IGBO v. FRN (2020)

IGBO v. FRN

(2020)LCN/14843(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/MK/2C/2020

RATIO

EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF OF THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT

The burden of proof of the voluntariness of a confessional statement lies on the prosecution and the standard of proof is proof beyond reasonable doubt. The accused person has no duty to establish that the statement credited to him was involuntary. See Dawa V State (1980) 10 – 11 SC 236, State V Salawu (2011) 18 NWLR (Pt. 1279) 580, Offor V State (2018) All FWLR (Pt. 929) 340 and State V Obobolo (2018) 4 NWLR (Pt. 1610) 399. PER EYO EKANEM, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO FINDINGS OF FACT OF THE TRIAL COURT

It is the law that questions relating to primary findings of fact are ordinarily exclusively within the domain of the Court of trial. This is because it is the Court of trial which has the opportunity of observing the witnesses give oral evidence and determining their credibility from their demeanour and behaviour before the Court of trial. The appellate Court which is not in the same advantageous position as the Court of trial cannot set aside the judgment of the Court of trial merely on the ground that it would have, if it were considering the matter, come to a different conclusion. Hence so long as there was evidence from which the learned trial Judge could have come to the conclusion to which he did, the verdict cannot be disturbed.
However, it is well settled that when the record discloses that the finding of the trial Court cannot be supported on the evidence on record, such a finding will be disregarded and the Court of appeal can interfere by setting aside the finding. SeeIkem V State (1985) 4 SC (Part 2) 30, Gbahabo V State (2014) All FWLR (Pt. 718) 957, Nagogo V CPC (2013) 2 NWLR (Pt. 1339) 448 and State V Oray (2020) 7 NWLR (Pt. 1722) 130. PER EYO EKANEM, J.C.A.

CRIMINAL PROCEDURE: PRINCIPLES GUIDING ADMISSIBILITY OF AN ACCUSED’S STATEMENT

Before reaching the conclusion on this issue, let me quickly say that the mere fact that the statement of the appellant was elicited in a question and answer session does not by itself make the statement inadmissible. The case of Salawu V State (2009) LPELR – 8867 (CA) cited by appellant’s counsel does not represent the law. In State V Salawu (2011) 18 NWLR (Pt. 1279) 883, 908 – 909 Tabai, JSC stated:

“It is perhaps necessary to emphasise that it is not a rule of our Criminal Procedure Law and the law of evidence that where in the course of recording the statement of an accused person, a police officer asks questions and records the answers by the accused therein, the statement automatically becomes involuntary and thus inadmissible in law. A careful look at the Namsoh’s case shows that the specially prepared questions were oppressive of the accused in the sense that they were meant to sap and indeed sapped the free will of the accused person and thus rendered his ensuing statement involuntary … The mere assertion by the PW1 that in the course of recording the statements of the respondent he asked questions and recorded the answers does not ipso facto render the statements involuntary”.
In yet another case, Hamza V State (2019) 16 NWLR (Pt. 1699) 418, 435 Okoro, JSC, stated:
“As was held by the Court below, which I agree there is nothing in law which makes a statement inadmissible because it was obtained by questioning the accused person.” PER EYO EKANEM, J.C.A.

EVIDENCE: WHETHER EVERY WRONGFUL ADMISSION WILL ITSELF GROUND THE REVERSAL OF ANY DECISION

Section 251 (1) of the Evidence Act, 2011, comes into the scene. It provides as follows:
“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been same if such evidence had not been admitted”.
The law therefore is that the wrongful admission or exclusion of evidence does not result in the reversal of a decision if it does not affect the decision of the trial Court. See Queen V Haske (1961) 2 SCNLR 90, Omomeji V Kolawole (2008) NWLR (Pt. 1106) 180 and Adeyemi V State (2014) 13 NWLR (Pt. 1423) 132.

The appellate Court in the situation where inadmissible evidence has been admitted in a criminal case is empowered to reject the same, as I have done, and decide the matter on available legal evidence. See Zubairu V State (2015) 16 NWLR (Pt. 1486) 504. PER EYO EKANEM, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

HARUNA TERZUNGWE IGBO APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, sitting in Makurdi (the trial Court) delivered on 9/10/2019 in charge No. FHC/MKD/CR/35/17. In the judgment, the trial Court (presided over by Hassan Dikko, J.) found the appellant guilty of the offences of conspiracy and committing an illegal act, to wit: directly participating in and contributing to the commission of an act of terrorism (the hostage taking of Mrs Iyuadoo Tor – Agbidye) by a terrorist group led by Monday alias Yahuza. The offences are contrary to Sections 17(a) and 1(2)(e) respectively, of the Terrorism (Prevention) (Amendment) Act, 2013. The appellant was accordingly sentenced to 20 years in correctional service for each of the two offences.

Aggrieved by the decision, the appellant filed a notice of appeal on 8/1/2020 against the same. With the leave of Court given on 10/6/2020, the appellant filed an amended notice of appeal.

A summary of the facts of the case leading to this appeal will not be out of place at this point. The appellant was arraigned along with another person before the trial Court on a

five – count charge containing the following offences:
Count 1 – Conspiracy contrary to Section 17(a) of the Terrorism (Prevention) (Amendment) Act 2013 (the Act) and punishable under same Section 17(a) of the Act.
Count 2 – Knowingly and directly rendering support to a terrorist group contrary to and punishable under Section 5(1)(b) of the Act.
Count 3 – Assisting and facilitating terrorist acts of a terrorist group contrary to and punishable under Section 1(2)(d) of the Act.
Count 4 – Knowingly aiding and abetting the terrorist acts of a terrorist group contrary to and punishable under Section 18(a) of the Act.
Count 5 – Directly participating in and contributing to the commission of an act of terrorism contrary to and punishable under Section 1(2)(e) of the Act.

The appellant was the 1st accused person before the trial Court while his co – person was the 2nd accused person. He (2nd accused) was charged in counts 1, 2, 3, 6 and 7.

After pleading not guilty, the case proceeded to trial. To prove its case, the prosecution called five witnesses and tendered several exhibits. Exhibit F is the

confessional statement of the appellant while Exhibit E2 is the video recording of the confession of the appellant. The documents were admitted in evidence following a trial – within – trial after the appellant objected to the admissibility of the statement on the basis that it was not made voluntarily. The appellant, after the close of the case of the prosecution, testified through two witnesses including himself. The co – accused person testified as DW3.

The trial Court, as earlier stated, convicted and sentenced the appellant in respect of counts 1 and 5 but discharged and acquitted him in respect of counts 2, 3 and 4. The appellant has appealed against the decision convicting him and has incorporated a ground of appeal against the admission of Exhibit F.

At the hearing of the appeal on 19/11/2020, T. Jirgba, Esq. for the appellant, in urging the Court to allow the appeal and set aside the conviction of the appellant, adopted and relied on the appellant’s brief of argument filed on 18/8/2020 and deemed filed on 14/9/2020 as well as the reply brief filed on 15/9/2020.

S. M. Labaran, Esq. for the respondent adopted and

relied on respondent’s brief of argument filed on 4/9/2020 and deemed filed on 14/9/2020 in urging the Court to dismiss the appeal.

Appellant has formulated the following issues for the determination of the appeal:
“i. Whether the trial Court was right to have admitted the Exhibit “F” in its ruling in the trial within trial. (Distilled from Ground 1 of the Appeal)
ii. Whether the trial Court properly evaluated evidence by convicting the Appellant. (Distilled from Ground 4 of the Appeal).
iii. Whether the trial Court was right in law to have convicted the Appellant for having links to a terrorist group which is not so proscribed under Sections 2 and 9 of the Terrorism (Prevention) (Amendment) Act, 2013). (Distilled from Ground 3 of the Appeal).

The respondent has formulated three issues for the determination of the appeal, to wit;
“i. Whether findings of facts made by a trial Court in a trial within trial that is based on the credibility of witnesses after watching their demeanour should be upturned by an Appellate Court.
ii. Whether a terrorist act committed by a group of people

belonging to a group that is not a proscribed organisation can be brought under the Terrorism (Prevention) Amendment Act, 2013.
iii. Whether the Respondent has proved its case against the Appellant beyond reasonable doubt to secure the conviction of the Appellant”.

The two sets of issues are in substance the same though the issues formulated by respondent have a tinge of subjectivity to them. I will therefore be guided by the issues distilled by the appellant in the determination of the appeal. I propose to treat issue 1 separately and thereafter deal with issues 2 and 3 together.

Issue 1
Appellant’s counsel straightaway urged the Court to resolve the issue in the negative as, according to him, the appellant was able to prove on the balance of probabilities that Exhibit F was obtained under duress. He added that Exhibit “E2” which was supposed to aid the admissibility of Exhibit F has little weight because the PW 2 confirmed that only part of the recording of the interview of the appellant is in Exhibit E2. He contended that the trial Court erroneously transferred the burden of proof to the appellant when it held

that he had the burden of satisfying the Court that he was threatened to sign Exhibit F. He submitted that whenever a defendant is to prove anything in a criminal proceeding, it is usually on a balance of probabilities and not beyond reasonable doubt.

Counsel submitted that another perversity in the finding of the trial Court in the trial – within – trial is that the learned trial Judge failed to avert his mind to the testimony of PW 1 that Exhibit F was the product of a question and answer interview. Citing the case of Salawu V State (2009) LPELR – 8867 (CA) he argued that a confessional statement obtained through a question and answer session is inadmissible.

Respondent’s counsel submitted that findings of facts made by a trial Court in a trial – within – trial are based on the credibility of witnesses after watching their demeanour and that an appellate Court should not upset such findings. She set out the finding of the learned trial Judge on the evidence led at the trial – within – trial and posited that the learned trial Judge satisfactorily evaluated evidence.

In his reply, appellant’s counsel stated that there is a clear distinction between finding of fact by a trial Court based on credibility of witnesses and finding based on evaluation of evidence. He added that in the latter case, an appellate Court can proceed to examine evidence and come to a different finding from that of the trial Court. He stated that the instant matter falls within the latter category.

Resolution
I have already stated that when the prosecution sought at the trial Court to tender the confessional statement of the appellant, his counsel raised an objection to its admissibility on the ground that it was not made voluntarily. The learned trial Judge rightly held a trial – within – trial to determine the voluntariness of the statement. After the trial – within – trial and taking of written addresses, the learned trial Judge ruled as follows:
“I carefully examined the evidence advanced in this trial within trial by both the prosecution and the defence with the relayed Exhibit E2 and found that the 1st defendant have (sic) given confessional statement, and there is no shred of evidence to suggest or infer he

was threatened or coerced to make or sign his statement in the circumstance of this case. I so hold” – Page 152 of the record of appeal.

The learned trial Judge accordingly admitted the confessional statement as Exhibit “F”.

merely on the ground that it would have, if it were considering the matter, come to a different conclusion. Hence so long as there was evidence from which the learned trial Judge could have come to the conclusion to which he did, the verdict cannot be disturbed.
However, it is well settled that when the record discloses that the finding of the trial Court cannot be supported on the evidence on record, such a finding will be disregarded and the Court of appeal can interfere by setting aside the finding. SeeIkem V State (1985) 4 SC (Part 2) 30, Gbahabo V State (2014) All FWLR (Pt. 718) 957, Nagogo V CPC (2013) 2 NWLR (Pt. 1339) 448 and State V Oray (2020) 7 NWLR (Pt. 1722) 130.

In the course of testifying in the trial-within-trial as a member of the State Security Service team that interviewed the appellant and in keeping with Sections 15 (7) and 17 (2) of the Administration of Criminal Justice Act, the PW1 stated that he sought the permission of the appellant to be recorded and with his agreement he was recorded with an official Samsung phone. The phone was handed over to their technical expert who transferred the contents into a CD (compact disc).

The technical expert testified as PW2 in the trial-within- trial and stated that he made sure that the exact content of the mobile phone was transferred into a compact disc, which was admitted in evidence at the trial-within-trial as Exhibit E2. In cross-examination, he stated as follows:
“…….yes its true there is difference between full and part, yes part is not full – its only the recording given to me, we tender everything as it is on record, I would not know why part of the recording was given to me to transfer to disc”. See page 118 of the record of appeal.

As rightly observed by appellant’s counsel, the above evidence shows that only a part of the recording of the interview was given by the PWI to PW2 to transfer into the compact disc. The implication is that the recording of a part of the interview was withheld and is not reflected on the compact disc. Why was a part of the record of the interview withheld? What is in that part of the interview that was withheld? A Court in deciding a matter should be reluctant to rely on evidence that is incomplete and a part of it withheld. The learned trial judge

therefore erred in relying on Exhibit E2 in holding that the confessional statement of the appellant was made voluntarily.

On his part, the appellant testified at the trial-within-trial that he was assaulted on his leg and he sustained injury on his leg in the bid by the prosecution to make him confess. He also testified that he was struck on the head and he sustained injury on his head. At page 151 of the record of appeal, the learned trial judge observed as follows:
“In Court, I examined the body of the 1st defendant and witnessed some marks of healed wounds scantly spotted on his head and leg, however it is my considered view that the 1st defendant should provide tangible evidence on the alleged injuries and the necessary link of such acts of unwarranted beatings to the investigators of the case, because allegation in criminal trials are to be proved beyond reasonable doubt.
In other words, he who alleged must prove. It becomes imperative for the 1st defendant to support his assertion of threats or oppression (injury) with prove of the nature of the bodily harm (torture) inflicted on his person and the necessary link to the

investigators…….”.

I respectfully disagree with the learned trial judge. I have already stated that the burden of proving that a confessional statement was voluntarily made is on the prosecution and it does not shift. The standard of proof is proof beyond reasonable doubt. Where the prosecution leads prima facie evidence to discharge the burden and some explanation is needed from the accused person, the burden on him is discharged on a balance of probabilities and not on proof beyond reasonable doubt.

The evidence of the appellant that he was assaulted and he sustained injury on his leg and head seems to be fortified and rendered probable by the above observation of the learned trial judge. The evidence of the appellant in my view provided the “tangible evidence and necessary link” between the injuries on him and the investigators as required by the learned trial judge. This is in contradistinction to the half or partial evidence presented by the prosecution in the compact disc.

Counsel for the respondent contended that the finding of the learned trial judge was based on the demeanour of the witnesses and

therefore it cannot be disturbed. I have read the ruling of the learned trial judge including the excerpt which I set out earlier in the treatment of this issue. It is clear that the finding of the trial Court was not at all based on the demeanour of witnesses or credibility of witnesses but it was based on evaluation of evidence on record. Even if it was based on credibility or demeanour of witnesses, the Court will interfere where it is perverse or where it is based on wrong inferences from the evidence leading to a miscarriage of justice or where the Court failed to make good use of the opportunity of seeing and hearing witnesses. See Mogaji V Odofin (1978) 4 SC 91, and Daudu V FRN (2018) 10 NWLR (Pt. 1626) 169.

Inspite of the above and in the light of my earlier reasoning, it is my view that this

is a proper case for this Court to interfere with the finding of the trial Court in respect of the trial – within – trial.

I therefore enter a negative answer to issue 1 and resolve it in favour of the appellant. On this account, I reverse the finding of the trial Court that Exhibit F was given voluntarily by the appellant. In its place, I hold that the prosecution did not discharge the burden of proving that the statement of the appellant was made voluntarily. I accordingly expunge Exhibit F from the record.

ISSUES 2 AND 3
Appellant’s counsel submitted that the trial Court did not look at other pieces of evidence apart from Exhibit F to convict the appellant on count 5 even though it was desirable in law for it to do so. This submission he stated was on the assumption without any concession, that this Court finds against the appellant in respect of issue 1. He went on to argue that in evaluating evidence on count 1, the trial Court relied on Exhibit A, the confessional statement of the co – accused and Exhibit E2 as corroborative of Exhibit F. He contended that Exhibit A which itself requires corroboration cannot

corroborate exhibit F. This, according to him, is because Exhibit A is a retracted confessional statement which needs corroboration outside it. He added that a confessional statement of a co – accused person cannot be used against another accused person. He noted there was no evidence on record that the appellant was confronted with Exhibit A for him to react to it.

Arguing his issue 3, counsel stated that though appellant was convicted for having links with a terrorist group, there was no evidence that such a group was proscribed and declared a terrorist group as required by Section 3 of the Act.

Respondent’s counsel in arguing issue 2 (which is her issue 3) stated that the confessional statement of the appellant was voluntary, cogent, direct, positive and unequivocal. She further stated that the statement was corroborated by Exhibit E2. In respect of issue 3 (which is her issue 2), she referred to Sections 2 and 16 of the Act and submitted that the latter section provides for both the offence of membership of a terrorist group as well as a proscribed organisation. This, she contended, clearly differentiates a terrorist group from a

proscribed organisation.

In his reply, appellant’s counsel contended that Exhibits E2 was only used to make Exhibit F admissible in the trial-within-trial and not for the purpose of corroborating it.

Resolution:
Having expunged Exhibit F from the record on the basis that it was wrongly admitted, Section 251 (1) of the Evidence Act, 2011, comes into the scene. It provides as follows:
“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been same if such evidence had not been admitted”.
The law therefore is that the wrongful admission or exclusion of evidence does not result in the reversal of a decision if it does not affect the decision of the trial Court. See Queen V Haske (1961) 2 SCNLR 90, Omomeji V Kolawole (2008) NWLR (Pt. 1106) 180 and Adeyemi V State (2014) 13 NWLR (Pt. 1423) 132.

The appellate Court in the situation where inadmissible evidence has been admitted in a criminal case is empowered

to reject the same, as I have done, and decide the matter on available legal evidence. See Zubairu V State (2015) 16 NWLR (Pt. 1486) 504.

It is clear that the conviction of the appellant by the trial Court was based completely or almost completely on the expunged confessional statement. On page 270 of the record of appeal, the learned trial judge observed that:
“I have scrutinized the prosecution’s final written address and have noticed, that proof of the defendants’ guilt in this case depend almost entirely on the confession of the defendants.”

In respect of count 5, at page 275 of the record, his lordship stated that:
“The 1st defendant did confess to participating in the kidnap of Mrs. Iyuadoo Tor-Agbidye in writing and verbally in a recorded video in which his demeanour is surprisingly very calm. And it is an age-long settled law that the Court can conveniently convict solely on the confession of an accused person…
It is on this premise that I find the 1st defendant guilty on this count as charged and is accordingly convicted”.

Having expunged the confessional

statement from the record, the conviction cannot stand. The trial Court’s reliance on the video compact disc was also wrong as the disc (Exhibit E2) was admitted only for the purpose of the trial-within-trial while in the main trial it was only tendered for identification and was not admitted in evidence at the main trial. See pages 109 and 117 of the record of appeal. It was only the confessional statement that was admitted in evidence for the main trial. See page 152 of the record. An exhibit or evidence admitted for the purpose a trial-within-trial cannot be used by the trial Court in the process of writing the final judgment as the trial-within-trial is different from the trial of the charge. In the case of Idagu V State (2018) 15 NWLR (Pt. 1641) 127, 143, it was held that the inquiry into voluntariness is in a compartment that is separate from the main trial.

The learned trial judge at page 271 of the record reasoned as follows:
“The veracity of a confessional statement is also tested on whether or not it has been corroborated, no matter how slight. In the case at hand, it is clear that the confession of the 1st defendant is

different from that of the 2nd defendant. In fact, confession of the 1st defendant cannot be used against the 2nd defendant. I therefore consider the two confessions corroborative of each other”.

Prithee, my lords, if the “confession” of appellant cannot be used against his co-accused person, how could the two confessions corroborate each other? In any event, since the confession of the appellant has been expunged from the record, the idea of its being corroborated does not arise. Furthermore, the confessional statement of one accused person implicating the other accused person cannot adversely affect the other accused person unless the other accused person adopts the said statement by word or conduct. See Section 29(4) of the Evidence Act, 2011. There is no evidence of such adoption. The confessional statement of one accused person implicating his co – accused person cannot corroborate the statement of the co – accused person. Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. See State V Gambo (2019) 2 NWLR (Pt. 1655) 117, 136.

The co – accused person did not adopt the confessional statement in his evidence in Court nor did he give evidence in Court implicating the appellant. The trial Court could not in that circumstance rely on his statement to convict the appellant. See Usman V State (2019) 15 NWLR (Pt. 1696) 411, 442.
The foregoing reasoning applies to the conviction in count 1, to wit; conspiracy. It must however be said that the law is that once an agreement is shown to exist between conspirators, evidence which is admissible against one conspirator is equally admissible against the other(s). See Osho V State (2018) 13 NWLR (Pt. 1637) 474, 488. However, in this instance outside the “confessional” statement, there is no evidence of any agreement except the hearsay evidence of the PW3 and PW4. The trial Court therefore had no basis to convict the appellant for conspiracy.

The point about conviction of the appellant for having links to a terrorist group which is not proscribed under Sections 2 and 9 of the Act is academic in the light of my findings above. The Court is not set up to consider academic or moot points. I therefore will not delve into it.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In consequence of the above, I enter a negative answer to issue 2 and resolve it in favour of the appellant.

On the whole, I find that the appeal has merit and I allow the same. I set aside the judgment of the trial Court and in its stead, I dismiss the charge against the appellant. The appellant is discharged and acquitted.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph E. Ekanem, JCA, made available to me a draft copy of the lead Judgment, just delivered, in which this appeal has been allowed. The resolution of the issue arising for determination has been comprehensively considered and resolved, and, I adopt same as mine.
I also allow this appeal and abide by the orders made in the lead Judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Joseph E. Ekanem, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

Appearances:

Jirgba, Esq.For Appellant(s)

M. Labaran, Esq., with him, Mrs Y. A. ColeFor Respondent(s)

Appearances:

Jirgba, Esq. For Appellant(s)

M. Labaran, Esq., with him, Mrs Y. A. Cole For Respondent(s)