THE STATE (COMPLAINANT)
1. STANLY FAMOUS ALIAS TABLET ALIAS JOSEPH NWABUINE
2. PAUL HARRY BROWN ALIAS ACHIBONG EDET (ACCUSED)
(1971) All N.L.R. 449
Division: High Court, Lagos
Date of Judgment: 14th April, 1971
Case Number: SUIT NO. LA/1C/1971
Before: Gomes, J.
(1) The general rule is that no confession by defendant is admissible which is made in consequence of an inducement of a temporal nature, having reference to the charge against him held out by a person in authority or extracted by torture or violence. But if an inadmissible confession gives a clue to other evidence in the case that may be given.
(2) In this case the evidence adduced by the prosecution for the admissibility of the statement, identification "2" leaves much to be desired and had created some very grave doubts in the mind of the court which for due administration of justice must be resolved in favour of the accused. Consequently the statement was inadmissible and must be rejected.
Cases referred to:
Queen v. Thompson, (1893) 2 Q.B. 12.
Ibrahim v. R., (1914) A.C. 599.
R. v. Kojo Bodom, (1959) 43 Cr. App. Rep. 121.
SUIT NO. LA/1C/1971.
Gomes, J.:-In the course of this trial and about the time the Investigating Constable Sergeant Johnson Ademulegun, Police Sergeant No. 5070 who is the 4th prosecution witness was about to tender the statement of the 1st accused he, i.e. 1st accused, objected and stated that the statement was not voluntary and that in fact he was induced to make the statement. In the circumstances it became necessary to try the issue of the admissibility or otherwise of the statement separately.
The prosecution called two witnesses. The 1st witness was Johnson Ademulegun, the Investigating Officer, in this case. He testified that the accused was referred to him on 7th June, 1969 on a charge of robbery. He informed the accused that, he, i.e. the accused had been brought for an offence of robbery which the accused committed at the Post Office, Ebute-Metta. He told him further that if he had anything to say he could say it and that he would write it down. On the other hand, if he wanted to reserve his statement he should say so and he would write that down as well. That he was not forcing him to say anything unless he desired to do so. This took place in the open office at Panti Street where there were other police constables as well as civilians. The accused told him that he had something to say about the charge. He then charged and cautioned him in English language. He volunteered a statement in English which he recorded in English. He read it over to the accused in English. The accused said it was correct and he signed it. He then countersigned it as the recorder. In view of the contents of the statement, he took the accused to Mr Udoh the C.S.P. together with the statement. Mr Udoh read the statement to the accused and asked him if the statement was correct. The accused stated that he did not make the statement. The statement was tendered for identification and marked Identification "2". The 1st accused cross-examined the 1st witness and this witness admitted under cross-examination that the accused denied the statement in the presence of the C.S.P. Mr Udoh who endorsed it accordingly. He denied making any promise to the accused and also denied torturing the accused into signing the document i.e. Identification "2". The only other witness called is Mr Udoh the Chief Superintendent of Police. He admitted that Sergeant Ademulegun brought the accused to him together with the statement alleged to have been made by the accused. He read the statement Identification "2" to the accused and asked him whether he made it voluntarily or otherwise. The accused in reply stated "No. It was not voluntary." He then endorsed the statement accordingly. Under cross-examination by the accused, the witness stated that he did not ask the accused whether or not he would like to make a statement.
The accused informed the court that he would like to give evidence and that he would like it to be given on oath. He stated on oath that when he was arrested and taken to the Police Station the police forced him to sign the statement Identification "2". He stated further that the police inserted four office pins under the nails of his middle finger, four office pins under the nails of his thumb and four office pins under the nails of his little finger. That the bridge of his nose was broken by a blow given to him by the police and that a piece of stick was inserted into his penis. It was as a result of all these and the beating he had that he was forced to sign the statement. Under cross-examination by the Senior State Counsel he stated that he was starved for three days and when on the third day he was thirsty and called for water he was given some illicit gin to drink. That in brief is the evidence of the accused.
At the close of the evidence of the accused the Senior State Counsel addressed the court in brief.
I have gone very carefully over the evidence adduced in support of the admissibility of the statement by the prosecution and that made by the accused against it.
The general rule is that no confession by defendant is admissible which is made in consequence of an inducement of a temporal nature, having reference to the charge against him held out by a person in authority or extracted by torture or violence. But if an inadmissible confession gives a clue to other evidence in the case that may be given.
The above rule was clearly considered by Cave J. in the Queen v. Thompson, (1893) 2 Q.B.P. 12 quoting from pages 15 to 16.
"The question in this case is whether a particular admission made by the prisoner was admissible in evidence against him. This is a question which must necessarily arise for decision in a number of cases both at petty and quarter sessions and to my mind it is very unsatisfactory that the principle which must guide the decision of magistrates in these cases should be loosely or confusedly interpreted. Many reasons may be urged in favour of the admissibility of all confessions, subject of course, to their being tested by the cross-examination of those who heard and testify of them; and Bentham seems to have been of this opinion (Rationale of Judicial Evidence Bk v, Ch. VI, S. 3). But this is not the law of England. By that law to be admissible a confession must be free and voluntary if it proceeds from remorse and a desire to make reparation for the crime it is admissible. If it flows from hope or fear excited by a person in authority, it is inadmissible. On this point the authorities are unanimous. As Mr Taylor says in his Law of Evidence (8th Ed. part 2 Ch. 15, S. 872). "Before an admission can be received in evidence in a criminal case it must be shown to have been voluntarily made; for to adopt the somewhat inflated language of Eyre C.B. 'a confession forced from the mind by the flattery of hope or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be given to it and therefore it is rejected.' The material question is whether the confession has been obtained by the influence of hope or fear, and the evidence to this point being in its nature preliminary, is addressed to the judge who will require the prosecutor to show affirmatively to his satisfaction that the statement was not made under influence of an improper inducement, and who, in the event of any doubt subsisting on his head, will reject the confession."
Furthermore this issue was again considered by the Judicial Committee of the Privy Council in the case of Ibrahim v. R., (1914) A.C. 599 and on p. 614 Lord Summers stated:-
"If as appears even on the line of authorities which the trial Judge did not follow the matter is one for the judges discretion depending largely on his view of the impropriety of the questioner's conduct and the general circumstances of the case, their Lordships think, as will hereafter be seen, that in the circumstances of this case his discretion is not shown to have been exercised improperly."
The 1st accused in this case complained that he was tortured and forced to sign the statement Identification "2". According to the evidence of both 1st witness Johnson Ademulegun, a Sergeant in Nigeria Police, he, i.e. the accused was taken before the C.S.P. Mr Udoh as the statement was a confessional one. This was purely an administrative arrangement and which was at the same time desirable as it affords the accused the first opportunity to either confirm or reject the story. It is not uncommon that Investigating Constables in their eagerness and zeal to get to the root of an investigation adopt means and methods that are sometimes rather shady and questionable. The accused on getting to the C.S.P. immediately informed him that he was forced to sign the statement. He told the C.S.P. that he was tortured and starved by Sergeant Ademulegun before he signed the statement. The C.S.P. who is the 2nd and last witness also gave evidence and confirmed that when he read the statement Identification "2" to the accused he stated that he did not make it because it was not voluntary. The C.S.P. endorsed the statement accordingly and did nothing else.
It is interesting to note that although the statement was taken in an open office in the station and in the presence of other constables nobody else was called to confirm the evidence of Sergeant Ademulegun in view of the evidence of C.S.P. Udoh. It is clear that both the two witnesses for the prosecution as well as the accused agreed that the accused at the first opportunity stated that he was forced to sign the statement Identification "2". What then in the circumstances would a reasonable man do? Is it enough to endorse the statement and leave it as it is? I am of the view that in order to clear any doubt as to whether the accused was forced into signing the statement or not the whole issue could have been easily resolved if the C.S.P. has had a little patience by asking the accused if he is willing to make a statement or not. It must be affirmatively proved before a confession is admissible that it was not proceeded by any inducement by a person in authority or that it was not made until after such inducement had clearly been removed. Furthermore that it was not obtained by violence and where this was used, as in R. v. Kojo Bodom (1959) 43 Cr. App. Rep. P. 121, and statement obtained as a result of such violence, such statement is inadmissible.
The evidence adduced by the prosecution for the admissibility of the statement, Identification "2" leaves much to be desired and has created some very grave doubts in my mind, which for the due administration of justice I am resolving in favour of the accused. In the circumstances, I hold that the statement Identification "2" is inadmissible and it is therefore rejected.