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HEARSAY RULE EXCEPTED IN TESTIMONY GIVEN BY ANY COMPANY EMPLOYEE

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Dictum

In Ishola v. Societe Generale Bank Ltd. (1997) 2 NWLR (Pt. 488) 405, the apex Court held: it cannot be over emphasized that a company being a legal person or a juristic person can only act through its agents or servants and any agent or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one, who actually took part in the transaction on, behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence, Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. [1985] 2 NWLR (Pt. 5) 116; Anyaebosi v. R. T. Briscoe (Nig) Ltd. [1987] 3 NWLR (Pt. 59) 84; Chief Igbodim and Ors. V. Chief Ugbede Obianke (1976) 9-10 SC 178, 187 etc.

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WHEN OBJECT OF EVIDENCE IS TO PROVE TRUTH OF STATEMENT MADE BY ANOTHER, IS HEARSAY

Subramaniam v. Public Prosecution (1956) 1 WLR 965 at 969, it was held that: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to prove the truth of the facts asserted by the statement. It is not hearsay and is admissible when it is proposed to establish by evidence not the truth by the statement but the fact that it was made'”

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NATURE OF HEARSAY EVIDENCE – RATIONALE FOR HEARSAY EVIDENCE EXCLUSION

Now, the law is settled that any statement made to a witness by a person who is not himself called as a witness is hearsay if the statement seeks to establish the truth of what is contained therein and therefore inadmissible in evidence pursuant to Section 77 of the Evidence Act. This is because such evidence which consists of a retell of a story told by another person would not be direct oral evidence of the fact in respect of which it is given. Put simply, it would be a tale retorted. The rationale for the rejection of such story telling was beautifully stated by EJINWUNMI JSC in the case of EJIOFOR V. STATE (supra) and quoted by the learned counsel for the Appellant in the Appellant’s brief. I can’t resist reproducing it here. At page 221 of the report, the learned JSC put the rationale thus:- “The hearsay rule is a very salutary rule indeed. It is a rule, which is grounded upon commonsense as the focus of it is to prevent a person from being accused or found guilty of an offence, which he did not commit. It is a self-evident fact; malevolent people could manufacture such evidence as they would to falsely accuse persons of offences, which they did not commit. By reason of this rule, Courts are enjoined and indeed under a duty not to accept and/or convict an accused person upon testimony of witnesses who did not see, hear, or had perceived by any other sense or in any other manner, the facts given in their testimony at a criminal trial of an accused person, as in the instant case or even in a civil case. This rule except for such exception as res gestae rule and certain recognized statutory exceptions which we are not concerned with in this case, is mandatory for all Courts. Should a trial Court convict an accused person upon evidence adjudged to be hearsay evidence, an appellate Court may quash such convictions, if there is no other evidence upon which the conviction of the accused could be properly and safely convicted?”

– M.L. Garba JCA. Odogwu v. Vivian (2009) – CA/PH/345/05

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HEARSAY EVIDENCE NOT ADMISSIBLE

In JAMB V. ORJI (2008) 2 NWLR (PT. 1072) 552, the Court held: “What then is hearsay? Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was made.” See also UTTEH V. STATE (1992) LPELR6239; UKUT V. STATE (1995) LPELR-3357(SC); KASA V. STATE (1994) LPELR-1671 (SC), BUHARI V. OBASANJO (2005) LPELR-815 (SC).

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MEANING OF HEARSAY

By the hearsay rule, an assertion other than one made by a person while giving oral evidence in Court is inadmissible as evidence of the facts asserted. In very simple terms, hearsay evidence is any statement made out of Court but offered in Court to prove the truth of the facts asserted in Court. It is testimony or documents quoting people who are not present in Court, making it difficult to establish its credibility or to test it by cross examination. It is hearsay if the evidence seeks to establish the truth of a statement and not merely the fact that it was made.

— O.A. Otisi, JCA. Brila Energy Ltd. v. FRN (2018) – CA/L/658CA/2017

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HEARSAY EVIDENCE IS TO HELP COURT AS TO WHAT ANOTHER SAID, BUT NOT ESTABLISH THE TRUTH

One of the remnants of the appellants grouses is against the evidence proffered by PW1. They branded it as inadmissible hearsay. In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event, see Section 37, 38 and 126 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Opara v A. G. Fed. (2017) 9 NWLR (Pt. 1569) 61.

— O.F. Ogbuinya, JCA. Impact Solutions v. International Breweries (2018) – CA/AK/122/2016

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HEARSAY EVIDENCE WHEN WITNESS IS NOT THE MAKER

It is trite law that evidence of a witness who is not the maker of such statement is hearsay evidence and generally not admissible. See Sylvester Utteh v State (1992) 2 NWLR part 223-257, SUBRAMANIAN VS PUBLIC PROSECUTOR (1956) 1 WLR 965. State v Masiga (2017) – SC

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