"Section 37(a) and (b) defines what constitutes hearsay, both oral and documentary; while Section 38 expressly states that hearsay evidence is not admissible except as provided in the Act or any other Act. It is correct as submitted, that Section 125(a) (d) of the Evidence Act, 2011 provides inter alia that "oral evidence must, in all cases whatever, be direct".
The rationale for the rule can be said to be
(1) The unreliability of the original maker of the statement who is not in Court and not cross-examined;
(2) The depreciation of the truth arising from repetition;
(3) Opportunities for fraud;
(4) The tendency of such evidence to lead to prolonged inquiries and proceedings;
(5) Hearsay evidence tends to encourage the substitution of weaker evidence for stronger evidence. However, there are numerous exceptions to the rule, for instance(a) Dying declarations under Section 39(a) - Alli V Alesinloye (2000) 4 SC (Pt. 1) 111; (b) Evidence of traditional and communal history of land under Section 43 - Anka V Lokoja (2001) 4 NWLR (Pt.702) 178; (c) Admissibility of documents under Section 83 - Anyaebosi V RT Briscoe (Nig) Ltd (1987) 6 Sc 15; (d) Affidavit evidence under Section 108; (e) Res Gestae under Section 4; (f) Expert opinion under Sections 68-71; etc. In addition, and more relevant to these deliberations, Sections 41 and 51 of the Evidence Act provide as follows "41.
A statement is admissible when made by a person in the ordinary counsel of business, and in particular when it consist of any entry or memorandum made by him in books, electronic device kept in the ordinary course of business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind, or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him."
"51. Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
By this provision, a Court is permitted by law to admit in evidence records, as was done in the instant case, which records are said to have been meticulously kept in the course of the business of a company, and the issues relating thereto are brought before the Court upon an inquiry. In such a case, it is immaterial that the maker of the entries in the record does not testify in such a business concern. It is evident from Exhibit 6 - the letter of the EFCC to Saybolt Company, that it was a request for information on whether, based on the day to day activities of the company, such an operation was performed by the company for Brila Energy Ltd in 2010 in respect of the mother vessel MT Overeas Limar sometime in 2010, and whether the company kept a record of such.
By a combination reading of Sections 41 and 51 of the Evidence Act, records maintained by organizations and business concerns (such as corporations and bank) in respect of their day to day activities are business records which any of its officers, and not necessarily the maker, can give evidence of its contents. PW17, the Managing Director of Saybolt Nigeria, explained the process by which the report, Exhibit P7, was procured from its sister company, Saybolt Concremat in Brazil following the inquiry from the EFCC in Exhibit 5. The Appellant did not before the trial Court or even before this Court, contest that PW17 is not an employee/principal officer of Saybolt, a Division of Corelab Nig. What he tried to do instead in his cross-examination of the PW17 was to suggest that Saybolt, a Division of Corelob Nig., had no correlation with Saybolt Holland, the head office of Saybolt and Saybolt Brazil, the particular company office in Brazil which the Appellant, by the two documents submitted in Exhibit P1, alleged had inspected the product on the mother vessel, MT Overseas Limar in 2010.
However, PW17 succeeded in explaining the correlation between the companies, and more importantly the report, Exhibit p7, established that the counterpart of his company, Saybolt Brazil, did not issue the inspection report attached to the bundle of documents. In Exhibit P1. Consequently, the evidence of PW17 and Exhibit 7 do not constitute hearsay. It is also settled law that electronic evidence can be made in the ordinary course of business of establishments like bank and corporate bodies.
The condition for the admissibility of this kind of evidence is that the maker must have made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at the time still fresh in his memory. This is also the import of Section 41 of the Evidence Act."
Per SANKEY, J.C.A.IN JUBRIL v. FRN CITATION: (2018) LPELR-43993(CA)
