The importance of
evidence in a judicial proceeding cannot be over-emphasis. Cases are won or
lost based on the evidence presented in proof of such case. Proof by evidence
forms the fulcrum of all judicial proceedings, especially where issues of fact
are raised. Evidence whether Oral or documentary consists of facts and facts
are the fountainhead and forerunners of the law.
Evidence has been defined by the Court in the case
of Onya V Ogbuji  as
“The term evidence has been aptly described
as any specie of proof, or probative matter legally presented at the trial of
any issue, by the parties and through the medium of witnesses, records,
documents, exhibits, concrete objects, etc. for the purpose of inducing belief
in the mind of the court or jury as to their contentions”
While Evidence is very important in every judicial proceeding,
it is the duty of the party that wishes to rely on a fact to adduce such
evidence. It is not the duty of the court to search for or provide evidence for
any of the parties.
Evidence to be presented in court can be declared
admissible in law or inadmissible. While
it is widely declared that relevancy is the hallmark of admissibility, yet it
is possible for evidence to be relevant but not admissible. The Supreme Court in Ogunbadejo Vs Owoyemi  held that where evidence is led on a point which is not relevant to the case the
party is trying to establish, such fact is inadmissible.
For evidence to be admissible, it has to be given by
a witness who had knowledge of the fact it seeks to establish. Although a fact
may be relevant to the issue and sought to be presented but the fact that the
witness did not have direct knowledge of the fact may make such inadmissible.
This is because evidence given by a witness concerning a statement made to him
by a person who was not called as a witness may amount to hearsay evidence where
such witness intends to establish the truth of such statement. When a third
party relates a story to another as proof of contents of a statement, such
story is hearsay.
of the Evidence Act  provides that
Hearsay Evidence means
a. Oral or written made otherwise than by a witness in a
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.
Supreme Court in Ojo V Gharoro  held that
“Hearsay evidence is all evidence which does not derive its value
solely from the credit given to the witness himself, but which rest also, in
part, on the veracity and competence of some other person”.
The basis why the court
holds such statement as hearsay is because the real makers of the statements
were not called as witnesses in that proceeding, hence it will amount to “reported speech’ and because it is absolutely
impossible to guaranty the veracity of
the statement. Such statement has the possibility of being tainted by fraud.
A Yoruba adage states
that reported speech should not be trusted because it is either some extra
comment are added to it to garnish it and make it interesting to those it is
being reported to or some word may be removed.
Going by the above, how
does a party prove his case when the evidence he needs is from witnesses that
can no longer be called to give evidence.
Mr. Ajalekoko is the
beneficiary owner of a plot of land at Elegushi Estate Lekki, Lagos State. He
got the land from his late father (Chief Ajalekoko) via the probate of his last
Will and Testament dated the 14th of June 1998. Chief Ajalekoko bought the land from the
Elegushi family sometimes in 1967. In
2009, some people came on the land and constructed a fence round it within a
day. When Neighbours around called Mr. Ajalekoko to tell him, he went to the
property and discovered that a fence had actually been built on the land. He met
some touts on the land who warned him not to ever come into the land again
because the owners of the land had taken over. The said owners were purportedly
executing a court judgment which showed that they were the owner.
Distrust, Mr. Ajalekoko
conducted a search at the Lagos High court Igbosere and indeed confirmed that
there was a judgment which declared that the subject land belongs to Mr. Agbekoya.
Mr. Ajalekoko decided to sue Mr. Agbekoya
and contest the validity of the Judgment made against his land when he was not
a party to the suit. Trial commenced in
September 2011 and Mr. Ajalekoko called three witnesses, relied on the survey
plan his late father made in 1967 when he bought the land because (Chief
Ajalekoko had not registered his title on the land before his death in 1998). He also called an eye witness (Chief Raji) who
was present the day his father bought the land and also had an adjoining
property to the subject site. This witness was a key witness for Mr. Ajalekoko
as he was just 7 years old in 1967 when his father bought the land.
After Mr. Ajalekoko
closed his case, the Hon. Judge handling the matter retired and his file had to
be reassigned to another Judge for trial to start de novo. However, before
trial could commence before the new Judge, Mr. Ajalekoko’s star witness
died. His second witness who was the
only surviving Executor of his father’s Will and Testament and who incidentally
was the Surveyor that prepared the Survey plan also became sick and was
diagnosed of Brain Tumor which made it impossible to present him as a witness
before the new Judge.
How will Mr. Ajalekoko
prove his case in order to ensure victory in court when all his previous
witnesses can no longer be called as a witness? Is there any provision of the
Law that Mr. Ajalekoko can find succor?
The Focus of this paper is therefore
whether evidence which has been given in an earlier judicial proceeding by a
person be admitted in another judicial
proceeding? Will such not amount to hearsay evidence? What leeway is available
to litigants where a higher/ court of appellate jurisdiction makes an order for
retrial of a suit. Can the Evidence
given by Mr. A in a suit between Mr. B and C be admitted in evidence in another
suit? What are the conditions that must be fulfilled before such evidence could
Situations abound when a credible
witness whose evidence is very important to the success of a matter can no
longer be available to give such evidence. The law has provided a ray of hope
to litigants whose success depends on the evidence of a particular witness but
who unfortunately cannot be called as a witness in their case. Such ray of hope however is only available
where such witness had given evidence in a particular case or had earlier made
statements that the court can determine as relevant and admissible.
The Supreme Court in the case of Sanyaolu V Coker  (1983) SCNLR 168 noted that:
“The fact that a retrial was ordered would
not render abortive the evidence of the witness who testified in the abortive
trial, where such evidence is admissible, but the judgment of the court in the
said abortive trial. The Judgment of the court cannot be used in support of a
plea of res judicata since the Judgment was nullified. Obviously, since a
retrial has been ordered and the case is to be heard de novo, the plaintiff
must reprove his case as if there had been no earlier trial but in doing this,
he is not precluded from taking advantage of whatever the provisions of any law
have for him” ………per Aniagolu
S 39 of the Evidence Act 2011 provides
for statements that will be regarded as admissible and will not offend the rule
against Hearsay evidence.
whether written or oral of facts in issue or relevant facts made by a person
(a) Who is dead:
(b) Who cannot be
(c) Who has become
incapable of giving evidence; or
(d) whose attendance
cannot be procured without an amount of delay or expense which under the
circumstances of the case appears to the court unreasonable, are admissible
under section 40 to 50”.
By this provision, a statement made by
someone that is dead, someone who cannot be found after some amount of effort
has been expended to locate such person, someone who is incapable of giving
evidence based on circumstances that may be irreversible such as ill health, or
persons whose attendance cannot be procured without an amount of delay, such as
expecting the CJN to give evidence in your case in his personal capacity or
where the cost of getting such person to give evidence will be too expensive eg
trying to get a witness who is based
abroad to come to Nigeria to give evidence and the court considering the reason
is of the opinion that getting such person to come and give evidence will be
unreasonable will allow statements[ whether Oral or Written] made by such
persons to be admitted under the provision of S40-50 of the evidence Act.
S 46 of the Evidence Act 2011 provides
“Evidence given by a
witness in a judicial proceeding, or before any person authorized by law to
take it is admissible for the purpose of proving in a subsequent judicial
proceeding or in a later stage of the same judicial proceeding the truth of the
facts which it states. When the witness cannot be called for any of the reasons
specified in section 39 or is kept out of the wav by the adverse party:
(a) The proceeding was
between the same parties or their representatives in interest:
(b) The adverse party
in the first proceeding had the right and opportunity to cross examine; and
(c) The questions in
issue were substantially the same in the first as in the second proceeding”
This provision of the evidence Act
makes it clear that evidence given by a witness in a judicial proceeding is
admissible for purpose of proving in a later stage of the same judicial
proceeding the truth of the fact which states. Such evidence will be admitted where the
witness whose evidence is sought to be admitted cannot be called as a witness
because the witness is dead or cannot be found or is incapable of giving
evidence or to procure such attendance will portend an amount of delay or
expense. Hence, evidence of a witness given in an earlier judicial proceeding,
which is required in a subsequent proceeding, may be admitted.
The proviso to this privilege is
however premised on the following fact:
The proceeding was between the same parties or their representatives in
(b) The adverse party in the first
proceeding had the right and opportunity to cross examine; and
(c) The questions in issue were
substantially the same in the first as in the second proceeding.
Hence, when a witness who had
testified in a previous proceeding dies or is unable to come to court to give
evidence in a subsequent proceeding due to any of the reasons provided in S 39
of the Evidence Act, then the party seeking to rely on the provision of S 46
must prove to the court that the conditions of S 46 is present.
a. That the
proceedings was between the same parties or their representatives in interest:
To effectively rely on the provisions
of S 46(1), the applicant must prove to the court that the parties in the
current suit are the same parties in the previous suit. The provision will not
avail the applicant where the parties in the current suit are only some of the
parties in the previous suit or vice versa. If in the previous suit, the
parties were Mr. A and B, the current suit must be between Mr. A and B. The fact that a trial denovo was ordered does
not make it a different suit but the same suit in a subsequent proceeding.
b.That the adverse
party in the first proceeding had the right and opportunity to cross-examine:
The law is clear that not only must
the previous suit be between the parties but the evidence sought to be admitted
must have been cross examined by the adverse party. The Supreme Court in the case of Onu V Idu  held that the language of
S 34 (1) of the evidence Act [now S 46 (1)] is plain and simple to understand.
The court noted that depositions made in an affidavit which is sought to be
admitted under S 34 (1) could not be admitted since the deponent was not cross
examined before by the adverse party.
c.The questions in issue were substantially the
same in the first as in the second proceeding:
S.T Hon in his book Law of Evidence in
Nigeria  noted that:
for this is that such issue must have been sufficiently tested under cross
examination in the 1st suit. In essence, if the questions are not
substantially the same hence were mostly likely untested under cross
examination in the 1st trial, the deposition will be inadmissible”.
In Elegushi V Oseni  , Onu. J.S.C noted that:
“the three proviso stipulated in S 34 of the
Evidence Act (ibid) it was stressed, must co-exist before the exhibit C can be
properly admitted for the purpose of proving the truth of any facts stated
In Ayorinde V Sogunro ,
the Supreme Court stated the following additional principles with respect to
the applicability of the provisions under S 34(1) of the repealed Act (now S 46(1)
of the Evidence Act 2011.
Section allows a court to make use of evidence in previous proceedings, where
the maker is dead or cannot be found or is incapable of giving evidence, all of
which concerns two separate suits- one previous and the other current-where the
questions in issue are substantially the same.
d. However, if the previous judgment was set aside for want to jurisdiction, it cannot be relied upon under the subsection.
The question therefore is how would such evidence be tendered
Usually the party seeking to rely on the evidence of his
previous witness will have to bring an application to court by motion on
notice. His affidavit must state the reason why he seeks to rely on the
previous evidence instead of calling the witness anew. He needs to also show by
his affidavit, facts which make the provisions of S 39 applicable to his
case. Ultimately, the evidence sought to
be relied upon must be exhibited in the affidavit. The court will consider and
grant the application if there is no overriding objection to the
Hence, the certified true copy of the evidence of the witness sought to be tendered as evidence may be tendered by the party while in the witness box or by his counsel from the bar with the leave of the court.
 (2011) All FWLR (pt. 556) 493 at 517 C.A
1993) 1 NWLR ( pt. 271) 517
 (2006) All FWLR ( pt. 316) 197 at 217
 (1983) SCNLR 168
2006) 9 M.J.S.C pg. 199 at 214
 Based on the Nigeria Evidence Act, 2011, ( 2nd Edition) (Vol 11 ) Chapter 13 at page 1141
 (2005) 14 NWLR (PT
945) 348 at 371 para F.
 ( 2012) 11 NWLR ( Pt. 1312) 460 at 477-478 SC
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