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

2. 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.