Appellate court has power to reject inadmissible evidence – SC

For the Respondent it was submitted that the statement made by the learned trial judge in his judgment which forms the basis of the appellant’s ground of appeal is either a typographical error or at most a wrongful admission of evidence either of which would not affect the substance of the decision of that Court […]

For the Respondent it was submitted that the statement made by the learned trial judge in his judgment which forms the basis of the appellant’s ground of appeal is either a typographical error or at most a wrongful admission of evidence either of which would not affect the substance of the decision of that Court of trial. This is so, learned counsel contends is because it is not every error or mistake in a judgment that will result in a conviction being upturned.
On the Point, the Court below stated:-
“The learned counsel for the respondent submitted that the statement made by the learned trial judge which formed the basis of the appellant’s allegation must be a typographical error or at most amount to a wrongful admission of evidence. I agree with the submission of the learned counsel for the respondent.”
The trial court in its summation and decision had referred to the evidence proffered by PW1, PW2 and their daughter when the daughter did not testify.
The law has been over-flogged that it is not every mistake, slip or error in a judgment that will result in an appeal being allowed since it is only where the error is substantial that it can be seen that it has occasioned a miscarriage of justice which makes it mandatory for the appellate court to interfere and have the judgment upset. See Alli v. Alesinloye (2002) 6 NWLR (Pt.660) 177 at 213; Ezeoke v. Nwagbo(1988) 1 NWLR (Pt.72) 616.
To maintain the link in the discourse is to define what miscarriage of justice is which would render a Court of Appeal without option than to intervene and set aside what the lower court had done.
Black’s Law Dictionary 8 edition at page 1019 defines miscarriage of justice thus:-
“A grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of crime.”
This court has described what amounts to a miscarriage of justice to be:
“A departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all.” See Nnajiofor v Ukonu (1986) 4 NWLR (Pt.36) 505.
The grouse of the appellant is anchored on the admissibility of evidence that is otherwise inadmissible meaning the evidence of the daughter of the complainants who did not testify before court. In reference therefore is Section 227(1) of the Evidence Act, Cap E14, Laws of the Federation of Nigeria, 2004 which stipulates thus:-
“The wrongful admission of the evidence shall not itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”
Interpreting that statutory provision, this court had stated in Abubakar v Joseph (2008) 13 NWLR (Pt. 1104) 307 at 354 per Ogbuagu JSC as follows:-
“Where inadmissible evidence is admitted, it is the duty of the court not to act upon it. Furthermore, an appellate court has the power to reject the evidence and decide the case on legal evidence.”
Also a decision of a Lower Court would not be reversed on account of a trial court accepting inadmissible evidence when that evidence did not occasion any miscarriage of justice or affect the decision of the court in any way. See Omomeji v Kolawole  (2008) 2 NWLR (Pt.1106) 180 at 202; Ogunsina v Matanmi (2001) 9 NWLR (Pt.718) 286.
Having stated the practice in our Courts on evidence admissible or not, it is to be considered the scenario in this instance where what is being made a fuss of is the identification by the complainants, PW1 and PW2 with their daughter who witnessed the incident and seeing the appellant and his colleagues at the time of the incident. The PW1 had no difficulty identifying the appellant as one of those who came to their house. PW2 said she was able to identify the appellant because she looked at his face very well.
Appellant’s discomfiture is that their daughter who was present was not called to testify, rather the trial court combined what she said on the identification before the police to convict him. The words of the trial judge I would restate here and they are: – “The factual setting in this case as demonstrated by the evidence of PW1 and PW2 and their daughter is that they were having their dinner in the sitting room when three persons entered.” A few features emerged from what transpired at the court of trial, one of which is that one of the witnesses said the daughter mentioned was a baby in which case she would not be in a position to either make an extra-judicial statement or testify in court. Also nowhere in the record is to be found a statement made by the daughter of PW1 and PW2 nor any police witness allude to such. All that was not disputed is that those present in the house at the time of incident apart from the robbers were PW1, PW2 and their daughter. The trial Court satisfied there was nothing doubtful of the identity of the perpetrators of the crime held thus:-
“Having regard to the totality of the evidence adduced in respect of the identification of the accused, I hold that the accused was properly identified. The encounter of PW1 and PW2 with the accused provided an opportunity for the observation of the features of the accused, including the face which PW2 said she ‘looked at very well’, such that he could easily be identified two months after the incident.”
In the light of the circumstances evaluated by the trial court, it can be seen that even if the daughter aforesaid had made a statement before the trial court and failed to testify and be cross-examined in court and what she said previously admitted by the court albeit erroneously, with the two testimonies of PW1 and PW2 firmly established, then that erroneous admission of the daughter’s statement would have no adverse effect on the consideration of the case flowing into the conviction and sentence as no miscarriage of justice was occasioned.
The Court of Appeal was therefore right when it held as follows:-
“In this appeal under consideration, it has not been shown that if the evidence of the first and second prosecution witnesses’ daughter was not admitted that the decision of the learned trial judge would have been otherwise i.e he would not have been convicted. Apart from that, there was a confessional statement made by the Appellant.”
The Court of Appeal had stated further in explanation thus:-
‘The utilization by the learned trial court of the evidence of the prosecution’s first and second witnesses (PW1 and PW2) daughter, (an individual being a Person) who did not give evidence in the matter at all to convict the appellant and sentence him to three and five years prison term as one that bothers on typographical error, or mere observation or at most amount to a wrongful admission of evidence that did not influence the decision of the trial court, that when a case is bad, it is bad, there is nothing that can change it, not even resorting to breach of fair hearing can resolve it.”
The views expressed by the Court of Appeal have settled any nagging questions that may be hanging out and I see no reason to interfere with such a sound reasoning. This is so because a mere irregularity which is really what that slip by the trial judge was when he referred to what the daughter had said when there was nothing on which such a statement can be said to exist, then it falls into a minor human slip or error which would not vitiate the proceedings but rather an error that the Court of Appeal could and did in this case correct.
On the confessional statement which the appellant had contested on the basis that it was involuntarily made as he had been tortured and even had a gun shot at his leg, the stand of the respondent is that the trial court could have convicted the appellant based on its finding on the testimonies of PW1 and PW2 but could also have solely on the confessional statement equally conveniently convicted the appellant as the confessional statement required no corroboration.
He cited Gira v State (1996) 4 NWLR (Pt.443) 375 at 388; R v Obiasa (1962) SCNLR 102. A trial within trial had been conducted by the trial court in keeping with the law guiding courts of trial when the voluntariness of a confessional is disputed. It is to be reiterated that a confessional statement is really the best evidence or the strongest against an accused in the determination of his guilt.
In the course of the trial within trial, the appellant said he made the statement under duress as the police shot him on the leg. He however admitted not going to hospital to have the gunshot wound treated rather that he took ampiclox capsules. Also that the alleged gunshot to the leg was a fluke in that appellant could not substantiate either a wound in that regard, what happened to the bullet that may or may not have been lodged in the leg. Under cross-examination, appellant admitted not be treated in a hospital and said he took ampiclox capsules to treat the gunshot wound.
In the light of the finding of the learned trial judge and upheld by the Court of Appeal that the confessional statement was made voluntarily and in the consideration of the contents thereof, taking them as positive and unequivocal and the recovery of the stolen vehicle belonging to PW1 and PW2 which even offers corroboration apart from the evidence of the prosecution witnesses, then I see no room from which these concurrent findings of the two courts below can be disturbed in spite of the invitation by the appellant for this court to interfere based on his allusion of the denial of fair hearing which has been effectively demolished.
From the foregoing, I have no difficulty in concluding that this appeal lacks merit and is liable to be dismissed and I hereby dismiss the appeal. I uphold the judgment of the court below which affirmed the judgment, conviction and terms of imprisonment imposed on the appellant.

Concluded.