witness, a deponent, before a Magistrate or other authorized person

• A statement made on oath before a magistrate in the  presence  and  to  the  hearing  of  the  accused  taken  down  in  writing  and  signed  by  the   person making it and the Magistrate

The person making the statement is called the deponent and the statement he or she makes is the deposition.

• Deposition of witness unable to attend proceeding

Where any person, who is to give a material evidence in respect of an indictable offence in respect of which a preliminary inquiry is proceeding, is suffering from illness or injury, and unable to attend at the place where the Magistrate usually sits, any magistrate shall have power to take the deposition of such person at the place where such person is.

The Magistrate taking the deposition shall put all parties on reasonable notice of intention to take the deposition, time, and place. Parties present shall have opportunity to cross examine the witness. The deposition is recorded, read over to and signed by the deponent and the Magistrate.

It is then forwarded to the magistrate by whom the preliminary inquiry is being or has been held and such deposition shall be treated in all respects in the same way and shall be considered for all purposes as a deposition taken upon the preliminary inquiry.

A deposition taken down in a criminal proceeding may be admissible in a subsequent proceeding in the circumstance, where the deponent is dead, insane or too ill to attend trial or kept away by the adverse party.

A number of states have abolished Committal proceeding or preliminary inquiry (or PI) in their jurisdictions on the ground that:

• It is time consuming
• It is expensive
• Attendant publicity may be prejudicial to the trial of the case
• Possibility that evidence admitted at the PJ before the magistrate may be inadmissible at the trial
• It is prejudicial to the accused

On the other hand, States that have retained Preliminary Inquiry argued in its support that:

• It safeguards the interests of the accused by allowing publicity
• Witnesses, who would not have been, are informed of the circumstances of the crime for which accused is invited and sentenced
• Publicity prevents secret trial and malicious rumours
• Statutes provide for the admissibility of other written statements in criminal proceedings than Committal proceedings
  • Value and purpose of deposition:

A deposition is a written record of what the deponent has said. It is a record in the trial in the absence of the deponent if it is proved that he or she is:

• Dead
• Beyond the seas
• Unfit to attend as a witness
• Incapable of giving evidence
• Cannot be identified or found
• Cannot reasonably be expected to have any recollection of matters relevant to the accuracy or otherwise
• Being kept out of the way by the adverse party
• Unobtainable without unreasonable delay or expenses

CONCLUSION

Generally, hearsay evidence is irrelevant and therefore inadmissible. However, the court may admit, as exceptions to the rule, statements of deceased person which amount to a dying declaration, statements relating to existence of relationship or declarations by testators among others.

SUMMARY

In this unit, you learnt more of the exceptions to the rule against hearsay as enumerated on section 39-40 of the Evidence Act, 2011. In appropriate  cases  you looked  at the statute  and case law. There are conditions which must be satisfied before you can invoke or take advantage of the exceptions. These have been set out before you.

TUTOR-MARKED ASSIGNMENT

Adu is charged with murder of A, B and C by administering arsenic poison.  They  are grasping for breath when a team of policemen found them. ‘A’ said to the Police. “Adu poisoned me. Am dying, and there is no hope that I shall recover”. ‘B’ said, “Adu gave me a drink. Am worried; there is no hope that I can recover at present. ‘C’ said to the Police, It is terrible, Adu! Adu! Am dying; it is all hopeless. I cannot recover. C later told Constable “I  may recover, I may not. I wish to God I can recover, Adu has killed me”

QUESTION

1. Consider the admissibility or otherwise of statements by A and C
2. Comment on the phrase “at present” in ‘B’

REFERENCE/FURTHER READING

Afe. B (2001) Law and Practice Evidence Intec Printers, Ibadan,

Nwadialo F. (1999) Modern Nigeria Law of Evidence, University of Lagos Press Evidence Act, LFN 2011.

Aguda . T (2007) The law of Evidence: Spectrum