IORVER TERVER & ORS V. THE STATE
(2013)LCN/6071(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/MKD/87C/2012
RATIO
“It is the satisfaction of the Trial Judge and not the accused person’s satisfaction that shall so determine the admissibility. See JOHN VS STATE 2011 (PART 1278) 18 NWLR 353 AT 385 PART 4. Wherein Ngwuta, JSC stated thus: – “On the admissibility of exhibits 3 and 5, once the trial court is satisfied that the confessional statement was freely and voluntarily made unambiguous, true direct and positive with reference to the offence changed, it is admissible in evidence.” Per DANJUMA J.C.A.
“Appeals are fought on the basis of the facts and law and not on mere arguments. See ASHEIK VS. BORNU STATE GOVERNMENT 2012 (PT 1304) 9 NWLR 1 AT 31 PAGE G. Furthermore, it should be appreciated that an appeal is not a new trial where parties can raise fresh issues at will and argue them on appeal rather than address them squarely at the trial.” Per DANJUMA J.C.A.
“The law is that where a confessional statement is denied or retracted, it is still admissible in evidence and the only thing left to be decided is the weight to attach to it by the court. The court has the discretion. See JOHN VS. IKE 2011 18 NWLR 353; IKEMSON VS. STATE (1989) 3 NWLR (PT.110) 455; SALAWU VS. STATE (1971) 1 NMLR 249; IDAMINE VS. STATE (1996) 3 NWLR PT. 438 PAGE 53.” Per DANJUMA J.C.A.
“The law in this respect as governing trial within trial and such statement have been so clearly stated by the Supreme Court in EKE VS. STATE (PART 1235) 2011 PAGE 589 AT 609, wherein Rhodes-Vivour, JSC succinctly state the position of the law thus:- “My lords, where a confessional statement is challenged on the ground that the accused did not make the statement the statement should be admitted since its admissibility is not affected. That the statement was made voluntarily or otherwise does not arise for consideration. But where a confessional statement is objected to on the ground that it was not voluntary, that is to say the accused person says he was forced or induced to make it then a trial within trial is held. See QUEEN VS. IGWE (1960) 5 FSC P. 55 reported IGWE VS. QUEEN (1960) SCNLR 158; IKPASA VS. A-G. BENDEL STATE (1981) NSCC VOL. 12 P.300. The trial within trial is designed to determine if the confession was voluntary. At the trial the accused person must give evidence before witnesses called by aim give evidence. At the end of the trial within trial, if the court is satisfied that the confessional statement was not voluntary the said statement would not be admissible in evidence as an exhibit and the Trial Judge should rule accordingly…(omitted). A confessional statement found not to have been voluntary is worthless.” From the decision aforequoted, it is therefore clear that it is only when the Trial Judge is not satisfied that the confessional statement was voluntary after a trial within trial that the statement would be held to be worthless. When it is worthless, it can be expunged from the record if it had been wrongly admitted. This will be at the Judgment stage.” Per DANJUMA J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. IORVER TERVER
2. TAVERSHIMA WEVE
3. KELVIN ALIAS NANA Appellant(s)
AND
THE STATE Respondent(s)
MOHAMMED A. DANJUMA J.C.A. (Delivering the Leading Judgment) This is an appeal against the ruling of F.N. Kpojime, sitting at the High Court of Benue State, Makurdi Judicial Division where at one Iorver Terver being one of the 3 accused persons standing trial for the offences of conspiracy, rape and armed robbery by his learned counsel had strenuously taken an objection to the admissibility of his extra Judicial Statement sought to be tendered in evidence. The objection was to the effect that the said statement was obtained by force and after torture and inducement and was not therefore voluntarily made. It was also argued that the said statement was in fact recorded by the investigating police officer and the appellant forced by torture and promise to append his signature thereto. The said statement was, however, admitted in evidence as Exhibit ‘8’ after the Trial Judge had ordered and conducted a trial within trial where at witnesses testified for the parties, including the appellant himself. The ruling is contained at pages 10-12 of the record. For the purpose of clarity the Trial Judge held thus:-
“In conclusion, I overrule the objection and hold that the accused person voluntarily made the statement sought to be tendered. It is therefore admitted in evidence as Exhibit 8”.
After the ruling which was delivered on 18-4-12, the learned Trial Judge adjourned the case, to 23-5-2012 for continuation of hearing which hearing has been stalled for now, as on the 30-4-12, the 1st appellant in the joint trial filed a notice of appeal against the admissibility of his statement. The grounds of appeal are as contained in the record of appeal after page 54 thereof and unnumbered.
The grounds of appeal which are five in number challenges the ruling on diverse grounds relating to want jurisdiction; 2 – denial of fair hearing ; 3 – mis-direction in law and 4 – perversity and mis-carriage of justice.
The record of the appeal was transmitted on 11-6-12 and the appellant filed the appellant’s brief of argument on 24/7/12.
The respondent who had earlier on filed a motion on notice pursuant to order 7 rule 10(1) and order 17 R. 2 of the court of appeal rules 2011 and section 36(1) of the constitution of the Federal Republic of Nigeria (as amended) and under the inherent at jurisdiction of this court for leave to file the respondent’s brief out of time, however withdrew same and it was struck out on 6-2-13.
The appellant based on the above and in the absence of a respondent’s brief sought and was granted an order on 7-2-13 for hearing the appeal on the appellant’s brief alone. on the 20th March 2013, being date of the hearing, J. K. Ishember adopted the appellant’s brief of argument filed on 24/7/12 and urged that the appeal be allowed. The appellant distilled 4 (four) issues for determination from his 5 grounds of appeal.
The issues are as follows: –
i. Whether the lower court was seized with jurisdiction after raising an issue suo motu and proceeded to resolved (sic) same without giving the appellant an opportunity to react the issue so raised? (Distilled from ground one of the notice of appeal).
ii. Whether the right of fair hearing under section 36 of the constitution of Nigeria 1999 as amended can be suspended in a trial within trial of the appellant? (Distilled on ground two of the notice of appeal.
iii. Whether the test of voluntariness as defined by section 29(2) and (5) of the evidence act 2011 is determined by similarity of extra Judicial statements recorded for an accused person at different police stations? Distilled from grounds three and four.
iv. Whether from the totality of the evidence before the court, the prosecution has proved beyond reasonable doubt that the second extra judicial statement recorded for the accused was not obtained in a manner contrary to the provisions of section 29 of the evidence act? (Distilled from ground 5 of the notice of appeal).
Arguing his issue No 1 appellant’s counsel submitted that the learned Trial Judge raised a question suo motu in the manner of the question to wit:
“What has he done that is sin?” without giving the Accused/Appellant the opportunity of responding to it. He relied on OBUMSELI VS. UWAKWE (2009) ALL FWLR (PT.486) 1994 AT PAGE 2014 PAR. D REFERRED TO PAGE 53 of the record as the Trial Judge’s unilateral resolution of the question he raised suo motu; submits that a court has no jurisdiction to speculate. He cites EJEZIE VS. AMUWO (2008) ALL FWLR (PT.422) 1002 and UWAGBOE VS. STATE (2008) ALL FWLR (PT.419) 425 in aid.
He argued that the reference to “Sin” by the court was wrong; so also the usage of the word “not good” as they convey, speculation in our criminal Jurisprudence and are rudimentary and violates AOKO VS FAGBEMI (1961) ALL NLR 400; that on “the twin instances” of resolving issues raised suo motu and basing decisions on speculations and conjectures, the court no longer had jurisdiction when it overruled the objection to the voluntariness of the Accused/Appellant’s second extrajudicial statement and admitted same as exhibit 8.
On the second issue, learned counsel reproduced if not a regurgitation of the argument in his issues no 1. Howbeit he cites KATO VS CBN (2001) FWLR (PT.53) 188 (SC) and OBUMSEMI VS. UWAKWE (2009) ALL FWLR (PT.486) 1994 and contends that the right of fair hearing of the appellant was impinged and that the entire decision was rendered void for breach of fair hearing.
Arguing issue No 3, it was contended that subjecting the statement challenged to a comparison with an earlier one and basing the admission in evidence on their similarity rather than voluntariness was wrong.
On issue No 4 it was contended that from the totality of the evidence before the court, it can be reasonably inferred that the second extra judicial statement Exhibit ‘8’ was obtained in a manner contrary to S. 29 of the evidence Act 2011.
That S. 29 of the Evidence Act is concerned about the manner of obtaining the extra judicial statement and not the content thereof, that the trial court ought to have rejected the statement as threat must not be a life threatening one. Learned counsel for the appellant addressed this court at length from pages 11-12 of his brief on the witnesses called and the exhibits i.e. statements and urged this court to allow the appeal and set aside the ruling of the trial court and order that the said Exhibit ‘8’ be expunged from the record of the lower court and exhibit 6 which was not confessional be held to be the only documentary evidence in the trial within trial.
I have studied the appellant’s brief that was adopted and highlighted aforesaid, and l, with due respect to the appellant think that the only relevant issue that arises from the grounds of appeal and the judgment appealed from is whether the admission of the extra judicial statement of the appellant whether recorded for him or obtained by duress or promise and therefore not voluntary was admissible in law. Just as counsel are entitled to refer to and comment on exhibit tendered and all evidence led, a court of law and the Judges therein are not zombies. They owe a duty to Justice to scrutinize the evidence before them, including documents admitted in evidence and or sought to be tendered and to draw all necessary inferences therefrom in arriving at a decision. See for instance, JOHN Vs STATE 2011 PT 1278 P.353 At 367 PART B. the objection hinged in making the Trial Judge a robust or zombie by the nature of the issues 1 – 3 have no basis. The arguments are with due respect academic.
Appeals are fought on the basis of the facts and law and not on mere arguments. See ASHEIK VS. BORNU STATE GOVERNMENT 2012 (PT 1304) 9 NWLR 1 AT 31 PAGE G.
Furthermore, it should be appreciated that an appeal is not a new trial where parties can raise fresh issues at will and argue them on appeal rather than address them squarely at the trial. The issue at the trial was simply whether the trial court could and rightly admitted the statement i.e. Exhibit ‘8’. All other complain had not yet earlier on or yet been raised and argued at the trial court and ruled upon to warrant an appeal and argument thereon before us. That explains why the arguments and issues raised are speculative. The law is that where a confessional statement is denied or retracted, it is still admissible in evidence and the only thing left to be decided is the weight to attach to it by the court. The court has the discretion. See JOHN VS. IKE 2011 18 NWLR 353; IKEMSON VS. STATE (1989) 3 NWLR (PT.110) 455; SALAWU VS. STATE (1971) 1 NMLR 249; IDAMINE VS. STATE (1996) 3 NWLR PT. 438 PAGE 53.
This, discretion is exercised by the courts upon the evidence led before it. An appellate court cannot take this position of a trial court that heard and observed the demenour of witnesses and thus had the opportunity of marrying or comparing this with the documentary evidence objected to. It is not a matter of assessment or interpretation of documentary evidence perse, so an appellate court’s view even if would have been different cannot be substituted.
In the same vein, where a statement alleged to be confessional is objected to on the ground of involuntariness, a trial within trial shall be conducted. If the court is satisfied of its voluntariness, it may be admitted in evidence. See JOHN VS. EKE (Supra).
It is the satisfaction of the Trial Judge and not the accused person’s satisfaction that shall so determine the admissibility. See JOHN VS STATE 2011 (PART 1278) 18 NWLR 353 AT 385 PART 4. Wherein Ngwuta, JSC stated thus: –
“On the admissibility of exhibits 3 and 5, once the trial court is satisfied that the confessional statement was freely and voluntarily made unambiguous, true direct and positive with reference to the offence changed, it is admissible in evidence.
From the record of the appeal, the trial court ordered for a trial within trial upon the objection to admissibility of Exhibit ‘8’ on ground of involuntariness and inducement. Evidence was led on both sides and respective addresses filed and adopted in court. The learned Trial Judge after a review of the evidence led and a scrutiny of the statement did not believe that there was such inducement or involuntariness in the making of Exhibit ‘8’ and therefore stated thus:-
“In conclusion therefore, I overrule the objection and hold that the accused person voluntarily made the statement sought to be tendered. It is therefore admitted in evidence as Exhibit ‘8’.”
Whether the statement is strictly confessional or not is an entirely a different matter to be determined upon conclusion of hearing and address by the learned counsel for the parties.
From the evidence of the accused appellant, at the trial within trial and the address of his counsel and the brief before this court, the appellant seeks to show on the one hand that he did not make the statement in Exhibit ‘8’. His counsel indicates that the statement was recorded for him; that in essence means that it was not his statement. On the other hand, it was testified to and argued in contradiction that the statement was involuntarily made and by inducement. The law in this respect as governing trial within trial and such statement have been so clearly stated by the Supreme Court in EKE VS. STATE (PART 1235) 2011 PAGE 589 AT 609, wherein Rhodes-Vivour, JSC succinctly state the position of the law thus:-
“My lords, where a confessional statement is challenged on the ground that the accused did not make the statement the statement should be admitted since its admissibility is not affected. That the statement was made voluntarily or otherwise does not arise for consideration. But where a confessional statement is objected to on the ground that it was not voluntary, that is to say the accused person says he was forced or induced to make it then a trial within trial is held. See QUEEN VS. IGWE (1960) 5 FSC P. 55 reported IGWE VS. QUEEN (1960) SCNLR 158; IKPASA VS. A-G. BENDEL STATE (1981) NSCC VOL. 12 P. 300. The trial within trial is designed to determine if the confession was voluntary. At the trial the accused person must give evidence before witnesses called by him to give evidence. At the end of the trial within trial, if the court is satisfied that the confessional statement was not voluntary the said statement would not be admissible in evidence as an exhibit and the Trial Judge should rule accordingly…(omitted).
A confessional statement found not to have been voluntary is worthless.”
From the decision aforequoted, it is therefore clear that it is only when the Trial Judge is not satisfied that the confessional statement was voluntary after a trial within trial that the statement would be held to be worthless. When it is worthless, it can be expunged from the record if it had been wrongly admitted. This will be at the Judgment stage.
This, not been the case and with the trial within trial on this appeal wherein the Trial Judge was satisfied of the voluntariness of the statement, I hold that the statement was not worthless and cannot be legally expunged by this court as sought by the appellant.
Its admissibility was not in doubt as a relevant evidence in the circumstance. The attempt to use this interlocutory appeal to delay or stall the continuation of the trial of the appellant is not in consonance with Justice. The grounds of appeal and the issues formulated thrusting the fundamental issues of breach of the right of fair hearing and want of jurisdiction to the front burner but outside the facts of the case with the call for the declaration of nullity of the trial and a quashing order, is to my mind a call in technical Justice in opposition to due process.
This appeal has no merit and is dismissed. Accordingly it is declared:
1) That the admission of the Exhibit ‘8’ was proper and in accordance with the law.
2) That the statement of the appellant which is Exhibit ‘8’ in case No. MHC/77C/2007 shall remain as part of the Exhibits tendered in the said suit and shall neither be expunged by this court nor the trial court at this stage.
3) That the hearing of the suit No. MHC/77C/2007 shall proceed accordingly.
ADZIRA GANA MSHELIA J.C.A.: I have read before now the judgment of my learned brother Danjuma, J.C.A. just delivered, I agree with the reasoning and conclusion arrived thereat. I too dismiss the appeal and endorse all the consequential orders made in the lead judgment.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the lead judgment of my learned brother M.A. DANJUMA JCA, just delivered. I agree that this appeal ought to be dismissed as it is devoid of any merit. It is hereby dismissed.
I abide by the consequential orders made in the lead judgment.
Appearances
J. K. Ishember, Esq.For Appellant
AND
E. T. Akura Esq was present on the date of adjournment for hearing, but absent at hearing.For Respondent
