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RELEVANCY AND ADMISSIBILITY DISTINCTION

Dictum

Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. At that stage, the Judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage the Judge is involved in the evaluation or the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts.

— N. Tobi JSC. Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)

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RETRACTED CONFESSIONAL STATEMENT IS STILL ADMISSIBLE

In ASIMI V. STATE (2016) LPELR – 40436 (SC), this Court per Rhodes Vivour JSC at Pp 14-15, para E-C stated succinctly thus: 22 “Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit P6) a Court can convict on it even if the appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desirable but not mandatory that there is general corroboration of the important incidents and not that retracted confession should be corroborated in each material particular.”

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ADMISSIBILITY OF A DOCUMENT IS ONE THING; WEIGHT IS ANOTHER THING

The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence.

— N. Tobi JSC. Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)

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EXTRA JUDICIAL STATEMENT IS INADMISSIBLE EXCEPT TO CONTRADICT

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.

– Ogunwumiju JCA. Okeke v. State (2016)

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DESPITE RELEVANCY, DOCUMENT MAY BE INADMISSIBLE BY OPERATION OF LAW

Section 1 of the Evidence Act is to the effect that evidence may be given of the facts in issue and relevant fact. Proviso (b) thereto is categorical that the Section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force. There is no doubt that by virtue of Section 2 of the Evidence Act that a piece of evidence excluded either by the Act itself or any other legislation validly in force in Nigeria cannot be admissible in evidence. It is therefore, not only relevancy that governs admissibility. A piece of evidence may be relevant and yet could, by operation of law, be inadmissible.

— E. Eko, JSC. Kekong v State (2017) – SC.884/2014

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ADMISSIBILITY OF A CONFESSIONAL STATEMENT

Olalekan v. State (2001) LPELR-2561(SC) 4, 50-51, F-A, where Onu, J.S.C. held as follows: “This Court has held times without number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it. See Queen v. Baba Haske (1961) 1 All NLR 330 at 333.” (Emphasis supplied).

At page 37, A-C of the same Report, Karibi-Whyte, J.S.C. also stated as follows: “The general proposition is well settled that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down.”

Again, at pages 55-57 of the same Report, Uwaifo, J.S.C. made his findings in extension as follows: “I have read the reasons given by my learned brother Ogundare, J.S.C. for dismissing this appeal on 20 September, 2001. I wish however, to express my views briefly on whether Exhibit A was properly admitted at the trial. Sgt Linus Patricks (PW6) was the officer who recorded the statement of the appellant. The appellant spoke in Yoruba language and PW6, acting through an interpreter, Aremu Adeosun (PE3), recorded the statement in English language. That was how Exhibit A, the said statement, came into existence. Now, PW3 testified that he interpreted between PW6 and the Appellant. Thereafter, he read the statement as written in English language by interpreting it to the Appellant who agreed that it was correctly recorded. He said the Appellant thumb-printed Exhibit A and he, the interpreter, signed it, as did PW6, the recorder of the statement… At the trial Court, no objection was taken to the voluntariness of the statement, or any other objection at all… The objection now taken in this Court is that the statement (Exhibit A) is hearsay evidence… With the greatest respect, what I understand the authorities in this country to establish is that where an interpreter has been used in taking down a statement, both the person who wrote down the statement and the person who interpreted it must be called as witnesses. In the case of the person who recorded the statement, he would, of course, state in evidence the procedure he took in the process. That was done in the present case. As for the person who interpreted, he would need to be presented as a witness to testify that he interpreted. It is then open to the defence to cross-examine them… I am therefore satisfied that the prosecution called the necessary witnesses who gave sufficient evidence in the present case to make Exhibit A admissible… The objection that it was hearsay is not well founded and I overrule it.”

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TWO CATEGORIES OF INADMISSIBLE EVIDENCE

It must be borne in mind that there are two categories of inadmissible evidence. Evidence that is absolutely inadmissible in law which is not within the competence of the parties to admit by consent or otherwise. It is a document which is by law inadmissible, see for example James v Mid Motors (1978) 11-12 SC 31; Minister v Azikiwe (1969) 1 All NLR 49; Kale v Coker (1982) 12 SC 252. The second class of inadmissible evidence is, for example, a document which is admissible in law but upon fulfilling certain conditions, parties may by consent admit it notwithstanding the conditions not being fulfilled e.g. the admission of unstamped instrument required to be stamped, see Etim v Ekpe (1983) 1 SC NLR 120, (1983) NSCC 86; Igbodim v Obianke (1976) 9-10 SC 179.

— Musdapher, JSC. Shittu & Ors. v Fashawe [2005] – SC 21/2001

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