BERENDE v. FRN

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Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant was arraigned before the Federal High Court, Abuja, along with one Saheed Oluremi Adewumi on a six-count charge, of various offences under the Terrorism (Prevention) Act, 2011, as amended.

The charges are as follows: Count 1 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December, 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by provision of material assistance and terrorist training together with others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1) (a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

Count 2 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Tehran in Iran had information which you know to be of material assistance about the terrorist training at Tehran in Iran and the subsequent spying of Chabbad house Lagos and AA Consulting Lagos and you failed to disclose such information to the law enforcement officers as soon as

reasonable practicable, and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

Count 3 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Iran and Dubai UAE received from AMIR, an Iran terrorist, (now at large) the sum of four thousand dollars ($4,000), three thousand, five hundred Euros (€3,500) and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to Section 13(1) (a) (i) of Terrorism (Prevention) Act 2011 as amended, and punishable under Section 13 of the same Act.

Count 4 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Lagos, Ilorin Nigeria, Tehran in Iran, agreed to recruit persons for AMIR, an Iranian Terrorist, now at large, and did recruit the following: Saheed Oluremi Adewumi, Sulaiman Olayinka Saka and Biliaminu Mohammed Yusuf and you therefore committed an offence punishable under Section 10 of Terrorism (Prevention) Act 2011 as amended. Count 5 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI

ADEWUMI, and others now at large between September 2011 and December 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing of information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of Terrorism (Prevention) Act 2011 as amended.

Count 6 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUMI, between September 2011 and December 2012 at Lagos, through the technological devices including camera supported the commission of terrorist act and thereby committed an offence punishable under Section 12 of Terrorism (Prevention) Act 2011 as amended.

They were arraigned on 28th August, 2013. They both pleaded not guilty to each of the six counts. The trial commenced on 22nd October, 2013. The first prosecution witness was one James Eneizi from the Department of State Services (DSS). He testified that the DSS received some intelligence reports that some Nigerians were recruited by Iranians and trained in acts of terrorism and returned to Nigeria to perpetrate such activities. He testified that the officer in charge of

counter terrorism directed that the report be investigated. It was in the process of the investigation that the appellant was arrested in Ilorin on 17th December, 2012. The second accused was arrested a week later. The home of the appellant was searched. Some media items, the sum of US$5,800 and other incriminating items were recovered. He was taken to the national headquarters of the DSS in Abuja.

PW1 testified that two officers were assigned to interview the suspects and to witness their statements, which they wrote themselves. He stated that the appellant made two statements on 8/2/13 and 25/2/13. He was brought before him and he confirmed that he made the statements voluntarily, he (PW1) endorsed them. At the point of tendering the statements in evidence, an objection was raised on the ground that the statements were not made voluntarily. A trial-within-trial was conducted to determine the truth or otherwise of the assertion.

In a considered ruling delivered on 22/10/2014, the Court held that the statements were made voluntarily and admitted them in evidence as Exhibits B and B1. The Court held, inter alia: “It is clear that one of the easy

ways of determining the voluntariness of a confessional statement said to have been made by an accused person is when the said statement is taken before a Superior Police Officer for confirmation and countersigning. It is my humble view that if the accused is objecting to the voluntariness of a confessional statement said to have been made by him, he would have ample opportunity during confirmation before a Superior Police Officer to object to its voluntariness.

In the case at hand, the 1st and 2nd accused persons have admitted being taken before TPW2 for the confirmation of their confessional statements, but none of them testified on objecting to the voluntariness of their statements before TPW2. Having regard to the pronouncement of the Supreme Court in the Alarape’s case, supra, the confirmation of the 1st and 2nd accused persons’ statements by TPW2 has made the determination of the voluntariness of their statement a lot more easier.

In conclusion, I am of the firm view that the two statements sought to be tendered have passed the test of veracity and voluntariness laid down by law and as stated by the Supreme Court in the cases of Alarape Vs The State and Akpan Vs The State, both supra.

…the said statements are hereby admitted as Exhibits B, B1 and C, C1 respectively.”

The appellant was dissatisfied with the ruling and appealed to the Court below. The appeal was unsuccessful, hence the instant appeal. The notice of appeal filed on 18/6/2009 but deemed filed on 8/10/20 contains 10 grounds of appeal. At the hearing of this appeal on 11th March, 2021, M.I. HANAFI ESQ., adopted and relied on the appellant’s brief filed on 20/11/2020 in urging the Court to allow the appeal. CHIOMA ONUEGBU ESQ., Principal State counsel, Federal Ministry of Justice, adopted and relied on the respondent’s brief filed on 4/2/21, in urging the Court to dismiss the appeal.

The appellant formulated 3 issues for determination, to wit: 1. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two extra-judicial statements of the appellant were made voluntarily and therefore admissible? (Grounds 1, 2, 4, 5, 6, 7, 8 and 9). 2. Whether the Court of appeal Justices were correct when they held that grounds 13, 17, 18 and 19 of the

grounds of appeal raise fresh issues not raised before the trial Court? (Ground 3). 3. Did the Court of appeal consider the issue raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice? (Ground 10).

The respondent raised a sole issue for consideration by this Court, namely: Whether this Court can re-evaluate the evidence before the trial Court or upturn the concurrent findings of the trial and lower Court in the circumstances of this case?

I am of the view that the appellant’s issue 1 is sufficient to resolve this appeal. I adopt it.

SOLE ISSUE Whether the Court of appeal was correct when it held that the appellant’s extra-judicial statements were voluntarily made?

In support of this issue, learned counsel referred to the characteristics of a confessional statement as provided in Sections 28 and 29 of the Evidence Act, 2011 and as defined in several decided authorities, including Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455 @467 H; State vs Gwangwan (2015) 13) 92 @ NWLR (Pt.1477) 600 @ 624F; Gbadamosi vs The State (1992) 9 NWLR

(Pt. 266) 465 @ 489 B – C; Iregu vs The State (2013) 12 NWLR (Pt.1367) 92 @ 117 G – H. Learned counsel submitted that the evidence of the respondent at the trial within trial (TWT) was to the effect that several interviews were conducted with the appellant from the time of his arrest on 18/12/2012. That he volunteered to make statements, which he did, after the cautionary words were administered to him on 8/2/2013 and 25/2/2013. That each time, after making the statements, he was taken before a Superior Police Officer (SPO) where he confirmed that they were voluntarily made.

It was further stated that the interview sessions were recorded on four DVDs, which were tendered in evidence during the TWT.

On the other hand, the appellant maintained that the statements were made under duress. It was his contention that he was made to undergo a lie-detector test during the oral interview using a polygraph machine. He alleged that the machine was used without his consent and therefore violated his fundamental right to remain silent as provided in Section 35 (2) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended. On the right of an

accused person to remain silent, he referred to Abadom Vs The State (1997) 1 NWLR (479) 1 @ 20 H; Mbele vs The State (1990) 4 NWLR (Pt.145) 484 @ 500 – 501 H – A; Utteh vs The State (1992) 2 NWLR (Pt.233) 257 @ 274 G. He reproduced the evidence of the appellant at pages 476 – 479 of the record as to what transpired during the use of the polygraph machine. He argued that the use of the machine deprived the appellant of the discretion to remain silent and therefore the two statements were tainted with an incurable virus.

He referred to a Canadian authority: R Vs Beland & Phillips (1987) 2 SCR 398, where the Canadian Supreme Court rejected the use of the results of a polygraph test conducted on the suspects.

Learned counsel argued that PW1’s denial of any knowledge of a polygraph test conducted on the appellant was feeble at best, having regard to the fact that PW2 testified that he had attended courses and training on the use of polygraph machines. He surmised that such training would be unnecessary if there was not intention to utilise it. He was of the opinion that the respondent ought to have invited the persons who conducted the test, named by the

appellant, to rebut his evidence. He submitted that in the absence of evidence in rebuttal, there was no reasonable ground to disbelieve the appellant’s testimony. He observed that the learned trial Judge did not make any reference to the conduct of the polygraph test in his ruling. He noted further that the Court below held that there was no nexus between the use of the polygraph machine and the making of the appellant’s statements. He insisted that the circumstances described by the appellant was proof that the confession was obtained by reason of threat or fear instilled in him.

Learned counsel also observed that the prosecution failed to tender the appellant’s extra-judicial statements which were being challenged, during the TWT. He submitted that they were tendered for identification only. He submitted further that the failure to tender the statements was fatal to the TWT proceedings. He submitted that the law is settled that the Court cannot rely on a document that is not properly before it. He argued that the observation by the lower Court, to the effect that neither party applied to tender the statements and that the appellant was at liberty to

apply for them to be admitted to enable him rebut the evidence of voluntariness, was erroneous, as it had the effect of shifting the burden of proof on him. He submitted that the burden of proof lies on the respondent. He referred to Gbadamosi Vs The State (supra); Iregu Vs The State (supra); Alabi Vs The State (1993) NWLR (Pt. 307) 511 @ 531A. He submitted that without the tendering of the statements, the Court was left with the ipsi dixit of the respondent’s witnesses that the appellant made any confessional statement at all.

In reaction to the finding of the lower Court that the appellant failed to utilise the opportunity of confirmation before PW2 to deny the voluntariness of his statement and that he also failed to use the opportunity of the TWT to do so, learned counsel argued that the appellant’s testimony at the TWT was an attack against his entire testimony. He noted that the appellant testified that PW2, the Chief Investigating Officer, interacted with him constantly throughout the investigation, threatened him and also promised him amnesty if he made a statement.

He contended that PW2 was an interested party and it would have made no

difference if he had mentioned that he was threatened. On whether the appellant challenged the evidence of confirmation proffered by PW2 at the lower Court, he referred to Grounds 14 and 15 of the notice of appeal before that Court.

Learned counsel argued that the appellant testified that he made a statement on the 23rd/24th of December, 2012 to the white men who conducted the polygraph test on him, which was not tendered by the respondent, despite being served with a subpoena to produce it. He submitted that where the accused person challenges the voluntariness of the confessional statements sought to be tendered, the prosecution has a duty to tender all the extra-judicial statements made by him, including those that are favourable to him. He referred to Okonkwo vs The State (1998) 8 NWLR (Pt.561) 210 @ 248.

He submitted that the failure to tender the statement was a breach of the appellant’s right to fair hearing.

As regards grounds 13, 17, 18 and 19 of the notice of appeal, learned counsel contended that the lower Court was wrong when it held that they raised fresh issues not raised before the trial Court. He argued that ground, 13, 17, 18 and

19 are grounds of law, which raised the issue of the validity of the TWT when the extra-judicial statements were not tendered, the failure to conduct separate TWT for each accused and the failure to separate the TWT in respect of each challenged statement. He noted that the issues were argued in the appellant’s written address at the conclusion of the TWT. He also submitted that ground 17 relates to the failure to tender the statement made on 24/12/2012, which the appellant had testified to.

He submitted further that the lower Court failed to consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal. He submitted that the Court has a duty to consider all the issues raised before it dispassionately and urged this Court to invoke the provisions of Section 22 of the Supreme Court Act, and revisit the issues.

In response, learned counsel for the respondent submitted that it is not the practice of this Court to interfere with concurrent findings of fact or to re-evaluate the evidence where no miscarriage of justice has been established. He referred to Igago Vs The State (1999) 12 SCNJ 140; Nkebisi vs The State (2010) ALL FWLR

(Pt. 521) 1407. He submitted that not only did the appellant fail to allege torture when taken before PW2 for confirmation of his statement, there were video recordings of the process of taking his statements, which were admitted in evidence as Exhibits TWT1 – TWT4. He submitted that the exhibits speak for themselves. He submitted further that while the prosecution’s case was consistent, the appellant, in a bid to deny his voluntary confession, gave conflicting evidence, which was properly evaluated and resolved against him.

He referred to the ruling of the learned trial Judge at pages 476 – 497 of the record, which was affirmed by the lower Court. He submitted that the allegation of torture was an afterthought.

Learned counsel submitted that the respondent did all that was required to establish the voluntariness of Exhibits B and B1, having regard to the provisions of Section 29 of the Evidence Act. He referred to Exhibits TWT1 – TWT4, the confirmation of the statements before PW2, as well as the uncontradicted testimonies of PW2 and PW3. He submitted that the statements were corroborated by the evidence of PW6, PW7 and PW8 in addition to admissions made

by the appellant in the course of his defence in the TWT.

He submitted that contrary to the appellant’s contention, the burden of proof of particular facts, as opposed to proof of guilt, rests on the party who alleges the existence of such facts. He submitted that appellant had the onus of proving torture, oppression and inducement in the making of his statements. He referred to Section 136 of the Evidence Act and Nwangbomu Vs The State (2001) ACLR 9. He argued that assuming without conceding that a polygraph test was conducted on the appellant, it does not detract from the voluntariness of the statements.

He noted that the appellant’s constitutional right to remain silent was never raised throughout the trial. He submitted that the allegations of threat, inducement, promise of amnesty, withholding of his eye medication and so on cannot avail him having regard to Section 31 of the Evidence Act. He also referred to Section 14 of the Act and the case of Haruna Vs A.G. Federation (2012) 49 NSCQR 1410 @ 1430; (2012) 9 NWLR (Pt.1306) 419 to the effect that what governs admissibility is relevancy and once the evidence is relevant, the Court is bound to admit it.

He submitted that the appellant’s counsel’s submissions regarding the legitimacy of a polygraph test and his reliance on the case of R. Vs Beland & Phillips (supra) are irrelevant, as it was not an issue before any of the lower Courts. He submitted that the onus was on the appellant to prove the existence of the statement allegedly made on the 23rd or 24th of December, 2012. He also submitted that as regards Exhibits B and B1, distinct evidence was led in respect of the circumstances in which they were obtained.

He urged the Court to resolve the appeal aginsta the appellant and to uphold the concurrent findings of the two lower Courts.

Sections 28, 29 (1), (2) and (5) and 31 of the Evidence Act provide: “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 that crime. 29. (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceeding and it is not excluded by the Court in pursuance of this Section. (2) If, in any proceeding, where the

prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section. (5) In this section, “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture. 31.

If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have

answered, whatever may have been the form of these questions or because he was not warned that he was not bound to make such statement and that evidence of it might be given.”

There is no dispute as to the fact that the appellant’s extra-judicial statements admitted in evidence as Exhibits B and B1 are confessional.

He challenged their admissibility on the ground that they were not made voluntarily but as a result of oppression, which took the form of: (a) The conduct of a polygraph test by some white men at the behest of the DSS, during which he was shouted at and threatened by the men conducting it; (b) Denial of his eye medication for the treatment of Glaucoma from 18th – 25th December, 2012, to coerce him into speaking the truth; (c) The threat that his wife and children would be brought to see him in the interrogation room during the test; (d) Leaving him in a cold room overnight; (e) Threats and intimidation by PW2 overnight.

Where it is alleged that a confessional statement was obtained under duress or as a result of threat or inducement, the Courts have developed the practice of conducting a trial within trial

(TWT) or mini trial to ascertain the voluntariness of the statement. The onus is on the prosecution to prove that it was freely and voluntarily made. See Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 5; Gbadamosi vs The State (1992) 9 NWLR (Pt.266) 465 @ 480: Effiong vs The State (1998) 8 NWLR (Pt.562) 362. On the other hand, where the accused outrightly disowns the confession and asserts that he did not make the statement at all, it would be admitted in evidence and considered alongside other evidence led at the trial to determine its probative value.

See Ikpasa vs Bendel State (1981) NSCC 300; Ikumonihan vs The State (2018) LPELR-44362 (SC) @ 7 – 9 B – A.

The question that then arises is: whether the prosecution discharged the onus of proving beyond reasonable doubt that the statements were voluntarily made?

The respondent called three witnesses at the TWT, namely TPW1, TPW2 and TPW3, while the appellant testified in his own defence. TPW1, James Simon, testified that he and another colleague, James Khanoba were directed by TPW2, Mr. James Eneizi, the Chief Investigator, to interview the appellant and his co-accused. He stated that the appellant

was cautioned and informed that he was not obliged to say anything but if he elected to do so, his statement would be recorded and could be used in evidence. He stated that he understood the caution and agreed to participate in the interview and that several sessions were conducted. He agreed to make a statement in writing, which he did on 8/2/13. He read over the statement and he (appellant) signed each page, while James Khanoba countersigned. He was taken before TPW2 where he confirmed that it was his statement and that he made it voluntarily. TPW2 endorsed it.

He volunteered another statement on 25/2/13 and it went through the same process of caution, countersignature and endorsement by TPW2.

TPW2, in his testimony stated that the appellant was brought before him on two separate occasions. On each occasion, he asked if he made the statements voluntarily and, on both occasions, he confirmed that he did. He therefore endorsed the statements as having been made voluntarily.

TPW3, Aliyu Usman, a technician attached to the Counter-Terrorism Department of the Department of State Services, testified that he recorded the interview sessions conducted with

the appellant and produced DVDs which he handed over to TPW2. The interviews were recorded in four parts. The footage was saved to the hard drive of the recording kit from which DVDs were produced. They were admitted in evidence and marked Exhibits TWT1 to TWT4. All the witnesses were thoroughly cross-examined.

The appellant, as part of his defence, gave copious evidence spanning pages 476-479, 480-483 of the record, regarding the circumstances in which a polygraph test was conducted on him by the white men between the 18th – 24th December 2012. He stated inter alia: “On 23/12/12, the man that called himself Zakariyya came to my cell in the morning. He put on my head one elaborate hood. All alone, it has been the one I was wearing in that cell. He led me into the interrogation room.

He told me there and then that my wife and two of my children were on their way and they want them to see me in this miserable condition. I pleaded to him not to allow that, but he left me in the room with annoyance. At the end of the day around 5pm, the test was concluded and they told me that I have failed the test. They also told me that my family are coming up to see

my condition. To avert my family seeing me, I must continue the next day, 24/12/12. I agreed that I rather continue the next day. My experience of the test on 24/12/12 was most stressful involving about four sessions. It was concluded around 6pm. In the end, the three of them came into the interrogation room to announce the result of the test. They asked me whether I thought I passed and I said yes. The doctor congratulated me and said I passed. The three of them in turn hugged me. The four of us sat on chairs and formed a close circuit. The team leader said if he were Mr.

President, you would go home today, but yet, don’t worry. We will write a report about you to the State Security Service and they will use it. In the end, they asked if I could work for them and I said I can’t. They persuaded further but I still said I can’t. That was how we parted with the white men on 24/12/12. The white people asked me to write a statement which I did and submitted it to them. I wrote the statement on 24/12/12 earlier and they even read it. … On 25/12/12, my eye drugs was (sic) handed over to me. …On 26/12/12, the officers moved me from that cell into another facility.”

It is evident from the testimony above that the alleged incidents of oppression and inducement referred to were in relation to the conduct of the polygraph test, which was concluded on 24/12/12. He stated that he received his eye medication the following day, 25/12/12. Furthermore, he testified that the whole exercise ended amicably on 24/12/12, when he was hugged by the white men and congratulated for passing the test. So impressed were they that they even tried to persuade him to work for them, which he declined.

He stated that he wrote a statement on 24/12/12, which he gave to the white men.

It must be stressed here that the purpose of the TWT conducted by the trial Court was to test the voluntariness of Exhibits B and B1, the statements made on 8/2/2013 and 25/2/2013 and no more. At the time the Court ordered for the conduct of the mini trial, the only evidence before the Court was the evidence of PW1 to the effect that the appellant volunteered the two statements to him. The alleged statement made to the white men on 24/12/2012, after the polygraph test, is not relevant for this purpose. The Court below

at pages 654 – 655 of the record held thus: “The confessional statements, whose voluntariness was disputed and was being tried and were at the end of the trial admitted as Exhibits B and B1 were made on 8/2/13 and on 25/2/13 respectively. There is nothing in the evidence showing any nexus between a polygraph test of the appellant that ended successfully in his favour on 24/12/2012, and the voluntariness of his confessions made about two months thereafter.

By his own testimony, when requested to make a written statement on the same 24/12/2012, he did so voluntarily, and if he was able to voluntarily make a written statement immediately after the conclusion of the polygraph test on 24/12/2012, then the argument that the same test that ended on 24/12/2012 in his favour did violate the voluntariness of his confessions on 8/2/2013, cannot be valid.

There is no evidence that shows how the polygraph test of to 24th December, 2012 deprived the appellant of the free will or discretion to make or not to make the confessions about two months later on 8/2/2013 and 25/2/2013. In any case, the issue here is not about the admissibility of the evidence of the

appellant while on the lie or truth detector machine and the results of the polygraph test or the written statement he made on 24/12/2012 following the conclusion of the test. The arguments about the admissibility of the polygraph test examination and result in evidence and the Canadian judicial decision in R V. Beland & Phillips (1987) 2 B, are therefore not relevant here.”

I am in complete agreement with their Lordships in this regard, particularly as there was no attempt by the prosecution to tender any polygraph test results in evidence.

Another vital issue is the evidence of TPW2, that on each occasion when he was brought before him, the appellant confirmed that he made his statements voluntarily. The procedure of taking a suspect who has made a confessional statement before a superior officer for confirmation is not a legal requirement. It is an administrative practice that has gained judicial approval, as an additional means of ensuring that a confessional statement is voluntary. See Smart Vs The State (2016) 1 – 2 SC (Pt.

II) 41; Ojegele vs The State (1988) LPELR-2370 (SC) @ 15 – 16 B – B; Hassan vs The State (2017) 5 NWLR (Pt.1557) 1.

It behoves any suspect who alleges that his statement was obtained under duress, to take advantage of the opportunity of being taken before a superior police officer, to complain. The appellant did not complain, rather, on both occasions he admitted that he made the statements voluntarily. Learned counsel for the appellant submitted that the appellant was not in a position to complain because the superior officer, TPW2, was complicit in his oppression. With due respect to him, his address, no matter how erudite, cannot be a substitute for evidence.

The Court below observed, and I agree with their Lordships, that if indeed, he had reasons why he felt compelled to confirm the voluntariness of his statements before TPW2, he had an opportunity during his defence in the TWT to explain his position to the Court. I also agree with their Lordships that the appellant’s confirmation that he made the statements voluntarily is consistent with the evidence of TPW1 and TPW2 during the TWT that the statements were voluntarily made. In my view, the affirmation by the Court below of the holding of the learned trial Judge in this regard cannot be faulted.

As observed earlier, digital recordings were made of the interview sessions and converted into DVDs, which were tendered in Court. The appellant has not raised any serious challenge to the recordings. The testimony of TPW3 remained unimpeached under cross-examination.

As regards the contention that the statements were not tendered during the TWT, the said statements were shown to and identified by TPW1 and TPW2. Both witnesses were copiously cross-examined by learned counsel for the appellant regarding the circumstances in which they were obtained. I am of the view that the issue should have been raised before cross-examination of the witnesses took place. Similarly, the contention that there ought to have been separate trials in respect of each statement and each accused, ought to have been raised at the trial.

Having acquiesced in the alleged wrong procedure, it was too late for the appellant to complain on appeal. See State Vs Onyeukwu (2004) 14 NWLR (Pt.893) 340. Where a party, aware of an irregularity, proceeded to take steps other than to challenge the defect in the proceedings, he would be presumed to have acquiesced, condoned or waived the irregularity or

defect and cannot later be heard to complain about it. See Saleh vs The State (2018) LPELR-46337 (SC) @ 18 B – F; Nnakwe vs The State (2013) LPELR-20941 (SC).

There are concurrent findings of fact by the two lower Courts that the statements, Exhibits B and B1 were voluntarily made. The appellant was unable to dislodge the convincing evidence of the prosecution witnesses that all necessary steps were taken to ensure the voluntariness of the confessions. The findings have not been shown to be perverse and I am not persuaded to interfere.

In conclusion, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower Court delivered on 15th April, 2019, affirming the ruling of the Federal High Court, Abuja delivered on 22nd October, 2014 admitting the appellant’s extra judicial statements in evidence as Exhibits B and B1 is affirmed. Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC and to underscore the support in the reasonings from which the decision came about. I shall make some remarks,

This appeal is against the judgment of the Court of appeal, Abuja Division or Court below or lower Court, Coram: A. Aboki, A. Jauro and E.A, Agim JJCA (as they were then).

The judgment was delivered on the 15th of April, 2019 and it emanated from the interlocutory ruling of the Federal High Court Abuja rendered on the 22nd of October, 2014 in a trial within trial conducted to determine the admissibility of the statement made by the appellant.

The charge against the accused now appellant read as follows:- COUNT 1 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by the provision of material assistance and terrorist training together with others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1)(a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

COUNT 2 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Tehran in Iran had information which you know to be of material assistance about

terrorist training at Tehran in Iran and the subsequent spying on Chabbad House Lagos and AA consulting and you failed to disclose such information to the law enforcement officers as soon as reasonably practicable and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

COUNT 3 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Iran and Dubai UAE received from Amir, an Iranian Terrorist (now at large) the sum of four thousand dollars three thousand Five Hundred Euros (3,500) and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to Section 13 (1)(a)(ii) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 13 of the same Act.

COUNT 4 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Lagos Ilorin and Tehran in Iran agreed to recruit persons for Amir, an Iranian Terrorist now at large and did recruit the following: Saheed Louremi Adewumi, Sulaiman Olayinka Saka and Biliaminu Muhammed Yusuf and you therefore committed

an offence punishable under Section 10 of the Terrorism (Prevention) Act 2011 as amended. COUNT 5 That you ABDULLAHI MUSTAPHA BERENDE and you Saheed Oluremi Adewumi and others now at large between September 2011 and December 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of the Terrorism (Prevention Act) 2011 as amended.

COUNT 6 That you ABDULLAHI MUSTAPHA BERENDE and you Saheed Oluremi Adewumi between September 2011 and December 2012 at Lagos through the technological devices including camera supported the commission of Terrorist Act and thereby committed an offence punishable under Section 12 of Terrorist (Prevention Act) 2011 as amended.

At the trial, the Appellant and one Saheed Oluremi Adewumi were charged for various acts of Terrorism under the Terrorism (Prevention) Act 2011 (as amended). The prosecution commenced his case on the 22nd of October 2013 by calling PW1, one James Ene Izi. In the course of the trial, the prosecution, on the

aforesaid 22nd of October, 2013, sought to tender two confessional statements of the Appellant. The Appellant raised an objection to the admissibility of the two statements under the provisions of Section 29 of the Evidence Act on the ground that the statements were not voluntarily made by the appellant.

A trial within-trial was therefore directed by the trial Court to determine the voluntariness of the statements. At the conclusion of the mini-trial, the learned trial judge in a considered ruling delivered on 22nd of October, 2014 held that the statements were voluntarily made and therefore admissible. The Appellant upon the leave of the trial Court granted on the 4-12-2014 at page 543 of the record, filed a notice of appeal dated 17th December, 2014 now copied at pages 570-579 of the record of this appeal.

The lower Court on the 15th of April, 2019 affirmed the decision of the trial Court on the admissibility of the Appellant’s statement, hence this appeal.

THE CASE OF THE PROSECUTION In proof of the voluntariness of the two statements, the prosecution called three witnesses, namely, PW1, PW2 and PW3. PW1 testified that he and one James Kanoba

took the statements of the Appellant when the Appellant agreed to write the statements. He obtained the statements dated 8th of February, 2013 and 25th of February, 2013 from the Appellant. He thereafter took the statements to PW2, a superior investigative officer, who confirmed the voluntariness of the statements and counter-signed the statements. It is the case of the prosecution that the Appellant elected to write the statements after several interviews had with him.

PW3 also testified to the effect that he undertook the video recording of the interview sessions of the Appellant and tendered Exhibits TWT1 to TWT4 which are the video DVDs of the interviews. The witnesses were duly cross-examined by the counsel for the Appellant.

THE APPELLANT’S CASE The Appellant testified on behalf of himself and gave evidence to the effect that the two statements were not made by him voluntarily. He gave evidence of various promises, inducements, threats suffered by him in the course of making the statements. In particular, he alleged that he was subjected to a polygraph test (by the use of a lie detecting machine) before the statements were taken. He tendered

Exhibit TWT5, a copy of the order of the Federal High Court directing his release which the prosecution refused to comply with. The Appellant was duly cross-examined by the prosecution.

THE ADDRESS At the conclusion of the hearing, the learned trial Judge directed that the parties should file written addresses in support of the evidence adduced. The address of the Appellant in the trial within trial is now at pages 383-402 while the prosecution’s reply is at pages 403-408.

The learned trial Judge dismissed the objection against the admissibility of the statements and admitted the two statements and had then marked as Exhibits B and B1.

Dissatisfied, the appellant appealed to the Court below which dismissed the appeal and further aggrieved the appellant has come to the Supreme Court on appeal.

On the 11th day of March, 2021 date of hearing, learned counsel for the appellant, M.I. Hanafi adopted the brief or argument filed on 20/11/2020 in which he nominated three issues for determination, viz:- i. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two

extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds of appeal. ii. Whether the Court of appeal justices were correct when they held that grounds 13, 17, 18, and 19 of the grounds of appeal raised fresh issues not raised before the trial Court and are incompetent. Ground 3. iii. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10.

The learned Deputy Director of Public Prosecution (DDPP) of the Federation, Chioma Onuegbu Esq., adopted the brief of argument of the respondent filed on 4/2/2021 and in it raised one issue as follows:- Whether this Court can re-evaluate the evidence before the trial Court or upon the concurrent findings of the trial and lower Court in the circumstances of this case.

I shall make use of the first issue crafted by the appellant for my purpose in the determination of this appeal. ISSUE NO. 1 Was the Court of appeal correct when it affirmed the ruling of the learned

trial judge that he prosecution proved that the two extra-judicial statements of the appellant were made voluntarily and therefore admissible.

For the appellant, it was contended that the two statements were not made voluntarily as the prosecution making the appellant undergo a polygraph test in the extraction of the statement was a violation of his right to choose to remain silent under Section 35(2) of the Constitution. He cited Abadom v The State (1997) 1 NWLR (pt.479) 1 at 20 etc.

Learned counsel for the appellant further stated that with the denial of the prosecution of the conduct of the polygraph test, the prosecution ought to have called the persons named by the appellant as the persons who conducted the test to rebut the appellant’s assertion. He cited State v Salawu (2011) 8 NWLR (pt. 1279) 580 at 605.

That since the evidence of the appellant on what transpired in the procuring of the statements remained unchallenged the version of involuntarily put up by the appellant should be accepted by the Court as the true state of what happened. For the appellant, it was submitted that the failure of the prosecution to tender the extra

judicial statements at the at the mini trial was fatal to the prosecution’s case. That the non-tendering of the statements at the trial-within-trial deprived the trial Court of competence to pronounce on the response to the centralised portions of the statement as a line of defence.

Learned counsel for the appellant stated that the respondent failed to produce and/or tender the statement of the 23rd of December, 2012 made by the appellant. That where the confession of an accused is challenged as in this case, the prosecution has a duty to produce all the statements made by an accused person so that the Court can take an informed decision on the issue of the confession. He cited Okonkwo v The State (1998) 8 NWLR (pt.561) 210 at 260.

That a miscarriage of justice was occasioned on the appellant by the prosecution failing to produce all the statements made by the appellant as it was for the prosecution to decide which statement to produce and tender and which to withhold.

Learned counsel for the appellant took of the Court below’s non-consideration of all the issues raised and make pronouncement on them which led to a miscarriage of justice.

He cited Ojogbue v Nnubia (1972) All NLR 664 at 669 etc. That the period between the 1st statement and the 2nd statement of the appellant is about 17 days and there was no explanation from the prosecution on the gap in taking the two confessions.

In response, learned counsel for the respondent stated that it is the duty of a trial Court to evaluate the evidence as in this case and the appellate Court cannot interfere with the findings of the lower Court where there was no miscarriage of justice. He cited Igago v State (1999) 12 SCNJ 140 etc.

That in the instant case, nothing was done to render Exhibits B and B1 unreliable instead everything was regularly done. That the burden was on the appellant who alleged torture and oppression to prove same since the prosecution led credible evidence to the contrary. He referred to Nwangbomu v State (2001) ACLR 9.

That even if the polygraph test was deployed on the appellant, it would not render involuntary statements voluntarily made. The crux of the dispute over the statements of the appellant is the voluntariness or otherwise of the extra-judicial statements. While the appellant contends they were not

voluntarily made, the respondent submits to the contrary and it was this opposing positions that brought about the trial within trial conducted by the Court of trial to ascertain what the time position was. See Ikemson v The State (1989) 3 NWLR (pt.110) 455 at 467; Re: Osakwe (1994) 2 NWLR (pt. 326) 273 at 287; State v Gwangwan (2015) 13 NWLR (pt. 1477) 600 at 624.

The point has to be emphasized that even though it is the appellant that disputes the voluntariness of the statement the burden of proving that the statement was voluntarily made by the accused/appellant rests on the prosecution and the standard of proof is beyond reasonable doubt. See Gbadamosi v The State (1992) 9 NWLR (pt. 266) 465 at 489; Iregbu v The State (2013) 12 NWLR (pt. 1367) 92 at 117.

The respondent called three witnesses who testified that the confession was made voluntarily made. The respondent’s case is that they had several interviews with the appellant from the 18th December, 2012 when he was arrested and on the 8th of February, 2013 and the appellant elected to make a statement under caution. That again on the 25th February, 2013, the appellant also agreed to make a

statement after the respondent applied the word of caution and after the making of the statements appellant was taken to PW2, a superior officer who confirmed from the appellant that the statements were on each occasion made voluntarily. Also that the statement were recorded in four DVDs which were tendered and admitted as Exhibits TWT1 – TWT4.

Disputing the narration of the prosecution, the appellant stated that he was subjected to a polygraph test to detect the truth and this was without appellant’s consent contrary to Section 35 (2) of the Constitution of the Federal Republic of Nigeria 1999 and led to the lack of voluntariness of the statements. Also that he was tortured. I shall quote excerpts of the testimony of the appellant at the mini trial thus:- “I was led into the interrogation room. At the interrogation room, two officers of the State Security Services came in and introduced themselves.

One said he is Zakariyya (sic Zakari) and the other said he is John. They collected my personal data and they went out. After about five minutes, they came back. They came in with two white men and the leader of the two white men introduced himself as

George. Zakariyya (Zakari) and John advised me to cooperate fully with them. Zakariyya (sic Zakari) and John left leaving the two white men. …The interrogation continued in the same way the next day. There and then, they have to run a test on me for me to be vindicated. They said it is a “LIE DECTECTING MACHINE” and the white people said they will carry out the test on me. I resisted as I didn’t want the test on me. Because I fear the hazards on my person. They eventually brought the Lie Detecting Machine to the interrogation room.

Another white man simply referred to as “Doctor” accompanied the machine. They asked me to sit on a chair. On the chair, there was a plastic and several cord wires runs through it. As I said, there was another plastic plate for the two feet. There was a strap on my arm. There were twisted cords for lungs with metal at the two ends of the cord placed on the chest and hooked at the back. Another twisted cord was placed on the upper part of my abdomen and hooked at the back. There were other three long plastic rings with wire suspended at the end. They were inserted into three middle fingers.

All of these cords have suspended

wires. All the wires were directed to another box. From the box, there was another cord connected to a lap (sic laptop). The first two left the interrogation room leaving the Doctor and myself. The Doctor told me that they brought milk and water. That I would be needing the milk and the water. They told me that I should be hundred percent sure of the answer I gave. Either Yes of No. They said I should not move any limb throughout the test as well as fingers and toes that I must not move my head or clear my throat and I must look straight unto the wall. That my eyes should not move.

Questions on my possible involvement on terror activities were asked, whether there was any sum of money kept somewhere. My encounter with the white people lasted seven days. The effect of the test is that on each session my energy is sapped. The Doctor started persuading me to take the water and milk and the two other white men came and joined the Doctor in persuading me to take the milk and the water. I insisted that I was not taking and said for me to continue, I must take the milk and the water to continue with the test. I reminded them each day of my drug. The interrogation is

of two sessions every day. Morning session starts from 9.am till about 12.pm and they allow me time to pray, each day, they continue to tell me that I failed the test. The interview conducted on 21/12/2021, because it lasted for 24hours. Whereby my hands were handcuffed, chained on the legs and the two white men were alternating themselves on that day until the night. They allowed me do my night prayers and immediately thereafter, the interrogation continued.

On the first part of the night that is, around 7.30pm, they lowered to the coolest level the air-condition and left me like that till next morning to around 6a.m. I was tied as such with my hands on the back and chains on the leg and asked to sleep on an armless chair until 24th of December, 2012. Right from 18/12/2012, I felt completely spent. I do complain to them that I cannot resist the air condition and they will switch it off. On that day, that is 21/12/2012, it was a deliberate attempt to traumatise me further.

I have a strong feeling that the two white men are Israelites because the three of them speak Arabic and English. The Arabic was not a classic Arabic and it is a dialectic and they said to me,

you don’t like us, and everything they were asking me had to do with Israel companies. Their English accent not American. I am familiar with Arabs in English, Iraq and some middle east countries and the dialect is not the same. I speak Arabic myself, I have had encounter with Israel leaders in conference in the Republic of Iran.”

The angle taken by the appellant to show the involuntariness of the statements is the fact that the trial-within-trial, the two statements were merely identified and not tendered. The Court below dealt effectively on the matter when it held thus: “there is no doubt that it is better practice for the confessional statement whose voluntariness is being tried to be part of the evidence during the trial within trial of its voluntariness.

It is obvious from the evidence, written address and the ruling in the trial within trial and the arguments in the Appellant’s brief that the contents of the confessional statements were exhaustively considered by the parties and the Court in determining their voluntariness. The prosecution had applied to tender them in evidence through PW1 in the main trial when the defence objected to their

admissibility on the ground that they were not voluntarily made. Both sides presented their evidence during the trial within trial. Non applied that the confessions be tendered in evidence during trial. There was no dispute as to the content of the statements made by the Appellant. The dispute about the voluntariness of the confessions was based on the procedure of making those statements. The dispute was therefore determined on the basis of the evidence of the facts of the circumstance and procedure of making those statements.

If the Appellant considered that it was necessary to tender the confessions as part of the evidence in the trial within trial, to enable it rebut the evidence of the prosecution on the voluntariness of the conclusion (sic confession) he was at liberty to apply that it be so admitted for the purpose of the trial within trial. It did not do so.”

The trial Court had held that the appellant did not allege any torture when taken before TPW2 (the superior officer) and TPW3 who recorded the interview sessions did not corroborate appellant’s claims of torture, more so as the whole process of taking the appellant’s statements was recorded

in Exhibits TWT1 – TWT4 which speak for themselves and against the appellant. The trial Court found the case of the prosecution consistent and corroborative and the allegation of torture was an afterthought and the confessional statements admitted as Exhibits B and B1. This in line with Section 29 of the Evidence Act 2011 (as amended) which is the basis of the trial-within-trial.

An area that has to be cleared in the proof of the voluntariness of an extra-judicial statement or that it was involuntarily made, is that while the burden to establish that the statement was voluntarily made rests on the prosecution, the burden of proving any particular fact such as the allegation of torture and oppression regarding the confessional statement lies on the party so asserting which in this case is the appellant. See Nwangbomu v State (2001) ACLR 9.

That a polygraph test was administered on the appellant did not detract from the voluntariness of the statement made. The same effect ensuing inspite of the statements being based on answers to a list or form of questions over 50 days of arrest, uncertainties as to if and how cautionary words were applied especially

when such allegations remained unconfirmed or corroborated. Those happenings do not automatically translate to threat or inducement as to fatally affect the voluntariness of the statement.

It is so because Section 31 of the Evidence Act 2011 (as amended) provides as follows: “If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promised of secrecy, or inconsequence of a deception practiced on the defendant for the purpose of obtaining it or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given.” It needs be said that Section 14 of the Evidence Act 2011 (as amended) stipulates to the effect that even where an evidence was obtained improperly or in consequence of an impropriety or a contraction of the law, it remains admissible unless the Court is of the opinion that the desirability of admitting such evidence is outweighed by the undesirability of admitting same.

See Haruna v A.G. (2012) 49 NSCQR 1410 at 1430.

Indeed, the concurrent findings of the two Courts below over the voluntarily made statements in this case will not be interfered with since they did not stem from a miscarriage of justice or there was a misapplication of the law, substantive or procedural.

The statements were properly admitted by the trial Court and the Court below had no reason to hold to the contrary hence I see no basis to deviate. The appeal lacks merit and I dismiss it. I abide by the consequential orders made.

JOHN INYANG OKORO, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Kudirat Motonmori kekere-Ekun, JSC, and I wholly agree with his reasons and conclusion reached therein.

In the main, the issue in this appeal is whether the Appellant’s confessional statements admitted as Exhibits B and B1 were voluntarily made. It is in evidence that in an effort to ascertain the voluntariness of the said statements and in line with the law, a trial-within-trial was conducted after which the learned trial judge being satisfied of their veracity, admitted them in evidence. The tests for determining the voluntariness of a

confessional statement have been consistently applied by this Court in a plethora of cases as follows: (1) Whether there is anything outside the confession to show that it is true. (2) Whether the statement is corroborated, no matter how slight (3) Whether the facts contained therein, so far as can be tested, are true. (4) Whether the accused person had the opportunity of committing the offence. (5) Whether the confession of the accused person was possible. (6) Whether the confession was consistent with other facts which have been ascertained and proved in the matter. See R v.

Sykes (1913) 8 CAR 233 at 236, Ikpasa v. Attorney General of Bendel State (1981) 9 SC 7; Akpan v. State (1992) 6 NWLR (pt. 248) 439 at 460; Alarape v State (2001) 5 NWLR (pt 705) 28 at 98 – 99.

Incidentally, the Appellant’s quarrel in this appeal is not against the truthfulness of the Confessional Statements but against the voluntariness thereof. He contends that having been subjected to a lie-detector test which was concluded on 24/12/2012, about a month before he made his said confessional statements on 8/2/2013 and 25/2/2013, he was compelled

to say the truth. That he could not deviate from the statement obtained from him with the use of polygraph machine which he contends is a violation of his constitutional right to remain silent under Section 35 (2) of the 1999 Constitution.

My Lords, the law is trite that a confession otherwise relevant does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he needed to have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and the evidence of it might be given. See Section 31 of the Evidence Act, 2011.

In the instant case, it is undoubted that the Judges rules was more than complied with by the police before obtaining statements admitted as Exhibits B and B1. I agree with the finding of the learned Justices at the Court below that there is no nexus whatsoever between the Appellant’s statement made under the alleged polygraph examination and the Appellant’s confessional

statements admitted as evidence in Court as no recording obtainable from the polygraph machine was tendered in evidence. In any event, even if there was a lie detector test administered on the Appellant, it does not detract from the truthfulness of his confessional statements. I hold the view, and strongly so, that the Appellant’s confessional statements in Exhibits B and B1 were properly admitted in evidence.

From all I have said above and the fuller reasons adumbrated in the lead judgment, this appeal is devoid of merit and I also dismiss it. I abide by the consequential orders in the lead judgment. Appeal dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: The instant appeal has emanated from the Judgment of the Court of appeal, Abuja Judicial Division, delivered on April 15, 2019 in appeal No. CA/A/1004C/2018. By the judgment in question, the Court below, Coram A. Aboki, A. Jauro, and E. A. Agim, JJCA (as the learned Lords then were) dismissed the Appellant’s appeal against the interlocutory ruling of the trial Federal High Court Abuja delivered on October 22, 2014.

BACKGROUND FACTS The circumstances surrounding the Appellant’s

travails thereby leading to the instant appeal are traceable to December 17, 2012. That is indeed the day the Appellant was arrested by some operatives of the State Security Services (SSS) at his residence No. 80 Agbo-Oba Road, Ilorin, Kwara State.

In the course of investigation by the SSS operatives, the Appellant’s GSM handsets and laptop computer were exploited and analysed. The Appellant was suspected to have been involved in Iran State sponsored terrorism.

Further investigation led to the arrest of two other suspects in the persons of Saheed Oluremi Adewumi (2nd Accused person) and Suleiman Saka, both of whom were allegedly recruited by the Appellant to collect operational intelligence on Israeli and American interests in Lagos State and in other parts of Nigeria.

Eventually, the Appellant was arraigned before the trial High Court Abuja, along with Saheed Oluremi Adewumi upon a six count charge, viz: COUNT 1 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by provision of material assistance and terrorist training together with

others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1) (a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

COUNT 2 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran in Iran had information which you know to be of material assistance about the terrorist training at Tehran in Iran and the subsequent spying on Chabbad house Lagos and AA Consulting Lagos and you failed to disclose such information to the law enforcement officers as soon as reasonably practicable, and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

COUNT 3 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran and Dubai UAE received from AMIR an Iran terrorist, (now at large) the sum of four thousand dollars ($4,000), three thousand, five hundred Euros (€3,500), and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to

Section 13(1) of Terrorism (Prevention) Act 2011 as amended, and punishable under Section 13 of the same Act. COUNT 4 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Lagos, Ilorin Nigeria, Tehran in Iran, agreed to recruit persons for AMIR an Iranian terrorist, now at large and did recruit the following: Saheed Oluremi Adewunmi, Sulaiman Olayinka Saka and Billiaminu Mohammed Yusuf and therefore committed an offence punishable under Section 10 of Terrorism (Prevention) Act 2011 as amended.

COUNT 5 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUNMI, and others now at large between September, 2011 and December, 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing of information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of Terrorism (Prevention) Act 2011 as amended. COUNT 6 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUNMI, between September, 2011 and December, 2012 at Lagos, through the technological devices

including camera, supported the commission of terrorism act and thereby committed an offence punishable under Section 12 of Terrorism (Prevention) Act 2011 as amended.

Not unnaturally, both the Appellant and the co-accused person thereof pleaded not guilty to the six count charge in question. The charge proceeded to trial on 28/10/2013. In the course of the trial, the prosecution sought to tender two confessional statements of the Appellant. The Appellant’s learned counsel vehemently objected to the admissibility of the said statements on the ground that they were not voluntarily made by the Appellant. Thus prompting the trial Court to conduct a trial-within-trial.

At the conclusion of which the Court delivered a ruling on 22/10/2014 to the conclusive effect: In conclusion, I am of the firm view that the two statements sought to be tendered have passed the test of veracity and voluntariness laid down by law as stated by the Supreme Court in the cases of ALARAPE VS. STATE and AKPAN VS STATE, both supra. On the whole, I am satisfied that the prosecution has proved beyond reasonable doubt the requirement of voluntariness of the confessional

statement made by the 1st and 2nd accused persons. In consequence of the above holding, the said statements are hereby admitted as Exhibits B, B1 and C and C1 respectively.

Whereupon, the Appellant appealed to the Court below vide a notice of appeal filed on 17/12/2014 with leave of Court. The Court below on its part delivered the vexed judgment on 15/04/2019, to the following conclusive effect: There is no doubt that the trial Court determined the voluntariness of the appellant’s confessions by relying on the part of the judgment of the Supreme Court in Alarape & Ors vs. The State (2001) 2 SC 14, that lays down the tests for determining the truthfulness of a confession… On the whole this appeal fails as it lacks merit. It is accordingly dismissed.

The ruling of the Federal High Court delivered in charge No. FHC/ABJ/CR/128/2013 on 24/10/20114 by A. R. Mohammed J. C, hereby affirmed and upheld.

The extant notice of appeal dated 13/06/2019 is predicated upon a total of 10 grounds. At long last, when the appeal came up on 17/03/2021, the learned counsel addressed this Court and adopted the argument contained in the respective

briefs thereof. Thus warranting the Court to reserve the judgment to today.

The Appellant’s brief of argument, settled by M. I. Hanafi Esq., on 20/11/2020, spans a total of 26 pages. Most particularly at page 4 of the brief, three issues have been couched: i. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds (sic – notice) of appeal. ii.

Whether the Court of appeal Justices were correct when they held that grounds 13, 17, 18 and 19 of the grounds (Sic- notice) of appeal raised fresh issues not raised before the trial Court and are incompetent. Ground 3. iii. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds (Sic: notice) of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10.

Contrariwise, the Respondent’s brief settled by Chioma Onuegbu Esq., (DDPP) on 04/02/2021, spans a total of 8 pages. At page 2 of the said brief, a sole issue has been raised:

WHETHER THIS COURT CAN RE-EVALUATE THE EVIDENCE BEFORE THE TRIAL COURT OR UPTURN THE CONCURRENT FINDINGS OF THE TRIAL AND LOWER COURT(S) IN THE CIRCUMSTANCES OF THIS CASE.

As copiously alluded to above, of the three issues raised by the Appellant in the said brief thereof, the issue No. 1 is most instructive: “(Whether) the Court of appeal was correct when it held that the Appellants extra-judicial statements were voluntarily made and therefore admissible.”

The issue no. 1 in question is predicated upon grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the notice of appeal filed on 18/06/2019.

By the issue no. 1 in question, this Court has once again been invited to determine the imperative applicability of the provisions of Sections 28 and 29 of the Evidence Act, 2011 vis-a- vis the trial-within-trial Practice and Procedure.

Invariably, the extant provisions of Sections 28, 29 and 31 of the Evidence Act (Supra) are to the following effect: 28. A confession is an admission made at time by a person charged with a crime, stating or suggesting the inference that he committed that crime. 29. (1) In any proceeding,

a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this Section (2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence. (5) In this section “oppression” includes; torture, inhuman or degrading treatment, and the use of threat of violence whether or not amounting to torture. 31.

If the confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in a consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk or because it was made in answer to questions which he need not have answered, whatever may have been the form of

these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given. What is more, it is equally provided under Section 140 of the Evidence Act (Supra): “140.

When a fact is especially within the knowledge of any person, the burden of proving that fact, is upon him.” By virtue of the combined effect of the foregoing provisions of Sections 28, 29, 31 and 140 of the Evidence Act (Supra), the burden of proving beyond reasonable doubt, that a confessional statement was voluntarily made by the accused person squarely rests upon the prosecution. See ADEKANKI VS. THE STATE (1966) ANLR 46 @ 49; EMEKA VS. THE STATE (2001) NWLR (Pt. 734) 666 @ 681.

It is trite that in any given trial, where a confessional statement is sought to be tendered by the prosecution, the accused person (Defendant) has the right to object to the admissibility of the confession in either of two distinct ways. First, the accused may retract the confession or deny ever making same, at all. Second, the accused may opt to admit having made or signed the statement but claim however, that he did not do so voluntarily.

Where the accused person denies ever writing, or making the confessional statement at all, the confession is still admissible in evidence, albeit the trial Court must at the conclusion of the trial determine the veracity and probative value of the said confession. See IKPASA VS.

THE STATE (1981) NSCC 300, where in this Court aptly held: It is a well established practice in this country that where on the production of a confession, it is challenged on the ground that an accused did not make it at all, the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial Judge himself.

Whatever objection be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration. See also OGUNYE VS. THE STATE (1999) NWLR (Pt. 604) 548 @ 570; EHOT VS. THE STATE (1993) NWLR (Pt. 290) 6440. However, with regard to the second instance, where the accused admits outrightly that he made and/or signed the confessional statement but

claims that he did not do so voluntarily, it then behooves the trial Court to first and foremost determine the admissibility (or otherwise) of the confession by holding a mini trial; what is procedurally known as trial-within-trial. See OBIDIOZO VS. THE STATE (1987) NSCC 1239 @ 1246; SAIDU VS THE STATE (1982) NSCC 70 @ 80, et al.

It was equally held by this Court in OGUDO VS THE STATE (2012) ALL FWLR (Pt. 629) 1111 @ 1143 Paragraph A: Where a statement by an accused person is tendered in evidence and objection made to it on the ground that it was not made voluntarily, the Judge should first hear evidence on the point from both parties and make a ruling on the admissibility or otherwise of the document before receiving or rejecting it in evidence.

In the instant case, at page 11 (Paragraph 3.23) of the Appellant’s brief, the learned counsel has vehemently argued: 3.23 Another interesting aspect of the Appellant’s case is the issue of the failure of the Respondent to tender the two extra Judicial statements of the Appellant at the trial-within-trial in proof of its voluntariness. The Respondent’s counsel at the trial within trial,

produced the two confessional statements of the Appellant and ensured that PW1 and PW2 identified the statements. In other words, the statement were tendered for identification only. See pages 454 line 4 and 463 line 19 of the record of appeal. The Respondent’s counsel therefore did not tender the statements as exhibits in the trial within trial.

It is not at all controversial, that in the course of the trial-within-trial (TWT), the Respondent called three witnesses who testified as TPW1, TPW2 and TPW3, respectively. Contrariwise, the Appellant testified as the sole witness thereof. See pages 450 – 546 of the record. The ruling of the trial Court regarding the TWT (pages 557 – 569 of the Record) is to the conclusive effect: On the whole, I am satisfied that the prosecution has proved beyond reasonable doubt the requirement of voluntariness of the confessional statement made by the 1st and 2nd Accused persons.

In consequential of the above holding, the said statements are hereby admitted as Exhibits B1 and C respectively.

Against the backdrop of the evidence adduced by the Respondent and the Appellant in the course of the TWT, there is no

doubt that the Respondent had discharged the burden of proof beyond reasonable doubt that the confessional statements credited to the Appellant and duly admitted as Exhibits B and B1 were voluntarily made by the Appellant. Thus, I am unable to appreciate let alone uphold the Appellant’s misconceived argument to the effect that: “In other words, the statement (sic) were tendered for identification only … The Respondent’s counsel therefore did not tender the statements as exhibits in the trial within trial.”

The foregoing submission of the Appellant’s learned counsel is, with possible deference, misconceived and highly preposterous, to say the least!

Cherishingly, there is every cogent reason for me to uphold the finding of the Court below (pages 677 – 678 of the Record) to the conclusive effect: Beyond the reproduction of the test lay (sic) down by the Supreme Court in Alarape & Ors Vs. The State for determine the veracity of a confession, the trial Court was focused on determining the voluntariness of the confessions and directed its mind to the facts established by the evidence of the prosecution which establish that

voluntariness. It was not influence by its belief in the veracity of the confession in holding that they were voluntarily made.

The foregoing conclusive findings by the Court below is in my considered view, cogent, unassailable and duly supported by the evidence on record.

In the circumstances, the issue no. 1 ought to be and same is resolved against the Appellant.

As aptly postulated herein above, the rule governing the trial-within-trial procedure operates exclusively regarding cases questioning the voluntariness or otherwise of confessions. Undoubtedly, the rule does not apply to questions of weight to be attached to admissible evidence admitted. Unarguably, the question of weight of evidence is always determined, as in the instant case, at the end of the trial in regard to the totality of the evidence before the trial Court. This trite fundamental doctrine, has over the years been reiterated by this Court in plethora of authorities. See R. VS.

NWIGBOKE (1959) 4 FSCC 101 @ 102; IGBINEWKA OWIE VS. THE STATE (1985) 4 SC (Pt. 2) 1; (1985) NWLR (Pt. 3) 470, (1985) LPELR – 2847 (SC) Per Karibi- Whyte, JSC @ 24 – 24 Paragraphs F – A.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Most particularly, in the case of EGBOGHONOME VS. THE STATE (2001) 2 ACLR 262, this Court made it categorically clear, that the law is most unequivocal to the effect that the inconsistency rule would not be applied to exclude a confessional statement duly proved. Indeed, it is incumbent upon the trial Court to assess the veracity and quality (or otherwise) of the alleged confessional statement notwithstanding the retraction thereof by the accused person. As aptly held by this Court in EGBOGHONOME VS.

THE STATE (Supra): I am now convinced by the forceful submissions of Uwaifo, JCA correctly stated the law. He was right that the decision of this Court in Oladejo’s case was a departure from the long established principle relating to consideration of confession and its retraction. Confession and testing any of the accused person shall be evaluated and assessed by the trial Judge together with the totality of the evidence in order to reach a just decision. Per Bello, CJN @ 293 – 294. Again, in UBIERHO VS.

THE STATE (2005) All FWLR (Pt. 254) 804, this Court aptly held: “Now, it is settled law that the fact that an accused has retracted a

confessional statement does not mean that the Court cannot act upon it.” Per Oguntade, JSC @ 819.

In the circumstances, having effectively resolved the issue no. 1 against the Appellant, the appeal resultantly fails and same ought to be dismissed.

Hence, against the backdrop of the foregoing postulation, and the well detailed reasoning and conclusion reached in the lead judgment just delivered by my learned brother, the Hon. Justice M.K.O Kekere-Ekun, JSC, I too hereby dismiss the instant appeal. Accordingly, the judgment of the Court of appeal, Abuja Judicial Division, delivered on April 15, 2019 in appeal No. CA/A/1004C/2018, thereby affirming the ruling of the Federal High Court, Abuja delivered on October 22, 2014, is hereby affirmed. Appeal stands dismissed.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: The Federal High Court in its ruling delivered on the 22nd of October, 2014 dismissed the objection against the admissibility of the confessional statements of the Appellant (Exhibits B and B1).

The Appellant was dissatisfied with the said ruling of the learned trial judge and consequently appealed against the decision vide notice of

appeal filed on 17th of December, 2014. The lower Court in a judgment delivered on the 15th of April, 2019 dismissed the Appellant’s appeal for lack of merit.

Still dissatisfied with the judgment of the lower Court, the Appellant appealed to this Court by filing a notice of appeal containing 10 grounds.

The following three issues were formulated for determination in the Appellant’s brief of argument filed on 20/11/2020 1. Was the Court of appeal correct when it affirmed the ruling of the learned trial judge that the prosecution proved that the two extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds of appeal. 2. Whether the Court of appeal justices were correct when they held that grounds 13, 17, 18 and 19 of the grounds of appeal raised fresh issues not raised before the trial Court and are incompetent.

Ground 3. 3. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10

In the Respondent brief of argument filed 4/2/2021, a sole issue was couched as follows- “Whether this Court can re-evaluate the evidence before the trial Court or upturn the concurrent findings of the trial and lower Court in the circumstances of this case?”

I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun JSC and I agree that the appeal lacks merit and should be dismissed.

The Appellant’s grouse is that there was a breach of Section 35(2) of the 1999 Constitution wherein he was forced to take a polygraph test against his will. He further stated that the taking of the polygraph test affected or influenced his narration on the confessional statement as he was also coerced into writing the confessional statement which was merely identified and was not tendered during the trial within trial.

In dealing with the question of the confessional statement not being tendered but merely identified, I will adopt the position of the learned trial Judge where he stated that it was not the content of the confessional statement that was in dispute but the voluntariness of the statement.

The Appellant in his testimony stated that the polygraph test on him using a lie detector started on the 18/12/2012 and ended 24/12/2012 and the result was announced to him by the doctor who administered the test and that he passed the test. The confessional statements admitted in evidence as Exhibit B and B1 were made on 8/2/2013 and 25/2/2013 respectively.

As accurately put by the lower Court, there is nothing in evidence to show that there was a nexus between the polygraph test and the confessional statements, the Appellant failed to show how a polygraph test affected his confessional statement made two months after and also how the polygraph test deprived him of free will after two months. This line of argument by the Appellant indeed lacks substance. The concurrent findings of the two lower Courts are unshakable and devoid of any element of perverseness.

For this and the more comprehensive reasons given in the leading Judgment, I also hold that this appeal is devoid of merit and it is accordingly dismissed. Appeal dismissed.

Appearances

M.I. HANAFI, ESQ., with him, D. T. NWACHUKWU, ESQ., O.A. OMOLASE, ESQ. and Y.A. YUSSUF, ESQ. – For Appellant

AND

CHIOMA ONUEGBU, ESQ. (D.D.P.P.F), with him, CHINWE OBASI, ESQ. (Principal State Counsel), ANIKAN O. EKONG (Principal State Counsel) Fed. Ministry of Justice – For Respondent