THE COURT OF APPEAL’S JUDGMENT IN MAIRAMI V. GONIDINARI: A CRITIQUE.
By Henry Kelechukwu Eni-Otu
This article is without prejudice to any appeal which may have been entered in the above-referenced case. The analysis provided is therefore based solely on the available judgment as it stands.
INTRODUCTION
Recent commentary has seen a growing number of legal practitioners endorsing the Court of Appeal’s decision in BUMU MAIRAMI & ANOR V. BULAMA ALI GONIDINARI (2025) LPELR-80093, where the court’s decision is being interpreted as having held that facts deposed to by a Litigation Secretary based on information derived from other sources constitute inadmissible hearsay and cannot command probative value. This article critically examines that position, arguing that such a broad interpretation threatens to overstretch the authority of the case beyond its specific factual context. Judicial decisions must be understood as authorities only for the facts which they decide, not as sweeping precedents. Moreover, the Evidence Act 2011 (as amended), as the primary and binding statutory framework, should guide admissibility and procedure, and ought not to be disregarded by the courts.
The Evidence Act 2011 (as amended) (subsequently referred to as ‘the Evidence Act’ or ‘the Act’) is the primary legal framework for the regulation of the admissibility and evaluation of oral and other forms of evidence in judicial proceedings. It serves as the foundation upon which the truth of disputed matters is tested and established in both civil and criminal cases. These rules determine what type of evidence a court may accept, the weight to be attached to such evidence, and the conditions under which it may be presented. Central to the provisions of the Act is the principle that facts must be proven through reliable and admissible means, such as oral or written testimonies of witnesses, documentary evidence, physical objects, or other material forms. However, not all forms of testimony are automatically accepted by the court. Though relevant, the court is bound to expunge hearsay evidence except where same falls within the precincts of admissible evidence as specified under the Act, having met all the parameters set by the Act.
Hearsay refers to statements of persons not within their personal knowledge, oral or written, and made otherwise than by the actual and direct witness of the events in question. Since the maker of such statements was not privy to the events which they thereafter seek to speak of its veracity under oath, and such a person is seldom subject to cross-examination during proceedings where the testimony is documented, it is generally regarded as hearsay evidence, and therefore generally considered unreliable and inadmissible. Its exclusion is intended to uphold the integrity and authenticity of judicial proceedings by ensuring that only first-hand, verifiable evidence informs the decisions of courts.
Section 37 of the Evidence Act defines Hearsay evidence thus:
…a statement – (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever; proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
In other terms, Black’s Law Dictionary defines hearsay evidence thus:
A statement (either verbal assertion or non-verbal assertive conduct, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
The general principle of law therefore, is that hearsay evidence is inadmissible except as provided for under the Evidence Act or any other relevant law governing the giving of evidence.
In order to fully grasp the concept and nature of witnesses who can adduce testimony before a court of competent jurisdiction, noteworthy is the provisions of the Act on the competence of witnesses, which is unwavering going by its Section 175, as follows:
“All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by reason of tender years, extreme old age, disease whether of body or mind or any other cause of the same kind.“ (Underlining mine for emphasis)
In view of the foregoing, the pertinent question then becomes, does the position of the law with respect to the giving of evidence particularly the restrictions and exceptions of hearsay evidence, apply to affidavit evidence?
In ADEBANJO V. BROWN (1990) 6 SCNJ 1, the Supreme Court opined that hearsay in an affidavit is admissible, provided that the source of such information, and grounds or belief of the same are disclosed therein. Plainly put, an affidavit deposed to by a person otherwise than the witness of such events which the former seeks to testify to under oath, can only overcome the hurdle of being labelled hearsay when the deponent clearly discloses the source of any information which does not stem from his personal knowledge. This is in line with the provisions of the Evidence Act. It is only where the deponent fails to disclose the source(s) of their information that the affidavit becomes objectionable as hearsay and consequently inadmissible. See Section 115 (1), (3) & (4) of the Evidence Act, which states that:
1. Every affidavit used in the court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
3. When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge; he shall set forth explicitly the facts and circumstances forming the ground of his belief.
4. When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.
“While a lawyer’s duty is to advocate on behalf of a client, presenting legal arguments and advancing the client’s case in Court, a witness on the other hand is required to testify to facts based on his or her personal knowledge, experience, observation or, information or belief derived from other sources.”
The above submissions are manifestly explicit in permitting a third party who was not privy to any transactions or events or any other facts which they, in the course of court proceedings, swear to in proof of or to establish the same. Reliance therefore, on a straight blanket interpretation of the decision of the Court of Appeal in Mairami & Anor. v. Gonidinari, that facts deposed to by a Litigation Secretary based on information derived from other sources constitute inadmissible hearsay and cannot command probative value is mischievous and wayward, to say the least. At the risk of repetition, judicial decisions must be understood as authorities only for the facts which they decide, not as sweeping precedents, since the facts of each case are predominantly peculiar.
The Mairami & Anor. v. Gonidinari case centres around an application for extension of time to appeal a judgment which was delivered by the lower Court on the 28th of September 2015, almost nine years after the original judgment was delivered.
The affidavit deposed to in support of the said application was contradictory in substance as the deponent, a litigation secretary in the law firm of Counsel to the Applicant, stated in one breath that the facts deposed to were derived from the information gotten from the Appellants/Applicants themselves, and in another breath, stated thus; “I verily believe his information to be true…” (the pronoun used – ‘his’ – denoting singular whereas there were more than one Appellants/Applicants). The decision of the learned Justices was predicated, amongst others, upon the contradictory nature of the deposition made which prompted the statement, “What seems more likely and credible is that the Applicants briefed their Counsel, M. Umara, Esq., who then gave the information to his Litigation Secretary to depose to in the affidavit…”, and it is indeed rather strange that the Client of a firm would brief a litigation secretary on his matter. It is, to be sure, hearsay, if a third party who has no business whatsoever with the events giving rise to the case and was by no means whatsoever, privy to the transactions or events being deposed to speaks to the same. However, where it is in the context of legal practitioners who brief litigation secretaries of the circumstances of a case instructing them to depose to an affidavit in that respect as neither the client nor the lawyers are disposed to the making of such affidavits, the truth of the facts stated in the affidavit ought to hold as much weight as it would if the deponent were to be the lawyer or the Applicants themselves.
The very peculiar facts of Mairami’s case as succinctly stated above, being used as the basis by a number of lawyers for discrediting affidavits deposed to by individuals (such as litigation secretaries of law firms) derived from information not within their personal knowledge, but the source of which facts have been clearly and unambiguously stated as required by the Evidence Act is, with due respect illogical and erroneous. The position of the court in Mairami’s case cannot be invoked to override the clear provisions of Section 115 of the Evidence Act, which permits the inclusion of statements made on information and belief, provided the source is undeniably stated. Consequently, any blanket reliance on Mairami’s case to invalidate all such affidavits is unhealthy for evidentiary safeguards.
One may object to the above submissions from the ethical view point of privileged communications between legal practitioners and their clients as codified in the Rules of Professional Conduct 2023 (subsequently referred to as ‘the RPC’). These Rules are only a guideline with respect to the ethical standards which legal practitioners are charged to observe and uphold in their dealings with the law courts and with their clients, and are therefore not to be interpreted in a manner that overrides or vitiates the clear and substantive provisions of the Evidence Act. Where these rules are violated, the appropriate body to refer to for the meting out of disciplinary measures, in the event of any violations is the Legal Practitioners Disciplinary Committee, and not for the law courts to expunge relevant and otherwise admissible documents from its records during judicial proceedings. Also, the RPC actually provides for exceptions to the rule of privileged communication, stating the consent of the client after full disclosure to the client. Another perspective is the provision which binds all the staff of any particular law firm as part of the representatives of any particular client such that the clients hire the services of law firms which lawyers operate from and every staff of the law firm, being privy to the information which the law firm and its legal practitioners are privy to, are bound by the same rules of confidentiality.
Noteworthy is the fact that the role of a lawyer is fundamentally distinct from that of a witness. While a lawyer’s duty is to advocate on behalf of a client, presenting legal arguments and advancing the client’s case in Court, a witness on the other hand is required to testify to facts based on his or her personal knowledge, experience, observation or, information or belief derived from other sources. These functions are inherently incompatible, and as such, legal practitioners are generally prohibited from acting as witnesses in matters they are handling for their clients. See ADEKUNLE AKINLADE & ANOR. V. INEC & ORS (2019) LPELR-55090 SC. Hence the need for adjunct staff to testify on behalf of Clients who are indisposed to do so. This prohibition is encapsulated in the very Rules of Professional Conduct (Rule 20) for legal practitioners which also speak on confidentiality. The spirit of the RPC – upholding professional integrity – therefore, is manifest in the provisions as expressed above.
CONCLUSION
The Court of Appeal’s decision in Mairami v. Gonidinari has sparked debate on the admissibility of hearsay evidence in affidavit testimony. A critical and honest analysis of the Court’s decision reveals that the court’s judgment should be understood within its specific factual context, rather than as a precedent to be applied across-the-board. Notably, the Evidence Act unambiguously permits affidavit evidence based on information and belief, provided the source is disclosed. Hence, a blanket reliance on Mairami’s case to invalidate such affidavits is not only misguided but also potentially detrimental to evidentiary safeguards. Furthermore, the distinction between the distinct role of a lawyer and that of a witness, as well as the provisions of the Rules of Professional Conduct, further backs the need for a nuanced interpretation of the Court of Appeal’s decision. In essence, the importance of understanding judicial rulings within their specific contexts and applying statutory provisions judiciously has been highlighted by the quagmire of the court’s decision in this case, and hopefully addressed by this critique and more to come.
Henry Eni-Otu is the Group Lead, Litigation, Election & Dispute Resolution (LED) at Law Corridor, Abuja. | Henry@lawcorridor.com