OVIE EJENA v. THE STATE
(2019)LCN/13883(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of April, 2019
CA/B/352C/2018
RATIO
EVIDENCE: CONFESSIONAL STATEMENT: TRIAL WITHIN TRIAL: DEFINITION
What is a trial within trial RHODES-VIVOUR JSC in Emmanuel Eke V. THE State (2011) 3NWLR PT. 1235 page 589 explained it thus:
The trial within the main trial is designed to determine if the confession was voluntary. At the trial the accused person must give evidence before witnesses called by him give evidence. At the end of the trial within trial if the Court is satisfied that the confessional statement was not voluntary, the said statement would not be admissible in evidence as an exhibit and trial judge should rule accordingly PER TUNDE OYEBANJI AWOTOYE, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT: CONDITIONS FOR A TRIAL WITHIN TRIAL TO TAKE PLACE
OGUNBIYI JSC in a later case of IBEME V THE STATE (2013) 10 NWLR PT. 1362 p.333 further explained it thus:
Before a trial Court can adopt or embark upon the procedure for a trial within trial, the process in obtaining the statement being challenged must be objected to by the accused person. In other words, the sole aim is to find out for purpose of ensuring whether in obtaining the statement being challenged the accused was coerced, induced threatened, deceived or forced by means of any unnatural intervening factors which would have influenced the making of the statement in question. See the authorities in the cases of R V. IGWE (1960) SCNLR 158; MAIDUGURI V STATE (1969) 1NMLR 14; SAIDU V. STATE (1982) 1N.S.C.C 70 and GBADAMOSI V STATE (1992) 9 NWLR 465. Where an accused person disowns a statement in question, there can be no trial within trial.?
See also KAMILA V STATE (2018) LPELR -43603 (SC).
Before a Trial within Trial can be ordered, the Accused must first acknowledge that the statement is his though gotten under duress. The Accused disowned this statement (exhibit A) Section 28 and 29 of Evidence Act has no role to play in this. So the Accused who has denied his alleged confessional statement sought to the tendered by the prosecution in a trial within trial cannot come around to object to its voluntariness. The Accused denied making exhibit ?A? which means he has retracted his statement; it therefore means that the Trial within trial would not have been ordered in the first place.
See: NWANGBOMU VS. THE STATE (1994) LPELR ? 2105 (S.C.)
Also: EJINIMA VS. THE STATE (1991) 6 NWLR (PT. 200) PAGE 627 AT 651 PARA F TO G PER TUNDE OYEBANJI AWOTOYE, J.C.A.
VOLUNTARISM OF A CONFESSIONAL STATEMENT: WHETHER THE STATEMENT OF APPELLANT, EXHIBIT A AND B WERE VOLUNTARY CONFESSIONAL STATEMENTS HAVING REGARD TO THE CIRCUMSTANCES OF THIS CASE AND THE EVIDENCE, AND IF NOT WHETHER THE ADMISSION OF THE FACTS ARE DISADVANTAGEOUS TO THE APPELLANT IN EXHIBIT B BY THE TRIAL COURT, WITHOUT RECEIVING AT THE SAME TIME FACTS ADVANTAGEOUS TO THE APPELLANT IN EXHIBIT A HAS NOT OCCASIONED A MISCARRIAGE OF JUSTICE.
The law is trite on the meaning of confessional statement. According to OGUNBIYI J.S.C. in OKECHUKWU NWEZE V THE STATE (2017) LPELR ? 42344.
To constitute a confession, a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in so doing be clear, precise and unequivocal. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
EVIDENCE: STANDARD OF PROOF IN CRIMINAL CASES
It is the duty of the prosecution to prove its case beyond reasonable doubt. It is not for the accused to prove his innocence. SeeOKOH V. THE STATE (2014) 8 NWLR PT. 1410 p. 502; WILLIAMS V THE STATE (1992) 8 NWLR PART 261 at 515. PW 1, said in his evidence that PW2 lied when he said he saw the accused ran away and dropped his cutlass. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
EVIDENCE: PROVING A CRIME BEYOND REASONABLE DOUBT: WHEN THERE IS DOUBT IN THE PROSECUTION’S CASE
It is trite law that doubts in the prosecution’s case are to be resolved in favour of the accused. See IDEMUDIA V. STATE (2015) LPELR-24835 (SC) IBEH V THE STATE (1997) 1 NWLR PT. 484 p. 632. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
Before Their Lordships
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria
Between
OVIE EJENA Appellant(s)
AND
THE STATE Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the appellant who was the accused at the Court below in Suit No. HIGU/2C/2013 THE STATE V. OVIE EJENA.
The accused was arraigned before an Edo State High Court in respect of a charge which read as follows:
STATEMENT OF OFFENCE 1
Murder: punishable under Section 319 (1) of the Criminal Code Cap 48, Vol. II Laws of the defunct Bendel State of Nigeria, 1976 now applicable to Edo State.
PARTICULARS OF OFFENCE
Ovie Ejena (m) on or about the 6th day of April, 2011 at Ikpoba Village in the Iguobazuwa Judicial Division Murdered one Rashidatu Olawale (f).
STATEMENT OF OFFENCE 1
Murder: punishable under Section 319 (1) of the Criminal Code Cap 48, Vol.II Laws of the defunct Bendel State of Nigeria, 1976 now applicable to Edo State.
PARTICULARS OF OFFENCE
Ovie Ejena (m) on or about the 6th day of April, 2011 at Ikpoba Village in the Iguobazuwa Judicial Division Murdered one Bilikisu Olawale (f).?
The accused pleaded not guilty. The learned trial judge after hearing the parties gave judgment inter alia as follow:
?I believe the evidence PW1, PW2 to PW 4 and I accept them. I do not believe the retracted evidence of the Accused who wants the Court to believe that he does not know any of the prosecution witnesses, and has never been to Anigboro Camp.
The IPO (PW1) stated he recovered the cutlass (Exhibit ?M?) at the scene of crime. In Exhibit ?B?, the Accused claimed the cutlass he used to murder the deceased was recovered from him when he was having his bath at the stream.
The cutlass was not forwarded to Forensic science laboratory for forensic analysis, it is a serious lapse on the part of the police.
However:
MOHAMMED VS. THE STATE
(2014) LPELR ? CA/IL/C.46/2014
It was held that failure to send machete for forensic analysis is not sufficient to dislodge the prosecution?s case. Exhibit ?B? which is the statement of the Accused is clear on this, the Accused stated that he used his cutlass to murder Rashidatu and Bilikisu. PW1 and PW2 saw the cutlass at the scene of crime.
In view of the foregoing, I hold that prosecution has proved the guilt of the Accused beyond reasonable doubt. I am satisfied that from the evidence before me, the Accused gruesomely murdered Rashidatu and Bilikisu Olawale for no justifiable reason. From Exhibits ?C? to ?L1?, showing the cuts on the bodies of the deceased you can see the wicked act, that he intended death and nothing less. I hereby find you Ovie Ejena guilty of murder of Rashidatu Olawole and Bilikisu Olawole, an innocent child. I convict you accordingly. You are filled with hate and do not deserve to live with humans anymore. A person who commits the offence of Murder shall be sentenced to death. See Section 319(1) of Criminal Code.?
Aggrieved by the decision, the accused vide his Notice of Appeal challenged it on four grounds thus:
GROUND ONE
The learned trial Judge erred in law when she ruled on the 05/03/2014, at the end of the conduct of a trial-within-the main trial, that the trial-within-the main trial, was a mere waste of time before admitting Exhibit ?B? in evidence in the main trial.
PARTICULARS OF ERROR
1. The Appellant alleges that he never made any statement to the PW1, but complains that PW1, after writing a statement, beat him (Appellant) thoroughly with a machete and inflicted machete cuts all over his body and thereafter, PW1 rubbed ink on his thumb and forced him to sign the statement (Exhibit ?B?) by thumb printing.
2. Considering the nature of the Appellant?s objection to the admissibility of Exhibit ?B? as Captured in PARTICULAR No 1 above, was the Court below not duty bound to carry out the dual responsibilities of involuntariness and authorship in the trial-within-the main trial before admitting Exhibit ?B? in evidence in the main trial?
3. Since the Court below failed to do the needful in the course of conducting the trial-within-the main trial which was concluded to be a mere waste of time by the Court below, hence, exhibit ?B? was admitted in evidence, does it not amount to side-stepping in the making of a finding of fact?
4. if it is established that there was no justification for the Court below to side-step the making of a finding of f act based on evidence led by both sides in the in the trial-within- the man trial, and to conclude that the trial-within the main trial was a waste of time, does it no amount to depriving the Appellant a fair trial well rooted in the constitutional right to fair hearing enshrined in Section 36(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) since the reasoning behind conducting a trial-within-the main trial is to ensure that judgment was clearly free from the intuition and whim of the judge but must be well founded on evidence properly evaluation and the application laws well applied?
5. Since all that transpired in the trial ?within-the main trial was a total deprivation of the Appellant?s right to fair trial deeply rooted in the constitutional right to fair hearing, cannot the entire proceedings in this case be null and void since fair hearing lies in the procedure followed in the determination of a case, and not in the correctness of the said decision? Is this Honourable Court (the Court of Appeal) not entitled to throw out the correctness of the judgment of the Court below in favour of the well cherished right to fair hearing deeply rooted in the Nigeria Constitution and on the principles of natural justice?
6. Again, since Exhibit ?B? was wrongly admitted in evidence by the Court below and heavily relied upon both in corroborative capacity and otherwise, does it not amount to using legally inadmissible evidence thereby occasioning a miscarriage of justice since the Appellants?s conviction and sentence were also based on Exhibit ?B? in the final analysis of the decision of the Court below?
GROUND TWO
The learned trial judge erred in law by dismissing the Appellant?s defence giving by him in his defence and thereby convicting the Appellant for the two-count charge of murder, even when the Appellant?s evidence is the only eye-witness account to the alleged offence.
PARTICULARS OF ERROR
1. The Court below decided to believe the evidence of PW1, PW2, PW3 and PW4 who were never called upon the Respondent as eye-witnesses and accepting them, in place of the only eye-witness account in this case on Appeal which is the Appellant?s account which was further solidified by the wrongly admission of Exhibit ?B? by the Court below. This is wrong indeed. The law is that if the Appellant/Accused person?s account is the only eyewitness account with respect to all that transpired in the case, every other testimony in relation to the offence is nothing but a hearsay which is not helpful to the Court in the eyes of the law and should be expunged.
GROUND THREE
1. The learned trial judge also erred in law when she held that the two count charge of murder at the Court below was proved beyond reasonable doubt by the Respondent considering the fundamental flaws inherent in this case on Appeal especially on the part of the learned trial Judge who erred seriously on numerous regards as captured in the preceding Grounds One and Two.
PARTICULARS OF ERROR
1. No cogent compelling and convincing evidence on record linking the Appellant to the two count charge at the Court below, as the evidence on record, if critically and painstakingly considered by the Court below, would not have grounded the said conviction and sentence in this case. I
