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The Common Law Doctrine of Res Gestae Under English Law and Nigerian Law
of Evidence: An Expansive Exploration

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THE COMMON LAW DOCTRINE OF RES GESTAE UNDER ENGLISH LAW
AND NIGERIAN LAW OF EVIDENCE: AN EXPANSIVE EXPLORATION

BY

Solomon Gwom, LLB, BL, LLM, MALD*

AND
Jonathan Ndana, LLB, BL, LLM, Ph.D. (In view) **

ABSTRACT

The doctrine of res gestae generally remains a controversial doctrine in contem-

porary legal parlance. This paper discusses the doctrine of res gestae as it ap-
plies both under English law and Nigeria law of evidence, with specific reference
to the Nigerian Evidence Act, 2011. It first examined the core concept, origin,
and scope of res gestae under Common Law. Discussions at this stage focus on
the meaning the term res gestae, its historical identity and requirements neces-
sary for facts to form part of res gestae. Furthermore, the paper examines the
doctrine holistically as stipulated under relevant provisions of the Nigerian Evi-
dence Act. It also looked at the application of the doctrine in Nigerian courts and
major scholastic criticisms of the doctrine. Additionally, a conclusion of discus-
sions was arrived at with specific necessary recommendations proffered.

1
INTRODUCTION

Res gestae, known otherwise in other jurisdictions as the Excited Utterance Rule, is a rule of
evidence that is as old as English law itself. Interestingly, Nigeria’s past colonial relationship
with Britain led to its adoption of the British legal system, together with English common law
doctrines.1 The truth remains that the doctrine of res gestae, though initially a common law
doctrine from far away England, has come to stay in the Nigerian legal system, having gained
legitimacy in the legislative process by its inclusion in the Evidence Act.

The doctrine initially developed as a hearsay concept and has been used to explain the ad-
missibility of evidence of uncharged actions committed in conjunction with the crime for
which a defendant is being prosecuted. It is intriguing to observe that even where the rule
generally applies to civil and criminal cases, more emphasis is laid on criminal cases. Res
gestae is a Latin term which means the thing done or a transaction. Courts have used the term
since the late 18th and 19th centuries. It is one of the exceptions to the hearsay rule of evi-
dence, and it usually applied to statements made contemporaneously with the fact in issue.
Over the years, res gestae has been used to refer to many principles of admissibility of evi-
dence. The most common applications include the hearsay exceptions for spontaneous ex-
clamations, including excited utterances and certain impressions. A close look at section 4 of
the Nigerian evidence Act will reveal that the section admits facts, the admissibility of which
comes under the technical expression res gestae, but such facts are required to form part of
the same transaction. If facts form part of the transaction, which is the subject of trial, then
evidence of them ought not to be excluded. The question is whether they do form part or are
too remote to be considered by the Court. Most importantly is the fact that, as varied from the
Common Law doctrine, the facts mentioned in Section 4 of the Evidence Act do not need to
occur at the same time and the same place.
The justification for discussions in this paper stems from the fact that there are not many lit-
erature on the subject of res gestae as it applies in Nigeria, hence the need to discuss the
same. Secondly, the obscurity and confusion surrounding the doctrine call for availability of

*
Lecturer, Department of Public and International Law, Faculty of Law, University of Abuja. Email: gwomsol-
omon@gmail.com.
** Lecturer, Department of Public and International Law, Faculty of Law, University of Abuja. Email: nna-
koni@yahoo.com.
1
Adah C. E : The Nigerian law of Evidence, Ikeja: Malthouse Press, 2000 at pp. 2 and 3.

2
sufficient literature to enhance better understanding of it. More so, serious legal and academic
controversies on the doctrine spring up daily which have become necessary to highlight, ana-
lyze, and appreciate, bearing in mind that the circle of debates remains a continuum. It is
therefore intended that this paper will achieve these aims.

THE CONCEPT OF RES GESTAE

The concept of res gestae cannot be fully understood without first understanding its meaning.
This paper shall look at some of such definitions before embarking in further discussions. Res
gestae is a Latin phrase that means “things done”.2 In legal parlance, it is defined as “second-
hand statements considered trustworthy for the purpose of admission as evidence in a lawsuit
when repeated by a witness because they were made spontaneously and concurrently with an
event.”3 Also, it is defined as “the acts, circumstances, and statements that are incidental to
the principal fact of a litigated matter and are admissible in evidence given their relevant as-
sociation with that fact.”4 Merriam-Webster’s dictionary defines it as “… the facts that form
the environment of a litigated issue and are admissible in evidence.” 5 Also broadly speaking,
res gestae is sometimes referred to as “the excited utterance rule,”6 especially under the
American and Canadian legal systems. Furthermore, it can be seen as “the events with which
the court is concerned or others contemporaneous with them.”7 In law of evidence, res ges-
tae denotes “a rule of relevance according to which events forming part of the res gestae are
admissible; an exception to the rule against hearsay evidence under which statements form-
ing part of the res gestae are admissible, for example, if they accompany and explain some
relevant act or relate to the declarant's contemporaneous state of mind or his contemporane-
ous physical sensations.” 8

Admittedly, there is perhaps no legal principle, upon which the courts are more uniformly in
concurrence than that of res gestae. However, the application of the principle is so varied,
and the decisions so conflicting, that any attempt to reconcile them seems, in many cases, dif-
ficult. Res gestae consists of a fact or a statement of fact or opinion which is closely associat-

2
Garner, B. A, Black’s Law Dictionary 9th Ed. Texas: West Publishers ,2004 at p. 1425.
3
“Res gestae “ http://legal-dictionary.thefreedictionary.com. Visited 8/3/ 2016 at 11:28am.
4
“ Res gestae” http://dictionary.reference.com. Visited 8/3/ 2016 at 11:30am.
5
“Res gestae “ http://www.merriam-webster.com/dictionary/res gestae. Visited 8/3/2016 at 11:42am.
6
Williams, A. G, “Abolishing the Excited Utterance Exception to the Rule Against Hearsay”, Kansas Law Re
view Vol. 63 2014 Pp. 718-720.
7
Martin A. E: Oxford Dictionary of Law: 5 th Ed. Oxford: Oxford University Press, 2003 p. 439.
8
Ibid.
3
ed in time, place and circumstances with some act, even or state of affairs which is in issue
and which can be said to form part of the same transaction or occurrence as the fact in is-
sue, is itself admissible in evidence.9 The concept of res gestae stems from the justification of
admitting such evidence which sheds light on a particular fact which is in issue. Thus, the
possibility of a particular fact to be misunderstood or becoming unclear, meaningless, inex-
plicable or even unintelligible makes the admission of facts which bear a close association to
facts in issue and which form part of the same transaction or occurrence as the fact in issue. It
also stands out as one of the exceptions to the doctrine of hearsay, which makes inadmissible
in evidence, a narration by a witness of statements made by another person who is not him-
self called as a witness.10 Some illustrations below on this point will portray a better under-
standing of res gestae:

A is accused of the murder of B by beating him. Whatever was said or done by A or B or the
by-standers at the beating, or so shortly before or after is to form part of the transaction, is a
relevant fact; A is accused of waging war against the Government of Nigeria by taking part in
an armed insurrection in which property is destroyed, troops are attacked, and goals are bro-
ken open. The occurrence of these facts is relevant, as forming part of the general transaction,
though A may not have been present at all of them; A sues B for a libel contained in a letter
forming part of a correspondence. Letters between the parties relating to the subject out of
which the libel arose, and forming part of the correspondence in which it is contained, are
relevant facts, though they do not contain the libel itself; The question is whether certain
goods ordered from B were delivered to A. The goods were delivered to several intermediate
persons successively. Each delivery is a relevant fact.11

Based on some of the illustrations mentioned above, res gestae originally encompasses four
distinct hearsay exceptions. These can be categorized as:

a. statements by participants in or observers of events or as they would more accurately

be described in the light of subsequent developments, statements by persons emo-
tionally overpowered by an event;

b. statements accompanying the maker’s performance of an act;

9
K. Adrian, M. Paul, The Modern Law of Evidence , Oxford: Oxford University Press, 2014 p.370.
10
Babalola. A : Law and Practice of Evidence in Nigeria, Ibadan: Sibon Limited, 2001 p. 37.
11
“Res Gestae , “Exception to Hearsay Rule” http://www.legalserviceindia.com/article. Visited 19/3/2016 at
7:28am.
4
 c. statements relating to a physical sensation; and

d. statements relating to a mental state. At present, not much shall be said here as the
basic requirements that statements or acts need to satisfy in order to form part of the
res gestae of facts in issue are discussed below.12

It is necessary to state here that different perceptions of res gestae abound. One of such per-
ceptions is that it is viewed as a single fact, an event, a transaction, or a single declaration.
Secondly, it is perceived as several distinct facts, events transactions, going to make up a
larger composite whole. An example is the notion of the particulars of a business or a piece of
business entrusted to an agent or a series of connected transactions covered by a conspiracy.
Thirdly, it is viewed as a part of one composite whole so made up. Fourthly, the concept of
res gestae is seen as evidentiary or illustrative facts of concomitant circumstances, or sur-
rounding circumstances as distinguished from the central fact thus surrounded or attended.
The sixth perception is that it is seen as a total whole embodying the central fact with its en-
tire bulk of circumstances. Lastly, res gestae can be perceived as a fact or facts, res gesta,
that relate to a central fact and some of its surroundings, much of which as are relevant or
material to the case in question. Each perception, a multo fortiori, is subjective depending on
how the subject res gestae is perceived.

ORIGIN AND SCOPE OF RES GESTAE

ORIGIN OF RES GESTAE
Res gestae (res gesta (plural form)) as a term gained prominence in the 18th and 19th centuries
in England.13 The first recorded use of the term res gestae in English law occurred in Home
Tookes Trial for high treason14 in which the prosecuting counsel, in commenting during a le-
gal discussion as to the propriety of the examination of a witness by counsel for the defence,
as to the reasons why a certain proposal made by one society was not accepted by the other.
A letter stating the reasons for declining the propositions had been received in evidence by
the court. Prosecuting counsel then objected to the stating of the reason on the ground and
argued, among other things, that Tooke, the defendant, was not a member of the society and
that the letter must speak for itself. The prosecuting counsel said thus:

12
Infra at Pp. 7-11.
13
Blair. C, “Let's Say Good-Bye to Res Gestae” Tulsa Law Review Vol. 33 No. 15 1997. pp 1-4.
14
25 Iowells State Trials,444 (1794).
5
"That letter your lordships have received ......... probably upon the ground, that as it is an an-
swer to an act which is charged against the prisoner, it is fit to be received as part of the res
gesta upon the subject".15

Similarly, in the case of R v.Hardy16, Lord Chief Justice Eyre mentioned a fact being part of a
transaction when he said:

"In the cases of Damaree and Lord George Gordon, the cry of the mob at the time made a
part of the fact, of the transaction."

The expression was not used again until 1801 when another reference to it was made. The
phrase was also used in the case of Avison v. Lord Kinnaid,17 where the counsel and the court
spoke of the res gestae of a particular fact in issue at trial. Also, in Hoare v. Allen18 Lord
Kenyon let in certain evidence over objection, on the ground that some of the judges on a mo-
tion for a new trial, had thought it part of the res gesta. In the United States of America, the
19
res gestae was first used in the state of Massachusetts in the case of Bartlett v. Delprat
when counsel for the plaintiff in the case in arguing for the plaintiff, against the admission of
certain declarations, gave the classes of cases in which declarations are admissible and give
one class to be those, "declarations forming part of the res gestae," citing the case of Avison
v. Kinnaid which is mentioned above. The court, however, did not use the expression in the
case.

Over the years, res gestae has been used to refer to many principles of admissibility of evi-
dence. The most common applications include the hearsay exceptions for spontaneous ex-
clamations, including excited utterances and present sense impressions, the verbal part of the
doctrine, where the statements are actually part of the issue as can be seen in defamation cas-
es of defamation, statements of a mental or physical condition and various other situations
20
where declarations are relevant. On the whole, it can be mentioned that the main rationale

15
“The Doctrine of Res Gestae” http://scholarship.law.cornell.edu. Visited 20/3/16 at 1:31pm.
16
(1794) 24 Howells State Trials,199 p 453.
17
6 East 188,(1805).
18
3 Esp.276 (1801).
19
4 1ass.702 (1808).
20
Mook. A. B. “ Death of Res Gestae and Other Developments in Missouri Hearsay Law”, The Missouri Law.
Review Vol. 60 Issue 4, 1995 p. 994.
6
for virtually all of the statements covered by the res gestae exception is the idea that sponta-
neity of utterances or actions insures trustworthiness.

The principle of res gestae had long been mentioned by certain legal scholars, but until mod-
ern times, was not discussed in great detail. In the first edition of Phillips on evidence 21 pub-
lished in 1814 stated:

"Hearsay is often admitted in evidence as part of the res gesta; the meaning of which seems
to be that where it is necessary.......... to inquire into the nature of a particular act, and the
intention of the person who did the act, proof of what the person said at the time of doing it is
admissible evidence for showing its nature and character."

The phrase was also referred to in his fourth edition published in 1819,22 where the phrase
substituted the English word "transaction,” Usage of the phrase continued till the publication
of his eighth edition in 183823 where he placed the term in the plural form, res gestae, and it
has remained there ever since. Starkie24 published his work in 1824 and has always used the
phrase res gestae ; while Stephen25 dispenses with it entirely in his digest of evidence.

SCOPE OF RES GESTAE

It has been mentioned above that the concept of res gestae became necessary to which admit
statements because such statements are made naturally, spontaneously, and without delibera-
tion during the course of an event, they leave little room for misunderstanding where they are
repeated by someone else. Thus courts generally believe that such statements carry a high
degree of probability. Therefore, the scope of res gestae resides within statements, acts or
facts in both civil and criminal cases which are is closely associated in time, place and occur-
rences with some other act, event or state of affairs which is in issue, which can be said to
form part of the same transaction or occurrence as the fact in issue and which is admissible in
evidence.

21
Philips M.S: A Treatise on the Law of Evidence, 1st Edition, Gould, Banks & Gould, 1814. pp 173-204.
22
Ibid.
23
Ibid.
24
Starkie. T: A Practical Treatise of the Law of Evidence, T. & J.W. Johnson, 1860. Pp 87-95.
25
Stephen H.L, Stephen J.F, Stephen, H: A Digest of the Law of Evidence ,BiblioBazaar, 1923.
7
It is generally acceptable among scholars that before a declaration or statement can be admis-
sible in court as forming part of the res gestae, it must fulfill certain conditions. The condi-
tions will be looked at below.

SPONTANEOUS STATEMENTS: ‘THE EXCITED UTTERANCE’ RULE OR

STATEMENTS BEING NEARLY CONTEMPORANEOUS WITH THE FACT IN IS-
SUE

This criterion was first laid down in the leading cases of Ratten v. R26 and R v. Andrews.27 In
the case of Ratten v. R, the appellant was charged with the murder of his wife with a shotgun
wound. The prosecution sought to introduce the evidence of the individual who had tele-
phoned the residence on receipt of a report that an ambulance had been called to the resi-
dence. There was some doubt as to the time of this call and the appellant’s account of what
had occurred immediately after the shooting. While stating that it was impossible to lay down
a precise rule as to the nature of proof required, the appeal was dismissed on the ground that
this evidence was exempted from the rule against hearsay and was therefore admissible as
evidence of a fact relevant to the issue.

The fact that the deceased woman had made an agitated call a few minutes prior to her death
suggested that res gestae as an exception to the rule against hearsay would apply. The proper
test laid down, in this case, was whether the statement was so clearly made in circumstances
of spontaneity and involvement if the possibility of concoction or fabrication would be disre-
garded. Thus, where the speaker has had time for reflection on the event to be able to concoct
or construct his account of it, the statement should be disregarded. The Privy Council speak-
ing through Lord Wilberforce captured the essence of the exception of hearsay stating:

“…hearsay evidence may be admitted if the statement providing it is made in such conditions
(always being those of approximate but not exact contemporaneity) of involvement or pres-
sure as to exclude the possibility of concoction or distortion to the advantage of the maker or
disadvantage of the accused.”28

26
(1972) A.C. 378.
27
(1987) All ER 513.
28
Ratten v. R(supra).
8
The importance of the twin tests of proximity and contemporaneity was further emphasized
in Andrews case mentioned above where the statement of the victim of a stabbing as to the
identity of his two assailants was deemed admissible as it was spontaneous with no possibil-
ity for concoction. The House of Lords also overruled the decision reached in the case of R v.
Bedingfield.29 In this case, the accused was charged with the murder of a woman. The ac-
cused, it appeared, had relations with the deceased woman, and had conceived a violent re-
sentment against her on account of her refusing his advances which was something he had
very much desired, and also as appearing to wish to put an end to these relations; he had ut-
tered violent threats against her, and had distinctly threatened to kill her by cutting her throat.
The woman had rushed out of a house where she and the accused were staying with a cut in
her throat and shouted: “Oh, aunt, see what Harry has done to me!” The statement of the de-
ceased in the case indicating the identity of her assailant was not admitted by the presiding
judge, Cockburn CJ, only because the act of the accused was not contemporaneous with the
statement of the deceased or not contemporaneous with the fact in issue.

The decision reached in Bedingfield case was reaffirmed in R v. Christie30 , and in the Nigeri-
an case of R. v. Bang Weyeku31 where, in both cases, the courts held that the statements ut-
tered were inadmissible as part of the res gestae because they were made after the acts had
been completed.32 On the contrary, in the Nigerian case of Sule Salawu v. R.,33 where the
statement of the deceased was uttered from a room: “Sule is killing me!” The statement was
held to be admissible as part of the res gestae because it was contemporaneous with the fact
in issue.

In spite of the above mentioned, considering more recent dictum of Lord Wilberforce in Rat-
ten v. R, the dictum in Bedingfield could no longer be good law and would at present extend
to include occasions where the act had been completed.

CONTEMPORANEOUS STATEMENTS OF PHYSICAL SENSATION

Under the second principle, res gestae admits statements in which a person asserts his con-
temporaneous physical sensations, such as sickness or pain. An example is that where it is

29
(1879) 14 Cox CC 341.
30
[1914] A.C 545.
31
(1943) W.A.C.A 195.
32
Aguda T. A : The Law of Evidence , 4th Ed. Ibadan: Spectrum Books, 1999 at Pp. 32 -34.
33
[1971] 1NMLR. 249.
9
relevant to show that a person suffered poisoning at a certain time, a statement made by that
person at the time that he felt nauseous can be proved in evidence. Such statements must be
confined to contemporaneous symptoms, and nothing like a narrative is admissible as to who
caused them, or how they were caused.34 This idea was first stated in the case of Aveson v.
Lord Kinnaird 35
where the issue was whether the plaintiff’s wife was in good health at the
time of taking out a life insurance policy. It was held that the evidence of a friend who had
visited the wife around that time and heard her making statements about her ill health over
the last ten days was admissible. This shows that since health and bodily sensations are very
often not transient events, but extend over some time, thus the rule of contemporaneity cannot
be very strict. The fact that a little latitude must be allowed has also been accepted in the case
of R v. Black36 where it was stated that “contemporaneous acts cannot be confined to feelings
experienced at the actual moment while the patient is speaking. It must include such a state-
ment as ‘yesterday I had a pain after meals’ ”. It can be seen from the above instance that at
least as far as the physical state is concerned the position in the U.K. has shown a departure
from the strict and narrow interpretation of contemporaneity.

STATEMENTS SHOULD ACCOMPANY AND EXPLAIN RELEVANT FACTS

Where the doing of an act is a fact in issue, then a statement by the actor which accompanies
and explains the act is admissible as evidence of what is stated.37 Such statements must be so
intertwined with the act to become part of res gestae. These must be contemporaneous with
the act and made by a person performing the relevant act. 38 Also, the act must be inde-
pendently relevant. Thus in the case of R v. Kearley,39 it was the position of the court that
hearsay evidence by police officers receiving calls at an alleged drug dealer’s house, of re-
quests for drugs, was not admissible on the ground that the telephone calls were not inde-
pendently relevant.

Similarly, as mentioned above, for statements to be admissible, the statements must explain
the fact in issue and not refer to other facts which are not in issue. This similar position was

34
Williams, A. G, loc cit.
35
(1805) 6 East 188.
36
1922) 16 Cr App Rep 118.
37
I.H.Dennis, The Law of Evidence : 2nd Ed. London, Sweet & Maxwell , 2002 at p.587.
38
Howe v. Malkin, (1878) 40 LT 196.
39
(1992) 2 All ER 345.
10
held in the case of R v. Christie.40 Another case that this principle was emphasized is the case
of Agassiz v. London Tramway Co. Ltd41 where there was a tram collision, and an action was
brought against the Tramway Co. Ltd in respect of injury to a passenger. A remark by another
passenger to the effect that the driver ought to be reported and the conductor’s reply, “He has
already been reported for he has been off the line five or six times today” were rejected, the
transaction already being over, and as the remarks referred not to the res, but the past acts of
the driver.

DECLARATIONS OF STATE OF MIND

This principle is to the effect that there is no better evidence of a person’s past state of mind
than the person’s statements at the time, and such statements may be the only evidence if
there are no other actions from which inferences can be drawn.42 Though it seems clear that
such statements amount to hearsay an assertion-based or a declarant-based definition,43 yet
questions of intention, knowledge, emotion, belief, and opinion, can all be proved in this
manner. The important fact that must be kept in mind in this instance is that only where the
state of mind of the declarant is of direct and immediate relevance that such statements could
be admissible.44 Illustratively, in the case of R v. Blastland,45 the accused was charged with
the murder of a young boy with whom he admitted to having homosexual relations early on
the evening of the boy’s death, though he denied any role in the murder. He claimed that an-
other known homosexual was lurking nearby and had an opportunity to commit the offence.
The accused wished to adduce evidence of this third party, having made statements indicating
his knowledge of the murder before it became public. The House of Lords held this evidence
inadmissible because there would be several innocent explanations for the acquisition of that
knowledge.

The above brings out the most controversial aspect of the res gestae exception, which is that
if a third party had made a statement of confessional statement, that would also be inadmissi-
ble as it would amount to hearsay. It would have been safe for their lordships to have allowed

40
Williams, A. G, loc cit.
41
(1873)21 WR 199.
42
I.H.Dennis, op cit. at p.593.
43
T. Collins, Cross and Tapper on Evidence, (London , Butterworths, 1999) at p.549.
44
D. O. David, “Redundant Res Gestae?” Criminal Law Review, 1998, at p. 304.
45
[1985] 2 All ER 1095.
11
the above evidence to be admitted and then left it to the prosecution to adduce the innocent
alternative explanations and thereby point the jury towards disregarding any aspersion against
the third party.

THE STATEMENT MUST HAVE BEEN MADE BY THE ACTOR

It has been suggested that the statement must have been made by the actor, and reliance has
been placed on Howe v. Malkin46. In that case, a statement made by a person concerning the
boundaries of property contemporaneously with the performance of some act on the land by
some other persons was held inadmissible because the declaration was by one person and the
accompanying act was performed by another person. However, this cannot be taken as a gen-
eral proposition of law because at least in criminal cases declarations by victims and by as-
sailants are often received in evidence under this heading.

It is clear that while the above categories seem to exhaustively encompass the doctrine of res
gestae in the United Kingdom and under common law, and that spontaneity and contempora-
neity are essential aspects of the doctrine, it may not be imperative that they are integral parts
of the same transaction out of which the fact in issue arises.

RES GESTAE AS A RULE OF EVIDENCE UNDER THE NIGERIAN EVIDENCE

ACT
The Nigerian Evidence Act is one of the numerous legislations in Nigeria that have witnessed
several amendments. It was originally promulgated in 1943, but from 1945 it was amended in
1950, 1955 and also 1958 when it became known as the Evidence Act. It was again slightly
amended in 1977. In 1990 it further became the Evidence Act Cap 112, Laws of the Federa-
tion of Nigeria 1990. Again after a slight amendment, it was enacted into the Evidence Act,
2004, Laws of the Federation of Nigeria.47 However, changes in time and also social, eco-
nomic, scientific and technological developments rendered some of the provisions of the Evi-
dence Act archaic or inadequate to meet current challenges, hence the need for a new Evi-
dence Act to address such challenges. Consequently, all previous Acts were repealed in 2011
with the promulgation of a new Evidence Act known as Evidence Act, 2011 and which had
the force of law on 22nd July 2011.

46
(1879)40 LT 196.
47
Babalola .A Law and Practice of Evidence in Nigeria, Ibadan: Sibon books 2001 at Pp 1-15.
12
Many jurisdictions of the world, especially Common Law jurisdictions, recognize the English
doctrine of res gestae in their rules of evidence. Nigeria is not an exception to these countries.
Section 4 of the Nigerian Evidence Act is the section resorted on res gestae. The section
reads:

“Facts which, though not in issue, are so connected with a fact in issue as to form part of the
same transaction, are relevant, whether they occurred at the same time and place or at dif-
ferent times and places.”

Interestingly, the section gives room for a wider application of the doctrine compared to what
is obtainable under plain Common Law. This is because it extends to the admissibility of
facts not necessarily at the same time or place but at different times or places. Even if the ap-
plication of the section were narrow and restrictive, courts could resort to Common Law
principles by virtue of Section 3 of the Act

Also, it is important to state that sections 5, 6, 7, 8, 9(b) and 1148 of the Nigerian Evidence
Act are strongly of Common Law origin, and complement Section 4 of the Evidence Act.
They are concerned with admissibility facts or subsequent conduct which connects to other
facts in issue to form part of res gesta. Thus, while Section 5 provides for facts which are the
occasion, cause or effect or facts in issue, Section 6 is concerned with relevance of motive,
preparation, and previous or subsequent conduct. Section 7 deals with relevancy of facts nec-
essary to explain or introduce relevant facts. More so, sections 8 and 9 deal with relevancy of
things said or done by a conspirator in reference to common intention and relevancy of facts
not otherwise relevant respectively. Section 11 is solely concerned with the relevancy of facts
showing the existence of state of mind or bodily feeling. It is also important to state here that
the limited form of res gestae is admissible under Section 40(1) and (2) of the Evidence
Act.49

The above discussion would suggest that there is some similarity between the concept of res
gestae as initially conceived and developed in the United Kingdom, and that which is inter-
preted in the context of the Nigerian Evidence Act. Whether or not it is wholly erroneous and
unnecessary ever to use that doctrine in the Nigerian context is a matter of debate, some
which this paper will highlight as discussions progress. What is essential is that such a tradi-

48
Hon, S.T: Law of Evidence in Nigeria: 2nd Ed. 2013 Port Harcourt :Pearl Publishers , 2013 at p. 701.
49
Ibid.
13
tion is already fused into the Nigerian legal system, and it would require enormous effort to
change the status quo if the legislative government desires such an action.

APPLICATION OF THE DOCTRINE OF RES GESTAE IN NIGERIAN COURTS

The application of the doctrine of res gestae as a rule of evidence in Nigerian courts has oc-
curred on many occasions. Nigerian courts tend to follow the doctrine as it applies under
English law. In some cases, decisions of courts have turned out contradictory. Some Nigerian
cases will be considered. In buttressing the position of Nigerian courts, The Court of appeal,
per Nikki Tobi, JCA, as he then was50, stated in the case of Akpan v. State51:

“…although events may not always necessarily be strictly synchronous to make the doctrine
applicable; there must be a clear and immediate approximation in terms of the same relative
period and space..”

In the case of R. v. Bang Weyeku52, the accused was charged with murder and the only im-
portant evidence against him was the statement of the deceased shortly after he had been
stabbed that, “Bang has shot me,” which he made in the absence of the accused. It was held
that this statement was inadmissible as forming part of the res gestae because the words were
uttered after the fact. Conversely, in Sule Salawu V. State53 several persons one night heard
the deceased cry “Sule is killing me” from a room. The witness rushed into the room at once
and saw the deceased in a pool of blood. The Western State Court of Appeal held that the
words “Sule is killing me” were admissible as res gestae, as those words were uttered con-
temporaneously with the act. The Court of Appeal in the case of Okoro v. State54 admitted a
statement made by the deceased shortly before he died as part of the res gestae, wherein the
deceased had said that if he died, it was the gunshot injuries inflicted on him by Anthony
Okoro, the defendant.

The Court of Appeal admitted a declaration made by a deceased person as forming part of the
res gestae. The deceased had said to another person, “I am dying, I am dying.” 55 In Momo

50
Hon, S.T, op cit. at p703.
51
(1994) 8 NWLR (Pt. 361) 226 CA.
52
(1943)9 WACA 195.
53
[1971] 1 NMLR 249.
54
(2007) ALL FWLR (Pt. 361) 1794 CA.
55
Ogba v. State(1990)3 NWLR (Pt. 139) 505 C.A.
14
Garba v. R,56 the court held admissible as part of res gestae the statement of the deceased
which he had made to another person, stating that he was going to die. Similarly, in the case
of Peter v. State,57 a gunshot was heard by a witness which attracted his attention. On getting
to the scene, he saw the deceased on the floor shouting, “Igiri has killed me, Igiri has killed
me.” The court admitted the statement as fact forming part of res gestae in the case.

From the cases mentioned above, it is quite obvious that Nigerian courts follow the applica-
tion of the doctrine under English law. What is sometimes slightly confusing is the notion of
contemporaneity. As mention above, However, contemporaneity is not imperative as far as
Section 4, and other ancillary sections of the Act are concerned. In this light, there is a need
for consistency in the application of the provisions of the Act because they slightly vary with
the English law doctrine.

CRITICISMS OF RES GESTAE

Many criticisms of the doctrine of res gestae sprung up over the years. Foremost among the
criticisms is the contention that both the phrase and doctrine of res gestae are imprecise and
misleading. Also, there is the lingering contention that the use of res gestae is hopelessly con-
fusing, given its large number of applications and the imprecision of its use. Consequently,
some jurisdictions have called for its outright rejection in their rules of evidence, 58 while
some have called for only certain modifications to be made on the doctrine. Scholars like
Wigmore,59 in his book on Evidence, have been highly critical of the use of the phrase res
gestae. Wigmore maintains that He has written that it is not only entirely useless but even
positively harmful. According to him, the phrase is harmful because, by its ambiguity, it in-
vites the confusion of one rule with another and thus creates uncertainty as to the limitations
of both.60 Basic criticisms of the doctrine will now be considered.

A common criticism of the res gestae is that because specific hearsay exceptions that would
have previously fallen under the umbrella of res gestae have been codified, many courts have
concluded that res gestae no longer serves a useful purpose as an exception to the hearsay

56
(1959)4 FSC 162.
57
(1994) 5 NWLR (Pt. 342) 45 C.A.
58
Mook. A. B, op cit, at Pp 997-1005.
59
Wigmore . J Law of Evidence (2nd Ed. Chadbourn :1923) at p. 1767.
60
Ibid.
15
rule.61 Critics agreeing with this view think that the continued use of the doctrine of res gestae
adds nothing more than an interpretative maze trap that risks clouding an evidence-rule anal-
ysis or, worse, avoiding its required rigor through the invocation of a result-infused term.62
The rules of evidence, like the Nigerian Evidence Act, that govern exceptions to the hearsay
rule comprise fully integrated doctrines and should be given the fulsome and comprehensive
effect that they were intended to have. Thus, the criticism emphasizes the fact that the eviden-
tial rule of res gestae can be dispensable, especially in the light of the existence of other ex-
ceptions to the rule against hearsay.

One of the most vocal criticisms of the doctrine of res gestae is the possibility of fabrication
of the statement of the witness, which is in evidence. An instance can be cited with the Amer-
ican case of People v. Simpson.63 In this case, the complainant alleged that Simpson, the ac-
cused, threatened her with a box-cutter, pushed her into an alley, robbed her, and then sexual-
ly assaulted her. The complainant further alleged that Simpson then tried to force the com-
plainant up to her apartment to steal more from her and sexually assaults her again. However,
but with the help of two friends passing by, the complainant escaped from Simpson and then
assisted her friends in chasing Simpson. The complainant called the police and reported that
her attacker had a gun and a knife, even though Simpson never possessed a gun. At Simp-
son’s trial, the complainant testified from the witness box that she consciously lied about the
defendant possessing a gun because, “I knew that if I said there was a gun, that the cops
would come quicker.” Over Simpson’s objection, the trial court admitted the complainant’s
hearsay statements to the police as forming part of the res gestae. Simpson was convicted,
and he filed an appeal. The appellate court affirmed the conviction and the trial court’s ad-
mission of the complainant’s recorded 911 statements to the police because, according to the
court, the exciting nature of the statements after such a horrifying event overcomes the signif-
icance of her admitted lying to the police about the gun.

Simpson’s case above obviously depicts an instance of fabricated statements by their makers
and reliance on same by courts. Additionally, in expressing a dissenting opinion, one of the
judges said: “The complainant had the cognitive ability to purposely lie to the 911 operator

61
“Kostro . P, “The Common Law Doctrine of Res Gestae” http://www.kostrolaw.com. Visited 20/3/2016 at
2:03pm.
62
Ibid.
63
656 N.Y.S.2d 765, 766 (N.Y. App. Div. 1997).
16
that the defendant possessed a gun to prompt a more immediate police response demonstrates
that she was acting ‘under the impetus of studied reflection.”64 The complainant was not still
under the stress of the event at the time she made the call to the police, such that she did not
have time to reflect or fabricate because she did indeed fabricate and with calculated reason
to do so.

Modern criticism of the doctrine is the possibility of the inaccuracy of a statement sought to
form part of res gestae its maker owing to his or her emotional or psychological state. Almost
from the point of popularity of doctrine of res gestae, psychologists and legal commentators
have criticized the notion of assigning reliability to statements uttered by participants or ob-
servers after an event, based on the fact that results from conducted experiments on psychol-
ogy have shown conclusively that statements regarded as hearsay are often inadmissible, es-
pecially if they are spontaneous exclamations.65 Therefore, there is a possibility that a star-
tling event can so unnerve the declarant that his or her statement will be inaccurate, and unre-
liable because it has been negatively affected by the stress from which the declarant is suffer-
ing. As a matter of fact, psychological researchers investigating the effects of stress where the
court acquits a murderer based on admission into evidence a statement regarded as forming
part of res gestae have concluded that stress such as a startling event sufficient to satisfy the
first requirement of the excited utterance exception—had a negative effect on the accuracy of
the declarants such that such declarants accomplished a correct identification only 42% of the
time.66 Also, research reveals that people react differently to stress, but, in general, stressful
situations result in the brain releasing more cortisol, and researchers have concluded that in-
creased cortisol levels accompanied by increased heart rate result in both a more defensive
reaction and inhibited cognitive functionality.67

CONCLUSION
So far, the paper has engaged in discussions on the doctrine of res gestae and its application
in both English and Nigerian law. Discussions have progressed further to examining both
criticisms of the doctrine and certain instances where Nigerian courts have admitted state-
ments forming part of res gestae. However, because this concept has been criticized in some

64
Williams, A. G , op cit at pp 741-743.
65
ibid
66
ibid
67
ibid
17
 aspects and observed by many commentators as sometimes a confusing concept, there is a
need to have a second look at the criticisms and observations as mentioned above to holisti-
cally approach necessary reforms needed to improve on the doctrine. Also, as an exception to
the rule against hearsay, care should be taken by courts in applying it; for failure to do so
might occasion a miscarriage of justice in many respects. It is therefore, essential to take cog-
nizance of this observation.

It is equally observed that, even though there exists a slight variation in res gestae in both
English law and the Nigerian Evidence Act, there seems to be a slavish adoption of the entire
principles and requirements of the term. This should not necessarily be so, judging from con-
temporary sophistication of crime, human conduct, and drastic changes in many facets of
human influence, including litigation. It, therefore, behooves both legal scholars and legisla-
tors in Nigeria to forge out unique legal principles that are compatible with the Nigerian ex-
perience to promote just determination of all court cases.

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