TERLUMUN GIKI v. THE STATE
(2014)LCN/6850(CA)
RATIO
WHETHER A TRIAL JUDGE IS DUTY BOUND TO CONDUCT A TRIAL WITHIN TRIAL WHEN THE VOLUNTARINESS OF THE CONFESSIONAL STATEMENT OF THE ACCUSED IS CHALLENGED
In concurring with the lead Judgment in Madjemu vs. State (2001) 4 MJSC 113 SC.190/2000; (2001) 5 S.C.(PT. 1) 1, (2001) 5 S.C.(PT 1) 84, Iguh, JSC said: “…the point must be made that it is not in all cases where the confessional statement of an accused person is sought to be tendered and objected to that a trial court must conduct a mini trial or trial within trial before such a statement may be admitted in evidence or its admissibility determined. It is only when an objection to its admissibility is taken on the ground of involuntariness that a trial court must conduct a trial within trial to determine its voluntariness and consequent admissibility or otherwise in evidence. See R. v. Onabanjo (1936) 3 WACA. 23, and R. v. Kassi (1939) 5 WACA. I54. Where, however, an accused is merely disputing the correctness of the contents of the statement or that he made no statement of all, it is not necessary in law to have a trial within trial. See R. v. Igwe (1960) 5 FSC. 55, The Queen v. Eguabor (1962) 1 ALL NLR 287, Obidiozo v. The State (1987) 4 NWLR. (Part 67) 748 at 760-762, Incek v. The State (1976) 4 SC.65 at 67 and Richard Igago v. The State (1999) 14 NWLR (Part 637) 1 at 23.”
In other words, a trial within the trial, is ordered and conducted, where the voluntariness of the making of the statement by an accused person, is in issue or raised by an accused person. As enjoined by the Supreme Court in Okaroh vs. State(1990) 1 S.C. 169: “…it is always for the learned counsel for the defence, in a case like this in which an accused person is defended by counsel, to raise an objection to the statement being tendered, on the ground that the statement was not voluntary, e.g. allege facts amounting to duress, before a mini-trial becomes necessary. See: The Queen v. Igwe (1960) 5 FSC 55, (1960) SCNLR 158, also Uche Obidiozo & 2 Ors.v. The State (1987) 4 NWLR (Part 67) 748.” Therefore once an objection is raised on the involuntariness of an alleged confessional statement, the trial court ought to conduct a trial within trial.
In concurring with the lead Judgment in Emeka vs. State [2001] 14 NWLR (PT.734) 666, Ogwuegbu, JSC categorically said: “The law is that when an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty of the judge to test the confession by conducting a trial within a trial, in order to determine whether in fact the statement was voluntarily made. Failure of the learned trial judge to do so renders the statement inadmissible and all evidence admitted by virtue of the statement should be expunged. See Obidiozo v. The State (1987) 4 NWLR (Pt. 67) 48.
When there is a trial within a trial, the onus is on the prosecution to prove that it was free and voluntary. In order that evidence of a confession may be admissible, it must be affirmatively proved that the confession was free and voluntary. See Yusufu v. The State (1976) 6 SC 167 and Martin Priestly (1966) 5 Cr. App. R.183″ See also: Obidiozo v State (1987) 2 NSCC 1239: Gbadamosi vs. State (supra); Nsofor vs. State (2004) 11-12 S.C. 43. Per ONYEKACHI A. OTISI, J.C.A.
WHAT THE PROSECUTION MUST PROOF TO ESTABLISH THE OFFENCE OF ARMED ROBBERY
As rightly submitted for the Appellant, the prosecution, in order to succeed in offence of armed robbery, must prove the following:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3.That the accused was the robbery or one of those who took part in the armed robbery.
See; Bolanle vs. State (2005) 11 NLR (PT 936); Attah v State (2010) CLR 3(t) (SC) 3 (PT IV) MJSC 139; Afolabi v State (2013) 6-7 MJSC (PT 1) 1.
The pieces of evidence which need to be before the court to establish the offence of armed robbery can be grouped into three:
1. By direct evidence of an eye witness;
2. By circumstantial evidence; and
3. By a confessional statement.
See: Onyenye vs. State (2012) LPELR-7866 (SC).
It is well settled that for the prosecution to succeed in proof of the offence of armed robbery, there must be proof beyond reasonable doubt… Where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See: Osetola vs. State (supra); Alabi vs. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi vs. State (2013) 2-3 MJSC (PT 1) 59. Per ONYEKACHI A. OTISI, J.C.A.
