BELLO SHEHU v. THE STATE
April 19, 2025ABDULRAHMAN MOHAMMED V. THE STATE
April 19, 2025Legalpedia Citation: (2025-03) Legalpedia 72939 (CA)
In the Court of Appeal
SOKOTO
Fri Mar 21, 2025
Suit Number: CA/S/78C/2024
CORAM
Muhammed Lawal Shuaibu Justice Court of Appeal
Ebiowei Tobi Justice Court of Appeal
Victoria Toochukwu Nwoye Justice Court of Appeal
PARTIES
RILWANU BELLO
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW AND PROCEDURE, EVIDENCE, APPEAL, PRACTICE AND PROCEDURE, BURDEN OF PROOF, JUDICIAL DISCRETION
SUMMARY OF FACTS
This case concerns an appeal against the judgment of the High Court of Sokoto State delivered by Hon. Justice Muawiya Dahiru Mahmud on March 27, 2023. The Appellant, Rilwanu Bello, was arraigned before the Lower Court on two counts: causing grievous hurt and attempt to commit culpable homicide under Sections 224 and 201(a) of the Sokoto State Penal Code Law, 2019.
During the trial, the prosecution called six witnesses and tendered five exhibits, including the Appellant’s extra-judicial statements (Exhibits P1 & P1A), a machete (Exhibit P2), and two copies of photographs of the victim (Exhibits P3 & P3A). The prosecution’s case was that the Appellant had attacked the victim (PW3) with a machete while the victim was sleeping, inflicting multiple injuries on his head and two hands.
The trial Judge found the Appellant guilty of both offenses and sentenced him to ten years imprisonment on both counts, with the sentences to run concurrently. Dissatisfied with the conviction and sentences, the Appellant filed a notice of appeal on July 7, 2024, containing two grounds of appeal.
HELD
1. The appeal was dismissed.
2. The judgment of the Lower Court in Suit No. SS/158C/2023, delivered on March 27, 2024, was affirmed.
3. The Court held that the confessional statement of the Appellant could be tendered through a member of the investigating team who was not the maker of the statement, especially when there was an explanation for the absence of the maker.
4. The Court held that the prosecution had proved its case against the Appellant beyond reasonable doubt.
ISSUES
Whether the guilt of the Appellant was proved beyond reasonable doubt having regard to the evidence adduced before the trial Court?
RATIONES DECIDENDI
BURDEN OF PROOF IN CRIMINAL CASES – DUTY OF PROSECUTION TO PROVE CASE BEYOND REASONABLE DOUBT
“By virtue of Section 135 of the Evidence Act, 2011, the prosecution bears the burden of proving a charge against the Defendant, with credible evidence beyond reasonable doubt. In other words, the prosecution has a bounden duty to adduce credible evidence to prove the ingredients of the offence (s) for which the defendant is standing trial. This burden does not shift until the prosecution has adduced credible and compelling evidence against the accused, either by direct evidence, circumstantial evidence, or the confessional statement of the accused person.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
ADMISSIBILITY OF DOCUMENTARY EVIDENCE – CONDITIONS UNDER SECTION 83(1)(B) OF THE EVIDENCE ACT, 2011
“By virtue of Section 83(1)(b) of the Evidence Act, 2011, in a proceeding, where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seeks to establish that fact shall, on production of the original document, be admissible as evidence of the fact if the maker of the statement is called as a witness in the proceeding. Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
COURT’S DISCRETION TO ADMIT DOCUMENTARY EVIDENCE IN ABSENCE OF MAKER – PROVISIONS OF SECTION 83(2) OF THE EVIDENCE ACT, 2011
“However, in Subsection 2 of the said Section 83 of the Evidence Act, it provides that in any proceeding, the Court may at any stage of the proceeding if having regard to all the circumstances of the case, it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in Subsection (1) of the Section shall be admissible as evidence or may without any such order having been made, admit such a statement in evidence notwithstanding that the maker of the statement is available but is not called as a witness, and the original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy, if in such manner as may be specified in the order or as the Court may approve, as the case may be.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
ADMISSIBILITY OF DOCUMENTARY EVIDENCE – RELEVANCE AS DETERMINANT OF ADMISSIBILITY
“This implicitly means documentary evidence can be admitted in the absence of the maker. It was severally held that relevancy determines admissibility and there is a difference between admissibility and weight to be attached to the admitted document, once material foundation is laid, any contention as to non-admissibility of the document on the ground that it was not tendered by its maker will be of no moment.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
COURT’S DISCRETION TO ADMIT DOCUMENTARY EVIDENCE IN ABSENCE OF MAKER – TWO INSTANCES
“In UNITY BANK PLC V. RAYBAM ENG. LTD (2018) 12 NWLR (PT. 1633) 214 at 230, this Court has held that a Court has discretion to admit a document in evidence even where the maker is not called as a witness in two instances viz: (a) Where the Court is satisfied that undue delay or expense would be caused if the maker were to be brought, then the Court would so make the order that undue delay or expense would be caused and admit the document. (b) The Court has discretion without such an order having been made to admit the document in evidence, notwithstanding that the maker has not been called.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
ADMISSIBILITY OF EXTRA-JUDICIAL STATEMENTS – TENDERING THROUGH INVESTIGATING OFFICER
“In the instant case, the contention, as stated earlier, is simply on the admissibility of the Appellant’s extra-judicial statements, Exhibit P1 and P1A admitted through the investigating officer other than the recorder of the said statement. In the cases of ABADOM V. STATE (1997) 1 NWLR (PT. 479) 1, STEPHEN JOHN V. THE STATE (2011) 18 NWLR (PT. 1278) 353, ALI V. STATE (2024) – LPELR – 62370 (CA) and a host of the other cases, supported the preposition that the extra-judicial statement of an accused person may be tendered through a police officer in the team of investigation other than the one who recorded it as in this case where the recorder of Exhibits P1 & P1A has been transferred out of jurisdiction at the time of trial.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
SUPREME COURT DECISION ON ADMISSIBILITY UNDER SECTION 83(2) – ADMISSIBILITY DESPITE AVAILABILITY OF MAKER
“In EKPO V. STATE (2018) 12 NWLR (PT. 1634) 408 at 418, the Supreme Court while considering the said provisions of Section 83(2) of the Evidence Act, 2011 has held emphatically that the Court may at any stage of the proceeding, if having regard to all circumstances of the case, it is satisfied that undue delay or expanse would otherwise be caused, admit a statement in evidence notwithstanding that the maker of the statement is available but not called as a witness. In the instant case, Exhibit P1 and P1A was a statement made to the police and PW1 through whom the statement was tendered is a police officer. It is thus presumed that he had knowledge of the document that was tendered through him.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
EVALUATION OF EVIDENCE – COURT’S DUTY TO EVALUATE TOTALITY OF EVIDENCE
“It is also settled that the Court must evaluate the totality of the evidence called by the prosecution in order to determine whether the prosecution has proved its case against the defendant beyond reasonable doubt.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.
DOCUMENTARY HEARSAY – GENERAL PRINCIPLE AND EXCEPTIONS
“The general position of the law is that to avoid the sin of documentary hearsay, it is the maker of a document that should tender same. A tendered document becomes documentary hearsay when the person tendering same knows nothing about the document and therefore cannot answer any question on it. The law, however, recognises situations when the maker may not be present to testify but yet the statement will be admissible.” – Per EBIOWEI TOBI, J.C.A.
DOCUMENTARY HEARSAY – SUPREME COURT DECISION ON EXCEPTIONS
“It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) The maker is dead. (2) The maker can only be procured by involving the party in so much expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer the question on it, the non-maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker.” – Per EBIOWEI TOBI, J.C.A. (quoting TOBI, J.S.C in Omega Bank (Nig) Plc vs O.B.C. Ltd (2005) LPELR-2636(SC))
ADMISSIBILITY OF CONFESSIONAL STATEMENTS – TENDERING THROUGH INVESTIGATING TEAM MEMBER
“The maker of the document is either the Appellant or the police officer who recorded the statement. The argument of learned Appellant’s counsel is that since the document, that is, the confessional statement is not tendered through any of them, it is inadmissible. This does not represent the true position of the law. The statement can be tendered through a member of the investigating team, even if he was not the actual person who took the statement, especially when there is an explanation that he is not around.” – Per EBIOWEI TOBI, J.C.A.
SECTION 83(2) OF THE EVIDENCE ACT – REQUIREMENTS FOR ADMISSIBILITY
“What the law requires in such a situation is to meet some conditions. Section 83(2) Evidence Act states that if undue delay or expenses would otherwise be caused, the Court can accept the document even if tendered through another person.” – Per EBIOWEI TOBI, J.C.A.
ADMISSIBILITY OF DOCUMENTARY EVIDENCE – EXPLANATION OF ABSENCE OF MAKER
“There is clear evidence before the lower Court that the person who took the statement was no longer in Sokoto but now on border patrol. This is enough evidence to explain his absence and therefore comply with Section 83 of the Evidence Act. On the strength of this, exhibit P and P1 cannot be documentary hearsay since it was tendered through a member of the investigating team.” – Per EBIOWEI TOBI, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Constitution of the Federal Republic of Nigeria, 1999 (as amended)
• Sokoto State Penal Code Law, 2019
• Sokoto State Penal Code Law, 2021
CLICK HERE TO READ FULL JUDGMENT
