IBEME v. THE STATE

CHRISTOPHER CHUKWUMA-ENEH, J.S.C. (Delivering the Leading Judgment): In this appeal the appellant along with 2 (two) others have been arraigned on a three-count charge of conspiracy, forgery and attempting to cheat before the trial High Court. The prosecution at the trial has sought to tender me appellant’s confessional statements through the investigating police officer (I.P.O.). The appellant through his counsel has objected to the admissibility of the statements alleging that the statements are not voluntary as they have been obtained by use of force exerted by the witness (i.e. I.P.O.) on the appellant. A trial within trial therefore has to be conducted to determine the admissibility of the confessional statements in a word as regards their voluntariness. The prosecution has called three (3) witnesses to close its case. The appellant excluding himself called two witnesses to testify for the defence and has tendered one exhibit, for the defence to close its case. The trial court in overruling the objection has held as follows:
“…The accused persons have merely retracted the statements and this being the case the statements are admissible in evidence – Nwabuonu vs. The State (supra) 299. And has proceeded to admit the appellant’s statements marked as Exhibits H1 and H2.
Dissatisfied with the decision the appellant has appealed unsuccessfully to the court below hence he has appealed to this court by a notice of appeal filed on 5/1/2010 containing four grounds of appeal from which he has identified 3 issues for determination in this appeal as contained in his brief of argument as follows:
“1. Whether the lower court was right in affirming the decision of the trial without considering the evidence of the appellant and his witnesses as to the voluntariness or otherwise of the appellant’s statement to the police.
2. Whether the lower court was correct in holding that the appellant retracted his statement to the police in the trial within-trial.
3. Whether the learned justices of the court of Appeal were right in affirming or holding that the trial court properly and adequately evaluated the evidence adduced on record in reaching their decision to affirm the judgment of the trial court.”
The respondent on its part has raised a sole issue for determination as follows:
“Whether the court below was right in affirming the decision of the trial court.”
The appellant in considering issues 1 and 2 together in his brief of argument submits that the aim of the trial within trial in this case is to determine the voluntariness of the appellant’s statements marked as Exhibits H1 and H2 for purposes of admitting them in evidence and that it is the prosecution s duty to prove the statements. See: Obidiozo & ors. v. The State (1987) 2 NSCC-1239; (1987) 4 NWLR (Pt.67) 748 at 760 – 71, DAWA v- The State 8-9 SC.236, R. v. Igwe (1960) SCNTR 158, Queen v- Eguabor (1962) 1 ANLR 287, Maiguduri v. The State (1969) 1 NMLR.14, Saidu v. The State (1982) 1 NSCC.7, Gbadamosi v. The State (1992) 9 NWLR 465 and Adekanbi v. Attorney General, western Nigeria (1966) 1 ANIR 47.
He has opined that the trial court wrongly has held that the appellant has retracted his statements and so that there is nothing else to determine in the trial within trial as misconceived. And has also attacked the finding that the appellant has retracted his statements as not having been made in vacuo as per the record. Even although he concedes (rightly, if I may interpolate here) that where a confessional statement is not being challenged on the ground of voluntariness but on the ground that the accused has never made it, all the same such a statement is receivable in evidence where it is sought to be tendered by the prosecution without conducting a trial within trial. See: sections 28 and 29 of the Evidence Act 2011 and Nwachukwu v. The State (20002) 2 NWLR Pt.751) 366 at 391 B – C. He strongly maintains that the primary duty before the trial court in these proceedings is narrowed to one question of whether or not the appellant’s statements are voluntary and that by the nature of the cause it does not admit of any other determination (as has been wrongly decided in the said Ruling) by holding to the effect that the statements have been retracted as that question even moreso could not have arisen from the evidence adduced before the trial court. See Chief Obisi v. Chief of Naval Staff (2002) (Pt.751) 400 at 418. And thus that the trial court’s finding in the Ruling as affirmed by the lower court has also failed to consider the use of force to extract the statements from the appellant, which is a factor in constituting the trial within trial. And finally, that to so hold in the trial within trial is clearly not supported by the evidence as per the record so also is the finding that the statements have been retracted as it is premature. Besides, such a finding ought to have been reached (on the question of retraction of his statements) after a full trial of the case against the background of the totality of the evidence adduced before the trial court.
He has urged the court to resolve the 1st and 2nd issues taken together here in favour of the appellant.
The respondent in its brief of argument has correctly submitted that where the challenge of voluntariness of an accused confessional statement vis-a-vis his testimony in a trial within trial is hinged on an outright denial of the statement sought to be tendered by the prosecution as here that it amounts to a retraction of the statement and that such a statement is otherwise admissible and reliable without the necessity of conducting a trial within trial (i.e. a mini trial) as its voluntariness is not in issue. See: Odeh v. FRN (2008) AFWLR (Pt.424) 1590 at 1618 paragraph 6. And further that the question of denial of the accused’s confessional statements in other words in retracting the statements. – Exhibits H1 & H2 has arisen from the proper evaluation of the appellant’s case in the trial within trial; as nowhere in his testimony at the inquiry has he conceded making the statements – Exhibits H1 and H2. In that regard all that the appellant according to him has done, has been to recopy the statements from a copy given to him by the I.P.O. In short, the appellant has not owned up the statements as his even as he has said he has been forced to recopy them from a document handed to him by the I.P.O. He submits that the circumstances of the case does not call for a trial within trial as the issue of voluntariness of the statements cannot be in issue on the facts of the case. See: Nwabuonu v. The State (supra), Ejnima v. The State (1991) 6 NWLR (Pt.200) 627 at 651 – F-G.