LEGAL PRINCIPLE: EVIDENCE LAW — Admissibility of Evidence — Section 34(3) of Evidence Act — Applicability — Absence of Public Servant as Witness
PRINCIPLE STATEMENT
Section 34(3) of the Evidence Act provides that the absence of a public servant required to give evidence is sufficiently accounted for by the production of a Gazette, telegram, or letter from his head of department explaining his absence. Where a witness who recorded a statement testifies, the section does not apply.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Ikpo v. The State (1995) NLC-1321994(SC) at pp. 7–8; Paras. D–B.
"Section 34(3) of the Evidence Act simply makes provision to the effect that the absence of a public servant required to give evidence in a judicial proceeding is sufficiently accounted for by the production of a Gazette, or a telegram or letter purporting to emanate from his head of department sufficiently explaining his absence to the satisfaction of the court. Where the trial court found that the statements in issue were duly made to and recorded by P.W.7 who tendered them in evidence, no question of the application of the provisions of section 34(3) of the Evidence Act to the facts of the case arises."
EXPLANATION / SCOPE
Section 34(3) applies when a public servant who recorded a statement is absent and cannot be called. If the recording officer testifies, the section is irrelevant. The provision allows proof of absence through official communication. The principle ensures that the absence of a public servant does not prevent admission of evidence. The court must be satisfied that the absence is adequately explained. The rule applies to statements recorded by police officers and other public servants. The party tendering the evidence must comply with the section if the recorder is absent. The section is an exception to the hearsay rule.