ONU v. STATE OF LAGOS
(2020)LCN/15337(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/L/1028C/2018
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
IJEOMA ONU APPELANT(S)
And
THE STATE OF LAGOS RESPONDENT(S)
RATIO
WHAT IS THE MEANING OF A CONFESSION?
The stipulations of Section 28 of the Evidence Act is pertinent in this regard. It provides as follows:
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.”
It is when there has been a confession within the context of Section 28 of the Evidence Act that the stipulations of Section 29 of the Evidence Act would kick in; in order to ascertain if the confession is relevant and if it would be admissible in evidence against the background of Section 29 (2) – (5) of the Evidence Act, id est, whether the confession was made voluntarily. It is limpid from Section 28 of the Evidence Act, that contrary to the Respondent’s contention, the confession is not solely applicable to one made in the course of investigation. By the stipulation, the confession can be made at any time and it need not be in an extra-judicial statement made to the Police in the course of investigation. There is nothing in Section 28 of the Evidence Act which circumscribes the manner in which a confession can be made or which stipulates that it cannot be made in a Deed or in any other form other than an extra-judicial statement made to the Police in the course of investigation. In GBADAMOSI vs. THE STATE (1991) 6 NWLR (PT 196) 182, it was held that the word ‘confess’, the verb variant of the noun ‘confession’ in general parlance means to acknowledge fully, especially something which is wrong. It also means to own up or admit, again particularly a wrong. Legally, the word “confession” means an admission of an offence by an accused person. It means an acknowledgment of crime by an accused person. See also SAIDU vs. THE STATE (1982) 4 SC 41, AKPAN vs. THE STATE (1990) 7 NWLR (PT 160) 101, NWACHUKWU vs. THE STATE (2007) LPELR (8075) 1 at 36, UGBOJI vs. THE STATE (2017) LPELR (43427) 1 at 32 and IDOKO vs. THE STATE (2017) LPELR (48002) 1 at 26. PER OGAKWU, J.C.A.
THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE BEFORE IT
It is rudimentary law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial. Equally, hornbook law is that where the Court of trial has justifiably evaluated the evidence and appraised the facts, an appellate Court will not interfere unless the findings arrived at the Court of trial are perverse and not supported by the evidence on record. A trial Judge is a peculiar adjudicator. Of all Judges the heaviest burden and responsibility of deciding a case rests with him. He normally hears a case by receiving evidence both oral and documentary from witnesses who appear before him in Court, are asked questions and cross examined. In the process, he engages himself to see, listen to and watch them testify. Not only that, his feelings and impressions are tested from time to time upon one issue or another when, apart from listening, he watches, he takes mental note of the performance of witnesses, their demeanour in the witness box, in particular how they react to questioning and the manner they give answers. Quite often, it is this that helps the trial Judge as to who and what to believe. The witnesses are telling him what he was not aware of before, the circumstances in which it happened and in respect of which both sides claim that their evidence represents the truth; and the trial Judge will have to take a decision. So if the trial Judge is up to the demands of his duty, he will continue to size up the witnesses in their oral testimonies. Is a particular witness lying or prevaricating or just slow in nature, or has he a peculiar idiosyncrasy? That is for the trial Judge to determine. The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation.
In VAB PETROLEUM INC. vs. MOMAH (2013) LPELR (19770) 1 at 19-21, the apex Court held:
“In a trial, there are generally two sets of findings of facts: A finding of fact may be based on the credibility of witnesses or may be informed from other facts proved before the trial Court. Where a witness gives direct evidence that is the evidence of the facts in issue as seen, heard or perceived by any other sense by him…The finding of the trial Court on such evidence depends on whether or not it believes that witness (credibility of the witness). Such a finding on such evidence is a primary finding of fact, i.e. the way the witness testifies, his demeanour in the box tells much of his credibility. The trial Court that saw and heard the witness is in the best position to assess his credibility and make findings of primary facts. But, where on the other hand, other facts are put in evidence from which the facts in issue can be inferred, or where a witness gave circumstantial evidence, the finding of the trial Court on the facts in issue depends on inference. This is a secondary finding of fact as it is not based on the credibility of the witness but on logical process of inference. In the former’s case, i.e. primary findings of fact, an appeal Court should always be loathe in interfering with such a finding as it did not have the privilege of seeing, hearing or observing the demeanour of the witness… In the latter’s case, i.e. where findings of fact are secondary, i.e. drawn from inferences, an Appeal Court is in as good position as a Court of trial to do this. It can differ from the trial Court.” PER OGAKWU, J.C.A.
WHETHER OR NOT THE COURT OF APPEL CAN INTERFERE WITH THE FINDINGS OF THE LOWER COURT
In the circumstances, the primary finding of facts made by the lower Court cannot be faulted merely on account of the fact that it held that it did not believe the Appellant, since it duly stated the reasons that informed its belief.
In strict fidelity to the precepts of the law, I am loathe to interfere with the primary findings of facts made by the lower Court which is based on the credibility of witness: FRN vs. DAIRO (2015) LPELR (24303) 1 at 48-49, ADELUMOLA vs. THE STATE (1988) LPELR (119) 1, FRN vs. BORISADE (2015) LPELR (24301) 1 at 21-22, LASISI vs. THE STATE (2013) 1 NWLR (PT 1358) 74 at 96-97 and RABIU vs. THE STATE (2015) LPELR (40759) 1 at 14-15. The reasons stated by the lower Court for disbelieving the Appellant are borne out by the evidence on record. The primary findings of facts made in that regard are not perverse. There is nothing to controvert the rebuttable presumption that the findings and conclusions of the lower Court are correct. See SANI vs. THE STATE (2017) LPELR (43475) 1 at 26, SUGH vs. THE STATE (1988) 1 NWLR (PT 77) 475, EWUGBA vs. THE STATE (2017) LPELR (43833) 1 at 43-45 and IKEM vs. THE STATE (1985) LPELR (1472) 1 at 12. PER OGAKWU, J.C.A.
WHETHER OR NOT THE COURT IS ENTITLED TO MAKE USE OF DOCUMENTS IN ITS RECORD TO ARRIVE AT A DECISION
It is abecedarian law that a Court is entitled to make use of documents in its Records in order to arrive at a just decision: EROMOSELE vs. FRN (2018) LPELR (43851) 1 at 13, PDP vs. EZEONWUKA (2017) LPELR (42563) 1 at 77 and SUSWAM vs. FRN (2020) LPELR (49524) 1 at 15-18. I have gone through the Records of Appeal and on pages 30-71 is the judgment of this Court in APPEAL NO. CA/L/451/2014: MRS. IJEOMA ONU vs. MRS. ADAEZE NWUBA delivered on 28th June 2016. I must state in parenthesis that the said judgment having been incorporated in the Records of Appeal, the Court will take judicial notice of it: YUSUF vs. TOLUHI (2008) LPELR (3533) 1 at 6-7 and PDP vs. INEC (2015) LPELR (25669) 1 at 29-30. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Lagos State on a one Court charge of stealing by clerks and servants in CHARGE NO. ID/81C/2004: THE STATE vs. IJEOMA ONU. The Appellant pleaded not guilty and the matter went to trial. In the course of the testimony of the prosecution witness, the Prosecution sought to tender a Deed of Assignment executed between the Appellant and the Complainant. An objection was taken by the Appellant to the admissibility of the said Deed of Assignment on the ground that she did not execute the same voluntarily.
Consequent upon this objection, the lower Court conducted a voir dire, at the end of which it held in its Ruling, that the Deed of Assignment was voluntarily executed by the Appellant and admitted the same in evidence. The Appellant, being dissatisfied with the Ruling appealed against the same by Notice of Appeal filed on 7th May 2018. The chafed Ruling of the lower Court which was delivered on 26th April 2018 is at pages 132-135 of the Records, while the Notice of Appeal is at pages 137-141 of the Records.
In prosecution of the appeal, the Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument. The briefs of argument which learned counsel for the parties adopted and relied upon at the hearing of the appeal are the Appellant’s Brief filed on 17th August 2018 and the Respondent’s Brief filed on 11th June 2020, but which was deemed as properly filed on 24th June 2020.
The Appellant crafted a sole issue for determination from the three grounds of appeal she filed, videlicet:
“Whether having regards to the evidence placed before the lower Court, the Court was right to have admitted the Deed of Assignment in evidence. (Distilled form [sic] Grounds 1, 2& 3).”
On its part, the Respondent nominated two issues for determination, scilicet:
“(i) Whether the Learned Trial Judge properly and rightly evaluated the evidence placed before him when he admitted the Deed of Assignment as being voluntarily made?
(ii) Whether the absence of legal advice at the point of executing a Deed of Assignment render such inadmissible in evidence?”
The pith of the issues as distilled by the parties addressed the core contest in this appeal, id est, whether the lower Court was correct in its decision to admit the Deed of Assignment in evidence. So, notwithstanding that the issues formulated by the parties do not agree in terms of numbers, however, in content, they are the same two and tuppence. The issue as formulated by the Appellant is idoneous and would serve as the cicerone in the consideration of the submissions of learned counsel and resolution of this appeal.
ISSUE FOR DETERMINATION
Whether having regards to the evidence placed before the lower Court, the Court was right to have admitted the Deed of Assignment in evidence.
SUBMISSIONS OF LEARNED COUNSEL
The Appellant contends that the lower Court was wrong by the finding that the circumstances under which the Deed of Assignment was executed did not involve any oppressive circumstances envisaged under Section 29 of the Evidence Act. It was opined that the lower Court was wrong to hold that the oppressive circumstances were no longer prevailing at the time the Deed of Assignment was executed, given that in the days leading to the execution of the Deed of Assignment, the Appellant and her husband were in police custody where they were subjected to degrading and inhumane treatment. It was further stated that it was not enough for the lower Court to merely state that it disbelieved the Appellant and believed the prosecution witnesses since, being criminal proceedings, the issue of preponderance of evidence does not arise as the quality of evidence is to establish the material issue vide EBERECHI vs. THE STATE (2009) 6 NWLR (PT 1138) 431 and Section 135 (1)of the Evidence Act.
It was maintained that the circumstances under which the Appellant signed the Deed of Assignment fell within the category of situations envisaged under Section 29 (2) and (5) of the Evidence Act. The free will of the Appellant, it was posited, could not have been independent and voluntary when she signed the Deed of Assignment after spending two weeks in police custody with her husband and that the reasoning of the lower Court that there was no evidence that the Appellant and her husband were tortured on the day the Deed of Assignment was executed is wrong. The definition of “torture” at page 1627 of the Black’s Law Dictionary, 9th Edition was referred to as including torture of the physical body as well as torture of the mind. The Appellant referred to the cases of OKONKWO vs. THE STATE (1998) [no volume] NWLR (PT 561) 210 and NAMSOH vs. THE STATE (1993)[no volume] NWLR (PT 292) 129 at 144 on the factors which may affect the voluntariness of a confession and which a Court is to consider. The lower Court, it was asserted merely believed the prosecution witnesses and disbelieved the defence witnesses, when belief or disbelief by a Court cannot take the place of hard evidence. The case of OKONJI vs. THE STATE (1987) 1 NWLR (PT 52) 659 at 662 was relied upon.
The Appellant further contended that an agreement entered into at the Police Station establishes the evidential presumption of undue influence and duress. The case of OMNAN vs. EKPE (2000) 1 NWLR (PT 641) 355 at 374 was cited in support. The preparation of the Deed of Assignment was said to be the initiative of the Complainant and that it was prepared by the Complainant’s Solicitor; and that the execution of the same was made a condition for the release of the Appellant and her husband from police custody; thus showing that the situation was unfair and the circumstances oppressive. The test of oppressive circumstances, it was maintained, was an objective test which is determined by the state of mind of a reasonable man in the position of Defendant. The legal text “Annotation of the Nigerian Evidence Act, Second Edition” by Sotari F. Tamunowari at page 117 was referred to. It was conclusively submitted that the lower Court was wrong not to have applied the provisions of the Administration of Criminal Justice Law of Lagos State on the ground that the Law does not govern the admissibility of evidence. The proper approach, it was stated, was for the Court to apply both the Evidence Act and the Administration of Criminal Justice Law in determining the Admissibility of the Deed of Assignment.
The Respondent’s submission is that the evaluation of evidence and ascription of probative value thereto is the duty of the trial Court and that an appellate Court which did not see the witnesses to observe their demeanour would respect the conclusion of the trial Court unless the finding is shown to be perverse. The cases of ADAMU vs. THE NIGERIAN NAVY (2016) LPELR-41484 (CA) 1 at 59 and THE STATE vs. HARUNA (2017) LPELR 43351 (CA) 1 at 19 were referred to. The lower Court, it was asserted, properly and rightly evaluated the evidence and the findings made were not perverse and so an appellate Court will not interfere since the correct decision was arrived at vide ARISA vs. THE STATE (1988) LPELR-553 (SC) 1 at 18-19. The Respondent further contended that the lower Court having observed the demeanour of the witness rightly evaluated and correctly believed the evidence of the prosecution witnesses which rose to the level of proof beyond reasonable doubt. The cases of EBENEHI vs. THE STATE (2009) LPELR 986 (SC) 1 at 14, IBRAHIM vs. THE STATE (1991) 4 NWLR (PT 186) 399 at 424, FRN vs. IBRAHIM (2013) LPELR-24231 (CA) 1 at 30, JOSEPH vs. THE STATE (2011) ALL FWLR (PT 599) 1006 at 1018 and NGORKA vs. A-G IMO STATE (2014) LPELR-22532 (CA) 1 at 31 were cited in support.
The Respondent argued that Section 29 of the Evidence Act is solely applicable to confession made by a defendant in the course of investigation and that it is not intended to apply to a Deed of Assignment. The words in Section 29 of the Evidence Act were said to be clear and unambiguous and were to be given their ordinary grammatical meeting and that the ejusdem generis rule would apply, such that Deed which is not mentioned in Section 29 of the Evidence Act, cannot be read into the Section. The cases of MOBIL OIL (NIG) LTD vs. FBIR (1977) LPELR 24896 (SC) 1 at 22, ABEGUNDE vs. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (PT 1461) 314 at 357, FAWEHINMI vs. IGP (2000) 7 NWLR (PT 665) 481, FAWEHINMI vs. IGP (2002) 7 NWLR (PT 767) 606 at 683 and BUHARI vs. YUSUF (2003) LPELR-812 (SC) 1 at 15 -16 were relied upon.
The Respondent further argued that even if Section 29 of the Evidence Act can be made applicable to the Deed of Assignment, the vitiating circumstances would not apply as the Deed of Assignment was a product of the free will of the Appellant voluntarily made without coercion, promise nor inducement. It was maintained that the fact that the Deed of Assignment was signed by the Appellant while in detention did not render the same involuntary and inadmissible. The cases of PETER vs. THE STATE (1997) LPELR-2913 (SC) 1 at 32 and IGBINOSA vs. AIYOBAGBIEGBE (1969) LPELR-25567 (SC) 1 at 6 were called in aid.
The Respondent conclusively submitted that the provision of Section 9 (3) of the Administration of Criminal Justice Law of Lagos State does not render inadmissible, a piece of evidence which is admissible under the Evidence Act. The cases of ENECHE vs. PEOPLE OF LAGOS STATE (2018) LPELR 45826 (CA) 1 and OKONDO vs. PEOPLE OF LAGOS STATE (2016) ALL FWLR (PT 851) [no page stated] were referred to.
RESOLUTION
The ideal starting point in the resolution of this matter will be the Respondent’s contention as articulated in paragraph 4.1. 15 of the Respondent’s Brief, “that the provision of Section 29 of the Evidence Act is solely applicable to confession made by a defendant in the course of investigation. It is not intended to apply to Deed of Assignment.” Where the Respondent is correct in this contention, then the issue of whether the Deed of Assignment was voluntarily signed by the Appellant would not arise and there would have been no need for the trial within trial conducted by the lower Court and which spawned this appeal. But is the Respondent correct? We will find out shortly.
The stipulations of Section 28 of the Evidence Act is pertinent in this regard. It provides as follows:
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.”
It is when there has been a confession within the context of Section 28 of the Evidence Act that the stipulations of Section 29 of the Evidence Act would kick in; in order to ascertain if the confession is relevant and if it would be admissible in evidence against the background of Section 29 (2) – (5) of the Evidence Act, id est, whether the confession was made voluntarily. It is limpid from Section 28 of the Evidence Act, that contrary to the Respondent’s contention, the confession is not solely applicable to one made in the course of investigation. By the stipulation, the confession can be made at any time and it need not be in an extra-judicial statement made to the Police in the course of investigation. There is nothing in Section 28 of the Evidence Act which circumscribes the manner in which a confession can be made or which stipulates that it cannot be made in a Deed or in any other form other than an extra-judicial statement made to the Police in the course of investigation. In GBADAMOSI vs. THE STATE (1991) 6 NWLR (PT 196) 182, it was held that the word ‘confess’, the verb variant of the noun ‘confession’ in general parlance means to acknowledge fully, especially something which is wrong. It also means to own up or admit, again particularly a wrong. Legally, the word “confession” means an admission of an offence by an accused person. It means an acknowledgment of crime by an accused person. See also SAIDU vs. THE STATE (1982) 4 SC 41, AKPAN vs. THE STATE (1990) 7 NWLR (PT 160) 101, NWACHUKWU vs. THE STATE (2007) LPELR (8075) 1 at 36, UGBOJI vs. THE STATE (2017) LPELR (43427) 1 at 32 and IDOKO vs. THE STATE (2017) LPELR (48002) 1 at 26.
It follows that if indeed there is any admission in the Deed of Assignment stating or suggesting the inference that the Appellant committed the offence of stealing with which she was charged, then it is a confession and it is immaterial that the said admission is contained in a Deed of Assignment. The subject Deed of Assignment is reproduced at pages 19-20 of the Records of Appeal. It is lucent from the recitals therein at page 19 of the Records of Appeal that the Appellant admitted and confessed to having misappropriated sums of money belonging to the Complainant. This is the crime for which the Appellant was charged with (See page 1 of the Records). It therefore follows, in the language of Section 28 of the Evidence Act, that there has been an admission made at any time by the Appellant, being a person charged with offence of stealing, which states or suggests the inference that she committed that crime. It is of no moment that the said confession is contained in a Deed of Assignment. The lower Court was therefore correct when it conducted a voir dire, upon the Appellant raising the objection that she did not sign the Deed of Assignment voluntarily. The perduring question which will now captivate our attention is whether the lower Court was correct in its decision in the voir dire “that the Deed was voluntarily executed the Defendant.” (See page 135 of the Records.)
The crux of the Appellant’s contention is premised on the evaluation of the evidence led in the voir dire and the ascription of probative value thereto by the lower Court. The Appellant contends that the findings made by the lower Court are perverse and not supported by the evidence, which evidence showed that the Appellant was subjected to oppression within the meaning of Section 29 (5) of the Evidence Act, leading on to her executing the Deed of Assignment.
It is rudimentary law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial. Equally, hornbook law is that where the Court of trial has justifiably evaluated the evidence and appraised the facts, an appellate Court will not interfere unless the findings arrived at the Court of trial are perverse and not supported by the evidence on record. A trial Judge is a peculiar adjudicator. Of all Judges the heaviest burden and responsibility of deciding a case rests with him. He normally hears a case by receiving evidence both oral and documentary from witnesses who appear before him in Court, are asked questions and cross examined. In the process, he engages himself to see, listen to and watch them testify. Not only that, his feelings and impressions are tested from time to time upon one issue or another when, apart from listening, he watches, he takes mental note of the performance of witnesses, their demeanour in the witness box, in particular how they react to questioning and the manner they give answers. Quite often, it is this that helps the trial Judge as to who and what to believe. The witnesses are telling him what he was not aware of before, the circumstances in which it happened and in respect of which both sides claim that their evidence represents the truth; and the trial Judge will have to take a decision. So if the trial Judge is up to the demands of his duty, he will continue to size up the witnesses in their oral testimonies. Is a particular witness lying or prevaricating or just slow in nature, or has he a peculiar idiosyncrasy? That is for the trial Judge to determine. The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation.
In VAB PETROLEUM INC. vs. MOMAH (2013) LPELR (19770) 1 at 19-21, the apex Court held:
“In a trial, there are generally two sets of findings of facts: A finding of fact may be based on the credibility of witnesses or may be informed from other facts proved before the trial Court. Where a witness gives direct evidence that is the evidence of the facts in issue as seen, heard or perceived by any other sense by him…The finding of the trial Court on such evidence depends on whether or not it believes that witness (credibility of the witness). Such a finding on such evidence is a primary finding of fact, i.e. the way the witness testifies, his demeanour in the box tells much of his credibility. The trial Court that saw and heard the witness is in the best position to assess his credibility and make findings of primary facts. But, where on the other hand, other facts are put in evidence from which the facts in issue can be inferred, or where a witness gave circumstantial evidence, the finding of the trial Court on the facts in issue depends on inference. This is a secondary finding of fact as it is not based on the credibility of the witness but on logical process of inference. In the former’s case, i.e. primary findings of fact, an appeal Court should always be loathe in interfering with such a finding as it did not have the privilege of seeing, hearing or observing the demeanour of the witness… In the latter’s case, i.e. where findings of fact are secondary, i.e. drawn from inferences, an Appeal Court is in as good position as a Court of trial to do this. It can differ from the trial Court.”
The lower Court, having heard and seen the witnesses made the following findings of primary facts at page 134 of the Records of Appeal:
“In this case I have listened to the evidence called by both sides which are diametrically opposed as the prosecution witness said no force or compulsion was applied on the Defendant whilst the Defendant said that she was detained and forced to sign. The evidence of P1 is that the Defendant signed the deed of assignment voluntarily and that although she had been detained her uncle had secured her release and the meeting where the deed was signed was held in a cordial atmosphere and attended by the Defendant’s relations. P2 also maintained this. The Defendant and her husband on the other hand said she was compelled to sign due to their detention.
Having listened and observed the witnesses I would say that I found the prosecution witnesses believable that the Defendant was not forced to sign the deed and that she even made corrections to same…
I am of the view that the Defendant who had her people around her was also in a position to take an informed decision and I do not believe that she was compelled to sign the deed.”
The lower Court from the above pericope arrived at its primary finding of facts, not by inference but on credibility of the witnesses. In OLAKUNLE vs. THE STATE (2017) LPELR (48000) 1 at 24-25, Eko, JSC stated:
“This Court, being a second tier appellate Court, is not in a position to contradict the findings of fact of the trial Court based on available evidence because the appellate Court does not have the advantage and the opportunity of observing the demeanour of witnesses as they testified… it becomes worse for the appellate Court when the findings of facts turns on the question of credibility of the witnesses.”
See alsoWILLIAMS vs. THE STATE (1992) LPELR (3492) 1 at 12, THE STATE vs. NNOLIM (1994) LPELR (3222) 1 at 11, SALEH vs. THE STATE (2018) LPELR (46337) 1 at 20 and IKPA vs. THE STATE (2017) LPELR (42590) 1 at 63-64.
It is correct as submitted by the Appellant that there is nothing magical in the use of the expression “I believe” by a Court. Without a doubt, the lower Court stated that it believed the prosecution witnesses, but it duly gave the reasons for preferring to believe the prosecution witnesses, firstly because the Appellant made corrections to the Deed of Assignment before she signed it and secondly because she had her people around her to make an informed decision before she signed; in consequence of which it held that the Appellant was not compelled to sign the Deed of Assignment. In NWOKE vs. OKERE (1994) LPELR (2122) 1 at 24-25, Iguh, JSC asseverated:
“It cannot be over-emphasised that a trial Court ought to give reasons for believing or not believing a witness. It is certainly not enough for a trial Judge to simply say ‘I believe’ or ‘I do not believe’ a witness. He ought to state the reasons for believing or not believing each particular witness.”
See also THE STATE vs. AJIE (2000) LPELR (3211) 1 at 15 and LAMIDI vs. THE STATE (2016) LPELR (41320) 1 at
41. In the circumstances, the primary finding of facts made by the lower Court cannot be faulted merely on account of the fact that it held that it did not believe the Appellant, since it duly stated the reasons that informed its belief.
In strict fidelity to the precepts of the law, I am loathe to interfere with the primary findings of facts made by the lower Court which is based on the credibility of witness: FRN vs. DAIRO (2015) LPELR (24303) 1 at 48-49, ADELUMOLA vs. THE STATE (1988) LPELR (119) 1, FRN vs. BORISADE (2015) LPELR (24301) 1 at 21-22, LASISI vs. THE STATE (2013) 1 NWLR (PT 1358) 74 at 96-97 and RABIU vs. THE STATE (2015) LPELR (40759) 1 at 14-15. The reasons stated by the lower Court for disbelieving the Appellant are borne out by the evidence on record. The primary findings of facts made in that regard are not perverse. There is nothing to controvert the rebuttable presumption that the findings and conclusions of the lower Court are correct. See SANI vs. THE STATE (2017) LPELR (43475) 1 at 26, SUGH vs. THE STATE (1988) 1 NWLR (PT 77) 475, EWUGBA vs. THE STATE (2017) LPELR (43833) 1 at 43-45 and IKEM vs. THE STATE (1985) LPELR (1472) 1 at 12.
The matter does not end with what I have said thus far. At least, not yet. In the prolegomenon, I stated in précis that an objection was raised to the voluntariness of the Appellant’s execution of the Deed of Assignment, consequent upon which the voirdire was conducted. This was during the trial of the Appellant on the charge for stealing. The objection at the trial was not the first challenge by the Appellant to the Deed of Assignment. It is abecedarian law that a Court is entitled to make use of documents in its Records in order to arrive at a just decision: EROMOSELE vs. FRN (2018) LPELR (43851) 1 at 13, PDP vs. EZEONWUKA (2017) LPELR (42563) 1 at 77 and SUSWAM vs. FRN (2020) LPELR (49524) 1 at 15-18. I have gone through the Records of Appeal and on pages 30-71 is the judgment of this Court in APPEAL NO. CA/L/451/2014: MRS. IJEOMA ONU vs. MRS. ADAEZE NWUBA delivered on 28th June 2016. I must state in parenthesis that the said judgment having been incorporated in the Records of Appeal, the Court will take judicial notice of it: YUSUF vs. TOLUHI (2008) LPELR (3533) 1 at 6-7 and PDP vs. INEC (2015) LPELR (25669) 1 at 29-30. The Appellant in the said APPEAL NO. CA/L/451/2014 is the Appellant herein; while the Respondent was the Complainant in the Charge against the Appellant at the lower Court, and who also testified as a prosecution witness in the voir dire which sired this appeal.
From the said judgment, the appeal therein is against the decision of the High Court of Lagos State in SUIT NO. LD/492/2005 wherein the Appellant claimed a declaration that the Deed of Assignment (the same one that is in issue in this appeal) is null and void. The facts on which the Appellant predicated the claim for the said declaration are similar to the objection raised at the voir dire. The relevant facts in the pleadings have been reproduced in the said judgment of this Court at pages 52-54 of the Records. In the judgment of the lower Court in the said action captured at page 57 of the Records, the lower Court conclusively held “that the issue of fraud and threat to life were not proved as required by law so as to vitiate the making of Exhibit ‘P3’”. (Exhibit P3 referred to is the Deed of Assignment). The Appellant’s appeal in the said APPEAL NO. CA/L/451/2014 was dismissed by this Court where it was held in the judgment at page 60 of the Records as follows:
“On this basis, the Appellant’s case falls like a pack of cards as her claim and reliefs sought are predicated on the allegations which remain unproven by the Appellant. Therefore, I think the decision of the learned trial judge that the Appellant was unable to prove her case so as to vitiate Exhibit P3 cannot be faulted.”
The point I am labouring to make is that the Appellant had in previous proceedings failed in her attempt to nullify the Deed of Assignment on grounds similar to those on which it objected to the admissibility of the Deed of Assignment at the voir dire. So there already exists concurrent findings of the lower Court and this Court in that regard. The lower Court in the decision subject of this appeal dismissed the objection that the Deed of Assignment was not voluntarily executed. Therefore there exists concurrence of judicial decisions that the Appellant was not compelled to sign the Deed of Assignment.
The concatenation and conflating of the foregoing is that the issue for determination must be resolved against the Appellant. Having regard to the evidence on record, the lower Court was right in its decision to admit the Deed of Assignment in evidence after it had conducted the voir dire. It now only remains to pen the last words of interment for this appeal. The appeal is bereft of merit. It accordingly fails and it is hereby dismissed. The decision of the lower Court, Coram Judice: Jose, J. is affirmed.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the beautiful leading judgment delivered by my learned brother: Ugochukwu Anthony Ogakwu, JCA. I am in full agreement with the reasoning and conclusion in it.
The provision of Section 28 of the Evidence Act, 2011, the cynosure of the appeal, is rebellious to ambiguity. The clear provision defines confession which cannot be pigeonholed within the lean perimeter of extra-judicial statement. In point of fact, in the eyes of the law, its tentacles embrace parol admission. It Is elementary law, that the primary duty/function of a Judex, of any cadre, is jus dicere, not jus dare, id est, to declare what the law is and not to promulgate, see Dahiru V. State (2018) 14 NWLR (Pt. 1640) 567.
To accede to the appellant’s enticing supplication will be offensive to the law. On this premise, on the footing of the detailed reasons warehoused in the dexterous leading judgment, I, too, visit dismissal on the appeal.
BALKISU BELLO ALIYU, J.C.A.: My learned brother UGOCHUKWU ANTHONY OGAKWU JCA, has availed me with the draft judgment just delivered.
I agree with him that in view of the decision of this Court in Appeal No: CA/L/451/2014 the learned trial Judge’s ruling is on strong legal ground.
I adopt the reasoning and conclusion in the lead judgment in dismissing this Appeal for lack of merit.
I affirm the ruling of the lower Court in respect of the trial within trial conducted in charge No: ID/81C/2004. Appeal dismissed by me.
Appearances:
T. Omaghomi, Esq. For Appellant(s)
M.T. Adewoye, Esq., Assistant Director, Ministry of Justice, Lagos State For Respondent(s)
