CORAM

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PARTIES

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IJEOMA ONU

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THE STATE OF LAGOS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant was arraigned before the High Court of Lagos State on a one Court charge of stealing by clerks and servants in Charge No. ID/81C/2004: The State vs. Ijeoma Onu. The Appellant pleaded not guilty and the matter went to trial. In the course of the testimony of the prosecution witness, the Prosecution sought to tender a Deed of Assignment executed between the Appellant and the Complainant. The Appellant took an objection to the admissibility of the said Deed of Assignment on the ground that she did not execute the same voluntarily. Consequent upon this objection, the lower Court conducted a voir dire, at the end of which it held in its Ruling, that the Deed of Assignment was voluntarily executed by the Appellant and admitted the same in evidence. The Appellant, being dissatisfied with the Ruling has appealed against the same to this Court.

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HELD

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Appeal Dismissed

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ISSUES

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Whether having regards to the evidence placed before the lower Court, the Court was right to have admitted the Deed of Assignment in evidence.

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RATIONES DECIDENDI

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CONFESSION –WHETHER CONFESSION CAN BE MADE IN A DEED OF ASSIGNMENT

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‘The stipulations of Section 28 of the Evidence Act is pertinent in this regard. It provides as follows:
28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
It is when there has been a confession within the context of Section 28 of the Evidence Act that the stipulations of Section 29 of the Evidence Act would kick in; in order to ascertain if the confession is relevant and if it would be admissible in evidence against the background of Section 29 (2) (5) of the Evidence Act , id est, whether the confession was made voluntarily. It is limpid from Section 28 of the Evidence Act, that contrary to the Respondents contention, the confession is not solely applicable to one made in the course of investigation. By the stipulation, the confession can be made at any time and it need not be in an extra-judicial statement made to the Police in the course of investigation. There is nothing in Section 28 of the Evidence Act which circumscribes the manner in which a confession can be made or which stipulates that it cannot be made in a Deed or in any other form other than an extra-judicial statement made to the Police in the course of investigation. In Gbadamosi Vs. The State (1991) 6 NWLR (PT 196) 182, it was held that the word confess, the verb variant of the noun confession in general parlance means to acknowledge fully, especially something which is wrong. It also means to own up or admit, again particularly a wrong. Legally, the word confession means an admission of an offence by an accused person. It means an acknowledgment of crime by an accused person. See also Saidu Vs. The State (1982) 4 SC 41, Akpan Vs. The State (1990) 7 NWLR (PT 160) 101, Nwachukwu Vs. The State (2007) LPELR (8075) 1 at 36, Ugboji Vs. The State (2017) LPELR (43427) 1 at 32 and Idoko Vs. The State (2017) LPELR (48002) 1 at 26.
It follows that if indeed there is any admission in the Deed of Assignment stating or suggesting the inference that the Appellant committed the offence of stealing with which she was charged, then it is a confession and it is immaterial that the said admission is contained in a Deed of Assignment.

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EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO – PRIMARY DUTY OF A JUDGE IN EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO

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“It is rudimentary law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial. Equally, hornbook law is that where the Court of trial has justifiably evaluated the evidence and appraised the facts, an appellate Court will not interfere unless the findings arrived at the Court of trial are perverse and not supported by the evidence on record. A trial Judge is a peculiar adjudicator. Of all Judges the heaviest burden and responsibility of deciding a case rests with him. He normally hears a case by receiving evidence both oral and documentary from witnesses who appear before him in Court, are asked questions and cross examined. In the process, he engages himself to see, listen to and watch them testify. Not only that, his feelings and impressions are tested from time to time upon one issue or another when, apart from listening, he watches, he takes mental note of the performance of witnesses, their demeanour in the witness box, in particular how they react to questioning and the manner they give answers. Quite often, it is this that helps the trial Judge as to who and what to believe. The witnesses are telling him what he was not aware of before, the circumstances in which it happened and in respect of which both sides claim that their evidence represents the truth; and the trial Judge will have to take a decision. So if the trial Judge is up to the demands of his duty, he will continue to size up the witnesses in their oral testimonies. Is a particular witness lying or prevaricating or just slow in nature, or has he a peculiar idiosyncrasy? That is for the trial Judge to determine. The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation.

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FINDINGS OF FACTS – CATERGORIES OF FINDINGS OF FACTS

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“In VAB Petroleum INC. vs. Momah (2013) LPELR (19770) 1 at 19-21, the apex Court held:
In a trial, there are generally two sets of findings of facts: A finding of fact may be based on the credibility of witnesses or may be informed from other facts proved before the trial Court. Where a witness gives direct evidence that is the evidence of the facts in issue as seen, heard or perceived by any other sense by him…The finding of the trial Court on such evidence depends on whether or not it believes that witness (credibility of the witness). Such a finding on such evidence is a primary finding of fact, i.e. the way the witness testifies, his demeanour in the box tells much of his credibility. The trial Court that saw and heard the witness is in the best position to assess his credibility and make findings of primary facts. But, where on the other hand, other facts are put in evidence from which the facts in issue can be inferred, or where a witness gave circumstantial evidence, the finding of the trial Court on the facts in issue depends on inference. This is a secondary finding of fact as it is not based on the credibility of the witness but on logical process of inference. In the formers case, i.e. primary findings of fact, an appeal Court should always be loathe in interfering with such a finding as it did not have the privilege of seeing, hearing or observing the demeanour of the witness… In the latters case, i.e. where findings of fact are secondary, i.e. drawn from inferences, an Appeal Court is in as good position as a Court of trial to do this. It can differ from the trial Court.

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FINDINGS OF FACT – WHETHER AN APPELLATE COURT CAN EMBARK ON FINDINGS OF FACTS ON THE QUESTION OF CREDIBILITY OF A WITNESS

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“The lower Court from the above pericope arrived at its primary finding of facts, not by inference but on credibility of the witnesses. In Olakunle vs. The State (2017) LPELR (48000) 1 at 24-25 , Eko, JSC stated:
This Court, being a second tier appellate Court, is not in a position to contradict the findings of fact of the trial Court based on available evidence because the appellate Court does not have the advantage and the opportunity of observing the demeanour of witnesses as they testified… it becomes worse for the appellate Court when the findings of facts turns on the question of credibility of the witnesses.
See also Williams vs. The State (1992) LPELR (3492) 1 at 12, The State vs. Nnolim (1994) LPELR (3222) 1 at 11, Saleh vs. The State (2018) LPELR (46337) 1 at 20 and Ikpa vs. The State (2017) LPELR (42590) 1 at 63-64.”

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FINDINGS OF FACTS – WHETHER A TRIAL COURT IS OBLIGATED TO GIVE REASONS THAT INFORMED ITS BELIEF

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“It is correct as submitted by the Appellant that there is nothing magical in the use of the expression I believe by a Court. Without a doubt, the lower Court stated that it believed the prosecution witnesses, but it duly gave the reasons for preferring to believe the prosecution witnesses, firstly because the Appellant made corrections to the Deed of Assignment before she signed it and secondly because she had her people around her to make an informed decision before she signed; in consequence of which it held that the Appellant was not compelled to sign the Deed of Assignment. In Nwoke vs. Okere (1994) LPELR (2122) 1 at 24-25, Iguh, JSC asseverated:
It cannot be over-emphasised that a trial Court ought to give reasons for believing or not believing a witness. It is certainly not enough for a trial Judge to simply say I believe or I do not believe a witness. He ought to state the reasons for believing or not believing each particular witness.
See also The State vs. Ajie (2000) LPELR (3211) 1 at 15 and Lamidi vs. The State (2016) LPELR (41320) 1 at 41. In the circumstances, the primary finding of facts made by the lower Court cannot be faulted merely on account of the fact that it held that it did not believe the Appellant, since it duly stated the reasons that informed its belief”.

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FINDINGS OF FACTS BY TRIAL COURT – ATTITUDE OF APPELLATE COURT TO FINDINGS OF FACTS BASED ON THE CREDIBILITY OF WITNESS BY A TRIAL COURT

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“In strict fidelity to the precepts of the law, I am loathe to interfere with the primary findings of facts made by the lower Court which is based on the credibility of witness: FRN vs. Dairo (2015) LPELR (24303) 1 at 48-49, Adelumola vs. The State (1988) LPELR (119) 1, FRN vs. Borisade (2015) LPELR (24301) 1 at 21-22, Lasisi vs. The State (2013) 1 NWLR (PT 1358) 74 at 96-97 and Rabiu vs. The State (2015) LPELR (40759) 1 at 14-15 . The reasons stated by the lower Court for disbelieving the Appellant are borne out by the evidence on record. The primary findings of facts made in that regard are not perverse. There is nothing to controvert the rebuttable presumption that the findings and conclusions of the lower Court are correct. See Sani vs. The State (2017) LPELR (43475) 1 at 26, Sugh vs. The State (1988) 1 NWLR (PT 77) 475, Ewugba vs. The State (2017) LPELR (43833) 1 at 43-45 and Ikem vs. The State (1985) LPELR(1472) 1 at 12 .

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RECORD OF COURT – DUTY OF COURT TO MAKE USE OF DOCUMENTS IN ITS RECORD

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“It is abecedarian law that a Court is entitled to make use of documents in its Records in order to arrive at a just decision: Eromosele vs. FRN (2018) LPELR (43851) 1 at 13, PDP vs. Ezeonwuka (2017) LPELR (42563) 1 at 77 and Suswam vs. FRN (2020) LPELR (49524) 1 at 15-18.”

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CONFESSION – WHETHER CONFESSION IS RESTRICTED TO SOLELY EXTRA JUDICIAL STATEMENT

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“The provision of Section 28 of the Evidence Act, 2011, the cynosure of the appeal, is rebellious to ambiguity. The clear provision defines confession, which cannot be pigeonholed within the lean perimeter of extra-judicial statement. In point of fact, in the eyes of the law, its tentacles embrace parol admission. It Is elementary law, that the primary duty/function of a Judex, of any cadre, is jus dicere, not jus dare, id est, to declare what the law is and not to promulgate, see Dahiru V. State (2018) 14 NWLR (Pt. 1640) 567.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Administration of Criminal Justice Law of Lagos State|Evidence Act 2011|

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