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SC. 681/1965.

11TH FEBRUARY, 1966.

3PLR/1966/9 (SC)


SIR LIONEL BRETT, J.S.C. (Presided and Read the Judgment of the Court)





  1. Adefuye – for appellant
  2. F. A. Osinibi, Acting S. S. Counsel – for respondent



CRIMINAL LAW AND PROCEDURE- Confessional statement – Admissibility thereof during cross-examination – Guiding principle – Duty of court.

CRIMINAL LAW AND PROCEDURE – Confessional statement – Voluntariness of – Burden of proof thereof – Sections 27(2) and 139(1) (a), Evidence Act.

PRACTICE AND PROCEDURE – EVIDENCE – Admissibility – Power of court to disallow evidence -Relevant consideration.

PRACTICE AND PROCEDURE – EVIDENCE – Confessional statement – Voluntariness of – Burden of proof – Where it lies – Sections 27(2) and 139(1)(a), Evidence Act.



BRETT, J.S.C. (giving the reasons of the Court):-

The appellant was convicted of making a number of counterfeit silver coins contrary to section 147 of the Criminal Code of the Federation, and sentenced to seven years’ imprisonment with hard labour. On the 3rd February, 1966, we set aside the conviction and we now state our reasons.

The prosecution called only one witness to the material facts. This was Michael Ojo, a Sub-Inspector of Local Government Police, who described how on the 13th September, 1963, he and other police officers went to search a house at Ijikola village belonging to one Tiamiyu Amole. The officer in charge of the party was in the process of telling the householder what they had come for, when the appellant was seen to jump from a window of the house and was arrested. Nothing incriminating was found in the house and later the officer in charge of the party of police told the appellant to tell them where he was making the counterfeit coins and the appellant led them to a but some 30 yards away in the bush, in front of which a basket containing over 500 counterfeit coins was found. Another witness was called to prove that the coins were counterfeit and the prosecution then closed its case.

On this evidence the trial judge rejected a submission that there was no case to answer, and having regard to section 147 (2) of the Criminal Code we do not accept the submission that he was wrong. The appellant then gave evidence denying that he had made the counterfeit coins or led the police to where they were. In cross-examination he agreed that he could read and write in Yoruba and that he had made a statement to the police in Yoruba and signed it. The prosecution then applied to put the statement in evidence. Objection was taken on the ground that the statement was not proved to have been made voluntarily, but the judge admitted it, and expressed his views as follows-

“RULING:-There is no question that the statement is voluntary. The only dispute is its correctness. On such a point, the law is that the statement is admissible but the accuracy of it is for the court to decide at the conclusion of the case. Mr Adefuye has made the point which I consider to be strong, that if the statement had been tendered by the prosecution the accused would have been in a position to cross-examine the police on it. As I have said, it is a strong point, but in my view is one that does not prevent the statement being admitted. The accused is literate, he identified the statement and his signature on it. I think it is therefore admissible as the statement signed by him without in any way destroying his right to challenge its accuracy. The objection is therefore overruled. The statement is admitted and marked Ex. D-English translation Dl.”

The appellant went on to deny that he had read the statement before signing it and to say that as soon as it had been read to him he had protested that it did not represent what he had said. That concluded the evidence.

The statement contained a confession that the accused had made the counterfeit coins which were the subject of the charge and that he had known how to make counterfeit coins since 1926. As the trial judge said, at the end of the evidence the prosecution based its case principally on the statement, so that if this Court holds that it was wrongfully admitted the only possible course would be to allow the appeal and there can be no question of holding that there was no substantial miscarriage of justice.

In dealing with the statement in his judgment, the judge said-

“I agree that generally a presumption arises against the defaulting party where a witness who ought to be called has not been called; but the circumstances of each case must be considered. In this case it was not a case of the prosecution keeping the witness behind but one in which it was compelled because of the court’s refusal to adjourn to close its case without calling the witness. Furthermore, if the witness had been called, he would not have done more than to tender the statement. True enough the accused could have objected to it and cross-examined the constable on the circumstances in which it was made but since its voluntariness was never in issue, I would have admitted it all the same but would have given the same consideration as I have now given to it to decide whether or not it was made by the accused. I cannot therefore see that the accused was in any way prejudiced by the procedure adopted in tendering the statement nor in the absence of the police constable who recorded it …. It is my view that he signed it after he had read it and was satisfied that it was correct.”

We cannot adopt the reasoning contained in this passage. In a case like the present one, where the prosecution has failed to call a potential witness, the cause of its failure is immaterial in deciding whether there should be any relaxation of the ordinary rules. In saying that since the voluntariness of the statement was never in issue he would have admitted it even if the prosecution had called a witness to produce it and the witness had been cross-examined, the trial judge seems to have overlooked the fact that the burden of proving affirmatively that a confession was made voluntarily is always on the prosecution: section 27 (2) and 139(1) (a) of the Evidence Act. He also overlooked the fact that there was no positive evidence on which he could have found that the statement was an accurate record of what the appellant had said, or that the appellant had read the statement before signing it. The fact that the judge disbelieved the appellant’s denials cannot, in the circumstances of this case, make up for the lack of positive evidence, since there was no legitimate presumption for the appellant to rebut.

The course which the prosecution followed in this case was followed in (here & Ors. v. The State S.C.494/1964 and in its judgment, delivered on the 23rd December, 1964 this Court said-

“Counsel for the State in the appeal has argued that it was permissible to use the statement for cross-examination if the appellant admitted making it. The appellant admitted making a statement, but he objected that what was read out to him was inaccurate and incomplete. Counsel at the trial, having decided not to tender the statement, made it appear that the statement was inadmissible and was abandoned as evidence in the case, and in our opinion ought not to have used it in his cross-examination of the 4th appellant. He was bringing in as evidence by the back door what he thought could not be admitted through the front door; in effect his conduct was very much like setting a trap. We have arrived at this view after reading R. v. Treacy [194412 All E.R. 229 at 236, and R. v. Rice and Others [1963] 2 W.L.R. 585 at p. 592, but without hearing argument on these authorities and their effect on the present case; our opinion may therefore be regarded as tentative and provisional. It favours the 4th appellant.”

In R. v. Rice & Ors. [ 1963] 1 Q.B. 857, the Court of Criminal Appeal said, at p. 867-

“A clear distinction should be drawn between cases where there is a single defendant and cases where two or more persons stand charged; in the former category it would be rare indeed to find justification for so using a statement made by a single defendant, albeit wholly voluntary, for the first time after he had given evidence in chief and was being cross-examined. Different considerations apply where there are several defendants.”

When his attention was drawn to these two passages Mr Osinibi, Acting Senior State Counsel, agreed that they stated the proper practice correctly and that the confession was wrongly admitted in this case. As was said by the Judicial Committee in Kuruma v. The Queen [1955] A.C. 197 “in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused.” The present case differs from (here & Ors v. The State in that there is no suggestion of a deliberate trap, but the effect is the same whatever the reason for not producing the statement as part of the case for the prosecution may have been, and what was described as a tentative and provisional opinion in (here & Ors. v. The State may now be taken as the considered view of this Court.


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