AHMED RABIU v. THE STATE (2014)

AHMED RABIU v. THE STATE

(2014)LCN/7621(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of April, 2010

CA/A/206/C/09

RATIO

EVIDENCE; CONFESSIONAL STATEMENT; WHEN IS A CONFESSION STATEMENT ADMISSIBLE AND THE DEFINITION OF CONFESSION ACCORDING TO THE EVIDENCE ACT

EVIDENCE; BURDEN OF PROOF; THE BURDEN ON THE PROSECUTION TO ESTABLISH THAT THE STATEMENT OF THE ACCUSED WAS MADE VOLUNTARILY
The law is well established that the burden is on the prosecution to establish that the confessional statement of the accused was made voluntarily. The standard of proof required of the prosecution is proof beyond reasonable doubt. The court must be satisfied that the statement was the voluntary act of the accused to be admissible. per. UWANI MUSA ABBA AJI, J.C.A.

EVIDENCE: CROSS EXAMINATION; THE EFFECT OF THE FAILURE OF THE PROSECUTION TO CROSS EXAMINE A WITNESS UPON A PARTICULAR MATTER

In AMADI VS NWOSU (1992) 5 NWLR (PT241) 273 at 284, the Supreme Court, per Nnaemeka-Agu, J.S.C held:
“It is a settled principle of law that where an adversary, or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness testimony as true, cross examine him on that fact, or at least show that he does not accept the evidence as true. Whereas in this case, he fails to do either, a court can take his silence as an acceptance that the party does nut dispute the facts.”
Similarly, in OFFORLETE VS STATE (2000) 12 NWLR (Pt.681) 415 at 436, the dictum of Achike, J.S.C at para B-E is quite instructive. According to him:
“Where the adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence… it is unsatisfactory, if not suicidal bad practice for counsel to neglect to cross examine a witness after his evidence-in-chief in order to contradict him or impeach his credit while being cross examined…..” per. UWANI MUSA ABBA AJI, J.C.A.

JUSTICE

UWANI MUSA ABBA AJI justice of The Court of Appeal of Nigeria

MARY PETER ODILI justice of The Court of Appeal of Nigeria

ABDU ABOKI justice of The Court of Appeal of Nigeria

Between

AHMED RABIUAppellant(s)

AND

THE STATERespondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kogi State High Court, sitting in Okene, presided over by Hon. justice S.O. Otu, delivered on the 30th March, 2009, overruling the objection of the Appellant’s counsel that the Statement of the Appellant to the Police was made out of inducement, non-compliance with Police Officers’ Rules and torture.
On the 31st December, 2005, the Appellant was arrested for the offence of culpable homicide contrary to Section 221 of the Penal Code. The charge against the Appellant states thus:
“That you, Ahmed Rabiu of Ajaokuta road check point, Okene within the Kogi State Judicial Division, on or about the 10th day of November, 2005, while armed with a gun intentionally shot and killed one Nasiru Audu and you thereby committed the offence of culpable homicide punishable under Section 221 (a) of the Penal Code.”
On the 23rd January, 2008, the Statement of the accused person/Appellant taken on the 1st of January, 2006 was admitted in evidence by the trial Judge and marked Exhibit ‘B’.
However, by a motion on notice dated 17th April, 2008, the Appellant applied to the High Court, Okene, praying for the following order(s);
1. An order setting aside the entire proceedings of 23/1/2008
OR IN THE ALTERNATIVE
2. An order setting aside the ruling admitting Exhibit ‘B’ in evidence and revisiting the issue of the admissibility of the said document.
3. Such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The application was supported by a 15 (fifteen) paragraphs Affidavit. The Respondent opposed the application and filed a counter affidavit of eight (8) paragraphs dated 17th June, 2008.
In a considered ruling dated 10th July, 2008, the learned trial judge set aside the ruling of the court admitting the statement of the Appellant in evidence as Exhibit ‘B’ and ordered for a trial within trial to determine whether or not the Appellant’s statement was voluntarily made.
At the trial within trial, the prosecution called one witness. The case of the prosecution is that at about 12.10pm on 1st January, 2006, he directed one P.C Adeyemi Moshood to bring the Appellant from the cell to the interrogation room for statement taking. He cautioned the Appellant and he signed the words of caution and thereafter volunteered his statement, the Appellant signed the statement and the witness counter signed it. The statement was voluntary as the Appellant was neither beaten nor tortured.
The case of the Appellant however is that, he was at an occasion at a place called Agassa when he was accosted by a mob. They beat him and dragged him to the Police Station at Okene where he was informed that the allegation against him was that he had killed a person. He denied killing the person and made a statement to that effect. When he was taken to the D.P.O. along with the statement, the D.P.O. said he was telling lies. The D.P.O. shot the Appellant on the foot when he insisted that he did not kill anybody. As a result of the gun shot, he agreed to sign whatever statement they brought. He was later taken to the State C.I.D, Lokoja where he was beaten and threatened by the police where after he signed a statement which statement the prosecution tendered at the trial
Counsel addressed the court and in a considered ruling on the 30th March, 2009, the learned trial judge found that the statement was voluntary, overruled the objection of the Appellant and admitted the extra judicial statement as Exhibit ‘BB’. Dissatisfied with the said ruling, the Appellant has now appealed to this court by a Notice of Appeal dated 7th April, 2009 and filed on the 8th April, 2009 upon two grounds of appeal. The grounds of appeal without their particulars are hereby reproduced:-
1. The teamed trial Judge erred in law in admitting the ‘confessional statement of the Appellant’ when the said statement was not voluntary.
2. The learned trial Judge erred in law when he held as follows:-
“I find that the statement was freely and voluntarily made by the said accused person. The objection is overruled and the statement is admitted in evidence and marked as Exhibit ‘BB’.”
Parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Abdullahi M. Aliyu Esq., a lone issue is distilled for the determination of the appeal to wit:-
“Whether the alleged extra judicial statement of the Appellant (Exhibit ‘BB’) was made voluntarily by him. (Grounds 1 and 2 of the Notice and Grounds of Appeal.)
In the Respondent’s brief settled by Ama Etuwewe Esq., who received a fiat dated 6th January, 2010 from the Kogi State Government to handle this appeal, a lone issue was also formulated for determination, to wit:-
“Whether the learned trial judge was right to have held that the extra judicial confessional statement of the accused (Appellant herein) was voluntarily made. At the hearing of the appeal, learned counsel for the Appellant, Abdullah! M. Aliyu Esq., and learned counsel for the Respondent Ama Etuwewe Esq., both adopted and relied on their respective briefs of argument filed on the 16th July, 2009 and 25th of January, 2010 respectively. The Appellant’s counsel urged this court to allow the appeal.

The Respondent’s counsel also urged this court to dismiss the appeal. I have carefully considered the (one issue formulated by the respective counsel and I am of the view that the lone issue formulated by the Respondent is apt as it encapsulates the complaint of the Appellant in the appeal having regard to the argument of counsel as contained in their respective briefs.
In arguing his lone issue, learned counsel for the Appellant, Aliyu Esq., submitted that once an accused challenged the admissibility of an extra judicial statement on the ground that it was not voluntarily made, the burden is on the prosecution to show that the statement was made freely and voluntarily. He submitted further that the standard of proof is beyond reasonable doubt. On this principle,, he relied on the cases of R VS ISAAC AJIA (1960) WNLR 196 at 198, BALOGUN VS A.G. FEDERATION (1994) 5 NWLR (PT.345) 442 at 458 para F. It is submitted that for Exhibit ‘BB’ to be admissible, the burden is on the prosecution to show that the Appellant made the statement freely and voluntarily. He cited the case of EBHOMIEN & ORS VS THE QUEEN (1963) ALL NLR 371.
It is further argued by the learned counsel that even on the evidence presented by the prosecution at the trial within a trial, it is absolutely clear that Exhibit ‘BB’ was not obtained by the police from the Appellant voluntarily. His contention is that from the narration of the Appellant, it is clear that the Appellant was objecting to the admissibility on three grounds viz:-
1) That he was arrested by a mob who gave him a thorough beating before taking him to the Police Station at Okene
2) That the D.P.O. at the Okene Police Station shot him on the foot in order to obtain a confession from him.
3) The Police at the State C.I.D equally beat him and threatened not to take him to treat his wounds if he refused to confess to the crime alleged against him.
Learned counsel further submitted all the facts stated by the Appellant during the trial within trial were uncontroverted by the Police. He cited and relied on the case of AMADI VS NWOSU (1992) 5 NWLR (PT.241) 273 at paras G-H and submitted that where an adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. He cited also the case of OFFORLETTE VS STATE (2000) 12 NWLR (Pt.681) 415 at 436 paras B-E.
He contended further that the evidence of the Appellant was corroborated by the evidence of the sole prosecution witness who testified and urged this court to hold that Appellant was indeed shot on the foot and beaten in order to procure a confession from him. He placed reliance on the case of THE STATE VS OLADELE & ORS (1969) NMLR 210 at 212 and submitted that even the slightest threat of the most gentle inducement will render an extra judicial statement inadmissible in evidence and urged this court to so hold.
It is the further view of learned counsel that even without the actual application of violence, the extra judicial statement, (Exhibit ‘BB’) would still be inadmissible in evidence as it was obtained by means of question and answer. He referred to pages 36-37 of the Records and submitted that what took place at the time that the Appellant purportedly made Exhibit ‘BB’ was an interview by the PW1 and his superior officer where the accused was asked to make a statement. On the authority of NAMSOH VS THE STATE (1993) 6 SCNJ 55 at 69, he opined that a statement obtained by Police through a question and answer session will be inadmissible.

It is his view that it is not the business of a police officer to obtain a statement from a suspect. His only duty is to give the suspect the opportunity to make one after making him understand that he is not obliged to make the statement. On this principle, he placed reliance on the authority of ONOBU VS I.G.P. (1959) NNLR 25 at 26 and submitted that a statement must be voluntary if it is to be used in evidence against the person who makes it, per Hurley CJ in R VS KWAGBO (1962) NWLR 4 at 4-5. It is therefore his view that since it was PW1 and his superior officer who asked the Appellant to make a statement, the statement cannot be regarded as a voluntary statement as to render it admissible in a criminal trial. He urged this court to so hold. His further view is that the learned trial judge was wrong to have held that since the Appellant had been cautioned before he was asked questions to invite response from him, whatever he says after the caution would be voluntary.
It is also submitted that once the police invite a suspect to make a statement after caution, the effect of that invitation is to dissipate the words of caution. He relied on the cases of STATE VS MATTI AUDU (1971) NNLR 91 at 92, See also R VS ISAAC AJIA (1960) WNLR 196 at 199. In conclusion, he urged this Honourable Court to set aside the judgment of the trial court and reject the extra judicial statement sought to be tendered by the prosecution because it was not made voluntarily by the Appellant.
In his response, learned counsel for the Respondent submitted that once the issue of voluntariness of an extra judicial statement is raised, the trial court is duty bound to conduct a trial within trial to determine whether the statement in question was voluntarily made or not. He relied on the authority of EKURE VS STATE (1999) 13 NWLR (Pt.635) 456 at 466 para C-G. He therefore submitted that, the learned trial judge did what was legally required of him in order to give the Appellant the fairest of all trials. Learned counsel for the Respondent further opined that from the testimony of the Appellant during the trial within trial, what allegedly happened at Okene Police Station has no bearing with the confessional statement that was made at the State C.I.D. According to him, the Appellant never showed the learned trial judge the scar of the alleged bullet wound neither did he give details of the kind of beating and the number of policemen that allegedly beat him up. It is his view that the finding made by the learned trial judge is a finding of fact and same has not occasioned any miscarriage of justice and should be allowed to stand. He relied on the authority of HENRY ODEH VS FEDERAL REPUBLIC OF NIGERIA (2008) 3-4 SC 147 at 180-181. Learned counsel also relied on the following authorities: STATE VS AJAYI (1997) 5 NWLR (PT505) 382 at 39T, IGAGO VS THE STATE (1994) 14 NWLR (PT637) 1, MONSURU SOLOLA & ANOR VS THE STATE (2OO5) ALL FWLR (PT269) 1751 at 1769. and urged this court to adopt the reasoning of the Supreme Court in the above cited authorities. It is further contended that the prosecution discharged the burden placed on it in a trial within trial and that the testimony of PW1 was very graphic and was not in any way shaken under cross examination.
Learned counsel for the Respondent further argued that the heavy weather made by the Appellant on the issue of the statement of the accused being obtained as a result of questions put to him by the Police is of no moment. According to him, it is not out of place for a statement to be elicited from an accused by putting questions to him. He relied on the case of IHUEBEKA VS THE STATE (2000) FWLR (PT.11) 1827 at 1854-1855 and prayed this Court to adopt the reasoning of the Supreme Court in the above case and affirm the decision of the trial court.
It is his final submission that the learned trial judge was right to have admitted the Appellant’s statement in evidence as same was obtained voluntarily and after the Appellant was cautioned. He placed reliance on the case of KAREEM VS FEDERAL REPUBLIC OF NIGERIA (2002) FWLR (PT125) 1796 at 810 paras D-F, and urged this Court to uphold the decision of the trial court and dismiss this appeal as the extra judicial statement of the Appellant which was admitted as Exhibit ‘BB’ by the lower court after a trial within trial was voluntarily made under caution.
After a careful perusal of the arguments of learned counsel, it is obvious that the crux of this appeal is the voluntariness of the statement made by the Appellant and admitted in evidence at the lower court at the trial within trial as ‘Exhibit BB’.

The law is trite that a confessional statement to be admissible must be free and voluntary. Section 27 of the Evidence Act Cap 112, LFN 1990 defines confession. It provides:
Section 27:
1)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.
2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.
3) Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court or a jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.
Section 28 of the Act also provides:-
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.”
A confession therefore is an admission made at any time by a person charged with a crime, stating or suggesting by inference that he committed that crime which is a relevant fact against the maker and if made voluntarily, is admissible in evidence.
The issue of voluntariness of a statement to the police is taken seriously by the courts. If the statement is not shown to have been voluntary, it is not received in evidence on the ground that it would not be safe to receive a statement made under any influence of fear or hope of advantage or by oppression. In the instant case, the Appellant stated that he was picked by a mob while at a wedding ceremony, thoroughly beaten by the said mob and taken to the police station where he was accused of the murder of one Nasiru Audu. At the police station, he insisted on his innocence and the D.P.O at Okene Police Station shot him at the leg for not telling the truth. He was taken to the State C.I.D in Lokoja and he was further beaten by the policemen who elicited the confessional statement from him.
The prosecution however denied this, according to them, the statement made by the Appellant was voluntary after he was cautioned and confirmed that he understood the caution and went ahead to sign.
The law is well established that the burden is on the prosecution to establish that the confessional statement of the accused was made voluntarily. The standard of proof required of the prosecution is proof beyond reasonable doubt. The court must be satisfied that the statement was the voluntary act of the accused to be admissible.

In the evidence of PW1 at the trial within trial, it was established that PW1 sent one P.C. Moshood to bring the accused to the interrogation room for statement taking. During cross examination, PW1 said:-
“Interrogation room is a place where the I.P.O attached to the State C.I.D Lokoja; do make compilation of case files, taking of statements and other things relating to the case at hand before the said I.P.O…”
In his evidence, during cross examination at the trial within trial PW1 said:
“…when the accused person was brought from the cell, I asked him for his name and I wrote the name in the form for statement of accused. I asked him of his age, occupation, religion and address…
During the interview, I told the accused that the allegation against him is that he killed a person and this was before my superior officer who is in charge of conducting interview. The accused was asked, to tell his own version of the story…”(See pages 36-37 of the Records).

On the other hand, the Appellant in his evidence at the trial within trial said at pages 38-39 of the Records:
“…On 31st December, 2005, I was at a marriage ceremony at Agassa and in a room when suddenly, a group of boys entered the room and started beating me and dragged me to the Police station Okene. At the Police Station, I was told that I killed somebody and I told them I did not kill anybody. I made a statement that I did not commit the offence alleged against me. My statement was taken to the D.P.O. and after reading the statement, the D.P.O. insisted that I killed somebody but when I denied it; the D.P.O. took out his pistol and shot my leg.
After being shot, they brought a statement that I should sign it and I signed the second statement. The D.P.O. then asked that I should be taken to the State C.I.D., Lokoja. At the State C.I.D, Lokoja, I was taken before the C.O.P and I also told him that I was arrested at a wedding ceremony and that, I did not kill anybody as alleged. I was taken to the interrogation room the following day. The Police at the State C.I.D told me that I was lying and started beating me and blood was coming out of my body and my injury where I was shot was open and blood was all over the place. The Police then threatened that if I did not confess, I will not receive treatment and because of the severity of the beating, I now admitted to whatever I was asked. They now gave the statement and asked me to sign it and I signed. The Police then asked me to remove my shirt to cleaning (sic) the blood and then to throw it away and I cleaned the blood. Thereafter I was taken to the Police Clinic to receive treatment.”
During cross-examination, the Appellant said It was the I.P.O who took me to the clinic for treatment, and he was the same person who recorded my statement.”
I have painstakingly reproduced the evidence of the Appellant at the trial-within-trial because if the violence of the type described by the Appellant was meted out on him by the Police both at Okene and at Lokoja, before he made the statement admitted at the trial within trial as ‘Exhibit BB’ or that threat of any type of violence was made to the Appellant before he made the statement, then the statement would be inadmissible.
It has always been a fundamental principle of the courts that for an accused person’s statement to be admissible, it must not be tainted with threats, torture or even slight inducements.

The point has been made that the burden of proving that an accused person’s statement was made voluntarily rests squarely on the shoulders of the prosecution. There is no such burden on the accused person. See R VS ISAAC AJIA (1960) WNLR 196 at 19&, BALOGUN VS A.C. FED (1994) 5 NWLR (PT.344) 442 at 458. The relevant parts of Section 140(1) (a) of the Evidence Act, CAP 112, LFN 1990 is as:
“The burden of proving any fact necessary to be proved, in Order (a) to enable the person to adduce evidence of some other fact …lies on the person who wishes to adduce… such evidence…”
In this case, it is the prosecution who wishes to prove the fact that the statement was made voluntarily so as to enable the prosecution tender in evidence, the statement of the Appellant. Therefore, under the above provisions of the Evidence Act, the burden of proving this fact lies on the Prosecution.
The question that may be asked is whether the statement made by the Appellant, and admitted as “Exhibit BB” at the trial within trial, is admissible in evidence. To be admissible, the prosecution must satisfy this court that the statement was made voluntarily.
The evidence before this Court, (as deduced from the Records) clearly show that before he was taken to the Police Station at Okene, the Appellant had been severely beaten up by a group of boys who then dragged him to the Police Station for allegedly killing one Nasiru Audu. The evidence also reveals that the Appellant was still bleeding from the injuries he sustained at Okene (where he stated that he was shot on the leg by the D.P.O, Okene Police Station), while he was making his statement at the State C.I.D, Lokoja, and that as soon as he finished making it, he was taken to the clinic for treatment.
The Appellant’s testimony at page 39 of the Records says:
“…The Police then threatened that if I did not confess, I will not receive treatment and because of the severity of the beating, I now admitted to whatever I was asked. They now gave me the statement and asked me to sign it, and I signed …”
“…thereafter I was taken to the Police Clinic to receive treatment.”
Under cross-examination, he said:
“It was the I.P.O, who took me to the clinic for treatment, and he was the same person who recorded my statement.”
This testimony of the Appellant was corroborated by PW1 in his evidence during cross examination.
According to him:
“The accused was arrested upon efforts of the members of the public. It will not surprise me to hear that those members of the public gave the accused a thorough beating before handing him over to the Police.”
The Prosecution did not also dispute the Appellant’s testimony that he was shot on the leg by the D.P.O at Okene Police Station. Still under cross examination, he said:
“When the accused was brought to us, he had an injury on his leg and I was the one who helped to take him for treatment. I would not know if the injury came about as a result of gunshot, I do not know how he came about the injury, but he had the injury when he was brought to us…” (See page 37 of the Records.)
The material allegations of torture, made out by the Appellant were not controverted by the Prosecution. The Prosecution did not include the D.P.O at Okene., as one of its witnesses, to tell his side of the story and possibly discredit the testimony of the Appellant/ neither did it cross examine the Appellant as to the veracity or otherwise, of the claims he made against the D.P.O at Okene as well as those at the State C.I.D in Lokoja. (See page 39 of the Records). In AMADI VS NWOSU (1992) 5 NWLR (PT241) 273 at 284, the Supreme Court, per Nnaemeka-Agu, J.S.C held:
“It is a settled principle of law that where an adversary, or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness testimony as true, cross examine him on that fact, or at least show that he does not accept the evidence as true. Whereas in this case, he fails to do either, a court can take his silence as an acceptance that the party does nut dispute the facts.”
Similarly, in OFFORLETE VS STATE (2000) 12 NWLR (Pt.681) 415 at 436, the dictum of Achike, J.S.C at para B-E is quite instructive. According to him:
“Where the adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence… it is unsatisfactory, if not suicidal bad practice for counsel to neglect to cross examine a witness after his evidence-in-chief in order to contradict him or impeach his credit while being cross examined…..”
I am totally dissatisfied with Respondent counsel’s submission that the Appellant never showed the learned trial judge the scar of the alleged bullet wound neither did he give details of the kind of beating and the number of Policemen that allegedly beat him up. Equally unsatisfactory, is the ruling of the learned trial judge at pages 48-47 of the Records that:
“…what the accused has told the court is that some persons just invaded a wedding ceremony, pounced on him and started beating him that he killed somebody. In Okene, the D.P.O shot him in order to make him confess and that the D.P.O brought out a statement and asked him to sign it. Yet, there is no evidence that this murder attempt on him by a D.P.O. was ever reported to anyone, not even to his relation and there is no evidence that any compliant against such a D.P.O was ever made.”
I fail to understand how the Appellant is expected to have been able to give details as to the number of Policemen that beat him up, or how he would have reported the incident at Okene to anyone, considering the circumstances narrated by the Appellant regarding his arrest. It must be reiterated that the burden of proving the voluntariness of an accused person’s statement rests on the Prosecution to discharge this burden and it is my humble view that this duty has not been discharged in the instant case. It is on record that PW1 testified that after cautioning the Appellant, he asked the Appellant to tell his own version of the story. The view expressed by the learned trial judge is that having cautioned the Appellant, and the Appellant had fully understood the caution, he (the Appellant) had the choice, whether to answer questions put to him or not or whether he was prepared to give his own version of the story or not. This, according to him, makes the statement voluntary. (See page 46 of the Records). I must, with reject, disagree with this view expressed by learned trial judge.
In THE STATE VS MATI AUDU (1971) NNLR 91 at 92 it was held that:
“…By asking the accused to tell him all that had happened immediately after cautioning him, the constable wholly dissipated the effect of the words of caution.”
In the circumstances, I have no hesitation in concluding that the Prosecution has failed to prove that the Appellant’s statement was made voluntarily. It is not surprising that the Appellant chose to make a statement at the State C.I.D, Lokoja, after what had happened to him both at Lokoja and at Okene Police Station.
I am of the humble view that what happened at Okene Police station and then at the State C.I.D Lokoja must be regarded as one continues transaction and not as separate and distinct incidents. Not only did each incident immediately follow the other, but nothing was done at the State C.I.D Lokoja by way of assuring the accused that he need no longer fear physical violence if he chose not to say anything. Thus, the submission of learned counsel for the Respondent that what allegedly happened at Okene Police Station has no bearing with the confessional statement that was made at the State C.I.D Lokoja is of no moment. (See page 4 of the Respondent’s brief.) The totality of the incidents would tend to induce the Appellant to speak, so that he would not be speaking of his own free will.

I also agree with the submission of learned counsel for the Appellant that ‘Exhibit ‘BB’ is inadmissible because it was obtained by means of question and answer.
PW1 in his evidence under cross examination said at pages 36-37 of the Records:-
“…During the interview, I told the accused that the allegation against him is that he killed a person and this was before my superior officer who is in charge of conducting interview. The accused was asked, to tell his own version of the story…”

In NAMSOH VS STATE (1993) 6 SCNJ 55 at 69, the Supreme Court held:
“…The Police recorder was putting questions already prepared by his superior on a sheet of paper to the Appellant, while he also recorded the answers. This procedure is clearly wrong, once a Police decides to make a complaint against an accused person, he must first of all caution the accused person in a prescribed form… I cannot see how a statement would be regarded as free and voluntary when it is evident that the so called statement was a result of questions selected by and put to the accused by the Police Officer himself…”
Furthermore, PW1 stated that:
“I asked P.C. Adeyemi to bring the accused person to enable me obtain his statement. See page 36 In R VS KWAGBO (1962) NNLR 4 at 4-5 the court held:
“… When a Policeman speaks of obtaining a statement from a suspect, there is a suggestion that he has been trying to get the statement out of the suspect, or that he wanted the suspect to make it. If a Policeman sets out to ‘obtain’ a statement, it will very likely appear that he has let the suspect know that he wants him to make the statement. That is something that would tend to induce the suspect to speak, so that he would not be speaking of his own free will or voluntarily…”

This view expressed by the Court, as well as all the aforesaid renders ‘Exhibit BB’ inadmissible.
Accordingly, the lone issue for determination in this appeal is resolved in favour of the Appellant against the Respondent. This appeal has merit, and it ought to be and is hereby allowed. The Ruling of the lower court, delivered on the 30th of March, 2009, admitting ‘Exhibit BB’ in evidence, is hereby set aside.

MARY U. PETER-ODILI, J.C.A.: I had the privilege of reading my learned brother, Uwani Musa Abba Aji, J.C.A. whose decision and reasonings I agree with. It is not difficult to agree with the learned counsel for the Appellant that the purported confessional statement of the Accused/Appellant was not produced through his free will. This is because there has been incontrovertible evidence showing that the statement though under caution was obtained after serious violence done to the person of the Appellant alongside threats and inducement and therefore the voluntaries chat ought to be present to give validity to the Statement was absent. That the superior police officer endorsed the statement did not cure the fundamental damage done to the voluntariness of that statement thereby rendering it inadmissible in evidence. I place reliance on Ebhomien & ors v. The Queen (1963) All NLR 371; Amadi v. Nwosu (1992) 5 NWLR (pt. 241) 273; Offorlete v. State (2000) 12 NWLR (pt. 681) 415 at 436; The State v. Oladele & ors (1969) NMLR 210 at 212; Namsoh v. The State (1993) 6 SCNJ 55 at 69.
Clearly, this appeal is meritorious and is allowed. The Ruling of the trial High Court admitting the Statement of appellant as accused as ‘Exhibit ‘BB’ is set aside.

ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, Uwani Musa Abba Aji, J.C.A. I agree with his Lordship that this Appeal be meritorious, ought to be allowed and is hereby allowed. I also set aside the Ruling of the lower Court delivered on the 30th day of March, 2009.
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Appearances

A. M. Aliyu, Esq.For Appellant

AND

A. Etuwewe, Esq.For Respondent