Exceptions To Inadmissibility of Hearsay Evidence Under Shari’a Law

It is trite that no contentious proceedings can be sustained in any court without proof of evidence in Nigeria, be it English received law, Sharia or Customary laws. Civil or criminal alike.

There is the general principle that hearsay evidence is inadmissible with certain exceptions as we intend to discuss later.

Hearsay evidence as defined by Merriam Webster is evidence based not on a witness’s personal knowledge but on other statement not made under oath.

Black’s Law dictionary sees it as testimony about court statement that is involving someone other than the person that is testifying.

In Nigerian case law of Jolayemi vs. Algoye (2004) 12 NWLR (pt887)322, hearsay evidence is defined hearsay as ‘evidence given by a witness as to what he was told on a given fact in issue and not from personal knowledge’.

Similar decision was held in Onyeka Mberi vs. State CA/ow/351/M/2012, under Islamic law, hearsay consists of statements made out of court by someone other than the witness which are offered by the prosecution. See Saudi Gazette Understanding and dealing with hearsay evidence Jounal no.142303 Ma-July 1993 p. 5,6, 34-39.

In Maliki School of thought, Ibn Arafat Almaliki defined it as a ‘statement offered by a witness based on what he heard from somebody who is not before the court’. See Albahajat fi Sharhil Tuhfah vol.1 p.255 by by Hasan Ali

Having understood what hearsay evidence connotes, like the Nigerian law, its implication is that it is generally inadmissible. See Qur’an Chapter 2 v. 281 and section 38 Evidence Act.

However, like section 38- 40 of the Evidence Act, Sharia law establishes the exceptional area where hearsay evidence could apply.

Abul Aseem Al’andalusy in his book “Tuhfatul Hukkam Fi Naktil Ukoodi Wal Ahkam” categorically stated that hearsay could be applied in situation like; pregnancy, marriage, breast suckling (hadaana), menstrual circle, inheritance, birth, faith and apostasy.

Character impeachment, lack of maintenance, maltreatment of spouses and slaves. See Prose 177 Abdurrahman bn Muhammad Almaliki in his book “Alirshadil Salik Ila Ashrafil Masalik” p. 11, concurred with the above scholar and added guardianship, (talaq) and commercial transactions are more areas.

Sheikh Abubakar Hasan was of the view that hearsay evidence is appropriately applied in about 32 cases. See Ashalul Madaarik Fee Sharhil Irshdil Saleek P.219.

Again, all the jurist have unanimously agreed that an applicant must satisfy 3 conditions before hearsay evidence is said to have validly applied.

1. The witness must be a just, reliable and trustworthy. A just witness under Sharia law is a person who does not commit what is termed as capital sin/offence like telling lies, adultery or fornication slandering or backbiting …., and also he must not be considered as deviant in the community he lives by going against the standard norms and values of the community. Tuhfatul Hukkam Chapter of Witness p.7.

2. The mode of the testimony should be as follows: in the case of marriage and inheritance – that I heard from reliable and non reliable people that Mr. A was legally married to Mrs. B before Mr. A dies and left one issue. Albahajat fi Sharhil Tuhfah vol.1 p.255

3. After all the evidence has been exhausted, the Applicant must take an oath to corroborate the hearsay evidence tendered by the witness. Ashalul Madaarik Fee Sharhil Irshdil Saleek P.219.

The above 3 conditions must have met before hearsay evidence could be applied in Sharia court.

About the Author 

Yakubu SHEHU Esq
[email protected]
25th August, 2022

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