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.

On the second issue of whether the failure to call Monday Iweka to testify in the case was fatal to the case of the prosecution, counsel argued that the duty of the prosecution was that of calling material evidence sufficient to prove the case. That it had no duty to call a particular witness or number of witnesses, Reliance was placed on Section 179 of the Evidence Act E14 Laws of the Federation 2004. It was pointed out that failure of the prosecution to call Monday Iweka was not the fault of the prosecution and referred to pages 22 – 25 of the record. It was submitted that the failure to call a particular witness can only be fatal to the case of the prosecution if the said failure leads to the failure to prove essential ingredients of the offence or the omission of a material evidence. According to learned counsel, there was no evidence which Monday Iweka could have given which is not already before the court.

With respect to the third issue of whether the case was proved against the Respondent beyond reasonable doubt, learned counsel relied on OLADELE Vs NIGERIAN ARMY (2004) 6 NWLR (part 868) 166 and contended that the evidence of the four prosecution witnesses and Exhibits A1-D36 established the charge against the Respondent beyond reasonable doubt.

The substance of the arguments of Dr. Akin Onigbinde in the Respondent’s Brief is as follows: On the 1st issue, learned counsel agreed with the settled principles of law that an accused person can be convicted on the confessional statement alone and that confession is the best evidence in criminal law. lt was his submission however, that although the statement was admitted without objection, nothing prevented her from retracting same during her defence. It was further submitted that the lower court was right to subject the purported confessional statement to series of tests to ensure that it was direct positive and unequivocal. Learned counsel relied on the provisions of Section 28 of the Evidence Act. A confession even thought admitted in evidence would still be irrelevant if it appears to the court to have been induced by threat, inducement or promise, counsel argued. The court cannot close its eyes to circumstances which suggest that the Confession is not true, voluntary direct positive and unequivocal, he contended. Learned counsel referred to the case of SULE IYANDA SALAU Vs STATE (1971) NML & 249 and submitted that a court will not convict an accused person on a retracted confessional statement without first of all testing the probative value of same. It was the further submission of counsel that where a confession is subsequently retracted there should be some corroboration even if slight. He relied on Criminal Law and Procedure of Lagos, Eastern and Western Nigeria by Brett O Maclean 34th Edition at page 283 paragraph 345; DIBIE Vs STATE (2005) ALL FWLR (part 259) page 1995 at 2019 and 2018 – 2019; and OMASANYA MUMUNI Vs THE STATE (1975) 6 SC 79 at 94.

Learned counsel further argued that it is not every error of law that warrants the reversal of the judgment, and that to warrant a reversal, it must be shown that the error occasioned a miscarriage of justice. Reliance was placed on OLADEJO ADEWUYI AJUWODI Vs FADEKE AKANNI & 10 OTHERS (1993) NWLR (part 316) 182 at 205 and 206; ONAJOBI Vs OLANIPEKUN (1985) 4 SC (part 21 156 at 163 CHIEF OJE & ORS Vs CHIEF BABALOLA & OTHERS (1991); ONWUKA Vs OMOKUI (1992) 3 NWLR (part 230) 393.

With respect to the 2nd issue of whether the failure by the prosecution to call Monday Iweka to testify is fatal to its case, learned counsel described Monday, Iweka as the “anchoring” witness. Learned counsel referred to the evidence of the PW1 under cross-examination that Monday Iweka was arrested and later released from custody so that he could be used as a witness and wondered why his statement was not taken and recorded. He contended that Monday Iweka was not just a desirable witness; he was a material witness. It was counsel’s further contention that if the link provided by Monday Iweka in broken, the prosecution’s case of possession is also broken. He pointed out that it was Monday’s confession that triggered the arrest of the Respondent. It was counsel’s further argument that all the evidence of the prosecution about Monday Iweka’s s story about the Respondent being the owner of the drugs is hear say evidence. In conclusion it was urged that the appeal be dismissed.

In the Appellant’s Reply brief learned counsel for the Appellant argued as follows. With respect to the 1st issue learned counsel argued that where the error of law substantially affected the outcome of the decision, then it can lead to a reversal of the decision. Reliance was placed on EZE OBIEFUNA (1995) 7 NWLR SCNJ 75 at 91 and ADEWUNMI Vs EKITI STATE (2002) FWLR (part 92) 1835 at 1869 – 1870. Learned counsel pointed out that the error of law committed by the Lower Court was its view that a trial-within-trial was necessary and which view led to its finding that the statement was not voluntary.

Relevance, counsel argued, is the basis of admissibility and therefore that a piece of evidence which is not relevant is inadmissible, Learned counsel submitted that the test of relevance of a confessional statement is its voluntariness and once the statement was admitted on the ground that it was voluntarily made, the court cannot turn round to hold that it was not relevant simply because the accused subsequently denied its voluntariness.

On the 2nd issue of whether the failure of the prosecution to call Monday Iweka as a witness was fatal to the prosecution’s case, learned counsel referred to the case of AFOLABI Vs THE STATE (2010) 16 NWLR (Part 1220) 584 at 616 in which it was emphasized that the right of the prosecution to call witnesses to prove its case was not a mere privilege but a prerogative. Counsel argued that where the prosecution failed to call a particular witness, nothing stops the defence from calling the witness. He relied on OLAYINKA vs STATE (2007) 9 NWLR (part 1040) 561; IMHARIA Vs NIGERIAN ARMY (2007) 14 NWLR (part 1053) 76. Although Monday Iweka was a desirable witness, he was not a vital witness, counsel argued. It was counsel’s final submission that on the basis of the evidence before the court, the prosecution proved its case against the Accused/Respondent beyond reasonable doubt and urged that the appeal be allowed.

Let me now try to resolve the issues raised in this appeal. The first question is whether in the circumstances the statement of the Accused/Respondent was admissible and rightly so admitted. On this question the proceedings at the trial court on the 10/4/2008 are relevant. On that day the Accused/Respondent was represented by her counsel, Imam Fulani Isa Esq. Mrs. M.O. Adeleye was for the prosecution. The relevant witness for the prosecution was the PW2 Mustapha Muhammed Na’la. At page 16 of the record he narrated how he recorded the statement and eventually tendered the statement. Part of his evidence runs thus:-

The accused was referred to me for recording her statement. She told me she understood English. I read and explained the cautionary words to the accused. She said she understood. I wrote her statement and she thumb printed it. I signed as the recording officer. She asked me to write it because she could not.

After I finished, I took the accused to my superior officer DSN Bala Usman. He read the statement to the accused who understood it before he counter signed. If I see the statement I can recognize it through my handwriting and signature. I see this statement, it is the one recorded.

“Pros – seek to tender the statement of the accused dated 26/2/08 in evidence.

Mr. Isa – No objection

Court – The statement of the accused person dated 26/2/08 is admitted in evidence as exhibit PW2A. It is taken as read”.

And so the statement was admitted without objection on the 10/4/08. Involuntariness and/or admissibility was not raised as an issue.

On the 14/10/08 when the Accused/Respondent testified she raised the issue of duress. According to her she was handcuffed and that cuffs were also put on her legs; she was also beaten and forced to thumb print Exhibit “2A” the alleged confessional statement. Thus the Accused/Respondent raised the issue of duress and involuntariness six months after the statement had been admitted in evidence without objection. The question is whether admissibility could still be made an issue on the 14/10/08 when the Accused/Respondent testified. I shall answer this question in the negative. The appropriate time to raise the issue was on the 10/4/08, when after laying the necessary foundation, the prosecution applied to tender the statement in evidence. On that 10/4/08 the Accused/Respondent had all the opportunities to raise, through her counsel, the issue of involuntariness of the statement. The trial court would then have had a duty to conduct a trial-within-trial to determine that issue of whether the statement was made under duress.

On this question of the appropriate point in a criminal trial at which to raise the issue of involuntariness of a confessional statement, the learned trial judge at page 122 of the record reasoned and found as follows:-

“To begin with this issue of duress was not raised when the prosecution tendered the confessional statement in evidence. Neither the defence counsel nor the accused person objected to the admissibility of the statement. In fact I remember vividly that when the prosecuting counsel applied to tender the confessional statement in evidence through the PW2, the statement was handed over to the defence counsel who moved over to the accused in the box and made some consultation with her. We waited for some time while this was going on before the counsel said there was no objection to the admission of the statement in evidence and the court admitted same.”

The learned trial judge referred to NWACHUKWU Vs THE STATE (2004) 17 NWLR (part 902) 262 at 273 and OKARO Vs THE STATE (1988) 2 NWLR (part 81) 214 and the finding of the Court of Appeal therein and found as follows:

“The Court of Appeal further held that where a confessional statement has been tendered and admitted without objection, its later retraction cannot vitiate the proceedings. I therefore agree with the prosecution’s counsel that the retraction of the confessional statement is an after thought. The statement stands as evidence against the accused person and I so hold.”

Can the above reasoning and conclusion of the learned trial judge be faulted. I do not think so. The learned trial judge was, in my view, properly guided by the law as to the appropriate point to raise an issue of involuntariness and thus the inadmissibility of a confessional statement. If, on the 10/4/08 when the prosecution sought to tender the confessional statement in evidence the Accused/Respondent had objected to it’s admissibility on the ground that it was made under duress, the trial court would have been under a bounden duty to try that issue of involuntariness in a trial-within-trial. See OBIDIOZO Vs STATE (1987) 4 NWLR (part 67) 748; OJEGELE Vs STATE (1988) 1 NWLR (part 71) 414; ONYEJEKWE Vs. STATE (1992) 3 NWLR (part 230) 444. Therefore on the 14/10/08 when the Accused/Respondent raised the issue of duress in the course of her evidence the admissibility of the statement had been mutually settled. It could not have been re-opened. The Accused/Respondent was however at liberty to raise involuntariness as a defence. Nothing prevented her from doing so. The duty of the court at that stage was to assess its credibility and found upon it. And that is what the learned trial judge did. He examined and rejected the evidence, describing the defence as an afterthought. In the light of the conflict between her testimony in court and her previous statement to the police, the trial court had every reason to disbelieve her evidence.

Where a witness gives oral evidence which contradicts his or her previous statement in writing, that evidence should be treated as unreliable and liable to be rejected. See GABRIEL Vs STATE (1989) 5 NWLR (part 122) 475; OGOALA Vs THE STATE (supra).

And in particular, having regard to the fact that the finding arose from the trial court’s assessment of the credibility of the witness the court below ought not to have disturbed it in the absence of a strong reason to do so.

I consider it appropriate at this juncture to reiterate the legal principle that questions involving the assessment of the credibility of witnesses is the excusive preserve of the trial court which alone had the opportunity to hear, see and watch the demeanour of the witnesses in the witness box.

An appellate court which does not have that opportunity of hearing and watching the demenour of the witnesses should therefore be weary to interfere with a finding of a trial court on the credibility of a witness. See ASANYA Vs STATE (1991) 3 NWLR (part 180) 422; POPOOLA vs ADEYEMI (1992) 8 NWLR (part 257) 1. In this case the trial court assessed the defence of the Accused/Respondent that she made the statement under duress and rejected same. I do not, with respect, think that the court below had any conceivable reason to substitute its own findings for those of the trial court. As a matter of fact learned counsel for the Appellant at paragraph 4.29 at pages 15 – 16 of the Appellant’s brief pointed out that there was no issue of trial-within-trial and that the issue was raised by the court below suo motu. There is substance in this argument. I agree that there were no circumstances that warranted a trial-within-trial. Yet the court below predicated, its decision mainly on the need for a trial-within-trial. At pages 202 – 203 the court below, per Adamu JCA (as he then was) reasoned that in view of the testimony of the Accused/Respondent that she was handcuffed, detained, beaten up and forced to sign the statement the trial court ought to have conducted a trial-within-trial. The court below said:

“The learned trial judge in the present case should have looked at the above issues especially in view of what the appellant told the court that the officers took her to their office handcuffed her and put her in the cell after which she was brought out and they asked her to sign a statement with someone holding a horse whip with which he was beating her. At this stage the court (i.e. the trial court should have conducted a trial-within-trial to confirm the voluntariness of the confessional statement.”

The above finding demonstrates the court’s misconception of when a trial-within-trial becomes necessary.

The implication of not objecting to the admissibility of a statement held out by the prosecution as confessional is that it is the statement volunteered by the accused person. Where therefore an accused person denies the voluntariness of a statement he or she should so indicate by objecting to its admissibility at the time it is being tendered in evidence. It is then and only then that the issue of voluntariness would be tested at a trial-within-trial. In this case the PW2, who recorded the statement had testified in April, 2008. He said the Accused/Respondent volunteered the statement which he recorded. It was not suggested to him by way of cross-examination that the Accused/Respondent was handcuffed, locked up, beaten up and was forced to sign a prepared statement. At the end of his testimony he was discharged by the court. The PW3 also said he read the statement to the accused and she accepts that it was her voluntary statement. It was also not suggested to him that the statement was not voluntary. He too was discharged at the end of his evidence. It was only in October 2008, six months after, in the course of her testimony that she raised the issue of involuntariness of the statement. It is not surprising therefore when the trial court held that her plea of the statement not being a voluntary one was an afterthought. The court below therefore erred when it predicated its decision mainly on the need for a trial-within-trial, an issue which never arose.

On the first issue therefore I hold that the statement of the Accused/Respondent was admissible, its admissibility not having been challenged. I hold that it was admissible and rightly so admitted.

Still on the first issue the next question is whether the statement was sufficient to ground a conviction.

It has been settled in a long line of authorities that in appropriate cases an accused person can be properly convicted on his or her confessional statement alone. See OJEGELE Vs THE STATE (1988) 1 N.S.C.C. 276. Although it is always desirable to have some evidence outside the confession in further proof of the offence, the absence of such additional evidence would not necessary prevent a court from convicting on the confessional statement alone provided the statement satisfies the tests of being positive, direct and unequivocal. See QUEEN Vs OBIOSA (1962) 1 ALL NLR 651

In the statement Exhibit PW2A the Accused/Appellant gave some details about her possession of the drug cannabis sativa. According to her it was one boy called Felix from Agbese, Akure area of Ondo Stall that introduced her into selling the Indian hemp in bags on the commission of N500.00 on every bag she was able to sell. That on the 12/9/2007 the said Felix brought her 36 bags of the weeds. She was to keep them until the prices were higher before selling them. She became apprehensive of being detected by NDLEA officials and decided therefore transfer them to the house of one Monday Iweka her step son and kept them in a room under the pre that they were bags of garri. Following some information the 36 bags were recovered from the house of Monday Iweka and the Accused/Respondent admitted their ownership.

It is clear from the statement that the Accused/Respondent positively and unequivocally admitted that she committed the offence. A confessional statement made by an accused person, as in the instance case, and properly admitted in evidence is, in law, the best pointer to the truth of the rule played by such accused person in the commission of the offence. And such a confessional statement can be accepted as satisfactory evidence upon which alone the accused can be convicted. See OGOALA Vs THE STATE (1991) 2 NWLR (part 175) 509 at 534. In my view, the confessional statement of the accused/Respondent Exhibit PW2A alone was sufficient to sustain her conviction.

On the question of whether there is evidence outside the confession which tends to corroborate the truth of the confession, it is my view that the testimonies of each of the PW1, PW2 and PW3 provide same corroboration. In his evidence, the PW1 had this to say:-

“We requested to search the house and premises and we were allowed. We searched the room of Monday but we did not see any incriminating thing. But we saw a room that was locked with padlock. We asked Monday for the key, He said it was with his step mother, Faith Iweka. The room belongs to Monday because he owns the house. He told us that the accused kept stone bags of garri in the room. We told him we will break the room, he said we should. I broke the padlock of the room and we saw white sacks in the room. We asked Monday what they are; he said he does not know because it was the step mother who kept them. When I opened one of the bags, it contained some dried weeds which we suspected to be Indian hemp. We arrested Monday and he insisted that the bags were kept by his step mother while he was away. We took Monday and the suspected bags of dried weeds to our office. The accused followed me out of the house to our office. The bags recovered from the house of Monday were kept in veranda of our office. When the accused sighted the bags and Monday, she collapsed. She started screaming that she owns the bags not Monday and that she kept them in Monday’s house.” See pages 11 – 12 of the record.

The PW2 and PW3 each gave evidence which was in substance the same as the above. As I said, the evidence of these witnesses sufficiently corroborated the confession of the accused/Respondent. In the light of the foregoing, I resolve the first issue in favour of the Appellant.

The second issue raises the question of whether the failure to call Monday Iweka is fatal to the prosecution’s case. The issue itself seems to ignore the legal principle which I have restated above that a confessional statement which satisfies the necessary tests of voluntariness and satisfactorily proved in the best proof that the maker committed the offence and which alone validly sustains a conviction. See OGOALA Vs THE STATE (supra); OJEGELE Vs STATE (1988) 1 NWLR (Part 11) 414; UDO AKIAN Vs STATE (1986) 3 NWLR (Part 27) 258; OGBU Vs STATE (1992) 8 NWLR (part 259) 255. In my view, the duty of the prosecution is to establish the available evidence sufficient to prove the guilt of the accused person beyond reasonable doubt. It follows therefore, that where an accused person admits the commission of an offence through his voluntarily confessional statement the prosecution is relieved of any further duty of proof. In the instant case, having regard to the confessional statement of the accused/Respondent in Exhibit PW2A, the prosecution had no further duty of calling Monday Iweka. In my view the sustained arguments of the Respondent on this issue are merely academic.

The third issue had been sufficiently answered in my treatment of the first issue.

In conclusion, I hold that this appeal has merit and is accordingly allowed. The judgment of the Court below is hereby set aside. And that the trial court be and is hereby restored.

---

SC.454/2010