LEGAL PRINCIPLE: EVIDENCE LAW — Admissibility of Evidence — Previous Proceedings — Section 34(1) of the Evidence Act — Statutory Provision Must Be Observed Before Such Evidence Can Be Admitted
PRINCIPLE STATEMENT
Section 34(1) of the Evidence Act stipulates mandatory conditions for admitting evidence of a witness in a previous proceeding; these conditions must be observed before such evidence can be admitted.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in Eghobamien v. Federal Mortgage Bank of Nigeria (2002) NLC-1191997(SC) at p. 9; Paras D–E.
"Section 34(1) of the Evidence Act stipulates conditions under which evidence of a witness in a previous proceeding may be admitted in a subsequent proceeding or in a later stage of the same proceeding for the purpose of establishing the truth of the facts which it states. That section is a statutory provision which must be observed before such evidence can be admitted."
EXPLANATION / SCOPE
Section 34(1) requires that the witness is dead, cannot be found, is incapable of giving evidence, or is kept out of the way by the opposing party before previous testimony can be admitted. These conditions are mandatory. The party seeking to admit such evidence must satisfy the court that the conditions are met. The provision ensures that the best evidence—live testimony—is used whenever possible. The rule protects the right to cross-examine. The court cannot admit previous testimony without strict compliance. The principle applies to both criminal and civil proceedings. The burden is on the party tendering the evidence to prove the conditions.