An unregistered registrable instrument, sought to be tendered for the purpose of proving or establishing title to land or interest in land, would be inadmissible under Section 15 of the Land Instruments Registration Law, .
Such a document, derided as an "amorphous document," is not receivable in evidence for the purpose of establishing any right, title or interest in land being unregistered, Section 15, Land Instruments Registration Law.
If it is however tendered to show that there was a transaction between the lessor and the lessee, it will be admissible as a purchase receipt. It will also be admissible if it is meant to establish a fact which one or both parties have pleaded. Under these two conditions, such a document does not qualify as an instrument as defined in the Land Instruments Registration Law
Put differently, a document, registrable under the Land Instruments Registration Law, may be admitted in evidence without registration, if it is tendered, not as an instrument affecting land but only to establish evidence of a transaction between the parties.
ALHAJI AMINU JUBRILLAH ABDULLAHI & ORS v. MRS. CHRISTIANA IYABO ADETUTU.(LGC(/12/4/2019)J
Practitioners must be reminded of this Courts stand on instances such as in the instant case when in Shurumo V, The State (2001) 196 LRCN 199 it opined thus:-
"When a counsel stands by and allows exhibits to sail smoothly through to become evidence without an eyelid, then it becomes obvious that counsel is comfortable with the evidence without an eyelid, then it becomes obvious that the counsel is comfortable with the evidence and see no reason why he should challenge its admission."
And that in Emoga v. The State (1997) 7 SCNJ 578 the Court per Onu JSC had also said:
"It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a freeman simply because he has a change of mind. The whole trial will be a mockery.-....... It would be dangerous to apply the principle of extra judicial confession of the accused person as it would open a flood gate of retracing of all statements made by accused persons before the police officer " (Underlining supplied for emphasis).
Where an accused person denies making a Statement to the Police, such denial does not affect its admissibility. The Court is entitled to admit the statement in evidence and consider the weight to attach to it in light of all the evidence before it. The approach is different where the accused person challenges the statement on the ground that it was not made voluntarily. In that circumstance, the learned trial Judge is obliged to conduct a trial within trial to determine its voluntariness, See: The State Vs Salawu (2011) 18 NWLR (Pt.1279) 883 @ 905 – 906 G – A; Dawa & Anor. Vs The State (1980) N.S,C.C, 334 @ 345; Ogunye Vs The State (1999) 5 NWLR (Pt.604) 548 @ 570.
As to his argument that the trial Court should have looked or referred to the Statement that was not tendered in evidence, my simple response is that a Court is not allowed to act on any document not tendered or admitted in evidence before it.
As Okoro, JSC, observed in Wassah & Ors V. Kara & Ors (2014) LPELR-24212(SC) – "In fact, no Court is allowed to go outside the gamut of evidence before it to shop for materials upon which to decide a case before it". In other words, a Court cannot go rummaging through a case file to fish or scout for any evidence that may either fill the gap in the Prosecution's case or blow the Prosecution's case to smithereens so that no piece of evidence can be found to ground the conviction of an Accused.
The notion that the Court has power to do any such thing is anathema to what justice stands for – justice for the Accused and justice also for the State that has reason to prosecute him for any offence that he may have committed against the State. This will not be justice as we know it or justice we want it to be.
Having said all these, before conclusion, let me attempt restating the circumstances some of the cases cited by the appellant were decided. In AJAO v. AMBROSE FAMILY (supra) the Supreme Court was faced with admissibility of a photocopy of a public document, which was not duly certified as required by Section 104 of the Evidence Act. It is on this basis that this Court held that the only secondary evidence of a public document permissible under the Evidence Act is a duly certified true copy of the public document. This thus cannot be an authority for the preposition that the original copy of a public document is inadmissible in evidence and that only a certified true copy of a public document is admissible in evidence.
Exhibit A1 is the appellant's extra-judicial confessional statement. Interestingly, he, subsequently, resiled from it, perhaps, in the vain hope that its admission as a voluntary statement could be vitiated. It is proper, therefore, to remind him now that a retraction or denial of a confessional statement (as he did) does not affect its admissibility. This has long been settled in the very old cases of R v Sapele and Anor (1952) 2 FSC 74; R v. Itule(1961) All NLR 462; the relatively old decisions of Ikpasa v. The State (1981) 9 SC 7; Akpan v. State(1992) LPELR-381 (SC) 36; Osakwe v State (1994)2 SCNJ 57; Nwangbomu v. The State (1994) 2 NWLR (pt327)380; Bature v State(1994) 1 NWLR (pt 320) 267; Eragna & Ors . The AG, Bendel (1994) LPELR-(SC) 30; Idowu v. State (1998) 11 NWLR (pt 574) 354; as well as the more recent decisions of Silas Sule v. State(2009) LPELR-3125 (SC) 28-30, G-B; FRN v Iweka (2011) LPELR-9350(SC 53; Oseni v The State (2012) LPELR -7833 (SC) 22- 23.
The drafts person of Section 104 of the Evidence Act, 2011, split its provisions into three subsections unlike the erstwhile Section 111 of the repealed Evidence Act which had just one long-winded provision. This is what the Act has made of the certification provision: 104 (1) Every public officer having custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be. (2) The certificate mentioned in Subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section [Italics supplied for emphasis] From the phraseology of the italicised clauses of Subsection (2) (supra), a document can only be called a certified copy of a public document if, in addition to the payment of legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy. [Sub-section 1 supra], it [the certificate] is.. dated and subscribed by such officer with his name and his official title.. In effect, any document that falls below the above mandatory threshold is inadmissible as a certified copy of a public document. Omisore v Aregbesola and Ors (2015) 15 NWLR (pt 1482) 205, 294; Ndayako v Mohammed[2006] 17 NWLR (pt.10009) 676; Tabik Investment Ltd v Guaranty Trust Bank Plc (2011) LPELR- 3131 (SC); Nwabuoku v Onwordi (2006) All FWLR (pt 331) 1236, 1251 -1252. The whole essence of the Court's insistence on the scrupulous...
Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See for example PARTICK IKEMSON & 2 ORS VS. THE STATE (1989) 3 NWLR (PT.110) 455 at 416 Paragraph D; JOSEPH IDOWU VS. THE STATE (2000) 7 SC 50 at 62: (2000) 12 NWLR (Pt. 680), at 48 NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt. 438) 530 at 537 Paragraphs D-E; SAMUEL THEOPHILOUS VS THE STATE (1996) 1 NWLR (Pt. 423) page 139 at 155 paragraphs A-B; and AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151.
However, the question of its value and what weight to attach to the confessional statement admitted in evidence after a trial-within-trial is a different matter altogether, as admissibility and weight are not the same. In other words, the fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Court As Tobi, JSC, pointed out in Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386 at 403, it is not automatic".
Thus, the admissibility of a document is one thing and the weight a Court will attach to it is another; and it is settled that the weight a Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence Abubakar V. Chuks (supra).
The law is quite settled that a confessional statement is relevant and admissible in evidence once it satisfies the conditions laid down in Sections 28 and 29 of the Evidence Act, 2011. The sections provide as follows: "28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. 29. (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section. (2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained- (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section). (3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this section). (4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said...
When an interpreted or translated version of an accused statement is sought to be tendered in evidence, unless the interpreter or translator is called as a witness the translated version is hearsay and therefore inadmissible in evidence. See QUEEN v. ZAKWAKWA 5 FSC 12 at 13; DOGO ADATU v. THE STATE (1980) 2 NCR 33; UTIE v. THE STATE (1980) 2 NCR 69; OLALEKAN v. THE STATE {supra); OKEKE v. OBIDIFE (supra).
The Court of Appeal upheld what the trial Court did and this is a clear departure of the settled principle on what should obtain. I refer to FRN v Usman (2012) 8 NWLR (Pt. 1303) 141 at 159 thus:-
"The Police Officer detailed or directed to obtain a statement from the accused person may not understand the language spoken by the accused person, and so the services of an interpreter is needed ... Usually, the statement is recorded in the local dialet (sic) with English translation ... Before these documents are admissible in evidence, the police officer who recorded the statement and the interpreter (translator) must testify in Court. This is vital testimony. It now becomes clear that where a conviction is based solely on a confessional statement, and the (police officer who recorded it) and the interpreter (translator) who acted as interpreter (translator) when the said statement was obtained did not testify, the confessional statement is hearsay evidence and the accused person is entitled to an acquittal."
On the issue of endorsement of the said statement by an SPO, it needs to be emphasised here, that the practice of having an SPO to verify and confirm that a confessional statement of an accused was voluntarily given, does not have the force of law. It is merely a desirable practice, therefore any confessional statement which was not so verified should not of necessary without more, be viewed with any air of suspicion. In other words, the fact that an SPO was not called to testify as in this instant case [which even the reason for her absence was given) will not affect the admissibility or credibility of the endorsement of Exhibits P5 and P21. See the case of Dibie v State(2007) 2 NSCQR 1431.
First of all we must understand that the language of the Court is English which is why when such a statement is recorded in vernacular from an accused person, there always has to be an English translation – see Nwali V The State (1991) 3 NWLR (Pt 182) 663 where this Court per Olatawura, JSC explained-
Nigeria has no lingua franca. There are over 200 languages in this country. The medium of communication and expression in our Courts - is the English language. This has its roots in our colonial days when those who administered justice in our Courts- were expatriates. To allow them to follow the proceedings, interpreters were provided for the benefit of the accused persons and the Courts. Furthermore – the different languages spoken in the country make it imperative that notwithstanding the impressive record in our judicial system, and because Nigerians of different tribes now administer justice, the proceedings in the Courts- must of necessity be recorded in English language. The set-up of our Courts demands that the English language will still be used. It is for this reason that when a statement is recorded in vernacular form - an Accused there is always an English translation.
In FRN V Usman (Supra) the Statements were recorded in English through two interpreters who interpreted from Hausa to English and vice versa but the two did not testify in Court. The Court below held that the conviction could not stand in the absence of their evidence and set aside the Judgment of the trial Court and then acquitted and discharged the Respondents. In affirming that decision this Court per Rhodes Vivour JSC explained the rationale behind it in explicit details as follows I must do some explanation. The Police Officer detailed or directed to obtain a statement from the Accused Person may not understand the language spoken by the Accused person and so the service of an interpreter is needed. The interpreter acts as interpreter between the Police officer and the Accused person. The interpreter understands the language spoken by the Accused Person and the English Language. He speaks to the Accused Person in the Accused Persons local dialect and tells the Police Officer in English exactly what the Accused Person said. The Police Officer records it in English and that is the statement of the Accused Person. Usually the statement is recorded in the local dialect with English translation and both documents are admissible in evidence as the statement of the Accused Person. Before these documents are admissible in evidence the Police Officer who recorded the Statement and the interpreter must testify in Court. This is vital testimony. In Court the interpreter is expected to tell the Court the questions he asked the Accused Person on behalf of the Police Officer and the response given by the Accused person. It is only when this is properly done that it can be said that the truth of the Statement has been established. The Court would have no difficulty concluding that the statement is a correct reproduction of what the Accused Person told the interpreter. When the purpose for tendering a statement is to establish the truth of its contents, and the statement was...
In Nwaeze V. State (supra) the Statement was tendered and admitted in evidence through the interpreter, who could not testify at the trial because he was sick. This Court held that-
The Court below was perfectly right in holding that the Statement Exhibit A was admissible as the interpreter of the Statement made by the Appellant from Igbo to English to the investigating Police Officer who recorded it in English, was not called to testify on the point. The legal position is that if the Statement of an accused is made in language other than English and it is interpreted into English by an interpreter to the recorder, the interpreter must be called to give evidence, on the point, at the trial of the accused otherwise the contents of the Statement will be hearsay and the Statement will be inadmissible.
What does the law say? Whose argument would prevail? This is not a novel issue, and there are a number of authorities from those days of the West Afrlcan Court of Appeal (WACA) to the present day by this Court, from which we can find answers. There is – Rex V. Gidado (1940) 6 WACA 60, R. V. Ogbuewu (1949) 12 WACA 483, R. V. Zakwakwa (1960) FSC 12 Nwaeze V. State (1996) 2 NWLR (Pt 428) 1, and the case of FRN V. Usman (supra), cited by the Appellant, to name a few.
In Gidado's Case (supra), the interpreter was not called, and in allowing the appeal, WACA very aptly held as follows-
It seemed to us that this failure on the part of the trial judge to appreciate the inadmissibility in evidence of alleged statements by the Appellant, when such statements were not confirmed and established by the persons acting as interpreters was fatal to the conviction herein in that the learned trial judge misdirected himself in accepting such statements as having been proved.
The law is well settled that the cardinal consideration in the admissibility of a document is relevance. Once a document is relevant to the facts in issue and is legally admissible, it would be admitted in evidence. See: Fawehinmi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558; B.O.N v. Saleh (1999) 3 NWLR (Pt. 981) 145; Torti v. Ukpabi (1984) 1 SCNLR 224; Okoye v. Obiaso (2010) 8 NWLR (Pt. 1175) 145.
The Courts have consistency held that the record of proceedings in a criminal trial is not admissible in civil matters. In Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307 at 353-354 the Apex Court held that:
Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding. In the instant case, the admission of the record of criminal case in which the 1st respondent was convicted was wrong notwithstanding that there was no objection to is admission in evidence.
Also, in the case of ALI V. UGWU (2012) ALL FWLR (Pt 619) 1078 @ 1111, the Court held that:
Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding."
It is the law of admissibility of a document which is essentially based on its relevancy and the weight to be attached thereto are different issues. Thus a document that is admissible may lack weight or evidential value. See the United Nigeria Insurance Co. Ltd v. Universal and industrial Co Ltd (1999) 3 NWLR (Pt 593) 17, Igwedibie v. Igwedibie (2013) LPELR-21258 (CA)
In the case of Jinadu & Ors V. Chief Israel Esurombi Aro & Anor (2009) 9 NWLR (PT. 1145) 55 (SC), the Supreme Court per Oguntade JSC (as he then was) held thus
I do not consider Exhibits R & S inadmissible in evidence but being documents not bearing the signatures of the makers, they should attract little or no weight.
All I have endeavoured to say above is that a confessional statement that is so amply corroborated in every material particular, such as the one in hand and which is found to be free and voluntary, is admissible in evidence regardless of the fact that it was retracted by the maker. See FRN v. Iweka (2013) 3 NWLR (pt. 1341) 285, Okpo v. The State (1972) NSCC Vol.7, 104, Ogudo v. The State (2011) 12 SC (pt.1) p.71.
A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See for example PATRICK IKEMSON & 2 ORS VS THE STATE (1989) 3 NWLR (pt.110) 455 at 476 para. D; JOSEPH IDOWU VS THE STATE (2000) 7 SC 50 at 62; (2000) 12 NWLR (pt.680), at 48, NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (pt.43S) 530 at 537 paras. D-E; SAMUEL THEOPHILUS VS THE STATE (1996) 1 NWLR (Pt.423) page 139 at 155 paras. A-B; and AWOPEJU VS THE STATE (2002)3 MJSC 141 at 151.
The appellant feebly sought to place heavy reliance on the fact that Exhibit P4 being a photocopy, and therefore secondary evidence by virtue of Dagaci of Dere vs. Dagaci of Ebwa (2006) ALL FWLR (pt. 306) 786 @ 839, and Gau vs. Gau (2015) ALL FWLR (pt. 776) 591, which held that only a certified copy of a public document is admissible in evidence, and Exhibit P4 being a public document which was not certified, the Court should suo motu expunge same. Against the background of the case just referred to, that argument by the appellant loses its potency, as appellant cannot complain that he was forced to make a statement, which statement the Court found was indeed recorded by himself, and then later turn to complain that the said statement was inadmissible on the premise that it was secondary evidence. Moreover, I have carefully looked at Exhibit P4, and I am unable to agree with the appellant that it was a secondary copy of the original. The position of the law remains that original copies of public documents by themselves are admissible, and secondary copies are only considered where the original copies are unavailable. See Emeka vs. Chuba Ikpeazu (2017) 15 NWLR (pt. 1589) 345 @ 394 395.
I agree with the learned trial judge that the custody of any document recovered in the course of investigation belongs to the body statutorily or constitutionally empowered to possess such documents upon recovery and their admissibility is determined by how relevant they are to the proceedings. At the end of the day it is the weight to be attached to such recovered evidence that should engage the mind of counsel. See: Nwabuoku v. Onwordi (2006) LPELR SC.344/2001; (2006) 5 SC. (Pt. II) 103; Musa Abubakar v. E.l Chuks (2007) 18 NWLR (Pt.1066) 386.
I agree with the learned trial judge that the custody of any document recovered in the course of investigation belongs to the body statutorily or constitutionally empowered to possess such documents upon recovery and their admissibility is determined by how relevant they are to the proceedings. At the end of the day it is the weight to be attached to such recovered evidence that should engage the mind of counsel. See: Nwabuoku v. Onwordi (2006) LPELR SC.344/2001; (2006) 5 SC. (Pt. II) 103; Musa Abubakar v. E.l Chuks (2007) 18 NWLR (Pt.1066) 386.
In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it.
See also: Amosun v INEC (2010) LPELR-4943(CA); Wuyah v Jamaa Local Government, Kafanchan (2011) LPELR-9078(CA); Statoil Nigeria Ltd v Inducon (Nig) Ltd (2012) LPELR-7955(CA);Odumade v Ogunnaike (2010) LPELR(SC).
Exhibit L was tendered by PW2 as what EFCC received in response to their enquiry, Exhibit K, for information regarding the case being investigated. To that extent, Exhibit L was admissible. However, admissibility and weight to be attached to a document amount to two different issues. Emphasizing the difference between admissibility and the weight that is to be attached to a document, Tobi, JSC in Omega Bank Nigeria Plc v O.B.C. Ltd (supra) at pages 36 – 37 of the E-Report, said:
let me take the issue of non-maker of the document tendering it. It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law;
(1) The maker is dead. (2) The maker can only be procured by involving the party in so much expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value is as good as the mere paper on which it is made, after all probative value is the root of admissibility of evidence.
I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker. See Igbodim v. Obianke (1976) 9-10 SC 179. After all relevance is the key of admissibility.
Generally, where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility, unless the document is primarily inadmissible in law. This is because a document must first be admissible before it can be acted upon by the trial Court, whether or not objection was raised at the point of tendering the document. The Apex Court, per Musdapher, JSC (as he then was) in Omega Bank Nigeria Plc v O.B.C. Ltd (2005) LPELR-2636(SC), (2005) 8 NWLR (PT 928) 547, at pages 28-29 of the E-Report, unequivocally stated:
The law is settled that a Court can only act upon evidence that is legally admissible. It cannot, and it has no discretion to admit and act upon evidence which is legally inadmissible, even with the consent of the parties. SeeKale v Coker (1982) 12 SC 252; Alade v. Olukade (1976) 2 SC 183.
Generally, where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility, unless the document is primarily inadmissible in law. This is because a document must first be admissible before it can be acted upon by the trial Court, whether or not objection was raised at the point of tendering the document. The Apex Court, per Musdapher, JSC (as he then was) in Omega Bank Nigeria Plc v O.B.C. Ltd (2005) LPELR-2636(SC), (2005) 8 NWLR (PT 928) 547, at pages 28-29 of the E-Report, unequivocally stated:
The law is settled that a Court can only act upon evidence that is legally admissible. It cannot, and it has no discretion to admit and act upon evidence which is legally inadmissible, even with the consent of the parties. SeeKale v Coker (1982) 12 SC 252; Alade v. Olukade (1976) 2 SC 183.
In Belgore Vs Ahmed (supra) this Court emphasised the fact that where the maker of a document is not called to testify, the document would not be accorded probative value, notwithstanding its status as a certified public document, Furthermore, in Buhari Vs INEC (supra) at 391, it was held that in estimating the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can reasonably be drawn to the accuracy or otherwise of the statement.
The position of the law is that there is a difference between the admissibility of a document and the probative value to be attached to it. Admissibility is based on relevance, while probative value depends not only on relevance but also on proof. Evidence is said to have probative value if it tends to prove an issue. See: ACN Vs Lamido (2012) 8 NWLR (1303) 560; Buhari Vs INEC (2008) 19 NWLR (Pt.1120) 246; Belgore Vs Ahmed (2013) 8 NWLR (PT.1355) 60 @ 100 E-F.
The law is settled that an unsigned document is a worthless paper. It is inadmissible and where admitted, it cannot be relied upon by the Court to resolve any controversy between the parties as no weight or probative value can be attached to an unsigned document.
It is very well settled practice in this country that where on the production of a confessional statement it is challenged on the ground that the accused person did not make it at all, the question of whether he made it or not is a matter to be decided by the learned trial judge in the course of preparing the judgment. In such circumstances objection made by counsel should be disregarded by the judge as such objection does not affect the admissibility of the statement and so the statement should be admitted as the issue of voluntariness of the statement does not arise for a decision. But where the admissibility of the statement in evidence is objected to on the ground that it was not voluntary in that the confession was beaten out of the accused person, what is attacked is the admissibility in evidence of the confessional statement and a trial within trial or mini trial must be held. See
Queen v Igwe (1960) 5 FSC p. 55
Ikpasa v Bendel State (1981) 12 NSCCP p. 300
In the event that a confessional statement is admissible, the law is quite clear and settled on the point that for a confessional statement to attract and support a conviction, it must be voluntary, clear, precise and unequivocal to ground a conviction. A confessional statement should be direct and positive; and, should relate to the accused person's own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged;Solomon Thomas Akpan v. State (1992) 7 SCNJ 22, (1992) LPELR-381(SC), per Karibi Whyte, JSC. See also : Yesufu v. State (1976) 6 SC 167; Yaro v State (2007) 12 MJSC 57; Haruna v. Attorney General of Federation (2012) LPELR- 7821(SC); Igri v. State (2012) 6-7 MJSC 57 (Pt III) 107 at 128- 129. A free and voluntary confession by a person if fully consistent and probable, and is coupled with clear proof that a crime has been committed the person is usually accepted as satisfactory proof upon which the Court can convict; Ogoala v State (1991) 3 s.c. 80, (1991) LPELR-2307(SC); Mustapha Mohammed v. State (2007) 11 NWLR (pt 1045) 305, (2007) LPELR-1894(SC); Dawa v. State (1980) 8-11 SC 236; Osung v. State (2012) 6-7 MJSC (PT. 11) 1; Galadima v. State (2012) 12 MJSC (pt. 111) 90; Fatai v. State (2013) 2-3 MJSC (pt 1) 145; Kolade v The State (2017) LPELR-42362(SC).
A party cannot rely on and take benefit of the contents of a document and at the same time, turn round to question the validity or legality of the same document. See the case of Gov. Ekiti State vs. Ojo (2006) ALL FWLR (Pt.331) 1298 at 1318 1319; A.G Rivers State vs. A.G. Akwa Ibom State (2011) LPELR 633 (SC); (2011) 8 NWLR (Pt. 1248) 31
It is also the law that where evidence which is admissible, upon fulfilment of certain condition is tendered and the opposite party consents or does not object, then once admitted that party cannot turn round to complain of its inadmissibility and certainly will not be allowed to raise the issue of the inadmissibity of that evidence on appeal. See Alade vs Olukade (1976) NSCC 34
In Blessing vs. F.R.N (2015) LPELR 24689 (SC) it was held:
The mere fact that the Appellant admitted Exhibit 4 in evidence without objection has rendered the document admissible evidence and therefore unchallenged. It can be acted upon. It follows in the result that the procedure of admission even if irregular, has been waived and cannot now be made subject of complaint. See Obisi vs. Chief of Naval Staff (2004) 11 NWLR (PT.885) 482 where this Court held and said: A person who acquiesced in an improper procedure without protesting is not permitted to complain on appeal Per 0gunbiyi JSC
Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye, JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWLR 500; (2011) LPELR – 1333 (SC), the essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis-a-vis the original. And so why go for that assurance in the certified true copy vis-a-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification. See DAGGASH v. BULAMA(2004) 14 NWLR (pt. 892) 144.
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A.G KWARA STATE AND ANOR V. ALHAJI (HON) ISHOLA LAWAL & ORS LGC(28/4/2017) H
Although there was no medical report on the cause of the death of the deceased woman, I feel the tendering of medical report to confirm the death of a deceased victim is not material in a situation where death was instantly caused by the act of or attack by the accused person as in this instant case. Almost all the witnesses called by the respondent confirmed that they saw the dead body of the deceased covered with grass mat at the scene of the incident. A Court can always dispense with medical report or is not bound by it, in situation where death can easily be inferred or where there had been direct account of the act that led to the death of the victim as in this instant case. See Onyia v State (2006) 11 NWLR (pt. 991) 267 at 292.
In this instance appeal, there is a confessional statement made by the appellant voluntarily which was tendered and admitted in evidence at the trial and marked Exhibit 4. Although the appellant denied making such statement or signing same, the trial Court rightfully in my view, did not bother to conduct a trial within trial since the appellant did not say that he made it under duress, torture, promise or any influence. This is because mere denial of making or signing a confessional statement by accused persons is not sufficient ground on which to reject its admissibility in evidence when properly tendered. See Okwesi vs. State (1995) NWLR 119; Ezenge vs. The State(1999) 14 NWLR (pt.637)1.
However, the corollary is also true that a Court cannot act on a confessional statement without first applying the test for determining its veracity and correctness. In other words, the Court is to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R V. Sykes (1913) 1 Cr. App. R.233 has been applied in numerous cases including Nwaebonyi V. The State (1994) 5 NWLR (Pt 343) 138; Akinmoju V. The State (2004) 4 5C (Pt. 1) 64 at 81; Ubierho V. The State (2005) 7 MJSC 168 at 188-189 and Oseni V. The State (supra) at 387. From the foregoing authorities supra, the Court in this circumstance is to examine the statement Exhibit 'A' in the light of the following other credible evidence before it by inquiring into whether:-
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as for as can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person's confession is possible.
6. The confession is consistent with the other facts ascertained and proved.
The law is now trite that documents do not need to be specifically pleaded before they can be admissible or admitted in evidence so long as the relevant facts which the document seek to establish are set out clearly in the pleadings. See M.C.C. v, Azubuike (1990) 3 NWLR (Pt. 136) 74; Amadi v. Olumati (1995) 7 NWLR (Pt. 410) 739 at 752; Susano Pharm. Co. Ltd. v. Sol Pharm. Ltd. (2000) FWLR (Pt. 10) 1595 at 1601 – 2; (2000) 4 NWLR (Pt. 651) 60; F.B.N. Plc v. Tsokwa (2004) 5 NWLR (Pt. 866) 271; Ojoh v. Kamalu (2005) 18 NWLR (Pt. 958) 523 at 555 – 6; Zenon Pet. & Gas Ltd. v. Idrisiyya Nig.
Ltd. (2006) All FWLR (Pt. 312) 2121; (2006) 8 NWLR (Pt. 982) 221 . MOHAMMED LAWAL GARBA, J.S.C.
Furthermore, the law is trite that documents not tendered at the trial Court due to the inadvertence of counsel can be tendered on appeal as fresh evidence in the interest of justice particularly where such document had been referred to by the applicant in his pleadings or evidence. See the contribution of Karibi-Whyte, JSC in Adeleke v. Aserifa (1990) 3 NWLR (pt 136) 94 at 111 – 112. See also Jadesinmi v. Okotie-Oboh (1986) 1 NWLR (pt 16) 264. Here, the documents sought to be tendered were pleaded. JOHN INYANG OKORO, J.S.C
It is now settled that the appropriate time to object to the admissibility of a confessional statement is at the point when the Prosecution seeks to tender same. Any objection raised to the admissibility of an extrajudicial confessional statement subsequent to its tendering and admission in evidence will be considered an afterthought. See BASSEY V. STATE (2019) LPELR – 46910 (SC); MUHAMMAD V. STATE (2017) LPELR – 42098 (SC); ODEH V. FRN (2008) LPELR – 2205(SC). PER ADAMU JAURO, J.S.C
My Lords, there is no doubt that the law is that failure to call the interpreter of a confessional Statement as well as the person who recorded the statement as witnesses renders the confessional Statement inadmissible in Court. In the absence of the interpreter in Court, the document is regarded as documentary hearsay. See OLALEKAN v. THE STATE (2001) 12 SCNJ 94 Pg. 109 at 110, ODEKUNLE v. THE STATE (2015) LPELR-25766, IFARAMOYE v. THE STATE (2017) LPELR-42031 (SC).
Where the prosecution’s case is basely solely on a confessional Statement and the police officer who recorded it in the native language and the person or officer who interpreted it into English or vice versa were not called to give evidence on oath during the trial, the conviction has been held erroneous and liable to be set aside. HELEN MORONKEJI OGUNWUMIJU, J.S.C.
A party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntaries), not on Appeal. See Sunday Vs FRN (2018) LPELR – 46357 (SC), where it was held: “…The appellant, as an accused thereat, admitted committing the offence he was charged with in tandem with his voluntary confessional statement (Exhibit A).
The challenges or attacks on the confessional statement arose only at the Court below. It is therefore not an issue or case of “retracted confession” since the appellant had never testified in the case. All the challenges posed by the learned counsel for the appellant did not relate to want of voluntariness of this confession due to either duress, promise, torture or inducement applied by the investigator(s) of the case or the non-calling of either any interpreter or the recorder of such statement which would have obviously rendered the statement inadmissible.
It is trite law, that where a person makes a free and voluntary confessional statement which is direct and positive and is properly proved, a trial Court can comfortably convict him even on such confessional statement alone, without necessarily looking for any corroborative evidence. See Kim v State (1992)4 NWLR (pt.233)17; Queen v Itule (1961)2 SC NLR 183; Ejinima vs State (1991)6 NWLR (pt.200) 627; Smart v State (2016) EJSC Vol.36)145; Egboghonome V The State (1993)7 NWLR (pt.306) 383; Oseni Vs The State (2012) 5 NWLR (pt.1293) 351.
It is in fact a well-settled law that a Court can convict an accused person based on his confession alone in as much as it is satisfied with the truth of such confession. See Yahaya V The State (1986)12 SC 282; Stephen vs The State (1986)5 NWLR (pt.46)978. In other words, once a Court is fully convinced of the truth of a confession, such confession or extra-judicial statement alone can ground a conviction. See also Edhigere v State (1996) 8 NWLR (pt.464); Aremu v State (1991)7 NWLR (pt.201)1.
It is apt to state here that in the case at hand, the trial Court did not only rely on the voluntary confessional statement of the appellant (Exhibit A), but also it relied on the unequivocal and clear admission by him of the commission of the offence he was charged with when he unhesitatingly and clearly admitted his guilt at the Court in the presence of counsel of his choice when the charge was duly and properly read and explained to him.” See also the case of Ichita & Anor Vs Ichita (2017) LPELR – 42074 (CA), where this Court held: “Can Appellants, therefore, raise appeal against the admission of those documents, which they never challenged their admissibility at the Court below?
I think not. See the case of John & Anor Vs The State (2011) LPELR – 8152 (SC): “The contention that Exhibit 3 was inadmissible because it was not tendered by the maker is in the circumstance of no moment. Besides, when the said Exhibit 3 was about to be tendered, there was no objection by the learned Counsel for the defence… Having not objected to the admissibility of the confessional statement (Exhibit 3), this omissions translates to the fact that the 1st Appellant was comfortable with the admission and saw no reason to challenge its admissibility.
In a situation like this, the Court is at liberty to ascribe probative value to the document as succinctly put in the case of Alade Vs Olukade (1976) 2 SC 183…” PER MBABA, J.C.A.
Although, it is generally trite that failure by a party to raise objection to admissibility of a document at trial will bar the party from raising such objection on appeal, the exception is that such objection can be raised where the document is by law inadmissible in any event. See: JOHN & ANOR v STATE (2011) LPELR-8152(SC), per Muhktar, JSC at page 17–19, pars. F; and JOHN v STATE (2017) LPELR-48039(SC), per Muhammad, JSC at pages 54–55, para. E. Now, it is settled that an unsigned document is legally worthless and void, and same may not be inadmissible in evidence.
This point was made by Tobi, JSC in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), when he held that: “Let me first take the issue of signing a document. In Ojo v. Adejobi (supra) cited by learned Counsel for the appellant, the Court said at page 165: “The Court cannot in any event ex debite justitiae, ignore a situation in which the foundation of a claim to a preparatory legal interest are based on a worthless, unsigned and inadmissible document.” In AG Abia State v.
Agharanya (supra) also cited by learned counsel for the appellant, the Court said at page 371: “It is well settled that an unsigned document is worthless and void.” Learned Counsel for the respondent tried to distinguish the above cases from the present one. With respect, he did not succeed. It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker.
In view of the fact that the two makers or writers of exhibit P6 did not sign the exhibit, it was not available to the two Courts to attach probative value on it.” See also: MAKU v AL-MAKURA & ORS (2016) LPELR-48123(SC), per Onnoghen, JSC at pages 24 – 25, para. A. PER MOHAMMED, J.C.A.
Photocopies of public documents annexed to an affidavit must be certified. See Section 104 of the Evidence Act, 2011; Daniel Tayar Transport Enterprises Company Nigeria Ltd & Ors v Busari & Anor (2000) LPELR-5541 CA, Fawehinmi v Inspector General of Police (2000) FWLR (Pt 12) 1952 at 2023, Onyali v Okpala (2001) 1 NWLR (Pt. 694) 282 at 303, Ministry of Lands v Azikiwe (1969)4 NSCC 31 AT 37–38, Araka v Egbue (2003) 33 WRNT and Emmanuel v Umana & Ors. (2016) LPLER–40037 SC.
From the definition of public document in Section 102 (a) and (b) of the Evidence Act, 2011 it is not only exhibits A3, B1, B3, B4 and B5 that are photocopies of public documents, but exhibits A1, A2, B2, B6 and B7 as well. They were not certified. The Court cannot therefore look at them. If the Court closes its eyes to those documents, there is no way the claim of the Appellant can succeed even if the Court considers the claim as learned counsel for the Appellant urged the Court to do. PER ABIRYI, J.C.A.
It is trite law that where an objection is raised in a criminal proceeding against the admissibility of an alleged confessional statement, the trial Judge ought to immediately conduct a trial within trial, in order to properly determine the voluntariness or otherwise of the making of the confessional statement. See the provision of SECTION 29(1)–(3) of the EVIDENCE ACT, 2011. PER KOLAWOLE, J.CA.
WHETHER OR NOT PARTIES ARE BOUND BY THE RECORD OF PROCEEDINGS It is trite that parties are bound by the record of proceedings and so also is an appellate Court bound by the record of appeal as compiled and transmitted to it and therefore, cannot go outside the contents of the record of appeal to decide on issues in contention in the appeal between the parties before it. See the decisions in GLOBAL FLEET OIL & GAS LTD v. ALLEN (2021) LPELR-54583(CA); AGBEOTU v. BRISIBE (2005) 10 NWLR (Pt. 932).
This Court is indeed bound by the records of appeal, as it was not physically present during the trial at lower Court, and thus can at best only rely on the records as compiled and transmitted to it. This Court cannot go outside the records to import facts, or alleged interactions between the learned trial Judge and the Appellant, when they do not exist in the record.
It will also be wrong for this Court to rely on statements made by the trial Judge that happens to be within the confines of his personal knowledge alone, and which he seeks by some cloistered method to add to the body of evidence before him. See the case of OBI v. ATTORNEY GENERAL, IMO STATE (2016) (supra). PER KOLAWOLE, J.CA.
For purposes of elucidation, I hereby reproduce the relevant paragraph of the said Practice Direction.
Paragraph 3: 1 “where a defendant is desirous of objecting to the admissibility of a confessional statement in any criminal proceedings on the ground that same was not obtained voluntarily, it shall not later than 14 days after the service on him of the charge or information or at such later date as the Court may permit cause to be filed and served on the prosecution a notice as in Form 1 that he intends to object to the admissibility of the confessional statement in the course of the trial” Paragraph 4:3 has this to say: “The parties shall thereafter include legal argument with respect to the admissibility or otherwise of the confessional statement in their respective final addresses, and the Court shall on the final judgment in the matter, include its ruling or the admissibility or otherwise of the said confessional statement (underlined for emphasis).” It is my view that the “Judges Rules” and the conduct of trial within trial are just rules of practice not of law, and the Court can make rules in Practice Direction to regulate the conduct of trial within trial.
GBADAMOSI V. STATE (1992) 9 NWLR (Part 266) at 465. ELIYA AND ANOR. V. STATE (2020) LPELR 50318 (CA). Decidedly trial within trial procedure, (as earlier held in this judgment and at the expense of repetition) is not backed by any law, or statutory provisions nor is it rooted in the Evidence Act. It is only a relic carried over from the Common Law Criminal Justice System of Jury trials. The Court below was right to have opted to have its decision wait until the time for judgment to decide to admit or not to admit it.
The Court can at the time of writing judgment, even expunge a wrongly admitted evidence. This issue is resolved in favour of the Respondent and against the Appellant. PER PEMU, JC.A.
The issue of the admissibility of the statement of an accused person, through an interpreter, has generated a wholesome thread of case law. The cases are indeed legion. They date back to R v. Gidado (1940) 6 WACA 60, 62; R v. Ogbuewu (1949) 12 WACA 483; Queen v. Sapele and Ors (1957) SCNLR 307; R. v. Attard (1958) 48 Cr App R 90, R. v. Zakwakwa (1960) 5 F.S.C. 12, (1960) SCNLR 36; Shivero v. The State (1976) 10 NSCC 197; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1, 20; Ahmed v. State (1999) 7 NWLR (Pt. 612) 641; F.R.N. v. Usman (2012) 3 SC (Pt. 1) 128, (2012) 8 NWLR (Pt.1301) 141; Popoola v.
State (2018) 10 NWLR (Pt. 1628) 485; Eyop v. State (2018) All FWLR (Pt. 962) 1698, 1715, (2018) 6 NWLR (Pt.1615) 273; Bello v. C.O.P. (2018) 2 NWLR (Pt. 1603) 267; Adelani v. State (2018) 5 NWLR (Pt. 1611) 18, 43; Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457 and so on. CHIMA CENTUS NWEZE, J.S.C.
This should be the case where an accused person’s statement is recorded through an interpreter and the accused person makes his statement in his mother tongue which is recorded and later translated into English. In such a situation, before the translated version is accepted as authentic, the person who interpreted the statement from the mother tongue into the English language must be called to testify. Michael Oloye v. The State (2018) LPELR 44775 (SC), (2018) 14 NWLR (Pt.1640) 509; The Queen v. Zakwakwa of Yorro (1960) LCN/0877 (SC), (1960) SCNLR 36. CHIMA CENTUS NWEZE, J.S.C.
In the first instance, where the interpreter who interpreted, a confessional statement was not called to give evidence, the statement is documentary hearsay and is inadmissible. This is not a novel issue, and there are a number of authorities from the days of the West African Court of Appeal (WACA) to the present day by this Court, from which we can find answers. See Rex v. Gidado of Bororo (1940) 6 WACA 60, R. v. Ogbuewu (1949) 12 WACA 483; R. v. Zakwakwa (1960) FSC 12; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1; and F.R.N. v.
Usman (2012) LPELR – 7818 (SC), (2012) 8 NWLR (Pt.1301) 141 HELEN MORONKEJI OGUNWUMIJU, J.S.C.
The statement, once admitted in evidence, forms part of the prosecution’s case. See: Ikpa Vs the State (2017) LPELR-42590 (SC): Egboghonome vs The State (1993) 7 NWLR (Pt. 306) 383 . KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The constitutional duty of the trial Court to ensure that an interpreter is provided for the Defendant during the whole proceedings is immutable. What is however not set in stone and what will not vitiate a trial is the omission of the trial Court to state on the record on each date of the proceedings at trial the fact of the presence of an interpreter and the name of the said interpreter. See FRN v. Mohammed Ya’u (2014) 3 SCNJ 53 at Pg. 86.
It is trite law that the duty of Court when evidence is unchallenged and uncontroverted, is to act on it where credible. I refer to the cases of OFORLETE V. THE STATE (2000) 7 SCNJ 162 at 179, 183 and 184 and MAGAJI V. NIGERIA ARMY (2008) 8 NWLR PART 1089 p.338. PER MARY UKAEGO PETER-ODILI, J.S.C.
The trial judge should have known that it is now firmly settled that in determining the admissibility of evidence, it is the relevance of the evidence such as a document, that is important and not how it was obtained. In other words, admissibility of evidence and particularly documents, depend again, on the purpose for which it is to be tendered, see the erudite decision of Ogbuagu, JSC (rtd) in the case of Ogbe V. Asade (2010) 40 NSCQR 386 at 424. PER TIJJANI ABUBAKAR, J.S.C.
The law is settled that where a defendant standing trial before the Court retracts the earlier statement/confession made to the police, the statement does not become inadmissible but the Court is required to look for corroborating evidence outside the confession that makes the confession probable. A trial Court faced with the obstacle of a recanted confession is by law admonished to subject the confession to the six probability tests established as far back as R v. Skyes (1913) 8 CAR at 236 and a plethora of authorities in our criminal jurisprudence. See Queen v.
Itule (1961) 2SCLR 183; Edhigere v. State (1996) 1 NWLR Pt. 464 Pg. 1 at Pg. 13-14; Uzim v. State (2019) LPELR 48983 (SC); Alarape v. The State (2001) 5 NWLR Pt.705. Pg.79; Uwagboe v. State (2007) 6 NWLR Pt. 1031 Pg.606 at 623; Karimu Sunday v. The State (2017) LPELR-42259 (SC). PER HELEN MORONKEJI OGUNWUMIJU, J.S.C.
A confessional statement does not become inadmissible merely because the accused denies making it even though when such a retraction takes place, the Court is cautioned to seek evidence, no matter how slight, outside the confessional statement to show that the confession was probable. See Olude Vs State (2014) 7 NWLR (Pt. 1405) 89; Udo Vs State (2016) 12 NWLR (Pt. 1525) and Egbogbonome Vs State (1993) 7 NWLR (Pt.782) 543 -PER TANI YUSUF HASSAN, J.C.A.
Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the Court is satisfied that it was made voluntarily, the Court can rely on it to convict, even if retracted at the trial -PER TANI YUSUF HASSAN, J.C.A.
It is trite that in any given trial, where a confessional statement is sought to be tendered by the prosecution, the accused person (Defendant) has the right to object to the admissibility of the confession in either of two distinct ways. First, the accused may retract the confession or deny ever making same, at all. Second, the accused may opt to admit having made or signed the statement but claim however, that he did not do so voluntarily.
Where the accused person denies ever writing, or making the confessional statement at all, the confession is still admissible in evidence, albeit the trial Court must at the conclusion of the trial determine the veracity and probative value of the said confession. See IKPASA VS.
THE STATE (1981) NSCC 300, where in this Court aptly held: It is a well established practice in this country that where on the production of a confession, it is challenged on the ground that an accused did not make it at all, the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial Judge himself.
Whatever objection be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration. See also OGUNYE VS. THE STATE (1999) NWLR (Pt. 604) 548 @ 570; EHOT VS. THE STATE (1993) NWLR (Pt. 290) 6440. PER SAULAWA, J.S.C.
It is trite that the mere retraction of a confessional statement by the Defendant will not render it inadmissible. It will only affect the weight to be attached to it where the Defendant denies making it at the earliest opportunity. Counsel cited Abdullahi vs. The State (2013) 11 NWLR Pt. 1366 Pg.435, Itule vs. Queen (1961) 2SCNLR 183, Nwachukwu vs. The State (2007)17 NWLR (Pt. 1062) 31. PER OGUNWUMIJU, J.S.C.
The law is that only certified true copies of public documents are admissible in legal proceedings. It is however further the law that documents attached to an affidavit form part of the affidavit and constitute admissible evidence which must be given weight where the contents thereof are not in dispute. See ZAKHEM OIL SERVE LIMITED VS. ART-IN-SCIENCE LIMITED (2021) 18 NWLR (PT. 1808) 341; EZEANOCHIE VS. IGWE (2020) 7 NWLR (PT. 1724)430; EZECHUKWU VS. ONWUKA (2016) 5 NWLR (PT. 1506)529; SHITTA-BEY VS.
ATTORNEY-GENERAL OF THE FEDERATION (1998) 10 NWLR (PT. 570)392 AND SOUTH-EASTERN STATE NEWSPAPER CORPORATION & ANOR VS. ANWARA (1975) LPELR- 3107 (SC). In AONDOAKA VS. OBOT (2022) 5 NWLR (PT. 1824) 523 AT 599, PARAGRAPHS B-F, PETER-ODILI, JSC held as follows: “The Appellant had taken exception to the admissibility of Exhibits B, C, D since they were photocopies of public documents.
The point has to be made that copies of public documents attached to an affidavit as Exhibits need not be certified true copies because the documents already form part of the evidence adduced by the deponent before the Court and are available to the Court to use once it is satisfied that they are credible. Again to be said is that such, documents need not be certified true copies where the contents of the documents are not in dispute as in this case because the Appellant did not disown his signature on the document he is contending ought to have been certified. I refer to ONOBRUCHERE VS.
ESEGINE (1986) 1 NWLR (PT. 19) 799; NZEKWU VS. NZEKWU (1989) 2 NWLR (PT. 104) 373; ARAKA VS. EGBUE (2003) 17 NWLR (PT. 848)1; OGU VS. M.T. & M.C.S. LTD.(2011) 8 NWLR (PT. 427) 713; ILORIN EAST L.G. VS. ALASINRIN (2012) LPELR 8400 AND B.A.T. (NIG.). LTD. VS. INT’L TOBACCO CO. PLC (2013) 2 NWLR (PT. 1339) 493.” PER AYODEJI, J.C.A.
The law is trite that evidence given by a witness in a previous case can never be taken as Evidence in a later case except where Section 34 (1) of the Evidence Act applies. See the authority of Elegushi & Ors v. Oseni & Ors (2005) LPELR 1111 (SC) where the Supreme Court held as follows: “…Evidence given in a previous case can never be accepted as evidence by the Court trying a later case except where Section 34 (1) of the Evidence ordinance applies.
The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is no higher value than that.” PER HASSAN, J.C.A.
The position of the law is very much unequivocal on the issue. As copiously alluded heretofore, evidence of the fact that a defendant is of bad character is generally inadmissible in a criminal proceeding. However, there are some exceptions to this general principle. The fact that a defendant is of bad character becomes admissible: (a) When the bad character of the defendant is a fact in issue; or (b) when the defendant (unwittingly) has given evidence of good character thereof.
A defendant may equally be asked questions to show that he is of bad character in the circumstances mentioned in paragraph (c) of the proviso to Section 180 of the Evidence Act. The hallmark of these exceptions is that whenever evidence of bad character is admissible, evidence of previous conviction becomes equally admissible. See Section 82 (2), (3) & (4) of the Evidence Act (supra); ODOGWU VS THE STATE (2013) LPELR – SC 1221 2009 @ 33 – 34 Paragraphs; CHUKWUEKE VS THE STATE (1991) 7 NWLR (Pt. 205) 607 @ 618 Paragraphs E – F.
Most particularly, in the case of ODOGWU VS THE STATE (Supra), it was aptly held by this Court that the character of the Appellant was not at all relevant or in issue. That what was in issue was whether or not she killed the deceased person. And that the Appellant – had not testified at the time the witnesses gave evidence and so she could not have made her character an issue in the trial, nor did she do so in her statements other than a denial of the charge. See Section 82 (a) and (b) of the Evidence Act. Per Ngwuta, JSC (of blessed memory) @ 33 – 34 paragraphs B-B.
The law is equally well settled that where inadmissible evidence is admitted, it behooves the trial Court to expunge such evidence from the record and consider if there is any viable evidence upon which the charge could be sustained. In essence, the wrongful admission of an evidence ought not to totally affect the decision of the Court unless the use of such evidence has resulted in occasioning a miscarriage of justice. See UGBALA VS. OKORIE(1975) 22 SC 1; OKAROH VS. THE STATE(1990) LPELR 2423; OKEGBU VS. THE STATE (1979) 11 SC. PER SAULAWA, J.S.C.
My Lords, the position of the law as it stands today is that the signed retracted confessional statement Exh. 7A taken in vernacular is admissible in evidence. What matters is the probative value to be attached to it. See: GALADIMA v. THE STATE (2012) LPELR – 15530 (SC); Montanya & Ors v. Elinwa & Ors (1994) LPELR – 1919 (SC); LSDPC & Anor v. The Nigerian Land & Sea Foods Ltd (1992) LPELR – 1744 (SC); Etajata & ORS v. Ologbo & Anor (2007) LPELR – 1171 (SC). PER OGUNWUNMIJU, J.S.C.
It is settled that the person or officer who interpreted a statement must tender it in Court so that if necessary, the interpreter can be cross examined on whether the interpreted statement is the correct interpretation of the original words as spoken by the Defendant. Therefore, it was essential for P.W.3 to be present in Court to tender both the original statement in Hausa Language Exh.7A and the interpreted version Exh 7B. Exh. 7B would be documentary hearsay and inadmissible if it were not tendered in Court by P.W.3, see R v. Ogbuewu (1949) 12 WACA Pg. 483, Nwaeze v.
The State (1996) 2 NWLR Pt. 428 Pg. 1., FRN v. Mohammed Usman Alias Yaro Yaro (2012) LPELR-7818 (SC). In fact in Baba Haske v The Queen (1961) LPELR-2508 (SC), this Court held that the failure of the interpreter of a statement to sign same does not render the statement inadmissible though it is desirable for the statement to be signed by the interpreter. PER OGUNWUNMIJU, J.S.C.
My Lords, the position of the law as it stands today is that the signed retracted confessional statement, Exh. 9A, taken in vernacular is admissible in evidence. What matters is the probative value to be attached to it. See: GALADIMA v. THE STATE (2012) LPELR-15530 (SC). PER OGUNWUMIJU, J.S.C.