AL HIKMAH UNIVERSITY ILORIN, NIGERIA

FACULTY OF LAW
GROUP 7
Question: Under S1 of the Evidence Act, there is provision as to rule
of exclusion of relevant facts which includes oral evidence. Examine
such rule of exclusion that affects oral evidence.
Prepared by:
1. Lawal Aishat Omolade 17/05CIL007
2. Yakubu Rukaiyat 18/05CIL023
3. Bashir Safiya Dawaki 17/05CL011
4. Momoh Hadizat Hamid 17/05CL013
5. Dikko Halimah Wuraola 18/05CIL024
6. Muhammad Habiba Abdulsalam 17/05CIL012
7. Jimoh Sulaiman 17/05CIL018
8. Adebomehin Zaynab Wuraola 17/05CIL002

To:
SA ABDULLAHI (ESQ)
 INTRODUCTION
It is imperative and of great importance to understand the
meaning of evidence in order to answer any question relating to it.
Evidence has been the subject of different definitions by different
writers.
PHIPSON’S LAW OF EVIDENCE on evidence stated that evidence
means
“The testimony whether oral, documentary or real, which may
be legally received in order to prove or disprove some facts in
dispute”
According to AKINOLA AGUDA, evidence is the means by which facts
are proved but excluding inferences and arguments. The learned
author stated as follows:
“It is common knowledge that a fact can be proved by oral
testimony by persons who perceived the fact or by the production
of documents or by the inspection of things or places-all this will
come within the meaning of judicial evidence. On a very broad
view, it is sometimes, permissible to include in this list such other
means of proving a fact as admissions and confessions, judicial
notice, presumptions and estoppels”
The law of evidence comprises of the rules and legal principles
that govern the proof of facts in a legal proceeding. These rules
determine what evidence that should or should not be considered by
the court in reaching its decision.
The law of evidence also concerns with the amount, quality and
type of proof required to prevail in litigation. However, in a criminal
matter, there are a number of issues which either the prosecutor or
the defence will have to prove in order to persuade the court to find
in their favour. The law must therefore ensure certain guidelines are
set out in order to make certain that the evidence adduced before
the court is reliable.
The most important of the rules of evidence is that, generally,
hearsay evidence is inadmissible. However, there are certain
exceptions to this rule under the Nigerian Evidence Act of 2011. The
obvious one is the dying declaration.
In summary, the law of evidence deals with use of evidence to
establish or prove fact on which claims, charges and defences of
litigants are based before a judicial tribunal.

S1 OF THE EVIDENCE ACT PROVIDES THAT:

“Evidence may be given in any suit or proceeding of the existence of
every fact in issue and of such other facts as are hereafter declared
to be relevant, and of no others.
Provided that:
a. The court may exclude evidence of facts which though
relevant or deemed to be relevant to the issue, appears
to it to be too remote to be material in all the
circumstances of the case; and
b. This section shall not enable any person to give evidence
of a fact which he is disentitled to prove by any provision
of the law for the time being in force”
As a general rule, it is only facts which are relevant to the fact in
issue or some other fact relevant to the fact in issue that can serve as
the foundation for the admissibility of a piece of evidence. Every fact
which is in issue is a relevant fact of which evidence can be given.
For instance, in an action for slander, whether the defendant
uttered the words alleged to be slanderous is a fact in issue. A person
who heard the defendant utter the words can give evidence of what
he heard the defendant say. However, according to the above cited
section, some relevant facts may not be admissible if the court
considers them too remote or obscure. This exclusion also affects
oral evidence in certain circumstances.
ORAL EVIDENCE
S125 – S126 OF THE EVIDENCE ACT provides for Oral evidence under
law of evidence in Nigeria.
S125 of the Evidence Act provides that:
“All facts, except the contents of documents, may be proved
by oral evidence”
Oral evidence simply means evidence given orally. It is the
verbal testimony of a witness. Generally, it is spoken evidence given
by a witness in court, usually under oath.
S126 PROVIDES THAT:
“Subject to the provisions of part III, oral evidence shall, in all cases
whatever, be direct if it refers to-
a. A fact which could be seen, it must be the evidence of a
witness who says he saw that fact;
b. To a fact which could be heard, it must be the evidence of a
witness who says he heard that fact;
c. To 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;
d. If it refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the persons who
holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise
commonly offered for sale, and the grounds on which such
opinions are held, may be proved by the production of such
 treatise if the author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as a witness
without an amount of delay or expertise which the court regards
as unreasonable”
This section refers to hearsay rule as an exclusion of relevant facts in
oral evidence. Therefore, the hearsay rule shall be examined briefly;
THE HEARSAY RULE
Hearsay evidence is defined under S37 OF THE EVIDENCE ACT 2011
as meaning “a statement-
a. oral or written made otherwise than by a witness in a
proceeding; or
b. 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”
S38 provides for the hearsay rule. It states thus:
“Hearsay evidence is not admissible except as provided in this part
or by or under any other provision of this or any other act”
Hearsay is one of the largest and most complex areas of the law
of evidence in common law jurisdiction. The default rule is that
hearsay evidence is inadmissible. Hearsay is an out of court
statement offered to prove the truth of the matter asserted.
It is defined simply as any statement made outside of court that
is offered in evidence to prove the truth of the matter asserted.
The statement may be oral or written, or it may be non-verbal
conduct intended as an assertion, such as pointing to a crime suspect
in a police line-up. It is generally inadmissible, since the judge is
unable to form an opinion regarding whether the person making the
out-of-court statement is reliable. It is the testimony by a witness of
what other persons have said, not what he or she knows personally.
It is a statement which is not made by a person while giving oral
evidence in a proceeding and which is to be tendered as evidence of
the matters stated.
The elementary position of the law is that hearsay evidence is
of no evidential value and thus ought not to be admitted in evidence
and even when it was wrongly admitted, it should be expunged from
the court’s records. Certain rationale and decided cases have for a
long time ago formed the bedrock of this rule;
In FRN V USMAN (2012) 8 NWLR (pt. 1301) 141, the Nigerian
supreme court recently observes that hearsay evidence is secondary
evidence of an oral statement best described as second-hand
evidence. What a witness says he heard from another person is
unreliable for many reasons. For example, he may not have
understood the informant/interpreter, or he may say things that
were never said. Such evidence remains hearsay evidence because it
cannot be subjected to cross-examination in the absence of the
informant/interpreter. Although, the supreme court made it clear in
JAMB V ORJI(2008) 2 NWLR (PT.1072)522 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 establish the truth of what was
contained in 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.
A witness is expected to testify in court on what he knows
personally. If the witness relies on what he heard from some other
persons or rather what a third party has said based on facts not
within perfect knowledge, his evidence is certainly hearsay. Such
evidence is to inform the court of what he heard the other person
say, for instance this is prevalent in cases of slander. Similarly, if on
the other hand, his testimony is to establish the truth of an event in
question, or the contents of his statement, it is not hearsay but
admissible evidence.
A piece of evidence may not be hearsay depending on the
purpose for which it is given. If it is given to prove the truth of what is
asserted, the person giving such evidence because it is not from his
personal knowledge gives hearsay evidence and it is inadmissible.
But where the evidence is given in order to prove that the averred
statement was made or the state of things existed, the evidence is no
more hearsay, but original and admissible.
However, where a narration was made in the presence of a
witness to the hearing of the person against whom such evidence is
later sought to be used, it cannot be contended that what the
witness says is hearsay
They are some Exceptions to the hearsay rule;
Generally hearsay evidence are not admissible this is because
they cannot be regarded as oral evidence and are not real.
 CONCLUSION
At common law and in Nigeria, hearsay evidence arises where a
witness in his own testimony makes a statement, oral or written
made by another person who experienced, heard and saw an
incident happen in order to establish the truth asserted. Such
testimony is generally inadmissible because the informant who
witnessed the vent is not in court to prove the truth of his statement
under oath. Hearsay evidence is weak and untrustworthy to be relied
on by the courts, the same not being the testimony of a person who
witnessed the event.

REFERENCES
1. AGUDA: the Law of Evidence
2. Introduction to Law of Evidence in Nigeria by Chris C. Wigwe
3. Evidence Law: Theory and Practice in Nigeria by Joash O.
Amupitan, Ph.D
4. The Evidence Act, 2011
5. Researchgate.net
6. Lawnigeria.com
7. Lexology.com
8. Legalemperors.blogspot.com