Does The Rule Against Hearsay Violate The Right To Fair Hearing?

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 :

1. Oral or written made otherwise than by a witness in a
   proceeding; or
2. 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:-

1. A fact which could be seen, it must be the evidence of a
   witness who

says he saw that fact;

1. A fact which could be heard, it must be the evidence of a
   witness who says he heard that fact;
2. 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;
3. 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
2^nd 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

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 :

1. Oral or written made otherwise than by a witness in a
   proceeding; or
2. 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:-

1. A fact which could be seen, it must be the evidence of a
   witness who

says he saw that fact;

1. A fact which could be heard, it must be the evidence of a
   witness who says he heard that fact;
2. 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;
3. 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
2^nd 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