By Abubakar-D.-Sani

Introduction

It is probably fair to say that the rule against hearsay evidence and the right to fair hearing are two of the most familiar legal principles to both lawyers and non-lawyers alike. The reasons are not far-fetched, given their widespread application, to the extent that they almost always feature in counsel’s final addresses and notices of appeal, especially in criminal cases.

The hearsay rule, in particular, was recently invoked by the Code of Conduct Tribunal to discharge and acquit the Senate President, Dr. Bukola Saraki, of charges of false asset declaration. To the extent that the rule excludes evidence which would otherwise be admissible, I believe that it violates two rights: the right to fair hearing and the right to have one’s cause heard under the Constitution and the African Charter on Human and Peoples Rights, respectively.

Hearsay under the Law

By definition, the hearsay rule is a rule of evidence. The relevant provisions are contained in Sections 37, 38 and 126 of the Evidence Act, 2011, which provide as follows, respectively:

“37. Hearsay means a statement :

Oral or written made otherwise than by a witness in a proceeding; or
Contained or recorded in a book, document or any record whatsoever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it”
“38. Hearsay evidence is not admissible except as provided in this part or by or

under any other provision of this any other Act”

“126. Subject to the provisions of Part III, oral evidence shall, in all cases whatever,

be direct, if it refers to:-

A fact which could be seen, it must be the evidence of a witness who
says he saw that fact;

A fact which could be heard, it must be the evidence of a witness who says he heard that fact;
A fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
An opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds”
Suffice it to say that evidence given by a witness about a statement made to him by a person who is not himself called as a witness may, or may not be hearsay. It is hearsay and therefore inadmissible if the witness reporting it intends thereby to establish its truth; but it is not hearsay and therefore admissible if the purpose of tendering it is not to establish its truth, but to show merely that it was made: UTTEH vs. THE STATE (1992) 2 SCNJ pt.1 pg. 183. The rule applies to assertions by a person other than a witness, as well as documents tendered in court when no witness is testifying. Subject to certain exceptions in the Act, this latter category includes statements made to the police or other law enforcement agents by persons who are themselves not called as witnesses. See OKORO vs. THE STATE (1998) 12 SCNJ 84.

To the extent that the hearsay rule excludes evidence which, but for the rule, would have been admissible, I believe that the question is whether the rule does not abridge the right of a person to prove his case by whatever means available to him/her. Does the rule amount to an unconstitutional impediment or restriction on the fundament right of litigants to fair hearing or to have their causes heard under Section 36(1)(a) of the Constitution and Article VII(1)(a) of the African Charter on Human and Peoples Rights, respectively? We shall presently investigate in the light of the aforesaid provisions, starting with the Constitution.

The Right of Fair Hearing

This provision is one of the fundamental rights contained in Chapter II of the Constitution, specifically Section 36(1)(a) thereof. It states that in the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality. Whilst the Constitution does not, in terms, define “fair hearing” as including the right to admit hearsay evidence in proof of one’s case, it is trite that the Constitution, especially its fundamental provisions, should be interpreted liberally and broadly: DIRECTOR, STATE SECURITY SERVICE vs AGBAKOBA (1999) 3 NWLR pt. 595 pg. 425; GARBA vs. UNIVERSITY OF MAIDUGURI (1986) 17 NSCC 245 @ 282.

The constitutional right to fair hearing is derived from the twin common law principles of natural justice: audi alterem partem (hear the other side/hear both sides) and nemo judex in causa sua (no man should be a judge in his own cause). I believe that to the extent that the rule against hearsay has the effect of excluding the evidence of a party, it prevents that party from proving – or at least trying to prove – his/her case as he or she deems fit. To my mind, it simply denies a party of that prerogative – because, that is precisely what it is, having regard to the Constitution. I submit that the end result of this is to refuse to hear that party’s case. This clearly amounts to a denial of that party’s constitutional right of fair hearing: see ADIGUN vs. ATT-GEN. of OYO STATE (1987)18 NSCC pt. 1 pg. 346 @415.

The right to have one’s cause heard

Article VII(1)(a) of the African Charter on Human and Peoples Rights confers this right. The Charter is part of our municipal laws; it is superior to all laws except the Constitution: ANPP vs IGP (2007) 18 NWLR pt. 1066 pg.457@ 500C

In making the foregoing submissions, I concede that Sections 37, 38 and 126 of the Evidence Act 2011, which prescribe the rule, were enacted by the National Assembly pursuant to powers granted by Section 4(3), Item 23 of the Exclusive Legislative List and Paragraph 2(b) of Part III of the 2nd Schedule to the Constitution. I, however, hasten to add that given that these provisions are general, whilst those of Section 36(1)(a) of the Constitution are special, the latter prevail, as generalia specialibus non derogant. See INDEPENDENT TELEVISION & RADIO vs EDO STATE BOARD OF INTERNAL REVENUE (2014) All FWLR pt. 759 pg. 1144 @ 1167G

At any rate, the Supreme Court has held “a constitutional power cannot be used by way of condition to attain unconstitutional results.“ See ATT-GEN OF BENDEL STATE vs. ATT-GEN OF THE FEDERATION (1981) 12 NSCC 314. This means that the power given by the Constitution to the National Assembly to enact rules of evidence should not be exercised to impose such conditions for the admissibility of evidence as would qualify/abridge the constitutional right of litigants to fair hearing. To the extent that the right of fair hearing is entrenched in the Constitution, “it overrides all contrary provisions in any law of the land, be they substantive or adjectival”: KOTOYE vs. CBN (1989)1 NWLR pt.98 pg. 419. In other words, the right to fair hearing “cannot be displaced by any legislation, however unambiguously worded”: L.P.D.C. vs FAWEHINMI (1985)2 NWLR pt. 7 pg. 300 @ 370

Conclusion

Civil liberties are a critical measure of the rule in law in all civilized societies. Nigeria is not an exception. The constitutional guarantee of fair hearing is at the heart of our litigation adjectival jurisprudence. The supremacy of the Constitution means nothing if not the subordination of all laws to the Constitution. I believe that notwithstanding that the Constitution has empowered the National Assembly to make rules of evidence, the Assembly would be overreaching itself, i.e., acting ultra vires, if it purports to circumscribe or abridge the fundamental right of fair hearing, by denying litigants of the right to present their cases as they deem fit.

Whilst it is the indisputable prerogative of any court established by law to decide what weight, if any, to attach to any piece of evidence, it is however, another matter for the Legislature to purport to prescribe, ab initio, what specie of evidence a court may admit. I submit that to the extent that the hearsay rule under Sections 37, 38 and 126 of the Evidence Act makes this provision, it is ultra vires the National Assembly, invalid, null and void. In my view, all evidence should always be admissible under the inherent jurisdiction of a court as preserved in Section 6(6)(a) of the Constitution. See ONYENUCHEYA vs. MIL. ADMIN. OF IMO STATE (1997)1 NWLR pt. 482 pg. 429. This power should be subject only to the discretion of the court as to the weight to be attached to evidence in any given case. It is, however, settled that such power – like all judicial discretion – should always be exercised both judicially and judiciously.

Written By Abubakar D. Sani, Esq