Federal Republic Of Nigeria V. Babalola Borisade (2015)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

Way back in November, 2009, the respondent in this appeal and four others, [as accused persons], were arraigned before the High court of the Federal Capital Territory, Abuja. precisely, by an Amended Charge of fifteen counts, dated and filed on November 19, 2009, they were alleged to have committed various offences under the penal code and the Independent Corrupt Practices and Other Related Offences Act, 2000 [ICPC Act, for short].

Sequel to their due arraignment, trial commenced before High Court Number 12 (hereinafter, referred to as “trial Court”). It would appear that there were no procedural hitches when the first nine witnesses were examined in chief; duly, cross examined and discharged, accordingly. However, the prosecution’s attempt to tender the extra judicial statement of the third accused person [I. A. Dairo] was, stoutly, resisted by his counsel and, indeed, counsel for the other accused persons.

PW10 was one Reuben Omosigbo, the principal Investigating Officer. The prosecution sought to tender the said third accused person, T. A. Dairo’s statement of July 25, 2008, through him. His counsel, and counsel for the other accused persons, greeted this attempt with firm disapprobation. They predicated their objection on the ground of the involuntariness of the said statement. On his part, counsel for the third accused person hinged his agitation on the fact that the said statement was elicited from a question and answer session and on its involuntary origin. In the circumstance, the trial court was constrained to order a trial-within-trial or mini trial (otherwise, known as voire dire).

At the mini trial, the prosecution’s witness [who obtained the said statement] testified and was cross examined. The third accused person before the trial court testified and was cross examined. The trial court found in favour of the voluntariness of the said statement, partly, anchoring its reasoning on its observation of the demeanour of the said third accused person and the prosecution’s sole witness at the said mini trial. Consequently, it admitted the statement as exhibit AX. Aggrieved by the said court’s ruling, the respondent lodged an appeal at the Abuja Division of the Court of Appeal (henceforth, referred to as “the Lower Court.” In its judgment dated April 25, 2012, the Lower Court allowed the appeal. It proceeded to expunge the said exhibit AX from the records. This appeal is the prosecution’s expression of dissatisfaction against the judgment of the Lower Court.

ISSUES FOR DETERMINATION

In the brief of argument filed on July 11, 2012, the appellant raised only four issues from its twelve grounds of appeal. They were framed thus:

1. Whether in view of the express admission on the record by the third accused person that the disputed confessional statement was voluntary, coupled with his failure to cross -examine the only prosecution witness in the voire dire on vital issues, the Court of Appeal was right to have relied merely on alleged ‘circumstances’ and ‘state of mind of the first respondent and the failure of the prosecution to call evidence which the Court of Appeal held was vital, to hold that the confessional statement was not voluntary
2. Whether the Court of Appeal was right when it held that the learned trial Judge placed the burden and standard of proof on the third accused person and that the learned trial Judge circumscribed or limited the grounds of objection of the defence against the admissibility of the confessional statement.
3. Whether the Court of Appeal judgment was contradictory in material particular, resulting to adverse findings against the appellant
4. Whether the Court of Appeal had jurisdiction to make findings on the applicability of section 28 of the repealed Evidence Act and or correctly applied its provisions to the facts of this appeal given that there was no appeal on that to the Court of Appeal and also whether it was correct in its findings on allegations of threat to life and inducement or promise of advantage.

The respondent opted to recast the above issues in a more precise phraseology. He condensed them into three issues couched in the following manner:

1. Whether or not the Lower Court was right to have discountenanced the appellant’s contention that the third accused person admitted at the trial within trial that he voluntarily made the statement in issue
2. Whether or not the Lower Court was right when it found that the trial court misplaced the burden and standard of proof on the accused persons at the trial within trial
3. Whether or not the Lower Court was right to have expunged the confessional statement in issue having regard to the clear provision of section 28 of the Evidence Act, Cap E14 of LFN, and the totality of the evidence adduced at the trial within trial

On our part, upon our intimate reading of the twelve grounds of appeal, we are satisfied that the crux of the appellant’s complaint against the judgment of the Lower Court is woven around its expunction of exhibit AX from the records. As such, we have taken liberty, as we are, eminently, entitled to do, to compact the above issues and reformulate them. In opting for this approach, we are guided by the salutary and wholesome prescription that, in an interlocutory appeal such as this, the court, while endeavouring to deal with the justice of the complaint, should be circumspect enough not to overreach itself by prejudicing the ultimate outcome of any aspect of the substantive matter still pending at the trial court, Egbe v. Onogun (1972) 1 All NLR 95; Akuma Industries Ltd v. Ayman Enterprises Ltd [1999]13 NWLR (pt.633) 68; Agip (Nig) Ltd. v. Agip Petroleum International and Others [2010] 5 NWLR (pt.1187) 348; Mil Admin of Ekiti State v. Aladeyelu [2007] 14 NWLR (Pt.1055) 619; Ominia (Nig.) Ltd v. Dyktrade Ltd [2007] 15 NWLR (Pt.1058) 576; Ojukwu v. Governor of Lagos State [1986] 2 NWLR (pt.26)39; Iweka v. SCOA (Nig) Ltd.[2000] 7 NWLR (Pt.664) 325; Orji v. Zaria Industries Ltd. [1992] 1 NWLR (pt.216) 124.

Even then, the power of this court to reformulate issues is not in doubt in so far as the issues so re-formulated are within the grounds of appeal. The court, usually, embarks on this option for the purpose of clarity and precision when it observes that the issues, which the parties distilled, are clumsy; imprecise or are proliferated, Reptico S. A. Geneva v Afribank Nig Plc (2013) LPELR -20662 (SC) 35, A-D; Unity Bank Plc v. Bouari [2008] 2 SCM 193; [2008] All FWLR (pt.416) 1825; [2008] 7 NWLR (pt.1086) 372; Emeka Nwana v. FCDA and Ors [2004] 7 SCM 25; Agbakoba v INEC [2008] 12 SCM (pt.2) 159; [2008] All FWLR (pt.410) 799; [2008] 18 NWLR (pt.1119) 489.

It can, also, do this for a more judicious and proper determination of the appeal or to narrow the issue or issues in controversy in the interest of brevity, Musa Shar Jnr. and Anor v. Da Rapkwan and Ors [2000] 8 NWLR (Pt.670) 585; [2000] 5 SCNJ 101; Okoro v. The State [1988] 12 SC 191; Latunde and Anor v Lajunfin [1989] 5 SC59; Unity Bank Plc v Edward Bonari [2008] 7 NWLR (pt.1086) 372, 401; [2008] 2 SCM 193.

In the interest of brevity, therefore, we have embarked upon a concretion of only one issue for the determination of this appeal. It is, in the phraseology of the respondent’s-first issue:

Whether or not the Lower Court was right to have discountenanced the appellant’s contention that the third accused person admitted at the trial within trial that he voluntarily made the statement in issue

As will be seen in the course of this judgment, the resolution of this issue would, even, obviate the need for the dissipation of judicial energy in the consideration of the other issues which the appellant put forward. Due to their inextricable linkage with the Lower Court’s adverse findings against the appellant, the other issues are subsumed in the complaint that the said court, improperly, expunged exhibit AX from the record. Thus, the determination of the grievance ingrained in the above lone issue would suffice, Okonji v Njokanma [1991] 7 NWLR (pt 202) 131; Oro v Falade [1995] 5 NWLR (pt.396) 385. As, already, pointed out, his main agitation is against the Lower Court’s expunction of exhibit AX from the record. Put differently, therefore, a finding in favour of the restoration of the said exhibit as part of the record would, unarguably, douse the complaints in these other issues.