MOHAMMED ALI-BALOGUN v. FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/4158(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of December, 2010
CA/A/39/C/2008
RATIO
CONFESSION: DEFINITION OF THE WORD “CONFESSION” AS CONTAINED IN THE EVIDENCE ACT
The Evidence Act which regulates the admissibility of evidence generally, defines a confession in Section 27(1) as follows:- “27.(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” By the above definition, a confession can be said to be a specie of admission as in civil cases which simply means a statement, oral or written which suggests the inference that the person making it has owned up or does not dispute any relevant fact stated against him in pleadings or charge of a crime. PER MOHAMMED LAWAL GARBA. J.C.A.
ADMISSIBILITY OF A CONFESSIONAL STATEMENT: CIRCUMSTANCE WHERE A COFESSION WILL BE RELEVENT FACT AGAINST THE MAKER; POSITION OF THE LAW ON THE TEST FOR THE ADMISSIBILITY OF A CONFESSION
Subsection (2) of Section 27 of the Evidence Act, provides that a confession if voluntary is deemed to be relevant fact as against the maker. Such free and voluntary confession is therefore admissible in evidence against the maker. The test for the admissibility of a confession is always whether the statement was made freely and voluntarily by the person accused or charged with the commission of a crime. OGBODU V. STATE (1986) 5 NWLR 294, IKEMSON v. STATE (1989) 3 NWLR (110) 455. GIRA V. STATE (1996) 4 SCNJ 94. PER MOHAMMED LAWAL GARBA. J.C.A.
CONFESSIONAL STATEMENT: POSITION OF THE LAW ON WHERE A CONFESSIONAL STATEMENT MADE BY A PERSON ACCUSED OF THE COMMISSION OF A CRIMINAL OFFENCE WOULD BE IRRELEVANT IN CRIMINAL PROCEEDINGS AND THEREFORE INADMISSIBLE IN EVIDENCE
…Section 28 has listed situations in which a confessional statement made by a person accused of the commission of a criminal offence would be irrelevant in criminal proceedings and therefore inadmissible in evidence. They are – (a) Where the statement had been caused by any inducement, threat or promise in respect of the charge, (b) That the inducement, threat or promise was from a person in authority, and (c) That the inducement, threat or promise was sufficient in the opinion of the Court to give the person accused grounds which would appear reasonable that by making the statement, he would gain any advantage or avoid any evil of a temporal nature. See: OZAKI V. STATE (1990) 1 NWLR (124) 92, AKINROLABU V. STATE (1971) NMLR 25, R. V. EBHOMIEN (1963) ALL NLR 365, OBIDIOZO v. STATE (1987) 4 NWLR (67) 748. PER MOHAMMED LAWAL GARBA. J.C.A.
BURDEN OF PROOF: WHETHER THE BURDEN OF PROVING AFFIRMATIVELY THAT A CONFESSIONAL STATEMENT IT WAS GIVEN OR MADE VOLUNTARILY IS ON THE PROSECUTION
Once the voluntariness of a confessional statement was challenged by the person said to have given or made it in a criminal trial, the burden of proving affirmatively that it was given or made voluntarily is on the prosecution by virtue of Section 27(2) of the Evidence Act and it never shifts. See: ADEKANBI V. A.G., WESTERN NIG. (1966) 1 ALL NLR 47, OJEGELE V. STATE (1988) 1 NWLR (71) 414, GBADAMOSI V. STATE (1992) 9 NWLR (266) 405 AT 48, NWANGBOMU V. STATE (1994) 2 SCNJ 107 at 115. PER MOHAMMED LAWAL GARBA. J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
MOHAMMED ALI-BALOGUN Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
MOHAMMED LAWAL GARBA. J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the FCT High Court in case No. FCT/HC/CR/1/2003 delivered 24/7/2006, admitting a certified copy of the Appellant’s statement in evidence in the trial after conducting a trial within trial. The notice of appeal filed on the 10/12/07 pursuant to an order by the Court on 3/2/07, contains three (3) numbered grounds and one unnumbered omnibus ground from which two issues were formulated in the Appellant’s Amended brief of argument filed on 12/10/09 but deemed filed on 27/10/09. The two (2) issues are:-
“1. Whether or not the prosecution proved beyond reasonable doubt that the accused person was not coerced, threatened or induced to write the alleged statement tendered in evidence to make it admissible in law. (Grounds 1 & 2 of the Notice of Appeal).
2. Whether a certified true copy of the alleged confessional statement of the accused person is admissible in law in the circumstances of the case. (Ground 3 of the Notice of Appeal).”
Two (2) issues which are substantially impari materia, with the above issues were also raised in the Respondent’s brief of argument filed on the 18/2/10 but deemed filed on the 20/4/10. They are as follows:-
“1. Whether from the facts and evidence tendered at the trial, the prosecution was able to establish that the Appellant’s confessional statement was voluntarily obtained without threat or inducement.
2. Whether a certified true copy of the confessional statement of the Accused person is admissible in law in the circumstances of the case.”
In reaction to the Respondent’s brief the Appellant’s Reply brief was filed on the 7/5/10.
When the appeal came up for hearing in Court on the 10/11/10, Mr. Hassan T. Fajimite, Esq. who led S.A. Suleman, Esq., appeared for the Appellant, adopted the Appellant’s brief and the Appellant’s Reply brief which he both settled, as the submissions in support of the appeal. He urged us to allow it and set aside the ruling of the Federal High Court admitting in evidence, the named statement of the Appellant at the trial.
The Respondent was not represented at the hearing but the Court’s record showed that Mr. George Lawal, Esq. had appeared in the case on 20/1/10 when it was adjourned to the date of hearing and taken the date.
There was no communication to the Court from the said Counsel to excuse the absence at the hearing and since the Respondent had filed a brief of argument as stated above, the Court, pursuant to Order 17, Rule 9(a) of the Court of Appeal Rules, 2007, the appeal was treated as having been duly argued by the Respondent on the said brief. Since the issues submitted by both learned Counsel for the parties are not dissimilar, I intend to use the formulation by the learned Counsel for the Appellant in the determination of the appeal.
Issue 1
The submissions by the Appellant on this issue are to the effect that the statement admitted by the High Court constitutes a confessional statement in law as provided in Section 27(1) of the Evidence Act, interpreted in several judicial authorities including UBIEHO v. STATE (2005) 20 WRN 111 at 122. It was submitted that only voluntary confession not shown to have been procured or caused by any inducement, threat or promise is relevant and admissible in evidence. Section 28 of the Evidence Act and the case of EKURE v. STATE (1999) 13 NWLR (635) 456 at 458 were cited in support. Learned Counsel for the Appellant then argued that the Respondent here did not discharge the obligation to prove the voluntariness of the statement in question at the trial within trial. He set out a portion of the evidence of the only witness who testified for the Respondent at the trial within trial and what he said the witness admitted under cross examination and contended that the witness was contradicted as to the truth of his evidence in chief as the people who were said to have participated in taking the statement of the Appellant were denied and not called to testify at the trial within trial. According to him, the “default” to call PW2 and PW3 in the main trial to testify in the trial within trial, was fatal to the case of the prosecution and has therefore failed to prove beyond reasonable doubt that the statement in question was voluntary with only the ipse dixit of the witness before the Court. Sections 27(2) and 28 of the Evidence Act were referred to by learned Counsel who maintained that the Appellant had unequivocally shown in his evidence in chief and reiterated under cross examination in the trial within trial that his brother was not present when he wrote the statement and that PW3 had a gun to his head while he wrote it. It was also contended by him that the prosecution did not cross examine the Appellant on vital or material points in his evidence and so relying on authority of:
OFORLATE v. STATE (2000) 12 NWLR (681) 415 at 436; DAGGASH v. BULAMA (2004) 14 NWLR (892) 144 at 240 and GAJI v. PAYE (2003) 8 NWLR (523) 583 at 605. the Respondent is deemed to have accepted the truth of such points. Further, that the material points robustly established the Appellant’s evidence at the trial within trial. In addition, it was submitted that though the strength of a party’s case is not determined by the number of witnesses, the law is that where witness or witnesses who could give credible evidence in proof of a particular matter is or are left out, the Court is entitled to invoke the provisions of Section 149(d) of the Evidence Act that the evidence which could be and is not produced, be unfavourable to the person who withhold it.
The case of AGBI v. OGBEH 26 NSCQR (2) 1257 at 1298 was relied on as authority for the submission and the High Court was said to have erred when it did not invoke Section 149 of the Evidence Act against the Respondent as was done in the case of AMACHREE v. NIGERIA ARMY (2003) 3 NWLR (807) 256 at 279. The Court was also invited to note that the statement said that it commenced at 2.30 p.m. which contradicts the evidence of the Respondent that the Appellant made only one statement which was voluntary at about 1.00 p.m. thereby created doubt about the voluntariness of the statement in question which should be resolved in Appellants’ favour. IGP v. OGUNTADE (1971) 2 ALL NLR 11 and RE: OSAKWE (1994) 2 NWLR (326) 273 were cited on the point.
In another vein, it was submitted that the High Court did not state the basis for the decision that the Appellant’s story appears to it “mere make-believe or an afterthought capable only of being discountenanced” since the testimonies of the witnesses were not reviewed and properly evaluated by it. Reference was made to:
ONAFOWOKAN v. STATE (1987) 7 SCNJ 233 at 245; BARIDAM v. STATE (1994) I NWLR (320) 250 at 260; ADIMORA v. AJUFOR (1988) 3 NWLR (80) 1 and we were urged to hold that the High Court was in error not to have properly evaluated the evidence before it in deciding that Appellant’s evidence was a mere make-believe or afterthought. We were finally urged on the issue to hold that the statement in question was not a voluntary confession of the Appellant and therefore inadmissible in law.
For the Respondent, it was submitted on issue 1 that the Respondent was able to prove beyond reasonable doubt the Appellant’s statement was voluntary and so the High Court was right in admitting it in evidence. The cases of UTEBEKA v. STATE (2000) 7 NWLR (665) 428 and ONUNGWA v. STATE (1976) NSCC (10) 27 at 29 were cited and it was said that the person who was given the statement had stated that it was made without threat, inducement or coercion as the ICPC operatives do not carry arms. Further that the High Court evaluated the evidence at the trial within trial before coming to the conclusion that the Appellant’s story was make believe and it was its primary duty to evaluate evidence citing FASHANU v. ADEOOYA (1974) 6 SC 83 It was submitted that the Appellant failed to call his junior brother at the trial within trial with whom he was arrested and he had admitted writing on more than one sheet of paper which may account for the misconception that he wrote three (3) statements. We were also referred to the case of ALI v. ALESINLOYE (2000) 4 SC (II) 1 and urged not to interfere with the ruling of the High Court but uphold it.
In his Reply brief learned Counsel for the Appellant had maintained that the High Court did not evaluate the evidence adduced before it and did not specifically state the basis of believing or disbelieving the and evidence of any of the witnesses. He said in the circumstances, this Court has a duty to interfere with the decision of the High Court relying on inter alia, the cases of:
OYEWOLE v. AKANDE (2009) 15 NWLR (1163) 119 at 147 and EBENECHI v. STATE (2009) 6 NWLR (1138) 431 at 448. It was also submitted that since there was no record to show that the Appellant’s younger brother was present when he made his statement, there was no need for the Appellant to call the younger brother to testify at the trial within trial as his evidence would have been hearsay and so inadmissible. The case of BUHARI v. OBASANJO (2005) 50 WRN 1 at 248 and Section 77 of the Evidence Act were cited.
I recall that learned Counsel for the parties do not dispute the fact that the statement of the Appellant admitted by the High Court as Exhibit 6 in evidence at the trial and subject of the present appeal, is a confessional statement.
The Evidence Act which regulates the admissibility of evidence generally, defines a confession in Section 27(1) as follows:-
“27.(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
By the above definition, a confession can be said to be a specie of admission as in civil cases which simply means a statement, oral or written which suggests the inference that the person making it has owned up or does not dispute any relevant fact stated against him in pleadings or charge of a crime.
Because confessions are usually used in criminal proceedings, they are governed by different rules of evidence in regard to their admissibility from admissions in civil proceedings. Confessions in such criminal proceedings therefore, are ordinarily confined to direct and unequivocal admission of the allegation of the commission of a crime by a person alleged or charged with such crime. From experience over the years, confessions are made extra judicially or out of Court and during investigations by the law enforcement agencies, most often the Police. See: SAM v. STATE (1991) 2 NWLR (176) 699; ELE v. STATE (2000) ALL FWLR (329) 849.
Subsection (2) of Section 27 of the Evidence Act, provides that a confession if voluntary is deemed to be relevant fact as against the maker. Such free and voluntary confession is therefore admissible in evidence against the maker. The test for the admissibility of a confession is always whether the statement was made freely and voluntarily by the person accused or charged with the commission of a crime.
OGBODU V. STATE (1986) 5 NWLR 294,
IKEMSON v. STATE (1989) 3 NWLR (110) 455.
GIRA V. STATE (1996) 4 SCNJ 94.
The Evidence Act did not define what a voluntary confession is but Section 28 has listed situations in which a confessional statement made by a person accused of the commission of a criminal offence would be irrelevant in criminal proceedings and therefore inadmissible in evidence. They are –
(a) Where the statement had been caused by any inducement, threat or promise in respect of the charge,
(b) That the inducement, threat or promise was from a person in authority, and
(c) That the inducement, threat or promise was sufficient in the opinion of the Court to give the person accused grounds which would appear reasonable that by making the statement, he would gain any advantage or avoid any evil of a temporal nature. See:
OZAKI V. STATE (1990) 1 NWLR (124) 92,
AKINROLABU V. STATE (1971) NMLR 25,
R. V. EBHOMIEN (1963) ALL NLR 365,
OBIDIOZO v. STATE (1987) 4 NWLR (67) 748.
Once the voluntariness of a confessional statement was challenged by the person said to have given or made it in a criminal trial, the burden of proving affirmatively that it was given or made voluntarily is on the prosecution by virtue of Section 27(2) of the Evidence Act and it never shifts. See:
ADEKANBI V. A.G., WESTERN NIG. (1966) 1 ALL NLR 47,
OJEGELE V. STATE (1988) 1 NWLR (71) 414,
GBADAMOSI V. STATE (1992) 9 NWLR (266) 405 AT 48,
NWANGBOMU V. STATE (1994) 2 SCNJ 107 at 115.
In the present appeal, the High Court rightly conducted a trial within trial when the Appellant opposed the admission of Exhibit 6 on the ground that he was threatened when he made it and so it was not a free and voluntary statement he made.
In discharging the burden of proving that it was voluntarily given or made by the Appellant, the prosecution called the person to whom it was given or made by the Appellant, an officer of the CPC who investigated the allegation against the Appellant. His evidence was to the effect that when the Appellant was arrested, he was taken to the office of the witness where he made a statement “under a conducive atmosphere free from direct of any violence or coestic as well ducement (sic).” He then identified a certified true copy of the said statement made by the Appellant which was tendered and admitted for identification purposes only. It was marked ‘ID’. Under cross-examination, he said the Appellant made only one (1) statement and not three (3) and maintained that it was made voluntarily with no inducement, promise or threat. He denied telling the Appellant that he will end the matter if the Appellant told the truth.
The witness said the Appellant being a Chief Magistrate, he knew what he wanted and how to write what he wrote in his statement and that he never told him that he was set up. He said nobody held a gun to the Appellant’s head when he made his statement which was not taken to PW3 and that the said PW3 did not ask the witness to take another statement from the Appellant. Also that the Appellant started writing his statement at about 1.00 p.m. and took one hour to conclude it and that PW2 never played any role in taking the statement from the Appellant. The witness maintained that nobody pointed a gun at the Appellant, that he did not dictate the statement to the Appellant and the Appellant made only one statement.
In his evidence in the trial within trial, the Appellant said that it was not true that he made a voluntary statement but said that he made two statements which were dictated to him and was forced to sign them. Further that his voluntary statement taken by the Prosecution’s witness was not tendered by them and that it was taken to PW3 who told him that if he co-operated he would only be detained for the purpose of humiliation. That if the Appellant refused to co-operate, he and his brother would be killed and then the said PW3 pulled out a gun and pointed it at the Appellant’s head while the statement sought to be tendered was dictated to him. That he had told the police officer at Life Camp Police Station that the statement was given at gun point and that his refusal to make the said statement would have led to his death. Under cross examination, the Appellant said he knew the import of the words of caution and the ICPC officers who arrested him brandished guns when they came to his house. He admitted that the PW2 in the main trial a litigant in his Court was in his house on the date of his arrest along with PWI in the main trial. He maintained that a gun was put on his head and he was extremely scared when he made the statement in question.
After a consideration of the evidence adduced at the trial within trial and the addresses by the learned Counsel for the parties the High Court delivered its ruling on whether the Appellant’s statement was voluntary or not. It is expedient to set out the ruling which is at pages 140-141 of the printed record of appeal. Here it is:-
“RULING ON TRIAL WITHIN TRIAL
During the course of hearing the prosecution’s story, the statement of the accused sought to be tendered in evidence where upon the learned counsel to the defence, raised objection as to the admissibility of the statement which he submitted was not a Voluntary statement same having been made under duress. The prosecution however contended otherwise and in the middle of such controversy, a Trial within Trial was conducted. The prosecution called a one witness for the purpose of the Trial within Trial and thereafter the accused gave evidence DW1 in the trial within Trial.
I have carefully considered the testimony of the accused in the Trial within Trial, my most honest view is that the position of the prosecution is more consistent with the truth of the situation, on the other hand, the accused story appears to me a mere make believe after thought capable of only of being discountenanced.
Accordingly it is only discountenanced and that is to say that the objection to the admissibility of the statement for the accused is overruled and accordingly dismissed. The statement is hereby admitted in evidence and marked as exhibit 6.
Adjourned to 25/9/06 for continuation of hearing ,the issue of certified true copy is no longer in issue. In my view the certified true copy is properly presented and the admission of the statement in evidence remains proper.”
I must point out that the above ruling does not contain or show an assessment or evaluation of the evidence adduced by the parties before that Court on the issue of whether the statement of the Appellant sought to be tendered in evidence at the trial was voluntary or not. By the statement that:-
“I have carefully considered the testimony of the accused in the Trial within Trial, my most honest view is that the position of the prosecution is more consistent with the truth of the situation, on the other hand, the accused story appears to me a mere make believe, after thought capable of only of being discountenanced. Accordingly it is only discountenance and that is to say that the objection to the admissibility of the statement for the accused is overruled and accordingly dismissed.”
The High Court would appear to be dealing with the ascertainment of whether the statement of the Appellant was true or not and not the issue before it on whether the statement sought to be tendered was given freely and voluntarily by the Appellant for the purpose of admissibility in evidence.
The ruling contains no reasons or grounds for the High Court’s “most honest view” and so no basis for the decision reached to overrule the objection by the Appellant that the statement sought to be tendered in evidence was not voluntary. In fact there is no finding in the above ruling whether the statement was voluntary or not which the High Court was under a legal duty to make from an assessment of the evidence placed before it by the parties. A decision by a Court of law, a superior Court of record in particular, whether in a ruling or judgment, must be based or predicated on the evaluation or assessment of the cases and evidence adduced and placed before it by the parties.
The decision must show or contain actual evaluation which involves the placing the evidence adduced by the contending parties on the imaginary scale and weighing it by estimating the quality or probative value of each in order to find out which side is heavier. The probative value of evidence is determined through reasoned belief of the quality of the evidence and the record of a court must indicate how that court arrived at its decision of preferring one side of the evidence to the other. In other words, the record of the court should clearly show the manner of assessment or evaluation of the evidence and reasons for accepting or preferring one side to the other. Decisions of courts are always based on reasons for accepting or rejecting as the case may be, of the case and evidence made out by the parties since such reasons are what form the fulcrum of an appeal where one of the parties was dissatisfied with them and desirous of appealing against same. See:
MOGAJI V. ODOFIN (1978) 4 SC 91;
STATE V. AIBANGBEE (1988) 7 SCNJ 128,
N.A.B. LTD V. SHUAIBU (1991) 4 NWLR (186) 450.
The evaluation of evidence by a trial Court cannot be said to have been properly, if at all, done by mere statements of either “belief’ or in this appeal, “most honest view” without the record of actual assessment and reasons supporting or which form the basis for the belief or most honest view of any of the sides in the case. Such blank and unsupported statements do not amount to any evaluation of the evidence at all and so does not relieve a trial Court of its primary duty to evaluate evidence adduced before it before arriving at its decision one way or another for reasons that should clearly appear on its record,
OGUNLEYE v. STATE (1991) 3 NWLR (177) 1
KWAJAFFA V. BANK OF THE NORTH (2004) 5 SC (PT.1) 103,
SOLOLA V. STATE (2005) 5 SC (Pt.1) 135,
HASSOM NIG. LTD. V. TRADE BANK LTD. (2006) ALL FWLR (310) 1730.
Apparently, the High Court in the ruling above did not perform its primary function of evaluating the evidence placed before it in the trial within trial before coming to its conclusion “that the position of the prosecution is more consistent with the truth and that the accused’s story appears to me a mere make belief, an afterthought”. It has thus failed to properly utilize the unique opportunity of physically seeing and hearing the two witnesses who testified at the trial within trial on the issue of the voluntariness of the Appellant’s statement which it admitted in evidence as Exhibit 6.
This Court has a limited function in determining appeals that come before it which only concern seeing whether or not a trial court has or has not made some substantial or procedural errors or has failed to make any proper findings which the evidence available to it deserves and to accordingly take such steps and/or decisions to correct errors if any.
The law is settled that where the Court is satisfied and find that a trial Court had failed to discharge its primary duty of evaluating evidence before it, it would be in as good a position as the trial Court in appropriate cases to evaluate the evidence on the record and then take decision thereon as the justice of the case may warrant.
MEKA V. ANIAFULU (2006) ALL FWLR (309) 1465,
OGUNLLEYE v. STATE (SUPRA)
OKO V. NTUKIDEM (1993) 2 NWLR (274) 124, Section 15 of the Court of Appeal Act.
The Supreme Court in the case of FAGBENRO v. AROBADI (2006) ALL FWLR (310) 1575 at 1595 had stated the position as follows:-
“where a trial judge abdicates the sacred duty of evaluation of evidenced and approbation of weight thereto, or when he demonstrate that he had not taken proper advantage of his having heard and seen a witness testify, the matter becomes at large for the appellate Court or better put, in such a situation, an appellate Court is in as good a position as the trial court to evaluate the evidence provided the exercise does not involve the credibility of the witness who testified at the trial.”
Even though the evaluation of the evidence adduced before the High Court in the trial within trial for the purpose of determining the voluntariness of the Appellant’s statement cannot completely avoid the issue of the credibility of the witnesses who testified, it can properly be done on the printed record of the evidence given by each of them in line with the charge against the Appellant.
I have stated a resume of the evidence given by the witness for the prosecution who was an investigator in the ICPC and who received the statement in dispute from the Appellant. The statement of the Appellant which was attached to the application to prefer a charge as part of the evidence to be used at the trial and which is the disputed statement is at pages 8-12 of the record of appeal. The Appellant had said he made one voluntary statement which was not tendered by the prosecution. He had also insisted as shown earlier that he in all, made three (3) statements. It means the two statements made after the voluntary one admittedly made by the Appellant are what he challenged for not being voluntary since he said he made them with a gun pointed at his head and so he was extremely scared.
I have closely looked at the Appellant’s statement at pages 8-12 of the record and observed that it was made in three different parts which all bear the same date and time. The 1st part started from page 8, with the words of caution and stopped but not ended, at page 9 of the record of appeal. The 2nd part, stated to be a continuation of the 1st, started at page 10 and not only stopped but ended at page 11 of the record. The 3rd and last part, also said to be a continuation of the 1st part, started and ended on page 12 of the record.
It is apparent from the faces of the different parts that they were not made in a single narration at the same time, but one after the other even though made on the same date. So in that con, the Appellant is right that he made three statements on the 21/9/03, the date of his arrest to the investigating officer on the allegation against him. However because the second and third parts are said to be continuations of the first part, the three parts constitute a single statement as stated by the investigating officer to whom they were made. So in effect, one statement was made by the Appellant to the Investigating officer, though in different parts. By the express admission of the Appellant, the 1st part was made voluntarily by him. This is what the Appellant had said in his evidence in chief at the trial within trial, at page 21 of the record of appeal:-
“It is not true that I made a voluntary statement. Two other statements were dictated to me and I was forced to sign. My voluntary statement was the 1st statement which was never tendered before this Court, I started writing my voluntary statement at 1.00 p.m. on 21st September 2003 and it was PW1 Basil Muhammadu who took away the statement from me.”
It is quite clear from the above that the Appellant’s voluntary statement is the first part of the statement at pages 8-9 of the record of appeal. It may be recalled that the Investigating officer had stated in his evidence that the Appellant had used more than one sheet of paper to write the statement he made and so the pages 8-9 represent the 1st statement admittedly made by the Appellant. As regards the time when he started that statement, the Applicant had indicated in the statement itself as follows:-
“On 21st September, 2003 at about 1.30 p.m. Dr. Nnadi Izidore Isidorie came to my house. He is having a case before me.”
So the voluntary statement of the Appellant as to the time is different from the oral testimony he gave in the trial within trial. If the money giving rise to the charge against the Appellant was given by Dr. Isidorie after his arrival at the Appellant’s house around 1.30 p.m., the Appellant could not have started writing his voluntary statement on the allegation against him by 1.00 p.m..
Because the Appellant had agreed that he made the first part of the statement sought to be tendered voluntarily, and the other parts are mere continuation of it, the evidence of the prosecution that the statement was made without any threat in particular or inducement or promise to the Appellant was not in any way controverted by the Appellant. This is because by the provisions of Section 94(2) of the Evidence Act, where a document has been executed in several parts, each part shall be primary evidence of the document. Similarly under the provisions of Section 115(b) of the Evidence Act, the Court is required to presume that any statement as to the circumstances in which all the parts of the single statement made and signed by the Appellant are true. The Appellant had stated in the 2nd and 3rd parts of the statement that each was made voluntarily. Hear him on the 2nd part, at page 1l of the record:-
“This statement is perfectly voluntary.”
Then in the 3rd part at page 12:-
“I write this statement in my own volition as a perfectly voluntary statement from me.”
The presumption that the above circumstances stated by the Appellant himself are true has not been rebutted by any part of his evidence at the trial within trial. In fact his admission that he made the first part voluntarily reinforced that presumption that the 2nd and 3rd parts were made in the same circumstances as indicated therein. Prosecution has thereby proved beyond reasonable doubt that the said statement was made voluntarily by the Appellant and so it is relevant and admissible in evidence in that regard. For that reason, I resolve Issue I in favour of the Respondent.
The second issue is whether a certified true copy of the confessional statement is admissible in law in the circumstances of the case.
The learned Counsel for the Appellant had submitted on the issue that the prosecution did not lay any foundation under the provisions of Section 97 of the Evidence Act for tendering a certified true copy since the officials who obtained the original statement are available to produce it. According to him, by Section 96 of the Evidence Act all documents must be proved by primary evidence except in special circumstances that do not arise in the Appellant’s case. He said it is only the original that is admissible and urged us to resolve the issue in favour of the Appellant. For the Respondent it was submitted that by the provisions of Section 109 of the Evidence Act, the Appellant’s statement was a public document, a certified copy of which is admissible in evidence. In addition, that the combined effect of Sections 97, 119(c) and 114(1) of the Evidence Act is that secondary evidence is admissible and that the Appellant’s statement being a part of the records kept by the ICPC, an official body, qualifies as a public document which may be proved as provided in Section 97. It was the further submission of the learned Counsel for the Respondent that the High Court was right in admitting the Appellant’s statement in evidence and we were urged to hold that it was admissible in law. We were in conclusion called upon to resolve the issue against the Appellant.
The learned Counsel for the Appellant merely insisted that the certified copy of the Appellant’s statement is not admissible in his Reply brief.
At the onset, I would agree with both learned Counsel on their respective submissions on the provisions of the Evidence Act on the admissibility of documents in evidence. By the provisions of Section 96 of the Evidence Act, documents must be proved by primary evidence except in the cases provided in the subsequent sections thereof. Section 94(1) defined primary evidence in relation to documents as follows:-
“94.(1) Primary evidence means the document itself produced for the inspection of the court.”
So by the community reading of Sections 96 and 94(1) of the Evidence Act, it would appear that proof of document must be by the production of the documents for the inspection of the court save in the cases provided thereafter. By providing for exceptions, it is clear that the provisions of Section 96 are not absolute and do not intend to prevent the proof of documents by other means than by the production of the document itself in court for its inspection. The Section had taken into account the discretion provided by the preceding provisions of Section 93 which allows proof of contents of documents to be either by primary or by secondary evidence.
The provisions provide thus:-
“93. The contents of documents may be proved either by primary or secondary evidence.”
While Section 94(1) defined primary evidence of document, Section 95 defines secondary evidence of such document to include the following:-
“(a) certified copies given under the provisions hereinafter contained:
(b) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did not execute them:
(e) oral accounts of the contents of a document given by some person who has himself seen it.”
The Appellant’s statement in question is a certified true copy and so fall within item (a) above as a public document as defined in Section 109(a)(ii) mentioned therein. The statement is a document forming part of the acts or record of the acts of the ICPC, which is an official body.
It cannot therefore be seriously disputed that by the combined provisions of Sections 93, 95(a) and 97(1)(e) of the Evidence Act, the Appellant’s statement, a certified copy is admissible in evidence in the circumstances of the case. These provisions do not provide for any other foundation than stated therein as a precondition for its admissibility. I for that reason, agree with the learned Counsel for the Respondent that the High Court was right by admitting it for being admissible in law.
Consequently, I resolve the issue in Respondent’s favour and against the Appellant.
With the resolution of the two issues in the appeal against the Appellant, the appeal is wanting in merit and so fails.
Before concluding this judgment I wish to observe that this appeal has once again shown that Counsel and parties in cases before the trial Courts in exercising the right of appeal against an interlocutory decision made in the course of trial, such as admission or rejection of a piece evidence, take their personal interest in or at least do not care if unnecessary and avoidable delays is/are caused by bringing appeals which could prudently and conveniently be taken along with an appeal against the final judgment of the trial court. The Supreme Court in the case of OKOBIA v. JANYA (1998) 6 NWLR (554) 34 at 360 and 364 had this to say in respect of appeals such as the present one:-
“A decision made by a trial Court on wrongful admission or rejection of evidence is part of the main trial and not an interlocutory decision unless a special case has been made in respect of the issue.
By virtue of Order 3 Rule 22, they could still raise the issue on appeal against the final judgment.”
The import of the above statement is that it is not every decision by a trial court to admit or reject a piece of evidence, oral or documentary that should be the basis of an interlocutory appeal since it is part of the main trial and it could be raised on appeal against the final judgment of that court.
This Court had also on many occasions discouraged the filing of interlocutory appeals that could be taken up in an appeal against the final decision of a trial court on ground of being unnecessary and thereby causing very expensive, avoidable and unreasonable delay in the conclusion of the trial, where as in the instant case, a stay of proceedings was ordered by the trial Court because of such appeals. See the cases of:
OKAPALA V. OKAFOR (1991) 7 NWLR (204) 570,
GOMWALK V. OKWUOSA (1996) 3 NWLR (439) 681 and
IDAHOSA V. AGUPUGO (2006) ALL NWLR (295) 721 AT 727 where this Court made the point that:-
“Parties need to defer interlocutory appeals and prosecute same with substantive appeals where convenient to do so. In other words, a party can include an appeal against a ruling in an interlocutory application when he comes to appeal against the final judgment and this is to be encouraged in order to avoid unnecessary delay by appealing separately. Once an issue, which is the subject matter of an interlocutory appeal can be entertained in the substantive appeal without presenting a fait accompli on the appellate court or destroying the res, it is better for such issues to be taken along with the main appeal in the event the judgment went against the applicant in the court of first instance.”
I have observed from the record of appeal, that the Appellant was first arraigned and he appeared before the High court on the 26/9/2003 to answer the charges against him. His trial for the offences therefore started on that day, a period of seven (7) years today and there is nothing to suggest that the trial had proceeded since the Appellant’s application for enlargement of time to appeal and leave to appeal was granted by the Court. The trial which started seven years ago is yet to be concluded and may take more years for the case to be finally disposed in the appellate Courts. This is a complete negation of the intendment of the provisions of Section 36(4) of the 1999 Constitution that a trial in criminal proceedings should be fair and conducted within a reasonable time. The present appeal by the Appellant is certainly against the determination of the charge against him within a reasonable time because it is unnecessary since it could have been taken in an appeal against the final judgment of the High Court and could have avoided the delay it has occasioned in the trial at the High Court.
In the final result, I find no merit in the appeal and for the reasons set out earlier, dismiss it.
There shall be no order on costs.
HON. JUSTIGE PAUL ADAMU GALINJE. J.C.A.: I agree.
HON. JUSTICE REGINA OBIAGELI NWODO, J.C.A.: I read before now the judgment of my learned brother GARBA JCA just delivered.
I agree with the reasoning contained therein and conclusion arrived thereat. I also dismiss the appeal.
Appearances
HASSAN T. FAJIMITE with D. A. SulemanFor Appellant
AND
Respondent not represented. On the 20/10/10 George Lawal appeared for the Respondent and took today’s date for Hearing.For Respondent
