Federal Republic Of Nigeria V. T. A. Dairo & Ors (2015)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C
Way back in November, 2009, the respondents in this appeal, [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 first respondent was, stoutly, resisted by counsel for all the accused persons.
PW10 was one Reuben Omosigbo, the principal Investigating Officer. The prosecution sought to tender the first respondent, T. A. Dairo’s statement of July 25, 2008, through him. Counsel for all the 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 [now, first respondent] 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 first respondent herein [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 first respondent 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 said first 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 five issues from its seventeen grounds of appeal. No issues were woven around the ninth and tenth grounds of the Notice of Appeal.
The respondents, rightly, urged this court to deem the said grounds nine and ten, from which no issues were formulated, as having been abandoned. We, entirely, agree with counsel. We, accordingly, order as prayed. The said grounds nine and ten are hereby struck out, as having been abandoned.
The implication is that there are only five issues for the determination of this appeal. They were framed thus:
- Whether the Court of Appeal was right when it held that it was regular and permissible for the first respondent to have argued his appeal upon two Notices of Appeal without withdrawing one
- Whether [the] appellant’s right to fair hearing was breached when the Court of Appeal failed, neglected or refused to rule one way or the other on the submissions of the appellant that the first respondent abandoned the case he presented at the trial while arguing his appeal at the Court of Appeal
- Whether in view of the express admission on the record by the first respondent 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
- Whether the Court of Appeal was right when it deliberately shut its eyes to the cold contents of the record of appeal before it and it then went ahead to make findings on facts not contained on the said record – to the prejudice of the appellant
- Whether the Court of Appeal judgment was contradictory in materials particular, resulting to adverse findings against the appellant
While the first and second respondents adopted the above issues, the third respondent, on the one hand; and the fourth and fifth respondents, on the other hand, re-phrased the said issues, although their gravamen remains the same. Although, the issues which the appellant put forward are, somewhat, woolly in their tenor, we shall, like the first and second respondents, adopt them for the determination of this appeal. After all, it is their appeal. We shall, however, deal with issues two and three together.
As will be seen in the course of this judgment, the resolution of issue three would, even, obviate the need for the dissipation of judicial energy in the consideration of issues four and five. Due to their inextricable linkage with the lower court’s adverse findings against the appellant, these two 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 said issue three would suffice, Okonji v Njokanma [1991] 7 NWLR (Pt 202) 131; Oro v Falade [1995] 5 NWLR (Pt 396) 395. All said, the main agitation of the appellant 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 issues three, four and five.
ARGUMENTS ON THE ISSUES
ISSUE ONE
Whether the Court of Appeal was right when it held that it was regular and permissible for the first respondent to have argued his appeal upon two Notices of Appeal without withdrawing one
When this appeal came up for hearing on November 13, 2014, S. T. Hon, SAN, who appeared with D. O. Pendo and G, T. Iorver, adopted the appellant’s Brief of argument fired on Jury 11, 2012. Learned senior counsel disagreed with the lower court’s approach to the interpretation of Orders 7 and 17 Rules (1) and (2) and 18 Rule (1) of the Court of Appeal Rules, 2011, [paragraphs 4.2 – 4.17, pages 5-9 of the said brief].
He cited and relied on a host of decisions of this court on the impropriety of reliance on two Notices of Appeal in the same appeal without withdrawing one of them, [paragraphs 4.19 – 4.22, pages 9-11 of the said brief]. He maintained that the utilisation of two such Notices of Appeal amounted to an abuse of process. He urged the court to resolve this issue in favour of the appellant.
Adegboyega S. Awomolo, SAN, learned senior counsel for the first respondent, who appeared with F. Folorunso and Jude Daniel Odi, adopted the first respondent’s brief of argument fired on September 18, 2012. Expectedly, he disagreed with the appellant’s challenge of the lower court’s approach, [paragraphs 3.0 -3.1 of the said brief]. He invited the court’s attention to its deliberate shift from technicalities to substantial justice. On his part, Kehinde Ogunwumiju, the ebullient counsel for the second respondent appearing with B. Adulodun and J. Agbe, adopted the brief filed on October 3, 2012.
He canvassed the view that two Notices of Appeal could be consolidated and relied upon, [paragraphs 4. 03 – 4.05; and paragraphs 4.08-4.14]. In his submission, the two Notices, which the first respondent filed, did not amount to an abuse of court process, [paragraphs 4.06 -4.07]. Both Olumuyiwa Akinboro, who appeared for the third respondent and Olusegun Jolaawo, for the fourth and fifth respondents adopted their respective briefs. Their arguments tallied with the effervescent contentions of counsel for the first and second respondents.
RESOLUTION OF ISSUE ONE
It would appear that the proximate impulsion to the appellant’s objection to the competence of the appeal before the lower court was its zeal to preserve the sanctity and integrity of the architecture of the appeal process. As it is well-known, it is a Notice of Appeal that initiates an appeal from a High Court to the lower Court, [see, Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011], Dingyadi v INEC (2010) LPELR -952 (SC) 60. Put differently, the Notice [actually, a competent notice of appeal] is the foundational process that triggers off an appeal from a High Court to the lower Court, Adelekan v. ECU-Line NV [2006] 12 NWLR (Pt. 993) 331 Uwazurike v AG Federation [2007] All FWLR (Pt 367) 834,835, paragraphs E-F, and sustains it, Okotie v Olughor [1995] 5 SCNJ 2171.
As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent, First Bank of Nigeria Plc v T. S. A. Ind Ltd (2010) LPELR -1283 (SC) 49, paragraphs A-D; Okeke Amadi v. Okeke Okoli [1977] 7 S C 57, 58; Adelekan v. ECU-Line NV [2006] 12 NWLR (Pt.993) 33; Okolo v UBN Ltd. [2004] 3 NWLR (Pt.859) 87; Ikweki v Ebele [2005] 11 NWLR (Pt. 936) 397; Akpan v Bob [2010] 17 NWLR (Pt. 1224) 421; General Electric Co. v Akande [2010] 18 NWLR (Pt.1225) 596; Thor v FCMB Ltd [2002] 2 SCNJ 85; Ebokam v Ekwenibe and Sons Trading Coy Ltd [1977] 7 SCNJ 77.
The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal court which must, as of necessity, strike out such a process, A.G. Fed v. Guardian Newspapers Ltd 1999 187; Odunze v Nwosu [2007] 13 NWLR (Pt.1050) 1; Agu v Odofin [1992] 3 SCNJ 161, 172 – 173; Ibeto v Aminu [2007] 5 NWLR (Pt.1028) 446; Danmusa v Inuwa [2007] 17 NWLR (Pt.1063) 391; Clev Josh Ltd. v Tokimi [2008] 13 NWLR (Pt.11-4] 422.
In effect, the absence of a competent Notice of Appeal, simply, translates to the non-existence of an appeal, Anadi v. Okoti [1972] 7 SC 57; CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488; Olanrewaju v. BON Ltd [1994] 8 NWLR (pt.364) 622; Olowokere v African Newspapers Ltd [1993] 5 NWLR (pt. 295) 583; Erisi v Idika [1987] 4 NWLR (pt.66) 503; Josiah Cornelius Ltd v Ezenwa [1996] 37 LRCN 618; Tukur v Government of Gongola State [1988] 1 NWLR (Pt. 68) 391; First Bank of Nig Plc v Maiwada (2012) LPELR -9713 (SC) 187. This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction, Okeke Amadi v. Okeke Okoli (supra); Okotie v Olughor (supra).
As noted earlier, in its ruling of March 1, 2011, the trial court found in favour of the voluntariness of the extra-judicial statement of the first respondent. Aggrieved, he filed a Notice of Appeal on grounds of law alone. Pursuant to the leave of that court, he filed another Notice of Appeal on grounds of mixed law. This was what prompted the present appellant’s objection at the lower court.
He contended that the appeal before the lower court was incompetent on the ground that the first respondent [who was the appellant before that court] filed and relied on two notices of appeal without withdrawing one. Specifically, at paragraph 4.3 of the appellant’s brief, learned senior counsel submitted that the lower court was “in grave error when it held that the first respondent was right in law to have filed and relied on two notices of appeal without withdrawing one.”
Although, counsel for the parties to this appeal expended considerable energy in their arguments on this issue, the question here is, really, a very narrow. In the first place, all counsel are unanimous in their interpretations of the decisions of this court on the propriety of filing two Notices of Appeal. We, entirely, endorse their contention on the first limb of this issue. The rationale of all decisions of this court on this is that it is permissible to file two Notices of Appeal within time. The cases are many indeed.
The prescriptions that crystallise from such cases may be summed up thus: the Rules of the lower court do not prohibit the filing of two or more notices of appeal, Abba Tukur v Government of Gongola State [1988] All NLR 42, 49; Ogboru v Uduaghan [2012] 11 NWLR (Pt 1211) 357. Although it may “look a bit awkward,” Akeredolu and Ors. v. Akinremi and Ors. [1986) 2 NWLR (Pt25) 710, or “somewhat too technical,” Hariman v Hariman (1987) 3 NWLR (Pt 60) 244], see, per Oputa JSC in Tukur v Government of Gongola State(supra), an appellant who, like the first respondent, files two such notices is not blameworthy for erring on the side of caution. The reason is simple: the ancient maxim – abundantia cautela non nocet [meaning “great caution does no harm”], first, endorsed in Heydon’s Case 11 Co. Rep. 5a at 6b, has been endorsed by this court, Tukur v Government of Gongola State (supra).
Where validly filed, an appellant would be right to apply for leave to either consolidate such notices into one or to withdraw all except one of them, Tukur v Government of Gongola State (supra).
Thus, where such an appellant, timeously, withdraws one of the two notices which are of the same nature, his process would not be an abuse of process, Diamond Bank Ltd v P. I. C. Ltd [2010] All FWLR (Pt 512) 1098, 1126, C-F. In effect, an appellant can, validly, withdraw one of two notices of appeal and then proceed to argue his appeal on the outstanding notice of appeal, Savannah Bank of Nigeria Plc v CBN [2009] All FWLR (Pt 481) 939, 969. As a corollary, the notice of appeal, which was withdrawn, would be deemed abandoned, Diamond Bank Ltd v P. I. C. Ltd (supra) at 1126 C-F.
The Constitution of the Federal Republic of Nigeria (as amended) creates categories of rights of appeal from the trial court to the lower court. While section 241 consecrates appeals as of right from the Federal High Court or a High Court, section 242 ordains rights of appeal with the leave of the Federal High Court; High Court or the Court of Appeal. In effect, the exercise of each category of a right of appeal would warrant the filing of a Notice of Appeal. Thus, an appellant, desirous of exercising both rights, could file two Notices of Appeal within time. As Oputa JSC put it in Tukur v Government of Gongola State (supra):
To utilise and exercise any right of appeal, an appellant is obliged and obligated by the Rules to file a Notice of Appeal. Where therefore the Constitution gave one and the same Appellant in one and same case two rights of appeal – one as of right, without leave, and the other qualified by and limited to the grant of leave – there and then it is logical to conclude that for each right of appeal being exercised one Notice of Appeal is required so that for the exercise of the two constitutional rights two Notices of Appeal will technically be required.
It would seem obvious that this was what guided the first respondent’s approach in filing two Notices of Appeal against the said ruling of the trial court/ the first notice, on grounds of law alone; and the second notice/ on grounds of mixed law and facts. It is instructive to note that, having filed two notices of appeal as aforesaid, the first respondent, as the lower court explained at page 542 of Vol 2 of the record,
…in his brief of argument … filed on 07/04/2011 in paragraph 3.01 seeks [sic, sought] the permission of the court to consolidate the two notices of appeal as one and rely on the seven Grounds of appeal by numbering them serially as Grounds 1-7 in the two Notices of appeal…
At page 545 of the record, the lower court noted that “the germane point is whether the appellant can make an application for consolidation in his brief of argument.” It acknowledged that: “…applications in a brief of argument as in the instant appeal, for consolidation is (sic) irregular…” Nevertheless, it took the view that:
… since this is a criminal appeal and the nature of irregularity will not prejudice the respondent who objected to the procedure of the application in the brief not the merit of the application for consolidation. (sic) It is my firm view that it is just in the circumstances to allow the consolidation of the two notices.
[Italics supplied]
As pointed out above, it was the contention of the learned senior counsel for the appellant that the lower court was in grave error when it held that the first respondent was right to have filed and relied on two Notices of Appeal. The question then would be: did the first respondent utilise the two notices of appeal in the appeal In order to answer this question, we shall re-iterate the point we had made earlier in this judgment. In the appeal before the lower court, the first respondent herein [as appellant] exercised two rights of appeal recognised by the Constitution, namely, appeal as of right [by his first Notice of Appeal] and an appeal with leave on grounds of mixed law and facts [see, the second Notice of Appeal]. However, he failed to apply for the consolidation of the two Notices prior to the filing of his brief of argument. It was in the brief that he applied for consolidation.
As noted already, the lower court characterised this approach as irregular. All the same, it still granted the entreaty for consolidation. In effect, the two Notices, by the order of the lower court, were consolidated into one resulting in the re-numbering of the grounds. Thus, of the two options which Obaseki JSC outlined in Tukur v Government of Gongola State (supra), namely, either to apply for the consolidation of the two Notices into one or to apply to withdraw one of the Notices, the appellant opted to apply for the consolidation of the said two Notices into one. The lower court granted him the indulgence.
Citing order 17 Rule 2 and Order 8 Rule 1 of the Rules of the lower court, [paragraphs 4. 8- 4.13 of the appellant’s brief], learned senior counsel for the appellant urged the court to invalidate the first respondent’s Notice of Appeal filed at the lower court. With due respect, this entreaty to invalidate the said Notice of Appeal is, simply, an invitation to enthrone technicality over the substance of justice. We, entirely, agree with the lower court that, in the circumstances, it was just to allow the application for consolidation.
In our view, it would have been, utterly, unfair to strike out the appeal just because, as learned senior counsel for the present appellant argued, “Order 18 [of the Court of Appeal Rules, 2011] has made provisions for contents of Briefs of Arguments and there is no provision therein that ‘applications’ should also be contained in such Briefs,” paragraph 4.11, page 7 of the appellant’s Brief].
True, indeed, this interpretation of the ambit of the above Rule of the lower court, actually, typifies one of those ironies of the law. Rules of court, particularly, provisions apropos Brief writing, were prompted by the philosophical quest for speedy trial and expeditious disposal of matters.
Somehow, legal practitioners have managed to nibble at this objective by resorting to their inexhaustible arsenal of forensic theatrics designed to filibuster proceedings.
We are, therefore, compelled to re-iterate the point that this court, and indeed, any other court for that matter, will not brook the practice where technical justice is accorded such free rein that is capable of overwhelming the substance of justice, Hamba v Hueze (2001) 12 WRN 64; (2001) 4 NWLR (Pt 703) 373, 389-391; Aderounmu v Olowu (2000) 4 NWLR (Pt 652) 252, 256-266.
Simply put, the wheels of justice must be at liberty, just like the chariot of juggernaut, to coast on their course, unbridled by such disingenuous manoeuvres, deliberately, programmed to clog their majestic movement, Military Administrator of Benue State v Ulegede (2001) 51 WRN 1, 15-16; (2001) 17 NWLR (Pt.74) 194; (2001) 91 LRCN 3044; (2001) 70 SCNJ 43.
That explains why, even long before the introduction of the Brief System, this court had looked with askance at the situation where technical rules became so triumphant that, often times, the justice of the case before the court was left lying prostrate, see, for example, Oputa JSC in Aliu Bello and Ors v AG Oyo State (1986) 5 NWLR (Pt 45) 528, 886.
What is more, as Tobi JSC observed in Abubakar v Yar’ Adua [2008] 4 NWLR (Pt 1078) 465, 511:
It is a known fact that blunders must take place in the litigation process and because blunders are inevitable it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case.
In our view, therefore, the lower court was in the good company of this court when it, stoutly, refused to make the first respondent in this appeal [appellant at the lower court] “to incur the wrath of the law at the expense of hearing the merits of the case,”
The lower court, having granted the first respondent the indulgence to consolidate the said two Notices of Appeal, the contention that the said first respondent relied on “two Notices of Appeal in the same appeal without withdrawing one,” [paragraph 4.18, page 9 of the appellant’s brief] would seem to miss the import of the libertarian interpretation of Obaseki JSC in Tukur v Government of Gongola State(supra).
Now, learned senior counsel, also, contended that there “is indeed an abuse of process when two processes of the same nature have been filed without one of them being withdrawn, as in this case,” [paragraph 4.23, page 11 of the appellant’s brief]. The lower court, as indicated earlier, granted the first respondent the indulgence to consolidate the two Notices of Appeal. As such, it would be incorrect to maintain that “two processes of the same nature have been filed without one of them being withdrawn, as in this case.” In the first place, the two Notices of Appeal were disparate. In the appeal before the lower court, the first respondent herein [as appellant] exercised two rights of appeal recognised by the Constitution, namely, appeal as of right [by his first Notice of Appeal] and an appeal with leave on grounds of mixed law and facts [see, the second Notice of Appeal dated].
Even then, the concept of abuse of process applies only to proceedings which are bereft of good faith; which are not only frivolous, but also vexatious or oppressive; which, almost always, have an element of malice in them, having been commenced mala fide, to irritate or annoy the opponent, Okafor v AG Anambra [1991] 6 NWLR (Pt 200) 659 and the efficient and effective administration of justice, Ekpuk v Okom (2001) 44 WRN 85; Saraki v Kotoye [1992] 9 NWLR (Pt 264) 156, 188.
They include instances where there are a multiplicity of actions on the same subject matter against the same opponent on the same issue; Okorodudu v Okoromadu [1977] 3 SC 21; NV Scheep v MV. “S. Araz” (2000) 15 NWLR (Pt 691) 622. Such abuse lies more in the multiplicity of the actions rather than in the exercise of the right, FRN v Abiola (1997) 2 NWLR (pt 488) 444; Owonikoko v Arowosanye (1997) 10 NWLR (Pt 523) 61; Morgan v W.A.A. & Eng. Co. Ltd (1971) 1 NWLR 219.
We, entirely, agree with counsel for the respondents [paragraph 4.06 et seq of the first respondent’s brief, for example,] that since the first Notice of Appeal was filed on grounds of law alone while the second Notice of Appeal was on grounds of mixed law and fact, after leave of the trial court had been sought and obtained, there could not have been a multiplicity of actions in the circumstance. This contention is unanswerable.
Given the above scenario, it is very difficult to pitchfork the first respondent’s approach at the lower court into any of the circumstances constitutive of abuse of process as eloquently highlighted in several decisions of this court, see, for example, CBNV Ahmed [2001] 11 NWLR (Pt724) 369; Amaefule v State [1988] 2 NWLR (Pt 75) 156, 177; Ntuks v NPA [2007] 13 NWLR (Pt 1051) 392, 419-420; Aruba v Aiyeleru [1993] 24 NSCC (pt 1) 255; 7up Bottling Co Ltd v Abiola and Sons Bottling Co Ltd [1996] 7 NWLR (pt 463) 714; Umeh and Anor v Iwu and Ors (2008) LPELR -3363 (SC) 21; Ogoejeofor v Ogoejefor [2006] 3 NWLR (pt 966) 205; Adigun and Ors v Secretary Iwo Local Government and Ors [1999] 8 NWLR (Pt 613) 30 etc. In all, we find no merit in the appellant’s complaint on this issue. We, therefore, resolve it in favour of the respondents.
ISSUES TWO AND THREE
Whether [the] appellants right to fair hearing was breached when the Court of Appeal failed, neglected or refused to rule one way or the other on the submissions of the appellant that the first respondent abandoned the case he presented at the trial while arguing his appeal at the Court of Appeal
AND
Whether in view of the express admission on the record by the first respondent 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
On Issue two, it was pointed out, on behalf of the appellant, that [while at the lower court], the first respondent [appellant at the lower court] abandoned his ground of his objection at the trial court [that the said confession eventuated from a question and answer session]. Counsel explained that the first respondent [while at the lower court] contrived entirely new grounds, namely, threat to life and promise of advantage: grounds which, in his view, amounted to an afterthought. He pointed out that the lower court, equally, abandoned the said ground canvassed at the trial court and opted for the new grounds of threat or promise of advantage. He submitted that this approach amounted to a grave miscarriage of justice, [paragraphs 4. 30 – 4. 48; pages 13- 18 of the brief].
With regard to the third issue, he drew attention to the express admission which the first respondent made to the effect that he made and signed the disputed statement [exhibit AX] voluntarily. He impugned the lower court’s refusal to endorse the said statement as a voluntary admission, [paragraphs 4.50 – 4.94; pages 19 – 32 of the brief].
Chief Awomolo, SAN, for the first respondent, devoted pages 10- 24; paragraphs 4. 0 – 5. 6, of the brief to spirited attempts at dismantling the main plank of the appellant’s submissions above. On his part, Kehinde Ogunwumiju, for the second respondent took the view that the lower court clearly resolved this point [paragraphs 5. 04- 5.05]. He canvassed the view that the first respondent never abandoned his ground of objection at the lower court, [paragraphs 5.06 -5. 07]. He observed that the law does not forbid a party from arguing or relying on issues raised by other parties, [paragraph, 5.08]. He pointed out that the notice of the nature of the objection to be raised was given by the respondents, [paragraphs 5.09 -5 .17].
Arguments offered on behalf of the third respondent, with regard to the second and third issues, were predicated on the same grounds as those proffered by the other respondents, [paragraphs 4. 1- 5.33; pages 10 -20 of the third respondent’s brief]. Counsel for the fourth and fifth respondents saw no justification in the agitation of the appellant on the second issue, [paragraphs 5. 01-5.10].
With regard to the third issue, counsel for the fourth and fifth respondents contended that the first respondent did not use the word “voluntarily” meaning in effect that his answer was limited to an admission that he signed the statement, [paragraphs 6.01 – 6.27 of the brief].
RESOLUTION OF ISSUES TWO AND THREE
By way of preliminary observations, we note that, except in such recognised exceptions as established in cases like Okonji v Njokanma [1991] 7 NWLR (Pt 202) 131; Oro v Falade [1995] 5 NWLR (Pt 396) 385, citing Anyaduba & Anr v. Nigerian Renowned Trading Co. Ltd (1992) 5 NWLR (Pt. 243) 535; Balogun v Labiran (1988) 3 NWLR (PT. 80) 66 at 80, the long-established rule is that an intermediate court has a duty to pronounce on all material issues placed before it, Samba Petroleum Ltd and Ors v UBA PLC and Ors [2010] 6 NWLR (pt ) 530, 531; Brawal Shipping v Owonikoko [2000] 6 SCNJ 508, 522; Federal Ministry of Health v Comet Shipping Agencies Ltd. [2009] 9 NWLR (Pt. 1145) 193; Adeogun v. Fasogbon [2011] 8 NWLR (Pt. 1250) 427; Ovunwo v. Woko (2011) 17 NWLR (Pt.1277) 522 etc.
In its second issue, the complaint of the appellant was that there was a breach of its right to fair hearing when the lower court failed, neglected or refused to “rule one way or the other on the submission…that the first respondent abandoned the case he presented at the trial court while arguing his appeal…” It was contended inter alia that the learned senior counsel for the first respondent, in his written address at the lower court, abandoned the sole ground he raised against the admissibility of the confession.
The point was made that, at the trial court, the said confession was impugned on the ground that it eventuated from a session of question and answer. However, an appeal to the lower court, counsel contrived an, entirely, novel ground for impeaching the said confession, namely, that of alleged threat to life.
In our view, the records of the courts below will either bear out the truth of this claim or expose is falsity. At page 225 of the record, counsel for the first respondent was recorded as follows:
I am objecting because from the statement of the witness as (sic) the procedure, it is not voluntary. Where a statement is (sic) obtained in the process of question and answer, we urged (sic) the court to reject (sic). It is the duty of [the] prosecution to prove its voluntariness.
[Italics supplied for emphasis]
In its ruling, the trial court, at page 314 of the record, noted that;
The tendering of the said statement was objected to by learned counsels [sic, counsel] to the accused persons as follows: third accused counsel (sic)
I am objecting to the admissibility of the statement of the third accused person the procedure is not voluntary. Wherein the statement obtained in the process of question and answer is admissible in evidence…
In view of the objection of learned counsels (sic, counsel) to the accused persons to the admissibility of the statement of the third accused person sought to be tendered, the court thereby ordered trial-within-trial…
[Italics supplied for emphasis]
As noted earlier, the first respondent was dissatisfied with the trial court’s finding in favour of the admissibility of the said statement, hence his appeal to the lower court. An intimate reading of the records shows that the arguments of the appellant’s counsel before this court that the sole ground of objection at the trial court was predicated on the ground that the said statement was a product of question and answer is not, with respect, well-taken.
As shown above, the objection on page 225 of the record was premised on the involuntariness of the statement. At page 570 of the record, the lower court observed that:
When the appellant and the other accused persons objected to the admissibility of the statement, the grounds of objections were that (sic) statement was based on question and answer and contravention of section 28 [now section 29] of the Evidence Act. The grounds of the objection put the prosecution on notice and formed the decision of the trial court to order trial within trial.
If the objection was based, inter alia, on the ground that the prosecution contravened the provision of section 28 of the Evidence Act [then in force] in the process of obtaining the said statement, would it then be correct to contend, as the appellant’s counsel did before us, that the sole ground canvassed in opposing the admissibility of the said statement was the fact that it was a product of question and answer We do not think so.
We do not find any merit in the appellant’s contention that the lower court failed, neglected or refused to make a pronouncement on the submission that the first respondent abandoned the case he presented at the trial court while arguing his appeal at the appeal court. From the above excerpts, we entertain no doubts that the lower court, actually, dealt with the said complaint of the appellant. Against this background, we agree with counsel for the respondents that the lower court pronounced on all the issues raised. We find no merit in the complaints in this issue.
With regard to issue three, counsel for the appellant pointed out that the first respondent, expressly, admitted that he made and signed the disputed statement voluntarily. He drew attention to several pages of the record. Before proceeding further, we pause here to observe that what prompted the trial-within-trial at the trial court was the objection of counsel for the third accused person [first respondent in this appeal] that his statement was not made voluntarily. In other words, the whole essence of the said mini trial was to find out whether, indeed, the said statement was made voluntarily.
Counsel for the appellant drew attention to the fact that the said appellant was not in doubt as to the nature of the judicial process which the objection had prompted, namely, that the mini trial was embarked upon for the sole purpose of ascertaining whether he made the said statement voluntarily. At page 296 of Volume 1 of the records, he described himself as a Chemistry graduate from the University of Lagos and a civil servant since 1987. We, entirely, agree with senior counsel for the appellant that a person, such as the first respondent, a University graduate, knew or ought to know the import of the claim that a statement was made involuntarily.
Notwithstanding the fact that the mini trial was, indeed, prompted by the claim that the said statement was not made voluntarily and, as such, the essence of the said trial was to ascertain whether the statement was voluntarily made, under the heat of cross examination, the first respondent admitted that he, actually, signed it. The responses elicited from him during cross examination at the mini trial underscore the futility of the gallant attempts which learned counsel made in their submissions to rescue him from the consequences of his own admission. Listen to this:
Question: Is that your signature on the statement
Answer: Yes [it] is my signature.
Question: You voluntarily signed the document [Italics supplied for emphasis]
Answer: I signed it.
[see, page 276 of Volume 1 of the Records]
That is not all. Two further responses at page 291 of Volume 1 of the Record expose the poverty of the fallacious contention that the said statement was made involuntarily. Hear his responses to other questions under cross examination during the trial-within-trial:
Question: When did you start writing the statement in issue
Answer: I started writing the statement at about 8.30 pm.
Question: Have you signed the statement
Answer: Yes I signed but the officer did not allow me to put time,
[page 291 of Volume 1 of the Records, italics supplied for emphasis]
Finally, the response elicited from him at 294 of Volume 1 of the Records put paid to any insinuations as to the involuntariness of the said statement:
Question: You signed the statement page by page…
Answer: Yes I signed.
[Italics supplied for emphasis]
Even in the face of these crystal responses, learned senior counsel for the first respondent contended that admission “of signing the statement, exhibit AX, is certainly not synonymous with ‘I signed’ the statement, exhibit AX voluntarily,” [page 182 of the first respondent’s brief; see, also, paragraph 6.11, page 21 of the second respondent’s brief; paragraphs 5.4-5.8. page 14 of the third respondent’s brief and paragraph 6.03 et seq of the fourth and fifth respondents’ brief]. The lower court, equally, found “no admission on any of the pages referred to by learned senior counsel for the first respondent that the appellant admitted the statement was voluntary,” [page 584 of the record].
On our part, we find considerable merit in the proposition by the appellant’s counsel that “if a witness is asked ‘you voluntarily signed the statement’ and he answered ‘I signed it,’ that clearly is an unequivocal admission that the signing was voluntary.” In this particular instance, the con of the above responses cannot be wished away. As indicated earlier, the very essence of the mini trial was to determine the voluntariness of the said statement.
Indeed, the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial court with a procedural mechanism for sifting the chaff of involuntary, and, hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable.. The cases on this point are legion: they are countless. Only one or two of them will be cited here, Ogudo v The State [2011] 12 SC (pt 1) 71; Ibeme v The State (2013) LPELR -20138 (SC); Auta v State [1975] 4 SC 125; Effiong v State [1978] 8 NWLR (Pt 562) 362; Lasisi v State (2013) LPELR -20183 (SC) 29; The State v Rabiu (2013) LPELR – 19982 (SC); Ogudu v The State (2011) LPELR -860 (SC); Nwangbonu v State [1987] 4 NWLR (pt 67) 748; Ogunye v State [1999] 5 NWLR (Pt 664) 548, 570.
Scholars are, also, unanimous on this issue, I. H. Dennis, The Law of Evidence [Second Edition] (London: Sweet and Maxwell, 2002) 184; L. O. Aremu, “The Voluntariness of Confessions in Nigerian Law,” in 1977-1980 Nigerian Law Journal, 32; J. Amadi, Contemporary Law of Evidence in Nigeria [Vol 1] (Port Harcourt: Pearl Publishers, 2011) 324; M. A, Owoade, “Voluntariness of Confessions in Nigerian Law – Need for Reform,” in 1987 Nigerian Current Law Review 179.
We, thus, endorse the forceful submission of the appellant’s counsel that “having admitted that the confession was voluntary – when the first respondent fully knew that the voire dire was being conducted to test the same voluntariness, the prosecution [appellant] needed not prove voluntariness again,” [paragraph 4.68, page 24 of the appellant’s brief]. We, entirely, agree with this submission.
It could not have been otherwise since under the Evidence Act [in force at the material time], a confession and an admission enjoyed the same ranking in equipollence, Saidu v The State (1982) LPELR -2977 (SC) 18, paragraphs B-D; Ibemev The State (2013) LPELR -20138 (SC); Bright v The State (2012) LPELR -7841 (SC) 20, paragraphs B-C; Kasa v The State [1994] 5 NWLR (Pt 344) 269; Nwachukwu v The State (2007) LPELR -8075 (SC) 35, paragraphs E-F; Gira v State [1996] 4 NWLR (Pt. 443) 375; Sam v State [1991] 2 NWLR (Pt 176) 699; Dogo v The State (2013) LPELR -20175 (SC; Lasisi v The State (2013) LPELR -20183 (SC) 50-51, paragraphs G-B; Odeh v FRN [2008] 13 NWLR (pt 1103) 1; Chiokwe v The State (2012) LPELR -19716 (SC) 32-33, paragraphs G-B; T. A. Aguda, Law and Practice Relating to Euidence in Nigeria [Second Edition] (Lagos: MIJ Professional Publishers Ltd, 1998) page 73.
As such, the first respondent’s admission of having voluntarily signed the said statement was tantamount to a confession which case law characterises as the best form of evidence in a criminal trial, Musa v State (2013) LPELR -19932 (SC); Nwachukwu v State [2008] WRN (pt 4) 1, 9-10; 32-33; (2007) LPELR -8075 (SC) 37, paragraph A-B; Adebayo v AG, Ogun State [2008] 7 NWLR (pt 1085) 221; (2008) LPELR -80 (SC) 23, paragraphs C-E.
Other cases include: Chiokwe v State, Solola v State [2005] All FWLR (pt 269) 1751; Jimoh Yesufu v The State [1976] 6 SC 167, 173; Queen v Obiasa [1962] 1 SCNLR 137; Nwaebonyi v The State (1994) LPELR -2090 (SC) 25-27; Timothy v FRN (2012) LPELR – 9346 (SC); Edamine v The State (1996) LPELR -1002 (SC) 12, paragraph B.
We must quickly observe, however, that in this judgment, we are not concerned with the issue of the desirability or otherwise of having some corroborative evidence, outside the confession, no matter how slight, of circumstances which make it probable that it is true and correct as the courts are not, generally, disposed to act on a confession without testing the truth thereof, Onochie and Ors v The Republic (1966) NMLR 307; Jafiya Kopa v. The State (1971) 1 All NLR 150; R. v. Sykes (1913) 8 C. A. R. 233, 236; Ejinma v The State [1991] 5 LRCN 1640, 1671; Arthur Onyejekwe v The State [1992] 4 SCNJ 1, 9; [1992] 3 NWLR (Pt. 230) 444.
Equally, the issue before us is not the question of the rules to be complied with before deciding the weight to be attached to such a confession, Rex v. Sykes (supra) Kanu v The King (1952) 14 WACA 30; Dawa v The State [1980 8 – 11 SC 236; The Queen v. Obiasa (1962) 1 All NLR 651; [1962] 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Onochie v The Republic (supra).
It would even appear that counsel for first respondent [indeed other learned counsel for the respondents] and the lower court lost sight of one major factor which prompted the trial court’s said finding in favour of the voluntariness of the said exhibit AX. There were only two witnesses at the mini trial. They were Ptw1, who testified for the prosecution and the third accused person [first respondent in this appeal], who testified as Dtw1.
In effect at that forensic ring of the mini trial, the testimonies of these two witnesses squared up in a contest for the distillation of the truth or falsity of the allegation of the involuntariness of the said statement. As the umpire, whose sole duty was to ascertain the victor in that contest for the determination of the voluntariness or otherwise of the said statement, the very cause of the dispute, the trial court, after watching “the demeanour of witnesses in the instant case,” [page 315 of the records], found in favour of the admissibility of exhibit AX.
The error of the lower court stemmed from the fact that it did not advert to a point which is well-established in a long line of cases that a finding of fact based on demeanour is one of those exclusive prerogatives of a trial court which appellate courts do not make the habit of interfering with, Olarenwaju v Governor of Oyo State; Sokwo v Kpongbo; Woluchem v Gudi [1981] 5 SC 319, 326; Fatoyinbo and Ors v Williams (1956) 1 FSC 87; Kodilinye v Mbanefo Odu 2 W.A.CA. 336, 338; Ramonu Atolagbe v Olayemi Shorun [1985] 1 NWLR (Pt 2) 360; Mogaji v Odofin [1978] 4 SC 91; Obimnya v Nwoko [1974] 6 SC 69; Okuoja v Ishola [1982] 7 SC 31.
The reason for this is simple: the trial Court saw the witnesses, heard them, and watched their demeanour in the witness-box. It was, thus, in a very peculiar vantage position to believe or disbelieve them. That advantage can never be recaptured by an appellate Court which, accordingly, is thus bound to accept the judgment of the trial Court on matters of credibility, Adelumola v The State (1988) LPELR -119 (SC); Ebba and Ors v Ogodo and Ors [1984] 4 SC 84; [1984] 1 SCNLR 372; Motunwase v Sorungbe [1988] 5 NWLR (Pt 92) 90; Akpakpuna and Ors v Obi Nzeka II [1983] 2 SCNLR 1; Nzekwu v Nzekwu [1989] 2 NWLR (Pt 104) 373, 393.
Against this background, we hold that the lower court was in error when it expunged exhibit AX from the records. We, hereby, vacate the said order of the lower court expunging AX. In its place, we order a reinstatement or restoration of the said exhibit as part of the record. We, therefore, resolve this issue in favour of the appellant.
In our view, this conclusion obviates the need for the dissipation of judicial energy on the appellant’s issues four and five: issues which, by reason of our restoration of exhibit AX in the records, have become otiose or, at best, academic. As this court re-iterated very, recently, in Mmamman v FRN (2013) LPELR -20082 – (SC) 11-12, paragraphs G-A, courts should, on no account, spend precious judicial time on issues that are academic.
They should determine live issues, and those are issues that would meet the ends of Justice, Oyeneye v Odugbean [1972] 4 SC 244; Bakare v A.C.B. Ltd [1986] 3 NWLR (pt 26) 47; Nzon v Iinadu [1987] 1 NWLR (Pt 51) 537; Lawal v Morohunfola [1998] 1 NWLR (Pt 532) 111; Badejo v Federal Minister of Education [1996] 9-10 SC 51; [1996] 8 NWLR (Pt 464) 15.
The only issue that meets the ends of justice in this appeal, that is, the impropriety of the lower court’s expunction of exhibit AX from the record, having been resolved in favour of the appellant, issues four and five: issues which are subsumed in the complaint in issue three, as pointed out above, have become otiose or, at best, academic.
Before concluding this judgment, we observe that the interlocutory appeal of the first respondent against the ruling of the trial a court epitomises the frustration of trials at first instance, which our adversarial system of criminal justice, unwittingly, perpetuates. It, actually, speaks ill of our criminal jurisprudence.
The trial of the respondents, which commenced in 2008, had to abide the lower court’s determination of the said interlocutory appeal: a decision that prompted the appellant’s appeal to this court. In effect, since 2008, that is, seven years ago, proceedings at the trial court had been stalled to await the outcome of the appeal against its ruling.
We find it curious that the first respondent could not exercise a little restraint even when the trial court was emphatic that, though it found in favour of the admissibility of the said statement, the “weight to be attached to it is a matter for determination at the conclusion of this trial,” [page 317 of the record].
Prudence, therefore, ought to have dictated to him to await the conclusion of the trial; thenceforth, he would, if dissatisfied with the judgment in the substantive case, proceed to appeal against it, International Agric Ind (Nig) Ltd and Anor v Chika Brothers Ltd [1990] 1 NWLR (pt 124) 70, 81; Dairo v Union Bank of Nigeria Plc and Anor [2007] All FWLR (Pt 392) 1846, 1906, D-F.
We shall continue to look with askance at situations, such as those engendered by the said interlocutory appeal, which occasion the frustration of proceedings at trial courts. They should no longer be condoned or brooked, International Agric Ind (Nig) Ltd and Anor v Chika Brothers Ltd (supra); Dairo v Union Bank of Nigeria Plc and Anor (supra). They scandalise the integrity of the judicial process!
In all, this appeal succeeds in part. We, hereby, set aside the order of the lower court expunging exhibit AX from the record of the trial court. In its place, we order its restoration in the records. Appeal allowed. The trial court shall continue, post-haste, with the hearing and determination of the charges before it.
SC.229/2012
