FEDERAL REPUBLIC OF NIGERIA V. FAITH IWEKA(2011)

FEDERAL REPUBLIC OF NIGERIA V. FAITH IWEKA

In The Supreme Court of Nigeria

On Friday, the 9th day of December, 2011

SC.454/2010

RATIO

EVIDENCE: CONSEQUENCE OF A WITNESS GIVING ORAL EVIDENCE WHICH CONTRADICTS HIS PREVIOUS STATEMENT IN WRITING

Where a witness gives oral evidence which contradicts his or her previous statement in writing, that evidence should be treated as unreliable and liable to be rejected. See GABRIEL Vs STATE (1989) 5 NWLR (part 122) 475; OGOALA Vs THE STATE (supra). PER FRANCIS FEDODE TABAI, J.S.C.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO INTERFERING WITH FINDINGS OF A TRIAL COURT

I consider it appropriate at this juncture to reiterate the legal principle that questions involving the assessment of the credibility of witnesses is the excusive preserve of the trial court which alone had the opportunity to hear, see and watch the demeanour of the witnesses in the witness box.

EVIDENCE: IMPLICATION OF NOT OBJECTING TO THE ADMISSIBILITY OF A STATEMENT

The implication of not objecting to the admissibility of a statement held out by the prosecution as confessional is that it is the statement volunteered by the accused person. Where therefore an accused person denies the voluntariness of a statement he or she should so indicate by objecting to its admissibility at the time it is being tendered in evidence. It is then and only then that the issue of voluntariness would be tested at a trial-within-trial. PER FRANCIS FEDODE TABAI, J.S.C.

CRIMINAL LAW: WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

It has been settled in a long line of authorities that in appropriate cases an accused person can be properly convicted on his or her confessional statement alone. See OJEGELE Vs THE STATE (1988) 1 N.S.C.C. 276. Although it is always desirable to have some evidence outside the confession in further proof of the offence, the absence of such additional evidence would not necessary prevent a court from convicting on the confessional statement alone provided the statement satisfies the tests of being positive, direct and unequivocal. See QUEEN Vs OBIOSA (1962) 1 ALL NLR 651 PER FRANCIS FEDODE TABAI, J.S.C.
CRIMINAL LAW: DUTY OF THE PROSECUTION IN PROVING THE GUILT OF AN ACCUSED

In my view, the duty of the prosecution is to establish the available evidence sufficient to prove the guilt of the accused person beyond reasonable doubt. It follows therefore, that where an accused person admits the commission of an offence through his voluntarily confessional statement the prosecution is relieved of any further duty of proof. PER FRANCIS FEDODE TABAI, J.S.C.

JUSTICES

ALOMA MARIAM MUKHTAR Justice of The Supreme Court of Nigeria

FRANCIS FEDODE TABAI Justice of The Supreme Court of Nigeria

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria

Between

FEDERAL REPUBLIC OF NIGERIA Appellant(s)

AND

FAITH IWEKA Respondent(s)

FRANCIS FEDODE TABAI, J.S.C. (Delivering the Leading Judgment): The respondent was the accused person at the trial in the Ilorin Division of the Federal High Court. The charge dated the 18th March, 2008 reads as follows:-
“That you Faith Iweka (M) 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 kg Cannabis Sativa a drug similar to cocaine heroine, LSD and thereby committed an offence contrary to the and punishable under S.10(c) of the National Drug Law Enforcement Agency Act, Cap 253 Laws of the Federation of Nigeria 1990.”
The Respondent as accused pleaded not guilty to the charge. At the trial, the Prosecution called four witnesses. At the close of the case of the prosecution, learned counsel for the accused/Respondent made a no case submission. On the 12th May, 2008 the learned trial judge Bilikisu Bello Aliyu J. gave the ruling of the court, holding that the evidence of the prosecution was not discredited under cross-examination and that the accused therefore needed to state her own side of the story in rebuttal. The no case submission was therefore dismissed. The accused then gave her testimony in self defence. Written addresses were submitted by counsel both for the prosecution and the defence. These written addresses were adopted at the proceedings on the 2nd December, 2008.
In the judgment of the trial court on the 10th February, 2009, the accused/Respondent was convicted. And after a plea of allocutos the learned trial judge sentenced her to five (5) years imprisonment. The accused/Respondent was not satisfied with the judgment and proceeded on appeal to the Court below. The notice of Appeal was dated 3rd June, 2009. At the court below, briefs of arguments were filed and exchanged. In its judgment on the 30th of March, 2010, the appeal was allowed, the judgment of the trial court set aside and a verdict of discharge and acquittal entered for the Respondent.
The Appellant was not satisfied with the decision and has therefore come on appeal to this court. The Notice of Appeal contained five grounds of appeal. The parties filed and exchanged their briefs of argument. The Appellant’s brief was settled by Chuka Francis Agbu. It was filed on the 17th January, 2011. And the Appellant’s Reply Brief also prepared by Chuka Francis Agbu was filed on the 23rd February, 2011. The Respondent’s Brief was prepared by Dr. Akin Onigbinde. It was filed on the 9th of February, 2011. Learned counsel for the parties agreed on the issues for determination that properly arose from the grounds of appeal. The issues are as follows:-
(i) Whether the confessional statement of the accused person was admissible in the circumstance and sufficient to ground a conviction of the Respondent.
(ii) Whether the failure to call Monday Iweka a step son Respondent to testify in the case was fatal to the case of the prosecution.
(iii) Whether the prosecution has proved the case against the accused person beyond reasonable doubt.
The substance of the submissions of learned counsel for the Appellant is as follows:
With respect to the first issue of whether the confessional statement of the accused person was admissible and sufficient to ground her conviction, learned counsel reiterated the established legal principle that an accused person can be convicted on his confessional statement alone if its voluntariness is established and cited IKEMSON Vs STATE (1989) 3 NWLR (part 110) 455 SABURI ADEBAYO Vs AG OGUN STATE (2008) 7 NWLR 201 , ONWUMERE Vs THE STATE (1991) 4 NWLR (part 186) 428 at 430; AROGUNDADE Vs STATE (2009) 6 NWLR (part 1136) 165 and OSUAGU Vs STATE (2009) 1 NWLR (part 1123) 52. Learned counsel submitted that the trial court was properly guided by the above principle in its reaction at page 122 of the record of proceedings. He referred to the Respondent’s vivid account of how she procured the 36 bags of cannabis sativa and the trial court’s belief of same and submitted that the Respondent’s retraction of the statement in her evidence does not mean that the court could not act upon it. Reliance was place on AKINMOJU Vs STATE (2000) 6 NWLR (part 662); UBIERHO Vs STATE (2005) 5 NWLR (part 919) He referred to the findings of the Court below at page 203 of the record and argued that there were no circumstances that permitted a trial-within-trial to test the voluntariness of the statement, contending that the appropriate point to raise the issue of voluntariness of an alleged confessional statement is when it is being tendered in evidence. He relied on NWACHUKWU Vs THE STATE (2007) 5 NWLR (part 1027) 214 at 219; OKORO Vs STATE (193) 2 NWLR (part 28) 425. On this issue, learned counsel referred to the proceedings on the 10th of April, 2008 at page 16 of the record. It was counsel’s further submission that once a court has taken a decision on an issue, it becomes functus officio and cannot modify revisit or make another decision on the same issue. He relied on F.I.B. PLC Vs CITY EXP. BANK LTD (2004) 6 NWLR (part 869) 236 at 243 and MOHAMMED Vs. HUSSEINNI (1998) 14 NWLR (part 584) 108 at 138 – 139. The retraction of a confessional statement by an accused person in his evidence notwithstanding, the trial court which had the opportunity of watching the demeanour of the accused person can nevertheless rely solely on it to ground a conviction. Reliance was placed on DIBIE Vs STATE (2007) 9 NWLR (part 1038).
According to learned counsel, this case is distinguishable from OLAYINKA Vs STATE (2007) ALL FWLR (part 3073) 163 at 175 relied upon by the Lower court on the ground that therein the accused promptly raised the issue of involuntariness of the statement at the point it was sought to be tendered. He relied further on ADEGOKE MOTORS LTD Vs ADESANYA (1989) 3 NWLR (part 109) 250 at 275; ADESOKAN Vs ADETUNJI (1994) 5 NWLR (part 346) 540 at 577. On this issue, learned counsel referred to the affidavit of service deposed to on the 22nd April, 2008 at page 24 of the record and the Respondent’s retraction of the statement in her evidence on the 14th October, 2008 and pointed out that the Respondent retracted when she was sure that Monday Iweka would not be available to give evidence.
Learned counsel also pointed out that the involuntariness of the confessional statement and the need for trial-within-trial was not made an issue by the Respondent and that it was the court below that suo motu raised it. He referred to the Appellant’s Brief at pages 142 – 143 of the record and contended that the fulcrum of the arguments therein was on the weight to be attached to the confessional statement and not the involuntariness of the statement. He submitted that the court, being an empire cannot make a case for the parties, nor can it make a case different from that presented by the parties.
Assuming, without conceding, that the confessional statement was not corroborated, the Respondent could still be convicted upon it, learned counsel argued. He relied once more on NWACHUKWU Vs STATE (supra). Learned counsel referred to the evidence of the PW1 – PW4 which he described as consistent and argued that the trial court which alone has the benefit of watching the demeanour of the witnesses was entitled to believe the evidence and made the necessary findings. In the circumstances, learned counsel argued, the court below was not entitled to substitute its own findings for those of the trial court. Counsel relied on OSUAGWU Vs STATE (2009) 1 NWLR (part 1123) 531 at 543. He urged that this issue be resolve in favour of the Appellant.
On the second issue of whether the failure to call Monday Iweka to testify in the case was fatal to the case of the prosecution, counsel argued that the duty of the prosecution was that of calling material evidence sufficient to prove the case. That it had no duty to call a particular witness or number of witnesses, Reliance was placed on Section 179 of the Evidence Act E14 Laws of the Federation 2004. It was pointed out that failure of the prosecution to call Monday Iweka was not the fault of the prosecution and referred to pages 22 – 25 of the record. It was submitted that the failure to call a particular witness can only be fatal to the case of the prosecution if the said failure leads to the failure to prove essential ingredients of the offence or the omission of a material evidence. According to learned counsel, there was no evidence which Monday Iweka could have given which is not already before the court.
With respect to the third issue of whether the case was proved against the Respondent beyond reasonable doubt, learned counsel relied on OLADELE Vs NIGERIAN ARMY (2004) 6 NWLR (part 868) 166 and contended that the evidence of the four prosecution witnesses and Exhibits A1-D36 established the charge against the Respondent beyond reasonable doubt.
The substance of the arguments of Dr. Akin Onigbinde in the Respondent’s Brief is as follows: On the 1st issue, learned counsel agreed with the settled principles of law that an accused person can be convicted on the confessional statement alone and that confession is the best evidence in criminal law. lt was his submission however, that although the statement was admitted without objection, nothing prevented her from retracting same during her defence. It was further submitted that the lower court was right to subject the purported confessional statement to series of tests to ensure that it was direct positive and unequivocal. Learned counsel relied on the provisions of Section 28 of the Evidence Act. A confession even thought admitted in evidence would still be irrelevant if it appears to the court to have been induced by threat, inducement or promise, counsel argued. The court cannot close its eyes to circumstances which suggest that the Confession is not true, voluntary direct positive and unequivocal, he contended. Learned counsel referred to the case of SULE IYANDA SALAU Vs STATE (1971) NML & 249 and submitted that a court will not convict an accused person on a retracted confessional statement without first of all testing the probative value of same. It was the further submission of counsel that where a confession is subsequently retracted there should be some corroboration even if slight. He relied on Criminal Law and Procedure of Lagos, Eastern and Western Nigeria by Brett O Maclean 34th Edition at page 283 paragraph 345; DIBIE Vs STATE (2005) ALL FWLR (part 259) page 1995 at 2019 and 2018 – 2019; and OMASANYA MUMUNI Vs THE STATE (1975) 6 SC 79 at 94.
Learned counsel further argued that it is not every error of law that warrants the reversal of the judgment, and that to warrant a reversal, it must be shown that the error occasioned a miscarriage of justice. Reliance was placed on OLADEJO ADEWUYI AJUWODI Vs FADEKE AKANNI & 10 OTHERS (1993) NWLR (part 316) 182 at 205 and 206; ONAJOBI Vs OLANIPEKUN (1985) 4 SC (part 21 156 at 163 CHIEF OJE & ORS Vs CHIEF BABALOLA & OTHERS (1991); ONWUKA Vs OMOKUI (1992) 3 NWLR (part 230) 393.
With respect to the 2nd issue of whether the failure by the prosecution to call Monday Iweka to testify is fatal to its case, learned counsel described Monday, Iweka as the “anchoring” witness. Learned counsel referred to the evidence of the PW1 under cross-examination that Monday Iweka was arrested and later released from custody so that he could be used as a witness and wondered why his statement was not taken and recorded. He contended that Monday Iweka was not just a desirable witness; he was a material witness. It was counsel’s further contention that if the link provided by Monday Iweka in broken, the prosecution’s case of possession is also broken. He pointed out that it was Monday’s confession that triggered the arrest of the Respondent. It was counsel’s further argument that all the evidence of the prosecution about Monday Iweka’s s story about the Respondent being the owner of the drugs is hear say evidence. In conclusion it was urged that the appeal be dismissed.
In the Appellant’s Reply brief learned counsel for the Appellant argued as follows. With respect to the 1st issue learned counsel argued that where the error of law substantially affected the outcome of the decision, then it can lead to a reversal of the decision. Reliance was placed on EZE OBIEFUNA (1995) 7 NWLR SCNJ 75 at 91 and ADEWUNMI Vs EKITI STATE (2002) FWLR (part 92) 1835 at 1869 – 1870. Learned counsel pointed out that the error of law committed by the Lower Court was its view that a trial-within-trial was necessary and which view led to its finding that the statement was not voluntary.
Relevance, counsel argued, is the basis of admissibility and therefore that a piece of evidence which is not relevant is inadmissible, Learned counsel submitted that the test of relevance of a confessional statement is its voluntariness and once the statement was admitted on the ground that it was voluntarily made, the court cannot turn round to hold that it was not relevant simply because the accused subsequently denied its voluntariness.
On the 2nd issue of whether the failure of the prosecution to call Monday Iweka as a witness was fatal to the prosecution’s case, learned counsel referred to the case of AFOLABI Vs THE STATE (2010) 16 NWLR (Part 1220) 584 at 616 in which it was emphasized that the right of the prosecution to call witnesses to prove its case was not a mere privilege but a prerogative. Counsel argued that where the prosecution failed to call a particular witness, nothing stops the defence from calling the witness. He relied on OLAYINKA vs STATE (2007) 9 NWLR (part 1040) 561; IMHARIA Vs NIGERIAN ARMY (2007) 14 NWLR (part 1053) 76. Although Monday Iweka was a desirable witness, he was not a vital witness, counsel argued. It was counsel’s final submission that on the basis of the evidence before the court, the prosecution proved its case against the Accused/Respondent beyond reasonable doubt and urged that the appeal be allowed.
Let me now try to resolve the issues raised in this appeal. The first question is whether in the circumstances the statement of the Accused/Respondent was admissible and rightly so admitted. On this question the proceedings at the trial court on the 10/4/2008 are relevant. On that day the Accused/Respondent was represented by her counsel, Imam Fulani Isa Esq. Mrs. M.O. Adeleye was for the prosecution. The relevant witness for the prosecution was the PW2 Mustapha Muhammed Na’la. At page 16 of the record he narrated how he recorded the statement and eventually tendered the statement. Part of his evidence runs thus:-
The accused was referred to me for recording her statement. She told me she understood English. I read and explained the cautionary words to the accused. She said she understood. I wrote her statement and she thumb printed it. I signed as the recording officer. She asked me to write it because she could not.
After I finished, I took the accused to my superior officer DSN Bala Usman. He read the statement to the accused who understood it before he counter signed. If I see the statement I can recognize it through my handwriting and signature. I see this statement, it is the one recorded.
“Pros – seek to tender the statement of the accused dated 26/2/08 in evidence.
Mr. Isa – No objection
Court – The statement of the accused person dated 26/2/08 is admitted in evidence as exhibit PW2A. It is taken as read”.
And so the statement was admitted without objection on the 10/4/08. Involuntariness and/or admissibility was not raised as an issue.
On the 14/10/08 when the Accused/Respondent testified she raised the issue of duress. According to her she was handcuffed and that cuffs were also put on her legs; she was also beaten and forced to thumb print Exhibit “2A” the alleged confessional statement. Thus the Accused/Respondent raised the issue of duress and involuntariness six months after the statement had been admitted in evidence without objection. The question is whether admissibility could still be made an issue on the 14/10/08 when the Accused/Respondent testified. I shall answer this question in the negative. The appropriate time to raise the issue was on the 10/4/08, when after laying the necessary foundation, the prosecution applied to tender the statement in evidence. On that 10/4/08 the Accused/Respondent had all the opportunities to raise, through her counsel, the issue of involuntariness of the statement. The trial court would then have had a duty to conduct a trial-within-trial to determine that issue of whether the statement was made under duress.
On this question of the appropriate point in a criminal trial at which to raise the issue of involuntariness of a confessional statement, the learned trial judge at page 122 of the record reasoned and found as follows:-
“To begin with this issue of duress was not raised when the prosecution tendered the confessional statement in evidence. Neither the defence counsel nor the accused person objected to the admissibility of the statement. In fact I remember vividly that when the prosecuting counsel applied to tender the confessional statement in evidence through the PW2, the statement was handed over to the defence counsel who moved over to the accused in the box and made some consultation with her. We waited for some time while this was going on before the counsel said there was no objection to the admission of the statement in evidence and the court admitted same.”
The learned trial judge referred to NWACHUKWU Vs THE STATE (2004) 17 NWLR (part 902) 262 at 273 and OKARO Vs THE STATE (1988) 2 NWLR (part 81) 214 and the finding of the Court of Appeal therein and found as follows:
“The Court of Appeal further held that where a confessional statement has been tendered and admitted without objection, its later retraction cannot vitiate the proceedings. I therefore agree with the prosecution’s counsel that the retraction of the confessional statement is an after thought. The statement stands as evidence against the accused person and I so hold.”
Can the above reasoning and conclusion of the learned trial judge be faulted. I do not think so. The learned trial judge was, in my view, properly guided by the law as to the appropriate point to raise an issue of involuntariness and thus the inadmissibility of a confessional statement. If, on the 10/4/08 when the prosecution sought to tender the confessional statement in evidence the Accused/Respondent had objected to it’s admissibility on the ground that it was made under duress, the trial court would have been under a bounden duty to try that issue of involuntariness in a trial-within-trial. See OBIDIOZO Vs STATE (1987) 4 NWLR (part 67) 748; OJEGELE Vs STATE (1988) 1 NWLR (part 71) 414; ONYEJEKWE Vs. STATE (1992) 3 NWLR (part 230) 444. Therefore on the 14/10/08 when the Accused/Respondent raised the issue of duress in the course of her evidence the admissibility of the statement had been mutually settled. It could not have been re-opened. The Accused/Respondent was however at liberty to raise involuntariness as a defence. Nothing prevented her from doing so. The duty of the court at that stage was to assess its credibility and found upon it. And that is what the learned trial judge did. He examined and rejected the evidence, describing the defence as an afterthought. In the light of the conflict between her testimony in court and her previous statement to the police, the trial court had every reason to disbelieve her evidence.
Where a witness gives oral evidence which contradicts his or her previous statement in writing, that evidence should be treated as unreliable and liable to be rejected. See GABRIEL Vs STATE (1989) 5 NWLR (part 122) 475; OGOALA Vs THE STATE (supra).

And in particular, having regard to the fact that the finding arose from the trial court’s assessment of the credibility of the witness the court below ought not to have disturbed it in the absence of a strong reason to do so.
I consider it appropriate at this juncture to reiterate the legal principle that questions involving the assessment of the credibility of witnesses is the excusive preserve of the trial court which alone had the opportunity to hear, see and watch the demeanour of the witnesses in the witness box.

An appellate court which does not have that opportunity of hearing and watching the demenour of the witnesses should therefore be weary to interfere with a finding of a trial court on the credibility of a witness. See ASANYA Vs STATE (1991) 3 NWLR (part 180) 422; POPOOLA vs ADEYEMI (1992) 8 NWLR (part 257) 1. In this case the trial court assessed the defence of the Accused/Respondent that she made the statement under duress and rejected same. I do not, with respect, think that the court below had any conceivable reason to substitute its own findings for those of the trial court. As a matter of fact learned counsel for the Appellant at paragraph 4.29 at pages 15 – 16 of the Appellant’s brief pointed out that there was no issue of trial-within-trial and that the issue was raised by the court below suo motu. There is substance in this argument. I agree that there were no circumstances that warranted a trial-within-trial. Yet the court below predicated, its decision mainly on the need for a trial-within-trial. At pages 202 – 203 the court below, per Adamu JCA (as he then was) reasoned that in view of the testimony of the Accused/Respondent that she was handcuffed, detained, beaten up and forced to sign the statement the trial court ought to have conducted a trial-within-trial. The court below said:
“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 horse whip with which he was beating her. At this stage the court (i.e. the trial court should have conducted a trial-within-trial to confirm the voluntariness of the confessional statement.”
The above finding demonstrates the court’s misconception of when a trial-within-trial becomes necessary.
The implication of not objecting to the admissibility of a statement held out by the prosecution as confessional is that it is the statement volunteered by the accused person. Where therefore an accused person denies the voluntariness of a statement he or she should so indicate by objecting to its admissibility at the time it is being tendered in evidence. It is then and only then that the issue of voluntariness would be tested at a trial-within-trial. In this case the PW2, who recorded the statement had testified in April, 2008. He said the Accused/Respondent volunteered the statement which he recorded. It was not suggested to him by way of cross-examination that the Accused/Respondent was handcuffed, locked up, beaten up and was forced to sign a prepared statement. At the end of his testimony he was discharged by the court. The PW3 also said he read the statement to the accused and she accepts that it was her voluntary statement. It was also not suggested to him that the statement was not voluntary. He too was discharged at the end of his evidence. It was only in October 2008, six months after, in the course of her testimony that she raised the issue of involuntariness of the statement. It is not surprising therefore when the trial court held that her plea of the statement not being a voluntary one was an afterthought. The court below therefore erred when it predicated its decision mainly on the need for a trial-within-trial, an issue which never arose.
On the first issue therefore I hold that the statement of the Accused/Respondent was admissible, its admissibility not having been challenged. I hold that it was admissible and rightly so admitted.
Still on the first issue the next question is whether the statement was sufficient to ground a conviction.
It has been settled in a long line of authorities that in appropriate cases an accused person can be properly convicted on his or her confessional statement alone. See OJEGELE Vs THE STATE (1988) 1 N.S.C.C. 276. Although it is always desirable to have some evidence outside the confession in further proof of the offence, the absence of such additional evidence would not necessary prevent a court from convicting on the confessional statement alone provided the statement satisfies the tests of being positive, direct and unequivocal. See QUEEN Vs OBIOSA (1962) 1 ALL NLR 651
In the statement Exhibit PW2A the Accused/Appellant gave some details about her possession of the drug cannabis sativa. According to her it was one boy called Felix from Agbese, Akure area of Ondo Stall that introduced her into selling the Indian hemp in bags on the commission of N500.00 on every bag she was able to sell. That on the 12/9/2007 the said Felix brought her 36 bags of the weeds. She was to keep them until the prices were higher before selling them. She became apprehensive of being detected by NDLEA officials and decided therefore transfer them to the house of one Monday Iweka her step son and kept them in a room under the pre that they were bags of garri. Following some information the 36 bags were recovered from the house of Monday Iweka and the Accused/Respondent admitted their ownership.
It is clear from the statement that the Accused/Respondent positively and unequivocally admitted that she committed the offence. A confessional statement made by an accused person, as in the instance case, and properly admitted in evidence is, in law, the best pointer to the truth of the rule played by such accused person in the commission of the offence. And such a confessional statement can be accepted as satisfactory evidence upon which alone the accused can be convicted. See OGOALA Vs THE STATE (1991) 2 NWLR (part 175) 509 at 534. In my view, the confessional statement of the accused/Respondent Exhibit PW2A alone was sufficient to sustain her conviction.
On the question of whether there is evidence outside the confession which tends to corroborate the truth of the confession, it is my view that the testimonies of each of the PW1, PW2 and PW3 provide same corroboration. In his evidence, the PW1 had this to say:-
“We requested to search the house and premises and we were allowed. We searched the room of Monday but we did not see any incriminating thing. But we saw a room that was locked with padlock. We asked Monday for the key, He said it was with his step mother, Faith Iweka. The room belongs to Monday because he owns the house. He told us that the accused kept stone bags of garri in the room. We told him we will break the room, he said we should. I broke the padlock of the room and we saw white sacks in the room. We asked Monday what they are; he said he does not know because it was the step mother who kept them. When I opened one of the bags, it contained some dried weeds which we suspected to be Indian hemp. We arrested Monday and he insisted that the bags were kept by his step mother while he was away. We took Monday and the suspected bags of dried weeds to our office. The accused followed me out of the house to our office. The bags recovered from the house of Monday were kept in veranda of our office. When the accused sighted the bags and Monday, she collapsed. She started screaming that she owns the bags not Monday and that she kept them in Monday’s house.” See pages 11 – 12 of the record.
The PW2 and PW3 each gave evidence which was in substance the same as the above. As I said, the evidence of these witnesses sufficiently corroborated the confession of the accused/Respondent. In the light of the foregoing, I resolve the first issue in favour of the Appellant.
The second issue raises the question of whether the failure to call Monday Iweka is fatal to the prosecution’s case. The issue itself seems to ignore the legal principle which I have restated above that a confessional statement which satisfies the necessary tests of voluntariness and satisfactorily proved in the best proof that the maker committed the offence and which alone validly sustains a conviction. See OGOALA Vs THE STATE (supra); OJEGELE Vs STATE (1988) 1 NWLR (Part 11) 414; UDO AKIAN Vs STATE (1986) 3 NWLR (Part 27) 258; OGBU Vs STATE (1992) 8 NWLR (part 259) 255. In my view, the duty of the prosecution is to establish the available evidence sufficient to prove the guilt of the accused person beyond reasonable doubt. It follows therefore, that where an accused person admits the commission of an offence through his voluntarily confessional statement the prosecution is relieved of any further duty of proof. In the instant case, having regard to the confessional statement of the accused/Respondent in Exhibit PW2A, the prosecution had no further duty of calling Monday Iweka. In my view the sustained arguments of the Respondent on this issue are merely academic.
The third issue had been sufficiently answered in my treatment of the first issue.
In conclusion, I hold that this appeal has merit and is accordingly allowed. The judgment of the Court below is hereby set aside. And that the trial court be and is hereby restored.

ALOMA MARIAM MUKHTAR, J.S.C.: The respondent in this appeal was convicted by the Federal High Court, Ilorin for the offence of unlawful dealing with Cannabis Sativa, an offence punishable under Section 10 of the National Drug Law Enforcement Agency Act Cap 253, Laws of the Federation of Nigeria 1990.
In the Court of Appeal, Ilorin Division, the appellant was discharged and acquitted of the offence for which she was convicted. The appeal before us is against the judgment of the Court of Appeal. In compliance with the rules of this court the learned counsel for both sides exchanged briefs of argument, to wit; there was even an appellant’s reply brief of argument.
Three issues for determination were raised in the appellant’s brief of argument, and they are:-
“a. Whether the confessional statement of the Accused person was admissible in the circumstance and sufficient to ground a conviction of the Respondent.
b. Whether the failure of the prosecution to call Monday Iweka a step son of the Respondent to testify in the case was fatal to the case of the prosecution.
c. Whether the prosecution has proved the case against the accused beyond reasonable doubt.
I will touch briefly on the issues starting with issue (1), which is on the admissibility of the confessional statement of the accused/respondent. It is on record that the learned respondent’s counsel did not raise any objection at the point of tendering the statement. It was after the confessional statement had been admitted that the respondent retracted the statement in the course of giving evidence in his defence. This I think was an after thought, for if she was uncomfortable with the statement, the point of tendering and admissibility should have been when to object. It was late in time to have retracted at the stage she did. The confessional statement not having been objected to was admissible as evidence, and the learned trial court was not in error in ascribing probative value to it. Authorities abound on this principle. Once there is evidence of the administration of words of caution on a suspect in the language he understands, and he voluntarily makes his statement which is so recorded, and he signed the statement, a judge is at liberty to act on it and predicate a conviction thereon. See Ikemson v. State 1989 3 NWLR part 110 page 530, Salami v. State 1971 1 NMLR 249, Edamine v. State 1996 3 NWLR part 438 page 530, and Ubierho v. State 2005 5 NWLR part 919 page 644. In view of this, I disagree with the learned justice of the Court of Appeal when in the lead judgment he posited thus:-
“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 document. This should be more so 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……………………..
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…At this stage the court (i.e the trial court) should have conducted a trial with a trial to confirm the voluntary nature of the confessional statement.”
With due respect, the learned justice erred, especially on the latter statement. A trial within a trial becomes necessary at the stage where a caution statement is about to be tendered and its admissibility was objected to promptly by the accused person, and not anytime later.
I believe the learned trial judge was right when it accepted and relied on the confessional statement of the respondent, his finding on this being:-
“…the Court of Appeal following the case of Okoro v. The State 1988 3 NWLR (part 81) 214 held……………………………………….
The Court of Appeal further held that where a confessional statement has been tendered and admitted without any objection, its later retraction cannot vitiate the proceedings. Therefore I agree with the prosecution counsel that the retraction of the confessional statement is an after thought. The statement stands as evidence against the accused person and I so hold.”
On 10/4/2008, at the end of the court’s proceedings, the prosecution applied for witness summons to Monday Iweka, and it was so issued. In an affidavit of non service to be found on page (24) of the record of proceedings, the bailiff of court deposed the following:-
“2. That on the 21st day of April, 2008 at about” 4.25 p.m. and 5.50 p.m. I went to Nankaru area to serve Criminal Form 7 (Witness Summons) issued out in the court against Monday Iweka in – respect of this suit No. FHC/II/6C08.
3. That when I got to the place of address of service, I met the door locked with padlock and all effort to trace him proved abortive.”
As can be seen from the above the prosecution made some efforts to serve the said Monday Eweka but to no avail, as he couldn’t be found. In the circumstances should the prosecution have refrained from discharging its duties of proving its case against the accused, and so ensuring that a person accused of criminal offence faces his criminal action and answer for his crime.
It is not as though the prosecution shirked in its duty to call witnesses whose evidence are material and necessary to the success of its case. In the instant case it seems the evidence of Monday Eweka was not material or indispensable to the case, as all the vital evidence required to prove the case against the respondent beyond reasonable doubt are contained in her confessional statement, and the evidence of the other prosecution witnesses who gave a graphic sequence of the event that led to the arrest and trial of the respondent.
The settled law is that the prosecution is bound to call only witnesses whom it considers and is satisfied to be material and vital witness to prove its case beyond reasonable doubt. It does not have to call every single person that was involved in the incident or act that led to the crime committed, all in a bid to secure the conviction of an accused person. See State v. Ajie 2000 11 NWLR part 678, page 434, Ogoala v. State 1991 2 NWLR part 175 page 509, and Ali v. State 1988 1 NWLR part 68 page 1.
The prosecution proved its case beyond reasonable doubt by adducing evidence to prove the ingredients of the offence the respondent was charged with. The ingredients are:-
“a. That the Respondent was in possession of the weeds suspected to be Indian hemp.
b. That the Respondent dealt in Indian hemp.
c. That what was found on the Respondent was scientifically proved to be Indian hemp.
d. That the Respondent had no lawful authority to deal in Indian hemp.”
What are the relevant pieces of evidence adduced I will reproduce some pertinent pieces of evidence here below. They read:-
“P.W. 2… I know the accused person sitting on the dock. I know her since 2004 when she used to bring food to her husband Mr. Gods Power Iweka who was arrested in connection with Indian hemp dealing….We went to the house of accused at Gaa Iman, we arrested the accused and her husband, and brought them to our office. On getting to our office, the accused collapsed, i.e. fell on the ground and started crying that she is finished and (sic) she put her step son into trouble.
P.W.3 …. I first knew the accused in 2004 when her husband was arrested and detained in connection with possession of Indian hemp. The accused used to bring food to the husband to our office…..The accused was selling Indian hemp was the information we received….When we brought the accused to our office and immediately she sighted Monday she collapsed and started crying. The accused fell down, crying that she is finished etc….The accused person admitted the ownership of the exhibits …………..”PW4…..The accused person claimed to be the owner and her husband does not know anything about it.. she then stepped forward to witness the testing of the exhibit. I conducted the test on the exhibit using U. N. Narcotic testing kits. The testing proved positive for cannabis Sativa. The testing was done in the presence of arresting officer Ibrahim Sini (PW1) ASN 1, witnessing officer Mustapha Muhammued (ASN 11) PW 2, and the accused person. I issued out a certificate of test analysis, which the arresting and witnessing officers signed and thumb printed by the accused person. I attached the packing of substance form with exhibit marked A1, and on 4/3/2008 I took it to the forensic analysis. I handed exhibit A1 to the forensic expert Mr. Ogundipe who tested the substance (sic) again the result was cannabis sativa. I was present during the laboratory test at Lagos. The exhibit was sealed and some documents attached which I brought back….”
I believe the above pieces of evidence read together with the others in the record of proceedings have definitely established the ingredients of the offence the respondent was charge and convicted of. The law requires that an accused person will not be convicted of a crime unless the case has been proved beyond reasonable doubt. See Section 138 of the Evidence Act Cap.112 of the Laws of Federation of Nigeria 1990. Any doubt of course results in the discharge and acquittal of the accused person. In the instant case no material doubt exists, as far as I can see.
The concept of proof beyond reasonable doubt has in many authorities been translated not to amount to proof beyond all shadows of doubt, See Miller v. Minister of Pension 1947 All E. R. page 372, Alkalezi v. State 1993 2 NWLR part 273 page 1, and Oreoluwa Onakoya v. Federal Republic of Nigeria 2002 11 NWLR part 779 page 595 and Shande v. State 2005 12 NWLR part 939 page 301. I have no doubt in my mind that the prosecution has proved its case beyond reasonable doubt in this case. In the circumstances I resolve the supra issues in favour of the appellant, and allow the grounds of appeal they are married to.
I would at this juncture comment on the appellant’s reply brief of argument which contains as many pages as the appellant’s brief of argument itself. It seems the appellant’s learned counsel, in his bid to ensure that the appeal succeeds went on and on repeating his earlier submissions in the appellant’s brief of argument, forgetting the purpose of the reply brief. An appellant’s reply brief as is required by the rules is supposed to respond to new points raised in the respondent’s brief of argument and is not supposed to re canvass the earlier argument all over again. See Okpala & Anor v. Ibeme & Ors 1989 2 NWLR part 102 page 208.
In the final analysis, this appeal succeeds and I allow it. The judgment of the lower court is hereby set aside, and the judgment of the High Court of Kwara State is hereby affirmed. I have read the lead judgment delivered by my learned brother Tabai, JSC, and I entirely agree with his reasoning.

IBRAHIM TANKO MUHAMMAD, J.S.C.: The facts of this case in summary are that the respondent herein as an accused person at the trial court was suspected of dealing in INDIAN HEMP, and was prosecuted by the officers of the National Drug Law Enforcement Agency [NDLEA]. Four witnesses testified. A confessional statement by the respondent was admitted in evidence. After the trial, the learned trial judge found the respondent guilty as charged. He sentenced her to a five (5) year imprisonment term.
On appeal, the Court below acquitted the respondent on two main reasons: [a] that the confessional statement was retracted by the respondent that it was made under duress and there was no trial within- trial conducted [b] One Monday Iweka was not called to testify.
The appellant appealed to this court on five (5) grounds of appeal (page 222-226) of the record. Learned counsel for the appellant in his brief of argument formulated the following issues:
“(a) Whether the confessional statement of the Accused person was admissible in the circumstance and sufficient to ground a conviction of the respondent. [formulated from grounds 2 and 3 of the Notice of Appeal].
(b) Whether the failure of the prosecution to call Monday Iweka a step son of the respondent to testify in the case was fatal to the case of the prosecution. [Formulated from ground 4 of the Notice of Appeal]
(c) Whether the prosecution has proved the case against the accused beyond reasonable doubt. [Formulated from ground 5 of the Notice of Appeal)”
Learned counsel for the respondent adopted the issues formulated by the appellant
It is my humble observation that from the grounds of appeal filed and the issues formulated by the appellant, ground of appeal No. 1 has not been related to any issue for determination. The trite position of the law is that any ground of appeal which is not related to an issue for determination is deemed abandoned and subject to be struck out by the court. See: JOSIAH CORNELIUS LIMITED & ORS. VS. EZENWA [1996] 74 SCNJ 123; EFFIONG VS. THE STATE [1998] 5 SCNJ 158 I hereby strike out ground No. 1 of the appellants grounds of appeal.
Issue No.1 is on the admissibility of the appellant’s confessional statement. The summation and subsequent findings of the learned trial judge on the respondent’s confessional statement are as follows:
“But the accused person has retracted her confessional statement claiming that she signed same under duress because the officers of the NDLEA put her in chains and were beating her with horse whip. To begin with this issue of duress was not raised when the prosecution tendered the confessional statement in evidence. Neither the defence counsel nor the accused person objected to the admissibility of the statement. In fact I remember vividly that when the prosecuting counsel applied to tender the confessional statement in evidence through PW2, the statement was handed over to the defence counsel who moved over to the accused in the box and made some consultation with her. We waited for some time while this was going on before the counsel said there was no objection to the admission of the statement in evidence and the court admitted same. In the case of Nwachukwu Vs. The State [2004] 17 NWLR [pt. 902] 262 at 273 paragraph B-E the Court of Appeal following the case of Okaro vs. The State [1988] 3 NWLR [pt. 81] 214 held that:
‘The appropriate point to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence especially where, as in this case the accused person is represented by counsel, and it is assumed he ought to know what to do at each stage of the proceedings.’
The Court of Appeal further held that where a confessional statement has been tendered and admitted without any objection, its later retraction cannot vitiate the proceedings. Therefore I agree with the prosecution’s counsel that the retraction of the confessional statement is an afterthought. The statement stands as evidence against the accused person and / so hold.”
Further findings of the trial court on the said confessional statement are that:
“The confessional statement is corroborated with other evidence of the prosecution.”
Based on that the learned trial judge formed the opinion that the prosecution had proved its case against the respondent beyond reasonable doubt. The learned trial judge convicted and sentenced the respondent to a term of imprisonment. The court below, on the other hand, did not agree with the learned trial judge on his findings. Adamu, JCA, in his lead judgment reasoned as follows:
“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 horse whip with which he was beating her. At this stage the court [i.e. the trial court should have conducted a trial-within-trial to confirm the voluntariness of the confessional statement”
But, was there any need for a trial- within-trial in the circumstances of this case I emphatically answer the question in the negative. This is because, as it is clear from the record, the circumstance for a trial within-trial did not present its self in this case. This is because:
(1) The said confessional statement was made to the Police in complete compliance with the Judges Rules.
(2) There was no objection in any form from the defence when the statement was sought to be tendered in evidence before the court.
The conglomerate definitions assigned to the words/phrases, “confession” or “confessional statement” by the Evidence Act and the case law, refer to an admission made at any time by a person charged with a crime suggesting or stating that he committed the crime. See: SAIDU VS. THE STATE [1982] 4 SC 41 at 56 57; IKAMSON & ORS, VS.THE STATE [1989] 3 NWLR [part 110] at 476: AKPAN VS. THE STATE [1990] 7 NWLR [part 160] 101 at 109; NWAEBONYI VS THE STATE [1994] 5 NWLR [part 343] 138 at 149; EDHIGHERE VS.THE STATE [1994] 5 NWLR (part 344) 312 at 321; KASSI VS. THE STATE (1994) 75 NWLR [part 344] 269 at284 – 288. If made voluntarily, a confessional statement is admissible in evidence. See: BALOGUN & ORS. VS. ATTORNEY-GENERAL (FEDERAL) (1994) 5 NWLR[part 345] 442 at 462 – 463; SAM VS. THE STATE [1991] 2 NWLR [part 176] 699 at 706 See also section 28 of the Evidence Act, the statement made to the Police by the respondent was found by the trial court to be made voluntarily, freely, without any coercion or duress. The evidence led fully corroborated it and there was no need to test its voluntariness by a trial – within – trial. It was too late in the day for the appellant to attempt to retract that statement almost six [6] months after it was first made before the Police. A confessional statement that is so amply corroborated in every material particular, such as the one on hand, and found to be free and voluntary, is admissible in evidence regardless of the fact that it was retracted by its maker. See: INIJE VS. THE STATE (1977) vol 11 NSCC 20; OKPO VS. THE STATE (1972) NSCC vol. 7, 104.
I think it will be a travesty of justice if the law will ordinarily allow an accused person to retract what he voluntarily and initially told the Police during investigation of the crime he is alleged to have committed. That will certainly open an escape route to so many accused persons to escape shouldering the requisite punishment they would undergo at the end of trial. That will spell doom on the society.
For this and the fuller reasoning given in the lead judgment of my learned brother, Tabai JSC, with whom I concur, I, too, allow the appeal. I restore and affirm the judgment of the trial court.

SULEIMAN GALADIMA, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my Learned Brother, TABAI, JSC, just delivered. I agree with his reasoning and conclusion, allowing this appeal. This is an Appeal against the Judgment of the Court of Appeal, Ilorin Division delivered on 20/05/2010 in favour of the Respondent. At the trial Court, the Respondent was convicted and sentenced for the offence of unlawful possession of 296.1 kg. of Canabis Sativa, a drug similar to cocaine substance contrary to and punishable under Section 10(c) of the National Drug Law Enforcement Agency Act Cap. 253, Laws of the Federation of Nigeria, 1990. The Court of Appeal held that the failure of the trial court to conduct a trial-within-trial, when the accused denied her confessional statement in her defence, was fatal to the trial and that the evidence relied upon by the trial court was hearsay and thus inadmissible. Consequently, the Respondent was acquitted by the Court of Appeal. Dissatisfied with this Judgment, the Appellant has appealed to this Court praying for the Judgment of the lower court to be set aside and that the conviction of the Respondent by the trial court be upheld.
As extant in the Record of appeal and from the evidence led at the trial, the officers of the National Drug Law Enforcement Agency, on 26/02/2008 visited the premises of the Respondent where she sells local gin, pepper soup and other items of provisions, but found nothing incriminating. Acting on a further tip off the officers moved to an area of Ilorin called Kankuta. They conducted a search in the house of one Monday Iweka, who was later identified by the Respondent in her confessional statement as her stepson. A search at the premises of Monday Iweka revealed that 36 bags of Indian hemp weighing in total 296.1kg, were received.
When Monday Iweka was arrested he informed the officers of NDLEA that the bags of Indian hemp which he thought contained gari flour, as was he informed by the Respondent, did not belong to him, but to the Respondent who has been given a room in his house meant for her use, When the Respondent was arrested and taken to the office of NDLEA, she made a confessional statement admitting the commission of crime. She pleaded with the NDLEA officers to release her stepson and should not be held responsible for her crime.
At the trial, the appellant tendered the Respondent’s confessional statement dated 26/02/2008 and same was admitted as Exhibit 2, without objection from the Respondent. The Appellant also called 4 witnesses who were officers of NDLEA.
At the end of the Appellant’s case, the Respondent’s counsel made a No-case Submission. The court in its Ruling overruled the submission, holding that the prosecution has made out a prima facie case against the Respondent. Respondent was called on to open her defence.
At the proceedings the Respondent testified for herself and retracted her confessional statement on the grounds that same was obtained under duress. At the end of the trial, both parties filed and exchanged final written addresses which were adopted in open court, consequent upon which the case was adjourned for judgment.
In its judgment the trial court Coram Aliyu (J) disbelieved the respondent in her defence but upheld her confessional statement, it held that the prosecution witnesses were credible and that the prosecution had proved the case against the Respondent beyond reasonable doubt. After allocutus by her counsel the court considering her age and being a first time offender sentenced her to 5 YEARS imprisonment.
Dissatisfied with the judgment of the trial court the Respondent appealed to the Court of Appeal on two grounds viz:
(1) The ominibus ground – That the judgment is unreasonable unwarranted and cannot be supported having regard to the weight of evidence;
(2) The Court misdirected itself when it held that the testimony of MONDAY IWEKA was not an absolute necessity, failure of which was fatal to the case of the prosecution.
In its judgment the Lower Court set aside the judgment of the trial court and held that failure to conduct a trial-within-trial by the trial Court to determine the voluntariness of the confessional statement was fatal to the trial. It was also held that the failure of the prosecution to call MONDAY IWEKA as a witness was fatal to the case and that the testimony of PW1-PW3 were consequently hearsay and inadmissible. The court therefore held that the case against the Respondent has not been proved beyond reasonable doubt and acquitted the Respondent.
The Appellant was dissatisfied with the judgment of the Court below and has further appealed to this Court on 5 grounds. The 3 issues formulated for determination of this Court are as follows:
“(a) Whether the confessional statement of the accused person was admissible in the circumstances and sufficient to ground a conviction of the Respondent (formulated from grounds 2 and 3 of the Notice of Appeal)”
(b) Whether the failure of the prosecution to call Monday Iweka a stepson of the Respondent to testify in the case was fatal to the case of the prosecution (Formulated from ground 4 of the Notice of Appeal)
(c) Whether the prosecution has proved the case against the accused beyond reasonable doubt. (Formulated from ground 5 of the Notice of Appeal)”.
The Respondent has adopted the Appellants 3 issues as formulated above.
On 29/9/2011, when this appeal was heard both parties through their respective Counsel adopted and relied on their Briefs of Argument. Learned Counsel for the Appellant has urged this Court to allow the appeal and to hold that the prosecution having proved its case beyond reasonable doubt the judgment of the Lower Court ought to be set aside and that of the trial Court be upheld and affirmed.
Learned Counsel for the Respondent similarly having adopted the Respondent’s Brief of Argument, without further amplifications has urged this court to dismiss the appeal, affirm the judgment of the lower court and discharge and acquit the Appellant.
The adumbration of the Appellant’s arguments on support of the appeal are set out hereunder. On the issue of confessional statement of the Respondent, it is submitted:
1. That the confessional statement of the Respondent is admissible in the circumstance of this case as it was voluntarily made and tendered and admitted without any objection from the Respondent who was represented by counsel throughout the trial.
2. That the contention of the learned counsel for the Respondent that there was need for a trial-within-trial is flawed, in the circumstance of this case, because the confessional statement had been tendered and admitted. Moreso that there was no need for a trial-within-trial which the lower court.
3. That the confessional statement of the Respondent taken together with other corroborative evidence tendered by the prosecution is sufficient to prove the case of the prosecution beyond reasonable doubt.
On the failure on part of the prosecution to call Monday Iweka to appear as a witness for the prosecution the learned counsel for the Appellant has submitted that this was not fatal to the prosecution’s case as held by the lower court because the prosecution is not bound to call him, having succeeded in proving its case through other admissible evidence tendered before the Court.
On her part the Respondent admits the fact that Exhibit PW2A admitted was without objection at the trial, That the court could convict an accused person solely on his confessional statement since the confessional statement is the best evidence in criminal law. It was however submitted that confessional statement must pass some set out conditions before the court can rely on them to convict an accused person, especially when such statement is retracted at the trial. It is further submitted that while the evidence of the Respondent may not necessarily invoke trial within trial having been stated during defence the whole lot of evidence given by the Respondent however constituted a retraction. It is submitted that the decision of the lower court is in line with provision of evidence Act, hence even though admitted, it would still become irrelevant once it appears to the court to have been caused by any inducement, threat or there in.
On the need to call Monday Iweka to testify for the prosecution it is submitted by the learned counsel for the Respondent that he was a key witness in prosecution case, whose evidence could not be dispensed with. It is submitted that without Monday Iweka the fact upon which the prosecution case rests in nothing but hearsay.
Having adopted earlier arguments on issues one and two learned counsel for the Respondent finally submitted that the prosecution has woefully failed to prove the charge against the Appellant. It is urged that the decision of the lower court be affirmed.
The Three issues raised for determination by the Appellant could be conveniently taken together and intend to so take them.
The pith of this appeal relates to the question whether or not the lower court was right to have held that the failure of the trial court to conduct a trial within trial when the counsel denied her confessional statement in her defence, was fatal to the trial and that the evidence relied upon by the trial court was hearsay and thus inadmissible. The fulcrum of this holding is the fact that the Respondent retracted her confessional statement when giving her evidence, and that a trial within trial was not conducted. It is trite law that an accused person may be convicted on his confessional statement alone. He may also be convicted where the confession is consistent with other ascertained fact which had been proved. See NTAHA v. THE STATE (1982) 4 SC p. 1. And PATRICK IKEMSON v. THE STATE (1989) 3 NWLR (Pt.110) 455: and SABURI ADEBAYO V. ATTORNEY GENERAL OF OGUN STATE (2008) 7 NWLR (Pt.201) P. 21.

The confession, where voluntary, is admissible. Once the statement complies with the law and rules governing the method for obtaining it and it is tendered and not objected to by the defence whereby it is admitted as an Exhibit, then it is a good evidence and no amount of retraction will vitiate its admission as a voluntary statement. R. v. ITULE (1961) l All NLR 452; IKPASA v. THE STATE (1981) 9 SC. 7.
In all cases of objection to a statement being admitted in evidence, it is at the point of tendering the statement the objection must be raised and its voluntariness tested. In the instant case, the Respondent gave a vivid account of how she procured 36 bags of Indian hemp, store them in her house and later moved them to Kankatu ward in Ilorin; when she suspected that the officers of NDLEA were trailing her. These facts were believed by the trial court, having admitted Exhibit 2, the confessional statement, as Exhibit.
The passage in the judgment of the trial court on page 122 runs as follows:
“…I remember vividly that when the prosecution tendered the confessional statement in evidence through PW1, the statement was handed over to the defence counsel who moved over to the accused in the box and made some consultation with her. We waited for same time while this was going on before counsel said that there was no objection to the admission of the statement in evidence and the court admitted same.”
The procedure that led to the admission of the Respondent’s confessional statement as stated above by the trial court indicates clearly that her statement was voluntarily made and admitted by her during trial. Her later retraction of this statement was an afterthought. This is not sufficient to justify the setting aside her conviction by the Lower Court. The law is trite that mere retraction or denial of a confessional statement does not mean that the court cannot act upon it to convict. The lower court in setting aside the conviction of the Respondent stated in page 14 of its judgment (at page 202 of the Record) that the trial court should have considered the circumstances that could weaken the case of prosecution, that is that, if the confession was not direct, positive, and unequivocal and also to considered the practice whereby the statement is taken to a superior police officer who reads over and interprets the statement to the accused and affirms it as voluntarily made. It would appear to me that this admonition by the Lower Court stems out of the Court’s inability to consider the circumstances surrounding the admission of the Respondent’s statement, as evidence at the trial court, particularly the testimony of PW1 as contained at page 16 of the Record. He told the court in his testimony that:
“The accused was referred to me for recording her statement. She told me she understood English. I read and explained (sic) the cautionary word to the accused. She said she understood. I wrote her statement and she thumb printed it. I signed as a recording officer. She asked me to write it because she could not. After I finished I took the accused to my superior officer DSN Bala Usman. He read the statement to the accused who understood it before he counter signed”
(Underlined for emphasis.)
The above testimony of PW1 was not discredited during the cross-examination, contrary to the finding of the lower court, the trial court considered the circumstances surrounding the admissibility of the confessional statement including the fact that it was counter signed by a superior officer. The trial court did not need to conduct a trial within trial to ascertain the veracity of confessional statement. At the risk of repetition but for emphasis, the law is trite that the voluntariness of a confessional statement can be only be contested when it is about to be tendered in evidence. That is the appropriate time to raise the involuntariness or otherwise of a confessional statement. Where as in this case the Respondent, was represented by counsel, it is assumed he ought to know what to do at each stage of proceedings. The Respondent failed to raise such objection. She cannot on appeal complain of absence of trial within trial. See NWACHUKWU V. THE STATE (2004) 17 NWLR (Pt.902) 262 at 273. OCHE V. THE STATE (2007) 5 NWLR (Pt.1027) 214 at 219. OKORO v. THE STATE (1993) 3 NWLR (PT.282).
Since the essence of a trial within trial is to inter alia, decide whether or not to uphold an objection to the admissibility of a confessional statement a retraction of an already admitted confessional statement cannot necessitate a trial within trial. To do so will be to take steps towards asking the court to re-decide reconsider and re-determine the admissibility of a document already, admitted and marked as Exhibit, thereby creating a vicious circle.

The Law is trite that once a court has taken their decision on an issue, it stands unless that decision is found to be perverse.

It is a commendable path threaded by the trial court. It averted the ominous consequence of holding in one breath that Exhibit 2A having been admitted is not now admissible simple because it was belatedly retracted for no good cause. This is in tandem with the settled principle of law that a court cannot approbate and reprobate at the same time. The conviction of the Respondent at the trial court was based on her confessional statement and proof by the prosecution of the Ingredient of the offence for which she was charged and not based on the story told by one Monday Iweka to the prosecution and which the said prosecution recounted before the trial court. The case of OLAYINKA v. THE STATE (2007) All FWLR (Pt. 2073) 163, relied upon by lower court, is not applicable to the case at hand. The facts of the instant case are radically different from Olayinka’s case as the Respondent herein clearly indicated to the trial court, through her counsel that she was not objecting to the admissibility of the confessional statement sought to be tendered by the prosecution. In Olayinka’s case, the accused person promptly objected to the admissibility of the confessional statement at the point when the prosecution sought to tender same on the ground that it was not voluntarily made. The Appeal Court held that the trial court ought to have concluded a trial within a trial to determine the voluntariness of the accused’s confessional statement.
It is necessary to highlight these observations. The involuntariness of the Respondent’s statement and the need for a trial within trial was never argued by her counsel in his final address at the trial court and was not even part of her argument in the appeal at the lower court. At pp. 42 -143 of the Records, it can be gleaned that the fulcrum of the Appellant’s (now respondent) arguments in her brief was on the weight attached to the confessional statement at the trial court and not voluntariness or the need for a trial within trial. The Learned Justices of the Court below ought therefore not to have suo motu made a case for the Respondent herein as to the need for a trial within trial when such was not argued by her, nor was it necessary in the circumstance of the case. The only instance where the Respondent raised to issue of the involuntariness of her confessional statement was while testifying for herself in her defence and there after nothing more was said about it, anywhere in the record of appeal until it was raised suo motu by the learned justices of the Court of Appeal on their Judgment.
I agree with the learned counsel for the Appellant herein, that the retraction of the Respondent’s confessional statement in her defence was upon the realization that Monday Iweka would not be available to testify against her for the prosecution. I have taken note of alter of non service of witness summons against Monday Iweka at page 24 of the record of Appeal deposed to by the court bailiff. This was done on 22/10/2008. The respondent saw an opportunity to renounce her confessional statement as a result of this. Hence on 14/10/2008, when she was to give evidence in her defence, she did exactly that because she knew Monday Iweka would not be present to give evidence against her.
The trial Judge had the benefit of observing the demeanour of the witnesses. (PW1 – 4) who were consistent in their testimony as against the Respondent whose evidence was not corroborated in any form by any other person. The evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial court which had the opportunity of seeing, hearing and assessing witnesses. In my view the trial court has properly evaluated the evidence before it and its findings in the facts before it are not perverse. This Court will not interfere with such findings. I therefore hold that the confessional statement of the Respondent is voluntary; it is admissible in the circumstance of the case and sufficient to ground the conviction of the Respondent as it is direct positive and unequivocal. I do not think that the failure of the prosecution to call one Monday Iweka, a stepson of the respondent to testify in the case was fatal to the case of the prosecution as held by the court below. The prosecution is not bound to call him as a witness having succeeded in proving its case through other admissible evidence tendered before the trial court.
For the above reasons as well as the reasons admirably given in the lead Judgment I too, allow the appeal, set aside the Judgment of the Court of Appeal. The conviction and sentence of the respondent by the trial court is hereby affirmed.

NWALI SYLVESTER NGWUTA, J.S.C.: The Respondent was charged before the Federal High Court, Ilorin, Kwara State, with dealing in 296.1kg of cannabis sativa, a drug similar to cocain, heroine, LSD without lawful authority. The charge was laid under s.10(c) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation of Nigeria 1990-
The Respondent was convicted and sentenced to five (5) years imprisonment on 11th February, 2009.
On appeal, the Court of appeal, Ilorin Division, allowed the appeal, set aside the judgment of the trial Court and discharged and acquitted the Respondent.
The appellant was not satisfied with the judgment of the Court below and appealed to this Court on five grounds. Learned Counsel for the parties filed and exchanged briefs of argument. The following three (3) issues were framed by the appellant and adopted by the Respondent, for determination:
“(i) whether the confessional statement of the accused person was admissible in the circumstance and sufficient to ground a conviction of the Respondent.
(ii) Whether the failure to call Monday Iweka, a step son of the Respondent to testify in the case was fatal to the case of the prosecution.
(iii) Whether the prosecution has proved the case against the accused Person.
The three issues in the appeal were exhaustively dealt with in the lead judgment of my learned brother, Tabai, JSC, CON. I will however add a comment on issue one.
The statement made by the Respondent falls within the meaning of a confession in Section 27(1) of the Evidence Act. It satisfied the condition for its being deemed relevant fact against the maker as provided in s.27(2) of the Act.
If the Respondent or her Counsel had any reason to call the voluntariness of the statement in question the issue should have been raised when the statement was offered in evidence. Learned Counsel for the Respondent had no objection to the admission of the confessional statement in evidence.
On the facts of this case, I am of the view that it is unfair to the Court, the prosecutor and the criminal justice administration to demand that the Court should go backwards, retrieve the statement it had admitted without objection and conduct a trial within trial to find if it was voluntarily made.
The Respondent made a knowing and understanding waiver of her right to object to her statement being received in evidence if she had any ground for so doing. The retraction of the statement by the Respondent at the defence stage was an after thought, a cheap ploy she resorted to when the prosecution concluded its case without calling her step son, Monday Iweka, who was not available to testify against her.
On the issue of corroboration, a Court can convict on a confessional statement alone without corroboration once it is satisfied of the truth of the confession. See Achaba v. The State (1996) 3 NWLR (Pt. 438) 530 at 533. The u-turn made by the Respondent is of no avail See Eghoghonome v State (1993) 7 NWLR (Pt 367) 373. Once the trial Court is satisfied, as the trial Court was in this case, that the statement is free, voluntarily made, unambiguous, true, direct and positive with reference to the offence charged, it can convict on it See Dawa & Anor v. State (1990) 8-11 SC 236 at 267.; Jimoh Yesufu v State (1976) 6 SC 167 at 173.
Even without the confessional statement, the conduct of the Respondent at the sight of the bags of cannabis sativa amply corroborated the totality of the evidence the State adduced at the trial. She broke down and claimed ownership of the bags of cannabis sativa without any prompting and exonerated her step son and her husband See (1949) 12 WACA 492;
Tajudeen Akeju v. Inspector-General of Police (1968) 2 All NLR 212: Johnson Ereku v. R. (1959) 1 WNLR 77 (FSC) This is an extrajudicial admission of guilt made orally and carries no less weight than the one made in writing. See (1968) NMLR 261, Uche & Anor v R (1964) 1 All NLR 195.
In RV Francis Kufi (1969) WNLR 1 the accused was charged with raping a minor. Evidence that he admitted the offence before the father of the victim corroborated the evidence against him.
For the above and the more comprehensive reasoning in the lead judgment of my learned brother, Tabai, JSC, CON which I had the privilege of reading in draft and with which I entirely agree, I also find that the appeal has merit. I allow the appeal and adopt the consequential order in the lead judgment.