OJO v. STATE (2020)

OJO v. STATE

(2020)LCN/15448(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, November 30, 2020

CA/B/583C/2018

RATIO

PROCEDURE IN A TRIAL WITHIN TRIAL: WHETHER A NO CASE SUBMISSION MAY BE MADE IN A TRIAL WITHIN TRIAL

My Lords, having held as above, I thought I should pause to also observe as well as state that in law there is no provision in Criminal Trial under the Edo State Criminal Justice Administration law or in any other enabling law authorizing the making of a no case submission in a Trial within Trial. To my mind such an Application is unknown and in such circumstances the Appellant, the Accused person, should be taken to have rested his case and relied on the case of the Respondent, the Prosecution, in the Trial within Trial to contend that the Respondent failed to show that the contested Confessional Statement was made voluntarily as required by law and thus should not be admitted in evidence but rejected for being involuntary and therefore, inadmissible in evidence as provided in Section 29 of the Evidence Act 2011.
In The State V. Sani (2018) LPELR – 43598 (SC), the Supreme Court per Rhodes Vivour JSC., had ex – rayed the position of the law as relating to the procedure in a Trial within Trial where the voluntariness of a confessional stament of an Accused person is challenged on grounds of threat or inducement or promise or duress/force and stated inter alia thus:
“It is very well settled practice in this country that where on the production of a confessional statement ……where the admissibility of the statement in evidence is objected to on the ground that it was not voluntary in that the confession was beaten out of the accused person, what is attacked is the admissibility in evidence of the confessional statement and a trial with trial or mini trial must be held…….The sole purpose of a trial within the main trial is to test whether the confessional statement to be tendered by the prosecution was made voluntarily by the accused person or whether he was forced or induced to make it. Once a trial within trial is ordered by the trial judge, the main trial is suspended until the conclusion of the trial with trial.

WORDS AND PHRASES: “PRIMA Facie”

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

GIDEON OJO APPELANT(S)

And

THE STATE RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Edo State, Coram: Ohimai Ovbiagele J., in Charge No. B/CD/235C/2016: The State V. Gideon Ojo, delivered on 29/1/2018, wherein the No Case submission of the Appellant, as Accused person, in a Trial within Trial was over ruled and he was called upon the Appellant to enter upon his defence in the trial within trial.

The Appellant was pissed with the Judgment of the Court below and had appealed against it vide its Notice of Appeal filed on 1/2/2018 on three grounds of appeal at pages 98 – 102 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 4/12/2018 but was deemed as properly transmitted on 16/9/2020. A Supplementary Record of Appeal was transmitted to this Court on 16/5/2019 but was deemed properly transmitted on 16/9/2020. The Appellant’s brief was filed on 23/6/2020 but deemed as properly filed on 16/9/2020. Subsequently, the Court granted leave to the Appellant for the Appeal to be heard on the Appellant’s brief alone.

At the hearing of this appeal on 17/11/2020, A. N. A. Igbinovia Esq., learned counsel for the Appellant appearing with Charity Emordi Esq., and P. U. Abu Esq., adopted the Appellant’s brief as his arguments in support of the appeal and urged the Court to allow the appeal and set aside the Ruling of the Court below.

The Appellant was arraigned before the Court below by the Respondent on a three count charge alleging against the Appellant the following offences, namely:
1. That you Gideon Ojo, and others now at large on or about 10/10/2015 at No.8, Omorowa Street, Upper Sakponba, Benin City, in the Benin Judicial Division, conspired together to commit a felony, to wit; Armed Robbery, and thereby committed an offence contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. Cap. RII Vol. 14 Laws of Federation of Nigeria 2004.
2. That you Gideon Ojo, and others now at large on or about 19/10/2015 at No.8, Omorowa Street, Upper Sakponba, Benin City, in the Benin Judicial Division, robbed one Igbinovia Magdalene of N2,000 cash and GSM recharge cards worth N 10,000, and at the time of the robbery you were armed with offensive weapons, to wit: guns, and thereby committed an offence Punishable under Section 1 (2)(a) or the Robbery and Firearms (Special Provisions) Act. Cap. RII Vol. 14 Laws or Federation of Nigeria 2004.
3. That you Gideon Ojo, and others now at large on or about the 19/10/2015 at No.8, Omorowa Street, Upper Sakponba, Benin City, in the Benin Judicial Division, robbed one Afiangbe Osaretin of N2,000 cash and a mobile phone, and at the time of the robbery you were armed with offensive weapons, to wit: guns, and thereby committed an offence Punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. Cap. RII Vol.14 Laws of Federation of Nigeria 2004. See pages 1 – 2 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
At the trial of the Appellant before the Court below, on 17/5/2017, the Respondent sought to tender in evidence, through the PW4, one Sgt. Aderanti Adewale, a Police Officer from the Ugbekun Division of the Nigerian Police Force Benin City, the Statement of the Appellant which confessional in nature and was promptly objected to by the Appellant’s counsel on the ground that it was not made voluntarily having been obtained by force from the Appellant by the Police. In line with the practice in Criminal trials in this Country, the Court below ordered a Trial within Trial to determine the voluntariness or otherwise of the Appellant’s confessional statement as required by law. See pages 59 – 61 of the Record of Appeal.

At the Trial within Trial, which commenced on 7/6/2017, the Respondent called three witnesses, who testified as TW1, Sgt. Aderanti Adewale; TW2, DSP. John Newstyle, and TW3, Insp. Joseph Ilure and tendered Exhibit 1, Appellant’s Statement to the Police; and Exhibit 2, Attestation Form and closed its case. The Appellant was then called upon to enter on his defense in the trial within trial but the Appellant’s counsel decided to make a No case submission on his behalf. Thereafter, the parties filed and exchanged written addresses, which were duly adopted on 6/12/2017. On 29/1/2018, the Court below in a very terse Ruling overruled the No Case submission holding that the Respondent has made out a prima facie case of the voluntariness of the Appellant’s confessional statement and thereby called on the Appellant to enter upon his defense in the Trial within Trial, hence this appeal. See pages 61 – 67, 90 – 93of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, a sole issue was distilled as arising for determination from the three grounds of appeal, namely:
“Whether a prima facie case is made out by the Prosecution as held by the Trial High Court in the Trial within a Trial?” (Distilled from Grounds 1, 2 and 3)

I have given due considerations to the facts and circumstances of this appeal as in the printed record. I have also calmly reviewed the submissions of counsel for the Appellant in the light of the Ruling of the Court below appealed against. It does appear to me that the sole issue as distilled in the Appellant’s brief is apt and is hereby set down as the only issue for determination in this appeal.

SOLE ISSUE
“Whether a prima facie case is made out by the Prosecution as held by the Trial High Court in the Trial within a Trial?”

APPELLANT’S COUNSEL SUBMISSIONS
On his sole issue, learned Counsel for the Appellant had submitted the crucial denominator in Section 29 (2) of the Evidence Act 2011 is proof beyond reasonable doubt that Exhibit 1 was made voluntarily and contended that the burden of proof was on the Respondent and urged the Court to hold that on discredited and fundamentally contradictory evidence led by the Respondent in the Trial within Trial, the Court below was in grave error to hold as it did that the Respondent made out a prima facie case of voluntariness of the Appellant’s alleged confessional statement to the Police and to allow the appeal and set aside the ruling of the Court below. Counsel relied on Balogun V. The State (2018) 281 LRCN 189 @ p. 200; The State V. SANI (2018) 280 LRCN 198 @ p. 225; Obidiozo V. The State (1987) 4 NWLR (Pt. 67) 748 @ pp. 764 – 765.

It was also submitted that the first hurdle for the Prosecution must cross is to establish by credible evidence at the close of its case in a Trial within a Trial that prima facie the disputed statement in Exhibit 1 was made voluntarily made by the Appellant and contended the Respondent failed to do make any prima facie case of the voluntariness of Exhibit 1 and the Court below ought not to have called upon the Appellant to enter upon his defense in the Trial within Trial since there was nothing on which to proceed with the Trial within Trial at the close of the case of the Respondent’s case and to set aside the ruling of the Court below and remit the case to another judge of the Court below for trial de novo. Counsel relied on Ubanatu V. COP (2000) 74 LRCN 72 @ pp. 86 – 88; Ajidagba V. IGP (1958) 3 FSC5 @ p. 6; Duru V. Nwosu (1989) 4 NWLR (Pt.113) 24 @ p. 40 – 41; R V. Coker 20 NLR 62; Ibeziako V. COP (1963) All NLR (Reprint) 60 @ p. 67 – 68; The Queen V. Ogucha (1959) 4 FSC 64 @ p. 65; Tongo V. COP (2007) 147 LRCN 973 @ pp. 983 – 984.

It was further submitted that on a calm view of the evidence of the TW1, TW2 and TW3, inclusive of Exhibits 1 and 2 a rational understanding would suggest that the Respondent did not make out prima facie that Exhibit 1 was voluntarily made and contended that a Court of law is a Court of facts and law and not one of fiction to rely on mere speculation and urged the Court to hold that even though at the stage of a No Case submission evaluation of evidence does not arise the failure by the Respondent to prove the essential elements of the voluntariness of Exhibit requires no explanation from the Appellant and to allow the appeal and set aside the ruling of the Court below. Counsel relied on Ajidagba V. IGP (1958) 3 FSC 5 @ p. 6; The State V. Aibangbee & Anor. (1988) 3 NWLR (Pt.84) 548 @ p. 562.

It was also further submitted that at a glance at the overpowering features of the testimonies of TW1, TW2 and TW3 are self – contradictions that were never reconciled either by TW1 or by TW2 and TW3 and contended that Exhibit 2 was no evidential value having not even been signed by TW2 and urged the Court to hold that the Respondent failed woefully to make out any prima facie case of the voluntariness of Exhibit 1 and to discountenance the same as the Court below had no right to pick and choose between these contradictions and allow the appeal and remit the case to the Court below for de novo trial before another judge. Counsel relied on Onubogu V. The State (1974) All NLR (Reprint) 561 @ pp. 570 – 571; Obidiozo V. The State (Supra) @ pp. 748 – 764; Tsalibawa V. Habiba (1991) 2 NWLR (Pt. 174) 461 @ p. 475 – 476; Saidu V. The State (1982) 1 NCR49 @ p. 64 – 66; Onubogu V. The State (Supra) @ pp. 570-572; Rex V. Anyanful & 5 Ors (1945) 11 WACA 20 @ pp. 21 -23; Ali V. The State (1988) 1 NWLR (Pt.68) @ p. 20; Ayo Gabriel V. The State (1989) 5 NWLR (Pt.122) 457 @ pp. 468 – 469; Duru V. Nwosu (1989) 4 NWLR (Pt.113) 24 @ pp. 40 – 41; Ibeziako V. COP (1963) All NLR (Reprints) 60 @ pp. 67 – 68.

RESOLUTION OF THE SOLE ISSUE
My Lords, the crucial question for resolution in this appeal is whether the Court below was right when it held that the Respondent had by the oral evidence led through TW1, TW2 and TW3 and documentary Exhibits 1 and 2 made out a prima facie case of voluntariness of the Appellant’s confessional made to the Police in the course of the investigation of the allegations of commission of the grievous crime of Armed Robbery?

The Appellant is standing trial on three Counts for the offences of Conspiracy to commit Armed Robbery and Armed Robbery, to which the Appellant pleaded not guilty. In proving its case, the Respondent called four witnesses, PW1, PW2, PW3 and PW4, through whom it sought to tender in evidence the cautionary statement of the Appellant, which is confessional in nature.

An objection challenging its admissibility was taken promptly by the Appellant’s counsel on the ground that it was not made voluntarily having been obtained by force of beating of the Appellant by the Police. Thereupon, the Court below order for a Trial within Trial and the Respondent proceeded to call three witnesses. TW1, TW2 and TW3 and tendered Exhibits 1 and 2 in proof of the voluntariness of the Appellant’s statement to the Police tendered as Exhibit 1 in the Trial with Trial.

In a nutshell, the evidence led by the Respondent in the Trial within Trial was to the effect that the Appellant upon being charged with the said offences and cautioned, volunteered his statement as contained in the Exhibit 1 in the Trial within Trial, which TW1 counter signed after reading it as the recorder and that he further took the Appellant before a Superior Officer, the TW2 for its attestation and that TW1 was physically present during the time the said statement was recorded and read over to the Appellant after which the Appellant signed it.

It was also in evidence that Exhibit 1 was made by the Appellant in the office where statements are taken at the Police Station, a General Office used both by Police Officers and Suspects and in the presence of other Officers and TW3 who was the head of team that supervised the taking of the voluntary statement of the Appellant in an atmosphere devoid of threats and inducement. It was reiterated that the Appellant was not beaten and was taken to the Hospital for treatment for the serious injuries to his mouth which he sustained during the course of the armed robbery. At the close of the Respondent’s case in the Trial within Trial, Counsel to the parties filed and exchanged their respective written addresses where the issues they considered pertinent were addressed extensively and which were duly adopted by them on 6/12/2017. See pages 61 – 67, 71 – 77, 78 – 82, 83 – 89 of the Record of Appeal.

It was on the strength of the above pieces of evidence and the written submissions and after due consideration of same that the Court below proceeded to deliver its ruling on 28/1/2018 on the Appellant’s No Case submission in the Trial within Trial overruling the same and holding inter alia thus:
“I have considered very carefully the prosecution’s case in the trial – within – trial. In my humble and respectful view, the prosecution has made out a prima facie case of voluntariness. The accused is hereby called upon to enter his defence in the trial within trial. The application by Defence counsel in the circumstance is refused.” See pages 91 – 93 of the Record of Appeal

Now, by the provision of Section 29 (2) of the Evidence Act 2011, it is provided thus:
“If in any proceeding, where the prosecution proposes to give in evidence a confession made by a defendant, if is represented to the court that the Confession was or may have been obtained:-
(a) By oppression of the person who made it, or
(b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this Section.”
Now, on the strength of the evidence, oral and documentary Exhibits 1 and 2, did the Respondent made out on a prima facie case of voluntariness of the Appellant’s confessional statement made to the Police? In other words, was Exhibit 1 obtained either with threats, or inducement or promise or was it obtained voluntarily as required by law? Whilst it was the duty of the Respondent to prove that Exhibit 1 was made voluntarily and without any threat or inducement or promise or force, it is the duty of the Appellant, only and only after the Respondent has made out a prima facie case of the voluntariness of Exhibit 1, to show that his statement to the Police was not made voluntarily but products of force or duress through beatings meted out to him by the Police at the time of making his statement.

The Court below after considering the evidence led at the close of the Respondent’s case in the Trial within Trial came to the conclusion that the Respondent had indeed made out a prima facie case of voluntariness of the Appellant’s statement to the Police and thereupon called upon the Appellant to enter upon his defense in the Trial within Trial. So, was there any absence of threat or promise or force or was there any force or duress or threat applied on the Appellant in obtaining the Appellant’s stamen by the Police?

In the light of all the above, on the strength of the material facts, can the Court below it satisfy itself that with respect to Exhibit 1 in the Trial within Trial that all the elements that would render a confessional statement voluntary or involuntary present in the making of Exhibit 1 and was the Court below right when it held that it was satisfied that there was prima facie case that the Appellant’s confessions was made voluntarily?

In law, once on the evidence produced before the Court in a criminal trial there is the need for further inquiry in the matter then a prima facie case has been made out as would warrant the Accused person to enter upon his defense to offer some explanations by way of evidence. See Duru V. Nwosu (1989) 4 NWLR (Pt. 113) 24 @ pp. 40 – 41, where Nnamani JSC., (God bless his soul) had opined inter alia thus:
“More directly, Aniagolu, J.S.C., defined prima facie as “on the face of it”. It seems to me the simplest definition is that which says that “there is ground for proceeding”. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it “Suggests” that the evidence produced so far indicates that there is something worth looking at.”
The Appellant’s counsel made heavy weather out of issues of what he termed were material contradictions including the ranks of the TW1 and TW2 and whether TW3 name was on the list of witnesses for the main trial, He also raised the issue of whether Exhibit 2 was signed or not and contended that in his opinion all these supposedly vital lapses deprived the case of the Respondent in the Trial within Trial a prima facie case as would warrant the calling of the Appellant to enter upon his defense in the Trial within Trial.
I have taken time to look at the entirety of the evidence of the TW1, TW2 and TW3 as well as the contents of Exhibit 2 while bearing in mind that at the stage of a no case submission the issues of contradiction and evaluation of evidence and drawing of inferences arising there from was not up for consideration. This is also not the time yet for proof beyond reasonable doubt. A No Case submission would be upheld if the evidence of the witnesses for the Prosecution had been so discredited that they have become unreliable for the Court to rely on them. In the evidence of the TW1, TW2 and TW3, I find neither any material contradiction nor any element of unreliability as a result of their cross examination. I also do not think that at the stage of a No Case submission the issue of whether Exhibit 2 was signed or not would amount to an evidence of lack of prima facie case bearing in mind it was not yet time for evaluation and ascription of probative value of the evidence led thus far by the Respondent in the Trial within Trial.
It is for the above reasons I find that all the decided authorities, such as Onubogu V. The State (1974) All NLR (Reprint) 561 @ pp. 570 – 571; Obidiozo V. The State (Supra) @ pp. 748 – 764; Tsalibawa V. Habiba (1991) 2 NWLR (Pt. 174) 461 @ p. 475 – 476; Saidu V. The State (1982) 1 NCR 49 @ p. 64 – 66; Onubogu V. The State (Supra) @ pp. 570 – 572; Rex V. Anyanful & 5 Ors (1945) 11 WACA 20 @ pp. 21 -23; Ali V. The State (1988) 1 NWLR (Pt. 68) @ p. 20; Ayo Gabriel V. The State (1989) 5 NWLR (Pt.122) 457 @ pp. 468 – 469; Duru V. Nwosu (1989) 4 NWLR (Pt. 113) 24 @ pp. 40 – 41; Ibeziako V. COP (1963) All NLR (Reprints) 60 @ pp. 67 – 68, relied upon by the Appellant’s counsel on the vexed issues of material contradictions and none signing of documents were not only inapplicable but were also of no avail to the Appellant at the stage in which the ruling appealed against was delivered by the Court below merely at the close of only the Respondent’s case in the Trial within Trial. He must keep his gun powder dry for such a time would come at the close of the cases of both parties when these issues would become relevant for consideration and determination by the Court below. He must make haste slowly and allow these issues to mature for consideration since at this stage they are issues which are completely premature!
So, did the Respondent by the evidence led as in the printed record in the Trial within Trial shown prima face that the confessional statement of the Appellant was made voluntarily as required by law for it to be admissible in evidence or failed to show that it was made voluntarily and therefore, inadmissible in evidence? Having taken once again to seriously consider the evidence as led by the Respondent through TW1, TW2 and TW3, and more particularly Exhibits 1 and 2, in the Trial within Trial, and which evidence had remained unchallenged and uncontroverted in the absence of any evidence yet from the Appellant concerning the circumstances surrounding and leading to his making of the said confessional statement, I find that the Court below was right when it held that there was prima facie evidence that the Appellant’s statement to the Police, which is confessional in nature and duly attested to by a Superior Police Officer, TW2, was made voluntarily as was creditably shown by the Respondent. There is in my finding therefore, nothing neither perverse nor erroneous in the ruling of the Court below appealed against to warrant our intervention to disturb it with a view to setting it aside.
Having calmly considered the totality of the oral and documentary evidence before the Court below in the Trial within Trial, and having reviewed the submissions of the Appellant’s counsel in the light of the applicable principles of law, I find that the Court below was right when it held that there was enough prima facie evidence of the voluntariness in the making of Exhibit 1 by the Appellant and there was therefore, in law the need for some explanations from the Appellant on his allegation that he made the said statement to the Police as a result of beatings he received from the Police.

The trial within trial commences with the state calling witnesses, usually police officers who would be examined under oath by the state and cross examined by the defense. The witnesses for the state are to satisfy the Court that the accused person made the confessional statement voluntarily while the defense counsel is to show the contrary, i.e that the accused person was forced or induced to make the statement. After the state concludes in evidence, the accused person goes into the witness box to explain to the Court how he was forced or induced to make the statement. He may call witnesses, but they can only be called after he has given evidence…”
Thereafter, the trial judge would give his ruling whether or not the confessional statement was made voluntarily and to proceed to admit it in evidence if it was made voluntarily or reject it in evidence it was not made voluntarily as required by law.
The above procedure, as so succinctly set forth by the apex Court, I dare say, is the simple uncomplicated procedure for trial within trial in a criminal trial where objection is raised by an accused person to the admissibility of a confessional statement on the ground that he was either forced or induced or threatened by the police or any other person in authority to make it.
Thus, going by the above succinct but detailed statement of the law by the apex Court, the whole duty of the Respondent in a Trial within Trial is to lead evidence to show that a confessional statement ascribed to the Appellant was made by him voluntarily without any duress or threat, or inducement or promise and nothing more. There was and still is no duty on the Respondent to prove at that stage anything beyond reasonable doubt or even on a balance of probability unless and until the case of the Accused person, as in the instant case the Appellant, has also been placed before the Court below or he has rested his defense on the case of the Respondent and closed his own case too in the Trial within Trial for the issue of proof beyond reasonable doubt of the voluntariness of the confessional statement to arise and be considered in line with the requirements of Section 29 of the Evidence Act 2011 by the Court below in its final ruling in the Trial within Trial. See Section 29 (2)(b) of the Evidence Act 2011, which provides thus:
(b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this Section.”

In the light of all the above, the sole issue for determination is hereby resolved against the Appellant in favor of the Respondent and I hold firmly that the Court below was right when it held that the Respondent made out by credible oral and documentary evidence a prima facie case of the voluntariness of the Appellant’s confessional statement, Exhibit 1, as would warrant the Appellant to be called upon by the Court below to enter upon his defense in the Trial within Trial as required of him by law.

In the circumstances therefore, this appeal was not only dead on arrival being one flowing from a fundamentally strange no case submission in a Trial within Trial, without an iota of any enabling law or rule in that regards, but was also scandalously unmeritorious and thus liable to be dismissed in its entirety. Consequently. I hereby so dismiss it.

In the result, the Ruling of the High Court of Edo State, Coram: Ohimai Oybiagele J., in Charge No. B/CD/235C/2016: The State V. Gideon Ojo, delivered on 29/1/2018 wherein the NO Case submission of the Appellant, as Accused person in a Trial within Trial was over ruled and he was called upon to enter his defence the trial within trial is hereby affirmed.
The Appellant shall appear before the Court below to enter upon his defense in the Trial within Trial and for the proceeding to continue before the Court below.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading in advance the judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA.

I agree that this appeal is devoid of merit and for the reasons given by my learned brother, I also dismiss it. I abide by all the consequential orders made by my learned brother.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in its draft form, the lead judgment just delivered by my Learned brother, Biobele Abraham Georgewill, JCA in which he found the instant appeal, argued solely on the Appellant’s brief unmeritorious and has consequently dismissed it.

I agree with the reasoning that informed the said decision and I adopt it as mine as it was clear from the general tenor of the Appellant’s counsel in the Brief of Argument filed, that the main objective of the Appellant was to use this frivolous interlocutory appeal (in the middle of a trial within trial on whether or not a confessional statement allegedly made by the Appellant whilst under investigation was voluntarily made or not) to scuttle a smooth hearing of the case against the Appellant, and if this Court by default or accident, falls into the error of buying this false hypothesis set up by the Appellant who was yet to testify as to the facts and circumstances under which the confessional statement was recorded, the Appellant and his counsel, were hopeful, having regard to the Appellant’s Brief of Argument filed, that this Court would then make an ancillary order that the Charge be re-assigned to another judge for hearing de novo, and this same time wasting game plan may be re-enacted until it gets to stage where the Respondent will be unable to gather all its witnesses, and even where it succeeds in getting them, their individual and or collective memory and recollection of the details of the events by their evidence, would have significantly waned, hence creating room for the Appellant’s case of contradictions in the evidence led even at the stage of trial within a trial which the lead judgment has not found established from the record of the proceedings of the said trial within trial conducted solely to ascertain the veracity or otherwise of the Appellant’s allegation that the statement he made was not voluntary.

It’s strange, perhaps procedurally awkward, that the Appellant who was yet to give evidence in the trial within trial in order to prove facts by which such incidents that if believable, would make his allegations to have a form of credibility, would want the lower Court to come to a decision that the Respondent has not made out a prima facie case as to the voluntariness of the extra judicial statement he made in the course of investigation. The Court’s process and our adversarial judicial system do not work in that manner and I am clear in my view, that even after the full trial of the Appellant as a Defendant, the lower Court nevertheless retains the jurisdiction in the course of evaluating the whole case to still be able to reject the extra judicial statement made by the Appellant as a confessional statement where other available evidence led at the trial indicates that the admission of the said statement after the mini trial within trial was made in error.

I wholly agree with the lead judgment that the instant appeal constitutes a gross misuse of the appellate Court’s process as its main goal was to waste the time of the lower Court, and frustrate a timeous determination of the criminal prosecution against the Appellant.
The appeal is dismissed.

Appearances:

A. N. A. Igbinovia Esq., with him, Charity Emordi Esq. and P. U. Abu Esq. For Appellant(s)

The Respondent, though served with hearing notice on 17/11/2020, was not represented by counsel at the hearing of the Appeal. For Respondent(s)