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PRINCIPLE OF NON EST FACTUM – APPLICABILITY OF THE PRINCIPLE OF NON EST FACTUM

 
Criminal Law and Practice
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 Anonymous
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Topic starter June 19, 2020 1:18 pm  
"However, I cannot but say that the principle of non-est factum would appear not to avail the Appellant in the instant case given the illuminating manner in which the Supreme Court enunciated the principle in the case of Aiguoreghian V. The State (2004) 3 MJSC 71, relied on by the Appellant. It was stated thus: -

 

Be it noted that it is trite that when a document is sought to be tendered and is objected to by counsel, what counsel objecting does at that stage is no more than a submission on the admissibility of the statement. Thus, as the issue of non-est factum is a matter of fact, the challenge of such a statement is more properly done when the accused or any other witness of his impugns the statement as not being that of the accused from the witness box. I agree with learned counsel for 2nd Appellant therefore that as counsel is not competent to give evidence from the bar and the challenge of a confessional statement on grounds of non-est factum is a matter of fact, the challenge is appropriately made when the accused as witness denies the making of such a statement.

 

As I had cause to observe in Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380, a case identical to the one in hand:

 

"...Now the voluntary statement of the Appellant which was confessional in nature was received in the proceedings giving rise to this appeal as Exhibits B and B1 and these are part of the prosecution’s case. See Anofi Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101. The Appellant for his defence in rendering his testimony in Court, admitted he never said what was recorded. He thereby sought to retract the statement rather than its involuntariness that was in issue."
 
-PER A. O. LOKULO-SODIPE, J.C.A IN  MICHAEL ORI v. THE STATE
suit no: CA/OW/188/2015
 

Legalpedia Electronic Citation: (2020) Legalpedia (CA) 65118

 

   
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 Anonymous
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Topic starter June 19, 2020 1:24 pm  

Summary Of Fact:


The Appellant and the 3 other accused persons and other still at large; were alleged to have robbed one John Nwokeocha and his passengers of one Mercedes Benz 911 Lorry with Registration No. AE 281 and money totalling N260,715.00 while armed with firearms at Mgbee along Orlu Urualla-Akaokwa Road in Orlu Judicial Division.

The Appellant and the other 3 were charged with the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of Federation of Nigeria, 1990.

The charge was read over to the accused persons including the Appellant and each of them pleaded not guilty thereto.

The prosecution called 6 witnesses in the proof of its case against the Appellant and the other accused persons.

The Appellant and each of the other accused persons, testified in their own behalf, and called no other witness. While the 1st accused person confessed to the crime, the other accused persons (Appellant inclusive) in their evidence denied the charge.

At the end of the trial, the Lower Court found the prosecution to have proved its case against the Appellant and 2 of the other accused persons beyond reasonable doubt and they were subsequently convicted and sentenced to death, except for the 4th accused person who was acquitted and discharged.

The Appellant has filed this appeal against his conviction and sentence, pursuant to the leave of this Court, extending the time within which the Appellant, is to appeal.

The Respondent though not represented, had earlier filed a brief of argument in the appeal, and it was deemed as having been duly argued by the Respondent.


   
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