28/04/2026
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*LAM-ANKO (NIG) LTD v. ZAKARIA OKANGA PROPERTIES (NIG) LTD & ORS (2022) LPELR-59212 (CA)*
_*Instance when an affidavit deposed to by a litigation secretary will be held to be hearsay evidence*_
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"Now, the deponent of the supporting affidavit is not the 5th Respondent/Applicant's Attorney. The deponent is the Litigation Secretary in the Law Firm of the 5th Respondent/Applicant's Solicitors. The facts deposed to in the said paragraph 4 (g) and (h) are not based on information received from the 5th Respondent/Applicant's Attorney. The source of the information as deposed in paragraph 4 of the supporting affidavit is "M. J. Haruna of Counsel to the Applicant." M. J. Haruna, Esq., of Counsel is not the 5th Respondent/Applicant's Attorney and it has not been deposed that he is in business with the 5th Respondent/Applicant's Attorney.
So any deposition on the business of the 5th Respondent/Applicant's Attorney and how it was impacted by COVID-19 can only be based on what he was told. It becomes hearsay when the said M. J. Haruna, Esq., did not depose to the affidavit himself, but relays the information to the Litigation Secretary who deposed to the supporting affidavit. This scenario does not come within the stipulations of Section 115 of the Evidence Act which requires the deponent of an affidavit to state the circumstances of his information. The information in this regard was not given to the deponent directly. It is hearsay when the information is relayed to the deponent by M. J. Haruna, Esq., who the information was given to. Recently, in IBETO vs. OGUH (2022) LPELR (56803) 1 at 77-80, this Court (per Affen, JCA) held as follows:
"The rather forceful submission of learned counsel for the Respondent to the effect that 'a deponent of an affidavit is a witness that can depose to facts that are within his personal knowledge or information which he believes to be true and same will be admitted in Court as evidence and not treated as hearsay provided that such deponent disclosed the source of his/her information' clearly loses sight of the probative value or forensic utility of such evidence.
Whilst it is correct that Section 115 (4) of the Evidence Act, 2011, permits a deponent to swear to facts derived from a third party in an affidavit in so far as the source of his information is properly disclosed, such depositions are of very little forensic utility as they constitute hearsay evidence.
The factum that such information was given is all that there is to such information, but qualitatively, the truth of such information is a different thing entirely: it is hearsay evidence as to the truth which remains inadmissible. See ORUNOLA v ADEOYE [1995] 6 NWLR (PT. 401) 338 at 353 -per Nsofor JCA and NIGERIA PORTS AUTHORITY v AMINU IBRAHIM & CO. supra at 500 - 501 - per Agbo, JCA.
Hearsay is evidence given by a person who cannot vouch for the truth thereof. It is a piece of evidence which does not derive its value solely from the credit given to the witness himself, but rests in part on the veracity and competence of some other person e.g. the statement of a person who is himself not called as a witness but what he said is repeated by another witness who is called. See OJO v GHARORO (2006) 2 - 3 SC. 105, AROGUNDADE v STATE (2009) LPELR-559(SC) and SUBRAMANIAM v PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969. That is why it is always ill-advised for a lawyer or his clerk or secretary to depose to facts intended to prove a case as they are not in any position to vouch for the truth or accuracy of information derived from clients.
Even the evidence of an employee of a company who was not directly involved in a transaction is to be treated with caution as it is scarcely of equal stature with, and may be insufficient to contradict the evidence adduced by the adverse party who was directly involved in the transaction. See KATE ENTERPRISES LTD v DAEWOO NIG LTD [1985] 2 NWLR (PT. 5) 116 where the Supreme Court held that any employee of a company who is conversant with a transaction is competent to testify in Court on behalf of the company, and not only those who were directly involved in the transaction, but proceeded to sound a note of caution that even though the evidence adduced by an employee who was not directly involved in a transaction is admissible, the question of the weight or probative value to be ascribed to his/her evidence is an entirely different matter.
In the instant case, the evidence in support of the Respondent case was based entirely on the affidavit evidence of Chisom Ibe: a lawyer's clerk who deposed to facts based on information derived from the Respondent.
To the extent that the averments contained in the affidavit of Chisom Ibe seek to establish the truth of the transaction between the Appellants and the Respondent, they constitute inadmissible hearsay and incapable of sustaining the Respondent's claim before the lower Court." Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 21 - 25 Paras A - A)
✍️ *C.K. ANYANWU LL.M.*
PUBLICITY SECRETARY,
NBA, ABA BRANCH.
