A Critique of the Limitation of the Right of Fair Hearing by the Exclusion of Hearsay Evidence

Abstract

Judicial proceedings under the Nigerian judicial system are adversarial in nature. In this system,
the parties either in prosecuting or defending their cases must present sufficient evidence to be
entitled to judgment as per the allegation(s) contained in their pleadings or information.
Meanwhile, the judge under this system sits as an independent umpire to examine the evidence
presented for and/or against the claim or defence by the parties. The Court is to be guided by the
law and rules of evidence as to who has the burden and standard of proof required as well as what
evidence to admit or exclude. The law of evidence, being a matter under the exclusive Legislative
List, is enacted by the National Assembly and regulates the rules on proceedings relating to
evidence in most Nigerian Courts in addition to judicial decisions as well as other recognized
Laws, Charters, or Protocols. The Nigerian Constitution guarantees as fundamental to her
citizens, the rights to fair hearing, right to have their causes heard within a reasonable time and
to defend themselves in person or by legal practitioners of their choice. Would it not therefore
amount to unconstitutionality, when the law of evidence which is largely adjectival that should not
be found contrary to the provisions of the Constitution, patently excludes from admissibility,
evidence which are categorized as hearsay? This paper, using the doctrinal research methodology,
answers this question in the affirmative and offers some recommendations for improvements in
this area of law and practice.