By Ahmad Abdullah Omeiza
The Nigeria Police Force is the gatekeeper of the criminal justice system, and of it’s duties as provided by Section 4 of the Police Act is to investigate and prosecute crimes. Thus, once a report is made to the Police via a criminal complaint or a petition, a personnel or an officer of certain rank is assigned by a superior officer to investigate the case, this person is called an I.P.O; an Investigating Police Officer. An I.P.O is an officer officially assigned to handle a particular case file, responsible for conducting investigations, interviewing suspects and witnesses and to gather evidence for prosecution in court.
More often than not, the evidence gathered by an I.P.O is usually what he is told by eyewitnesses, the nominal complainant or victim, the defendant and any other person related to the crime, his evidence is not basically what he saw or observed personally as he is not usually a witness to the episode of the offence and he’s most times invited at the aftermath. This is almost similar with the words of my lord Abdu Aboki JSC (as he then was) in State V. Fafuru (2023) 1 NWLR (Pt. 1866) 475, where he stated inter alia; “The IPO in any investigation is not usually an eye witness to any crime. He investigates alleged crimes reported to him. He interrogates the suspects, and takes down their statements. He visits the locus in quo for further investigations. He interviews witnesses and investigates’ alibi”.
Hence, his conclusion(s) is based on his findings in the course of his investigations and the evidence he comes to court to give is often contended by lawyers, judges and even laymen as hearsay. The question that seeks answer now is, what is hearsay?
Simpli cita, hearsay evidence arises where a witness in his own testimony makes a statement, oral or written which is made by another person who experienced, heard and saw an incident happened in order to establish the truth asserted. Thus, Section 37 (a) of the Evidence Act, 2011 has defined hearsay. Same is reproduced here for clarity, viz;
37 Hearsay means a statement
(a) oral or written made otherwise than by a witness in a proceeding; or
Complementing this provision, Section 38 of the Evidence Act renders statements referred to in section 37 inadmissible in court and to no effect. Thus;
38 Hearsay evidence is not admissible except as provided in this part or under any other provisions of this or any other Act.
However, this provision is not sacrosanct as the section has created a leeway through the use of the words “except as otherwise provided in this part or under any other provisions of this or any other Act” which has resulted in certain exceptions. The letters of the law in this regard is very clear, and it is like the legislators had in mind the evidence of an I.P.O when the law was enacted.
In a criminal prosecution, the evidence of an I.P.O pertaining to his findings in the course of his investigations is attached great significance as it is often considered by trial courts to reach a decision, it therefore cannot be hearsay.
An I.P.O in the performance of his duties is bound to discover certain facts, exhibits and information pertaining to the crime in question. Thus, his evidence in court cannot be likened to hearsay under sections 37, 38 and 126 of the Evidence Act. Thus, in Olaoye V. State (2018) 8 NWLR (Pt. 162) 281, the Supreme Court per Aminu Sanusi held inter alia;
“Also on the quality of the testimony of PW3 who is the Investigation Police Officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay because an IPO narrates to the court the outcome of his investigation or enquiries or what he recovered and in the course of his duty he must have discovered or recovered some pieces of evidence vital to the commission of the crime, which trial courts normally consider in arriving at just decisions one way or the other. The lower court was therefore right in refusing to discountenance the evidence adduced or given by PW3”.
The Court also had this to say in Anyasodor V. State (2018) 8 NWLR (Pt. 1620) 107;
“On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator.His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contact with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundare v. The State (2009) All FWLR (pt. 469) (SC) 423;(2009) 6 NWLR (Pt. 1136) 165″. (Underline is mine for emphasis).
Notwithstanding the foregoing, it is also correct that an I.P.O is not a robot but a human with emotions. An I.P.O may be a saint but can be sinful, an I.P.O is not infallible as he is a man capable of lying, put in more politely or mildly, may swing to the side his sentiments is attached to, or the side that brought him to court. Hence, the evidence of an I.P.O that he comes to court to give may not be taken stricto sensu. It is left for the trial court to attach weight to his evidence, it must however not be rejected on the grounds of being hearsay.
Furthermore, an I.P.O is like every other witness in court. His evidence cannot be consumed by the court ad verbatim. As it is with every other witness that comes to court to give evidence, an I.P.O is also subject to cross examination. Thus, if based on particular facts, a defense counsel succeeds in bringing out the inconsistencies or raise doubts in the evidence in chief of an I.P.O through the instrument of cross_examination or any other procedural apparatus, the only option available to a trial judge is to discountenance and refuse such evidence and resolve the issue in favour of the defendant.
It is a well settled principle in our criminal jurisprudence that where inconsistencies or doubts are found in the case of the prosecution, it should be resolved in favour of the defense. In Archibong V. State (2006) 14 NWLR (Pt. 1000) 349. The court held thus, “Under the Nigeria criminal jurisprudence, where doubt exists in the mind of the Court as to the guilt of the accused person, the Court should acquit and discharge the accused.
Similarly, in Oseni v. State (2011) 6 NWLR (Pt. 1242) 138. The Court reiterated this principle in the following words, “The law requires that the guilt of an accused person must be proved beyond reasonable doubt and that where there is any doubt, the accused must be given the benefit of that doubt. The onus of proof remains always on the prosecution”.
Therefore, as it is the practice with every other witness, the judge is expected to observe the witness and watch his countenance, expression and reactions to questions so as to reach a conclusion if he is a witness of truth or if he is not and so as to determine the weight to attach to his evidence. Meanwhile, where the evidence of an I.P.O is uncorroborated and or inconsistent a defense counsel should raise that in his address to the court or the court may suo motu take note of such irregularities and disregard it in favour of the defendant. Where the trial court fails to do the needful in the above circumstances and goes on to rely on such evidence fraught with material doubts and inconsistencies on the reason that it is the evidence of an I.P.O, this will definitely create good grounds of appeal to the court upstairs.
In conclusion, it is already settled that though he may not be a saint, his evidence which is based on his investigations if corroborated and found to be true will go a long way to determine the outcome of a criminal proceedings, as a result, his evidence cannot be trashed in the legal dustbin for being hearsay. However, care must be taking by the courts so as to distinguish when an IPO’s evidence is reliable and when it is not. On the part of the prosecutor, he must understand that he is a minister in the temple of justice and must help the court to achieve justice. It has been stated severally that conviction is not a do or die affair, and as such, a lawyer must not do all in his capacity to obtain a conviction against a particular defendant by cooking up stories with an IPO even when a prima facie case has not been made against the defendant. On the other hand, where an IPO in his investigations realizes that a defendant is not likely to have committed an alleged offence, then he should come to court and say the same, not painting white as black so as to receive a pat on the back from his superiors or to secure a conviction. That is not the purpose of investigation. The purpose of investigation is to ensure justice and justice is also for the defendant as held by the Supreme Court per Oputa JSC in Josiah V. State (1985) 1 NWLR (Pt. 11) 15.
Ahmad Abdullah Omeiza is a Level Three Officer Cadet of the Faculty of Law, Nigeria Police Academy, Wudil, Kano State. He can be reached for comments and contributions via: Email: ahmedabdullahiq76@gmail.com Tel: 08024788720, 07076506534
In this article