JOSEPH v. STATE (2020)

JOSEPH v. STATE

(2020)LCN/14576(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, September 11, 2020

CA/A/653C/2016

RATIO

PLEADINGS: JURISDICTION OF COURT.

Now, let us closely look at the law on the basis of which the appellant is raising the issue of jurisdiction. It is Section 149 to 151(1), (B) of the Child Right Law of Kogi State,2009 This Law provides as follows:
“149 There shall be established for the state a Court to be known as family Court (in this law referred to as “The Court) for the purpose of hearing and determining matters relating to children.
150 The Court shall be at two level-
a. The Court as a Division of the High Court at the High Court Level; and
b. The Court as a Magistrate Court, at the Magistrate level”.
151 (1) Subject to the provisions of this law and in addition to such other jurisdiction as may be conferred on it by any other law, the Court shall have unlimited jurisdiction to hear and determine…
b. Any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by a child, against a child, or against the interest of a child”.
This law is very clear and completely devoid of any ambiguity that would in ordinary manner call for construction. In our law on interpretation of statutes, statutes must be given their simple, ordinary and plain meaning. In the case of A.G. Federation v. A.G. Lagos State (2013) LPELR 20974 (SC), the Supreme Court per Mukhtar, JSC (as he then was held at pp. 82 83 as follows:
“It is a settled principle of interpretation that provisions in Statutes must be given their simple and direct meaning, which construes and gives the statute its legal meaning. in the process of doing so the intention of the legislature must be explored and taken into consideration, but this will not be to the extent of bringing into the provision a different complexion from what was intended by the legislature. In this wise the Court should confine itself to the plain and unambiguous meaning of the words used. The authors of Halsbury’s Laws of England Fourth Edition Re issue volume 41(2) paragraph 1373 on page 1372 legal meaning expressed the following: “The legal meaning of an enactment that is the meaning that corresponds to the legislator’s intention is the meaning arrived at by applying to the enactment, taken with any other relevant and admissible material, the rules, principles, presumptions and cannons which govern statutory interpretation. These may be referred to as the interpretative criteria, or guides to legislative intention.“ It is incumbent on the Court to ascertain the true legal meaning of words used by the legislature. See Toriola v. Williams 1982 7 SC 27, and N.P.A. Plc v. Lotus Plastics Ltd 2005 19 NWLR Part 959 page 1”.
Furthermore, in the case of Gana v. SDP & ors. (2019) LPELR- 47153 (SC), the Supreme Court per Sanusi, JSC, at P43, paras. B – E held as follows:
“It must be stressed here and it is even trite, that In the process of interpretation of statute, a Court must not give an interpretation which would defeat the intention and purpose of the law makers and should rather adopt a holistic approach and interpret the provisions dealing with a subject matter together so as to give true intention of the law makers. See- Ayodele v. State (2011) 6 NWLR (Pt. 1243) 309, Attorney General of the Federation v. Attorney General of Lagos State (2013) 16 NWLR (Pt. 1380) 249; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377, 402. Approach of Court in interpreting the clear and unambiguous words of a statute in the instant appeal must sync with this accepted norm of interpretation to give the provisions of the Kogi State Child Right Law its ordinary meaning. From the provision of Sections 149 to 151 of the Child Right Law as cited, the Family Court created by the Law was given the unlimited jurisdiction by the law to hear any criminal matter involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by a child against a child or against the interest of a child.
It is lucid and excellently clear that the jurisdiction given by the law is unlimited but it is not exclusive. Unlimited jurisdiction means it is without confines or that it is unrestricted or boundless as far as the issue under its cover is concerned. Exclusive jurisdiction however is defined to mean the power which a Court or other Tribunal exercises over an action or over a person to the exclusion of all other Courts. That forum in which an action must be commenced because no other forum has the jurisdiction to hear and determine the action. (See Black’s Law Dictionary 6th Edition).
The fact that a Family Court in Kogi State has unlimited jurisdiction over every issue concerning or in respect of an offence committed by a child or against a child or against the interest of a child does not mean that the regular High Court such as the lower Court cannot hear those matters touching a child. No law creates exclusive jurisdiction for the Family Court in Kogi State to hear all matters pertaining to a child. The High Court of a State has a unique jurisdiction under Section 272 of the Constitution of the Federal Republic of Nigeria 1999. Section 272 (1) & (2) provides as follows:
272-(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extend of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction. This provision clearly endows the State High Court the jurisdiction to hear and determine the existence of any legal right etc, and to determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. This jurisdiction has been conferred by the Organic Law of the Land, the Constitution. This jurisdiction cannot under any guise or construction be toyed with as a right or jurisdiction conferred or vested by the Constitution cannot be taken away or interfered with by any other legislation or statutory provision except the Constitution itself. Any law purportedly made which abrogates Constitution will be void to the extent of its inconsistency. Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517, Madu v. Mbakwe & Anor (2008) LPELR- 8389 (CA). The 1999 Constitution as at today has not amended Section 272 of the Constitution to allow the state Child’s Right Law override it.
In the instant appeal, the offence for which the appellant was convicted and sentenced is that of Kidnapping under Section 3(3) (b) of the Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Law, 2010. This is a Law enacted by the House of Assembly of Kogi State. The criminal offences created by this law are all amenable to the jurisdiction of the State High Court. This law does not create any special or exclusive jurisdiction for any other Court. It is also true that the Child Right Law earlier cited did not create any exclusive or special jurisdiction forbidding the High Court a creature of the Constitution from exercising jurisdiction. It follows therefore, that the trial Court had jurisdiction to entertain the case. I am therefore, fully convinced that the law has endowed the lower Court the jurisdiction to hear and determine the criminal case for which the appellant was convicted and sentenced. Per STEPHEN JONAH ADAH, J.C.A.

RATIO

PLEADINGS: EXTRA-JUDICIAL CONFESSION(CONFESSIONAL STATEMENT)

It is trite law that where extra-judicial confession of an accused person has been proved to have been made voluntarily, and it is positive and unequivocal and amounts to an admission of guilt, it is safe to convict on it even if there is no corroboration of it. See Stephen v. State (2013) 8 NWLR (Pt. 1355) 153 at 167, Abasi v. State (1992) 8 NWLR (260) 383. It is also the law that a confessional statement is provided to have been made voluntarily when at the stage of tendering the confessional statement, there is no objection from the accused person or his counsel as to the voluntariness of his statement. See Stephen v. State (supra). The law is settled that when an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty of the Court to test the confession by conducting a trial within a trial in order to determine whether in fact the statement was voluntarily made. See Emeka v. State (2001) 14 NWLR Pt. 734) 666 at 681 – 682.
The Supreme Court in Ibeme v. State (2013) 10 NWLR (Pt. 1362) 333 at 355 Paras E – F. This also was the position of the learned counsel for the appellant. He submitted that the learned trial judge erred in law when he failed and refused to order trial within a trial when an objection as to the voluntariness of Exhibit 6A was allegedly raised upon being sought to be tendered on 18th February, 2016. He referred the Court to page 157, lines 5 – 16 of the records of proceedings. He further submitted that the learned trial judge with respect misconceived the position of the law when he held that the objection to the voluntariness of Exhibit 6A amounted to retraction. That the appellant in the instant case did not deny or retract Exhibit 6A but raise prompt objection to the voluntariness of Exhibit 6A when the respondent sought to tender same. He submitted further, that the learned trial judge in page 190 lines 21 – 24 of the record of proceeding quoted above in paragraph in 5.6 of this brief of argument expressly gave particulars of voluntariness as raised by the appellant as such that the proper thing the learned trial judge would have done was to conduct a trial within trial. The learned counsel further contended that the conviction and sentencing of the appellant was heavily based on Exhibit 6A which was wrongly admitted and relied upon by the learned trial judge. That it affected the overall decision of the trial Court in convicting and sentencing the appellant. He urged the Court to resolve the issue in favour of the appellant. The respondent did not directly consider this issue two. The closer of the issues raised by the respondent are his issues 3 and 4 which he argued together. The learned counsel for the Respondent canvassed that the conviction of the trial Court was hoisted squarely on the content of Exhibit 6A and the evidence of the PW2 at page 190 of the Record of Appeal.

In our Criminal Law and procedure, the burden of proof for criminal offences is on the prosecution. The standard of proof is that of proof beyond reasonable doubt. In the instant case, the prosecution before the trial Court called witnesses who directly testified to the action of the appellant in committing the crime. The learned trial judge in his judgment said at PP187 as follows:
I have perused the evidence of PW2 the victim of the kidnap for which the accused persons were arraigned for prosecution herein. There is no contrary evidence against the evidence of the PW2 that he was kidnapped on 15th day of March, 2015. The pieces of evidence of the PW2 was corroborated by the evidence of the PW1, PW3 and PW4.
The question now is who are the kidnappers of PW2? The PW2 identified the first accused as the person who drove Exhibit 1 that conveyed him on the day they took him to a far place. He (PW2) went further to describe how first accused hung a stethoscope on the front inner mirror of his Ford Jeep. The PW2 was however silent about the second accused person. There is also a confessional statement of the first accused Exhibit 6A which learned counsel for the accused persons said was wrongly admitted because trial within trial was not conducted. It must be stated that the Court can convict on a retracted confession if the Court believes that he made the confession and attaches due weight to it.
I had earlier on stated that there is no contrary evidence against the evidence of the PW2 that he was kidnapped. Also PW2’s evidence that first accused drove Exhibit 1 and carried him to a far place was not controverted under cross examination. I therefore have no difficulty in believing the PW2 that the first accused drove Exhibit 1 which carried him to a far place after the kidnap. I believe the PW2 and find accordingly for where the evidence by a prosecution witness remains uncontroverted and unchallenged, it is deemed as duly established. See the cases of Ubani & 2 Ors. v. The State (2003) 12 SCNJ 111 at Page 130 and Oforlete v. The State (2000) 7 SCNJ 162 at p. 179 & 183.
On the second head of charge of kidnapping contrary to Section 3 (3) (b) of the Kogi State Kidnapping, Thuggery and Other Related Offence (Prohibition) Law 2010, it is in evidence that the first accused admitted the commission of the offence in Exhibit 6A. The first accused retracted his statement on grounds that it was voluntarily made. He said he was tortured and that he sustained injury as a result of the torture. Under cross examination by M. A. Abaji learned Senior Legal Officer for the State, the first accused stated that he was not treated while in the SSS Office in Lokoja. This made his claim of torture unreliable.
The PW2’s evidence that first accused drove Exhibit 1 which moved him to a far distance location was not controverted under cross-examination. That piece of evidence was corroborated by the evidence of PW1 and PW4.
I therefore have no difficulty in believing the evidence of the PW2 who is the victim of the kidnap. It is clear that first accused was one of the gang of kidnappers who kidnapped Favour Sunday that faithful night of 15th March, 2015 in Abuja Estate Ajaokuta in Ajaokuta Local Government Area within the Kogi State Judicial Division. The standard of proof in criminal matters is as prescribed in Section 135 of the Evidence Act, 2011. It is that where the commission of crime is in issue, the standard of proof required before conviction is proof beyond reasonable doubt. This is not dependent on the magnitude of the offence created. It is a creation of the law and it must be complied with. Such standard of proof however, is not one beyond all shadows of doubt. See Akindipe v. The State (2010) 16 NWLR (Pt. 813) 340, 370. The prosecution is required to assemble cogent, credible and reliable evidence to link up the accused with the crime committed. Such proof must undoubtedly be by credible and admissible evidence. See FRN v. Usman & Anor. (2012) LPELR- 7818 (SC). The burden of proof beyond reasonable doubt does not shift. It is always that of the prosecution. In the case of Adekoya v. State (2017) 7 NWLR (Pt. 1565) 343, the Supreme Court held as follows:
“It is to be reiterated that in criminal matters such as the one we are faced with the standard of proof is beyond reasonable doubt. This is a principle that is fundamental and sacrosanct and in establishing that required standard of proof, all the essential elements or ingredients must be proved on that standard. This is because the ingredients are cumulative and none should be found lacking before the proof beyond reasonable doubt is said to have been met. Therefore, once all those vital ingredients are established altogether beyond reasonable doubt the Court is enabled to convict the accused. I place reliance on Fatai Olayinka v. State (2007) 9 NWLR (Pt. 1040) 56, Alabi v. State (1993) 7 NWLR (Pt. 307, Bello v. State (2007) 10 NWLR (Pt. 1043) 546, Oseni v. State (2012) 2 SC (Pt. 11) 51.” In the instant case, the prosecution called for evidence and four witnesses testified with some Exhibits tendered. Of the Exhibits tendered, Exhibit 6A is the most controversial. Exhibit 6A is the Statement of the appellant to the Police. The appellant contended bitterly that Exhibit 6A was admitted without first conducting a trial within trial despite the objection raised that the said statement said to be a confessional statement was involuntary. This statement was tendered in the trial Court by the prosecution through PW4. The record of appeal shows at page 158 when the said statement was tendered and the Objection raised. It is recorded therein as follows:
PW4: If I see the statement of the second accused I will be able to identify it. I also worked with the recorder for four years.
Court: PW4 identified the statement of the second accused.
Mr. Abaji: We also seek to tender the statement in evidence
H.O. Abbas: My lord I object to the admissibility of the two documents.
1. Proper foundation has not been laid by the witness warranting him to tender the statements on behalf of one Yusuf Audu for the first accused and one Solomon Daudu for the second accused as he did not tell the Court whether they are dead or outside the country in compliance with Section 83(1) paragraph a – b of the Evidence Act 2011.
Looking at Sections 49 and 50 of the Evidence Act this witness cannot tender these documents.
I was told by the first accused that the first accused was tortured to append his signature. I urge the Court to hold that this statement was not made voluntarily.
Mr. Abaji: We urge you to discountenance the objection of my learned friend.
The landmark of admissibility of any document is relevancy. These documents have passed these test.
The witness clearly said that he wrote the statement by himself. First accused is the maker of the statement.
We humbly urge you to admit the documents in evidence. On the statement of the second accused the witness laid foundation as to the where about of Solomon Daudu who wrote the statement of the second accused and now in Maiduguri. He said he has been working with Solomon Daudu for four years.
We humbly urge you to admit these two documents in evidence. The lower Court in a considered Ruling held at page 159 of the record as follows:
I am therefore, satisfied that this witness has laid enough foundation to warrant the admission of the documents. Objection of H.O. Abbas is accordingly overruled. Statement of Adeika Joseph dated 26th day of March, 2015 and that of Enejoh Audu dated 27th day of March, 2015 are admitted and marked Exhibits 6A and 6B respectively. From this record, the trial Court considered the objection raised by the appellant’s counsel and came to the conclusion that there was enough foundation laid for the admission of the statement of the appellant. The issue of involuntariness was halfheartedly raised and the lower Court did not consider the statement of the appellant to require any further investigation before it was admitted. It is very obvious in law that for a Statement of an accused person to constitute a confession, the Statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in so doing be clear, precise and unequivocal. See Nweze v. State (2018) 6 NWLR (Pt. 1615) 197. In law, no statement of a person accused of committing an offence is admitted in evidence against him unless it is clearly shown by the prosecution that it was a voluntary statement. In the instant case, the appellant’s contention is that he timeously raised an objection as to the voluntariness of the statement but that the trial Court refused to conduct trial within trial to determine the voluntariness. The objection of the appellant earlier captured in this judgment was more on the foundation for the admissibility of the evidence than on the involuntariness of the statement. It is always the duty of the person allegedly said to have made a confessional statement to raise on time the allegation of involuntariness. In the instant case, the focus of the appellant in respect of the statement was much more on laying foundation for the admissibility of a statement not recorded by the 4th PW. The trial Court cannot therefore be faulted when he held that there was sufficient foundation for the admission of the statement and correctly admitted the Statement as Exhibit 6A.
Furthermore, the onus of proof on the Respondent who prosecuted this case at the trial Court is that of proof beyond reasonable doubt. Apart from Exhibit 6A in contention here, there are other credible and faultless evidence of the witnesses called by the prosecution that justified the conviction of the appellant by the trial Court. The evidence of the victim PW2 corroborated by the evidence of the PW3 was not in any form countered or punctured through across-examination. The evidence of the two witnesses were clear, direct and highly credible. The trial Court from the record before the Court was very correct in finding the appellant guilty of the offence charged. Per STEPHEN JONAH ADAH, J.C.A.

RATIO

PLEADINGS: BURDEN OF PROOF.

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ADEIKA JOSEPH APPELANT(S)

And

THE STATE RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kogi State High Court delivered on 7th of June, 2016 where the appellant as an accused person was convicted and sentenced to life imprisonment for the offence of Kidnapping contrary to Section 3(b) of the Kogi State Kidnapping, Thuggery and Other related offences (Prohibition) Law, 2010.

The appellant being dissatisfied with the conviction and sentence appealed to this Court vide a notice of appeal filed on 28th July, 2016.

The facts of this case are as follows: The appellant was arraigned with one other before the High Court of Justice, Kogi State sitting in Lokoja presided over by Yunusa Musa, J. The appellant was arraigned upon an initial three (3) counts charge of criminal conspiracy, kidnapping and impersonation; to which the appellant pleaded not guilty. Thereafter, the trial commenced.

By a Motion on Notice dated the 27th day of July, 2015 and filed on 28th day of July, 2015, the trial Judge granted the prosecution’s application to file additional head of charge of armed robbery to which the appellant pleaded not guilty.

In the course of trial, the respondent called four (4) witnesses namely PW1, PW2, PW3 and PW4 respectively. The respondent tendered exhibits P1 to P6.
At the close of the respondent’s case the appellant opened his defence. He testified in person in his defence and then closed his case.

On the 7th day of June, 2016, the appellant was convicted in respect of count 2 of the charge preferred against him and consequently sentenced to imprisonment for life. It is against the decision of the trial Court that the appellant has appealed to this Honourable Court.
The Record of Appeal was transmitted and the parties filed their respective briefs.

The appellant distilled two issues for determination. These two issues are:
1. Whether the learned trial judge had the jurisdiction to try the appellant in view of the fact that the victim of the offence (PW2) was a minor. (Distilled from ground one of the Notice of Appeal).
2. Whether the learned trial judge was right in law in convicting the appellant based on Exhibit 6A having failed to conduct a trial within trial when the issue of involuntariness was timeously raised. (Distilled from Ground 2 of the Notice of Appeal).

The Respondent in her own brief distilled four issues for determination. The four issues are worded as follows:
1. Was the learned trial judge right in dismissing the objection to the voluntariness/admissibility of appellant’s confessional statement and admitting same in evidence without ordering a trial within trial?
2. Did Appellant counsel have to mention the area of contradiction in the previous statement made by PW2 to the SSS before same would be made available to him for purposes of contradicting PW2?
3. Did the role allegedly played by the appellant in driving his car to convey the kidnap victim, PW2, as well as the testimonies of the prosecution witness support the Court’s holding that inference could be drawn that he belonged to the gang which the ransom if N200,000 was paid.
4. Was the trial Court right in convicting appellant of kidnapping even where there was no credible evidence linking him to the commission of the offence and there was no additional evidence to the confessional statement which made it probable that same was true.

The issues generated by the appellant

represent the grievances of the appellant to my mind. I shall therefore, consider this appeal focusing on the two issues as distilled by the appellant.

Issue One:
This issue is – whether the trial Court had the jurisdiction to try the appellant in view of the fact that the victim of the offence (PW2) was a minor.
The learned counsel for the appellant highlighted the importance of jurisdiction. He relied on the cases of Inakoju v. Adeleke (2007) All FWLR (Pt. 353) 3 87 B D, A.P.C. Ltd V. NDIC (N.U.B) Ltd. (2006) 15 NWLR (Pt. 1002) 404 457 (C- D). The learned counsel for the appellant anchored the objection on Sections 149 to 151 of the Child Right Law of Kogi State, 2009. The learned counsel contended that by the reason of this Law, the appropriate Court to hear the case was the Family Court at the High Court Level. That since this was not done, the trial of the appellant was a nullity. This issue was not captured by the Respondent in her brief of argument.

Now, let us closely look at the law on the basis of which the appellant is raising the issue of jurisdiction. It is Section 149 to 151(1), (B) of the Child Right Law of Kogi State,2009

This Law provides as follows:
“149 There shall be established for the state a Court to be known as family Court (in this law referred to as “The Court) for the purpose of hearing and determining matters relating to children.
150 The Court shall be at two level-
a. The Court as a Division of the High Court at the High Court Level; and
b. The Court as a Magistrate Court, at the Magistrate level”.
151 (1) Subject to the provisions of this law and in addition to such other jurisdiction as may be conferred on it by any other law, the Court shall have unlimited jurisdiction to hear and determine…
b. Any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by a child, against a child, or against the interest of a child”.
This law is very clear and completely devoid of any ambiguity that would in ordinary manner call for construction. In our law on interpretation of statutes, statutes must be given their simple, ordinary and plain meaning. In the case of A.G. Federation v. A.G. Lagos State (2013) LPELR 20974 (SC), the Supreme

Court per Mukhtar, JSC (as he then was held at pp. 82 83 as follows:
“It is a settled principle of interpretation that provisions in Statutes must be given their simple and direct meaning, which construes and gives the statute its legal meaning. in the process of doing so the intention of the legislature must be explored and taken into consideration, but this will not be to the extent of bringing into the provision a different complexion from what was intended by the legislature. In this wise the Court should confine itself to the plain and unambiguous meaning of the words used. The authors of Halsbury’s Laws of England Fourth Edition Re issue volume 41(2) paragraph 1373 on page 1372 legal meaning expressed the following: “The legal meaning of an enactment that is the meaning that corresponds to the legislator’s intention is the meaning arrived at by applying to the enactment, taken with any other relevant and admissible material, the rules, principles, presumptions and cannons which govern statutory interpretation. These may be referred to as the interpretative criteria, or guides to legislative intention.“ It is incumbent on the

Court to ascertain the true legal meaning of words used by the legislature. See Toriola v. Williams 1982 7 SC 27, and N.P.A. Plc v. Lotus Plastics Ltd 2005 19 NWLR Part 959 page 1”.
Furthermore, in the case of Gana v. SDP & ors. (2019) LPELR- 47153 (SC), the Supreme Court per Sanusi, JSC, at P43, paras. B – E held as follows:
“It must be stressed here and it is even trite, that In the process of interpretation of statute, a Court must not give an interpretation which would defeat the intention and purpose of the law makers and should rather adopt a holistic approach and interpret the provisions dealing with a subject matter together so as to give true intention of the law makers. See- Ayodele v. State (2011) 6 NWLR (Pt. 1243) 309, Attorney General of the Federation v. Attorney General of Lagos State (2013) 16 NWLR (Pt. 1380) 249; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377, 402. Approach of Court in interpreting the clear and unambiguous words of a statute in the instant appeal must sync with this accepted norm of interpretation to give the provisions of the Kogi State Child Right Law its ordinary meaning.

From the provision of Sections 149 to 151 of the Child Right Law as cited, the Family Court created by the Law was given the unlimited jurisdiction by the law to hear any criminal matter involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by a child against a child or against the interest of a child.
It is lucid and excellently clear that the jurisdiction given by the law is unlimited but it is not exclusive. Unlimited jurisdiction means it is without confines or that it is unrestricted or boundless as far as the issue under its cover is concerned. Exclusive jurisdiction however is defined to mean the power which a Court or other Tribunal exercises over an action or over a person to the exclusion of all other Courts. That forum in which an action must be commenced because no other forum has the jurisdiction to hear and determine the action. (See Black’s Law Dictionary 6th Edition).
The fact that a Family Court in Kogi State has unlimited jurisdiction over every issue concerning or in respect of an offence committed by a child or against a child or against the interest of a child does not mean that the

regular High Court such as the lower Court cannot hear those matters touching a child. No law creates exclusive jurisdiction for the Family Court in Kogi State to hear all matters pertaining to a child. The High Court of a State has a unique jurisdiction under Section 272 of the Constitution of the Federal Republic of Nigeria 1999. Section 272 (1) & (2) provides as follows:
272-(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extend of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.

This provision clearly endows the State High Court the jurisdiction to hear and determine the existence of any legal right etc, and to determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. This jurisdiction has been conferred by the Organic Law of the Land, the Constitution. This jurisdiction cannot under any guise or construction be toyed with as a right or jurisdiction conferred or vested by the Constitution cannot be taken away or interfered with by any other legislation or statutory provision except the Constitution itself. Any law purportedly made which abrogates Constitution will be void to the extent of its inconsistency. Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517, Madu v. Mbakwe & Anor (2008) LPELR- 8389 (CA). The 1999 Constitution as at today has not amended Section 272 of the Constitution to allow the state Child’s Right Law override it.
In the instant appeal, the offence for which the appellant was convicted and sentenced is that of Kidnapping under

Section 3(3) (b) of the Kogi State Kidnapping, Thuggery and Other Related Offences (Prohibition) Law, 2010. This is a Law enacted by the House of Assembly of Kogi State. The criminal offences created by this law are all amenable to the jurisdiction of the State High Court. This law does not create any special or exclusive jurisdiction for any other Court. It is also true that the Child Right Law earlier cited did not create any exclusive or special jurisdiction forbidding the High Court a creature of the Constitution from exercising jurisdiction. It follows therefore, that the trial Court had jurisdiction to entertain the case. I am therefore, fully convinced that the law has endowed the lower Court the jurisdiction to hear and determine the criminal case for which the appellant was convicted and sentenced.
This issue is hereby resolved in favour of the respondent and against the appellant.

Issue Two:
This issue is- Whether the learned trial judge was right in law in convicting the appellant based on Exhibit 6A having failed to conduct a trial within trial when the issue of involuntariness was timeously raised.
There is no contention over the law on this issue by the

respondent.

The law is settled that when an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty of the Court to test the confession by conducting a trial within a trial in order to determine whether in fact the statement was voluntarily made. See Emeka v. State (2001) 14 NWLR Pt. 734) 666 at 681 – 682.
The Supreme Court in Ibeme v. State (2013) 10 NWLR (Pt. 1362) 333 at 355 Paras E – F. This also was the position of the learned

counsel for the appellant. He submitted that the learned trial judge erred in law when he failed and refused to order trial within a trial when an objection as to the voluntariness of Exhibit 6A was allegedly raised upon being sought to be tendered on 18th February, 2016. He referred the Court to page 157, lines 5 – 16 of the records of proceedings.

He further submitted that the learned trial judge with respect misconceived the position of the law when he held that the objection to the voluntariness of Exhibit 6A amounted to retraction. That the appellant in the instant case did not deny or retract Exhibit 6A but raise prompt objection to the voluntariness of Exhibit 6A when the respondent sought to tender same.

He submitted further, that the learned trial judge in page 190 lines 21 – 24 of the record of proceeding quoted above in paragraph in 5.6 of this brief of argument expressly gave particulars of voluntariness as raised by the appellant as such that the proper thing the learned trial judge would have done was to conduct a trial within trial.

The learned counsel further contended that the conviction and sentencing of the appellant was

heavily based on Exhibit 6A which was wrongly admitted and relied upon by the learned trial judge. That it affected the overall decision of the trial Court in convicting and sentencing the appellant. He urged the Court to resolve the issue in favour of the appellant.

The respondent did not directly consider this issue two. The closer of the issues raised by the respondent are his issues 3 and 4 which he argued together. The learned counsel for the Respondent canvassed that the conviction of the trial Court was hoisted squarely on the content of Exhibit 6A and the evidence of the PW2 at page 190 of the Record of Appeal.

In our Criminal Law and procedure, the burden of proof for criminal offences is on the prosecution. The standard of proof is that of proof beyond reasonable doubt.

In the instant case, the prosecution before the trial Court called witnesses who directly testified to the action of the appellant in committing the crime. The learned trial judge in his judgment said at PP187 as follows:
I have perused the evidence of PW2 the victim of the kidnap for which the accused persons were arraigned for prosecution herein. There is

no contrary evidence against the evidence of the PW2 that he was kidnapped on 15th day of March, 2015. The pieces of evidence of the PW2 was corroborated by the evidence of the PW1, PW3 and PW4.
The question now is who are the kidnappers of PW2? The PW2 identified the first accused as the person who drove Exhibit 1 that conveyed him on the day they took him to a far place. He (PW2) went further to describe how first accused hung a stethoscope on the front inner mirror of his Ford Jeep. The PW2 was however silent about the second accused person. There is also a confessional statement of the first accused Exhibit 6A which learned counsel for the accused persons said was wrongly admitted because trial within trial was not conducted. It must be stated that the Court can convict on a retracted confession if the Court believes that he made the confession and attaches due weight to it.
I had earlier on stated that there is no contrary evidence against the evidence of the PW2 that he was kidnapped. Also PW2’s evidence that first accused drove Exhibit 1 and carried him to a far place was not controverted under cross examination. I therefore have no

difficulty in believing the PW2 that the first accused drove Exhibit 1 which carried him to a far place after the kidnap. I believe the PW2 and find accordingly for where the evidence by a prosecution witness remains uncontroverted and unchallenged, it is deemed as duly established. See the cases of Ubani & 2 Ors. v. The State (2003) 12 SCNJ 111 at Page 130 and Oforlete v. The State (2000) 7 SCNJ 162 at p. 179 & 183.
On the second head of charge of kidnapping contrary to Section 3 (3) (b) of the Kogi State Kidnapping, Thuggery and Other Related Offence (Prohibition) Law 2010, it is in evidence that the first accused admitted the commission of the offence in Exhibit 6A. The first accused retracted his statement on grounds that it was voluntarily made. He said he was tortured and that he sustained injury as a result of the torture. Under cross examination by M. A. Abaji learned Senior Legal Officer for the State, the first accused stated that he was not treated while in the SSS Office in Lokoja. This made his claim of torture unreliable.
The PW2’s evidence that first accused drove Exhibit 1 which moved him to a far distance location was

not controverted under cross-examination. That piece of evidence was corroborated by the evidence of PW1 and PW4.
I therefore have no difficulty in believing the evidence of the PW2 who is the victim of the kidnap. It is clear that first accused was one of the gang of kidnappers who kidnapped Favour Sunday that faithful night of 15th March, 2015 in Abuja Estate Ajaokuta in Ajaokuta Local Government Area within the Kogi State Judicial Division.

The standard of proof in criminal matters is as prescribed in Section 135 of the Evidence Act, 2011. It is that where the commission of crime is in issue, the standard of proof required before conviction is proof beyond reasonable doubt. This is not dependent on the magnitude of the offence created. It is a creation of the law and it must be complied with. Such standard of proof however, is not one beyond all shadows of doubt. See Akindipe v. The State (2010) 16 NWLR (Pt. 813) 340, 370. The prosecution is required to assemble cogent, credible and reliable evidence to link up the accused with the crime committed. Such proof must undoubtedly be by credible and admissible evidence. See FRN v. Usman & Anor.

(2012) LPELR- 7818 (SC). The burden of proof beyond reasonable doubt does not shift. It is always that of the prosecution. In the case of Adekoya v. State (2017) 7 NWLR (Pt. 1565) 343, the Supreme Court held as follows:
“It is to be reiterated that in criminal matters such as the one we are faced with the standard of proof is beyond reasonable doubt. This is a principle that is fundamental and sacrosanct and in establishing that required standard of proof, all the essential elements or ingredients must be proved on that standard. This is because the ingredients are cumulative and none should be found lacking before the proof beyond reasonable doubt is said to have been met. Therefore, once all those vital ingredients are established altogether beyond reasonable doubt the Court is enabled to convict the accused. I place reliance on Fatai Olayinka v. State (2007) 9 NWLR (Pt. 1040) 56, Alabi v. State (1993) 7 NWLR (Pt. 307, Bello v. State (2007) 10 NWLR (Pt. 1043) 546, Oseni v. State (2012) 2 SC (Pt. 11) 51.”

In the instant case, the prosecution called for evidence and four witnesses testified with some Exhibits tendered. Of the Exhibits tendered,

Exhibit 6A is the most controversial. Exhibit 6A is the Statement of the appellant to the Police.

The appellant contended bitterly that Exhibit 6A was admitted without first conducting a trial within trial despite the objection raised that the said statement said to be a confessional statement was involuntary. This statement was tendered in the trial Court by the prosecution through PW4. The record of appeal shows at page 158 when the said statement was tendered and the Objection raised. It is recorded therein as follows:
PW4: If I see the statement of the second accused I will be able to identify it. I also worked with the recorder for four years.
Court: PW4 identified the statement of the second accused.
Mr. Abaji: We also seek to tender the statement in evidence
H.O. Abbas: My lord I object to the admissibility of the two documents.
1. Proper foundation has not been laid by the witness warranting him to tender the statements on behalf of one Yusuf Audu for the first accused and one Solomon Daudu for the second accused as he did not tell the Court whether they are dead or outside the country in compliance with

Section 83(1) paragraph a – b of the Evidence Act 2011.
Looking at Sections 49 and 50 of the Evidence Act this witness cannot tender these documents.
I was told by the first accused that the first accused was tortured to append his signature. I urge the Court to hold that this statement was not made voluntarily.
Mr. Abaji: We urge you to discountenance the objection of my learned friend.
The landmark of admissibility of any document is relevancy. These documents have passed these test.
The witness clearly said that he wrote the statement by himself. First accused is the maker of the statement.
We humbly urge you to admit the documents in evidence. On the statement of the second accused the witness laid foundation as to the where about of Solomon Daudu who wrote the statement of the second accused and now in Maiduguri. He said he has been working with Solomon Daudu for four years.
We humbly urge you to admit these two documents in evidence.

The lower Court in a considered Ruling held at page 159 of the record as follows:
I am therefore, satisfied that this witness has laid enough foundation to warrant the admission of the

documents. Objection of H.O. Abbas is accordingly overruled. Statement of Adeika Joseph dated 26th day of March, 2015 and that of Enejoh Audu dated 27th day of March, 2015 are admitted and marked Exhibits 6A and 6B respectively.

From this record, the trial Court considered the objection raised by the appellant’s counsel and came to the conclusion that there was enough foundation laid for the admission of the statement of the appellant. The issue of involuntariness was halfheartedly raised and the lower Court did not consider the statement of the appellant to require any further investigation before it was admitted. It is very obvious in law that for a Statement of an accused person to constitute a confession, the Statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in so doing be clear, precise and unequivocal. See Nweze v. State (2018) 6 NWLR (Pt. 1615) 197. In law, no statement of a person accused of committing an offence is admitted in evidence against him unless it is clearly shown by the prosecution that it was a voluntary statement. In the instant case, the appellant’s

contention is that he timeously raised an objection as to the voluntariness of the statement but that the trial Court refused to conduct trial within trial to determine the voluntariness. The objection of the appellant earlier captured in this judgment was more on the foundation for the admissibility of the evidence than on the involuntariness of the statement. It is always the duty of the person allegedly said to have made a confessional statement to raise on time the allegation of involuntariness. In the instant case, the focus of the appellant in respect of the statement was much more on laying foundation for the admissibility of a statement not recorded by the 4th PW. The trial Court cannot therefore be faulted when he held that there was sufficient foundation for the admission of the statement and correctly admitted the Statement as Exhibit 6A.
Furthermore, the onus of proof on the Respondent who prosecuted this case at the trial Court is that of proof beyond reasonable doubt. Apart from Exhibit 6A in contention here, there are other credible and faultless evidence of the witnesses called by the prosecution that justified the conviction of the

appellant by the trial Court. The evidence of the victim PW2 corroborated by the evidence of the PW3 was not in any form countered or punctured through across-examination. The evidence of the two witnesses were clear, direct and highly credible. The trial Court from the record before the Court was very correct in finding the appellant guilty of the offence charged.

From the foregoing therefore, it follows that this appeal is lacking in merit. The appeal is hereby dismissed. The conviction and sentence of the appellant by the trial Court in case No: HCL/56C/2015, on 7th June, 2017 are affirmed.

ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother STEPHEN JONAH ADAH, JCA. I agree that the appeal is unmeritorious and should be dismissed.

My Learned Brother has dealt exhaustively with all the issues raised in this appeal and I adopt his judgment as mine. However, and just for the purpose of emphasis, I will put in one or two words of mine on the onerous duty on Counsel/accused person to object timeously to the voluntariness or otherwise of the extra judicial statement of an accused person,

before it is admitted in evidence.

The law is now firmly settled that, where an accused person alleges that a statement which amounts to a confession to the commission of the offence he was charged with, was not made by him voluntarily, the proper stage of the trial at which he should raise an objection to its admissibility is when the prosecution seeks to tender or put such statement in evidence as part of the prosecution’s evidence in prove of the crime alleged against him. In other words, where an accused person denies the voluntariness of his extra-judicial statement made to the police, and statement of the police contends is confessional of the crime charged, the practice is for such an accused person to object to its admissibility at the time the prosecution seeks to tender it in evidence. The Court will then proceed to determine its voluntariness by conducting a trial within a trial, so as to determine whether the statement has satisfied the requirements of voluntariness for it to be admitted in evidence.
Thus in the case of OSENI v. STATE (2012) 2 MIIJ.S.C. (II p.98), the Supreme Court pointed out that:-
“Another principle of the

criminal law which has been consistently repeated in our law reports is, at what time does an accused person object to the admissibility of a statement credited to him as his confession? This Court in its several decisions answered the question in the following words; “the question of the voluntariness of a confessional statement is tested at the time the statement sought to be tendered in evidence. In the instant case, the confessional statements were tendered without any objection from the defence. None of the prosecution witnesses were cross-examined as to their voluntariness. It was not until the prosecution had closed its case and the Appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The trial Judge was right to dismiss this aspect of the defence case as an afterthought.”
It is clear therefore that the proper time at which an accused person can raise an objection to the admissibility of an extra- judicial statement made by him to the police, and which the prosecution considers to be a confession of the crime charged, is when the statement is being tendered in evidence by the prosecution.

Anything to the contrary, would not be countenanced by the Trial Court nor sustained on appeal. See:
AFOLALU v. STATE (2009) 3 NWLR (PT.1127) 160 AT 193;
MBANG v. THE STATE (2009) 8 NWLR (PT.1172) P.140.
In the instant case, it is apparent from the Record, that the main concern of Counsel to the Appellant was the issue of proper foundation not being laid, to warrant the tendering of Exhibit 6A. The issue of involuntariness was halfheartedly raised and the Trial Court rightly admitted the said Exhibit 6A, without much ado.

It is for this reason and the more detailed reasons given in the lead judgment that I am constrained to agree with my Learned Brother STEPHEN JONAH ADAH, JCA that this appeal is unmeritorious and ought to be dismissed. It is accordingly dismissed.

MOHAMMED BABA IDRIS, J.C.A.: I had the privilege of reading in draft the judgment just delivered by learned brother STEPHEN JONAH ADAH, JCA and I agree with the reasoning contained therein and the conclusion arrived there at.

My brother has adequately considered the issues formulated for determination in this Appeal. I have nothing useful to add. For the same reasoning

advanced in the lead Judgment which I adopt as mine, this Appeal fails.
I abide by the other orders made therein the lead Judgment.

Appearances:

AFAM OSIGWE, ESQ., with him, ABAS SANNI, ESQ. For Appellant(s)

KADIRI, ESQ., with him, STANLEY ATULE, ESQ., and OJOMA ETUBBI For Respondent(s)