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
