Legal Nuggets (71): Conditions for the Admissibility of Evidence Given in Previous Proceedings.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI


ISSUE: EVIDENCE IN PREVIOUS PROCEEDINGS-Conditions for the admissibility of evidence given in previous proceedings

"Having dispensed with issue one, I proceed to attend to issue two. It falls within a narrow compass. It quarrels with the lower Court's admission of the previous evidence of two witnesses, as Exhibits A and B, in contravention of the provision of Section 34(1) of the Defunct Evidence Act, 2004. The provision, which is in pari materia with the provision of Section 46 (a) of the Evidence Act, 2011, reads: (1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out of the way by the adverse party: Provided that- (a) the proceeding was between the same parties or their representatives in interest; (b) the adverse party in the proceeding had the right and opportunity to cross examine; and (c) the questions in issue were substantially the same in the first as in the second proceeding. (2) A criminal trial or inquiry shall be deemed to be proceeding between the prosecutor and the defendant within the meaning of this section. For a party, who tenders evidence given by a witness in previous proceeding, to take a benefit under the canopy of the provision, all the conditions stated therein, both in its main and proviso, must be peremptorily complied with. Such a party must show that the witness is dead or unfounded or incapable of giving evidence or restrained by opponent or his presence will entail an unreasonable delay or expenses. It must be further proved that the parties in the proceeding were the same, the adverse party in the earlier proceeding had the right and opportunity to cross-examine the witness and the issues in both proceedings were the same. The Supreme Court has given its approbation to absolute compliance with the conditions in the provision in a flurry of judicial authorities. Thus, in Ikenyi v. Ofune (1985) 2 NWLR (Pt. 5) 1 at 7 and 8, Kawu, JSC, restated the position as follows: Before the evidence given in a previous case, can be received as substantive evidence of the truth of what it states, all the conditions laid down in the sub-section must be complied with. . See also, Shanu v. Afribank (Nig.) Plc. (2002) 17 NWLR (Pt. 795) 185; Alade v. Aborishade (1960) 5 FSC (Vol. V) 167; Elegushi v. Oseni (2005) 14NWLR (Pt. 945) 348; Sanyaolu v. Coker (1983) 14 NSCC 119, (1983) SCNLR 168; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460." Per OGBUINYA, JCA.(Pp.25-28,Paras.F-A).

ISSUE: POWER OF THE ATTORNEY-GENERAL-Whether the Attorney General of a State has power to prosecute offences under a federal law and vice versa

"Now, the appellant's chief grievance, indeed his trump card, under the issue one is that the Attorney-General of Osun State lacked the locus standi to institute the criminal proceedings against him in the lower Court for a Federal offence without the imprimatur of the Attorney-General of the Federation. Indisputably, by virtue of Section 174 (1) (a) of the Constitution, as amended, the Attorney-General of the Federation is imbued/vested with the authority to institute, undertake and discontinue any criminal proceedings against any person before any Court of law in Nigeria, save a Court-martial, with respect to any offence created by or under any Act of the National Assembly. See FRN v. Osahon (2006) 5 NWLR (Pt. 973) 831; Ezekiel v. A.-G. Fed. (2017) 12 NWLR (Pt. 1578) 1. Again, it admits of no argument, that the Advance Fee Fraud and Other Fraud Related Offences, Act, Cap. A6, Laws of the Federation of Nigeria, LFN, 2004, is a legislative product of the bicameral Nigerian National Assembly pursuant to the powers allocated to it by Section 4(1) of the Constitution, as amended. Indubitably, the offence of conspiracy to commit felony, for which the appellant was convicted, traces its paternity to Section 8 of the Act. The import of this is plain. It comes within the wide perimeter of a federal offence. To start with, it is the Constitution, the fons et origo of all laws or statues, that alots jurisdiction to adjudicate a matter, civil or criminal, to a Court of law. See Saraki v. FRN (supra). Here the provision of Section 14 of the Act comes in handy. To this end, I will pluck out the provision, where it is ingrained in the Act, ipsissima verba, as follows:
14. Jurisdiction to try offences, etc. The Federal High Court or the High Court of the Federal Capital Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties under this Act. Thus, the provision donates jurisdiction to the lower Court to hear offences arising from the Act. It is a concurrent jurisdiction which it shares with the Federal High Court and the High Court of the Federal Capital Territory. In sum, the lower Court is one of the fora competens for the prosecution of the appellant on the alleged crime of conspiracy to commit felony punishable under Section 8 of the Act.
Besides, and more importantly, the case law has since equipped the Attorney-General of a State with the authority to institute criminal proceedings over federal crimes. In Emelogu v. State (1988) 1 NSCC 869, (1988) 2 NWLR (Pt. 78) 524, the apex Court held that the Attorney-General of Imo State possessed the locus standi to institute the federal offences of armed robbery created under the Robbery and Firearms (Special Provisions) Act. In Tanko v. State (2009) 4 NWLR (Pt. 1131) 430 at 455, Aderemi, JSC, confirmed: From the provisions quoted (supra), the only conclusion which must be reached and which I now reach is that not only does a State High Court have the jurisdiction to try cases relating to armed robbery, the official of the Ministry of Justice of a State are eminently qualified to prosecute the offence of armed robbery in any High Court of a State. Let me also add that it will even be incongruous to the concept of federation, which we practice, to contend otherwise. See, also, Pius v. State (2016) 9 NWLR (Pt. 1517) 241; Mohammed v. State (2015) 10 NWLR (Pt. 1468) 496; Dariye v. FRN (supra); Kekong v. State (2017) 18 NWLR (Pt. 1596) 108. To my mind, these magisterial pronouncements, engraved in these ex cathedra authorities, with due reverence, puncture as well as expose the poverty of the appellant's scintillating argument on this stubborn point. They render his standpoint lame. I therefore crown the Attorney-General of Osun State, the respondent, with the toga/crest of locus standi to prosecute the appellant in the lower Court without the blessing of the Attorney-General of the Federation." Per OGBUINYA, JCA.(Pp.13-17,Paras.E-A)

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