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ArticleThe inadmissibility of extrajudicial statements in criminal trials 

September 6, 20190

The inadmissibility of extrajudicial statements in criminal trials and the perennial ignorance of some of our prosecuting agencies.

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 extrajudicial 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 extrajudicial 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 defense, during cross examination of the witness, the defense counsel is obliged to demand from the prosecution a copy of the said extrajudicial 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 extrajudicial 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. 

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