ADDUCING EVIDENCE OF PREVIOUS CONVICTION IN LAW

ADDUCING EVIDENCE OF PREVIOUS CONVICTION IN LAW

The administration of matters whether civil or criminal by the court of law is an important duty of the judiciary being the third arm of government in any jurisdiction worldwide. The court is called upon to dispense justice according to evidence adduced before it by litigants; it is value of evidence adduced that guides and helps the court at arriving at good and sound judgments which in turn helps improves the efficient and judicious dispensation of justice to all and sundry.

In doing this, the law provides the opportunity for litigants to adduce before the courts evidence of any previous conviction by a court with competent jurisdiction, as this would help guide the court from wasting its time and resources in delving into the case afresh again. Apart from the court saving its time and resources, the Constitution of Nigeria 1999 (as amended) also provides under section 36 (9) for adducing previous conviction on a case with same ingredient as that presently before the court. Section 221 of Nigeria’s Criminal Procedure Act (CPA) and 223 of Criminal Procedure Code also forbids the trial of an accused person twice for an offence having same elements. The cases of R v. Jinadu 12 W.A.C.A. 368 and R v. Noku 6 W.A.C.A. 203 are very instructive in this regards.

The Nigerian Evidence Act 2011 under sections 248 – 250 further provides scenarios pertaining to adducing evidence of previous convictions before our courts thus:
Proof of previous conviction- section 248 Evidence Act;
(1) Where it is necessary to prove a conviction of a criminal offence, the same may be proved-
a. By the production of a certificate of conviction containing the substance and effect of the conviction only, purporting to be signed by the registrar or other officer of the court in whose custody is the record such of the said conviction;
b. If the conviction was therefore before a customary court, by a similar certificate signed by the clerk of court or scribe of the court in whose custody is the record of the said conviction; or
c. By a certificate purporting to be signed by the Director of Prisons or officer in charge of the records of a prison in which the prisoner was confined giving the offence for which the prisoner was convicted, the date and sentence.
(2) If a person alleged to be the person referred to in the certificate denies that he is such person, the certificate shall not be put in evidence unless the court is satisfied by the evidence, that the individual in question and the person named in the certificate are the same.

In addition to the above provision which relates to convictions made in Nigeria; the Act also envisages convictions that may have occurred outside the shores of Nigeria. Section 249 of the Act for instance provides for proof of previous convictions outside Nigeria thus:
(1) A previous conviction in a place outside Nigeria may be proved by the production of a certificate purporting to be given under the hand of a police officer in the country where the conviction was had, containing a copy of the sentence or order and the finger prints of the person or photographs of the finger prints of the person so convicted together with evidence that the finger prints of the person so convicted are those of the defendant.
(2) A certificate given under subsection (1) of this section shall be prima facie evidence all facts set out in it, without proof that the officer purporting to sign it did in fact sign it and was empowered to do so.

Furthermore, with regards to a defendant proving his previous conviction before the court in criminal proceedings, section 250 of the Evidence Act provides additional mode of proof thus:
(1) A previous conviction may be proved against any person in any criminal proceeding by the production of such evidence of the conviction as mentioned in this section; and by showing that his finger prints and those of the person convicted are the finger prints of the same person.
(2) A certificate-
a. Purporting to be signed by or behalf of the central registrar;
b. Containing particulars relating to a conviction extracted from the criminal records kept by him or a photographic copy certified as such of particulars relating to a conviction as entered in the said records; and
c. Certifying that the copies of the finger print exhibited to the certificate are copies of finger prints appearing from the said record to have been taken from the person convicted on the occasion of the conviction, shall be evidence of conviction and evidence that the copies of the finger prints exhibited to the certificate are copies of the finger prints of the person convicted.
(3) A certificate-
a. Purporting to be signed by or on behalf of the superintendent of a prison in which any person has been detained in connection with any criminal proceeding or by a police officer who has had custody of any person charged with an offence in connection with any such proceeding; and
b. Certifying that the finger prints exhibited to it were taken from such person while he was so detained or was in such custody as mentioned in paragraph (a), shall be evidence in those proceeding that the finger prints exhibited to the certificate are the finger prints of that person.
(4) A certificate-
a. Purporting to be signed by or on behalf of the central registrar; and
b. Certifying that-
i. the finger prints copies of which are certified as mentioned in this section by or on behalf of the central registrar to be copies of the finger prints of a person previously convicted, and
ii. the finger prints certified by or on behalf of the superintendent of the prison or the police officer as mentioned in this section or otherwise shown to be the finger prints of the person against whom the previous conviction is sought to be proved are the finger prints of the same person, shall be evidence of the matter so certified.
(5) The method of proving a previous conviction authorized by this section shall be in addition to any other method authorized by law for proving such conviction.

Evidence of Previous Criminal Conviction in a Civil Trial
On the flip side, a crucial question that comes to mind is that; can the evidence of a previous conviction in a criminal trial be adduced in a civil trial where it is relevant. In this regard, the point here is that where the parties are the same and the facts are the same and the aggrieved or injured party decides that the conviction secured by the state is not satisfactory to him, can he proceed and sue the convicted individual for damages in a civil trial? In England, under the common law, in the case of Hollington v. F. Hewthorn & Co. Ltd. (1943) 2 ALL ER 35, it was held that a criminal conviction could not be admitted into evidence in a subsequent civil proceedings as proof of the facts of the conviction. This however is no longer the position in common law countries.

For instance in Canada, the treatment afforded to criminal convictions in civil cases has evolved since the Hollington case. Courts there have increasingly recognized that the final decision of a competent, expert, criminal court should be an important and in some cases a decisive factor in subsequent civil proceedings. However, this presumption is and should be rebuttable. The same is obtainable in the U.S. Also, the Nigerian case of Joseph Mangtup Din v. African Newspapers of Nigeria Ltd. (1986) SC 44 establishes the same principle that the evidence of previous conviction can be adduced in a subsequent civil case.

We agree with the view that where an injured or aggrieved party is not satisfied with the conviction of an accused person because the act or acts for which he was convicted caused him adverse effects or damages and he decides to sue, the court in deciding the subsequent civil matter should allow or entertain the proof of previous conviction in evidence to help it decide the civil trial.

The steps stated above are some of the ways provided by Nigerian law for adducing evidence of previous conviction before the courts by a defendant; and this has been painstakingly written in black and white by the Evidence Act to help ensure that an accused does not face double jeopardy with regards to an offence for which he or she has already been convicted for and served necessary sentence. The Nigerian law through this Evidence Act provision recognizes the need to protect litigants in this regard as is obtainable in other developed jurisdictions of the world.

Lanre Adedeji