Category: Newsletter

CORROBORATION OF EVIDENCE OF CHILDREN: THE NEW TESTS

 Categories of Evidence of Children

  1. Section 180 of the Evidence Act 2011 requires that all oral evidence in any proceedings must be given on oath but the exemption in section 209 of the Evidence Act permits trial courts to accept the unsworn evidence of children. Section 209 of the Evidence Act has changed the law on the reception of the evidence of children and now makes a clear distinction between the evidence of children under 14 years of age and children who are 14 years old and above.
  2. The first category is children who are 14 years old and above and such children must give evidence on oath. Section 209(2) of the Evidence Act states that, “A child who has attained the age of 14 years shall, subject to sections 175 and 208 of this Act give sworn evidence in all cases.” The sworn evidence of a child witness is placed on the same pedestal with the sworn evidence of an adult witness and the Evidence Act does not require corroboration of the sworn evidence of children. [1] This means that except in cases where corroboration is required by statue or practice the sworn evidence of a child is sufficient to prove an offence against a defendant.
  3. The second category is children who are under 14 years old and such children cannot give evidence on oath. Section 209(1) of the Evidence Act states that where, “In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.”

Evidence of Children before 2011: The Two Tests

  1. The previous judicial authorities held that, under the provisions of the repealed Evidence Act, there were two tests; (i) the test of competence; and (ii) the oaths test. In Okon v The State,[2] Nnaemeka-Agu JSC said,

“It is my view that once a witness is a child, by the combined effect of sections 154 and 182(1) and 182(2) of the Evidence Act, the first duty of the court is to determine first of all whether the child is sufficiently intelligent to understand the question he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the court putting to him preliminary questions which may have nothing to do with the matter before the court. If as a result of these preliminary questions, the court comes to the conclusion that the child is unable to  understand the questions or to answer them intelligently then that child is not a competent witness within the meaning of section 154(1). But  if the child passes this preliminary test then the court must proceed to the next test as to whether in the opinion of the court, the child is able to understand the nature and implications of an oath. If after passing the first test he fails this second test, then being a competent witness he will give evidence that is admissible under section 182(2) though not on oath. If on the other hand he passes the second test so that, in the  opinion the court, he understands the nature of an oath, he will of give           evidence on oath.”

Evidence of Children after 2011: The Three Tests

  1. The Evidence Act 2011 has now abolished the oaths test. There is no longer a duty on courts to determine whether or not any child understands the nature of an oath since a child of 14 years old is deemed to understand the nature of an oath and permitted to give sworn evidence while all other children under 14 years of age can only give unsworn evidence. See section 209(2) of the Act. However, there are now three tests involved in the reception of evidence of children; (i) the test of competence which may be administered to any child if required; (ii) the test of intelligence; and (ii) the test of truth; both of which must always be administered to children under 14 years of age.
  2. The test of competence is the primary test and applies to all witnesses including children, irrespective of age. There is a presumption of competence of witnesses and therefore, all persons, including children, shall be competent to testify, unless they cannot understand the questions put to them or give rational answers to those questions. See section 175 of the Evidence Act. The second and third tests are that, the court must be satisfied that the child is possessed of sufficient intelligence to justify the reception of the evidence and the child understands the duty of speaking the truth. Section 209(1) of the Evidence Act permits courts to receive the unsworn evidence of children, “if in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.”

The Preliminary Inquiry

  1. The preliminary inquiry is now standard procedure in Nigeria for administering the tests to determine whether or not a child can give evidence on oath but there is no specific procedure for the preliminary inquiry required to be conducted by the trial Judge. The preliminary inquiry is conducted by the trial judge putting questions to the child and not by taking evidence from any witness. It is important to point out that the test of competence is not mandatory because a trial Judge is not under an obligation to determine the competence of a child unless it is challenged by the other party. In Okon v The State,[3] Agbaje JSC said,

“Since all persons are competent to testify, until the competence of a   witness to testify is challenged for any of the reasons states in the section there is in my view no obligation on the court to determine the competence of a witness to testify.”

  1. It is important that a trial Judge must make a record of the fact that an inquiry was conducted to determine the competence of the child to give rational answers to questions, the sufficiency of intelligence of the child and whether or not the child understands the duty of speaking the truth. However, a trial Judge is not bound to record the specific or actual questions and answers put to the child and he is only required to state his conclusions. Therefore, failure to record the specific questions and answers put to the child witness will not be fatal to a reasonable opinion and conclusion. In Mbele v The State,[4] appellant contended that the trial Judge ought to have recorded the specific questions and answers during the inquiry. Agbaje JSC said,

“Once there are clear indications in the record of proceedings that trial Judge carried out the preliminary investigation envisaged by sections 154 and 182 of the Evidence Act before taking the evidence of a child or an infant, that in my view, would mean, at least prima facie, that the said inquiry was carried out even thought the actual questions and answers in the course of the investigation are not recorded. It will then be up to counsel for the appellant to rebut this prima facie opinion by showing either that there was no investigation at all or that what the trial judge called an investigation.”

Some Decided Cases

  1. A few cases will demonstrate the practical application of the tests and the procedure for the inquiry. In Dagayya v The State,[5] the record showed thus; “Prosecutor: My first witness PW1 is an under aged girl of 14 years old. We are not sure whether she can give evidence on oath or not. Court: That being the case some questions will be put to the witness to find out if she can give evidence on oath or not.” The record showed further; “Court: What is your name? PW1: My name is Gambo Muhammed. I know God and I live at Ubba village. But I do not know what God will do to me if I tell lies. I do not know what an oath is. Court: That being the answer the witness gave in response to the questions asked by the court, I am satisfied that she cannot give evidence on oath since she does not appreciate the usefulness of taking an oath. She is therefore to give unsworn evidence.” The Supreme Court held that the trial Judge complied with the statutory procedural requirements as explained in the case of Okon v The State (supra) and followed in Mbele v The State (supra).
  2. However, it is instructive that if this case were decided today applying the current provisions of section 209(1) of the Evidence Act 2011, the trial Judge would be obliged to direct the witness to be sworn and give evidence on oath since she was 14 years old. Furthermore, the trial Judge did not conduct the test of truth because it appears from the record that the witness did not appreciate the consequences of telling lies and did not understand the duty of speaking the truth.
  3. Now compare the inquiry and record of the trial Judge in Sambo v The State.[6] In that case, before taking the evidence of the complainant, the trial Judge examined the witness and made the following note in the record, “Muslim, a child of eleven years old who knows the nature of an oath but does not know the consequences of telling a lie, affirmed to speak the truth.” The Supreme Court acquitted the appellant and held that the examination and record did not satisfy the requirements of the Evidence Act. The record of the court only stated the conclusion but did not show that any inquiry was conducted to determine the competence of the child to give evidence. Wali JSC said,

“It will be desirable, if not necessary for the Judge after examining a child to write whether he is satisfied that the child:- (1) knows the nature of an oath; (2) the duty of telling the truth; (3) is possessed of intelligence to give rational answers to questions put to him, before taking his evidence under either section 182(1) or 182(2) of the Evidence Act.”

  1. Here we see judicial confirmation of the requirement of the test of truth, the test of intelligence and the now abolished oath test. The witness in this case clearly failed the test of truth as she did not know the consequences of telling a lie. It is therefore surprising that the trial judge in this case, permitted the witness to give unsworn evidence even when she did not understand the duty of speaking the truth.
  2. Another case is Mbele v The State, (supra) where the appellant was charged with the murder of his wife. The record of the court stated thus; “Nwankwo Mbele was examined by me in accordance with section 182 and 154 of the Evidence Act. She is aged about 10 years. She gave rational answers to my questions and appears quite intelligent although she says she does not attend school. She understands the duty of speaking the truth and is possessed of sufficient intelligence as to justify reception of her evidence.” On appeal the Supreme Court held that the trial Judge complied with the procedural requirements for the preliminary inquiry despite the fact that he failed to record the specific questions and answers put to the child. It is noteworthy that the record in this case clearly shows that the trial Judge conducted the three tests because the witness gave rational answers (the test of competence), the witness was sufficiently intelligent (the test of intelligence) and the witness understood the duty of speaking the truth (the test of truth).

Evidential Value of Unsworn Evidence

  1. The evidential value of the unsworn evidence of a child can be found in section 209(3) of the Evidence Act which states that, “A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the defendant.” Therefore, the law remains unchanged that the unsworn evidence of a child cannot support the conviction of a defendant for any offence without corroboration.
  2. Finally, it must be noted that the evidence of a child under 14 years of age wrongly admitted on oath is not altogether inadmissible but it will be treated as unsworn evidence which must be corroborated before it can be acted upon. In Okon v The State,[7] Nnaemeka-Agu JSC said,

“From all these decisions, it appears to me to be the law that where, as in this case, an irregularity has occurred in the taking of the  evidence of a child, the correct approach to such evidence is not expunge it but to see whether it has been corroborated by other  evidence implicating the defendant.”

Conclusion

  1. The Evidence Act 2011 has abolished the oaths test and there is no longer a duty on trial courts to determine whether or not a child understands the nature of an oath. After 2011, a child who is 14 years old is deemed to understand the nature of an oath and permitted to give sworn evidence while all other children under 14 years of age can only give unsworn evidence.

[1] Arebamen v The State (1972) NSCC 194,

[2] (1988) ANLR 173 at 181.  See also, Okoye v The State (1972) ANLR 938,

 

[3] (1988) ANLR 173 at 186

[4] (1990) NWLR (pt.145) 484 at 498.  See also, Sambo v The State (1993) NWLR (pt.300) 399 at 421, Okoye v The State (1972) ANLR 938 at 943, Onyegbu v The State (1995) NWLR (pt.391) 510 at 529,

[5] (2006) NWLR (pt.980) 637.

[6] (1993) NWLR (pt.300) 399 at 421. See also, Peters v The State (1997) NWLR (pt.531) 1.

 

[7] (1988) ANLR 173 at 182.  See also, Onyegbu v The State (1995) NWLR (pt.391) 510, Mbele v The State (1988) NWLR (pt.145) 484 at 499, Siwobi v COP (1997) NWLR (pt.482) 411, Sambo v The State (1993) NWLR (pt.300) 399 at 419, Okoyomon v The State (1973) NSCC 9, Ogunsi v The State (1994) NWLR (pt.322) 583 at 590, Solola v The State (2005) NWLR (Pt.937) 460.

 

 

ANALYSIS OF THE BURDEN OF PROOF ON DEFENDANTS IN CRIMINAL CASES: THE DUST IS NOT SETTLED.

  1. In criminal cases there are two main burdens. The first is the legal burden on the prosecution to prove the offence against the defendant beyond reasonable doubt. The second is the evidential burden on the defendant to introduce sufficient evidence to prove the probability of the defence or to create a reasonable doubt in the case of the prosecution. Esangbedo v The State,[1] Nnaemeka-Agu JSC explained the meaning of the burden of proof in criminal cases, “For the avoidance of doubt the expression ‘burden of proof’ is often loosely used to include the burden to prove the guilt of a defendant beyond reasonable doubt – a burden which is always in the prosecution and never shifts – and the burden of introducing evidence on an issue in the trial – which may be place by law on either the prosecution or the defence”
  2. The nature of the evidential burden on defendants in criminal cases is far from settled. In Popoola v The State,[2] the Supreme Court considered the defence of insanity. Ariwoola JSC said, “The standard of such proof is not as high as that cast on the prosecution. It is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to the sanity of the accused.” Then Ngwuta JSC said, “…..the burden of proof on the accused who relies on a defence of insanity is less than the burden cast on the Prosecution to prove his guilt beyond reasonable doubt. The burden of proof is satisfied on a balance of probability or preponderance of evidence.” The question is whether the views of the learned justices in Popoola (supra) are conflicting and if so, which is the correct view. Is the burden discharged on the balance of probabilities or upon proof of reasonable probability sufficient to create a reasonable doubt in the mind of the Judge?
  3. The burden of proof on defendants in criminal cases requires clarification because there are two kinds of burden on the defendant. The first is the statutory burden of proving the facts required to establish any defence to the charge. Section 139(1) of the Evidence Act 2011 states that, “Where a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence which he is charged is upon such person.” The second is the evidential burden of introducing sufficient evidence of facts which create reasonable doubt in the case of the prosecution. Section 135(3) of the Evidence Act states that, “If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
  4. In Partap v State of Uttar Pradesh,[3] the Supreme Court of India considered the burden of proof on the defendant and held that there is in fact more than one kind of burden on defendants in criminal cases. The first is the statutory burden of proving the existence of circumstances bringing the case within any defence to the offence and the second is the burden of introducing evidence sufficient to create reasonable doubt about the guilt of the defendant. Therefore, if the evidence does not prove the existence of any defence but upon a consideration of the whole evidence reasonable doubt is established then the defendant will be entitled to an acquittal. The Supreme Court, citing the decision in Rishi Kesh Singh, said, “The legal position of a state of reasonable doubt may be viewed and stated from two opposite angles. One may recognize, in a realistic fashion, that although the law prescribes only a higher burden of the prosecution to prove its case beyond reasonable doubt and the defendant lower burden of proving his plea by a preponderance of probability only, yet there is in practice, a still lower burden of creating reasonable doubt about the defendant guilt and that a defendant can obtain an acquittal by satisfying this lower burden too in practice. The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof, although it may  be said, in defence of such statement of the law that it only recognizes what is true.”
  5. There is a burden on the defendant where; (i) where the law imposes upon him the burden of proving particular facts. See the proviso to section 36(5) of the Constitution FRN; or (ii) where the law requires him to prove the existence of any exception or exemption or qualification to the law creating the offence. See section 139 of the Evidence Act; or (iii) where any fact is especially within his knowledge. See section 140 of the Evidence Act. Section 136(1) of the Evidence Act places the burden of proof for any particular fact on the person who asserts the existence of that fact. See also section 139(1) of the Evidence Act. In NAF v Kamaldeen,[4] a General Court Martial convicted the respondent of stealing money belonging to the Nigerian Air Force. In his defence the respondent stated that the Chief of Air Staff authorised the withdrawal of the money. The Supreme Court held that the burden was on the respondent to prove the alleged authorisation. Musdapher JSC said, “It is settled law that where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption to the law lay within the accused. …… In the instant case, huge amounts of money were taken out from the Nigerian Air force and the money was shared amongst the officers who caused and participated in the withdrawal. If they had the authority to do so, the burden is clearly on them to prove the same, more so when the purpose of withdrawing the money was defeated.”
  6. Section 137 of the Evidence Act 2011 states that, “Where in any criminal proceedings the burden of proving the existence of any fact or matter has been placed upon a defendant by virtue of the provisions of any law, the burden shall be discharged on the balance of probabilities.” One must admit that several judicial authorities hold that the burden on the defendant must be discharged on the balance of probabilities. However, this author disagrees with the provisions of section 137 of the Evidence Act and humbly submits that the defendant does not discharge the evidential burden on the balance of probabilities.
  7. The standard of proof on the defendant can be found in section 121(a) of the Evidence Act. That section states that, “A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist.” Therefore the burden is discharged if the defendant can satisfy the trial Judge of the reasonable probable existence of the facts. In Oteki v The State,[5] Oputa JSC said, “Where the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief. Probability is always a safe guide to the sanctuary where truth resides.”
  8. A defendant does not discharge the evidential burden on the balance of probabilities or on the preponderance of evidence because in criminal cases, unlike in civil cases, there is no imaginary scale and no weight of evidence. In Ozaki v The State,[6] Obaseki JSC said,   “It was therefore not a statement of law by the Supreme Court that the defendant’s duty in relation to the defence of alibi is to establish the defence on the balance of probabilities. Balance of probabilities means preponderance of evidence. In other words, the defendant person adduces evidence which outweighs the evidence of the prosecution on the issue of alibi. That is not the law.  As stated above, the only onus on the defendant is the evidential burden.  The effect of such evidence is not dependent upon its preponderance. It may be scanty or minimal but yet very effective in raising reasonable doubt in the minds of the tribunal.”
  1. In Olonade v Sowemimo,[7] Muhammad JSC explained the meaning of the standard of proof in civil cases, the balance of probabilities, “My Lords, in a civil matter such as this, the court decides the case on the balance of probabilities or preponderance of evidence. The trial court does this by first deciding which evidence it accepts from each of the parties, putting the accepted evidence adduced by the plaintiff on one side of the imaginary scale and that of the defendant on the other side of the scale and weighing them together. The court then decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary.” This is certainly not the manner in which criminal trials are conducted. In many criminal trials the defendant does not give evidence. There is no imaginary scale to weigh the evidence of both sides and if at the end of the case for the prosecution a prima facie case is not proved, the defendant must be discharged.
  2.  It is for this reason that there is nothing wrong with the trial court in criminal cases evaluating the evidence of the prosecution first and making findings before evaluating the evidence of the defence. Unlike in civil cases the evidence of the prosecution and the defence are not placed side by side on an imaginary scale and decided on the preponderance of evidence. In Oteki v The State,[8] the trial judge considered the evidence of the prosecution first and found that the charge had been proved before considering and rejecting the evidence of the defendant. The appellant complained that this procedure caused to the trial judge to wrongly evaluate the evidence. The Supreme Court held that there was nothing wrong with the trial judge assessing the prosecution’s case first and making findings of fact before considering and evaluating the appellant’s defence.
  3. One must admit that several judicial authorities hold that the burden on the defendant must be discharged on the balance of probabilities. However, there is also judicial authority that the standard of proof on the defendant seeking to prove the defences of alibi or insanity is not on the balance of probabilities but an evidential burden to establish the reasonable probable existence of the facts. That burden was explained in Ukwunnenyi v The State,[9] where Oputa JSC said,  “There is however an onus on the defendant – the onus of  introducing evidence tending to show that he might not have been (not that he was not) at the scene and at the time the alleged offence was committed. If any trial court insists that the evidence tendered by the defendant (pleading the alibi) must show that he was not there, that will be casting the onus of proving his innocence on a defendant. That will be wrong. If the evidence tendered by the defendant merely raises a doubt as to whether he was present at the time and place of the offence that is enough to secure him an acquittal.”
  4. From the foregoing, can we say that the burden of proof on defendants in criminal cases is discharged on the balance of probabilities or upon proof sufficient to create a reasonable doubt in the mind of the Judge? Section 137 of the Evidence Act which states that, the standard of proof to discharge the burden on the defendant in criminal cases is on the balance of probabilities represents the current position of the law on this matter. However, it is the humble opinion of this author, supported by judicial authority that the burden of proof on the defendant is discharged on the reasonable probability of the existence of the fact to be proved and is established where there is sufficient evidence to show reasonable doubt in the case of the prosecution.

[1] (1989) NWLR (pt. 113) 57 at 69.

[2] (2013) 7 MJSC (pt.2) 191

[3] (1976) AIR (vol.63) 966 at 973, Rishi Kesh Singh (1970) AIR 51 at 89.

[4] (2007) NWLR (pt.1032) 164 at 188. See also, Abadom v The State (1997) NWLR (pt.479) 1 at 19,

Ohuka v The State (1988) NWLR (pt.86) 36, Ariche v The State (1993) NWLR (pt.302) 752 at 769,

Ohunyon v The State (1996) NWLR (pt.436) 264

[5] (1986) ANLR 371 at 392. See also, Ali v The State (1988) ANLR 1 at 28, Onuoha v The

State (1989) NWLR (pt.101) 23 at 32.

[6] (1990) ANLR 94 at 107. See also, Ukwunnenyi v The State (1989) NWLR (pt.114) 131 at 155.

[7] (2014) LPELR-22914(SC) at 27,

[8] (1986) ANLR 371 at 378, See also, Kim v The State (1992) NWLR (pt.233) 17 at 44, Igago v The State (1999) NWLR (pt.637) 1, Ezeuko v The State (2016) LPELR 40046 (SC)

[9] (1989) NWLR (pt.114) 131 at 155.  See also, Esangbedo v The State (1989) NWLR (pt.113) 57 at 70, Adio v The State (1986) NWLR (pt.24) 581, Peter v The State (1997) NWLR (pt.496) 625 at 642, Onafowokan v The State (1987) NWLR (pt.61) 538, Abudu v The State (1985) NWLR (pt.1) 55, Aliyu v The State (2013) 6/7 MJSC (pt.3) 64, Olaiya v The State (2010) 1 MJSC (pt.1) 73, Esene v The State (2017) LPELR-41912(SC),

 

 

THE NEW TESTS OF ADMISSIBILITY OF CONFESSIONS UNDER THE EVIDENCE ACT 2011

THE TEST OF VOLUNTARINESS ABOLISHED

  1. The Evidence Act 2011 abolished the test of voluntariness and it is no longer the yardstick for determining the admissibility of confessions. By virtue of the provisions of section 29 of the Evidence Act, any confession obtained by oppression of the defendant, or made in consequence of anything said or done to the defendant which was likely to render the confession unreliable, is inadmissible. There is still a paucity of judicial precedent on the interpretation of the new exclusionary principle of evidence contained in section 29 of the Evidence Act. However, since the provisions of section 76(2) of the Police and Criminal Evidence Act (PACE) 1984 are similar to section 29(2) of the Evidence Act, judicial decisions of English courts on the subject are of persuasive authority.

 

  1. There is a new barometer for the admissibility of confessions and the key operative words are oppression and reliability. Section 29(2) of the Evidence Act 2011 states that, “If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained, (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence; the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.” Furthermore, section 29(3) of the Evidence Act states that, the court may of its own motion require the prosecution to prove that the confession was not obtained in violation of the provisions of the section. This new provision now permits the court to suo motu raise the issue of oppression or unreliability of a confession and order a trial within trial.

 

  1. Under section 27 of the repealed Evidence Act only voluntary confessions were relevant and admissible. However, the Act did not define the meaning of the term “voluntary” and there was divergence of opinion on the interpretation of the term. The conditions which made a confession not to be voluntary were defined by the provisions of section 28 of the repealed Evidence Act but the conditions which will make a confession to be regarded as unreliable are not limited by section 29 of the Evidence Act 2011. Therefore, voluntariness is a narrower concept than reliability and previous judicial decisions on the voluntariness of confessions may still be relevant in the application of section 29(2) of the Evidence Act.

 

  1. The defendant only has to raise the issue or introduce evidence of oppression or unreliability. The prosecution on the other hand must prove beyond reasonable doubt that the confession was not obtained by oppression of the defendant or made in consequence of anything likely to render the confession unreliable. In Paris,[1] Lord Taylor CJ said on the interpretation of section 76(2) of PACE, “Three points on that section require emphasis. First, the issue having been raised by the defence, the burden of proving beyond reasonable doubt that neither (2)(a) nor (2)(b) applied was on the Crown. Secondly, what matters is how the confession was obtained, not whether, or not it may have been true. Thirdly, unless the prosecution discharged the burden of proof, the judge was bound as a matter of law to exclude the confession. His decision was not discretionary.”

 

  1. Only reliable confessions are relevant and admissible. To determine whether or not a confession is reliable the court must examine everything said or done to defendant from time of arrest up to the end of interrogation and determine whether any confession obtained in such circumstances would be unreliable. The test in section 29(2) of the Evidence Act is objective and therefore, if the acts done or words spoken were likely to induce an unreliable confession, then even if the particular confession was true, it would still be inadmissible. The conditions or circumstances that must exist before the trial court can invoke the prohibition against unreliability and render the confession inadmissible are not stated in the Evidence Act. Therefore, it is clear that those conditions cannot be exhaustive but we shall examine some of them.

 

UNRELIABLE CONFESSIONS       

Refusal to Grant Access to Counsel.

  1. The failure to grant the defendant access to counsel may render a confession unreliable. Section 35(2) of the Constitution FRN provides that every suspect has the right to counsel before answering any questions during custodial interrogation. Section 17 of the Administration of Criminal Justice Act 2015 and provides that every suspect in custody shall be given access to legal advice. See also, section 9 of the Administration of Criminal Justice Law, Lagos State 2011. In McGovern,[2] the initial denial of access to a solicitor rendered the confession unreliable, despite the fact that the court knew from later confessions made in the presence of a solicitor that the first confession was in fact true.

 

  1. In Samuel,[3] the defendant was arrested on suspicion of armed robbery and taken to a police station for questioning where his request to see a solicitor was denied. Section 58(1) of Police and Criminal Evidence Act 1984, in England states that, “A person who is in police detention shall be entitled if he so requests, to consult a solicitor privately at any time.” On appeal against conviction the Court of Appeal held that the refusal of access to a solicitor rendered the confession inadmissible. The Court said that, “Perhaps the most important right given to a person detained by the police is his right to obtain legal advice.”

Failure to Comply with Rules of Custodial Interrogation.

  1. A violation of the rules of custodial interrogation may render a confession unreliable and inadmissible. The failure to properly caution the defendant about the right to remain silent during interrogation and before the confession was obtained will be a valid ground for the challenging the reliability of a confession. See section 35(2) of the Constitution FRN. A violation of the constitutional rights of the defendant may also render a confession inadmissible under section 14 of the Evidence Act. Any procedural failures or breach of the rules of custodial interrogation can form the basis for challenging the admissibility of a confession on the ground of unreliability under section 29(2)(b) of the Evidence Act.[4]

 

  1. In Suberu v The State,[5] the investigating police officer obtained statements separately from two persons jointly charged with an offence but he did not show the appellant the statement of his co-defendant and did not give him the opportunity to react to the statement. Rule 7(1) of Criminal Procedure (Statement to Police Officers) Rules 1960 provides that, “When a police officer has decided to make the same compliant against two or more persons and their statements are taken separately, the police officer shall not read such statement to the other person or persons, but each of such persons shall be given a copy of such statements and nothing shall be said or done by the police to invite a reply.” The Supreme Court held that the statement of the co-defendant was not legally admissible evidence against the appellant and could not be used against him.

 

The Miranda Warnings.

  1. The gravity of these violations of rules of custodial interrogation is such that many jurisdictions frown upon them. It is instructive that even in the United States of America the failure to caution the defendant on the right to remain silent and the denial of access to counsel during interrogation is a ground for the challenging the admissibility of a confession. In Miranda v Arizona,[6] the Supreme Court of the United States held that the prosecution may not use statements of a defendant obtained by law enforcement officers during custodial interrogation unless it demonstrates the presence of effective safeguards to secure the privilege against self-incrimination under the 5th Amendment. The safeguards are that the suspect must prior to the interrogation be informed clearly that he has the right to remain silent and that anything he says may be used against him in court and the suspect must be informed clearly that he has the right to consult with a lawyer and to have the lawyer present during interrogation.

 

Inducement or Promise.

  1. Any inducement or promise (but not a threat) made to defendant to obtain the confession will be a valid ground for the challenging the reliability of a confession. This will include a promise of leniency or exclusion from prosecution. It is important to note that the inducement or promise may either concern or be made to the spouse of the defendant or family member or any other person intimately connected with the defendant such as a lover or friend.[7] These relationships may evoke strong emotions and cause the defendant to make a confession.

 

  1. It is important to draw attention to two points. First, under the new Evidence Act 2011, the inducement or promise is no longer required to be made by a person in authority. However, the promise or inducement must still relate to the charge against the defendant and the defendant must have believed that by making the confession he would gain an advantage or avoid an evil of a physical nature. The threat of juju or witchcraft is not a threat of a temporal nature and belief in witchcraft or other spiritual powers is subjective. Second, it appears that threats of any kind will now be regarded as oppression since section 29(5) of the Evidence Act defines oppression to include the actual use or threat of violence.

 

Other Factors Affecting Reliability.

  1. Other factors which may affect the reliability and admissibility of a confession and which the trial Judge should consider in a trial within trial include; (i) whether or not the confession was retracted at the earliest opportunity before a senior police officer or in a second statement; (ii) the nature of incriminating evidence disclosed to the defendant by the police before the confession was made; (iii) the contents of the statement in relation to the level of literacy of the defendant; (iv) the pattern of the sentences in the statement in order to discover whether it is a flowing and consistent story or disjointed answers in response to prompting questions from the police during interrogation.[8]

 

CONFESSIONS OBTAINED BY OPPRESSION

Meaning of Oppression

  1. Section 29 of the Evidence Act 2011 states that that a confession is not admissible in evidence, if it was or may have been obtained by oppression of the defendant. Section 29(5) of the Act defines oppression to include torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture. In Fulling,[9] the Court of Appeal held that oppression in section 76(2) of the PACE should be given its ordinary dictionary meaning. Lord Lane CJ said, “This is in turn leads us to believe that oppression in section 76(2)(a) should be given its ordinary dictionary meaning. The Oxford English Dictionary as its third definition of the word runs as follows: ‘Exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects or inferiors; or the imposition of unreasonable or unjust burdens.”

 

  1. The definition of oppression in section 29(5) of the Act is not exhaustive and any similar violation of the rights of the defendant will also constitute oppression. It is instructive that the use of torture or inhuman or degrading treatment is a violation of the fundamental rights of a defendant but the constitution does not define those terms. Section 34(1)(a) of the Constitution FRN states that, “no person shall be subjected to torture or to inhuman or degrading treatment.” Any confession obtained by acts which infringe the constitutional rights of a defendant can also be excluded under the provisions of section 14 of the Evidence Act 2011 on the grounds that the confession was obtained in consequence of an impropriety or in contravention of a law. We shall now examine some of the situations that may constitute oppression of the defendant.

 

Torture, Violence or Threats

  1. The application of direct physical force to the person of the defendant or to any person related to or closely connected to the defendant will be a valid ground for challenging a confession by reason of oppression. Any acts of torture and the use of violence whether or not amounting to torture constitutes oppression against the defendant. In addition, the mere threat of violence without the application of direct physical force to the person of the defendant will also constitute oppression. See section 29(5) of the Evidence Act. In COP v Alozie,[10] Nweze JSC said, “the Courts are bound to reject an accused person’s confession which eventuated from torture, duress, threat or inducement.”

 

Denial of Food or Necessities

  1. The denial of food or other basic necessities or medicines vital to the health and sustenance of the defendant will be a valid ground for challenging a confession by reason of oppression. The denial of food or basic necessities is unjust, cruel, inhuman and degrading treatment and constitutes oppression against the defendant. See section 29(5) of the Evidence Act and section 34(1)(a) of the Constitution FRN.

 

Undue Hostility or Intimidating Conduct

  1. Any undue hostility or intimidating conduct towards the defendant by police officers during interrogation may be a valid ground for challenging a confession by reason of oppression. Acts of undue hostility or intimidating conduct and threats of violence against the defendant will be an exercise of authority or power in a burdensome, harsh or wrongful manner and constitute oppression. In Paris,[11], the defendant was bullied and harassed by police during interrogation and the Court of Appeal in England held that the interrogation was oppressive. The interview had lasted 13 hours and during that period the police repeatedly shouted at the suspect what they wanted him to say but the suspect denied involvement over 300 times. Contrast the case of Emmerson,[12], where a police officer raised his voice and used bad language to the defendant during interrogation but the Court of Appeal held that such conduct was not oppressive.

 

  1. The nature of the defendant’s character may determine the manner of interrogation and the decision of the court as to whether or not the interrogation was oppressive. Where the defendant is a hardened criminal, the police may require tougher interrogation which may not be regarded as oppressive. In Hudson,[13], a man of previous good character was subjected to lengthy and sometimes unlawful interrogation and the Court of Appeal held that the interrogation was oppressive. Contrast, Dodd,[14], where the defendants were hardened criminals and the Court of Appeal held that the harsh interrogation was not oppressive.

 

Prolonged Custody of the Defendant

  1. The prolonged custody of the defendant can be a valid ground for challenging a confession by reason of oppression. The prolonged custody of the defendant without trial amounts to inhuman or degrading treatment and will constitute oppression. Section 35(4) of the Constitution FRN states that, any person arrested or detained shall be brought before a court of law within a reasonable time and where the defendant is in custody without bail he must be tried within two months from the date of his arrest or detention. Therefore keeping a defendant in custody for more than two months without trial in violation of the Constitution or for longer than the term of imprisonment prescribed for the offence may constitute oppression under section 29(2)(b) of the Evidence Act.

 

Conclusion

  1. The admissibility of confessions is a matter which arises frequently in criminal trials and it is only a matter of time before we are inundated with decisions of the Supreme Court on this subject. This is my humble contribution to the development of this area of the law.

[1] (1993) 97 CAR 99 at 103.

[2] (1991) 92 CAR 228. See also, Walsh (1989) 91 CAR 161

[3] (1987) 87 CAR 232. See also, Wahab (2003) 1 CAR 232, Alladice (1988) 87 CAR 380, Re Prolux (2001) 1 All.E.R 57 at 46, Crampton (1991) 92 CAR 372

[4] Walsh (1989) 91 CAR 161, Delaney (1988) 88 CAR 338,

[5] (2010) 3 MJSC (pt.2) 47. See also, Fatilewa v The State (2008) 3 MJSC (pt.2) 47.

[6] (1966) 384 US 486, See, Dickerson (2000) 530 US 428.

[7] Omotoso v COP (1961) NSCC 314.

[8] See, Namsoh v The State (1993) NWLR (pt.292) 129.

[9] (1987) 85 CAR 136 at 138. This dictum was quoted with approval in Paris (1993) 97 CAR 99 at 103.

 

[10] (2017) LPELR-41983(SC)

[11] (1993) 97 C.A.R 99.

[12] (1991) 92 CAR 284

[13] (1980) 72 CAR 163

[14] (1981) 74 CAR 50, See also, Seelig (1992) 1 WLR 148.

PROOF OF STEALING (SUSPICION & GROSS NEGLIGENCE)

PROOF OF STEALING

(SUSPICION & GROSS NEGLIGENCE)

Suspicion

Stealing can be proved by circumstantial evidence but this must be distinguished from suspicion. There is always the danger in cases depending on proof by circumstantial evidence that suspicion may take the place of legal proof. Suspicion is a fact which suggests that a person may have committed an offence but yet is not sufficient to support an inference of guilt. Suspicion cannot support a conviction and a combination of facts of suspicion cannot give them the quality of circumstantial evidence.

The fact that a defendant was in possession of large sums of money and property beyond his income is not circumstantial evidence of stealing but only constitutes suspicion. In Idowu v The State (1998), the defendants were convicted of conspiracy, stealing and forgery. Idowu was the accounts clerk and the other defendant was the cashier of the company. During an audit, some alterations were observed in the cash books kept by the cashier and money was discovered to be missing. The evidence showed that the cashier was solely responsible for the alterations and the only evidence against the appellant was that he failed to detect them. The Supreme Court discharged and acquitted the appellant. Kutigi JSC said,

“As regards conviction for the charge of stealing which as shown above was based merely on the finding by the High Court that, ‘the property owned by the appellant is over and above his income’ and that ‘he therefore shared the money with the 1st accused or co-accused’ is clearly untenable. I am not aware of any law that says people who own property above their income are necessarily suspects who must have got their monies or properties from particular unauthorised or illegal sources. Even if the appellant owned properties above his income, the conclusion that it was his former employer’s money that he misappropriated is to me unsupportable.”

In Chianugo v The State (2002), the defendants were charged with the offences of conspiracy and stealing. The case of the prosecution was that a large quantity of newsprint was missing from the warehouse of their employer. There was evidence that the Chianugo had been selling papers and had made huge deposits and withdrawals on his bank account and bought a car for his wife. However there was no evidence that he had stolen any property. In overruling the no-case submission the trial Judge said that the prosecution had established a prima facie case and he must explain, how he came about the huge deposits made into the bank accounts, where he found the money to build a bungalow in his village and his wife must explain where she got the money to buy the car. The Court of Appeal discharged and acquitted the appellants. Aderemi JCA said,

“The reasoning does not represent the state of the law. It is not the duty of a defendant to prove his innocence. The prosecution must establish the guilt of a defendant. It is not the law that in a criminal case – when a defendant is shown to be in possession of some money, he must come to court to explain that the money is not the proceeds of some theft. The prosecution in my humble view ought first to establish by evidence the offence of stealing alleged. That the defendant is in possession of large sums of money beyond his ordinary income can only be relied upon as a secondary plank. It cannot be primary proof of the offence of stealing.”

Gross Negligence

Many times the offence of stealing can be proved only by circumstantial evidence. Where the prosecution can prove that the negligence of the defendant in execution of his duties resulted in the loss of money or property then the court is entitled to draw the inference that the defendant was acting dishonestly. There is judicial authority that gross negligence is evidence that a person was acting dishonestly. In Wilson v Inyang (1951), the Court of Appeal in England said, “Gross negligence or strong negligence is always evidence, very often the best evidence that a man was not acting honestly.”

However, it is important to note that while negligence is an indication of dishonesty it cannot alone be conclusive proof of guilt. In Amadi v The State (1993), the prosecution alleged that six cheques were stolen from the offices of one company and then forged and uttered to induce delivery of money to another company. The trial Judge found that the negligence of the Amadi resulted in the removal of the cheques from the accounting system. The Supreme Court held that it was wrong for the trial Judge to base the conviction for stealing on the finding of negligence. Kalgo JSC said, “Although negligence is the best evidence that a person was not acting honestly, it is not and cannot alone be conclusive proof of criminal culpability.”

To prove gross negligence in the execution of a duty the prosecution must establish the proper course of business procedure and then lead evidence to show that the defendant failed or omitted to follow the usual procedure in the execution of his duty without justifiable excuse. The presumption in section 167(c) of the Evidence Act states that the court may presume that the common course of business has been followed in particular cases. Section 13 of the Evidence Act states that evidence of facts which show the existence of any course of business according to which the act in question would naturally have been done is relevant.

In Shodiya v The State (1992), the appellant (Deputy Sheriff) was charged and convicted along with another defendant (Bailiff) with the offences of conspiracy and stealing. The prosecution alleged that the deputy sheriff directed the bailiff to levy execution and sums of money were recovered. The appellant checked the money and returned it to the bailiff for safekeeping. Subsequently, it was discovered that the money was missing and nobody could explain the disappearance. The prosecution led evidence of the normal procedure for handling money realized from an execution and showed that, it was the duty of the bailiff and not the appellant to make the entry in the cash register but he failed to do so. The Supreme Court held that the appellant was negligent because he failed to ensure that the entry was made by the bailiff. However, in the absence of any evidence of conspiracy, the negligence of the appellant was not criminally culpable but only exposed him to suspicion.

In COP v Obianaba (1966), the defendant as cashier, made an inflated entry and recorded the sum of #20.5s.0d but paid out only #3.5s.0d and could not explain the discrepancy. The Supreme Court held that where wrong entries are unexplained or the explanation is untrue, a court is entitled to regard the wrong entries as evidence of dishonesty. The cases of Shodiya (supra) and Obianaba (supra) can be distinguished because in the former case the appellant neglected to ensure that the entry was made whereas in the latter case the defendant actually falsified the entry.

In conclusion, proper internal audit and investigation into allegations of stealing by any person must be conducted and it is not sufficient to rely upon negligence in the execution of his duties or findings of money or property beyond his income. The taking, transfer or removal of the money or property with fraudulent intention must be established before a person is charged otherwise he may be acquitted of the offence.

 

 

 

 

 

ABOLISH THE NO CASE SUBMISSION

Section 303(3) of the Administration of Criminal Justice Act 2015 states that in ruling on a no-case submission, the court shall consider, “whether, (a) an essential element of the offence has been proved or (b) there is evidence linking the defendant with the commission of the offence with which he is charged, (c) the evidence so far led is such that no reasonable court of tribunal would convict upon it; and (d) any other ground on which the court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer.” This section replaces section 286 of the Criminal Procedure Act but goes further to include and codify the widely accepted conditions for a no case submission.

  1. The term prima facie case is mentioned in the Administration of Criminal Justice Act 2015 but it is unknown to the Evidence Act and this is rather curious because the existence of a prima facie case is an evidentiary matter. The Evidence Act recognizes only one standard of proof on the prosecution and that is proof beyond reasonable doubt. See section 138 of the Evidence Act. There is no intermediate standard such as proof of a prima facie case and there is no evidential burden on the prosecution to establish a prima facie case. The burden on the prosecution is to prove the guilt of the defendant at the end of the trial beyond reasonable doubt.
  2. Proof of guilt is different from proof of a prima facie case. The proof of guilt begins from the moment the defendant enters a plea of not guilty and the prosecution embarks on the task to rebut the presumption of innocence. On the other hand the proof of a prima facie case is required at the pre-trial stage. It is a test of sufficiency of evidence to bring charges against the suspect and whether or not there is ground for proceeding to trial with the available evidence in the case. Section 376(2) of the Administration of Criminal Justice Act 2015 states that, “The Attorney General of the Federation shall within 14 days of receipt of the police case file, issue and serve his legal advice indicating whether or not there is a prima facie case against the defendant for which he can be prosecuted.”
  3. The no case submission procedure is fraught with several problems and subject to abuse. In Tongo v C.O.P,[1] the trial was stalled in 1992 at the Magistrate Court after the no case submission was overruled. The appeal process lasted fifteen years from the Magistrate Court in 1992 finally up to the Supreme Court in 2007. At the Supreme Court, Chukwuma-Eneh JSC said,

“On hindsight, it is an expensively frivolous venture and this is so as the appellants could still come on appeal at the conclusion of the case on the ground that no prima facie case has been made out against the appellant at the stage the no case submission was overruled. I strongly observe that just as this court frowns at frivolous interlocutory appeals in civil cases it also frowns at exercises of this nature in criminal matters.”

  1. Some evidentiary and procedural problems associated with an application and ruling on no-case submission are discussed below.

(i) Credibility of witnesses: One of the conditions for finding an absence of prima facie case and upholding a no case submission is that the evidence of the prosecution has been discredited by cross-examination or is manifestly unreliable. Yet the trial judge is not at that stage permitted to examine the credibility of the prosecution evidence. The problem was highlighted by Tobi JCA (as he then was) in Onagoruwa v The State,[2]

“Paradoxically, the same law says that at the stage of a no case submission, the trial judge should discharge the defendant if the evidence before him is so unreliable that a reasonable tribunal cannot safely convict. Considering the factual position that credibility has something in common with reliability, truth and veracity, I see in this situation some self-contradiction in our adjectival law. Speaking for myself, I do not see anything wrong in taking the issue of credibility of the witnesses together and come to the conclusion in a swoop whether a case is made out or not. So far that is not the position of the law, and the hard and rigid principles of stare decisis will not allow me to depart from that ‘sane’ path and so I bow, hoping that someday the position will change.”

(ii) Lengthy ruling: One of the problems with a no case submission ruling is that the trial judge may deliver a lengthy ruling which may prejudice his decision at the end of the case. There are in fact cases where a full judgment has been delivered on a no case submission. In Atano v AG Bendel,[3] the trial judge delivered a 15 page ruling and Oputa JSC sounded a note of caution,

“Strictly speaking a submission of no case should be limited to the law, there will be no harm in discussing the law in the ruling. But one soon discovers that no meaningful discussion of the law can be made in vacuo, without any reference to the facts. If law and facts are to be discussed then it is wiser to be extremely short. In fact one single sentence is enough; ‘I overrule the submission and will give my reasons in my judgment’. It is much wiser to be brief: Bello v The State. The danger in a long ruling, discussing law and facts, is that too much might be said which at the end of the case might fetter the Judge’s discretion.”

Contrast the case of Emedo v The State,[4] where the Supreme Court held that the procedure followed by the judge in writing a judgment instead of a ruling was an irregularity which did not cause a miscarriage of justice.

(iii) Delay in evaluation: The ruling on a no case submission is not the final decision in the case. Where there is a case to answer the appellate court will return the matter to the trial court for continuation of trial by the defence. In some cases the trial may be stalled for several years before it returns for continuation at the trial court. The problem is that the time lapse may have affected the ability of the trial judge to properly evaluate the evidence of the witnesses. This can be avoided where the trial judge is allowed to resolve all the issues and deliver judgment after the close of prosecution evidence. In Edet Edem Akpan v The State,[5] Oputa JSC said,

“In hearing a case at first instance, the trial court has to deal with the all important issue of credibility of witnesses and the weight to be attached to their evidence. A lot here may well depend upon the demeanour and hearing of those witnesses and the impressions they made on the trial judge. It is a truism that those impressions fade away with time so that an inordinate delay in a trial may lead to a wrong evaluation of the evidence and thence to injustice.”

(iv) Evidence of lesser offences: The no case submission procedure raises other procedural problems. In Adeyemi v The State,[6] the defendant was charged with the offence of murder. At the close of prosecution evidence defence counsel made a no case submission. The trial judge held that the prosecution did not establish a prima facie case of murder but asked the defendant to enter a defence for the lesser offence of manslaughter for which he was later convicted. On appeal the question was, whether a trial court can discharge the defendant of an offence and then call upon him to answer to a lesser offence arising from the charge. Or whether a trial court should hold that a prima facie case for the more serious offence has been made out, then proceed in the judgment to later convict for the lesser offence. The Supreme Court held that the provisions of section 179(2) of the CPL, which give the trial judge power to convict for a lesser offence, could only be applied in the judgment after the trial and not after a ruling of no case submission.

(v) Presumption of innocence: Another problem raisedby the no case submission procedure concerns the presumption of innocence. It has been held that where a no-case submission is wrongly overruled it will be a violation of the presumption of innocence and misdirection on the burden of proof to call upon the defendant to lead evidence in defence of the charge. In Osa Okoro v The State,[7] at the close of the evidence for the prosecution there was insufficient evidence to support the charge against the appellant but the trial court overruled the no-case submission and relied upon the evidence of co-defendants to convict the appellant. On appeal, the Supreme Court in a split decision discharged and acquitted the appellant. Karibi-Whyte JSC said, after referring to the constitutional presumption of innocence in section 36(5) of the Constitution FRN,

“Under our law, it is not for the defendant to prove his innocence. The burden is on the prosecution to establish the case against the         defendant beyond reasonable doubt. These propositions establish that where no case has been made out against the defendant at the end of the case for the prosecution, asking him to answer the charge against him is a reversal of the constitutional provision by asking him to establish his innocence.”

  1. If the no case submission is abolished then a defendant who believes that a prima facie case has not been established against him can rest his case after close of the prosecution evidence. The defendant can then address the court either at that point, if he is tried alone, or after the close of evidence of co-defendants who elect to give evidence if he is tried jointly. However, a court must not rely on evidence of co-defendants to convict another defendant, who did not give evidence and rested his case, if the evidence of the prosecution evidence failed to prove the charge.
  2. In conclusion, the application to discharge a defendant upon a no case submission for absence of a prima facie case is a procedure that is subject to pitfalls and abuse. The procedure can also be used to delay criminal trials and should be abolished.

[1] (2007) NWLR (pt.1049) 525 at 550.

[2] (1993) NWLR (pt.303) 49 at 84.

[3] (1987) NWLR (pt.75) 201. See also, Ajiboye v The State (1995) NWLR (pt.414) 408 at 416. Ekwunugo v FRN (2008) NWLR (Pt.1111) 630,  Atutu v The State (2013) MJSC 21,

[4] (2002) NWLR (pt.789) 196 at 205. See also, Ekpo v The State (2001) NWLR (pt.712) 292 at 305.

[5] (1986) NSCC 686 at 697

[6] (1991) NWLR (pt.195) 1.

[7] (1988) NWLR (pt.92) 255 at 275, See also, Suberu v The State (2010) NWLR (pt.1197) 586, Mumuni v The State (1975) NSCC 59.

PERFORMANCE BONDS REVISITED

The issue of bonds, whether performance bonds or advance payment bonds still remains a major cause of litigation in the insurance industry today. The terms and conditions of bonds are dictated by the insurer with little input from the contractor or principal, yet the current wordings of many bonds in the market today do not adequately protect the insurer. A bond may either be “on-demand” or “conditional”. However, in the interpretation of the type of bond, there is judicial authority that there is a presumption against a finding of an on-demand bond. In Marubeni Hong Kong v Govt of Mongolia (2005), the Court of Appeal in England held that, in the case of non-bank bonds, there is a very strong presumption against the existence of an on-demand bond and it would require clear words to the contrary to rebut the presumption.

Now, what are the defences available to an insurer who is sued for default under a bond and what conditions can be inserted to protect an insurer. Bonds are first and foremost contracts and therefore also subject to the principles of contract but oftentimes the common law principles are not invoked to defend claims by the principal. It is advisable to include some basic clauses on the principles of privity of contract, frustration and misrepresentation and so on. The importance of these clauses lies in the fact the insurer is not a party to the main contract and cannot invoke the terms and conditions of that contract. In African Insurance Dev. Corp. v Nig. Liquified Natural Gas Ltd (2000), the contractor failed to execute the contract within the stipulated time and the principal sued the insurer to enforce the performance bond. The insurer invoked the arbitration clause in the main contract and filed a motion for stay of proceedings. The Supreme Court held that on the principle of privity of contract the insurer was not a party to the main contract and therefore it could not invoke the arbitration clause.

In the case of a performance bond the main defence is of course that there was in fact no breach of contract by the contractor. In a recent performance bond claim handled by our firm the wordings of the bond were adequate to protect the insurer and therefore we were able to plead the following defences arising from the terms and conditions of the bond and argue that the legal action against the insurer was premature and inchoate;

  • that the value of the performance bond was gradually reduced by the amount of work done by the contractor which work must be ascertained before taking any legal action;
  • that the litigation against the insurer was time barred as the performance bond required any legal action under the bond to be brought within three months after the expiration of the bond;
  • that the insurer was not notified in writing by the surety of the contract variation within 14 days from the date of the variation;
  • that the default or breach of the contractor was not proved and liability under the bond was contingent upon the liability of the contractor;
  • that proof of the breach was not supported by an engineer’s or architect’s certificate or other relevant technical documentation;

The failure of the principal or contractor to notify the insurer of any variation of major contract terms is a valid ground for repudiation. Any such variation amounts to a change in the risk assumed by the insurer which requires full disclosure by the insured. See section 55 of the Insurance Act. One other matter is that some insurers undertake liability for damages rather than the value of the bond. This is dangerous as damages are wide enough to include sums awarded by the court over and above the value of the bond. Now even where the employer insists on an on-demand bond, it can still be worded to require that the demand should be accompanied by supporting documents, such as warning letters from the principal or letters of complaints from the architect or engineer, rather than a bare letter of demand.

We are still surprised to find bonds that do not adequately protect insurers and leave their lawyers with little room to raise viable defences. Therefore the underwriting and legal departments of insurance companies must co-operate and tighten policy wordings in this area.

MARINE INSURANCE AND THE NO PREMIUM CONDITION

  1. Section 50 Insurance Act 2003

Section 50(1) of the Insurance Act 2003 states that, “The receipt of an insurance premium shall be a condition precedent to a valid contract of insurance and there shall be no cover in respect of an insurance risk unless the premium is paid in advance.” In the case of Ajaokuta Steel v Corporate Insurance (2014), the Supreme Court pronounced on the provisions of section 50(1) of the Insurance Act 2003. The court held that the no premium no cover condition was a condition precedent to the formation of a valid insurance contract and failure of the insured to pay premium rendered the insurance contract null and void and unenforceable.

  1. Section 23 Marine Insurance Act 1961

Section 23 of the Marine Insurance Act 1961 states that, “A contract of marine insurance shall be deemed to be concluded when proposal of the insured is accepted by the insurer, whether his policy is then issued or not; and for the purpose of showing when the proposal was accepted reference may be made to slip, a covering note or other customary memorandum of the contract.” That section means that a marine insurance contract is valid once a policy is issued even though premium has not been paid.

  1. The No Premium Condition Applies to Marine Insurance

In Jombo v Leadway Assurance (2016), the appellant imported goods and was issued two “marine insurance policies” by the respondent to cover the goods. The ship left port on 6th March 1997 and the two policies were issued on the 10th and 12th March 1997 but premium was not paid before the policies were issued. On 18th March 1997 the appellant was informed that the goods were lost at sea. Therefore a claim was made on the respondent.

The issue for determination was whether or not the no premium no cover condition applied to contracts of marine insurance. The Supreme Court held that there was no valid contract of marine insurance between the parties because the provisions of section 50(1) of the Insurance Act impliedly repealed the provisions of section 23 of the Marine Insurance Act. Sanusi JSC said,

“For purpose of clarity, it can be said that by section 23 of the Marine Insurance Act, marine insurance can be covered and valued upon oral transaction and also permits payment of premium to be made subsequently. Conversely, section 50(1) of the Insurance Decree of 1997 which is later in time of promulgation, makes a contract of marine insurance valid and enforceable ONLY upon condition precedent to the effect that premium MUST be paid in advance, once such condition precedent of prepayment of premium is not met, the contract becomes void and unenforceable. To my mind, the provisions of the later Decree of 1997, which provides a condition contrary to the one in the provisions of section 23 of the 1961 Act, one can say without any fear of contradiction, that the position provided in section 23 of the 1961 Act is no longer tenable or applicable by reason that the legislature provides a contrary provision which can be said to mean that the condition or position provided by Section 23 is no longer valid and no longer subsists.”

The effect of this decision is that even when an insurer has issued a policy, as long as the insured has not paid premium before the policy is issued, there is no valid contract of insurance and the insurer is entitled to repudiate any claim on the policy.

  1. Conclusion

Following the work of the Prof Irukwu reform committee and most recently the Dr Omo-Eboh reform committee, the insurance industry awaits a new single comprehensive insurance legislation which will bring most previous insurance laws (including the Marine Insurance Act and the Motor Vehicle (Third Party Insurance) Act) into one statute. This will remove any confusion in the application of the no premium no cover condition to all classes of insurance business.

JOINDER OF INSURERS BY CLAIMANTS AND INSURED

  1. Introduction

In practice insurers will conduct the defence of litigation by a third party claimant against an insured and will settle any judgment against the insured but they reject any attempt to join them directly as a defendant in the action. However, a third party claimant or the defendant insured who knows that the insurer will indemnify the insured for amount of the judgment may seek to join the insurer as a co-defendant so that the judgment may be enforced directly against the insurer. We now examine whether a third party claimant or defendant insured has a legal right to join an insurer as a co-defendant in an action against the insured.

  1. Section 68 Insurance Act 1997

The now repealed provisions of section 68 of the Insurance Act 1997 clearly gave a third party claimant the legal right to join an insurer directly in actions against an insured. Section 68(1) of  the Insurance Act 1997 stated that, “Where a third party is entitled to claim against an insured in respect of a risk insured against, he shall have a right to join the insurer of that risk in an action against the insured in respect of the claim.” The provisions of this section were first enacted by the Insurance (Special Provisions) Act 1988. See, Unity, Life & Fire v Ladega (1996).

The provisions of section 68 of the Insurance Act 1997 which gave third party claimants the legal right to join insurers directly in actions against an insured can no longer be found in the Insurance Act 2003. In effect they have been impliedly repealed and there no longer exists any legal right for a third party claimant to join an insurer as a co-defendant in an action against an insured.

  1. Section 69 Insurance Act 2003

The provisions of section 69(1)(b) of the Insurance Act 2003 states that, where a judgment is obtained against an insured by a third party claimant, the insurer shall pay the amount of the judgment to the third party entitled to the benefit of such judgment within 30 days, notwithstanding that the insurer may be entitled to avoid or cancel the policy. Section 69 of the Insurance Act 2003 does not give a third party claimant a legal right to join an insurer in claims against the insured. Therefore, there is clearly no longer any statutory authority for the joinder of an insurer in an action by third party claimants against an insured.

Section 69(1)(b) of the Insurance Act 2003 is similar to section 10(1) of the Motor Vehicle (Third Party Insurance) Act 1950 and both sections impose a statutory duty on an insurer to settle the amount of any judgment obtained by a third party claimant against an insured. This means that an insurer cannot place a maximum limit of liability for death or personal injury to third parties. Rather, the insurer must settle the claim for the full amount of the judgment obtained against the insured. This position has been discussed in Lawfields Insurance Advisory No.1.

  1. Judicial Authority

Generally, courts in Nigeria have leaned against the joinder of an insurer as a co-defendant in action by a third party claimant against an insured. In New India Insurance v Odubanjo (1971), the Supreme Court held that the third party claimant did not have the right to join the insurer in an action against the insured because there was no privity of contract between the claimant and the insurer. See also, Mecury Assurance v Ajufo (1978), where the Supreme Court held that the defendant insured did not have the legal right to join the insurer as a co-defendant in an action brought by the third party claimant.

In UBA v Achoru (1987), the Supreme Court held that the defendant insured did not have the legal right to join an insurer as a co-defendant in an action by the third party claimant. Agbaje JSC clarified the law on this matter,

“It is however clear to me that the plaintiff in an action of this nature can have no claim against the insurers of the defendant (insured). So the insurance company could not have been joined by the plaintiff as a co-defendant in this action.”

  1. Conclusion

Therefore, it is clear that both statutory and judicial authority do not give a third party claimant the legal right to join an insurer as a co-defendant in an action against the insured.

However, where the defendant insured seeks to join the insurer he can only do so by way of third party procedure and join the insurer as a third party and not as co-defendant. The Supreme Court said in both UBA v Achoru and New India Insurance v Odubanjo, that an insurer can be joined as a Third Party (not a defendant) in an action against the insured on the grounds that the insurer has a statutory duty to indemnify the insured for the amount of the judgment.

WRONGFUL DISHONOUR OF CHEQUES LIABILITY OF BANKERS & REMEDY OF TRADERS.

Once in a while and due to negligence a banker may wrongly dishonour the cheque of a customer who carries on business. This piece examines the liability of the banker and the remedy of the customer in such cases.

In Union Bank v Chimaeze (2014), the respondent as plaintiff at the trial court, commenced an action against the bank and claimed the sum of N30,000,000 as general and special damages for the wrongful dishonour of the cheque he drew on the bank in favour of Lever Brothers Nig. Plc despite the fact that he had enough credit in his account to clear the cheque. The plaintiff was a major distributor for the company. The trial court held that the bank had wrongly dishonoured the plaintiff’s cheque for the sum of N205,936 issued in favour of Lever Brothers and awarded the sum of N100,000 and N250,000 as general and special damages against the bank. Union Bank was dissatisfied and appealed against the judgment. The Court of Appeal increased the general damages to N1,000,000. Union Bank further appealed against the decision. The Supreme Court, per Muhammad JSC said,

“In the case at hand, one of the reasons the lower court (the Court of Appeal) relied upon in its interference with the general damages the trial court awarded the respondent/cross-appellant (Union Bank) is the undisputed fact of his being a trader. Award of damages for the dishonour of cheques issued by the respondent who is in fund is sui generis. The very act of dishonouring a trader’s cheque without more, on the authorities, entitles him to substantial damages.”

His lordship Muhammad JSC said further,

“Damages awarded in this class of claims is aggravated not only for the inconvenience caused the claimant but injury done to his reputation, credit, loss incurred following the wrongful dishonour of his cheque and for his overall anguish as well. The object of the award made for the respondent/cross-appellant (Chimaeze) here is to put him as far as possible, in the position he would have been but for the negligence of the appellant/cross-respondent (Union Bank) in dishonouring his cheque.” See also, Hirat Balogun v National Bank of Nigeria (1978), Citibank v Gratis Properties (2015).

In Balogun v National Bank (1978), the bank was found to have wrongfully dishonoured the appellant’s cheque and the trial court awarded general damages of N10. On appeal, the Supreme Court increased the award of damages to N100 and held per Idigbe JSC,

“Therefore, it has long been established that refusal by a banker to pay a customer’s cheque when he holds in hand an amount equivalent to that endorsed on the cheque belonging to the customer amounts to a breach of contract for which the banker is liable in damages. The only question which arose in these circumstances has been that relating to quantum or amount of damages.”

His lordship Idigbe JSC said further,

“Direct and/or natural damage arising from a breach of contract by a banker to honour the cheque of his customer apart, there is however also the serious likelihood of considerable danger to the reputation of a customer and generally to his business (if the customer is engaged in business). People generally, whether or not in business, do not deal with a person whose cheques are not paid, although it is conceded that instances of disinclination to deal with such a person more readily abound in the field of business. As it is always extremely  difficult to have an accurate estimate of damages under this “head”, it has therefore been laid down by a long line of cases beginning with that of Marzetti v Williams (1830), that damages in such cases are “at large”, which is to say that in such cases a jury may within reason make an award of any such sum as they consider the circumstances of the breach of contract or dishonor of cheque warrant although there has been no proof of any actual loss (i.e. special damages) to the customer.”

It must be made clear that this injury to reputation and award of substantial damages for wrongful dishonour of cheques only applies to customers who are in business either as traders or professionals. A person in paid employment who operates a salary account cannot expect to obtain substantial damages for wrongful dishonour of his cheque and may in fact only get nominal damages.

MEASURE OF DAMAGES FOR WRONGFUL TERMINATION OF EMPLOYMENT

Wrongful termination of employment means termination of employment without giving the period of notice required for termination and stipulated in the contract of employment. Once the required period of notice is given, the termination is lawful no matter the motives of the employer. The employer is not required to state any reason in the letter of termination. Therefore, the measure of damages for wrongful termination of employment is basically the remuneration of the employee for the period of notice required but which was not given by the employer.

Wrongful dismissal, on the other hand, means dismissal for an act of fraud or gross misconduct and no period of notice is required, provided the employee was given fair hearing before dismissal. However the reason for dismissal must be stated by the employer in the letter of dismissal. Therefore, the measure of damages for wrongful dismissal is at large and for this reason it is advisable for companies to seek legal advice before the dismissal of an employee.

In Idufueko v Pfizer Products (2014), the respondent wrote a letter terminating the appointment of the appellant who therefore commenced an action against them claiming the sum of N2,883,727 as general and special damages arising from the unlawful termination of his employment. The trial court held that the termination was wrongful and awarded the sum of N21,135.34k. The appellant was dissatisfied and appealed against the award of damages. The Supreme Court, per Galadima JSC said,

“The standard set by law for assessment of damages to a party whose employment has been unlawfully terminated has been established in a plethora of decisions of this court. The position of the law is that where the termination of a contract of service was found to have been wrongful, the measure of damages that the plaintiff could be entitled to would be the salaries for the length of time during which notice of the termination would have been given in accordance with the contract of employment. He would, in addition, be paid other legitimate entitlements due to him at the time his employment was terminated.” See also, Geidam v NEPA (2001), Shell PDC v Olanrewjau (2008).

In Osisanya v Afribank (2007) the Supreme Court deliberated on the measure of damages for wrongful termination of employment and held per Ogbuagu JSC,

“In a master and servant relationship, the damages available to the employee, is the payment of his salary and other entitlements already lawfully accruable and payable for the period for which the employee should have been given notice of termination. The damages will be the amount he would have earned if his employment was properly and validly determined.” See also, Chukwuma v Shell Petroleum (1993), International Drilling Company Nig. Ltd v Ajijola (1976), Imoloaeme v WAEC (1992).

Many employees rush to court to challenge wrongful termination of employment, claiming huge sums of money, without proper knowledge of the settled law on the subject and often come away disappointed. This only serves to buttress the need for genuine legal advice.