MUONEKE v. STATE (2022)

MUONEKE v. STATE

(2022)LCN/17161(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/OW/161C/2021

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

UCHENNA MUONEKE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE A DEFENDANT DESIRES TO OBJECT TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT IN A CRIMINAL PROCEEDINGS

For purposes of elucidation, I hereby reproduce the relevant paragraph of the said Practice Direction.
Paragraph 3: 1 “where a defendant is desirous of objecting to the admissibility of a confessional statement in any criminal proceedings on the ground that same was not obtained voluntarily, it shall not later than 14 days after the service on him of the charge or information or at such later date as the Court may permit cause to be filed and served on the prosecution a notice as in Form 1 that he intends to object to the admissibility of the confessional statement in the course of the trial”
Paragraph 4:3 has this to say:
“The parties shall thereafter include legal argument with respect to the admissibility or otherwise of the confessional statement in their respective final addresses, and the Court shall on the final judgment in the matter, include its ruling or the admissibility or otherwise of the said confessional statement (underlined for emphasis).”
It is my view that the “Judges Rules” and the conduct of trial within trial are just rules of practice not of law, and the Court can make rules in Practice Direction to regulate the conduct of trial within trial.
GBADAMOSI V. STATE (1992) 9 NWLR (Part 266) at 465. ELIYA AND ANOR. V. STATE (2020) LPELR 50318 (CA). Decidedly trial within trial procedure, (as earlier held in this judgment and at the expense of repetition) is not backed by any law, or statutory provisions nor is it rooted in the Evidence Act. It is only a relic carried over from the Common Law Criminal Justice System of Jury trials.
The Court below was right to have opted to have its decision wait until the time for judgment to decide to admit or not to admit it. The Court can at the time of writing judgment, even expunge a wrongly admitted evidence. This issue is resolved in favour of the Respondent and against the Appellant. PER PEMU, JC.A.

CONDITIONS THAT MUST BE SATISFIED BEFORE A COURT CAN REFER A CASE TO THE COURT OF APPEAL FOR DETERMINATION

Decidedly there are conditions before a Court can refer a case to the Court of Appeal for determination. These conditions are that:
(a) The question must involve an interpretation or application of the constitution.
(b) The question for reference must involve a substantive question of law, and it is the duty of the Court making the reference to be satisfied that the questions are indeed substantial.
(c) The Court making the reference to the High Court must refrain from giving its opinion.
(d) The question as to the interpretation or application of the constitution, must arise in the proceedings in the High Court in connection with an issue before the Court making the reference.
AUDU V. A.G. FEDERATION AND ANOR. (2012) LPELR–15527 (SC). From the above, it is clear that the discretionary power of the Court comes to play, if the Court is of the opinion that there is no substantial issue of law, there is no need stating a case to the Court of Appeal for determination. PER PEMU, JC.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Aba Judicial Division delivered on the 8th day of March, 2021 in Charge No: A/29C/2020 but substituted with A/84c/2020.

SYNOPSIS OF FACTS
The Appellant and one other were charged for the offences of conspiracy, kidnapping and unlawful possession of offensive weapons, and were arraigned before a High Court sitting in Aba.

They pleaded not guilty to the charge. On the 2nd of November, 2020, a fresh information with a three count charge was filed. The defendant pleaded not guilty to the charges of kidnapping and unlawful possession of offensive weapons. The prosecution called his witnesses PW1 and PW2 respectively.

In the cause of prosecuting the case and as PW2, Inspector Anthony Samuel of the Nigeria Police Force with the Inspector General of Police, Intelligence Response Team, Force Headquarters Abuja, testified on the 30th of November, 2020, the prosecutor sought to tender through the witness, the confessional statement of the Defendants.

Learned counsel for the Appellant objected on the ground that the said statement were not obtained voluntarily. This is because their counsel was not present during the making of the said statement and that the defendants were not videotaped in the cause of making the statement.

The Defence counsel argued that the Practice Direction issued by the Chief Judge of Abia State made on the 3rd day of June, 2020, which directed that evidence in trial within trial should be taken alongside the substantive case, and in the address of counsel, while ruling will be taken at the time of judgment for speedy dispensation of criminal justice was unconstitutional and contrary to the provisions of the Evidence Act, 2011.

The prosecution responded that the absence of video or a lawyer while making statements does not affect admissibility and that the Chief Judge by virtue of the practice direction did not abolish trial within trial but rearranged it.

The Court below in her ruling on the 8th day of March, 2021 stated that the issue before him was simply whether the extra-judicial statement made by the Defendant could be admitted in evidence, and not the legality or otherwise of the Chief Judge’s Practice direction.

The Court below admitted the confessional statement; and reserved ruling on the probative value to the time of judgment.

The trial Court in her ruling also refused to accept the invitation to state a case for the Court of Appeal as raised by the counsel to the Appellant.
The Appellant, is dissatisfied with the ruling of the Court below and appealed same.

Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 18th of March, 2021 with five (5) grounds of Appeal pages 59–64 of the Record of Appeal.

The Appellant filed his brief of argument on the 8th of July, 2021. It is settled by David Onyeike, Esq. The Respondent filed his brief of argument on the 26th of January, 2022, but was deemed filed on the 27th of January, 2022. It is settled by Chief Uche Ihediwa SAN.

The Appellant’s Reply Brief was filed on the 21st of February, 2022, but deemed filed on the 24th of February, 2022.
On the 24th day of February, 2022 the parties adopted their respective briefs of argument.

The Appellants distilled five (5) issues for determination viz:
“1. whether the learned trial Judge erred in admitting the Appellant’s confessional statement without trial within trial (Ground 1).
2. Whether the Chief Judge of Abia State has the power to enact a law on trial within trial being an issue of evidence, within the framework of the 1999 Constitution on the Federal Republic of Nigeria (Ground 2).
3. Whether the learned trial Judge was right to admit the confessional statement of the Appellant without inquiring into whether or not whether the alleged confessional statement was obtained in compliance with Section 27(2) of the Abia State Administration of Criminal Justice Law 2017 (Ground 3).
4. Whether the trial Judge was right to hold that the Abia State Practice Direction dated 3rd June, 2020 made by the Chief Judge of Abia State cannot be challenged in these proceedings but by a separate suit filed against the Attorney-General. (Ground 4.)
5. Whether the learned trial Judge was right to refuse to refer the question of the propriety of enactment of the Practice Direction made by the Chief Judge to the Court of Appeal for determination.

The Respondent distilled five (5) issues for determination viz:

“1. Whether the learned trial Judge was right to reserve ruling on the voluntariness of the Appellant’s confessional statement till the time of delivery of judgment.
2. Whether the Chief Judge of Abia State can validly issue Practice Direction relating to the conduct of Criminal Trials in the High Court of Abia State.
3. Whether the learned trial Judge was right to admit the confessional statement of the Appellant without inquiring into whether or not the alleged confessional statement was obtained in compliance with Section 27 (2) of the Abia State Administration of Criminal Justice Law.
4. Whether the learned trial Judge was right to hold that the Abia State Practice Direction dated 3rd, June, 2020 made by the Chief Judge of Abia State can only be validly challenged in a suit where the Attorney-General of Abia State is a party.
5. Whether the learned trial Judge was right to refuse to refer the question of the competence of the Chief Judge of Abia State to issue the Practice Direction to the Court of Appeal for determination”.

The Issues proffered by the Respondent are essentially on adoption of the issues proffered by the Appellant. I shall therefore consider this appeal based on the Appellant’s issues for determination.

ISSUE NO. 1
The Appellant submits that the Court refused the invitation by the Appellant to conduct a trial within trial to determine the admissibility of the confessional statement within the framework of Section 28 of the Evidence Act, 2011 citing STATE V. GAMBO (2019) 2 NWLR (Pt. 1655) 117, ADELANI V. THE STATE (2018) 5 NWLR (Pt. 1611) 18, LASE V. THE STATE (2018) 3 NWLR (Pt. 1607) 502; MUHAMMED V. THE STATE (2019) 6 NWLR (Pt. 1688) 203; ADEBANJO V. STATE (2019) 13 NWLR (Pt. 1688) 121.

Submits that the determination of the voluntaries of a confessional statement before its admission is a necessary concomitant of Sections 28 and 29 (1) and (2) of the Evidence Act, 2011- citing OGU V. C.O.P (2018) 8 NWLR (Pt. 1620) 134, 153–154. That it was wrong not to hold the trial within trial.

ISSUE NO. 2:
Submits the issue of trial within trial is an issue of evidence, the practice is dictated by the provisions of Sections 28 and 29 of the Evidence Act 2011.

Submits that under the 1999 Constitution, evidence on the Exclusive legislative list is reserved for the National Assembly. Therefore the State legislature or a functionary of a State Government cannot purport to legislate on a matter on the exclusive legislative list. That the sharing arrangement in our federalist system of government is operated through the Exclusive and concurrent list.

Citing Section 4 (7) of the Constitution of the Federal Republic of Nigeria, He submits that by the arrangement therein a state functionary cannot veer into the domain of the National Assembly that therefore, any legislation or matters of evidence is reserved for the National Assembly. The Chief Judge was therefore, wrong to have made a practice Direction in relation to matters of evidence. Submit that the Practice Direction is null and void.

ISSUE NO. 3:
Submits that by virtue of the provisions of Section 17 (2) of the Abia State Administration of Criminal Directive Law, 2017, the commencement date of the statute is 22nd December 2017.

Submits that the statute commenced on the 22nd of December, 2017, therefore that the state was obliged to comply with the provisions of Section 27 (2) of the law in taking the statement of the 1st Defendant. But it did not do so in this case. That in the absence of that, it was impossible to determine whether the prosecution complied with the law before the statement was obtained. Urges Court to hold that the confessional statement is prima facie inadmissible. He cites the case of CHARLES V. FRN (2018) 13 NWLR (Pt. 1635) 50 at 71.

ISSUE NO. 4:
Submits that rather for the Court below to rule on the objection that the Practice Direction is a necessary warrant for the Court to refuse to conduct trial within trial, the Court abdicated its judicial responsibility.

ISSUE NO. 5:
Submits that once a party to the proceedings applies for reference of question of the propriety of an enactment to the Court of Appeal, the provisions of the law is that the Court shall refer the case as a matter of right – citing Section 295(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

That the first question sought to be referred to the Court of Appeal has to do with the interpretation or application of the Constitution. That in the instant case, the question which the Appellant relied on is that the Practice Direction made by the Chief Judge is unconstitutional.

RESOLUTION
From records, the Court below did not refuse to admit the Appellant’s confessional statement in trial within trial. That fact is misconceived. What the Court below did was to rely on the Practice Direction issued by the Chief Judge of the Abia State High Court.
In the High Court, there is what is referred to as the “JUDGES RULES”, a procedural mode of verifying the voluntaries or otherwise of an accused confessional statement. The purpose of the Practice Direction according to the Respondent is to expedite the trial of Criminal cases, by eliminating the delay occasioned in the proceedings, by stopping the substantive proceeding and conducting a trial within trial, when the Defendant raises objection to admissibility of a confessional statement on the ground that same was not obtained voluntarily.
For purposes of elucidation, I hereby reproduce the relevant paragraph of the said Practice Direction.
Paragraph 3: 1 “where a defendant is desirous of objecting to the admissibility of a confessional statement in any criminal proceedings on the ground that same was not obtained voluntarily, it shall not later than 14 days after the service on him of the charge or information or at such later date as the Court may permit cause to be filed and served on the prosecution a notice as in Form 1 that he intends to object to the admissibility of the confessional statement in the course of the trial”
Paragraph 4:3 has this to say:
“The parties shall thereafter include legal argument with respect to the admissibility or otherwise of the confessional statement in their respective final addresses, and the Court shall on the final judgment in the matter, include its ruling or the admissibility or otherwise of the said confessional statement (underlined for emphasis).”
It is my view that the “Judges Rules” and the conduct of trial within trial are just rules of practice not of law, and the Court can make rules in Practice Direction to regulate the conduct of trial within trial.
GBADAMOSI V. STATE (1992) 9 NWLR (Part 266) at 465. ELIYA AND ANOR. V. STATE (2020) LPELR 50318 (CA). Decidedly trial within trial procedure, (as earlier held in this judgment and at the expense of repetition) is not backed by any law, or statutory provisions nor is it rooted in the Evidence Act. It is only a relic carried over from the Common Law Criminal Justice System of Jury trials.
The Court below was right to have opted to have its decision wait until the time for judgment to decide to admit or not to admit it. The Court can at the time of writing judgment, even expunge a wrongly admitted evidence. This issue is resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 2:
The answer to this, is that pursuant to the provision of Section 274 of the 1999 Constitution of the Federal Republic of Nigeria, the Chief Judge of a State is empowered to make Rules for regulating the Practice and Procedure of the High Court of a State. Having earlier held, that trial within trial is procedural, the Chief Judge of Abia State can make Practice Direction to regulate same.

The answer to the issue is in the affirmative. This issue is resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 3:
The issue of whether the learned trial Judge was right to admit the confessional statement of the Appellant, without inquiring into whether or not the alleged confessional statement was obtained in compliance with Section 27(2) of the Abia State Administration of Criminal Justice Law, is another matter.
The question is whether failure to do so would affect the admissibility of the statement. On issues of admissibility, RELEVANCE is the watchword.
I am of the view, that failure to comply with the provisions of the law does not affect the admissibility of the statement. As rightly argued by the Respondent, it is the Evidence Act that covers the admissibility of the confessional statement, and not any State Law. I am of the view, that the admissibility of confessional statement in Nigeria is governed by Sections 28 and 29 of the Evidence Act.

The answer, to this issue, is in the affirmative. This issue is resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 4:
As earlier observed the Practice Direction is purely procedural. It is not a statutory provision. More so, the issue before the Court is not the legality or constitutionally of the Practice Direction. It therefore, cannot be challenged now.

This issue is misconceived and same is resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 5:
Decidedly there are conditions before a Court can refer a case to the Court of Appeal for determination. These conditions are that:
(a) The question must involve an interpretation or application of the constitution.
(b) The question for reference must involve a substantive question of law, and it is the duty of the Court making the reference to be satisfied that the questions are indeed substantial.
(c) The Court making the reference to the High Court must refrain from giving its opinion.
(d) The question as to the interpretation or application of the constitution, must arise in the proceedings in the High Court in connection with an issue before the Court making the reference.
AUDU V. A.G. FEDERATION AND ANOR. (2012) LPELR–15527 (SC). From the above, it is clear that the discretionary power of the Court comes to play, if the Court is of the opinion that there is no substantial issue of law, there is no need stating a case to the Court of Appeal for determination.

None of the four enumerated conditions obtained in this circumstances. This issue is therefore, misconceived and same is resolved in favour of the Respondent and against the Appellant.

The appeal fails and same is hereby dismissed. The ruling of the High Court of Abia State, Aba Division in Charge NO: A/84c/2020 delivered on the 8th of March 2021 is accordingly hereby affirmed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where issues leading to this appeal have been articulated. I agree with the reasoning and conclusions of my learned brother and also dismiss this appeal as lacking in merit.
The ruling of the lower Court is accordingly affirmed.

IBRAHIM WAKILI JAURO, J.C.A.: I have read before now, the judgment in draft just delivered by my learned brother RITA N. PEMU, JCA (Presiding Justice). I agree entirely with his Lordship that the ruling of the lower Court cannot be faulted. The appeal is unmeritorious and must fail. It is hereby dismissed. I abide by the order for costs.