The State Vs Ahmed Rabiu (2013)
LAWGLOBAL HUB Lead Judgment Report
STANLEY SHENKO ALAGOA, JSC
This is an appeal against the judgmentof the Court of Appeal Abuja Division delivered on the 15th of April, which allowed the Appeal against theRuling of the Kogi State High Court delivered on the 30th March, 2009 by Otu J.The facts leading up to this appeal are briefly set out hereunder:-
The Respondent who was the accused atthe High Court Okene was charged with the offence of Culpable Homicidepunishable with death under Section 221(a) of the Penal Code. The chargeagainst him was that on the 10th November, 2005 while armed with a gun, he hadintentionally shot and killed one Nasiru Audu.
In the course of trial on the23/1/2008 the Statement of the Respondent taken on the 1st January, 2006 wasadmitted in evidence and marked exhibit B by the learned trial Judge.Subsequently Counsel for the Respondent by motion on Notice dated 17th April,2008 and brought pursuant to Section 6(6) of the Constitution of the FederalRepublic of Nigeria and the inherent jurisdiction of the Court sought for:
An ordersetting aside the entire proceedings of the 23rd January, 2008.
OR IN THE ALTERNATIVE
- Anorder setting aside the ruling admitting Exhibit B in evidence and revisiting the issue of the admissibility of the said document.
Such further or other orders as this Honourable Court may deem fit to make in the circumstance.
The application was opposed and arguments taken and in his ruling of the 10th July, 2008 at pages 28 – 31 of the Record the learned trial Judge set aside the earlier ruling of the court admitting the Statement of the Respondent in evidence as Exhibit B and adjourned the case to the 25th September, 2008 for trial within trial.
Records however show that as a result of several adjournments, the trial within trial did not commence until the 5thFebruary, 2009 when the evidence of PW 1 Sesan Aransiola was taken and he was cross examined. The prosecution closed its case having fielded just that witness. On the 11th February, 2009 the defence in the trial within trial commenced with the Accused/Respondent giving evidence and being cross examined.Like the prosecution, the Accused/Respondent was the sole defence witness so to speak in the trial within trial. The case was then adjourned for address of counsel in the trial within trial and in his considered Ruling on the 30th March, 2009, the learned trial Judge, Otu J. held in the concluding part of his ruling at page 47 of the Record,’From the totality of the evidence before me in this trial within trial,the evidence of the accused is in my view of little or no value at all, it is fable coming from the imagination of the accused. I find that the statement ofthe accused person to the police was freely and voluntarily made by the said accused person. The objection is over ruled and the statement is admitted in evidence and marked Exhibit ‘BB’.”
Aggrieved, the Accused/Respondent appealed to the Court of Appeal Abuja Division which in its judgment delivered on the 15th of April, 2010 resolved the sole issue for determination before it which was whether the statement of the accused was voluntarily made, in favour of the accused. The lower court therefore set aside the ruling of the High Court delivered on the 30th March, 2009 which said ruling admitted the statement of the Accused -Exhibit ‘BB in evidence.
Aggrieved, the State (now asAppellant) has appealed against the said judgment of the lower court deliveredon the 15th April, 2010 by a Notice of Appeal contained atpages 101 – 105 of the Record of Appeal. The Grounds of Appeal are reproducedhereunder shorn of particulars:-
The Learned Justices of the Court of Appeal, Abuja erred in law when they held that the prosecution did not discharge the burden of proving that Exhibit BB was voluntarily made.
The learned Justices of the Court of Appeal, Abuja erred in law when they held that Exhibit BB was inadmissible on the ground that same was obtained by means of question and answer.
The learned Justices of the Court of Appeal Abuja erred in law when they held that the material allegation of torture made out by the Appellant now-Respondent was not controverted.
The learned Justices of the Court of Appeal Abuja erred in law when they held as follows: ‘The Prosecution did not include the DPO at Okene as one of its witnesses to tell his side of the story and possibly discredit the testimony of the Appellant, neither did it cross examine the Appellant as to the veracity or otherwise of the claim he made against the D.P.O. at Okene as well as those at the State C.I.D. at Lokoja.”
The Learned Justices of the Court of Appeal, Abuja erred in law when they held thus:
‘I am of the humble view that what happened at Okene Police Station and then at the State C.I.D. Lokoja must be regarded as one continuous transaction and not a separate and distinct incidents (sic). Not only did each incident immediately follow the other, but nothing was done at the State C.I.D. Lokoja by way of assuring the accused that he need no longer fear physical violence if he chose not to say anything.’
The learned Justices of the Court of Appeal Abuja erred in law when they held as follows:
“I fail to understand how the Appellant is expected to have been able to give details as to the number of policemen that beat him up or how he could have reported the incident at Okene to anyone, considering thecircumstances narrated by the Appellant regarding his arrest.”
The learned Justices of the Court of Appeal Abuja erred in law when they set aside the findings of fact of the learned trial Judge of the Okene High Court.
The judgment of the Court of Appeal Abuja is unwarranted and unreasonable having regard to the evidence before the Court.
From these Grounds the Appellant inits Brief of Argument dated the 24th January, 2011, filed on the 26th January,2011 but deemed properly filed and served on the respondent on the 23rd March,2011 has distilled the following three issues for determination by this Court:-
Whether the Justices of the Court of Appeal were right to set aside the findings of facts made by the trial court when the said findings were not perverse or said to be perverse (Grounds 1, 3 and 7).
Whether the Court of Appeal was right to hold that the confessional statement obtained as a result of question and answer cannot be said to be voluntary (Ground 2).
Whether the Justices of the Court of Appeal were right when they substituted their views for that of the trial court when there was no evidence to back up the views expressed by the Justices of the Court of Appeal (4, 5, and 6).
These issues are contained in paragraph 1.0 at pages 2-3 of the Appellants Brief of Argument.
The Respondent on his part formulated the following two issues from the grounds of Appeal for the determination of this Court:-
Whether the learned Justices of the Court of Appeal were right to hold that Exhibit’BB’ was not obtained voluntarily by the police and is, therefore,inadmissible in evidence? (Grounds 1, 2, 3, 4, 5 and 6).
Whether having found that the learned trial Judge did not make a proper use of his opportunity of seeing and hearing the witnesses at the Trial within trial, the learned Justices of the Court of Appeal were right to have set aside the findings made by the learned trial Judge (Ground 7).
These are contained in Paragraph 3.01at page 4 of the Respondent’s Brief of Argument dated the 5th April, 2011 and filed on the 7th April 2011.
These Briefs of Argument were on the22nd November, 2012 when this appeal came up for hearing adopted and relied upon by the respective counsel for the parties.
V. Etuvwewe who appeared with A.Awala, (Miss) for the Appellant urged this Court to allow the appeal and set aside the judgment of the lower court.
M. Aliyu appeared with K. C. Wisdom and Rafatu O., as Counsel for the Respondent and urged this Court to dismiss the appeal and affirm the decision of the lower court.
I have carefully considered the issues formulated by the Appellant and the Respondents in the their respective Briefs of Argument and I consider the issues as formulated by the Appellant as have covered the grounds of appeal and intend to adopt same in the consideration and determination of this appeal.
Issue 1 is ‘Whether the Justices of the Court of Appeal were right to set aside the findings of fact made by the trial court when the said findings were not perverse or said to be perverse’.
Learned Counsel for the Appellant has referred this Court to that part of the trial courts ruling which states as follows: ‘From the totality of evidence before me in this trial, the evidence of the accused is in my view of little or no value to all, it is a fable coming from the imagination of the accused. I find that the statement of the accused person to the police was freely and voluntarily made by the said accused person. He this being a finding of fact by the trial court could not have been disturbed by the lower court as nowhere in the lower courts judgment did that court say that this finding of fact is perverse or occasioned a miscarriage of justice. Counsel relied on HENRY ODEH V. FEDERAL REPUBLIC OFNIGERIA (2008) 3 – 4 SC 147 at 180 – 181.
Counsel also submitted that it is only the trial court that has the duty of assessing the credibility of witnesses.Reliance was placed on SAMUEL ATTAH V. THE STATE (2010) 10 NWLR (PART 1201)190 at 213.
Learned Counsel for the Respondent appears to agree with the above submission when in paragraphs 5.01 and 5.02 at pages 13 and 14 of the Respondents Brief of Argument he had stated as follows:“The relationship between a court of trial and an appellate court as regards the evaluation of evidence and ascription of probative value to such evidence has long been settled by a long line of authorities. The law is that the evaluation of evidence and ascription of probative value to such evidence are primarily the function of a trial court and when such functions are duly and correctly discharged by the trial court an appellate court has no business substituting its own view for that of the trial court.
See AKINLOYE & ANOR V. EYIYOLA& ORS (1968) N.M.L.R. 92; EBBA V. OGODO (1984) 2 SCNLR 372. It is equally the law my lords that were a trial court failed to properly evaluate the evidence before it or made the wrong inference from admitted facts, an appeal court can interfere by making the proper findings justified by the evidence. I refer my Lords to HIGH GRADE MARITIME SERVICES LTD V. F.B.N. LTD (1991) 1 NWLR (PART 167) 290 at 310 and A.C.B. LTD V.OBA (1993) 7 NWLR (PART 304) 173 at 183.’ I think it is appropriate for me to say here that these submissions of both learned counsel are correct and represent the law. There is indeed a plethora of case law on this subject matter.
Respondents Counsel also agrees that the finding of the trial court which was disturbed by the court below is as counsel for the Appellant had earlier said runs thus,
‘From the totality of evidence before me in this trial within trial, the evidence of the Respondent is in my view of little or no value at all, it is a fable coming from the imagination of the Respondent. I find that the Statement of the Respondent person to the police was freely and voluntarily made by the said Respondent person.’
The Respondents Counsels grouse with the trial courts findings of fact is that the learned trial Judge did not goon to state which aspect of the Respondents story he considered a fable.Respondents Counsel then went on to give quite a long list of what he considered vital factors which the learned trial Judge would have taken into consideration in arriving at his finding of fact. One must at this stage stop and ask the question again whether the court below made a pronouncement that the finding of fact of the learned trial judge was perverse or occasioned a miscarriage of justice? The answer is in the negative. On the proper attitude of an appellate court to findings of fact by the trial court, this Court per Belgore JSC (as he then was) in AMOS BAMGBOYE & ORS V. RAIMI OLAREWAJU(1991) 4 NWLR (PART 184) 132 held as follows:
‘Once a Court of trial has ma.de a finding of fact,it is no more within the competence of the Appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of Appellate Courts is that the court hearing the appeal is at a disadvantage as to the demeanour of the witnesses in the lower court as they are not seen and heard by the Appellate Court. It is not right for the Appellate Court to substitute its own eyes and ears for those of the trial court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence.
See also CHIEF VICTOR WOLUCHEM V.CHIEF NELSON GUDI & ORS (1981) 5 SC 291 at 295; AWOTE V. OWODUNNI (1986) 5NWLR (PART 46) 941. What appeared to have weighed very heavily on the mind of the lower court were the gory details of violence and torture which the Respondent said he suffered. The evidence on this was placed before the trial court which soberly considered same and made its findings of fact. The sole purpose behind the conduct of a trial within trial is to ascertain whether the statement made by an accused person was voluntarily made and the learned trial Judges finding of fact that it was voluntarily made should not have been upset by the lower court, same not having been found by the Court below to be perverse or to have occasioned a miscarriage of justice.
The lower court was clearly in error to have substituted its own findings for the findings of the trial court. This issue must be and is hereby resolved in favour of the Appellant against the Respondent.
Issue No. 2 is ‘Whether the Court of Appeal was right to hold that a confessional statement obtained as a result of question and answer cannot be said to be voluntary.’
It is the law that for the Statement of an accused person to be admissible in evidence it must have been made voluntarily. What this means is that it must have been made freely and without any inducement or threat of harm to the accused. In MANSHEP NAMSOH V. THESTATE (1993) 5 NWLR (PART 292) 129 at 124, Kutigi, JSC, (as he then was)had this to say,
‘However before I conclude I would like to make some observations on the statement exhibit H. This statement unlike the other statement exhibit F which was recorded or written by the Appellant himself was recorded by one policeman Sgt. Titus Kwakiya (PW 7). Both PW 7 and the Appellant in their testimonies made it abundantly clear that exhibit H was the product of a ‘question and answer’ session between the two of them.The Police recorder (PW 7) was putting questions already prepared by his superiors on a sheet of paper to the Appellant while he (PW 7) also recorded the answers. This procedure is clearly wrong. Once a police officer decides to make a complaint against an accused person, he must first of all caution the accused person in a prescribed form. If the accused person decides to volunteer a statement, he may write it himself or the police officer may write it for him. I cannot see how a Statement such as exhibit H herein would be regarded as free and voluntary when it is evident that the so called statement was a result of questions selected by and put to the accused by the police officer himself………. “
Could that be said to be what happened in the present case now being considered on further appeal? The learned trial Judge had, at page 46 of the Record of Appeal made this finding of fact;
‘PW 1 said he cautioned the accused in English language informing the accused inter alia, that “you are not obliged to say anything unless you wish to do so ………….’. PW I said he cautioned the accused in English language and having understood the caution signed it. The statement has the signature of the accused person under the words of caution.Throughout his evidence the accused never said he was not cautioned or that the signature therein is not his own. I also cannot see how a police officer can properly record the statement of the accused person if he cannot ask the accused certain information that will take the form of question and answer.’
It can thus be seen that the learned trial Judge in his summation of the evidence of PW 1 knew the importance to be attached to the caution to be administered to the Respondent before he would be called upon to make his statement. The learned trial Judge also knew the importance of the Respondents signature on the statement made by him. The learned trial Judge had said as follows;
Throughout his evidence the accused never said he was not cautioned or that the signature therein is not his own.”
The learned trial Judges reference to ‘question and answer’ must therefore be understood in its proper context.
In NAMSOH V. THE STATE (supra)the police recorder (PW 7) was putting question already prepared by his superiors on a sheet of paper to the accused/Appellant while the answers were recorded. This was clearly a question and answer session and a statement obtained that way could not have been expected to be voluntary. In the present case under consideration, the position would appear to be different in the sense that only questions that would make the Respondents Statement coherent were put to him. This would appear to me permissible if not overdone. That this would appear to have been the case can be seen in the learned trial Judges further summation of the evidence of PW 1 at page 46 of the Records thus:
‘Under cross examination PW 1stated: ‘The accused was asked to tell his own version of the’story7~~In the statement, I asked him of the schools he attended and the year she attended it and also to tell me what happened on the 10th November,2005’.
This line of questioning can hardly be described as a ‘question and answer session’ as in NAMSOH V. STATE(supra). That an admission may be obtained from a person by questions fairly and properly put to him by a police officer has been judicially pronounced upon by this court in the case of SUNDAY IHUEBEKA V THE STATE (2000) FWLR PART II page 1827 pages 1854 – 1855 per Kalgo, JSC ‘
‘What then is a confessional statement in law: It is simply a statement of an accused person charged with a criminal offence which is a confession. What amounts to a proper confession in this context? In Osbornes Concise Law Dictionary Sixth Edition page 87 Confession is defined thus:-
‘An admission of guilt made to another by a person charged with a crime. It is admissible only if free and voluntary i.e. if it is not forthcoming because of inducement or threat held out by a person in authority. It must not be made under hope of reward (other than spiritual) or fear of punishment in relation to the proceedings. The onus of proof that a confession was voluntary is on the crown (D.P.P. V. PIN LIN (1915) 3 W.L.R.419) admission may be obtained from a person by questions fairly and properly put to him by a police officer.”
Evidence of PW 1 on record which was never debunked is that he asked the Respondent which schools he attended and when and to say what happened on the 10th November, 2005. These were fair questions properly put to the Respondent in the course of writing his statement. It does happen and not too infrequently that an accused person left alone to write his statement without any form of guidance goes on a merry go round of sorts leaving behind the crucial issues. I think the true test of voluntariness should be whether an accused person in the course of writing his statement was, if need be, properly guided to write what he actually wanted to write and not what he certainly did not want to write and would not have written but for some form of threat of harm or inducement or whatever that would make his statement involuntary. Going by the Records Respondents counsel cannot be right when he stated in paragraph 4.08 at page 11 of the Respondents Brief of Argument that, ‘the Police had even before the Appellant (sic)opened his mouth decided to obtain a statement from him.” The learned trial Judge at page 46 of the Records said as follows, ‘It is my own view that having cautioned the accused person and had fully understood the caution, the accused had the choice whether to answer questions put to him or not or whether he was prepared to give his own version of the story or not. Indeed the accused person not only gave his entire bio data in the said statement but gave a graphic detail of the fight that took place between the two factions of the PDP on that day giving names of the participants and also their sponsors.’ These are details which the police itself could not have known and which certainly could not have been obtained from the accused/Respondent in a question and answer session.
The proper conclusion to draw from this is that after the necessary caution, Respondent had been given a free hand to say what was contained in his statement which he then signed. The Respondents Counsel freely credited PW 1 with having said what he did not say.PW 1 never admitted in evidence that the Respondent was the object of torture or brutality from the police to obtain a statement from him neither did he admit that the DPO shot the Respondent on the leg. At page 37 of the Records PW1 said under cross examination as follows, ‘The accused was asked to tell his own version of the story ……………From the facts of this case there was a dispute between two factions of the PDP. In the Okene IPOs report, the accused was arrested upon efforts of members of the public. I will not be surprised that those people who got the accused person arrested were members of the opposing faction of the PDP, they are the ones who have been assisting the police in the investigations. It will not surprise me to hear that those members of the public gave the accused a thorough beating before handing him over to the police………
I do not know how he came about the injury but he had the injury when he was brought to us. I will be surprised to hear that the DPO in Okene shot the accused person’. PW ls statement can thus be described at best as speculative and not categorical. This issue is resolved in favour of the Appellant against the Respondent.
SC. 373/2010
