OLAYINKA BELLO TAIWO v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13246(CA)
In The Court of Appeal of Nigeria
On Monday, the 13th day of May, 2019
CA/IB/11C/2019
RATIO
WHETHER A TRIAL JUDGE CAN EXPUNGE FROM THE RECORD A DOCUMENT WHICH HE WRONGLY ADMITTED
The law is elementary that a trial judge has the right to expunge from the record a document which he wrongly or wrongfully admitted. He can do so suo motu at the point of writing judgment. He needs no prompting from any of the parties, although a party is free to call his attention to the document at the stage of address . . . . I am aware and this is settled that neither a trial Court, nor the parties have power to admit without objection, a document that is in no way or circumstances admissible in law.PER FOLASADE AYODEJI OJO, J.C.A.
WHETHER A DOCUMENT CAN STILL BE OBJECTED TO AT THE ADDRESS AND APPEAL STAGES
A party can call the attention of a Court to a document at the address stage whether or not he objected to the tendering and admission of such document in evidence. This is because a document that is inadmissible in law is liable to be expunged whether or not a party objected to it. A document which is inadmissible in law cannot be admitted by consent of parties. See OBA GORIOLA OSENI & ORS. VS. YAKUBU DAWODU & ORS. (1994) 4 SCNJ (PART II) 197 AT 209; ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975) 71; SADIKU OSHO & ANR. VS. MICHAEL APE (1998) 6 SCNJ 139 AT 152 and ABUBAKAR VS. JOSEPH (2008) 13 NWLR (PT. 1104) 307 AT 354 PARAGRAPHS A – D. It is not the law that a document can only be objected to at the trial stage as held by the trial Court. It can be raised at the address stage or even on appeal.PER FOLASADE AYODEJI OJO, J.C.A.
EVIDENCE:PUBLIC DOCUMENTS: CONDITION PRECEDENT FOR ADMISSIBILITY OF PUBLIC DOCUMENTS
The Condition precedents for the admissibility of a public document in evidence are contained in Section 104 of the Evidence Act 2011 which provides as follows:
104.
(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect together with a certificate written on the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title… and such copies so certified shall be called certified copies.
See also WITT BUSCH LTD VS. GOODWILL & TRUST INVESTMENT LTD (2004) 8 NWLR (PT. 874) 184; TABIK INVESTMENT LTD VS. G. T. B. PLC 2011 17 NWLR (PT. 1276) 240 AT 262 PARAGRAPHS A C and NWABUOKU VS. ONWORDI (2006) 5 SC (PT. 111) 103 AT 114.PER FOLASADE AYODEJI OJO, J.C.A.
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
OLAYINKA BELLO TAIWO Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at its Ibadan Judicial Division in Suit No: FHC/IB/16C/2017 delivered on 10th December, 2018 between FEDERAL REPUBLIC OF NIGERIA AND (1) OYEDIRAN JELILI OLADAPO and (2) OLAYINKA BELLO TAIWO (The Appellant).
The Appellant was first arraigned before the trial Court on the 21st of February, 2017 on a two count charge. The charge was further amended. The further amended charge dated 16th May, 2017 is at page 4 of the Additional Record of Appeal. She pleaded not guilty to the further amended charge which reads as follows:
“COUNT 1
That you OLAYINKA BELLO TAIWO “F”, 51 years and OYEDIRAN JELILI OLADAPO “M”, 37 years (AT LARGE) on or about September, 2015 within the jurisdiction of this Honorable Court conspired amongst yourselves with intent to obtain financial benefit, fraudulently procured the entry of OLUSOLA ABIKE OYEDIRAN (SOLA THOMAS) into the United Kingdom thereby committed an offence contrary to Section 27(a) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act,
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2015 and punishable under Section 26 (2) of the same Act.
COUNT 2
That you OLAYINKA BELLO TAIWO “F”, 51 years and OYEDIRAN JELILI OLADAPO “M”, 37 years (AT LARGE) on or about September, 2015 within the jurisdiction of this Honorable Court in order to obtain financial benefit fraudulently procured the actual entry of OLUSOLA ABIKE OYEDIRAN (SOLA THOMAS) into the United Kingdom in which she is not a national and permanent resident thereby committed an offence contrary to Section 26(2) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 and punishable under the same Section of the Act.?
At the trial, the prosecution called three witnesses and tendered several documents which were admitted in evidence. The Appellant as Defendant put up her defence to the charges. She testified on her own behalf and called two witnesses. After the evidence and arguments of counsel on their final written addresses the trial Court on the 10th of December, 2018 delivered its judgment, found the Appellant guilty on both counts of the charge and sentenced her to five years imprisonment on each count of the charge.
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The judgment is at pages 355 ? 372 of the Record of Appeal while the sentencing can be found at pages 373 ? 394 of the Record. The lower Court at page 373 of the Record held thus:
?…To act as deterrent to other would be offenders. I hereby sentence you Olayinka Bello Taiwo.
For Count I: 5 years imprisonment at Federal Prison Agodi.
Count II:5 years imprisonment at Federal Prison Agodi. Both terms shall run concurrently.?
I find it pertinent to reproduce some findings of the lower Court which are very germane in the determination of this appeal.
The Court at page 38 held thus:
?In this case, Exhibit G is a public document clearly certified by the British Deputy High Commission, Lagos and also certified by National Agency for the Prohibition of Trafficking on persons (NAPTIP), Plaintiff witness 1 or the British Deputy High Commission need not lead evidence to establish the veracity of the contents of the certificate . . . . It is trite that the time to object to a document is when it is sought to be tendered and not at the address stage. This is a public document. It is admissible in law.?
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At page 370, it found as follows:
?Till she was caught and denied entry into the United Kingdom, she did not complain to the Border Security in the Kingdom, knowing fully well that Abike was not a pupil of her school. In fact I find that the whole journey of Defendant with Abike from Nigeria to the United Kingdom was a deception and involves dishonesty till she was caught.?
At page 371 the Court held:
?As regards the issue of conspiracy, evidence abound that the Defendant and Jelili has envisage this journey since 2014 when the Defendant stayed at Abike?s mother?s in London. There is no doubt that from the prosecution evidence, the Defendant was fully involved in the procurement of visa for Abike Olusola Oyediran (AKA Sola Thomas).
Learned Counsel for the Defendant submits that the element of the financial benefit that accrued to the Defendant was not proved beyond reasonable doubt. I do find that the evidence of the Prosecution on this element of financial benefit to the Defendant is circumstantial and cannot be watered down due to the omission of direct evidence. It is trite that circumstantial evidence is often the
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best evidence. The circumstance of the case with the accuracy of mathematics points unequivocally to the fact that the Defendant definitely benefited from her action.
The Prosecution?s evidence cannot be derogated because it is circumstantial, to allow that will definitely deny the state justice in this case. The crucial question is, were the Defendant not apprehended at Gatwick Airport in the United Kingdom, would Defendant had handed Abike over to the United Kingdom authorities or proceeded to hand Abike over to her mother Sade in London? The answer is best left alone, but needless to say, I find the Defendant is definitely guilty of the two counts offences as charged.?
Dissatisfied with the whole judgment, the Appellant filed a Notice of Appeal on the 17th of December, 2018. See pages 380 ? 383 of the Record. The said Notice of Appeal contains nine Grounds. The Appellant seeks an order of this Court allowing the appeal and setting aside the conviction and sentence imposed on her by the lower Court.
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Parties filed and exchanged Briefs of Argument. The Appellants Brief of Argument settled by Olakunle A. Faokunla was filed on
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the 28th of January, 2019. The Respondents Brief of Argument settled by Selbol A. Langyi was filed on the 13th of February, 2019 to which the learned Appellant?s Counsel responded by filling an Appellant?s Reply Brief on the 14th of February, 2019.
Learned Counsel for the Appellant in the Appellants Brief of Argument formulated a sole issue for determination to wit:
?Whether the prosecution proved its case against the Appellant beyond reasonable doubt to justify her conviction and sentence for an offence under Section 26(2) and 27(a) respectively of the Trafficking in Persons (Prohibition) Act, 2015. This issue relates to Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the Grounds of Appeal.?
Learned Counsel for the Respondent for his part formulated two issues for determination in the Respondent?s Brief of Argument to wit:
?(a) Whether Exhibit ?G? is a computer-generated evidence within the meaning of Section 84 of the Evidence Act, 2011 and requires a certificate for it to be admitted in evidence (couched from ground one (1) of the Notice of Appeal).?
(b) Whether the Court below was right
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in convicting and sentencing the Appellant on the basis of the evidence led by the Prosecution (couched from grounds 2, 3, 4, 5, 6, 7, 8 and 9 of the Notice of Appeal).?
Upon a careful consideration of the Record of Appeal, the Grounds of Appeal, the Briefs of parties and the issues formulated, I am of the view that the issues formulated by the Respondent Counsel cover the ground. I shall however modify them as follows:
?1. Whether Exhibit G was wrongly admitted by the lower Court.
2. Whether the prosecution proved all the necessary ingredients of the offence under Section 26(2) and Section 27(a) of Traffic in Persons (Prohibition) Enforcement and Administration Act 2015 beyond reasonable doubt?
ISSUE NO. 1
Whether Exhibit G was wrongly admitted by the lower Court.
The Appellant submitted in paragraph 4.70 of the Appellant?s Brief that on the face of the attachments to Exhibit G it is clear the document is computer generated. He referred us to pages 253 ? 284 of the Record where it is boldly written: ?on line visa application?. He submitted that the said Exhibit did not comply with the
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conditions for admissibility under Section 84(2) (a- d) and Section 84(4) of the Evidence Act 2011 and therefore inadmissible in law. It is further submitted on behalf of the Appellant that the attachments to Exhibit G are public documents forming the official acts or records of the official acts of the British Deputy High Commission which require certification to be admissible under Section 90(1) (c) of the Evidence Act 2011. He relied on the cases of FRN VS. OLUTOLA OJO & ANOR. (2018) LPELR 45541 (CA) 23 PARAGRAPHS B ? D and MD ZAHIRUL ISLAM VS. FRN (2018) LPELR ? 44529 22 PARAGRAPHS E ? F amongst others and urged us to expunge Exhibit G from the record.
Learned Counsel to the Respondent in arguing this issue submitted in paragraph 3. 9 of the Respondent?s Brief that the documents submitted for the visas of the Defendant and Olusola Abike Oyediran which now form part of Exhibit G were the hard copies and not the electronic copies that require the issuance of a certificate of compliance under Section 84 of the Evidence Act 2011 to be admissible. He submitted that Exhibit G is a letter from the British Deputy High Commission
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forwarding the certified true copies of the documents submitted in support of the Visa applications of the Appellant and Olusola Abike Oyediran. He said they are not internet downloaded documents and do not fall within the purview of Section 84 of the Evidence Act 2011. He relied on the Supreme Court decision ofKUBOR & ANOR. VS. DICKSON & ORS (2012) LPELR 9817 (SC). It is Counsel?s further contention that the applicable laws in this instant are Sections 102 and 105 of the Evidence Act 2011 which govern admissibility of public documents and urged us to hold that Exhibit G is admissible having been properly certified.
The findings of the lower Court on Exhibit G can be found at pages 367 ? 368 of the Record where it held as follows:
On the argument in regards to the potency of Exhibit G. I have perused Exhibit G in its entirety. It is a document from the British High Commission in Lagos dated 14th day of December 2016 titled, Request
