FRN V. SARAKI (2017) LPELR-43392(CA)
PRACTICE AREA: GOVERNMENTAL AGENCY
There have been instances where an offence will
fall under the investigative and prosecutive jurisdiction of two or
more government agencies. In such an instance, what is the ideal
thing to do? Can the various agencies work together to prosecute a
case? This was one of the issues for determination in this appeal.
AKOMOLAFE-WILSON, J.C.A., while delivering the
leading judgment in this appeal, held as follows: “This Court in
Appeal No. CA/A/172C/206 in an appeal on the ruling earlier
delivered by the Tribunal on this issue had held at p. 48
that:
There is nothing in any law preventing the Code
of Conduct Bureau, an agent of the Federal Government, from
collaborating or acting in concert with any other organs of the
Federal Government, which are also engaged in the investigations
and prosecution of criminal matters in order to achieve its mandate
under the Constitution and the law.”
Corroborating this position, MUSTAPHA, J.C.A. in
his contribution said “…the tribunal was wrong to have held to the
effect that investigations by the team consisting of Code of
Conduct Bureau, EFCC and DSS is unknown to law. See pages 2131 to
2132 of the record of appeal.
I am compelled to arrive at this conclusion
because this Court had in its decision in CA/A/172C/2016
categorically stated that nothing stops these agencies from
collaborating in investigations towards a successful prosecution of
a case, not least because all of them are undeniably agencies of
the Federal Government with the necessary mandate to investigate
and prosecute.”
BRIEF FACTS
The appellant herein, upon conclusion of
investigation conducted by the Economic and Financial Crimes
Commission (EFCC) and the Code of Conduct Bureau, had preferred a
thirteen count charges against the respondent before the trial
tribunal on offences ranging from false declaration of assets,
purchasing properties in excess of money fairly attributable to his
salary, maintaining a domiciliary account and other similar
allegations against the Respondent herein at the Code of Conduct
Tribunal.
The appellant, made an application to commence
trial dated 11th day of September, 2015 and in response, the
respondent herein, as defendant, pleaded not guilty and sought for
an order of the trial tribunal to quash or strike out the
charges.
In a unanimous ruling delivered on the 24th
March, 2016, the trial tribunal refused the application to quash or
strike out the charges against the respondent and ordered the
prosecution to produce witnesses to commence the trial. The
prosecution called 4 witnesses and tendered 48 exhibits in proof of
the said charges and closed its case on the 4th day of May 2017.
The respondent, through his counsel on the same day, raised a
No Case Submission, on which the trial tribunal ordered parties to
file their respective written addresses. At the end of the day, in
a unanimous ruling delivered on the 14th day of June 2017, the
trial tribunal upheld the No Case Submission of the
defendant/respondent and discharged and acquitted him of all the
charges.
Dissatisfied with the said ruling, the appellant
filed the present Appeal.
ISSUES FOR
DETERMINATION
The issues for the just determination of this
appeal was as formulated by the appellant and adopted by the Court
as follows:
1. Whether the Code of Conduct Tribunal was
right in upholding a no case submission raised by the respondent at
the close of prosecution’s case. (Distilled from grounds 1, 2, 5, 8
and 11)
2. Whether the learned members of the Tribunal
are not wrong in holding that the respondent was not invited by the
EFCC in the course of its investigation. (Distilled from ground
3)
3. Whether the Tribunal was not wrong in holding
that the investigation conducted by a team of investigators from
the Economic and Financial Crimes Commission and the Code of
Conduct Bureau was illegal and unknown to law. (Distilled from
grounds 4 and 6)
4. Whether the Tribunal was right in holding
that failure to produce the original Asset Declaration Forms and
the Written Statement of the respondent, is fatal to the case of
the prosecution when the prosecution tendered the certified True
copies of the documents. (Distilled from ground 7)
5. Whether the Code of Conduct Tribunal was not
wrong in upholding the no case submission in the instant case
regard being had to the onus of proof on the parties as prescribed
by the Constitution of the Federal Republic of Nigeria, 1999 (as
amended). (Grounds 9 and 10)
HELD
The appeal was hereby dismissed in part and
allowed only in respect of counts 4, 5 and 6 of the Further Amended
Charge.
The Ruling of the Code of Conduct Tribunal
delivered on 14th June, 2017 was upheld in respect of counts 1, 2,
3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Further
Amended Charge. And an order was made remitting the case to the
Code of Conduct Tribunal for the respondent to enter his defence in
respect of counts 4, 5 and 6 of the Further Amended
Charge.
RATIO DECIDENDI
- APPEAL – BRIEF OF ARGUMENT: Effect of failure of a party
to respond to an issue raised in a brief of argument
“Where a party fails to respond to an issue in a
brief of argument or a written brief, he is deemed to have conceded
the point in issue. See Nwankwo v. Yar’Adua (2010) All FWLR (Pt.
534) 1 at p. 22; INEC v. Nyako (2011) 12 NWLR (pt. 1262) 439 C.A.”
Per AKOMOLAFE-WILSON, J.C.A. (P. 10, Paras. B-C)
- CASE LAW – STARE DECISIS: Doctrine of stare
decisis
“By the principle of stare decisis, an inferior
Court is bound by the decision of the Superior Court. See Obiuweubi
v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465 S.C.; Gebi v. Dahiru (2013)
1 NWLR (Pt. 1282) 560 C.A.” Per AKOMOLAFE-WILSON, J.C.A. (P. 11,
Paras. C-D)
- CRIMINAL LAW AND PROCEDURE – CRIMINAL INVESTIGATION:
Whether Federal Government Agencies that engage in the
investigations and prosecution can collaborate with each other in
investigations towards a successful prosecution of a
case
“This Court in Appeal No. CA/A/172C/206 in an
appeal on the ruling earlier delivered by the Tribunal on this
issue had held at p. 48 that:
“There is nothing in any law preventing the Code
of Conduct Bureau, an agent of the Federal Government, from
collaborating or acting in concert with any other organs of the
Federal Government, which are also engaged in the investigations
and prosecution of criminal matters in order to achieve its mandate
under the Constitution and the law.”
As rightly noted by the learned counsel to the
appellant, the Court of Appeal decision is supported by the
decision in Bamaiyi v. A.G. Federation (2000) 6 NWLR (Pt. 661) 421
at 460-461 paras G-E, where it was held that it was not unlawful
for the Attorney-General of the Federation to set up special
investigation panel comprising of police and other enforcement
agencies. I am in full agreement with the learned senior counsel
for the appellant that refusal of the Tribunal to bind itself on
this point and thereby unwittingly constituting itself as an appeal
over the decision of the Court of Appeal amounted to judicial
impertinence and disrespect to this Court. SeeA.G. Anambra v.
Eyitene (1985) 6 NSCLR 753.” Per AKOMOLAFE-WILSON, J.C.A. (Pp.
10-11, Paras. C-C)
- CRIMINAL LAW AND PROCEDURE – NO CASE
SUBMISSION: Statutory provision on the principles for no
case submission
“The Administration of Criminal Justice Act,
2015 (ACJA) has codified the principles for no case
submission.
Sections 302 and 303 provides –
“302 – The Court may, on its own motion or on
application by the defendant after hearing the evidence for the
prosecution, where it considers that the evidence against the
defendant or any of several defendants is not sufficient to justify
the continuation of the trial, record a finding of not guilty in
respect of the defendant without calling on him or them to enter
his or their defence and the defendant shall accordingly be
discharged and the Court shall then call on the remaining
defendants, if any, to enter his defence.
303(3) – In considering the application of the
defendant under Section 303, the Court shall, in the exercise of
its discretion have regard to whether:
a. An essential element of the offence has been
proved;
b. There is evidence linking the defendant with
the commission of the offence with which he is charged;
c. The evidence so far led is such that no
reasonable Court or tribunal would convict on it; and
d. any other ground on which the Court may find
that a prima facie case has not been made out against the defendant
for him to be called upon to answer.” Per AKOMOLAFE-WILSON, J.C.A.
(Pp. 39-40, Paras. A-A)
– CRIMINAL LAW AND PROCEDURE – CRIMINAL
INVESTIGATION: Whether Federal Government Agencies that engage in
the investigations and prosecution can collaborate with each other
in investigations towards a successful prosecution of a
case
“…the tribunal was wrong to have held to the
effect that investigations by the team consisting of Code of
Conduct Bureau, EFCC and DSS is unknown to law. See pages 2131 to
2132 of the record of appeal.
I am compelled to arrive at this conclusion
because this Court had in its decision in CA/A/172C/2016
categorically stated that nothing stops these agencies from
collaborating in investigations towards a successful prosecution of
a case, not least because all of them are undeniably agencies of
the Federal Government with the necessary mandate to investigate
and prosecute; see BAMAIYI v. AG FED (2000) 6 NWLR part 661 page
421; thus requiring each agency to perform its functions without
collaborating with the other is only likely to end up in
duplication and likely chaos.” Per MUSTAPHA, J.C.A. (Pp. 89-90,
Paras. F-D)
- EVIDENCE – PRIMA FACIE CASE: Factors that a court will
consider in determining whether there is a prima facie case against
an accused
“At this stage, it is important to note that the
factors that the Court will consider in determining whether an
information discloses a prima facie case against an accused person
for the determination of whether or not to be prosecuted are
different from the factors upon which a Court will determine that a
prima facie case has been made upon which an accused person will be
called upon to enter his defence. This is because there is tendency
of using the terminology for both situations. In criminal
information, in determining whether there is a prima facie case,
the Court will determine whether the facts in the statements of the
information sufficiently link the accused person to the offences
charged upon which there is a ground for proceeding against him. At
this stage, the trial Court is not called to express an opinion on
the evidence before it; he is not to consider the credibility of
the witnesses as hearing has not commenced, neither is it to
consider the weight attached to the evidence. What is important is
that there is a ground for proceeding with the charge or the trial.
See Ajijagba v. IGP (1958) SCNLR 60; Ajiboye v. The State (1998)
ACLR 355 at 363, Ekwunugo v. FRN (2008) 40 WRN 160 at 170; Nyame v.
FRN (2010) 42 1 NSCQR 45 at 84.
However, the situation is different where a
submission of no prima facie case to answer is made on behalf of
the accused person. In a criminal trial, a prima facie case is a
case in which the evidence adduced by the prosecution, is
sufficient to call upon the accused to make a defence, without
which a Court of law is competent to proceed to conviction. In
other words, it means the prosecution has presented sufficient
evidence to establish the ingredients of the offence that the
accused is convictable, in the absence of contrary evidence. See
Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 81.
In Obinna Okeke v. The State (2012) LPELR-9793
(CA) at p.20, this Court held thus “In a criminal trial, at the
close of the case for the prosecution, a submission of no prima
facie case to answer made on behalf of the accused person
postulates one or two things or both of them at once: (a) Such a
submission postulates that there has been throughout the trial no
legal admissible evidence of whom the submission has been made,
linking him in any way with the commission of the offence with
which he had been charged, which would necessitate his being called
upon to defend himself, (b) That whatever evidence there was which
might have linked the accused person with the offence has been so
discredited that no reasonable Court can be called upon to act on
it as establishing criminal guilt in (sic) the accused person
concerned.” Per AKOMOLAFE-WILSON, J.C.A. (Pp. 36-39, Paras.
E-A)
- EVIDENCE – HEARSAY EVIDENCE: Position of the law as
regards hearsay evidence
“… The evidence of PW1 on these issues is
admissible only as to what he carried out in the process of
investigation but it is hearsay and totally inadmissible for
proving the truth of the contents of the exhibits tendered. See
Utteh v. The State (1992) 2 SCNJ (Pt. 1) 183; Onya v. Ogbuji (2011)
All FWLR (Pt. 556) 493 CA. It is observed that PW1 gave incisive
details about some investigations carried out by EFCC
concerning the respondent. However, the actual
persons who gave the information were not called to testify.
Meanwhile lots of assertions were made by PW1 in his testimony in a
bid to establish the allegations made against the respondent in the
further amended charge.
The law is settled that, express or implied
assertions of any person other than the witness who is testifying
and assertions in documents produced to the Court when no witness
is testifying are hearsay, hence inadmissible as evidence of that
which is asserted. See Ijiofor v. The State (2001) 4 SCNJ
230.
In Ojo v. Gharoro (2006) All FWLR (Pt. 316) 197
at 217, the Supreme Court, per Tobi JSC, adopted the definition of
hearsay in Subramaman v. Public Prosecution (1956) 1 WRL 955 at 969
thus:
“When a third party relates a story to another a
proof of contents of a statement, such story is hearsay. Hearsay
evidence is all evidence which does not derive its value solely
from the credit given to the witness himself, but which rests also,
in part on the veracity and competence of some other person. See
Judicial Service Committee, Bendel State v. Omo (1990) 6 NWLR (Pt,
157) 407. A piece of evidence is hearsay if it is evidence of the
contents of a statement made by a witness who is himself not called
to testify. See Utteh v. The State (1992) 2 NWLR (Pt 223) 257. The
word “hearsay” is used in various sense. Sometimes it means
whatever a person is heard to say. Sometimes it means whatever a
person declares on information given by someone else. The Evidence
Act, Cap. 112 Laws of the Federation of Nigeria, 1990 does not
specifically use the expression “hearsay evidence” but the totality
of Section 77 of the Act by interpretation of the Courts, provide
for hearsay evidence. In most cases, hearsay evidence is to the
following or like effect: “I was told by XYZ that; or XYZ told me
that; or I heard that XYZ told ABC that; or I made inquiries and I
was told that.”
See also Odogwu v. State (2013) 14 NWLR (Pt.
1373) 94, CAN v. Nyako (2015) 18 NWLR (Pt. 1491) 352 at 386.” Per
AKOMOLAFE-WILSON, J.C.A. (Pp. 74-76, Paras. A-A)
Culled:Lawpavilion.com
FRN V. SARAKI (2017) LPELR-43392(CA)
PRACTICE AREA: GOVERNMENTAL AGENCY
There have been instances where an offence will fall under the
investigative and prosecutive jurisdiction of two or more
government agencies. In such an instance, what is the ideal thing
to do? Can the various agencies work together to prosecute a case?
This was one of the issues for determination in this appeal.
AKOMOLAFE-WILSON, J.C.A., while delivering the
leading judgment in this appeal, held as follows: “This Court in
Appeal No. CA/A/172C/206 in an appeal on the ruling earlier
delivered by the Tribunal on this issue had held at p. 48
that:
There is nothing in any law preventing the Code
of Conduct Bureau, an agent of the Federal Government, from
collaborating or acting in concert with any other organs of the
Federal Government, which are also engaged in the investigations
and prosecution of criminal matters in order to achieve its mandate
under the Constitution and the law.”
Corroborating this position, MUSTAPHA, J.C.A. in
his contribution said “…the tribunal was wrong to have held to the
effect that investigations by the team consisting of Code of
Conduct Bureau, EFCC and DSS is unknown to law. See pages 2131 to
2132 of the record of appeal.
I am compelled to arrive at this conclusion
because this Court had in its decision in CA/A/172C/2016
categorically stated that nothing stops these agencies from
collaborating in investigations towards a successful prosecution of
a case, not least because all of them are undeniably agencies of
the Federal Government with the necessary mandate to investigate
and prosecute.”
BRIEF FACTS
The appellant herein, upon conclusion of
investigation conducted by the Economic and Financial Crimes
Commission (EFCC) and the Code of Conduct Bureau, had preferred a
thirteen count charges against the respondent before the trial
tribunal on offences ranging from false declaration of assets,
purchasing properties in excess of money fairly attributable to his
salary, maintaining a domiciliary account and other similar
allegations against the Respondent herein at the Code of Conduct
Tribunal.
The appellant, made an application to commence
trial dated 11th day of September, 2015 and in response, the
respondent herein, as defendant, pleaded not guilty and sought for
an order of the trial tribunal to quash or strike out the
charges.
In a unanimous ruling delivered on the 24th
March, 2016, the trial tribunal refused the application to quash or
strike out the charges against the respondent and ordered the
prosecution to produce witnesses to commence the trial. The
prosecution called 4 witnesses and tendered 48 exhibits in proof of
the said charges and closed its case on the 4th day of May 2017.
The respondent, through his counsel on the same day, raised a
No Case Submission, on which the trial tribunal ordered parties to
file their respective written addresses. At the end of the day, in
a unanimous ruling delivered on the 14th day of June 2017, the
trial tribunal upheld the No Case Submission of the
defendant/respondent and discharged and acquitted him of all the
charges.
Dissatisfied with the said ruling, the appellant
filed the present Appeal.
ISSUES FOR
DETERMINATION
The issues for the just determination of this
appeal was as formulated by the appellant and adopted by the Court
as follows:
1. Whether the Code of Conduct Tribunal was
right in upholding a no case submission raised by the respondent at
the close of prosecution’s case. (Distilled from grounds 1, 2, 5, 8
and 11)
2. Whether the learned members of the Tribunal
are not wrong in holding that the respondent was not invited by the
EFCC in the course of its investigation. (Distilled from ground
3)
3. Whether the Tribunal was not wrong in holding
that the investigation conducted by a team of investigators from
the Economic and Financial Crimes Commission and the Code of
Conduct Bureau was illegal and unknown to law. (Distilled from
grounds 4 and 6)
4. Whether the Tribunal was right in holding
that failure to produce the original Asset Declaration Forms and
the Written Statement of the respondent, is fatal to the case of
the prosecution when the prosecution tendered the certified True
copies of the documents. (Distilled from ground 7)
5. Whether the Code of Conduct Tribunal was not
wrong in upholding the no case submission in the instant case
regard being had to the onus of proof on the parties as prescribed
by the Constitution of the Federal Republic of Nigeria, 1999 (as
amended). (Grounds 9 and 10)
HELD
The appeal was hereby dismissed in part and
allowed only in respect of counts 4, 5 and 6 of the Further Amended
Charge.
The Ruling of the Code of Conduct Tribunal
delivered on 14th June, 2017 was upheld in respect of counts 1, 2,
3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Further
Amended Charge. And an order was made remitting the case to the
Code of Conduct Tribunal for the respondent to enter his defence in
respect of counts 4, 5 and 6 of the Further Amended
Charge.
RATIO DECIDENDI
- APPEAL – BRIEF OF ARGUMENT: Effect of failure of a party
to respond to an issue raised in a brief of argument
“Where a party fails to respond to an issue in a
brief of argument or a written brief, he is deemed to have conceded
the point in issue. See Nwankwo v. Yar’Adua (2010) All FWLR (Pt.
534) 1 at p. 22; INEC v. Nyako (2011) 12 NWLR (pt. 1262) 439 C.A.”
Per AKOMOLAFE-WILSON, J.C.A. (P. 10, Paras. B-C)
- CASE LAW – STARE DECISIS: Doctrine of stare
decisis
“By the principle of stare decisis, an inferior
Court is bound by the decision of the Superior Court. See Obiuweubi
v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465 S.C.; Gebi v. Dahiru (2013)
1 NWLR (Pt. 1282) 560 C.A.” Per AKOMOLAFE-WILSON, J.C.A. (P. 11,
Paras. C-D)
- CRIMINAL LAW AND PROCEDURE – CRIMINAL INVESTIGATION:
Whether Federal Government Agencies that engage in the
investigations and prosecution can collaborate with each other in
investigations towards a successful prosecution of a
case
“This Court in Appeal No. CA/A/172C/206 in an
appeal on the ruling earlier delivered by the Tribunal on this
issue had held at p. 48 that:
“There is nothing in any law preventing the Code
of Conduct Bureau, an agent of the Federal Government, from
collaborating or acting in concert with any other organs of the
Federal Government, which are also engaged in the investigations
and prosecution of criminal matters in order to achieve its mandate
under the Constitution and the law.”
As rightly noted by the learned counsel to the
appellant, the Court of Appeal decision is supported by the
decision in Bamaiyi v. A.G. Federation (2000) 6 NWLR (Pt. 661) 421
at 460-461 paras G-E, where it was held that it was not unlawful
for the Attorney-General of the Federation to set up special
investigation panel comprising of police and other enforcement
agencies. I am in full agreement with the learned senior counsel
for the appellant that refusal of the Tribunal to bind itself on
this point and thereby unwittingly constituting itself as an appeal
over the decision of the Court of Appeal amounted to judicial
impertinence and disrespect to this Court. SeeA.G. Anambra v.
Eyitene (1985) 6 NSCLR 753.” Per AKOMOLAFE-WILSON, J.C.A. (Pp.
10-11, Paras. C-C)
- CRIMINAL LAW AND PROCEDURE – NO CASE
SUBMISSION: Statutory provision on the principles for no
case submission
“The Administration of Criminal Justice Act,
2015 (ACJA) has codified the principles for no case
submission.
Sections 302 and 303 provides –
“302 – The Court may, on its own motion or on
application by the defendant after hearing the evidence for the
prosecution, where it considers that the evidence against the
defendant or any of several defendants is not sufficient to justify
the continuation of the trial, record a finding of not guilty in
respect of the defendant without calling on him or them to enter
his or their defence and the defendant shall accordingly be
discharged and the Court shall then call on the remaining
defendants, if any, to enter his defence.
303(3) – In considering the application of the
defendant under Section 303, the Court shall, in the exercise of
its discretion have regard to whether:
a. An essential element of the offence has been
proved;
b. There is evidence linking the defendant with
the commission of the offence with which he is charged;
c. The evidence so far led is such that no
reasonable Court or tribunal would convict on it; and
d. any other ground on which the Court may find
that a prima facie case has not been made out against the defendant
for him to be called upon to answer.” Per AKOMOLAFE-WILSON, J.C.A.
(Pp. 39-40, Paras. A-A)
– CRIMINAL LAW AND PROCEDURE – CRIMINAL
INVESTIGATION: Whether Federal Government Agencies that engage in
the investigations and prosecution can collaborate with each other
in investigations towards a successful prosecution of a
case
“…the tribunal was wrong to have held to the
effect that investigations by the team consisting of Code of
Conduct Bureau, EFCC and DSS is unknown to law. See pages 2131 to
2132 of the record of appeal.
I am compelled to arrive at this conclusion
because this Court had in its decision in CA/A/172C/2016
categorically stated that nothing stops these agencies from
collaborating in investigations towards a successful prosecution of
a case, not least because all of them are undeniably agencies of
the Federal Government with the necessary mandate to investigate
and prosecute; see BAMAIYI v. AG FED (2000) 6 NWLR part 661 page
421; thus requiring each agency to perform its functions without
collaborating with the other is only likely to end up in
duplication and likely chaos.” Per MUSTAPHA, J.C.A. (Pp. 89-90,
Paras. F-D)
- EVIDENCE – PRIMA FACIE CASE: Factors that a court will
consider in determining whether there is a prima facie case against
an accused
“At this stage, it is important to note that the
factors that the Court will consider in determining whether an
information discloses a prima facie case against an accused person
for the determination of whether or not to be prosecuted are
different from the factors upon which a Court will determine that a
prima facie case has been made upon which an accused person will be
called upon to enter his defence. This is because there is tendency
of using the terminology for both situations. In criminal
information, in determining whether there is a prima facie case,
the Court will determine whether the facts in the statements of the
information sufficiently link the accused person to the offences
charged upon which there is a ground for proceeding against him. At
this stage, the trial Court is not called to express an opinion on
the evidence before it; he is not to consider the credibility of
the witnesses as hearing has not commenced, neither is it to
consider the weight attached to the evidence. What is important is
that there is a ground for proceeding with the charge or the trial.
See Ajijagba v. IGP (1958) SCNLR 60; Ajiboye v. The State (1998)
ACLR 355 at 363, Ekwunugo v. FRN (2008) 40 WRN 160 at 170; Nyame v.
FRN (2010) 42 1 NSCQR 45 at 84.
However, the situation is different where a
submission of no prima facie case to answer is made on behalf of
the accused person. In a criminal trial, a prima facie case is a
case in which the evidence adduced by the prosecution, is
sufficient to call upon the accused to make a defence, without
which a Court of law is competent to proceed to conviction. In
other words, it means the prosecution has presented sufficient
evidence to establish the ingredients of the offence that the
accused is convictable, in the absence of contrary evidence. See
Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 81.
In Obinna Okeke v. The State (2012) LPELR-9793
(CA) at p.20, this Court held thus “In a criminal trial, at the
close of the case for the prosecution, a submission of no prima
facie case to answer made on behalf of the accused person
postulates one or two things or both of them at once: (a) Such a
submission postulates that there has been throughout the trial no
legal admissible evidence of whom the submission has been made,
linking him in any way with the commission of the offence with
which he had been charged, which would necessitate his being called
upon to defend himself, (b) That whatever evidence there was which
might have linked the accused person with the offence has been so
discredited that no reasonable Court can be called upon to act on
it as establishing criminal guilt in (sic) the accused person
concerned.” Per AKOMOLAFE-WILSON, J.C.A. (Pp. 36-39, Paras.
E-A)
- EVIDENCE – HEARSAY EVIDENCE: Position of the law as
regards hearsay evidence
“… The evidence of PW1 on these issues is
admissible only as to what he carried out in the process of
investigation but it is hearsay and totally inadmissible for
proving the truth of the contents of the exhibits tendered. See
Utteh v. The State (1992) 2 SCNJ (Pt. 1) 183; Onya v. Ogbuji (2011)
All FWLR (Pt. 556) 493 CA. It is observed that PW1 gave incisive
details about some investigations carried out by EFCC
concerning the respondent. However, the actual
persons who gave the information were not called to testify.
Meanwhile lots of assertions were made by PW1 in his testimony in a
bid to establish the allegations made against the respondent in the
further amended charge.
The law is settled that, express or implied
assertions of any person other than the witness who is testifying
and assertions in documents produced to the Court when no witness
is testifying are hearsay, hence inadmissible as evidence of that
which is asserted. See Ijiofor v. The State (2001) 4 SCNJ
230.
In Ojo v. Gharoro (2006) All FWLR (Pt. 316) 197
at 217, the Supreme Court, per Tobi JSC, adopted the definition of
hearsay in Subramaman v. Public Prosecution (1956) 1 WRL 955 at 969
thus:
“When a third party relates a story to another a
proof of contents of a statement, such story is hearsay. Hearsay
evidence is all evidence which does not derive its value solely
from the credit given to the witness himself, but which rests also,
in part on the veracity and competence of some other person. See
Judicial Service Committee, Bendel State v. Omo (1990) 6 NWLR (Pt,
157) 407. A piece of evidence is hearsay if it is evidence of the
contents of a statement made by a witness who is himself not called
to testify. See Utteh v. The State (1992) 2 NWLR (Pt 223) 257. The
word “hearsay” is used in various sense. Sometimes it means
whatever a person is heard to say. Sometimes it means whatever a
person declares on information given by someone else. The Evidence
Act, Cap. 112 Laws of the Federation of Nigeria, 1990 does not
specifically use the expression “hearsay evidence” but the totality
of Section 77 of the Act by interpretation of the Courts, provide
for hearsay evidence. In most cases, hearsay evidence is to the
following or like effect: “I was told by XYZ that; or XYZ told me
that; or I heard that XYZ told ABC that; or I made inquiries and I
was told that.”
See also Odogwu v. State (2013) 14 NWLR (Pt.
1373) 94, CAN v. Nyako (2015) 18 NWLR (Pt. 1491) 352 at 386.” Per
AKOMOLAFE-WILSON, J.C.A. (Pp. 74-76, Paras. A-A)
Culled:Lawpavilion.com
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