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Published online by Cambridge University Press: 28 July 2009
The attitude of courts to previous inconsistent statements of witnesses is primarily informed by the premium placed on the most credible evidence. A vintage rationale for this attitude states that:
“The character of a witness for habitual veracity is an essential ingredient in his credibility: for a man who is capable of uttering a deliberate falsehood is in most cases capable of doing so under the solemn sanction of an oath. If therefore it appears that he has formerly said or written the contrary of that which he has now sworn (unless the reason of his having done so is satisfactorily accounted for), his evidence should not have much weight….”
1 See R v. Harris (1928) 20 Cr. App. R. 144, at 147.Google Scholar
2 Cap 112 Laws of the Federation of Nigeria, 1990 (the Act).
3 See Phipson on Evidence, (14th ed.), London, 1990, paras. 12–26 and 12—53.Google ScholarAguda, T., Law and Practice of Evidence in Nigeria, Ibadan, 1990, para. 27–58Google Scholar and Nwadialo, F., Modem Nigerian Law of Evidence, Banin City, 1981, 224.Google Scholar
4 See Esan v. Slate (1976) 10 N.S.C.C. 673, at 677. The key factor is proof that the witness is not desirous of telling the truth.Google Scholar
5 Ss. 207, 208 and 209 of the Act are in pari materia with ss. 3, 4 and 5 of the English Criminal Procedure Act, 1865.
6 Not necessarily by the witness.
7 [1960] 1 W.L.R. 1169.Google Scholar
8 [1961] 1 S.C.N.L.R. 53.Google Scholar See also R v. Joshua (1964) 1 All N.L.R. 1Google Scholar and Onubogu v. The State (1974) 9 S.C. 1.Google Scholar
9 [1987] 3 N.W.L.R. (Part 61) 419.Google Scholar
10 See Asanya v. The State [1991] 3 N.W.L.R. (Part 180) 422.Google Scholar
11 See particularly Karibi-Whyte, J.S.C., in Stephen v. The State [1986] 5 N.W.L.R. (Pt 46) 978,Google Scholar at 1431–32 and Olatawura, J.S.C., in Asanya v. The State, at 476.Google Scholar
12 [1993] 7 N.W.L.R. (Pt 306) 383.Google Scholar
13 At 424.
14 See R v. Itule (1961) 2 S.C.N.L.R. 183;Google ScholarAremu v. The State (1991) 7 N.W.L.R.Google Scholar (Pt 201) and Kim v. The State (1992) 4 N.W.L.R. (Pt 233) 17.Google Scholar
15 See 388 (para. 4).
16 At 433–35 (reference to s. 198 in the passage should be to s. 199).
17 See e.g. R v. Askew [1981] Crim. L.R. 398; R v. Pestano [1981] Crim. L.R. 397; Onubogu v State (1974) 9 S.C. 1; Jizummba v. The State (1976) N.S.C.C. 156.
18 Quite recently in Salihu v. The State (1994) 3 N.W.L.R. (Pt 332) 352, the Court of Appeal adopted the passage unreservedly.Google Scholar
19 See e.g. R v. Harris (above); R v. Birch (1925) 18 Cr. App. R. 26;Google Scholar and R v. White (1922) 17 Cr. App. R. 60.Google Scholar
20 See also R v. Askew.
21 The difficulty with this view is the fact that the common law rule predates statutory provisions on the matter.
22 Op. cit. at 147.
23 Op. cit. at 1172.
24 (1924) 18 Cr. App. R. 26.Google Scholar
25 (1913) 8 Cr. App. R. 133.Google Scholar
26 ibid., at 140.
27 See Subramanum v. Public Prosecutor [1956] 1 W.L.R. 965.Google Scholar
28 Per Avory, J., (1925) 18 Gr. App. R. at 29.Google Scholar
29 Cf. Birkett v. A. J. Little Ltd (1962) N.S.W.R. 492.Google Scholar
30 See e.g. R v. Ukpong.
31 See R v. Agwuna (1949) 12 W.A.C.A. 456; see also Aguda, op. cit, at 29.Google Scholar
32 This legislation enacts wide exceptions to the common law rule on hearsay.
33 [1956] 1 Q.B. 187; [1955] All E.R. 822.Google Scholar
34 The 1938 Act has generally been replaced in England by the more extensive provisions of the Civil Evidence Act, 1968.
35 Cross on Evidence (6th ed.), London, 1985, 276.Google Scholar
36 (1976) 10 N.S.C.C. 156;Google Scholar(1976) 3 S.C. 89.Google Scholar
37 Emphasis supplied.
38 Per IDIGBE, J.S.C., at 162.
39 (1964) 1 All N.L.R. 1.Google Scholar
40 (1974) 9 S.C. 1.Google Scholar
41 See also Aderemi v. The State (1977) N.S.C.C. 423.
42 See (1974) 9 S.C. 1 at 17–18.Google Scholar
43 (1977) 51 A.L.J.R. 731.Google Scholar
44 The application succeeded on other grounds.
45 At 740.
46 [1993] 7 N.W.L.R. (Pt 306) 383, at 410.Google Scholar
47 See note by Bucknell, P. J. in [1981] Crim. L.R. 397; see also R v. Morgan [1981] N.Z.L.R. 164.Google Scholar
48 Reviewed in [1993] Crim. L.R. 948.
49 Phipson On Evidence, para. 12–53.