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SUPREME COURT OF NIGERIA
11th June, 1964
BEFORE THEIR LORDSHIPS
INTERPRETATION OF STATUTE – Legislation: Evidence Act, ss. 198, 205, 207, 208 and 209(c).
CRIMINAL LAW — Statement of Witness to police: when admissible; use to which it can be put.
PRACTICE AND PROCEDURE – APPEAL
BRETT, J.S.C. (delivering the judgment of the Court).-The appellant was convicted in the High Court of Western Nigeria on a charge of murder. When the appeal came up for hearing in this Court, counsel for the respondent informed us that he did not support the conviction, and that he accepted all the three additional grounds of appeal filed as being well founded. We regarded this as a proper attitude to adopt, and as the third ground was that the verdict was unreasonable and unwarranted and could not be supported having regard to the evidence we saw no justification for acceding to his suggestion that a retrial might be ordered. Paragraph (b) of the conditions for a retrial laid down in R. v. Abodundu, (1959) 4 F.S.C. 70, which requires that the evidence taken as a whole shall disclose a substantial case against the appellant, is clearly not satisfied, and, as the West African Court of Appeal held in Ejukolem v. Police, (1952) 14 WA.C.A. 161, a retrial should not be ordered for the purpose of enabling the prosecution to prepare their case anew and bring new evidence which they omitted to call at the previous trial.
The appeal was therefore allowed, and judgment and verdict of acquittal were ordered to be entered, and in the ordinary way we should have found it unnecessary to say anything further. We were, however, invited to rule on the first two grounds of appeal, since in rejecting certain evidence the trial Judge purported to follow the judgment of this Court in R. v. Akanni (1960) 5 F.S.C. 120, and we do so for the reason that it appears that there is a passage in that judgment which, if taken out of its context, is liable to be misunderstood.
In the present case the chief witness for the prosecution was one Jimoh Atanda, who at one time was himself charged with complicity in the murder and who, on his own showing, had told a number of untruths during the investigation of the offence. He was obviously an accomplice, and the trial Judge regarded him as such, but surprisingly enough thought it safe to convict on the strength of his evidence, although it was not only not corroborated but, if anything, discredited by the other evidence and although the Judge himself disbelieved it in a number of material particulars. In his evidence in chief this witness described how at one stage, while he was under arrest, he was taken to an office in the Police Station at Ogbomosho; he went on-”I was alone with the Corporal. He asked me if I am literate and I replied in the negative. He took my right thumb and put it on a pad and used the thumb to impress a written paper before him.” He was not cross-examined on this, but when Corporal Raimi Sole, of the Nigeria Police, was called by the prosecution and tendered for cross-examination, defending counsel wished to produce through him a statement made under caution by Jimoh Atanda. The Judge allowed the witness to testify as to the taking of the statement, but did not allow the statement to be produced in evidence, on the ground that Jimoh Atanda had not been questioned about it. Jimoh Atanda was thereupon recalled and asked about the statement, when he again denied having done more than allow his thumbprint to be affixed to a document which did not contain any statement made by him, and although it does not appear from the record that any further formal application to produce the statement was made the judgment confirms that permission to produce it was refused.
In objecting to the production of the statement, prosecuting counsel referred to the judgment of this Court in R. v. Akanni. In that case a police officer was allowed to produce a statement made to the police by a witness who had given evidence for the prosecution, and who had not been cross-examined on the statement. The Judge not only admitted the statement but referred to it in his judgment as corroborating the witness, and in allowing the appeal this Court said- “This document should never have been tendered or received in evidence. The only proper use to which it could have been put was the cross-examination on it of the witness, if he had said anything in his evidence which was contrary to what he had said to the police. There was no suggestion that he had done so, nor was he in fact cross-examined on it at all. The statement, even if it had contradicted the witness’ evidence at the trial, could only have the effect of discrediting that evidence; it would not have been any evidence of its own truth.”
In this passage the Court was primarily concerned with the use to which the Judge had put the statement, and if the passage is read as applying to a case where the witness who made the statement had not been cross-examined on it, and where no application had been made to recall him for further cross-examination, as was done in the present case, no exception can be taken to it. It should not, however, be treated as authority for saying that evidence may not be given of a statement made by a witness which is inconsistent with his evidence before the Court of trial, even if he denies making the statement, provided the necessary foundation has been laid by cross-examination. Section 205 of the Evidence Act excludes the calling of evidence to contradict the answers given by a witness to questions which are relevant only so far as they tend to shake his credit by injuring his character, but sections 207, 208 and 209 (c) clearly and expressly permit the calling of evidence to impeach a witness’ credit by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted, as long as the witness has been cross-examined about the statements. Section 198 is to the like effect.
The statement now under consideration did not go merely to the character of the witness, but to the facts in issue in the present case, and a witness’ evidence on the facts in issue is always liable to be contradicted. The Judge was right in not allowing the statement to be produced when it was first tendered, since Jimoh Atanda had not been cross-examined on it, but after permitting Jimoh Atanda to be recalled and cross-examined on the statement he was in error in not receiving the statement in evidence, unless he was prepared to say at once that he accepted Jimoh Atanda’s denial and disbelieved the police officer, which is not the ground on which he excluded the statement. Since the whole case for the prosecution depended on the credibility of Jimoh Atanda the error cannot be regarded as anything but a serious one.
For the avoidance of doubt we would add that while the judgment in R. v. Akanni is to be read subject to what is said above as regards the admissibility of a previous statement made by a witness, it needs no qualification as regards the use to which such a statement may be put when it has been admitted. Special rules apply to a confession made by an accused person whether he gives evidence or not, and these were discussed in R. v. Itule  All N.L.R. 462, but in a criminal case a previous statement made by an ordinary witness is admissible only as affecting the credibility of his evidence and not as proof of the truth of what it says.