In the Supreme Court
Holden at Abuja
Friday,12 May 2017
Suit Number; SC.258/2015
ETENG OTU UJANG .................................... Appellant
THE STATE .................................... Respondent
(Delivered by MUSA DATTIJO MUHAMMAD, JSC)
The appellant was tired, convicted and sentenced to death by the High Court of Cross River State, coram M.O. Eneji J on an information containing a single count of murder contrary to Section 319 of the Criminal Code Cap 31, volume II, Laws of Cross River State of Nigeria.
The facts of the case as gathered from the record of appeal are that a crusade held at Abini Village within Biase Local Government Area of Cross River State on the evening of 18th November 2004. In the course of the crusade, Christian pamphlets were distributed to those in attendance including the appellant and the deceased one Ukpa Udop. At a point in time, the appellant seized a copy from the deceased whose effort to retrieve the pamphlet back from the former proved abortive. A disagreement ensued between the two which the appellant reported to the mother of the deceased. The mother pleaded, in tears, with the appellant to forgive the deceased and avoid further trouble. The appellant rejected her entreaties and vowed to ensure that the woman wept all the more.
Shortly after the departure of the appellant from deceased's mother, a fight took place between the appellant and the deceased. PW4's intervention could not stop the fight. The appellant, PW4 testified, inflicted injury on him with a dagger as he tried to bring the fight between the two to an end.
(DELIVERED BY SIDI DAUDA BAGE, JSC.)
I have had the benefit of reading in draft the Judgment of my learned brother Muhammad, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit, and it is from a distance, PW2 asserted, he heard people shouting that the appellant had killed the deceased. PWI who was attracted to the scene by deceased's whimpers met the latter in a pool of blood with a deep cut on his head. The deceased informed PWI that it was the accused who inflicted the grievous injury on him. At the hospital, where PWI with the assistance of a cyclist conveyed the deceased, the deceased was confirmed dead.
The case of the appellant is that he was provoked by the deceased who seized a tract from and called him an illiterate youth leader. He ignored the deceased. Frustrated, the deceased grabbed, lifted and threw the accused to the ground. It is appellant's further case that he sustained facial injuries resulting in bleeding from his mouth and nose. He reported the conduct of the deceased to the mother of the deceased who urged him to forgive her son and to go to Christian, a nurse, for treatment of the injuries he sustained. It was on his way to seek treatment that the deceased attacked him with a dagger. They fought each other. PW4's intervention could not bring the fight to an end as he was injured in the course of the effort.
PW4 eventually left the scene. Some unknown persons present at the scene but who did nothing to separate the two, the appellant further asserted, eventually joined the fight. They dealt machete blows at random on him and the deceased. On fleeing from the scene, the appellant ran to his house where he was arrested and charged to court for the murder of the deceased.
The prosecution called five witnesses and tendered 6 exhibit s, A - E and G to prove its case. The appellant testified in his own defence and tendered exhibit 'F', the police investigation report. Other witnesses did not testify for him.
In a considered judgment delivered on 30 September 2010, the learned trial Judge convicted the appellant as charged and sentenced him to death. Aggrieved, the convict appealed to the Calabar Division of the Court of Appeal, hereinafter referred to as the court below, on a notice of appeal containing three grounds. The affirmation of the trial court's conviction and sentence by the court below informs his further appeal to this Court vide a notice of appeal filed on 5 February 2015
containing 3 grounds of appeal.
In his brief of argument settled by Godwin Omoaka of counsel, the two issues the court below resolved against the appellant are represented for the determination of the instant appeal. The issues read:-
"1 Were the learned Justices of the Court of Appeal right to have affirmed the decision of the lower court admitting and relying on the appellant's alleged confessional statements - Exhibits C, D and G without conducting the mandatory trial within trial, the appellant having properly objected to the admissibility of the said Exhibits on the ground of involuntariness. (Ground 1).
2 Given the evidence adduced at the trial, were the learned Justices of the Court of Appeal right to affirming the trial court's decision that the prosecution proved its case beyond reasonable doubt as required by law?
"Proof beyond Reasonable Doubt issue." (Ground 2 and 3)."
The respondent has adopted the two foregoing issues as calling for consideration in the determination of the appeal. On the 1st issue, learned appellant's counsel contends that by virtue of Section 29(2)(a) and (b) of the Evidence Act 2011 as interpreted inter-alia in Ogoala V. State (1991) 2 NWLR (Pt 175) 509 at 534, exhibits C, D and G the alleged confessional statements of the appellant were wrongly admitted in evidence. The appellant, it is submitted, timeously objected to their being admitted in evidence when they were being tendered. The appellant, it is submitted, asserted that the statements were induced by threat. A trial within a trial not having been conducted before admitting the said statements in evidence, learned counsel contends, the statements cannot ground appellant's conviction notwithstanding the concurrent findings of the two courts below. Further relying on the decisions in Olalekan V. State (2001) 18 NWLR (Pt 746) 793, Alarape V. State (2001) 18 NWLR (Pt 746) 793, Nwangbomu V. The State (1994) 2 NWLR (Pt 327) 380 and Eke V. State (2011) 3 NWLR (Pt 1235) 589, learned appellant's counsel submits that the issue be resolved in appellant's favour and the appeal, in consequence to be allowed.
In response, learned respondent's counsel contends that a trial-within-a-trial in respect of appellant's consistent confessional statement was unnecessary before same were rightly admitted into evidence and relied upon to convict the appellant. Relying on Onyenye V. The State (2012) LPELR, Alarape V. State supra, Jona Dawa & anor V. The State (1980) 1 SC 236 at 267 and State V. Gwangwan(2015) LPELR-24837-24837 (SC), learned counsel submits that in the instant case the principle applicable to the statements of the appellant, who sought to retract or resile from the statements, are entirely different from the issue of the voluntariness of the statements. On that account, it is submitted, appellant's belated afterthought is to be ignored and that the concurrent findings of the two courts on the admissibility of the statements be upheld.
On the 2nd issue, learned appellant's counsel refers to the lower court's findings at page 183 of the record of appeal and submits that the conclusions thereat are wrong. The law allows a court to convict the appellant only on the proof of all ingredients of the offence he is charged. The burden of proof which is beyond reasonable doubt, learned counsel submits, is on the prosecution. He further submits that the burden is static. It never shifts. The decisions inter-alia in Ogba V. State (1992) 2 NWLR (Pt 222) 164, Gira V. State (1996)4 NWLR (Pt 443) 375, Kada V. State (1991) 11/12 SC 1 and Kingsley V. State (2010) 6 NWLR (Pt 1191) 393 at 595, learned counsel submits, support his contention.
Further arguing the issue, learned appellant's counsel contends that although the death of the deceased is not contested, evidence does not exist showing that the death was caused by the appellant. None of the prosecution's witnesses PWI, PW2, PW3 and PW4 testified that he was at the scene of the crime and that he saw the appellant inflict on the deceased the injuries that led to his death. Indeed the evidence of PW4, learned counsel asserts, corroborates the evidence of the appellant that the deceased died in the course of a free fight in which even some of the prosecution witnesses participated. Appellant's evidence on this, it is submitted, remains unchallenged.
Learned appellant's counsel relies on Section 167(d) of the Evidence Act 2011 and Onah V. State (1985) 3 NWLR (Pt 12) 236, Odogwu V. State (2013) 14 NWLR (Pt 1373) 74, Omotayo V. State (2013) 2 NWLR (Pt 1338) 235 and Edoho V. State (2004) 5 NWLR (Pt 865) 17 and argues that the respondent whose circumstantial evidence in proof of the offence against the appellant is not positive and who deliberately failed to call material evidence cannot succeed in securing appellant's conviction. Further citing Joseph Lori & anor V. The State (1980) 8-11 SC 81 and Uwe Esai & ors V. The State (1976) 11 SC 39 and Philip Omagodo V. The State (1981) 5 SC 5 at 24 learned appellant's counsel insists that since the evidence the respondent led and claims to be circumstantial is not cogent, compelling and irresistibly pointing at the appellant's the evidence cannot ground appellant's conviction.
Furthermore, learned counsel argues, there are material contradictions in the evidence of the prosecution's witnesses. Although PWI, PW3, PW4 and PW5 seem to agree on the time and date the offence took place, it is submitted, they clearly differ on the exact location the offence occurred. Relying on Gufwal & ors V. State (1994) 2 NWLR (Pt 327) 435 and Ikem V. State (1985) 1 NWLR (Pt 2) 358 at 386, learned counsel submits that the concurrent findings of the two courts below based on such contradictory evidence cannot be left to stand. He urges the resolution of the issue in appellant's favour. He prays that the appeal be allowed.
In his response to appellant's arguments under issue 2, learned respondent's counsel concedes that the law indeed requires the prosecution to prove beyond reasonable doubt the offence the appellant is charged and convicted for. The proof so required, counsel further concedes, is in respect of all the ingredients of the offence. The decisions in Fatai Olayinka V. State (2007) 9 NWLR (Pt 1040) 56, Olayinka V. State (supra) Alabi V. State (1993) 7 NWLR (Pt 307) and Bello V. State (2007) 10 NWLR (Pt 1043) 546 learned respondent's counsel further submits, are part of the seeming endless judicial authorities on the principle. A corollary to the principle, it is however submitted, is that once all the ingredients of the offence with which the appellant is charged are established, conviction by a court will persist. In the case at hand where all the ingredients as specified inter-alia in Nwakearu V. State (2013) 16 NWLR (Pt 1380) 207 at 211, Ebong & anor V. State (2011) LPELR-3789 CA, Durwode V. State (2000) 15 NWLR (Pt 691) 467 and Ubani V. State (2003) 18 NWLR (Pt 851) 2224 have been established, appellant's conviction cannot be disturbed on appeal. Learned counsel further relies on Oseni V. State (2012) 2 SC (Pt 11) 51.
The contradictions the appellant contends are apparent in the evidence of the prosecution witnesses, it is further submitted, are not material to warrant revisiting the lower court's findings thereon. This Court has warned that exact evidence on the same point or issue by different witnesses it is submitted, should be made suspect. Learned respondent's counsel refers in support Yakubu Jauroyel & ors (2014) LPELR 22732 (SC) Uweh V. State (2012) LPELR-19996 (CA) Uwaekweghinya V. State (2005) 21 NSQR 570 at 573 and Queen V. Adelabu (55-56) WRNLR (III) 112.
Further arguing under the issue, it is submitted that the two courts below rightfully relied on exhibits C and D appellant's confessional statement that he caused the death of the deceased. Appellant cannot insist that the prosecution called particular witnesses in proving their case against him. The prosecution, it is contended is only bound to call material witness and where the appellant desired call a witness he felt important in his defence. These are the principle, it is submitted, this Court endorsed in Asariya V. The State (1987) 4 NWLR (Pt 67) 709, Eze V. State (2013) 16 NWLR (Pt 1380) 392 and Imhandra V. Nigerian Army (2007) 14 NWLR (Pt 1053) 76.
Concluding, learned respondent's counsel relies on Chief Adenigba Afolayan V. Oba Joshua Ogunrinde & ors (1990) NWLR (Pt 727) 369, and David Chukwuemeka Obiefuna & anor V. Christopher Obioso & ors (2010) 8 NWLR (Pt 1195) 145 and urges that the concurrent decisions of the two courts that have not been established to be perverse by the appellant be upheld.
My lords, appellant's grouse under his first issue appears legitimate and availing. He urges that having objected to the admissibility of exhibits C and D on the ground that the extra judicial statements were not voluntarily obtained, the lower court is wrong to have affirmed his conviction by the trial court on the basis of the purported confessional statement without
having conducted a trial-within-a-trial to ascertain its voluntariness. Whether or not the appellant had timeously objected to the admissibility of the statement as he now asserts, is a question of fact the answer to which lies in a resort to the record of appeal. The record at page 63, untidy as it is, says it all and inter-alia reads:-
"This is the statement that I recorded from the accused person under caution. Tenders it as an exhibit. The defence say they are objecting to the statement being tendered as an exhibit because-
That it was not voluntarily made in that it was induced by threat before the accused signed it. Therefore, under Section 28 of the Evidence Act, it is not admissible before the court.
Responding, Mr. Abi for the State say the defence has not told the court anything. That inducement and threat ought to be proved by the accused and not his counsel. That on the face of the statement sought to be tendered, there is no evidence of inducement or threat
The objection to the tendering of the accused statement, by the defence, on the ground that it was obtained by threat or inducement is very weighty and must be proved convincingly and satisfactorily by the defence. To merely allege threat and inducement and do no more, will not be enough and beneficial. It will be useful if the kind, nature and type of threat is stated by the defence. Example, that the accused was tortured, brutalized, tear-gased, or placed under any frightful condition or uncomfortable circumstance. No evidence of this type has been alleged or proved by the defence. A mere allegation without proof of same in law, has no basis and holds no ground at all. Objection to the tendering of the accused statement to the Police is hereby overruled for being founded on a flimsy excuse."
I agree with learned appellant's counsel that exhibits C and D would be irrelevant if shown to have been recorded as a result of any inducement, threat or promise in relation to the charge the appellant is tried and convicted for. Indeed that is the essence of Sections 28 and 29 of the Evidence Act 2011 by virtue of which a positive rule of practice in criminal law has evolved in the country to the effect that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be the accused's voluntary statement. In the foregoing passage, which the lower court affirmed, the trial court, in the face of the facts recounted therein, held that conducting a trial-within-a-trial to ascertain that exhibits C and D are indeed appellant's voluntary statements, is unnecessary. It must be reiterated that for exhibits C and D to be of any value as the confessional statements of the appellant, they must not only be admissible for their relevance but properly and legally so admitted in evidence. When exhibits C and D, appellant's purported confessional statements, were being tendered there is the presumption that the prosecution is relying on appellant's signature on them as his acknowledgment of the statements being his own. Yet, from the record, the appellant asserts that he did not freely sign the statements as his signature to them was induced and appended as a result of the threat those who recorded the statements exercised on him. Since for exhibits C and D to be admissible it is necessary for the prosecution to show that they had been made voluntarily, appellant's allegation that the signature on the statements were procured by threat of force or inducement necessarily raises an issue of the voluntariness of the statements, which issue must be decided by the trial Judge in a trial-within-a-trial. Having been admitted without enquiring into and determining the voluntariness of the exhibits, both courts below are in manifest error of relying on the wrongly admitted inadmissible exhibits in arriving at the guilt of the appellant. The court cannot rely on such pieces of evidence about which looms the uncertainty of their voluntariness to convict the appellant. See Ibrahim V. R (1914) AC 559 at 609, Corporal Jona Dawa & anor V. State (1980) 8-11 SC 236 at 258, Ikpasa V. State (1981) 9 SC 7 at 29, Saidu V. The State (1982) 4 SC 26. In Asuquo Okon Asuquo V. The State (2016) LPELR-40597 (SC) this Court held thus:-
"Only statements that have not been voluntarily made by a person purportedly convicted on the basis of the very statements will avail the person on appeal."
In the instant case, the two courts below relied on exhibits C and D, appellant's purported extra judicial confessional statements the voluntariness of which has not been ascertained through a trial-within-a-trial notwithstanding the timeous objection the appellant raised on their being tendered by the prosecution to be admitted in evidence. The wrongly admitted purported confessional statements shall be and do hereby stand expunged. See Adekunle Oluwafemi V. The State (2015) LPELR-24404 (SC), Sani Abdullahi & others V. State (2013) LPELR-20644 (SC). Accordingly, appellant's 1st issue is resolved against the respondent.
Under his 2nd issue, appellant concedes the fact of the death of the deceased and the date of its occurrence. What he contests to be lacking in the evidence of the prosecution is the fact of his being the cause of the death of the deceased and being at the scene of the crime. To secure his conviction for the offence, it is argued, the death of the deceased must be shown, beyond reasonable doubt, to be the direct consequence of appellant's intended act. I agree with learned appellant's counsel so far.
To prove the guilt of an accused person, the prosecution does it either through direct evidence from eye witnesses, solely on the basis of the voluntary confessional statements of the accused, by virtue of circumstantial evidence which is compellingly and irresistibly pointing at the accused as being the perpetrator of the offence or a combination of the 1st and 3rd categories of evidence. It follows that conviction does not necessarily have to be based on the direct evidence of eye witnesses alone. Where there is no eye witness account or direct evidence of the commission of an offence, conviction may be based on such circumstantial evidence that points only to one conclusion, namely, that the accused and no other committed the offence. Inference of guilt from circumstantial evidence, therefore, is arrived at after excluding co-existing circumstances weakening the inference excluded. See Dick V. C.O.P (2009) 9 NWLR (Pt 1147) 530, Taho V. State (1978) 3 SC 87 and Tajudeen lliyasu V. The State (2015) LPELR-24403 (SC).
In the case at hand, I am satisfied that the two courts below have, in reaching their concurrent findings, properly appraised the circumstantial evidence adduced by the prosecution before convicting the appellant. PWI, PW2, PW4 most particularly and PW4 have testified on the series of acts of the appellant leading to the eventual death of the deceased: the first quarrel between the appellant and the deceased; appellant's report of the quarrel to the mother of the deceased and appellant's refusal to forgive the deceased; appellant's threat to ensure that deceased's mother was further agonized by the squabbles between the two; the fight that ensued immediately thereafter which PW3 tried in vain to stop, sustaining thereby an injury the appellant inflicted on him with a dagger, the injury that led to the death of the deceased that is consistent with injuries inflicted with a dagger; the evidence of PW2 who saw the deceased in a pool of blood with the deep cut on his head and the deceased's statement to the latter that it was the appellant who inflicted the injury on him; all, viewed together, constitute such body of evidence that compellingly point at the appellant alone as the cause of the death of the deceased. Whatever contradictions in the testimonies of these witnesses, I agree with learned respondent's counsel are, not being material, inconsequential. It is only when contradictions in the evidence of the prosecution go materially against the charge that they create doubt which benefit the court gives the accused thereby leading to his discharge. See Ikemson V. State (1989) LPELR-1473 (SC), Maiyaki V. State (2008) 7 SC 128 and Idowu Okanlawon V. State (2015) LPELR 24838 (SC). Indeed the appellant himself in his evidence at the trial court has corroborated the evidence led through the five prosecution witnesses against him. The appellant stands no chance in the argument that evidence does not abound in proof of the offence he is tried and convicted for beyond reasonable doubt. I so hold. In the result the 2nd issue is hereby resolved against the appellant.
Notwithstanding the resolution of appellant's 1 issue in his favour, the appeal is unmeritorious as the concurrent findings of the lower court are, by virtue of the resolution of the 2nd issue against the appellant, hereby sustained. The appeal is dismissed. The judgment of the lower court is hereby affirmed.
(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
In a criminal charge, the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. In discharging this burden it may rely on:
(a) The direct evidence of eye witnesses;
(b) Confessional statement of the accused; and/or;
(c) Circumstantial evidence.
See: Oguno Vs The State (2013) 15 NWLR (Pt.13761) 1; (2013) LPELR - 20623 (SC); Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt.1066) 300; Emeka Vs The State (2001)14 NWLR (Pt.734) 666 @ 683. A statement made by a person charged with a crime stating or suggesting the inference that he committed the crime is relevant and admissible in criminal proceedings provided that it was not obtained:
(a) By oppression of the person who made it; or
(b) In consequence of any threat or inducement which would make the statement unreliable and unsafe to found a conviction.
See Sections 28 and 29 of the Evidence Act, 2011. See also: Olatunbosun Vs The State (2013) 17 NWLR (Pt.1382) 167; (2013) LPELR - 20939 (SCI: Shuaibu Isa Vs Kano State (2016) 1 SC (Pt. III1 94: (2016) LPELR - 40011 (SC): Odeh Vs F.R.N. (2008) 13 NWLR (Pt.1103) 1.
To be admissible in evidence, the statement must have been made voluntarily. Where a statement is contested on the ground that it was not voluntarily made, it is mandatory for the court to conduct a mini trial, otherwise called a trial within trial to test the voluntariness of the said statement. See: Nwangbomu Vs The State (19941 2 NWLR (Pt.327) 380: Jimoh Vs The State (2014) LPELR - 22464 (SCI: Gbadamosi Vs The State (1992) 9 NWLR (Pt.266) 465. A trial within trial is not necessary where the accused person denies making the statement at all.
In the instant case, at the time Exhibits C and D were sought to be tendered, the appellant's counsel objected on the ground that the statements were not voluntarily made; that they were obtained under duress by threat. Learned counsel for the prosecution opposed the objection on the ground that merely asserting that the statements were induced by threat, was not sufficient ground for the conduct of a trial within trial in the absence of proof to substantiate the assertion. The trial court agreed and admitted the statements in evidence. This appears to be a very novel argument because the only avenue through which the allegation of threat or inducement could be established is by evidence proffered at the trial within trial! The two lower courts were therefore wrong when they held that the statements were properly admitted in evidence.
However, be that as it may, there was sufficient circumstantial evidence before the trial court to sustain the conviction of the appellant. The court below was correct in affirming the decision.
I have had the benefit of reading in draft the judgment of my learned brother, MUSA DATTIJO MUHAMMAD, JSC just delivered. I agree entirely with the reasoning and conclusions reached
therein. I agree that notwithstanding the resolution of Issue 1 in the appellant's favour, the appeal lacks merit. I accordingly dismiss it and affirm the judgment of the lower court except as regards the admissibility of Exhibits C & D.
GODWIN OMOAKA ESQ. for the Appellant with Abu Friday
Omakoji Esq. and Bologi Christian Alli (Miss).
L.F. ANGA ESQ. for the Respondent with Rebecca Ebokpo (Mrs.)
JUDGMENT Delivered by EJEMBI EKO, JSC
The draft of the judgment just delivered by my learned brother, MUSA DATTIJO MUHAMMAD, JSC, was made available to me before now. I read it. The resolutions of the issues in the appeal represent all that I need to say in the appeal. I hereby adopt the judgment.
I, however, wish to make a few comments Exhibits C. D. & G have all the characteristics of confessional statements. 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. Section 25 of the Evidence Act, 2011. The court will, however, not allow a confession to be given in evidence against the accused unless it is proved beyond reasonable doubt that it was voluntarily made by the accused person. That is the only circumstance the confessional statement is relevant and an admissible evidence against the maker.
A confession made involuntarily or obtained through the oppression of the maker, by virtue of Section 29(2) & (5) of the Evidence Act, is irrelevant and inadmissible in evidence. Oppression, under Section 29 of the Act, includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
Whenever the accused, as the maker of a confessional statement alleges involuntariness in the making of the confessional statement it behooves the trial court, pursuant to Section 29(3) of the Evidence Act to order trial-within-trial and require the prosecution to prove that the confession was made voluntarily and not in contravention of sub-Section(2) of Section 29 of the Evidence Act. The requirement of trial-within-trial is now statutory. It is a right the accused enjoys under Section 29(3) of the Evidence Act, 2011.
I think I should reproduce the provisions of Section 29(2), (3) & (5) of the Evidence Act to demonstrate the point I am making. That is
"29. (2) If, in any proceeding where the prosecution
proposes to give in evidence a confession made by a defendant, if it is represented to the
been obtained -
(a) by oppression of 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 the Section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by the defendant, the court may of its own motion require the prosecution, as a condition of allowing it to so (do), to prove that the confession was not obtained as mentioned in either subsection 2(a) or (b) of this Section.
(5) In this Section "oppression" includes torture, inhuman or degrading treatment,
and to use or threat of violence whether or not amounting to torture".
It appears to me that once the trial court forms an impression, from the circumstances of the case before it, that the confession being put in evidence may not have been made voluntarily, it may suo motu require the prosecution to prove that the confession was made voluntarily as a condition for allowing the prosecution to put the confession in evidence. Once it is represented to the court that the confession was obtained by oppression of the accused person, or in consequence of anything said or done which was likely to make the confession unreliable, the duty falls on the prosecution to prove beyond reasonable doubt that the confession was obtained voluntarily and in a circumstance that makes it reliable.
In the instant case the voluntariness of the making of Exhibits C. D. & G. is suspect. The appellant disputed his voluntary making of these statements on the grounds amounting to his being oppressed in order to compel him to make or sign each of them as his confession. Exhibits C, D and G were admitted in evidence in spite of the allegations that the appellant was tortured, brutalized, tear-gased or placed under frightful and/or uncomfortable condition and circumstance, and/or that the appellant was subjected to threats as condition of his making them without more, the trial court ruled that the allegations were flimsy excuses and that the mere allegation of torture or threat without proof will not suffice for it to reject the confessions in evidence. The trial court never once adverted its mind to Section 29(2), (3) & (G) of the Evidence Act, 2011. The burden of proving beyond reasonable doubt that the confession was made voluntarily rests on the prosecution. The requirement for trial-within-trial evolves, in the first place, from the rule that the prosecution must prove affirmatively that the confession was made voluntarily. The rule is now statutory. The function is judicial. The discretion associated with the function is one which must be exercised judiciously and judicially.
In the circumstance, I resolve Issue 1 in favour of the appellant. The voluntariness of the alleged confessions is suspect.
On Issue 2, 1 hereby align myself with my learned brother and resolve it against the appellant. The totality of the prosecution's evidence establishes premeditation, not even the tearful pleas or entreaties of the deceased's mother to the appellant to forgive the deceased would dissuade the appellant from further attack on the deceased. Appellant rejected the entreaties. Shortly after vowing that the woman would weep more the appellant and the deceased were engaged in another fight. The PW.4 was stabbed by the appellant as he tried to intervene to separate the two.
I cannot fault the concurrent findings of facts made by the two courts below. They have not been satisfactorily shown to be perverse. The contradictions or inconsistencies in the evidence of the prosecution's witnesses, said to be material, are rather inconsequential.
In view of my foregoing stance and the fuller reasons contained in the Lead Judgment I resolve Issue 1 in favour of the appellant; and I resolve Issue 2 against the appellant. The appeal, on Issue 2, is hereby dismissed. Consequently, I affirm the Judgment of the Court of Appeal delivered in the appeal No. CA/C/189C/2014 on 4th December, 2014 wherein the conviction and sentence of the appellant by the High Court of Cross-River State in the charge No. AK/7c/2006 were affirmed.
Godwin Omoaka, Esq., with Abu Friday Omokoji, Esq; and Bologi Christiana Alii (Miss), for the Appellant.
L.F. Anga, Esq., with Rebecca Ebokpo (Mrs.), for the Respondent.