LEGAL PRINCIPLE: EVIDENCE LAW — Admissibility of Previous Evidence — Section 34(1) of the Evidence Act — Strict Compliance Required
PRINCIPLE STATEMENT
Before evidence given in a previous case can be received as substantive evidence, all conditions laid down in section 34(1) of the Evidence Act must be complied with; compliance is a statutory requirement, and the evidence cannot be admitted by consent without compliance.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Shanu & Anor v. Afribank Nigeria Plc (2002) NLC-1691997(SC) at pp. 36–37; Paras D–A.
"Before the evidence given in a previous case can be received as substantive evidence of the truth of what it states, all the conditions laid down in the subsection must be complied with. Compliance therewith is a statutory requirement to make such evidence legally admissible. That is why it is irrelevant whether there was no objection to its admission. In other words, unless there is compliance, the evidence cannot be admitted by consent."
EXPLANATION / SCOPE
Section 34(1) of the Evidence Act 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. These conditions are mandatory. Even if the parties consent, the court cannot admit previous evidence without compliance. The principle ensures that the best evidence—live testimony—is used whenever possible. The rule protects the right to cross-examine. The court must reject inadmissible evidence even if no objection is raised. The burden is on the party tendering the evidence to prove the conditions. The principle is fundamental to the law of evidence.