Federal Republic Of Nigeria V. Faith Iweka (2011)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, J.S.C.

The respondent was the accused person at the trial in the Ilorin Division of the Federal High Court. The charge dated the 18th March, 2008 reads as follows:-

“That you Faith Iweka (M) adult on or about the 26th day of February, 2008 at Kankatu Area in Ilorin, Kwara State within the jurisdiction of this Honourable court without lawful authority dealt in 296.1 kg Cannabis Sativa a drug similar to cocaine heroine, LSD and thereby committed an offence contrary to the and punishable under S.10(c) of the National Drug Law Enforcement Agency Act, Cap 253 Laws of the Federation of Nigeria 1990.”

The Respondent as accused pleaded not guilty to the charge. At the trial, the Prosecution called four witnesses. At the close of the case of the prosecution, learned counsel for the accused/Respondent made a no case submission. On the 12th May, 2008 the learned trial judge Bilikisu Bello Aliyu J. gave the ruling of the court, holding that the evidence of the prosecution was not discredited under cross-examination and that the accused therefore needed to state her own side of the story in rebuttal. The no case submission was therefore dismissed. The accused then gave her testimony in self defence. Written addresses were submitted by counsel both for the prosecution and the defence. These written addresses were adopted at the proceedings on the 2nd December, 2008.

In the judgment of the trial court on the 10th February, 2009, the accused/Respondent was convicted. And after a plea of allocutos the learned trial judge sentenced her to five (5) years imprisonment. The accused/Respondent was not satisfied with the judgment and proceeded on appeal to the Court below. The notice of Appeal was dated 3rd June, 2009. At the court below, briefs of arguments were filed and exchanged. In its judgment on the 30th of March, 2010, the appeal was allowed, the judgment of the trial court set aside and a verdict of discharge and acquittal entered for the Respondent.

The Appellant was not satisfied with the decision and has therefore come on appeal to this court. The Notice of Appeal contained five grounds of appeal. The parties filed and exchanged their briefs of argument. The Appellant’s brief was settled by Chuka Francis Agbu. It was filed on the 17th January, 2011. And the Appellant’s Reply Brief also prepared by Chuka Francis Agbu was filed on the 23rd February, 2011. The Respondent’s Brief was prepared by Dr. Akin Onigbinde. It was filed on the 9th of February, 2011. Learned counsel for the parties agreed on the issues for determination that properly arose from the grounds of appeal. The issues are as follows:-

(i) Whether the confessional statement of the accused person was admissible in the circumstance and sufficient to ground a conviction of the Respondent.

(ii) Whether the failure to call Monday Iweka a step son Respondent to testify in the case was fatal to the case of the prosecution.

(iii) Whether the prosecution has proved the case against the accused person beyond reasonable doubt.

The substance of the submissions of learned counsel for the Appellant is as follows:

With respect to the first issue of whether the confessional statement of the accused person was admissible and sufficient to ground her conviction, learned counsel reiterated the established legal principle that an accused person can be convicted on his confessional statement alone if its voluntariness is established and cited IKEMSON Vs STATE (1989) 3 NWLR (part 110) 455 SABURI ADEBAYO Vs AG OGUN STATE (2008) 7 NWLR 201 , ONWUMERE Vs THE STATE (1991) 4 NWLR (part 186) 428 at 430; AROGUNDADE Vs STATE (2009) 6 NWLR (part 1136) 165 and OSUAGU Vs STATE (2009) 1 NWLR (part 1123) 52. Learned counsel submitted that the trial court was properly guided by the above principle in its reaction at page 122 of the record of proceedings. He referred to the Respondent’s vivid account of how she procured the 36 bags of cannabis sativa and the trial court’s belief of same and submitted that the Respondent’s retraction of the statement in her evidence does not mean that the court could not act upon it. Reliance was place on AKINMOJU Vs STATE (2000) 6 NWLR (part 662); UBIERHO Vs STATE (2005) 5 NWLR (part 919) He referred to the findings of the Court below at page 203 of the record and argued that there were no circumstances that permitted a trial-within-trial to test the voluntariness of the statement, contending that the appropriate point to raise the issue of voluntariness of an alleged confessional statement is when it is being tendered in evidence. He relied on NWACHUKWU Vs THE STATE (2007) 5 NWLR (part 1027) 214 at 219; OKORO Vs STATE (193) 2 NWLR (part 28) 425. On this issue, learned counsel referred to the proceedings on the 10th of April, 2008 at page 16 of the record. It was counsel’s further submission that once a court has taken a decision on an issue, it becomes functus officio and cannot modify revisit or make another decision on the same issue. He relied on F.I.B. PLC Vs CITY EXP. BANK LTD (2004) 6 NWLR (part 869) 236 at 243 and MOHAMMED Vs. HUSSEINNI (1998) 14 NWLR (part 584) 108 at 138 – 139. The retraction of a confessional statement by an accused person in his evidence notwithstanding, the trial court which had the opportunity of watching the demeanour of the accused person can nevertheless rely solely on it to ground a conviction. Reliance was placed on DIBIE Vs STATE (2007) 9 NWLR (part 1038).

According to learned counsel, this case is distinguishable from OLAYINKA Vs STATE (2007) ALL FWLR (part 3073) 163 at 175 relied upon by the Lower court on the ground that therein the accused promptly raised the issue of involuntariness of the statement at the point it was sought to be tendered. He relied further on ADEGOKE MOTORS LTD Vs ADESANYA (1989) 3 NWLR (part 109) 250 at 275; ADESOKAN Vs ADETUNJI (1994) 5 NWLR (part 346) 540 at 577. On this issue, learned counsel referred to the affidavit of service deposed to on the 22nd April, 2008 at page 24 of the record and the Respondent’s retraction of the statement in her evidence on the 14th October, 2008 and pointed out that the Respondent retracted when she was sure that Monday Iweka would not be available to give evidence.

Learned counsel also pointed out that the involuntariness of the confessional statement and the need for trial-within-trial was not made an issue by the Respondent and that it was the court below that suo motu raised it. He referred to the Appellant’s Brief at pages 142 – 143 of the record and contended that the fulcrum of the arguments therein was on the weight to be attached to the confessional statement and not the involuntariness of the statement. He submitted that the court, being an empire cannot make a case for the parties, nor can it make a case different from that presented by the parties.

Assuming, without conceding, that the confessional statement was not corroborated, the Respondent could still be convicted upon it, learned counsel argued. He relied once more on NWACHUKWU Vs STATE (supra). Learned counsel referred to the evidence of the PW1 – PW4 which he described as consistent and argued that the trial court which alone has the benefit of watching the demeanour of the witnesses was entitled to believe the evidence and made the necessary findings. In the circumstances, learned counsel argued, the court below was not entitled to substitute its own findings for those of the trial court. Counsel relied on OSUAGWU Vs STATE (2009) 1 NWLR (part 1123) 531 at 543. He urged that this issue be resolve in favour of the Appellant.