LEGAL PRINCIPLE: EVIDENCE LAW — Admissibility of Previous Evidence — Section 34(1) of the Evidence Act — Witness Must Be Unavailable
PRINCIPLE STATEMENT
Evidence from a previous proceeding is hearsay unless the witness is dead, cannot be found, is incapable of giving evidence, or is kept out of the way by an adverse party; the conditions in section 34(1) must be met.
RATIO DECIDENDI (SOURCE)
Per Nsofor, JCA (as quoted by Uwaifo, JSC), in Shanu & Anor v. Afribank Nigeria Plc (2002) NLC-1691997(SC) at pp. 9–10; Paras E–A.
"There is nothing in the cold, printed record before me indicative that Francis Shanu and any of the defendants, qua appellants herein, the defendants' witnesses are dead or cannot be found or incapable of giving evidence or, are kept out by any adverse party. No. It seems to me that the conditions laid down in section 34(1) of the Evidence Act (supra), do not apply to Francis Shanu. They do not apply to the defendants and the defendants' witnesses in the previous proceedings before Obi, J. No. The evidence by Francis Shanu and the defendants and the defendants' witnesses, to whom the conditions in the section 34(1) (supra) do not apply, in the hands of any person(s) is hearsay."
EXPLANATION / SCOPE
Previous testimony is hearsay unless the witness is unavailable under one of the specified conditions. The party tendering the evidence must prove unavailability. The principle protects the right to cross-examine. The court cannot assume unavailability. The rule applies to both criminal and civil proceedings. The evidence is inadmissible if the witness is available. The party may call the witness live instead. The principle ensures that only necessary exceptions to the hearsay rule are allowed. The court will reject previous evidence where the witness is available.