It has surprisingly become common practice for some prosecutors
to tender witnesses’ statements (extra judicial statements)
recorded during criminal investigation to “buttress” their
witnesses’ testimonies at the trial and such unsupported practice
has come to be accepted by most trial courts especially where there
is no resistance from the defence counsel.
Recently and emphatically in 2016, the Court of Appeal
in Afam Okeke v The State(2016)
LPELR-40024(CA), held per Helen Ogunwumiju, JCA in his
leading judgement thus: “The extra judicial statement of a witness
in a criminal trial is inadmissible as evidence for either side.
The admissible evidence is the evidence on oath in open court by
the witness which is subject to cross examination by the adverse
party. The only time when an extra judicial statement of a
witness is admissible is where a party seeks to use it to
contradict the evidence of a witness already given on oath.
(Emphasis mine) For the avoidance of doubt on what an “extra
judicial statement” is; at page 148 of Babalola’s Law
Dictionary, it is defined as: “A statement written or made
outside the court.” See also Ajudua v FRN (2017) 2 NWLR
(Pt. 1548) 1. I must quickly stress that, Okeke’s decision on
the principle does not stand alone; for as far back as 1989, the
Supreme Court had in the case of Esangbedo v State (1989) 4
NWLR (Pt.113) 57 at 66 para, F, held per Nnaemeka-Agu, JSC (of
blessed memory) as follows: “We cannot look at the extra-judicial
statements of the PW1, PW2 PW4 and PW9, which were not tendered as
exhibits during trial, because those statements cannot be
legal evidence…Even in the court of trial, the only proper use that
could have been made of those extra-judicial statements of
witnesses was to have used them for cross-examination of those
witnesses in order to discredit their testimony. In January 2001,
the same court in The State v Ogbubunjo (2001) LPELR
-3223(SC) held thus: “Extra judicial statements which
remain in that category however credible they may appear, cannot be
used as evidence in a trial. Learned Counsel for the appellant has
contended, and this is conceded by Counsel to respondents that the
statements of PW2 and PW6 relied upon by the Court below are
extra-judicial statements, which are inadmissible as evidence in
the proceedings.” The Court of Appeal has consistently reiterated
the principle down the years in the following line of
cases: Igenti v State (2013) LPELR –
20861(CA), Okechukwu Chukwu v The State (2010) LPELR
-15360(CA), Ojo v FRN (2008) 11 NWLR (Pt. 1099) and
interestingly, in the case of Daniel Peter v The State
(2013) LPELR-20302(CA) when a Counsel castigated the
prosecution for not tendering the extra judicial statement at the
trial, the Court of Appeal sitting in Benin, had this to say: “We
must understand that the argument of learned Appellant’s counsel is
essentially that it is the duty of the prosecution to tender extra
judicial statements made by its witnesses as exhibits during the
trial. It is my humble view that, that is not the position of the
law. The position of the law is that before the court can admit and
make use of an extra judicial statement made by the prosecution
witnesses, the witnesses must have been confronted with the
statement under cross examination. The only use the statement of a
prosecution witness who gave evidence in court can be made of is
for discrediting him in cross- examination by the defence.” From
the foregoing cases, contrary to the regular and seemingly
acceptable practice of some prosecuting agencies who seek to rely
on extra judicial statements in criminal trials, it thus appears
that they only enure only to the benefit of the defence in the
process of cross examination but such statements ought to remain
untendered where the defence does not find them useful to its case
and the court ought not rely on them as held in the case
of Okechukwu Chukwu v The State (supra):
Indeed, it is not in doubt that the PW1 had made two statements to
the Police. “The PW1 had also admitted making two statements to the
Police, one at the Owerri Urban Police Station and the order at the
State C.I.D. Owerri. The Appellant’s counsel questioned the PW1
during cross-examination and she confirmed making those statements.
However, none of those statements was either tendered or admitted
in evidence…In the instant case, the extra-judicial statements of
Nnena Duru who testified as the PW1 were never tendered in
evidence. If the Appellant wanted to utilize those statements in
his defence, he ought to have drawn the attention of the Court to
it by cross-examining the PW1 on the contents of those statements,
vis-a-vis her testimony in Court and tender same in evidence. He
cannot now complain that the learned trial Judge erred in not
utilizing those statements which were not evidence before the
Court. The fact that they were annexed to the proofs of evidence is
of no moment. “ It must however be emphasised that, the
defence’s right to use the extra judicial statement is not
automatic but upon fulfilling the following procedure as restated
in Igenti v State (supra) as follows: “Let me
restate the inconsistency rule. Where a witness in a criminal trial
made a prior extra judicial statement materially inconsistent with
his evidence on oath, the trial judge, not being permitted to pick
and choose which evidence to believe, is obliged to disbelieve both
and put no probative value on them. For the rule to be activated by
the defence, during cross examination of the witness, the defence
counsel is obliged to demand from the prosecution a copy of the
said extra judicial statement of the witness which ordinarily
should be in the prosecution’s file and part of the proofs of
evidence. The portion of the extra judicial statement materially
different from the witness’s evidence on oath would be put to him
to give him opportunity to explain. Thereafter the extra judicial
statement should be tendered and admitted as evidence. The point
would then be made an issue during address by defence counsel.”
From this realisation, one may then ask why should the police
obtain statements from witnesses if they cannot utilise same at the
trial. To the author’s mind, same is to ensure consistency in the
prosecution’s case beyond reasonable doubt, such that, an entirely
different charge is not made out at the trial which is inconsistent
with the contents of the proof of evidence upon which a defendant
is charged to court in the first place. See Glencore Energy
UK Ltd v Federal Republic of Nigeria (2018) LPELR- 43860(CA)
thus: “The conviction of an accused person must be supported
and founded on credible evidence which must be cogent and must not
create room for speculation or doubt and if it does as in the
instant appeal, it is liable to be set aside on Appeal…This is why
it has always been the law from antiquity till present day that any
reasonable doubt raised as a result of inconsistencies in the
evidence presentated by the prosecution must necessarily be
resolved in favour of the accused, for it is better for 99 guilty
persons to be set free than for one innocent person to be convicted
and sentenced for an offence he did not commit. “ Also
in Ogisugo v State 2015) ALL FWLR (Pt. 792)
1602 it was held thus: “The burden on
the prosecution of proving a charge beyond reasonable doubt does
not mean or import beyond any degree of certainty… Evidence which
is susceptible to doubt, discrepancy, inconsistency and
contradiction as in the instant case cannot be said to have
attained the standard of proof that is beyond reasonable doubt.
Proof beyond reasonable doubt should be a proof that excludes all
reasonable inference or assumption except that which it seeks to
support. It must have clarity of proof that is readily consistent
with the guilt of the accused person.”
Conclusively, since the aim of our criminal justice system is to
avoid punishing an innocent person, then the evidence of
prosecution (part of which, extra judicial statements are) must
align with the testimony given on oath at the trial by the
prosecution witness if same is to be relied on by the court.
Olumide Babalola is the managing partner of Olumide
Babalola LP.
It has surprisingly become common practice for some prosecutors
to tender witnesses’ statements (extra judicial statements)
recorded during criminal investigation to “buttress” their
witnesses’ testimonies at the trial and such unsupported practice
has come to be accepted by most trial courts especially where there
is no resistance from the defence counsel.
Recently and emphatically in 2016, the Court of Appeal
in Afam Okeke v The State(2016)
LPELR-40024(CA), held per Helen Ogunwumiju, JCA in his
leading judgement thus: “The extra judicial statement of a witness
in a criminal trial is inadmissible as evidence for either side.
The admissible evidence is the evidence on oath in open court by
the witness which is subject to cross examination by the adverse
party. The only time when an extra judicial statement of a
witness is admissible is where a party seeks to use it to
contradict the evidence of a witness already given on oath.
(Emphasis mine) For the avoidance of doubt on what an “extra
judicial statement” is; at page 148 of Babalola’s Law
Dictionary, it is defined as: “A statement written or made
outside the court.” See also Ajudua v FRN (2017) 2 NWLR
(Pt. 1548) 1. I must quickly stress that, Okeke’s decision on
the principle does not stand alone; for as far back as 1989, the
Supreme Court had in the case of Esangbedo v State (1989) 4
NWLR (Pt.113) 57 at 66 para, F, held per Nnaemeka-Agu, JSC (of
blessed memory) as follows: “We cannot look at the extra-judicial
statements of the PW1, PW2 PW4 and PW9, which were not tendered as
exhibits during trial, because those statements cannot be
legal evidence…Even in the court of trial, the only proper use that
could have been made of those extra-judicial statements of
witnesses was to have used them for cross-examination of those
witnesses in order to discredit their testimony. In January 2001,
the same court in The State v Ogbubunjo (2001) LPELR
-3223(SC) held thus: “Extra judicial statements which
remain in that category however credible they may appear, cannot be
used as evidence in a trial. Learned Counsel for the appellant has
contended, and this is conceded by Counsel to respondents that the
statements of PW2 and PW6 relied upon by the Court below are
extra-judicial statements, which are inadmissible as evidence in
the proceedings.” The Court of Appeal has consistently reiterated
the principle down the years in the following line of
cases: Igenti v State (2013) LPELR –
20861(CA), Okechukwu Chukwu v The State (2010) LPELR
-15360(CA), Ojo v FRN (2008) 11 NWLR (Pt. 1099) and
interestingly, in the case of Daniel Peter v The State
(2013) LPELR-20302(CA) when a Counsel castigated the
prosecution for not tendering the extra judicial statement at the
trial, the Court of Appeal sitting in Benin, had this to say: “We
must understand that the argument of learned Appellant’s counsel is
essentially that it is the duty of the prosecution to tender extra
judicial statements made by its witnesses as exhibits during the
trial. It is my humble view that, that is not the position of the
law. The position of the law is that before the court can admit and
make use of an extra judicial statement made by the prosecution
witnesses, the witnesses must have been confronted with the
statement under cross examination. The only use the statement of a
prosecution witness who gave evidence in court can be made of is
for discrediting him in cross- examination by the defence.” From
the foregoing cases, contrary to the regular and seemingly
acceptable practice of some prosecuting agencies who seek to rely
on extra judicial statements in criminal trials, it thus appears
that they only enure only to the benefit of the defence in the
process of cross examination but such statements ought to remain
untendered where the defence does not find them useful to its case
and the court ought not rely on them as held in the case
of Okechukwu Chukwu v The State (supra):
Indeed, it is not in doubt that the PW1 had made two statements to
the Police. “The PW1 had also admitted making two statements to the
Police, one at the Owerri Urban Police Station and the order at the
State C.I.D. Owerri. The Appellant’s counsel questioned the PW1
during cross-examination and she confirmed making those statements.
However, none of those statements was either tendered or admitted
in evidence…In the instant case, the extra-judicial statements of
Nnena Duru who testified as the PW1 were never tendered in
evidence. If the Appellant wanted to utilize those statements in
his defence, he ought to have drawn the attention of the Court to
it by cross-examining the PW1 on the contents of those statements,
vis-a-vis her testimony in Court and tender same in evidence. He
cannot now complain that the learned trial Judge erred in not
utilizing those statements which were not evidence before the
Court. The fact that they were annexed to the proofs of evidence is
of no moment. “ It must however be emphasised that, the
defence’s right to use the extra judicial statement is not
automatic but upon fulfilling the following procedure as restated
in Igenti v State (supra) as follows: “Let me
restate the inconsistency rule. Where a witness in a criminal trial
made a prior extra judicial statement materially inconsistent with
his evidence on oath, the trial judge, not being permitted to pick
and choose which evidence to believe, is obliged to disbelieve both
and put no probative value on them. For the rule to be activated by
the defence, during cross examination of the witness, the defence
counsel is obliged to demand from the prosecution a copy of the
said extra judicial statement of the witness which ordinarily
should be in the prosecution’s file and part of the proofs of
evidence. The portion of the extra judicial statement materially
different from the witness’s evidence on oath would be put to him
to give him opportunity to explain. Thereafter the extra judicial
statement should be tendered and admitted as evidence. The point
would then be made an issue during address by defence counsel.”
From this realisation, one may then ask why should the police
obtain statements from witnesses if they cannot utilise same at the
trial. To the author’s mind, same is to ensure consistency in the
prosecution’s case beyond reasonable doubt, such that, an entirely
different charge is not made out at the trial which is inconsistent
with the contents of the proof of evidence upon which a defendant
is charged to court in the first place. See Glencore Energy
UK Ltd v Federal Republic of Nigeria (2018) LPELR- 43860(CA)
thus: “The conviction of an accused person must be supported
and founded on credible evidence which must be cogent and must not
create room for speculation or doubt and if it does as in the
instant appeal, it is liable to be set aside on Appeal…This is why
it has always been the law from antiquity till present day that any
reasonable doubt raised as a result of inconsistencies in the
evidence presentated by the prosecution must necessarily be
resolved in favour of the accused, for it is better for 99 guilty
persons to be set free than for one innocent person to be convicted
and sentenced for an offence he did not commit. “ Also
in Ogisugo v State 2015) ALL FWLR (Pt. 792)
1602 it was held thus: “The burden on
the prosecution of proving a charge beyond reasonable doubt does
not mean or import beyond any degree of certainty… Evidence which
is susceptible to doubt, discrepancy, inconsistency and
contradiction as in the instant case cannot be said to have
attained the standard of proof that is beyond reasonable doubt.
Proof beyond reasonable doubt should be a proof that excludes all
reasonable inference or assumption except that which it seeks to
support. It must have clarity of proof that is readily consistent
with the guilt of the accused person.”
Conclusively, since the aim of our criminal justice system is to
avoid punishing an innocent person, then the evidence of
prosecution (part of which, extra judicial statements are) must
align with the testimony given on oath at the trial by the
prosecution witness if same is to be relied on by the court.
Olumide Babalola is the managing partner of Olumide
Babalola LP.