Admissibility of Original Copy of a Public Document

 

 KASSIM v. STATE (2017) LPELR-42586(SC)

INTRODUCTION

The Evidence Act provides that where a secondary evidence of a public document is to be tendered in evidence, only the certified true copy will suffice. There have been questions as to what happens if the original public documents are available. Will same be held admissible in evidence?

EKO J.S.C while delivering the leading judgment rightly observed as follows “…suffice that I mention that the Courts are not unanimous on whether; where original copy of a document forming part of public record is available, the secondary evidence of it, as opposed to the original and primary evidence of it, is the only legal evidence admissible in evidence and it is illegal to prove its contents by the production of the original copy”

He then went further to say  “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”

OGUNBIYI, J.S.C supported the lead judgment to the effect that original of public documents are admissible in evidence when he said: “By the combined effect of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents (Public or Private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence: but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible.”

Further, KEKERE-EKUN, J.S.C, in her own contribution was also in support of the admissibility of the original copy of a public document. In her words, “With regard to the admissibility of Exhibits 1, 2 & 3 and the contention of learned counsel for the appellant that only certified true copies of public documents are admissible in evidence and therefore the original documents tendered in this case are inadmissible. I adopt as mine, the exhaustive analysis of the relevant provisions of the Evidence Act, 2011 carried out by my learned brother, Ejembi Eko, JSC in the lead judgment. In addition, I refer to a similar exercise carried out by me in the recent case of Uwua Udo V. The State (2016) 2-3 SC (Pt. III) 29 @ 47 – 54 wherein I held that a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86(1) of the Evidence Act, 2011. I therefore hold that Exhibits 1, 2, & 3 were properly admitted in evidence in this case.”

BRIEF FACTS OF THE CASE

The appellant, in a one count charge dated 15th February, 2012, was alleged to have committed an offence of culpable homicide punishable with death under Section 221(b) of the Penal Code (Cap 105) Laws of Kano State 1991. The charge against him (appellant) was that on or about 15/1/2009 at about 1600 hrs at Hotoro quarters, Kano he stabbed one Akaraja Musbahu with a knife in his back till he died, with the knowledge that death would be the probable consequence of his act.

The appellant pleaded not guilty to the charge whereupon the prosecution called four witnesses as PW1 – PW4 and the appellant gave evidence in defence of the charge without calling any additional witness.

Among the pieces of evidence tendered by the prosecution are Exhibits 1, the Medical Report and Exhibits 2 & 3 respectively the appellants extra judicial statements which are confessional in nature. The original copy of these documents were tendered and admitted in evidence by the court.

In a considered judgment of the High Court of Kano State delivered by Hon. Justice Wada Abubakar Omar on 19th November 2013, the appellant was found guilty of the offence as charged, convicted and sentenced to death by hanging. The learned trial judge however took cognizance of the age of the appellant among other circumstances and recommended him for prerogative of mercy by the Governor of Kano State.

Dissatisfied with the aforesaid judgment, the appellant lodged an appeal against same to the Court of Appeal. In their judgment delivered on 20th day of March, 2015, the learned justices of the Court below affirmed the judgment of the trial Court. Hence the further appeal now before this Court.

It is Appellant’s contention that Exhibit 1, being medical report from government hospital and Exhibits 2 and 3, the documents from Nigeria Police are Public in nature within Sections 102, 104 and105 of Evidence Act 2011 for the purpose of being used in Court and as such, only their certified true copies are admissible in evidence by the operation of Sections 85, 86(1), 88, 89(1) (e) & (f), 90(1)(c), 102(a)(iii), 103, 104(1), (2) & (3) and 105 of the Evidence Act, 2011. In other words, that the originals of Exhibits 1, 2 & 3 tendered and admitted in evidence at the trial Court, being inadmissible, were wrongly admitted in evidence. The learned counsel for the appellant therefore urged that no weight and probative value should be attached to Exhibit 1, 2 & 3, that were wrongfully admitted in evidence, the documents being inadmissible anyway.

ISSUES FOR DETERMINATION

The following issues were adopted by the court:

i. Whether Exhibits 1, 2, & 3 are inadmissible in law for failing to satisfy the requirements and conditions for their admissibility evidence under the relevant provisions of the Evidence Act, 2011; and

ii. Whether respondent has proved the guilt of the Appellant beyond reasonable doubt with cogent, credible and compelling evidence required by law?

HELD

The appeal was dismissed and the conviction and sentence of the appellant by the trial Court in the charge No. K/19c/2012, which conviction and sentence were affirmed by the Court of Appeal in its judgment delivered in the appeal No. CA/K/162/2012 on 20th March, 2015 were further affirmed.

RATIO DECIDENDI

·         EVIDENCE – DOCUMENTARY EVIDENCE: Whether a public document can be proved by the production of the original copy of the document

“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.” Per EKO, J.S.C. (Pp. 16-17, Paras. E-C)

·         EVIDENCE – DOCUMENTARY EVIDENCE: Whether a public document can be proved by the production of the original copy of the document

“Before then, suffice that I mention that the Courts are not unanimous on whether; where original copy of a document forming part of public record is available, the secondary evidence of it, as opposed to the original and primary evidence of it, is the only legal evidence admissible in evidence and it is illegal to prove its contents by the production of the original copy. Galadima, JCA (as he then was), for instance had, in CHIEF SUNDAY N. A. (SUING BY HIS ATTORNEY, MR. SOLOMON IWEBUZOR) v. DELTA FREEZE NIG. LTD. & ORS. (2010) LPELR – 9114(CA), queried the prudence of insisting on the certified true copy of a public document when the original is available as the primary evidence of the contents. His Lordship states –

“that I should hold that Exhibit B being primary evidence under Section 94 is admissible without the need for certification by virtue of Sections 93 and 96 of the Evidence Act. With due respect to the learned trial Judge he was in error in holding that Exhibit B ought to have been certified. It does not require to be certified to render it admissible in evidence. In the case of EBU v. OBUN (2004) 14 NWLR (pt. 892) 76 at 88, learned counsel for the Respondent submitted that originals of public documents ought to be certified to make them admissible.

In response to this argument (it was) held per Opene, JCA thus: “I do not know how the learned counsel come about this argument? When a document is certified, it is certified to be a true copy of the original. If then the original is to be certified, what will it be certified to be a true copy of itself (original)?” –

Clearly, in view of this decision, I hold that Exhibit B was wrongly rejected and ought to have been considered by the learned trial judge in his judgment instead of treating it as if it had never been admitted.”

In the REGISTERED TRUSTEES OF THE PORT HARCOURT CHRISTIAN COUNCIL PROJECT v. MR. SUNDAY G. O. AMADI & ORS. (2010) LPELR -9119 (CA) (a decision Galadima, JCA (as he then was) and myself were privies), it was held per Thomas, JCA, that since documents must be proved either by producing either the original or, in its absence, the secondary evidence of it, the proof of the contents of the document by the production of the original copy should not be the basis for rejecting in evidence the original. The decision was anchored on the Supreme Court decision in OKEKE v. ATTORNEY-GENERAL OF ANAMBRA STATE (1993) 1 NWLR (pt. 215) 60 at 80 in which it was held that documents are in the first place proved by primary evidence, which is by the production of the original copy for inspection by the Court. Proof of the contents of a document by production of the contents of a document by secondary evidence of the document, that is by production of a duly certified true copy of the original, is merely an alternative to the production of the original that is the primary evidence. On this, Coker, JSC, in AJAO v. AMBROSE FAMILY & ORS. (1969) 1 NMLR 25 seems to agree on the settled primary principle that all documents, prima facie, must be proved by primary evidence.

The respondent’s counsel has aligned himself with the view that it is not illegal to produce the original of a public document for the inspection of the Court as the primary evidence of its contents, and that Exhibits 1, 2 & 3 are not inadmissible in evidence. He relies on the very provisions of the Evidence Act, 2011 appellant’s counsel relies on to submit that Exhibits 1, 2 & 3, being originals of public documents are inadmissible in evidence.

We need to examine Sections 83, 85, 86(1), 87, 88, 89, & 90(1)(c) of the Evidence Act, 2011. The salient provisions of these Sections are herein below reproduced as follows –

“83(1). In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact –

85. The contents of documents may be proved either by primary or secondary evidence.

86. (1) Primary evidence means the document itself produced for the inspection of the Court.

87. Secondary evidence may be given of the existence, condition or contents of a document when –

(a) the original is shown or appears to be in possession or power –

(i) of the person against whom the document is sought to be proved; or

(ii) or any person to legally bound to produce it and when after the notice to produce mentioned in Section 91 such person does not produce it;

(b) the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) the original has been destroyed or lost and in the latter case all possible search has been made for it;

(d) the original is of such a nature as not to be easily movable.

(e) the original is a public document within the meaning of Section 102;

(f) the original is a document of which a certified copy is permitted by this Act or by any other Law in force in Nigeria, to be given in evidence:

(g) the originals of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection; or

(h) the document is an entry in a banker’s book.

90(1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of Section 89 is as follows –

(c) In paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible.

102. The following documents are public documents –

(a) documents forming the official acts or records of official acts or –

(i) the sovereign authority;

(ii) official bodies and tribunals; or

(iii) public officers, legislative judicial and executive, whether of Nigeria or elsewhere:

104.(1) Every public officer having the 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 the 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.”

The learned counsel for the appellant did not, in his submission, address the significance of Section 83(1) of the Evidence Act, 2011 to the effect that in any proceeding where direct oral evidence of a fact would be admissible, any statement by a person in a document which seems to establish the fact shall, on production of the original, be admissible as evidence if the maker of the statement has personal knowledge of the matters dealt with in the statement or if the maker made the statement, in a matter he has personal knowledge of, in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of these matters. And if the maker of the statement is called as a witness in the proceeding.

Section 85 of the Evidence Act, couched in general terms, provides that the contents of documents may be proved by either primary or by secondary evidence. Section 86(1) of the Act defines the primary evidence as the document itself produced for the inspection by the Court. That is the original itself produced for the inspection by the Court. Section 88 of the same Act directs that documents shall be proved by primary evidence except in the cases mentioned in the Act, such cases being rather in alternative. The word “except” after the imperative phrase “documents shall be proved by primary evidence” can only mean “unless”.

Section 89 of Evidence Act lists the circumstances that are exceptions to the imperatives of Section 88 and 85 of the Act read together. I do not think it is illegal, in view of Sections 83, 85 and 88 of the Evidence Act, for the contents of a public document to be proved by the production of the original copy of the document, in its primary state, for the inspection of the Court. Now, the Question: what prejudice or miscarriage of justice has the appellant herein suffered by the production of the originals of Exhibits 1, 2 & 3 for the inspection of the Court? I see none, and I have not shown any. The Courts these days, I earlier stated, are moving away from arcane technicalities towards doing substantial justice.”Per EKO, J.S.C. (Pp. 6-14, Paras. F-A)

·         EVIDENCE – DOCUMENTARY EVIDENCE: Whether a public document can be proved by the production of the original copy of the document

“With regard to the admissibility of Exhibits 1, 2 & 3 and the contention of learned counsel for the appellant that only certified true copies of public documents are admissible in evidence and therefore the original documents tendered in this case are inadmissible. I adopt as mine, the exhaustive analysis of the relevant provisions of the Evidence Act, 2011 carried out by my learned brother, Ejembi Eko, JSC in the lead judgment. In addition, I refer to a similar exercise carried out by me in the recent case of Uwua Udo V. The State (2016) 2-3 SC (Pt. III) 29 @ 47 – 54 wherein I held that a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86(1) of the Evidence Act, 2011. I therefore hold that Exhibits 1, 2, & 3 were properly admitted in evidence in this case.”Per KEKERE-EKUN, J.S.C. (P. 35, Paras. A-E)

·         EVIDENCE – DOCUMENTARY EVIDENCE: Position of law on tendering and proof of documentary evidence

“By the combined effect of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents (Public or Private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence: but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible. See Kwara State Ministry of Agriculture and Water Resources & Ors. v. Societe Generale Bank Nig. Ltd. (1998) 11 NWLR (Pt. 575) 574: Daggash v. Bulama (2004) 14 NWLR (Pt.892) 144; P.D.P. V. INEC (2014) 17 NWLR (PT. 1437) 525.”Per OGUNBIYI, J.S.C. (P. 31, Paras. A-D)

·         EVIDENCE – DOCUMENTARY EVIDENCE: Effect of the failure of a party to object to the reception of a document in evidence when it is being tendered

“The appellant’s counsel is very adamant in his argument on the admissibility of exhibits 1, 2 and 3, that is, the medical Report and the two statements made by the appellant, to the police which, as correctly stated by the respondent’s counsel, were original documents admitted without objection from the appellant or the learned counsel who appeared for him. The implication in the circumstance is obvious wherein they have consented to the admissibility of the documents.

The law is clear that an objection to the admissibility of a document is taken when it is sought to be tendered. See the persuasive decision of the case of Hon. Godwin Udo King v. INEC & Ors (2008) LPELR 4403. Also persuasive is the case of Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt.639) 78, where it was held that:

“In any case, the law is that where a document is not inadmissible per se but its admissibility is subject to the conditions that had not been fulfilled when it was tendered, its admission in evidence without objection constitutes a waiver of the unfulfilled condition. See Okeke v. Obidife (1965) 1 All NLR 50, 53 – 5; Anyaebosi v. R. T. Brisco (Nigeria) Ltd. (1987) 3 NWLP. (Pt. 59) 84: (1987) 6 SCNJ 9, 32 – 33: Oguma Associated Companies (Nigeria) Ltd v. International Bank for West Africa Ltd (1988) 1 NWLR (pt.73) 658: (1988) 3 SCNJ (Pt. 1) 13, 22 – 23 and Attorney General of Oyo State v. Fair Lakes Hotel Ltd. (1989) 5 NWLR (Pt. 121). 255: (1989) 12 SCNJ 11.”Per OGUNBIYI, J.S.C. (Pp. 29-31, Paras. E-A)

·         APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts

“…This finding of fact was affirmed by the Court below. In this further appeal, the appellant, through his counsel made no effort, albeit feeble, to dislodge or displace the concurrent finding of fact. Unless the appellant establishes, and convinces this Court, that the concurrent findings of fact by the two Courts below were perverse, this Court will not readily intervene to disturb such concurrent findings of fact. See BASHAYA & ORS. v. THE STATE (1998) 4 SC 199; (1998) 5 NWLR (pt.550) 351; OGBU v. THE STATE (1992) 10 SCN 88; (1992) NWLR (pt. 259) 255. The principle is so trite and as such a settled principle in our appellate Court jurisprudence or practice that counsel planning or conceiving an appeal should be very conscious of. Alas, it completely eluded the appellant in the instant case.”Per EKO, J.S.C. (Pp. 25-26, Paras. E-B)

·         CASE LAW – STARE DECISIS: What the doctrine of stare decisis entails

“The Supreme Court had earlier in A.G. ONDO STATE v. A.G. EKITI STATE (2001) 17 NWLR (pt.743) 706 interpreted Section 7(1) of Decree No. 41 of 1991. Section 7(1) of Decree No. 36 of 1996 is in pari materia with Section 7(1) of Decree No. 47 of 1991. When this Court was called upon to interpret the Provisions of Section 7(1) of Decree No. 36 of 1996 it adopted the interpretation it had earlier given to Section 7(1) of Decree No. 41 of 1991. This, it did on the principle –

“that where the Provisions of a statute or a Section of a statute are in pari materia, light may be thrown on the meaning of such a provision or statute which is in pari materia by referring to a previous decision of a competent Court where similar provisions had been previously considered.”

I agree. The principle is correct and it is in tandem with the principle of stare decis which is a rule of adherence to judicial precedents. It postulates that when a point or principle of law has been officially decided or settled by a ruling or pronouncement of a competent Court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the tribunal, or by those who are bound to follow its adjudications, unless there be urgent reasons and in exceptional cases. Critics of this principle argue that strict adherence to old decisions may result in grave injustices in the ever changing social and political situations. The need to do substantial justice in every case to the Court, the accused person, the victim of crime and the general public seems to favour the stance that where strict or dogmatic adherence to precedent is mere arcane technicality that defeats justice, pragmatism demands a balance between the extremities. Our jurisprudence is shifting from adhering to mere technicality designed to defeat the course of justice. Thus as stated by Wali, JSC, in SHUAIBU v. NIGERIA-ARAB BANK LTD. (1998) 4 SC 170; (1998) 5 NWLR (pt.551) 582; “the prime duty of any Court in taking any decision is to do justice. The wheel of justice could no longer be allowed to be clogged with technicalities.”Per EKO, J.S.C. (Pp. 5-6, Paras. A-E)

·         CRIMINAL LAW AND PROCEDURE – OFFENCE OF CULPABLE HOMICIDE NOT PUNISHABLE WITH DEATH: Ingredients the prosecution must prove to establish the offence of culpable homicide

“As rightly stated by the Court below; the trial Court, at page 4 of the Record, identified three (3) ingredients which must be proved by the respondent to sustain conviction for the offence punishable under Section 221 of the Penal Code. That is:

“1. That there was death of a person;

2. That the death was a result of the act of the accused; and

3. That the act was done with the intention of causing death or intention of causing such injury that death would be the probable result.”

See A. UBANI v. THE STATE (2003) 16 NSCQR 265; IGALO v. THE STATE (1999) 14 NWLR (pt. 637) 1; EDOHO & ANOR. v. THE STATE (2010) 14 NWLR (pt.1214) 651; OGBU & ANOR. v. THE STATE (2007) 4 SCM 169; (2007) 3 SC (pt. ii) 273; STATE v. DANJUMA (1997) 5 NWLR (pt.506) 512.” Per EKO, J.S.C. (P. 20, Paras. B-F)

·         EVIDENCE – PRESUMPTION OF REGULARITY: Whether there is presumption of regularity as to record of the Lower Court’s judgment

“The duty of every appellant is to show and or establish that the decision he has appealed was wrong or unreasonable. Every decision of a Court of law, a judicial act, done in a manner substantially regular is presumed to be correct and that formal requisites for its validity were complied with. The presumption of regularity under Section 167(1) of the Evidence Act, 2011 is all about this.”Per EKO, J.S.C. (Pp. 24-25, Paras. E-A). notable

 

SOME OTHER REMARKABLE JUDGMENTS FROM THE COURT

1.      MALAMI & ANOR v. OHIKHUARE & ORS (2017) LPELR-42580(SC)

·         APPEAL – FRESH POINT(S) ON APPEAL: Conditions to be satisfied by an applicant seeking to raise fresh issues on appeal

“For the Appellant to be granted leave to raise fresh issue on law in an appeal, the issue must be one on a substantial point of law, substantive or procedural. See HELEN JOHNSON OBU v. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF CROSS AND STAR (supra). A substantial point of law is from the facts of the case which will materially determine the fortunes of the appeal, and not just a point of law which is merely peripheral. See BAMAIYI v. A-G OF THE FEDERATION (2001) 12 NWLR (Pt. 727) 468; COCA-COLA NIG. LTD. v. ADESANYA (2013) 18 NWLR (Pt. 386) 255.”Per EKO, J.S.C. (P. 15, Paras. B-E)

·         APPEAL – FRESH POINT(S) ON APPEAL: Conditions to be satisfied by an applicant seeking to raise fresh issues on appeal

“Fresh issues on appeal would be heard by the Court if the following conditions are fulfilled:

1. The issue must have been pleaded as it cannot be at large.

2. The issue must involve substantial points of law.

3. Further evidence would not be required. See Awote v. Owodunni (1986) 12 SC p.203; Uor v. Loko (1988) 5 SC p.22.”Per RHODES-VIVOUR, J.S.C. (Pp. 20-21, Paras. F-A)

·         COURT – DISCRETION OF COURT: How judicial discretion should be exercised

“The Law is settled that an application of this nature is not granted as a matter of course. A grant or refusal of an application is purely at the discretion of the Court which discretion must be exercised, judiciously, and judicially upon sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (Pt. 817)545 at 558 Para B, Ogbuchi v .Governor of Imo State (1995) 9 NWLR (Pt. 417) 53, University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) 143 at 148.”Per GALINJE, J.S.C. (Pp. 23-24, Paras. E-A)

·         EVIDENCE – CROSS-EXAMINATION: Whether a party can be allowed to cross-examine his own witness with the view of impeaching his credit

“I agree with Mr. Agi, SAN, that a party is not allowed, in law, to cross-examine his own witness with the view of impeaching his credit, unless upon leave granted if the Court is satisfied that the witness had become hostile. The Court will only treat a witness as a hostile witness if it is satisfied that the witness does not want to tell the truth, or that the witness bears some animosity towards the party that calls him. See SOTARI F. TAMUNOWARI: ANNOTATION OF THE NIGERIAN EVIDENCE ACT 2ND ED. PAGE 516. The witness who tendered Exhibit E had since been discharged having testified and duly cross-examined by the party against whom he testified.

A witness will not be cross-examined by the party who called him merely because it appears that his evidence would not be, or was not favourable to the party who called him.”Per EKO, J.S.C. (Pp.10-11, Paras. E-C)

 

2.                  ONWE v. STATE (2017) LPELR-42589(SC)

·         CRIMINAL LAW AND PROCEDURE – ARRAIGNMENT/TAKING OF PLEA: Whether non-compliance with the procedure of taking plea to a charge can be waived

“The only charge, as it is, the accused pleaded not guilty to was the original charge read and explained to the accused person after the evidence of the PW.1. And as I earlier stated the accused who was throughout represented by counsel had acquiesced in all these procedural mixed-ups. It appears to me on authority ARIOR 1 v. ELEMO (1983) 1 SCNLR 1; (1983) 1 SC 13 that the accused could waive this procedural right of fair hearing that enured to his benefit. This is a procedural irregularity that can be waived expressly or by conduct. In this case, the accused person and his counsel appeared to have expressly waived the non-compliance or strict compliance with the procedure of taking plea to the charge he was defending.”Per EKO, J.S.C. (P. 40, Paras. A-D)

·         EVIDENCE – CONTRADICTION IN EVIDENCE: Whether a trial court is justified in the face of contradictions to treat a case as unreliable

“The Respondent’s counsel, an officer of the Court, is having difficulties of intra-personal conflict. He is torn between telling the truth and telling lies. He is clearly prevaricating. My Lords, this Court per Ariwoola, JSC, recently stated in DR. MICHAEL EMUAKPAROR ABEKE v. BARR. A. A. ODUNSI & ANOR. (2013) LPELR-20640 (SC) that – “parties, as litigants, are not permitted to approbate and reprobate in the conduct of their case. See EZOMO v. A.G. BENDEL (1986) 4 NWLR (Pt. 36) 448 at 462; KAYODE v. ODUTOLA (2001) 11 NWLR (Pt. 725) 659; (2001) 7 SCM 155; OSUJI v. EKEOCHA (2009) 10 SCM 72 at 93.”

The prosecution charged the Appellant for the murder of NDUDIRI ONYEKWERE, NOT NDUBUISI ONYEKWERE, NDUBISI ONYEKWERE, ERNEST NDUBISIS ONYEKWEKWERE, or EARNEST NDUBUISI ONYEKWERE. If therefore they led evidence proving the death of NDUBISI ONYEKWERE through PW.4, then another version of the same murder has been introduced. In PAUL AMEH v. THE STATE (1972) 6-7 SC 27, this Court held that when the prosecution presents two versions of one offence charged, then they had failed to prove the guilt of the accused beyond reasonable doubt. The trial Court is obligated not to convict an accused person in the circumstance and to treat the prosecution’s case as unreliable when there are material contradictions in the prosecution’s case. See ENAHORO v. THE QUEEN (1965) NMLR 265; KALU v. THE STATE (1988) 4 NWLR (Pt. 90) 503; UKUT v. THE STATE (1995) 9 NWLR (Pt. 420) 392. In the face of material contradictions, there can be no proof beyond doubt in a criminal proceeding.”Per EKO, J.S.C. (Pp. 48-50, Paras. F-B)

·         EVIDENCE – BURDEN OF PROOF/STANDARD OF PROOF: Burden of proof and standard of proof in criminal cases

“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 paras A-C; Sola v. The State (2005) 5 (Pt. 1) 135.”Per GALINJE, J.S.C. (Pp. 65-66, Paras. E-A)

·         JUDGMENT AND ORDER – ORDER OF RETRIAL/TRIAL DE NOVO: Principles that guides the court in making an order of retrial

“The principles governing the order of retrial in criminal cases is already settled by this Court. It is settled that in criminal cases before deciding to order a retrial, the Court must be satisfied:-

(a) that there has been an error in Law (including the observance of the Law of evidence) or an irregularity in the procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable to say that there has been no miscarriage of justice;

(b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the accused.

(c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial the second time.

(d) that the offence or offences of which the Appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial and;

(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.

All these factors must co-exist before a case may be sent back for retrial. See:- ABODUNDU v. QUEEN (1959) SCNLR 162; ANKWA v. THE STATE (1969) 1 All NLR 133; AKINFE v. THE STATE (1988) 3 NWLR (Pt. 85), DIKE v. THE STATE (1996) 5 NWLR (Pt. 450) 553; GANIYU v. THE STATE (2013) 4-5 SC (Pt. 1) 71, where this Court decided that long detention of the accused person is no ground to refuse to order-retrial.”Per BAGE, J.S.C. (Pp. 10-11, Paras. D-F)

·         JUDGMENT AND ORDER – ORDER OF RETRIAL/TRIAL DE NOVO: Principles that guides the court in making an order of retrial

“As stated earlier, each case will be decided on its own peculiar facts. If the prosecution had made out a substantial case against the appellant, having regard to the gravity of the offence with which he was charged, a retrial or fresh trial would have been proper notwithstanding the length of time he has spent in custody. I am convinced that in this case, the order of retrial did not meet the justice of the case. See; Mohammed v. The State (2013) 5 NWLR (Pt. 1347) 315 @ 328 B-F: Ogboh v. F.R.N. (2002) 10 NWLR (Pt. 774) 21; Amos Bode v. The State (supra).”Per KEKERE-EKUN, J.S.C. (Pp. 36-37, Paras. F-B)

·         JUDGMENT AND ORDER – ORDER OF RETRIAL/TRIAL DE NOVO: Instances where an order of retrial will not be made

“Where the prosecution’s case is infested with contradictions, clearly the prosecution has failed to prove its case beyond reasonable doubt. The Appellant ought to have been discharged and acquitted. This the trial Court did not do. The lower Court, that is the Court of Appeal dwelt only on the aspect of the arraignment of the Appellant and did not consider the case as a whole when it made an order of retrial. This I think is wrong.

To subject the Appellant to another trial on the pieces of evidence that are so contradictory and may at the end lead to his acquittal, will serve no useful purpose. To make an order for retrial, the appellate Court must advert its mind to the evidence on which the accused was found guilty. Where the totality of the evidence leads or creates reasonable doubt, an order of retrial is inappropriate. It will clearly be oppressive to subject an accused to another trial.

It is in the public interest that there should be an end to every litigation. Where from the available evidence at the trial, the appellate Court can do justice between the parties by bringing the litigation to an end, an order for retrial is inappropriate.”Per GALINJE, J.S.C. (Pp. 66-67, Paras. B-A)

3.                  KLM ROYAL DUTCH AIRLINES v. ALOMA (2017) LPELR-42588(SC)

·         APPEAL – GROUND(S) OF APPEAL: Whether a ground of appeal must be related to the ratio decidendi of the judgment appealed against

“Even a cursory look at Ground 2 and its particulars would reveal that the appellant is challenging the decision of the trial High Court and not the decision of the Court below. The Court below, having held that the appellant’s brief was incompetent did not consider the merit of the appeal at all. As rightly submitted by learned counsel for the respondent, the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision. See: Egbe Vs Alhaji & Ors. (1990) 3 SC (Pt.III) 63 @ 109; Datek Nig. Ltd. Vs. OMPADEC (2007) ALL FWLR (Pt.364) 204 @ 226 F – H; Akibu Vs Oduntan (supra); Abubakar Vs Bebeji Oil & Allied Products Ltd. & Ors. (supra). Furthermore, by virtue of Section 233 (1) of the 1999 Constitution, the appellate jurisdiction of this Court is limited to appeals from the Court of Appeal. The Court has no jurisdiction to entertain appeals directly from the trial Court. See:

Akibu Vs Oduntan (supra); Okonobor Vs Edegbe & Sons Transport Co. Ltd. & Anor. (2010) 17 NWLR (Pt.1221) 181: Husseini & Anor. Vs Mohammed & Ors. (2014) 12 SC (Pt.II) 90. In effect, the objection to Ground 2 is well founded. The said ground is incompetent. It is hereby struck out.” Per KEKERE-EKUN, J.S.C. (Pp. 10-11, Paras. D-D)

·         APPEAL – ISSUE(S) FOR DETERMINATION: Effect of issue(s) for determination not distilled from or related to ground(s) of appeal

“An appeal is determined on the issues for determination formulated by counsel, or by the Court. Such issues must arise from the grounds of appeal. Any issue that does not arise from the grounds of appeal is incompetent and liable to be struck out. It is also settled that any ground of appeal not covered by an issue for determination is deemed abandoned and liable to be struck out. See: Okoye & Ors. Vs Nigerian Construction & Furniture Co. Ltd & Ors (1991) 6 NWLR (Pt.199) 501; Egbe v. Alhaji (supra); Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (Pt.249) 534: Elohor Vs Osayande (1992) 6 NWLR (Pt.249) 524 @ 534.” Per KEKERE-EKUN, J.S.C. (P. 12, Paras. B-E)

·         APPEAL – BRIEF OF ARGUMENT: Attitude of Court to a bad/faulty/inelegant brief of argument

“For all intents and purposes, the hard line of action taken by the Lower Court was against the form of the brief and not the substance of the argument contained therein the brief. Plethora of Judicial authorities have disapproved of this attitude and deprecated same as wanton. See for instance, the decision of this Court in Akpan v. State (1992) 6 NWLP (Pt.248) P.439 at 471 per Nmemela -Agu, JSC: wherein the learned jurists said thus:-

“Briefs have been designed to help this Court and the Court of appeal to expedite the disposal of appeals ……. we come across poorly written briefs practically every day. Much as counsel have no excuse for producing poor briefs now, the fact they have done so will not discharge this Court from its duty of doing substantial justice to the parties who appear before it.”

It is pertinent to state that briefs are prepared by lawyers generally at the instant of their clients. Where such processes are rejected by the Court, it is the client who stands to suffer the consequence thereof. The lasting effect is to visit the sin of a counsel on the client. Justice should never be sacrificed at the altar of technicalities.

The aim or purpose of brief writing is not to serve as an end in its itself but to aid the process of quick dispensation of justice. Adherence to strict technicalities will stand to defeat the very cause of justice which was set out to be achieved. Substantial justice should be the aim or the order of the day. See also the case of Obiora v. Osele (1986) 1 NWLR (Pt.97), p.289 at page 302 wherein Oputa JSC, said:-

“Again and as happened in Akpan v. Uyo (supra) after this richly deserved censure of learned counsel Mr. Ijaodola, this Court did not dismiss his appeal because his brief was really no brief – no – the Court considered the merits of the appeal and in the end allowed the same, the faulty and inconsequential brief notwithstanding. The point is that the spirit of justice does not reside in Rules of Court, in forms and formalities, not in technicalities. These should all aid justice and not defeat it.”

The denial of justice to the appellant on the form of its brief, (which does not affect the substance of the brief), has impeded the appellant’s right to fair hearing.” Per OGUNBIYI, J.S.C. (Pp. 45-47, Paras. A-A)

·         APPEAL – INTERFERENCE WITH FINDING(S) OF FACT(S): Circumstances in which an appellate court will interfere with the findings of facts made by a lower court

“The circumstance of the case at hand therefore, is such that will require this Court to interfere therewith for purpose of doing justice. See the cases of; Sokwo v. Kpongbo (2008) 1 – 2 SC. 117: Olonade & Anor v. Sowemino (2014) 5 SC. (Pt.11) 97: Okoya v. Santili (1994) 4 NWLP (Pt.338) 256; Seatrade v. Awolaja (2002) 2 SC. (Pt.1) 35: Cameroon Airlines v. Otutuizu (2011) 1- 2 SC. (Pt.11) 2 SC. (Pt.11) 200.” Per OGUNBIYI, J.S.C. (P. 47, Paras. A-C)

·         JUDGMENT AND ORDER – REVERSAL OF DECISION: What is required of an appellant seeking the reversal of a judgment

“For the appellant to secure the reversal of the judgment he appeals against, there is the duty on him to establish the error complained of and the injustice occasioned thereof. See the case of Chief Ikedi Ohakim & Anor v. Chief Martin Agbaso & 4 Ors (2010) 6 – 7 SC P.85.” Per OGUNBIYI, J.S.C. (P. 47, Paras. C-D)

·         PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Purpose of a notice of preliminary objection; whether a preliminary objection can be used to attack one or more grounds of appeal

“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” Per KEKERE-EKUN, J.S.C. (Pp. 6-7, Paras. D-B)

 

4.                  ADEYEMI v. STATE (2017) LPELR-42584(SC)

·         APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Circumstances under which an appellate court will interfere with the concurrent findings of two lower Courts

“Indeed, there is no peg on which the Court can hang an interference with the concurrent findings and conclusion of the two Courts below which are founded on sound evaluation of the evidence before the trial Court nor was there any taint of perverseness or a wrong application of the law. This Court or any appellate Court for that matter does not disturb concurrent

findings of Courts below just for the heck of it but has to do so in very rare instances of infraction in the application of the law or miscarriage of justice which are clearly absent in this matter.” Per PETER-ODILI, J.S.C. (Pp. 16-17, Paras. E-A)

·         CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY: How the offence of conspiracy can be inferred

“On this matter of inference and the near impossibility of direct evidence being available with which the offence of conspiracy can be established, this Court as in numerous occasions stated the guideline and I shall refer to Onyeye v. The State (2012) 15 NWLR (Pt. 1324) at 586 wherein it was held as follows:-

“Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence at the same time. The Courts tackle the offence of conspiracy as a matter of inference to be adduced from certain criminal acts or inactions of the parties.”Per PETER-ODILI, J.S.C. (Pp. 12-13, Paras. C-A)

·         CRIMINAL LAW AND PROCEDURE – OFFENCE OF ARMED ROBBERY: Ingredients that must exist to prove the offence of armed robbery

“…with regard to the offence of Armed Robbery for which the appellant was charged, it is to be said that to sustain the offence contrary to Section 1(2) of the Armed Robbery and Firearms Act Cap R11, Laws of the Federation 2004, the prosecution has to establish the following:-

1. That there was a robbery.

2. That the robbery was an armed robbery, and

3. That the accused person took part in the robbery.

I rely on the cases of Okudo v. The State (2011) 3 NWLR (Pt. 1234) 209 at

233; State v. Salawu (2012) All FWLR (Pt. 614) 1 at 34.”Per PETER-ODILI, J.S.C. (P. 13, Paras. B-E)

·         CRIMINAL LAW AND PROCEDURE – DEFENCE/PLEA OF ALIBI: When should the defence of alibi be raised

“…The reason is that an alibi is to be raised at the earliest opportunity because of the role the prosecution has to play in it after the accused has furnished the prosecution with the details of his whereabout at the relevant time. It is with those particulars that the prosecution would then set about investigating the alibi to produce one or the other result that is either the alibi affirmed or debunked. Therefore the accused/appellant in this case raising the alibi at this late stage, the effect is akin to a still birth and the alibi so raised comes to naught. See Udobre v. The State (2001) FWLR (Pt. 59) 1244 at 1258-1259.”Per PETER-ODILI, J.S.C. (P. 16, Paras. A-D)

·         CRIMINAL LAW AND PROCEDURE – DEFENCE/PLEA OF ALIBI: When the defence of alibi will collapse

“One of the issues the appellant raised in this appeal is that he raised the defence of alibi which was not investigated by the police. Where the evidence is overwhelming, as in this case, where the appellant was found with some of the robbed items soon after the robbery and did not offer a reasonable explanation as to how he came in contact with the items robbed, the alibi will not avail him and the trial Court can invoke Section 167 Evidence Act to presume either he is the robber or knew that the item he was found with was a robbed item.

See: Fatai Olayinka v. The State (2007) NWLR (Pt. 1040) 561; Benson Ukwunnenyi v. The State (1989) NWLR (Pt. 114) 131; Egbophonome v. C.O.P. (1993) 7 NWLR (Pt. 306) 383; Michael Hausa v. State (1994) 6 NWLR (Pt. 350) 281.” Per AKA’AHS, J.S.C. (Pp. 20-21, Paras. E-B)

 

Source: Lawpavillion

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