2.
Whether there was correct and admissible identification of the
Appellant by the Complainant.
ISSUE ONE
Whether Exh B, Exh C, Exh J and Exh H were admissible and credible in
view of material contradictions in the case of the prosecution witnesses.
Appellant's counsel submitted that Exh B was made after the arrest of the
Appellant and after Appellant had made Exh K on 11/7/08, since P.W. 1
stated during cross examination that she went to SARS a day or two after
11/7/08. Counsel posited that since there is uncertainty as to when Exh B
was made, it is very likely the Prosecution forged and backdated Exh B
through PW1 after seeing Appellant's statement. Appellant's counsel
submitted further that the uncertainty should be resolved in favour of the
Appellant. Counsel submitted that it is only legally admissible evidence
that a Court of law can validly use to determine legal issues before it and
there is no discretion for a Court to act on evidence made inadmissible by
express statutory provision. He cited Engr. Agbi & Anor v.Chief Ogbeh &
Ors (2003) FWLR (Pt. 169) 1245 at. 1271. Counsel submitted that by the
Evidence Act, forged documents are inadmissible and consent of parties or
even no objection to it does not make it admissible in criminal trials. He
cited (2001) 4 S.C (Pt. 1) 84 at 90.
Counsel submitted further that an Appellate Court has a duty to reject such
inadmissible evidence that has been admitted with no objection. He cited
Tangale Traditional Council v. Alhaji Fawu & Anor (2002) FWLR (Pt.
117) 1137 at 1167.
Counsel argued that a document or deposition made after a case has been
initiated is inadmissible. Counsel cited Onuh & Ors v. Ide & Ors (2002)
FWLR (Pt. 94) 66 at 83. Counsel urged this Court to expunge Exh B from
the evidence before it.
Appellant's counsel argued that exhibits C, J and H do not have evidential
value to the extent attached to them by the trial Court as corroborating Exh
B since both were made more than 70 days after the crime was committed.
Counsel submitted that a witness who fails to report and give to the police
the details he knows concerning an offence at the earliest opportunity