Held: Ruling should be given when statement tendered. Irregularity not prejudicing accused, insufficient ground for quashing conviction.

The facts are sufficiently set out in the judgment.

W .. Wells Palmer (with him O. A. Alakija) for Appellant.

E. O. Pretheroe for Crown.

The following judgment was delivered:

KINGDON, c.J., NIGERIA.

Appellant was charged and convicted of stealing property of his employers, Messrs. John Holt & Co. Ltd., to the value of £615 15s., while in their employ as a storekeeper.

During the course of the evidence of Mr. Wood, agent for Messrs.

John Holt & Co. Ltd. at Ijebu Ode, the prosecution sought to put in a statement signed by appellant. Counsel for the defence objected to the statement being admitted, and it was then marked" K." for purposes of identification only.

After the case for the prosecution had been closed and the appel­lant had given evidence on his own behalf and closed his case without calling any witnesses, the trial Judge heard Counsel for the prosecu­tion and defence as to the admissibility of the statement. After hearing their submissions he admitted the statement saying

•• I see no reason to disbelieve that statement was made voluntarily without threat or promise or inducement and I admit it. I do not believe accused's story."

The statement was then admitted and read and marked Exhibit" K." The Court then adjourned till the next day when, after hearing Counsel for the prosecution and defence, the trial Judge reserved judgment.

Mr. Wood gave evidence as to how the statement was signed.

In his examination-in-chief he stated that accused had given him a list of customers to whom he said he had supplied goods and then admitted that some of them were non-existent people. He went on to say, to quote his own words :-

•• Then I talked to accused and I persuaded accused to tell me the truth.

I merely asked accused to tell the truth. That is how I persuaded him. I thought at first that accused had merely been stupid in giving out goods to customers, but when I discovered this was untrue I naturally asked accused to tell me the truth and he then made a statement which was afterwards reduced to writing. I produce statement which I reduced to writing. I put in my own words what accused's statement conveyed to me (Counsel for accused objects to statement going in; marked for identification only Exhibit • K '). I reduced statement to writing imlIlediately after accused had repeated his story three times. I gave Exhibit· K' to accused who read it and then signed it. Exhibit· K ' is statement signed by him. An office clerk witnessed. his signature. On first occasion accused made the statement Mr. Peters and I and Mr. Obatello and another man present. On second occasion accused made state­ment Mr. Winter, Mr. Obatello and I present and on last occasion Mr. Bateson and I present. It was what he said on last occasion that I reduced to writing and accused signed."

In cross-examination he said :-

•• Accused made statements to me on three occasions and it was after last statement that I put it in writing. Mr. Bateson present when accused made last statement. The statement reduced to writing in my office in absence of accused. Written statement contained my idea of what accused said. It was approximately seven or eight days that I was trying to get out the truth from accused. I asked accused to come to my house to try and get at the truth, but not after the written statement typed. Written statement signed in my office and not in my house. Bateson not present when accused signed the statement. Bateson signed statement as he was present when statement made. I didn't tell accused that if he signed the statement I would open the shop for him at once. I had been talking to accused daily between 5th and date statement signed. Accused merely asked to my house for sake of privacy. My office door made of expanded metal."

The evidence of the next witness, Hussein Abdullah Rahman Twins, on the point was :-

.• After that stocktaking I saw accused again in the office when he came to sign a statement. This is statement (Exhibit· K ') accused signed it in my pre­sence. He read Exhibit· K' in my presence. I signed Exhibit· K' as a witness .

.• I work in Mr. Wood's office. There is a partition between his office and mine. I am a typist. First witness typed Exhibit· K: There are two typewriters in general office and one in first witness's. I saw Mr. Wood when he typed Exhibit· K: Accused not present when statement typed .

•• When accused signed first witness and I present. I cannot remember who else was there. There are some one else. Not true that Mr. Wood just got me to sign Exhibit· K ' after all completed in my absence. After accused finished reading statement he asked Mr. Wood's permission to take away statement before he signed it. He was granted permission. Went away and returned with it in a short time and then signed. Wood did not tell accused that if he signed Exhibit· K' the store would be reopened for him. I didn't read Exhibit· K.' I didn't know what was in statement. I never heard accused tell Wood that he had delivered goods to Peters which Peters denied receiving. I didn't hear Wood tell accused that he must sign Exhibit· K.'"

It results from the authorities that the statement was not admissible unless it was shown affirmatively on the part of the prosecution that it was made without the appellant being induced to make it by any promise or favour or by menaces or under terror. (See Archbold, 29th edition, p. 389.)

Counsel for appellant had contended that the evidence showed that appellant had been urged to tell the truth and had been badgered into signing the statement. While the evidence shows that the appellant had been subjected to a very searching cross-examination by Mr. Wood as to what had happened to the missing goods, there is nothing in the defendant's evidence to show that he complained at the trial that he had been induced to sign the statement because he had been threatened or badgered into doing so by Mr. Wood or any other person in authority over him.

It is quite clear that the appellant's complaint at the trial was not that he had been badgered into signing the statement, but that he had been induced to sign by a promise that if he did so he would be allowed to continue his work when Mr. Winter came and that it was on the strength of this promise that he consented to sign the statement.

It is quite clear that the trial Judge disbelieved appellant's story that he had been induced to sign the statement by this promise, and it not having been suggested by the appellant at the trial that he was induced to sign the statement by any threat or undue pressure, this Court is unable to come to the conclusion that the trial Judge was wrong in admitting the statement.

There can be no doubt that, when the question of the admissi­bility of th~ statement was raised, the trial Judge should have then, after hearing evidence from both sides upon the point, if tendered. ruled on the admissibility of the statement.

This Court has therefore to consider whether the appeal should be allowed on account of that irregularity.

It must be borne in mind that the trial was by the assistant Judge without a jury. There is nothing on the record to show that Counsel in the Court below urged that even if the statement were admissible it could not be admitted at that stage. It cannot be doubted that if Counsel for appellant in the Court below had sug­gested that he would like to reopen the defence his request would have been granted. In all the circumstances this Court is of the opinion that the appellant has suffered no prejudice and that the appeal should not be allowed on the ground of the irregularity in post­poning decision until the appellant had given his version of what had occurred to induce him to sign the statement.

As regards the contention that the conviction was against the weight of evidence this Court is satisfied that there was ample evi­dence to justify the learned Judge finding the accused guilty, and the appeal is dismissed.