CORAM
PARTIES
IFEANYI OKAFOR
THE STATE
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant as 2nd Defendant was charged together with; Ikenna Aniuno (1st Defendant); Uchenna Okpara Orji (3rd Defendant); Okechukwu Obinwa (4th Defendant); Obinna Udegbunam (5th Defendant) and Okechukwu Isaiah Ejiofor (Alias Onyeamuma 6th Defendant) before the High Court of Anambra State, Onitsha Judicial Division, with the offence of Armed Robbery, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11, Laws of the Federation of Nigeria 2004. The charge was read to the accused persons in Igbo language and explained to them by the Registrar of the lower court, they understood same and pleaded “Not Guilty”. At trial, several documents were tendered and marked as exhibits. The confessional statements of the 1st, 2nd, 3rd, 4th and 6th Defendants was tendered in evidence through this witness but the learned counsel to the Defendants vehemently objected and the learned trial Judge ordered for a trial-within-trial. In a considered ruling, the court held that the prosecution has proved that the named Defendants voluntarily and freely made their statements to the Police. It consequently admitted the statements in evidence. Trial continued at the end of which, the court held that the prosecution has succeeded in proving the charge before the Court against the 1st, 2nd 3rd, 4th and 6th Defendants but has woefully failed to prove same against the 5th Defendant. The court consequently convicted the 1st, 2nd, 3rd and 4th and 6th accused persons but discharged and acquitted the 5th Defendant. Thereafter the statement by the learned counsel to the convicts by way of allocutus was taken by the learned trial Judge wherein they all pleaded for leniency. The learned trial judge sentenced each of the convict to death. Aggrieved with the decision, the 2nd Defendant has filed a Notice of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the lower court was right in admitting in evidence the extra-judicial statement of the Appellant exhibit ‘K’ and heavily relying on same to convict the Appellant notwithstanding the evidence on record establishing that it was not voluntary and inadmissible? Whether the learned trial Judge availed the Appellant the constitutional presumption of innocence. Whether the learned trial Judge was right in holding that the Respondent proved its case against the Appellant beyond reasonable doubt.
RATIONES DECIDENDI
TRIAL WITHIN TRIAL – MEANING AND ESSENCE OF A TRIAL WITHIN TRIAL
“A trial within trial is a mini trial wherein the prosecution is afforded the opportunity of marshaling evidence in support of its claim that the confessional statement by the accused was made voluntarily. In the said mini trial, the accused and his witness (if any) have an opportunity of debunking the claim by the prosecution. Therefore, it is during the mini trial that the defence counsel endevours to foreclose the admissibility of such a statement. See Adebowale v. The State (2013) 16 NWLR (pt. 1379) 10 4 at 126-127. In other words, a trial within trial is conducted to determine the voluntariness of a confessional statement made by an accused to the police or authority. The procedure arises when there is an objection by the accused person on the ground that he did not made the statement voluntarily. In that case the trial court has a duty to try the issue of whether or not the statement was voluntarily made, before proceeding to admit same in evidence. See Olayinka v. The State (2007) 4 S. C. (pt. 1) 210 at 220; (2007) 9 NWLR (PT. 1040) 561 at 577”.
CONFESSIONAL STATEMENT – DUTY OF AN ACCUSED PERSON WHERE HE CHALLENGES THE TENDERING IN EVIDENCE OF HIS CONFESSIONAL STATEMENT DURING TRIAL
“Where an accused person during trial retracts or resists an extra-judicial statement he earlier made to the Police immediately after the event giving rise to the charge or arraignment against him, he owes it a duty to impeach his earlier made statement. He can do so by showing any of the following:
1. That he did not infact make any such statement presented; or
2. That he was not correctly recorded; or
3. That he was unsettled in mind at the time he made the statement; or
4. That he was induced to make the statement.
In Osetola & Anor v. The State (2012) LPELR – 9348 (SC) the apex court per ARIWOOLA, JSC held as follows:
“It is already settled that where an accused person during trial retracts, denied or resists from the extra-judicial statement he had earlier made to the Police immediately after the event giving rise to the charge or arraignment against him he owes it a duty to impeach his said earlier statement. See: Nwachukwu v. The State (2007) 12 SCM (pt.2) 447, (2007) 17 NWLR (pt.1062) 31 at 69; Hassan v. State (2001) II SCM 100, (2001) 35 WRN 175; (2001) 15NWLR (pt. 735)184. During trial, an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true or correct by showing any of the following: (i) That he did not in fact make any such statement as presented; or (ii) That he was not correctly recorded; or (iii) That he was unsettled in mind at the time he made the statement, or (iv) That he was induced to make the statement. See: Hassan v. The State (supra); Folorunsho Kazeem v. The State (2009) 29 WRN 43 at 68-79. Generally, the way to discharge the burden of establishing any of the above by an accused at the tendering of his confessional statement is by calling evidence during a trial within trial.”
This holding by the Supreme Court expressed the true position of the law that once an accused challenge the tendering in evidence of his confessional statement during trial he cannot just fold his arms and shift the burden of proving the voluntariness of the said confessional statement on the prosecution. He ought to take steps to convince the trial court that the said confessional statement was not voluntarily made by him. Therefore the submission by the learned counsel to the appellant that the burden of proof placed on the prosecution to prove that the confessional statement was voluntarily obtained never shifts to the accused is not the correct position of the law. Once the prosecution proved that the accused volunteered the confessional statement to the Police then the accused, in his interest, ought to adduce evidence to debunk the assertion by the prosecution that he did not do so. If he alleged that he was tortured, then he is duty bound to established that allegation. I noted that during trial-within-trial the Appellant, apart from his ipse dixit, did not call any evidence to convince the trial court that he was tortured by the police before writing the confessional statement.
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
CONFESSIONAL STATEMENT – WHETHER MEDICAL EVIDENCE IS REQUIRED TO SUPPORT AN ALLEGATION OF TORTURE BY AN ACCUSED PERSON
“In Itom Ishor Ikpo v. The State (2016) LPELR 40114 (SC) The apex Court, per KEKERE-EKUN, JSC held thus:
“In his defence in the trial within trial, the appellant contended that he was tortured, to make the statement. He showed the court some scars, which he alleged were the result of the beating he received. His mother who testified as T.W.T 2 testified that she witnessed her son being tortured. All the witnesses were thoroughly cross-examined. After giving careful consideration to the evidence led, the court discountenance the evidence of the Appellant’s mother as she admitted under cross examination that she was not present when the appellant made any statement to the Police. The court also held that there was no medical evidence as to the age of the scars the Appellant showed to the court so as to determine whether they coincided with the time the statement was made. The court also noted that the appellant confirmed to the superior Police Officer that he made the statement voluntarily and duly signed same. In light of these findings the court concluded that the statement was voluntarily made and admitted in evidence. I entirely agree.”
Upon considering this holding by the apex Court it is obvious that there is need to have a medical evidence to show the age of the scar to demonstrate unequivocally that it coincides with the time the statement was made. It is a fact meant, to be furnished by the Appellant which is conspicuously missing in this case. Also, in a similar vein, in Hassan v. State (2017) 5 NWLR (pt. 1557) 1 at 28-29 the Supreme Court reiterate the need for an accused who alleges that he was tortured before making a confessional statement to call additional witness that can corroborate his assertion. The apex Court held thus:
“Since the voluntariness of the confession is challenged, the onus is on the prosecution to show that the confessional statement was voluntarily made by the accused person. So the prosecution leads evidence to show that such was the case. There after the accused person gives evidence to show that he was beaten up etc. before he made the statement. And to prove that he was beaten up, he would do well to call witnesses to support his case, and a medical doctor is usually a good witness. A trial-within-trial was held to test the voluntariness of exhibit C. The appellant said that he was not able to withstand the beating so he signed the statement. He did not call any witness. The learned trial Judge evaluated the evidence led and delivered a ruling on 9th July, 2008 wherein he admitted the Appellant’s confessional statement as exhibit C… The learned trial Judge in arriving at his findings has not offended any principle of law. His Lordship is correct and the Court of Appeal was right to affirm the finding that Exhibit C was voluntarily made by the Appellant.” Per RHODES-VIVOUR, JSC.
The holdings by the Supreme Court on the need for the accused person to call evidence in support of his allegation of torture underscore the provisions of Sections 29, 131, 132, 136, 138 and 140 of the Evidence Act”.
FINDINGS OF FACT – DUTY OF APPELLATE COURTS AS REGARDS THE FINDINGS OF FACTS BY TRIAL COURTS
“The law is trite that it is not the function of this Court to make finding of facts especially where this has perfectly been done by the trial court, as in the instant case, neither is it its duty to re-open the issues of fact finally determined by the trial court even if it would have come to a different finding if it were to do so. See Moses Oghenerume Taiga v. Nneka Mercy Moses-Taiga (2012) LPELR-9238 9 (CA) per BAGE JCA (as he then was); Bassey Okpa v. The State (2017) LPELR-42205 (SC) per Muhammad, JSC. Let me also cite and quote the apex Court in Okechukwu Maraire v. The State (2016) LPELR-41305 (SC) per Peter-Odili, JSC where the eminent jurist held thus:
“The findings of the learned trial Judge in regard to the confessional statement and the evaluation of that statement with the evidence proffered as affirmed by the Court below are such that there is nothing perverse and no miscarriage of justice or wrong application of law and so this Court has no business interfering with those findings. I find strength in the case of Iguh, JSC in Oguonzee V. State (1998) 4 SC 100. “Before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need re-emphasize that where facts in issue, whether in a Criminal or Civil proceedings are accepted or with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the findings or that if the same facts were before the appellate Court, it would not have come to the same decision as the trial Judge. See Ike v. Ayoola, supra; Ogbero Egri v. Ukperi (1974) INMLR 22; Ogundulu & Ors v. Philips & Ors (1973) NMLR 267 etc. This, as already stated, is because finding of facts made by trial Court, are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an appellant satisfactorily proves that they are wrong. Such trial Courts saw the witnesses and heard them testify and unless the findings are perverse and unsupported by credible evidence, the Court of Appeal will not interfere with them. See Adelumola v. The State (1988) INWLR (pt. 73) 683…”-
CONFESSIONAL STATEMENT – WHETHER OR NOT IT IS THE LAW THAT AN ACCUSED PERSON’S LEGAL REPRESENTATION MUST BE PRESENT BEFORE A STATEMENT FROM HIM CAN BE ACCEPTED AS VOLUNTARILY OBTAINED
It is also my holding that Exhibit K was voluntarily made by the Appellant and the learned trial Judge was right when he relied on it to convict and sentence the said Appellant. See Sections 14, 15 and 30 of the Evidence Act. See also this Court’ decision in Godwin Elewanna v. The State (2019) LPELR – 47605 (CA). Also in Sunday Okondo v. The People Of Lagos State (2016) ALL FWLR (pt. 851) 1308 one of the issues that arose before this Court, Lagos Division, was whether Exhibits P2 and P4 (Appellants statement to the Police) were admissible having not complied with Section 9(3) of the Administration of Criminal Justice Law of Lagos State (which is in pari materia with Section 13 (2) of the Administration of Criminal Justice Law of Anambra State) on the use of video recording of the statement of an accused or in lieu of that ensuring that the statement is recorded in the presence of a legal practitioner or a person chosen by the accused. This Court held, inter alia, that evidence is under the exclusive legislative list and not within the legislative competence of the State House of Assembly. Thus the State House of Assembly cannot make laws on evidence which is the Kernel of the provision of the ACJL on video recording. See Elewanna v. The State (supra). In Adeyinka Ajiboye v. Federal Republic Of Nigeria (2018) LPELR – 44468 (SC) the supreme Court held thus:
“Taking a cue from the case of Kim v. The State (1991) NWLR (pt.233) 17 at 25 paragraph 14, the Supreme Court enumerated the formal requirements of extra-judicial statement which are that:
a. It must carry the usual forms of caution.
b. Each of the words of caution must be in the language understood by the maker.
c. It must be followed by the maker’s thumbprint or signature as the case may be.
d. It must be recorded in the language understood by the maker.
e. It must be read over and interpreted to the maker in language in which it is made.
I shall refer to the case of Dibie v. State (2007) 9 NWLR (pt. 1038) 30 at 64 per OGBUAGU, JSC along similar lines, thus: “It need be stressed by me and this is also settled, that there is no requirement of law in Nigeria, but that the practice of taking an accused person along with his confessional statement, to a superior officer who reads over and interprets the statement to him and he confirms it as his voluntary statement has been highly commended and a wise one as giving extra assurance of fairness to the accused person and the voluntariness of his confession… From what I can see the points of anchor against the confessional statement of the Appellant cannot sustain a rejection of the statements as involuntarily obtained. Firstly, it is not the law or practice that an accused person’s legal representation must be present before a statement from him can be accepted as voluntarily obtained nor is it also mandatory that the superior officer who before the attestation was made must be called in evidence. In effect, from the proceedings of the trial-within-trial, not only was the procedure followed, the learned trial Judge was right in his conclusion that the statement was voluntarily made and had to be admitted. See Edoho v. State (2004) 5 NWLR (pt. 865) 17 at 51. Indeed the statement was properly admitted and it was sufficiently material to ground the conviction.” Per PETER-ODILI, JSC”.
CONVICTION OF AN ACCUSED PERSON – WHETHER A TRIAL COURT CAN BASE THE CONVICTION OF AN ACCUSED PERSON ON A RETRACTED CONFESSIONAL STATEMENT
“I need to reiterate that conviction of an accused can be based even on a retracted confessional statement as held by this Court in Emmanuel Godwin Koffi v. The State (2015) LPELR – 40605 (CA) as follows.
“A trial Court is at liberty to base a conviction on a confessional statement even where such a confessional statement is retracted at the trial as in the instant case. This is so provided that the accused made the statement in circumstances which gave credibility to the content of the confession. See Ejinima v. The State (1991) 6 NWLR (pt. 200) Page 627.” Per NWOSU-IHEME, JCA.
See also Shegun Akinsuwa v. The State (2014) LPELR-23705 (CA) per DANJUMA, JCA.
In Bello Shurumo v. The State (2010) PLELR-3069 (SC) the apex Court held thus:
“After all if a confessional statement is satisfactory, a conviction found on it, as herein, will be sustained by an appellate Court. See Idowu v. The State (2000) 12 NWLR (pt. 680) 48. Section 27 (1) and (2) of the Evidence Act provides as follows: “27(1) confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence. (2) confession, if voluntary, are deemed to be relevant facts as against the persons who make them only.” From the above, to amount to an admission of guilt, it must be positive, direct and unequivocal as to the commission of the offence for which an accused is charged. All the elements pervade this matter. See again Patrick Njovens & Ors v. The State (1973) NNLR 120 (1973) 5 SC. 17.” Per FABIYI, JSC.
See also Idowu v. The State (2000) 12 NWLR (pt. 680) 48.
CASES CITED
Not Available
STATUTES REFERRED TO
Administration of Criminal Justice Law of Lagos State|Anambra State Administration of Criminal Justice Law, 2010 (ASACJ) Law,|Constitution of the Federal Republic of Nigeria 1999 (as amended)|Evidence Act|Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria, 2004|