Admissibility of Statement Accused Person Denies Making – TheNigerialawyer

“the settled prIncIple of laW Is that, Where, In a crImInal
trIal, a statement alleGedly made By an accused person Is souGht to
Be tendered In evIdence, and the accused person challenGes It By
denyInG ever makInG It, there Is no Issue of admIssIBIlIty raIsed
thereBy, and the court WIll Be at lIBerty to admIt It”

In the Supreme Court of Nigeria
Holden at Abuja
on Friday, the 12th day of April, 2019
Before Their Lordships
Olabode Rhode-Vivour
Kudirat Motonmori olatokunbo kekere-ekun
Chima Centus Nweze
Amina Adamu Augie
Paul Adamu Galinje
Justices, Supreme Court
SC.653/2016
Between
Ogunleye Sanmi………Appellant
And
The State………..Respondent
(Lead Judgement delivered by Hon. Justice Paul Adamu
Galinje, JSC)

FACTS
On 9th September 2010, the Appellant and a certain Blessing Idowu
(who is at large), allegedly broke into the room of one Opeyemi
Obanigba and forced her to take them to her father’s room. The
Appellant and Blessing Idowu robbed Opeyemi Obanigba’s father
(Mukaila Obanigba), and also forced him to take them to the rooms
of his wife and mother. They similarly robbed Mukaila Obanigba’s
wife and mother, on entering their rooms.

Subsequently, the Appellant was arrested and arraigned before
the High Court of Ondo State, on a two count charge of conspiracy
to commit armed robbery and armed robbery pursuant to Section 6 (b)
and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act,
Cap. R. 11 Vol. 14, Laws of the Federation of Nigeria 2004. During
the trial, the Prosecution tendered the Appellant’s extra-judicial
statement (Exhibit A), but the Appellant resiled from same.

The Prosecution’s first witness, Mukaila Obanigba (PW1),
testified that his mother’s room was illuminated, and he was able
to identify the Appellant. On the conclusion of trial, the trial
court found the Appellant guilty on both counts, and sentenced him
to death by hanging. Dissatisfied with the decision of the trial
court, the Appellant unsuccessfully appealed to the Court of
Appeal, and the decision of the said Court, led to a further appeal
to the Supreme Court.

Issues
The Appellant’s counsel formulated four issues for determination by
the Supreme Court. The Appellant’s fourth issue, was apparently
formulated from a ground which does not arise from the judgement of
the Court of Appeal.

The Appellant’s second issue was a complaint against the
decision of the trial court, which is not derivable from the
Appellant’s grounds of appeal. These two issues were thus, struck
out, for being incompetent.

Consequently, the Court considered the Appellant’s first and
third issues, for determination: (i) Whether Exhibit A was validly
relied upon by the Court of Appeal, in upholding the conviction of
the Appellant; (ii) Whether the defence of alibi raised by the
Appellant was properly considered by both the trial court and the
Court of Appeal, and same availed the Appellant.

Arguments
In arguing the first issue, the Appellant’s counsel stated that,
the Prosecution failed to prove the ingredients of the offence of
armed robbery. He argued that, despite the fact that the Appellant
denied making the extra-judicial statement (Exhibit A), same was
admitted in evidence, even when it was not corroborated in any
material particular. He further argued that, Exhibit A was a
photocopy, and the Court of Appeal was wrong, by not comparing the
signature on Exhibit A with the Appellant’s signature on his Notice
of Appeal. He relied on Section 101 (1) and (2) of the
Evidence Act.

Also, he contended that, the first police officer who
investigated the case, was not called as a witness; the evidence of
the Respondent’s witnesses at the trial court was contradictory,
and that Mukaila Obanigba (PW1) could not have identified the
Appellant, since he stated in his statement to the police, that he
had switched off the lights in his room.

The Appellant’s counsel urged the Court, to resolve the issue in
the Appellant’s favour. In response, the Respondent’s counsel
stated that, the Court of Appeal was right in affirming the
decision of the trial court, on the ground that the Prosecution
proved all the ingredients of the offence of armed robbery beyond
reasonable doubt. On the third issue, the Appellant submitted that,
the Court of Appeal did not consider the defence of alibi that the
Appellant raised at the trial court.

Court’s Judgement and Rationale On the first
issue, the Apex court opined that, in a criminal trial, where a
statement allegedly made by an accused person, is sought to be
tendered in evidence, and the accused person challenges it by
denying ever making it, no issue of admissibility is raised, and
the court is at liberty to admit it. The court’s duty is to
determine at the conclusion of the case, whether or not the accused
person made the statement. The Supreme Court held that, since the
Appellant in the instant case did not complain that the statement
was made under duress, threat or some form of inducement, the trial
court was right when it admitted the confessional statement, and
the issue of whether the statement was corroborated or not, was to
be decided at the conclusion of the case.

Further, in respect of the Appellant’s argument that Exhibit A
was a photocopy, the Court relied on Section 89 of the Evidence
Act, in holding that, secondary evidence may be given of the
existence, condition or content of a document, when the original
has been destroyed or lost, and in the latter case, all possible
searches have been made for it. The Court also relied on Section
105 of the Evidence Act, in stating that copies of documents
certified in accordance with Evidence Act, may be produced in proof
of the contents of a public document. The Supreme Court therefore,
held that, the Court of Appeal was on a firm ground when it refused
to disturb the procedure adopted by the trial court, which admitted
a certified photocopy of Exhibit A.

In respect of the Appellant’s argument, that the Court of Appeal
should have compared the signature on Exhibit A with Appellant’s
signature on the Notice of Appeal, the Supreme Court held that,
before a court can exercise it discretion in this regard, the
parties to a case must have presented a request to the court for
comparison of signatures. The Court held that, there is no evidence
that the trial court was called upon to embark on such an exercise
by any of the parties, and the Court of Appeal was also not urged
to compare the Appellant’s signature. The Court of Appeal did not
hear evidence from any of the parties, and was therefore, not in a
position to direct for signature comparison. In addition, the Court
of Appeal had no jurisdiction over same, as there was no appeal on
it before the Court. The Supreme Court cited Abdulkareem v
Incar Nigeria Ltd. (I984) 15 NSCC 603 at 617, paragraph 5,
amongst other cases.

On the Appellant’s argument that the Prosecution failed to call
the initial police officer who investigated the case, the Supreme
Court opined that, the fact that the initial investigating police
officer was not called, is not fatal to the Prosecution’s case, as
the Nigerian Police is an institution where any of its officers can
take over the investigation of a case from another officer, and
produce documents that were executed by previous officers.

As regard the Appellant’s argument, that PW1 could not have
identified the Appellant and that PW1’s evidence was contradictory,
the Supreme Court found that, there was no contradiction in the
Prosecution’s case. In resolving the Appellant’s third issue, the
Apex Court opined that, alibi means that when an offence was
committed, the accused person was elsewhere, and it was impossible
for him to have committed the offence. However, alibi is within the
personal knowledge of the accused person, and so, it is his duty to
give full particulars of where he was, and with whom he had been,
to enable the police investigate his claims of being elsewhere. In
the instant case, the Appellant claimed he was in Lagos, but there
was no way the police could have initiated an investigation, in
order to ascertain the truth or otherwise of his claim. Also, his
defence of alibi was not timeously raised when he was arrested, as
nothing of such was reflected in Exhibit A. The Court cited
Ebenchi & Another v The State (2009) ALL FWLR (Pt. 486)
1825 at 1833 Para C-E.

Based on the foregoing, the Supreme Court affirmed judgement of
the Court of Appeal and Dismissed the appeal.
Appeal Dismissed.
Representation: Patrick E. Oganwu, Esq. with Usman
O. Sule, Esq., Agada Glachi, Esq., Johnson Oko Ochai,Esq. and
Hafsat I. Usman for the Appellant.
R. P. Olatubora, Esq. for the Respondent.
Reported by Optimum Publishers Limited (Publishers of
Nigerian Monthly Law Reports (NMLR)

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