GANIYU OLANIPEKUN v INSPECTOR-GENERAL OF POLICE (Appeal No. LD/39CA/63) [1963] NGHC 15 (21 November 1963)

**GANIYU** **O****LANIPEKUN** **(ACCUS****ED/APPELLANT)** **_v._** **INSPECTOR-GENERAL** **O****F** **POLICE** **(****COMPLAINANT/RESPONDENT)** **(1963)** **All** **N.L.R.** **639** **Div****i****si****o****n:** High Court of Lagos **D****at****e** **o****f** **Judgment:** 21st November, 1963 **C****as****e** **Num****b****er:**(Appeal No. LD/39CA/63) **Before:** De Lestang, C.J. Appeal from magistrate's court. The appellant, a vulcanise, was convicted of stealing two motor tyres from a parked car. A few hours after the theft one of the stolen tyres minus the rim was found in his shed. In his evidence he said that the tyre was brought to him in the course of his trade by a man named "Charity" and that he was unaware that it had been stolen. He said that Charity had left the tyre and another complete wheel with him for the tyre to be repaired and substituted for the tyre on the complete wheel. The tyre was of a different size and could not have been fitted on to it. At the trial, Charity was not called but a statement he had made to the police was put in evidence. In it he said that he only left a complete wheel with the appellant and not the tyre. The trial Magistrate admitted the statement because "the accused in cross-examination of the 2nd PW. Let it in." The appellant appealed on the ground that the statement was wrongly admitted in evidence and that without it there was not sufficient evidence to convict the appellant. **_HELD_** (1) A statement made by a stranger who was not called as a witness is inadmissible. (2) Inadmissible evidence does not become admissible by reason of the fact that it was let in, in cross-examination. (3) It was impossible for an appellate court to be sure as to whether or not the decision would have been the same if the statement had not been admitted; without the statement there was nothing to contradict the consistent explanation of the appellant; the fact that the tyre could not have been fitted on the rim of the other wheel throws some doubt on the appellant's story but it was not conclusive of its falsity. **_P_**** _E_**** _R_** **_C_**** _URIAM_**** _:_** Where an accused is unrepresented by Counsel it is the duty of the court to assist him in his defence. _Ap_ _p_ _e_ _a_ _l_ _a_ _l_ _l_ _o_ _w_ _e_ _d_ _:_ _C_ _o_ _n_ _v_ _i_ _c_ _t_ _i_ _o_ _n_ _a_ _n_ _d_ _s_ _e_ _n_ _t_ _e_ _n_ _c_ _e_ _s_ _e_ _t_ _a_ _s_ _i_ _d_ _e_ _:_ _V_ _e_ _r_ _d_ _i_ _c_ _t_ _o_ _f_ _a_ _c_ _q_ _u_ _i_ _t_ _t_ _a_ _l_ _e_ _n_ _t_ _er_ _e_ _d_ _A_ _c_ _t_ _r_ _e_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Evidence_ _Act_ _,_ _se_ _ction_ 226(1). APPEAL from magistrate's court. _Ogunsanya_ for the Appellant. _I_ _bidap_ _o_ for the Respondent. De Lestang, C.J.:-The appellant was convicted of stealing "two motor tyres from a parked car and was sentenced to 18 months' imprisonment. The theft took place during the night of the-2nd to 3rd October, 1962, and one of the stolen tyres minus the rim was found a few hours later in a shed in which the appellant carries on the business of a vulcanise. From the very beginning the appellant said that the tyre was brought to him for repair by a man called "Charity". He said that Charity left the tyre in question and another complete wheel at his workshop for the tyre to be repaired and substituted for the tyre on the complete wheel. The tyre, however, was of a different size from that on the wheel and could not have been fitted on to it. At the trial Charity was not called but a statement he had made to the police was put in evidence. In it he said that he only left a complete wheel with the appellant and not the tyre in question. The learned Chief Magistrate relied on that statement in his decision. The appellant appeals on the ground that the statement was wrongly admitted in evidence and that without it there was not sufficient evidence to convict the appellant. There can be no doubt that the statement was inadmissible and should not have been acted upon. A statement made by a stranger who is not called is a witness is clearly irrelevant. The learned Chief Magistrate, however, admitted it because "the accused in cross-examination of 2nd PW let it in." In the first place the appellant was unrepresented by Counsel and it was the duty of the court to assist him in his defence. In the second place inadmissible evidence does not become admissible by reason of the fact that it is let in, in cross-examination. It is the duty of the court to reject inadmissible evidence. Evidence Act, section 226(1) provides that:- "The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted." The short point therefore, in this appeal is whether or not the decision would have been the same if the statement had not been admitted. It is, in my view, impossible for this Court to be sure of this. Without the statement there was nothing to contradict the consistent explanation of the appellant that the tyre was brought to him in the course of his trade and that he was unaware that it had been stolen. The fact that the tyre could not have been fitted on the rim of the other wheel throws some doubt on the appellant's story but it is by no means conclusive of its falsity. The appeal accordingly succeeds. The conviction and sentence are set aside and a verdict of acquittal is entered. _A_ _p_ _p_ _e_ _a_ _l_ _a_ _l_ _l_ _o_ _w_ _e_ _d_ _:_ _C_ _o_ _n_ _v_ _i_ _c_ _t_ _i_ _o_ _n_ _a_ _n_ _d_ _s_ _e_ _n_ _t_ _e_ _n_ _c_ _e_ _s_ _e_ _t_ _a_ _s_ _id_ _e_ _:_ _V_ _er_ _d_ _i_ _c_ _t_ _o_ _f_ _a_ _c_ _q_ _u_ _i_ _t_ _ta_ _l_ _e_ _n_ _t_ _e_ _re_ _d_