FAITH IWEKA v. FEDERAL REPUBLIC OF NIGERIA (2010)

FAITH IWEKA v. FEDERAL REPUBLIC OF NIGERIA

(2010)LCN/3671(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of March, 2010

CA/IL/C.57/2009

RATIO

EVIDENCE: NATURE OF CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence is an indirect evidence where no direct evidence exists and it is required to lead to only one conclusion – i.e. the guilt of the accused person in order to lead to his conviction. Thus it is also required to be consistent, cogent and must irresistibly lead to the guilt of the accused person. Once it satisfies the above conditions it is regarded to be as good and sometimes better than direct evidence – sometimes even referred to as the “best evidence” capable of proving a proposition with a mathematical accuracy. See STATE VS. USMAN (2005) 1 NWLR (PT. 906) 80. PER DALHATU ADAMU, (OFR), J.C.A.

EVIDENCE: MEANING OF HEARSAY EVIDENCE

On the other hand “hearsay evidence” which is also not a direct evidence is defined as a specie of testimony given by a witness who relates not what he knows personally but what others have told him or what he has heard said by others – see Black Law Dictionary 6th Edition.

EVIDENCE: EFFECT OF A VOLUNTARY CONFESSIONAL STATEMENT SETTLED BY SUPERIOR AUTHORITIES

The jurisprudence on the inculpatory effect of a confessional statement of an accused person which was not only made voluntarily, but which is direct, positive and unequivocal has been settled by superior authorities. A confession which evinces all these attributes is deemed to be relevant as against the accused person who made it only. Such a confession is, indeed, sufficient to ground a conviction, Tegwonor v State (2008) All FWLR (pt 424) 1484, 1503. This is so for it binds its maker, Amanchukwu v FRN (2009) 37 NSCQR 616, 632; Tonko v State (2009) All FWLR (pt.436) 19/77.

However, it must always be borne in mind that, apart from the confession, it is desirable to have some corroborative evidence, no matter how slight, of circumstances which make it probable that the confession is true and correct. This is so for courts are not generally disposed to act on a confession without testing the truth thereof, Kazeem v State (2009) All FWLR (pt 465) 1749, 1775-1776; Nwachukwu v The State (2007) 17 NWLR (pt. 1062) 31, 70; Nsofor v State (2004) 18 NWLR (pt 905) 292; (2005) FWLR (pt 242) 397; Hassan v State (2001) FWLR (pt 74) 212; (2001) 6 NWLR (pt 709) 286; Yayaha v State (2001) 10 NWLR (721) 360; Kareem v. F.R.N (2002) (No 2) FWLR (pt 104) 555; (2003) 16 WRN 114. PER CHIMA CENTUS NWEZE, J.C.A

EVIDENCE: TESTS FOR DETERMINING THE TRUTH OR OTHERWISE OF A CONFESSIONAL STATEMENT

In doing this, the court would consider issues such as these:

(a) Whether there is anything outside the confession to show that it is true;

(b) Whether the statement is corroborated;

(c ) Whether the statement of fact made in the confessional statement, so far as can be tested, is true;

(d) Whether the accused person had the opportunity of committing the offence charged;

(e) Whether the confession of the accused person was possible;

(f) whether the confession was consistent with other facts which have been ascertained and proved at the trial, Akpan v The State (supra) 623; citing Ikpasa v A. G. Bendel State (1981) 9 SCN7; see, also, Kareem v FRN (2002) (No 2) FWLR (pt 104) 555; (2003) 16 WRN 114. PER CHIMA CENTUS NWEZE, J.C.A

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria

Between

FAITH IWEKA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

DALHATU ADAMU, (OFR), J.C.A. (Delivering the Leading Judgment) This is an appeal against the judgment of Hon. Justice B. B. Aliyu of the Federal High Court, Ilorin delivered on 10th day of February, 2009. In the judgment, the appellant was sentenced to 5 years imprisonment – see the judgment at page 108 – 126 of the record. Dissatisfied with the judgment of the lower court, the appellant appealed against it in this court (see the notice of appeal filed by the appellant at pages 127 – 128 of the record). The brief facts of the case as narrated in the appellant’s brief of arguments is that the respondent on receipt of information against the appellant that she was dealing with Indian Hemp in her house at the Gaa Imam area of Ilorin mounted a surveillance in the area but they were later informed that the Indian Hemp (about 296.1 grams) had been moved by the appellant to Kankatu area in the House of one Monday Iweka – a step son to the appellant. When the appellant’s house at Gaa Imam was searched nothing incriminating was found but when the house of Monday Iweka was searched at Kankatu area 206.1 Kilograms of cannabis sativa was found by the officers of the respondent. The appellant had denied knowing anyone called Monday Iweka, yet the trial Court went ahead and convicted her of the offence in respect of the cannabis sativa found in the house of the said Monday Iweka who was not called as a witness in the case.
In her notice of appeal, the appellant filed the following two grounds of appeal:-
“3. GROUNDS OF APPEAL
(1) The judgment of the learned trial judge is unreasonable unwarranted and cannot be supported having regard to the weight of evidence.
PARTICULARS OF ERROR
(i) The refusal of the prosecution to call one Monday Iweka was fatal to its case as his evidence was material to the conviction of the appellant.
(ii) The 4 prosecution witnesses could not testify as to the where about of Monday Iweka.
(ii) All evidence adduced by the prosecution without calling Monday Iweka is hearsay which cannot sustain a conviction.
(2) The Court misdirected itself and at the same time approbating and reprobating when it held that:
“The calling of Monday is not an absolute necessity in view of the confessional statement.
The prosecution is not bound to call every witness in the case, all that is required is the testimony of witnesses which (sic) are necessary to prove its case beyond reasonable doubt….”.
PARTICULARS OF ERROR
(i) The said Monday Iweka in whose custody the alleged Indian Hemp was found was not called as a witness.
(ii) There is no nexus between the accused person and the alleged Indian hemp (i.e. Exhibit PW 4 D1 – 36) which was recovered from the house of Monday Iweka.
(iii) The trial Court ought to have subjected the alleged confessional statement to the long established test for determining the truth or otherwise of confessional statement.
(iv) The trial Court ought to have cautioned itself in view of the contradictions between the evidence of the accused on oath and the alleged confessional statement.”

From her two grounds of appeal, the following two issues arising for determination are formulated in her brief of arguments:-
ISSUES FOR DETERMINATION
(i) Whether the prosecution has established its case against the appellant beyond reasonable doubt to justify her conviction by the lower Court (Relates to ground 1).
(ii) Whether the conviction of the appellant based on Exhibit 2A by the lower Court (i.e. her confessional statement) was proper in the circumstances of this case (Relates to Ground 2).
In arguing the issue No. 1 which is said in the appellant’s brief to be covered by ground 1 of the Grounds of Appeal, the following findings of the lower Court are referred to-
“In my opinion the above evidence of placing the accused under surveillance and subsequent operation carried out by the witness cannot qualify as hearsay evidence. Rather the evidence amount to what may be termed as circumstantial evidence which if proved can ground a conviction” See page 121 and at page 124 of the recor d.
“In the final analysis I am of the firm belief that the evidence of the prosecution has proved beyond reasonable doubt that the accused person Faith Iweka was found dealing with 296.1 Killograms of Idian Hemp as drug similar to cocaine LSD and heroine.”
It is stated that in his above findings, the lower trial judge was in a serious error as he failed to consider the evidence adduced before the Court properly as a result of the over dose intake of the prosecution’s stories which misled the Court to mistake hearsay for circumstantial evidence.
The appellant then refers to the evidence of PW1 (at page 11) of the record where it is stated that:
“What I know about this case is that we received an information through a confidential informant. I was detailed to carry out a surveillance with the informant. The information is that the accused was having Indian-Hemp at the place she lived at Gaa Imam in Ilorin………”
“We later found that the exhibit was moved to somewhere at Okelele Kankatu area…
“The person who resides in that house is called Monday Iweka he said he is a step son to the accused person ”
“We searched the room of Monday, but we did not see any incriminating thing. But we saw a room that was locked with a padlock. We asked Monday for the key. He said it was with his step mother Faith Iweka (accused).
The room belongs to Monday because he owns the house. He told us that the accused kept some bags of gari in the room …”
In the evidence of the accused person as DW 1 she denied all the above allegations. She even told the story of how on 26/2/2008 she was met at her house (at Gaa Imam area of Ilorin) by 4 people who entered her house and asked her to stand up which she did and they told her that they were NDLEA men from Sobi Road in Ilorin. They accused her of selling Indian hemp and wanted to search her room. After the search nothing was found. They also took her to her shop which they searched and they could not find anything – see page 60 of the record.
It is submitted that the onus of proof in a criminal trial is on the prosecution throughout which is required to prove its case against the accused person beyond all reasonable doubt. There is no law which places the burden on the accused person to prove his innocence – since by the constitution of the Federal Republic of Nigeria his innocence is always presumed until his guilt is proved – See S. 138 of the Evidence Act and SHANDE VS. STATE (2005) 1 NWLR (PT. 907) 218. It is argued that the 296.1 Kilograms of cannabis sativa in the instant case was found in the house of Monday whom the appellant in her evidence in chief denied knowing. Also it is pointed out in the brief that the Appellant lives at Gaa Imam area while Monday lives at Kankatu area of Ilorin – a distance of about 5 kilometres – hence there is no nexus between the appellant and the alleged offence. The application for witnesses summons (at page 23 of the record and the affidavit of non-service (at p. 24) leads to only one conclusion that the said Monday Iweka is a fictitious person and all the evidence adduced by the respondent herein revolving around him is only  hearsay evidence. The appellant therefore urges us to hold so.
On the fact that the appellant counsel did not raise any objection to the  admissibility of Exhibit 2 (i.e. the confessional statement of the appellant the learned counsel to appellant makes a humble submission that the settled law on criminal matters is that for a confessional statement to form a fulcrum of conviction, it must stand certain legal tests which are recognized in criminal prosecution – See KAZEEN VS. STATE (2009) ALL NWLR (PT. 465) 1776. It is argued that the learned trial judge did not apply the settled parameters of the law before convicting on the same confessional evidence in the instant case. Consequently, the admitted Exhibit 2A when taken with all the peculiar circumstances of this case ran not with all indices of guilt.
For example the evidence of the appellant before the trial Court show not only the denial of the knowledge of Monday Iweka who became invisible throughout this trial and was the only link through which the learned trial judge searched to convict the appellant. In such circumstances, the  law makes it very sure that there are no co-existing circumstantial evidence which would weaken or destroy such an inference – See IJIOFOR VS. STATE (2001) 4 SC (PT. II) P. 1 AT P. 9. The co-existing circumstances said to be found by the learned trial judge include the following:-
1. The existence of one Monday Iweka in whose possession the 296.1 Kilograms of cannabis sativa was recovered could not be ascertained.
2. The said Monday Iweka lives at Kankatu Area Ilorin while the appellant lives at Gaa Imam Area Ilorin.
3. Upon search conducted by the NDLEA officers at the residence of the Appellant at Gaa Imam nothing incriminating was found in her possession.
4. The learned trial judge was manifestly in error to have relied on previous purported conviction of the relatives of the appellant upon similar offence as evidence upon which his lordship relied to form an opinion on the appellant.
This is said to be manifestly against the provision of our evidence law in relation to the right of an accused person before the Court. The approach of the learned trial judge is said to be wrong in the following two ways:-
1. It created an unreasonable bias against the appellant before the Judge.
2. Since the allegation was not substantiated before the Court, the learned trial judge ought to have discarded it.
It is further stated by the appellant under the issue that the duty of the prosecution lies in calling such witnesses as would require to establish its case against an accused person – See MANAWO OGBODU VS. STATE (1987 3 SCJN 95 cited in support.
It is said that in the instant case the respondent has failed to prove its case against the Appellant beyond reasonable doubt and does make the trial Court to act in speculation in reaching its conclusion which is ought to be set aside by allowing this appeal. The learned counsel for the appellant therefore urges this Court to hold so since a Court of law is not permitted to speculate whether in a civil or criminal proceedings – See AIGUORE LIAN VS. STATE (2004) 1 SCNJ 65 91 cited in the brief. He stated lastly that the essence is to leave no reasonable doubt of the guilt of the accused. It is not a matter of probability but that of certainty. On this final note the appellant urges us to answer his 1st issue in the negative and to allow the appeal on the said issue.
The respondent who also formulated two issues which are similar to the ones formulated by the appellant and also stated his argument by arguing issue No. 1 – the same as the appellant’s issue I. The question raised under the issue is whether the prosecution has established its case against the appellant beyond reasonable doubt to justify her conviction by the lower Court. The charge against the appellant is stated in the brief as:-
“That you faith Iweka adult on or about the 26th day of February, 2008 at Kankatu area in Ilorin Kwara State within the jurisdiction of this Honourable Court without lawful authority dealt in 296.1 Kilograms of cannabis sativa a drug similar to LSD and thereby committed an offence contrary to and punishable under section 10c of the NDLEA Act Cap. 253 LFN 1990.”
It is also stated that on the above charge the prosecution called 4 witnesses and tendered Exhibits A1 – D36 in order to prove its charge against the appellant. On that basis the respondent submits that the prosecution has proved its charge against the appellant beyond reasonable doubt. The ingredients of the offence charged are given in the respondent’s brief as:-
(a) That the appellant was in possession of the seeds Suspected to be Indian hemp
(b) That the Appellant dealt in Indian hemp
(c) That what was found on the Appellant was scientifically proved to be Indian hemp.
(d) That the appellant had no lawful authority to Deal in Indian hemp.
It is said that on the 1st ingredient above, the prosecution called 4 witnesses – PW1, PW 2 and PW 3 who were all said to be officers of the Agency who participated in the surveillance as well as the operation which led to the recovery of the 296.1 Kilograms of Indian hemp on 26th February, 2008.
The drugs were said to be found in the house of one Monday Iweka – who was a step son to the Appellant and the appellant was interrogated as to the ownership of the Indian hemp and she volunteered a confessional statement wherein she said as follows:-
“On 12/9/2007, he (Fidelis) brought me 36 bags of Indian Hemp He asked me to keep it till the price of the market will go up – since then I kept it close to where I lived until about two weeks when is sensed that some officers of drug were patrolling where I kept it…. I sought the assistance of my step son Monday.”
It is stated in the brief that the above statement made by the appellant on 26/2/2008 was tendered at the trial as part of the prosecutions case and it was admitted as Exhibit 2 without any objection by the appellants counsel.
The evidence unequivocally proved that the appellant was in a constructive possession of the Indian Hemp as at the time of the seizure of the drugs. In addition to the statement, it is also submitted that the appellant signed Exhibit 2 – which was the packing from where she acknowledge the drugs.
There was also the evidence of the prosecution witnesses that gave a graphic account of how the drug was traced and recovered. It is submitted that the totality of the above evidence proved that the appellant was in constructive possession of the 296.1 Kilogrammes of Indian Hemp on the date of her arrest on 26/2/2008.
On the 2nd ingredient of the offence that the appellant was dealing in Indian hemp this is said to be provided by the appellant herself as follows:
“I do realize N1 ,500 on daily basis on the pieces/parcels of Indian Hemp I sell. One Fidelis from Ogbese Akure Ondo State came and introduced me to selling in bags of Indian Hemp with commission of N500 per bag I am able to sell.
On 12/9/2007 he brought me 36 bags of Indian Hemp to keep.”
The above admission or confession from the appellant provided a good means of proving that she is prompted by the strongest sense of guilt.
The prosecution also proved the 3rd ingredient of the offence – i.e. what was recovered from the appellant was Indian Hemp. This is said to be in the evidence of PW4 – who testified that when he got to the office, a preliminary test was done in the presence of the appellant and it proved positive that it was Indian Hemp. PW4 then prepared Exhibit B which was signed by the appellant and other witnesses. PW4 also testified that the drug was sent for forensic analysis whereupon Exhibit C was produced as the result of the analysis. It is said that this Exhibit ‘C has satisfied the requirement of Section 42 (1) (a) of the Evidence Act. It is submitted that Exhibit C satisfied the requirement of a Certificate under that section.
On the final ingredient of the offence the respondent submits that the onus lies on the appellant (as the accused person) to prove that she had a lawful authority to possess and deal with the Indian Hemp – See S.I41 (1) of the Evidence Act. It is the submission of the prosecution that the appellant failed to show that she had any lawful authority to deal with the said Indian hemp.
The cumulative effect of all the above foregoing proof is that the prosecution has proved all the ingredients of the offence and has consequently proved the charge against the appellant beyond all reasonable doubt.
On the heavy weather made by the appellant to show that the case had not been proved against her on the following points:
(a) that the drugs was not recovered at or from Gaa Imam Area, Ilorin where the appellant resides but from one Monday Eweka of Kankatu Area of Ilorin.
(b) that Monday Iweka was not called as a witness and that Monday Iweka was a fictitious person.
On the above points the respondent’s brief submits that the appellant’s as counsel misconceived the prosecution case. The appellant herself confessed 31 in Exhibit 2 as follows –
“I sought the assistance of my step son who does not stay with us. She further said that the step son Monday lives around Kankatu area Ilorin.”
This in effect means that the appellant moved the drugs to Kankatu area of Ilorin. She did not cease to be in possession of the drugs simply by moving them out of her house. Thus she remained in the constructive possession even though the drugs were moved to Monday Iweka’s house.
On the 2nd point, the respondent submits that Monday Iweka cannot be a fictitious person even from the appellant’s evidence in Exhibit A2 where she witnessed the weighing and packing of the drugs in the presence of her step son Monday.
The respondent cited and relied on the case of Igoala vs. The State (1991) 3 SCNJ 61 at 64 where the Supreme Court held that –
“The duty of the prosecution is not to call every eye-witness but to call enough witnesses to enable them discharge the onus of proof incumbent on them to prove their case beyond reasonable doubt, in performing their duty the prosecution has only to prove facts in issue. For the purpose the prosecution is not obliged to call every or any number of witnesses or in deed sake whereby law corroboration is necessary or any fact is seriously in contention to call more than one witness or any particular issue.”
Finally the respondent on the 1st issue prays and urges this court to discountenance the appellant’s submissions on the issue and to uphold the findings of the trial court that the prosecution has proved its case beyond reasonable doubt against the appellant.
From the above submissions for and against the appeal, what is crucial under the 1st issue is to determine whether the prosecution has proved or established its case against the appellant beyond reasonable doubt in order to justify her conviction by the lower court. The first point to note is the nature of the evidence which the trial court regarded as circumstantial but which the appellant’s learned counsel regards as a hearsay evidence and urges us to regard it as such.

The general rule of common law is that “former statement of any person whether or not he is a witness in the proceedings may not be given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted in them unless they were made by a party or, in some circumstances, the agent of a party to those proceedings and constitute admission of fact relevant to those proceedings – see Phipson on Evidence 12th Edition page 263 Paragraph 625; SUBRAMANIAN VS. PUBLIC PROSECUTOR (1956) 1 WLR 965 AT 969; JUDICIAL SERVICE COMMITTEE VS. OMO (1990) 6 NWLR (PT. 157) 407 AT 468.
From the above definitions, the fact of the present case where the prosecution witnesses (particularly PW1 narrated what they were told by One Monday Iweka in whose house the 296.1 kilograms of Indian hemp was found who told them that he was a step son to the accused and that it was also the accused who brought the bags of drugs to his house and told him that they were bags of Garri is more appropriate to the above definition of hearsay evidence than that of a circumstantial evidence. This shows that the definition of evidence of the prosecution by the learned trial judge as circumstantial was wrong and improper. As seen from the above, it is better called or described as hearsay evidence. Consequently applying the above common law rule and on the authority of the above cases if the learned trial judge had treated the evidence as hearsay, it would have rejected the narration of the prosecution witnesses to prove the truth of what Monday Iweka had told them – see also UTTAH VS. STATE (1992) 2 NWLT (PT 223) 257 AT 273. It is pertinent to note that the appellant in the present case had, in her evidence before the trial court, denied and even gave the story of how her house at Gaa Imam was searched by the NDLEA men and nothing incriminating was found. The people also took her to her shop which they searched without finding anything (see page 60 of the record). I must state here that I acknowledge the fact that although the appellant’s retraction of her confessional statement in court would not affect its potency so long as it was fairly and voluntarily made and the court is satisfied that it is true. I must however at the same time consider the fact that this is a criminal trial in which the appellant complained of her being forced to sign the statement.
This should be moreso when the learned trial judge accepted the confessional statement of the appellant without considering other circumstances in the case which are capable of weakening the said evidence.
For example even though the practice where a confessional statement alone can be a basis for convicting the accused person such a confessional statement is however required to be direct, positive and unequivocal about his committal of the crime. There is also the practice that where a confessional statement is made by the accused person as in the instant case, such an accused person and the confessional statement are required to be taken to a superior officer who reads over and interpret the statement to him and he confirms it as voluntarily made by him. This has been a commended practice in Nigeria and assures that the confessional statement was voluntarily made by him – see QUEEN VS. OMERWURE SAPELE AND ANOR. – IN RE GERMAN AWIP (1957) 2 FSC 24; NWIBIKO OBODO & ORS. VS. THE QUEEN (1958) 4 FSC 1; R. VS. IGWE (1961) ANLR 330 AT 333; KIM VS. THE STATE (1992) 4 SCNJ 81; NWIGBOKE & 6 ORS VS. THE QUEEN (1959) 4 FSC 101 AT 102; and DIBIE VS. THE STATE (2007) 3 SCNJ 160 AT P. 183.

The learned trial judge in the present case should have looked at the above issues especially in view of what the appellant told the court that the officers took her to their office handcuffed her and put her in the cell after which she was brought out and they asked her to sign a statement with someone holding a horsewhip with which he was beating her (see page 6 of the judgment page 102 of the record). At this stage the court (i.e. the trial court) should have conducted a trial within trial to confirm the voluntary nature of the confessional statement. She also denied knowing anybody called Monday Iweka of Kankatu area in whose house the Indiam hemp was said to be recovered. In GODWIN ANYANWU VS. THE STATE( 2002) 6 SCNJ 362
where like in the present case, the accuse person made a confessional statement that was only accepted by the Supreme Court (per Mohammed, JSC) because of the admission of the appellant of the said statement in the court (i.e. the trial court) that it was his correct statement – at page 382 of the report. A court of law normally requires some other evidence in addition to a confessional statement which makes the confessional statement probable that same is true. Issues that are considered for this purpose are:
(a) whether there is any evidence outside the confessional statement to show that it is true;
(b) whether the confessional statement is in fact corroborated;
(c) whether the statement of fact in the confessional statement could be tested as true;
(d) whether the accused really had the opportunity of committing the offence;
(e) whether the surrounding circumstances of the case;
(f) whether the confession was consistent with other facts which were ascertained and proved at the trial.
In the instant case considering only the prosecution evidence and the complain or coercion by the accused (appellant) in making the confession and her denial of the contents of the said confession – including the knowledge of Monday Iweka show that the confessional statement cannot be tested as true – see KARAM VS. R. (1952) WACA 30L and SHANDE VS. STATE (2005) 1 NWLR (PT. 907) 218 AT P.225-226.
On my above consideration I do not think that the prosecution has proved the guilt of the appellant beyond reasonable doubt, this is despite the fact that “reasonable doubt” is said not to be proof beyond all shadows of doubt – see AKALLZI VS. STATE (1993) NWLR (PT. 273) 1; OFEKI VS. A.G. BENDEL STATE (1996) 2 NWLR (PT. 24) 648 and STATE VS. USMAN(2005) 1 NWLR (PT. 906) 80 AT 161.
I am fortified on my holding by my reasons given above particularly by the appellant’s denial of making the confessional statement voluntarily.
She also denies knowing Monday Iweka who has not been called to give evidence and in whose house the Indian hemp was recovered (also in the absence of the appellant). Consequently the 1st ingredient of the offence charged which were said to be proved by the respondent has not been so proved. Thus it cannot be said that the appellant was in possession of the seeds suspected to be Indian hemp – which were found in the house of Monday Iweka rather than in her own house or shop. The 1st issue should therefore be answered in the negative and resolved in favour of the appellant.
Under his issue No.2 – whether the conviction of the appellant based on Exhibit 2 by the lower court (i.e. her confessional statement) was proper in the circumstances of the case; the appellant rightly adopts his earlier submission under issue 1 as above considered. In addition to that the appellant also made additional submissions on the need for the court to subject a confessional statement to scrutiny in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case. I have noted the cases cited by the appellant which include OMOJU VS. FRN (2008) ALL FWLR (PT. 415) 1656; NWACHUKWU VS. STATE (2007) ALL FWLR (PT.390) 1380; HASSAN VS. STATE (2001) FWLR (PT.74) 212. I have also noted the issues normally to be considered by the court in determining the truth or otherwise of the confessional statement and the authority cited by the appellant of KAZEEM VS. STATE (2009) ALL FWLR (PT./ 465) 1776 cited by the learned counsel for the appellant before finally urging us to hold that the failure of the learned trial judge to look for these issues but to hold that the confessional statement in the present case without looking for other independent witnesses to confirm the truth of the confessional statement led to a miscarriage of justice against the appellant.
On the other hand, I have read the respondent’s submissions on the issue of the confessional statement. The respondent urges us to hold that the learned trial judge rightly found that since the confessional statement was corroborated by other evidence of the prosecution, there is no need to insist on calling Monday Iweka. The respondent therefore submits that the arguments of the appellant’s learned counsel is therefore misconceived -see the cases of ONWUMERE VS. THE STATE (1994) 4 NWLR (PT.186) 428 AT 430; AKPAN VS. THE STATE (1990) 7 NWLR (PT. 101) 103; OCHE VS. THE STATE (2007) 5 NWLR (PT. 1027) 214 AT 219; and OKORO VS. THE STATE (1993) 3 NWLR (PT. 282) 425 AT 436.
I am of the view that the above submissions from the two brief already discussed has been adequately treated in this judgment under the 1st issue above. It must be recalled that I held under the 1st issue that the complaint of coercion by the appellant in making the confessional statement in this case and her denial of the contents of the said confessional statement as well as the knowledge of Monday Iweka show that the confessional statement cannot be tested as true. I also gave a list of the 6 (six) issues to be considered by the court for the purpose of confirming the probability of such a confessional statement which were not considered by the learned trial judge in the present case. All that remains for me to do is to accept the additional submission of the learned counsel for the appellant and the authorities he cited in support thereof and to hold that the failure of the learned trial judge to look for those issues or other independent evidence to confirm the truth of the confession had led to a miscarriage of justice against the appellant herein. This is in line with what the Supreme Court held (per Tabai, JSC) IN THE CASE OF OLAYINKA VS. STATE (2007) ALL FWLR (PT. 3073) 163 AT P. 175 when it held as follows:
“Where there is a dispute as to whether an accused made a statement voluntarily to the police, an issues as to admissibility is raised and it becomes the duty of the trial court to try the voluntariness of the statement sought to be tendered. When an accused person retracts a confessional statement on the ground that it was not voluntarily made, in such a situation the trial court has a duty to try this issue of the voluntariness or otherwise of the statement in what is called “trial within a trial” see GBADAMASI VS. STATE (1992) 9 NWLR (PT. 266) 465; R. VS. ONABANJO (1936) 3 WACA 4″.
The above dictum in my view aptly applies to the present case. Issue No.2 should also be answered in the negative and be resolved in favour of the appellant. With the two issues in the present case being resolved in favour of the appellant, her appeal has succeeded and should be allowed.
The appeal is accordingly hereby so allowed. The judgment of the lower court is hereby set aside and the appellant is hereby discharged and acquitted of the charges against her. Appeal allowed.

HON. IGNATIUS IGWE AGUBE, J.C.A: I have read the draft of the lead judgment of my noble Lord Adamu (OFR), P.J. (J.C.A) and am in complete agreement with his reasoning and conclusion that this appeal is meritorious and should be allowed.
There is no doubt that the evidence of Monday Iweka was very crucial to establish the guilt of the Accused/Appellant beyond reasonable doubt since it was from his house that the Indian hemp the Appellant allegedly dealt in was found. Section 149(d) of the Evidence Act, is very clear that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. See Buba v. The state (1994) 7 NWLR 195 and Rasaki Folorin v. The State (1995) INWLR 404 at 408.
Although mere failure to produce evidence would not necessarily amount to withholding evidence, where as in this case, the evidence of the said Monday Iweka would have titled the balance of justice one way or the other, it became incumbent on the prosecution to call him since it was from his house that the Indian hemp purportedly kept there by his Accused/Appellant stepmother was recovered. More so, the Appellant had denied her confessional statement which would have nailed her without much ado.

In the recent case of The State v. Azeez (2008) 35 NSCQR 426 at 498; Ogbuagu J.S.C in his concurring contribution to the lead judgment of Muhammad J.S.C, succinctly stated the position of the Law thus:-
“In a line of decided authorities, it is now settled that it is the duty of the prosecution, to place before the Court, all available relevant evidence. That this does not mean of course, that a whole host of witnesses, must be called upon the same point, but that if there is a vital point in issue (as in the instant case leading to this appeal) and there is one witness whose evidence would settle it one way or the other, that witness ought to be called. See the cases of R.V. v. Essien 4 WACA 112 at 113; R. v. Eneme 7 WACA 134; Rex v. George Kuree 7 WACA 178; Wambai & Anor. v. Kano N. A. (1965) NMLR 15 and Gana v. The State (1973) NMLR 52; just to mention but a few.”

Not having called the said Iweka, the presumption is either that he does not exist or that he was a figment of the imagination of the prosecution just for the purpose of nailing the Appellant on mere suspicion for an offence she never committed. The failure or neglect to call that vital witness should have created doubt in the mind of the Court below which ought to have been resolved in favour of the Appellant. In the circumstance, and for the more detailed reasoning of my Lord the P. J., in his lead Judgment, I also hold that the prosecution has failed to discharge the burden of proving its case beyond reasonable doubt. Oghor v. The State (1990) 3 NWLR (Pt.139) 480; Ekpe v. The State (1994) 12 SCNJ 131 at 136 and The State v. Musa Danjuma (1997) 5 SCNJ. 126 at 130-137.
I also shall set aside the judgment of the Lower Court convicting and sentencing her to prison for dealing in Indian hemp. The Appellant is accordingly discharged and acquitted of all the charges against her.

CHIMA CENTUS NWEZE, J.C.A: I had the privilege of reading the draft of the leading judgment which my lord Adamu (OFR) JCA just delivered now. I am in agreement with him that the learned trial Judge, B. B. Aliyu J., erred in law in convicting the appellant.
As the leading judgment has exhaustively dealt with the issues necessary for the determination of this appeal, this contribution shall be circumscribed to the approach of the learned trial Judge to the so-called confessional statement of the appellant.
I agree with my Lord that the failure of the lower court to look for independent pieces of evidence to confirm the truth of the so-called confession had led to a miscarriage of justice against the appellant. This is very worrisome, indeed, because case law has sufficiently set out what a trial court should do in circumstances in which the said lower court found itself. The various Law Reports are replete with authorities on this matter.

The tests which the courts have designed for determining the truth or otherwise of a confessional statement may be summed up thus: the trial court has to look out for other evidence of circumstances which make it possible that the confession is true.
In doing this, the court would consider issues such as these:
(a) Whether there is anything outside the confession to show that it is true;
(b) Whether the statement is corroborated;
(c ) Whether the statement of fact made in the confessional statement, so far as can be tested, is true;
(d) Whether the accused person had the opportunity of committing the offence charged;
(e) Whether the confession of the accused person was possible;
(f) whether the confession was consistent with other facts which have been ascertained and proved at the trial, Akpan v The State (supra) 623; citing Ikpasa v A. G. Bendel State (1981) 9 SCN7; see, also, Kareem v FRN (2002) (No 2) FWLR (pt 104) 555; (2003) 16 WRN 114.
In this case, the lower court did not comply with these tests. That was a fatal error that occasioned a miscarriage of justice, as shown above. For these, and the detailed reasons contained in the leading judgment of my learned brother, Adamu JCA, I, too, shall enter an order allowing the appeal. Accordingly, I hereby allow this appeal. I abide by the consequential orders in the leading judgment.

Appearances

H. A. Gegele (D.O.P.D) Kwara State with M. B. Ahmed (Mrs.)
S.L.O., A.O. Ahmed, S.L.O. and A.B. Nuhu S.L.O.For Appellant

AND

R. J. Hinminkaiye S.L.O., I. J. Igwubor S.L.O.For Respondent