Mohammed Ali-balogun V. Federal Republic Of Nigeria (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA. J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the FCT High Court in case No. FCT/HC/CR/1/2003 delivered 24/7/2006, admitting a certified copy of the Appellant’s statement in evidence in the trial after conducting a trial within trial. The notice of appeal filed on the 10/12/07 pursuant to an order by the Court on 3/2/07, contains three (3) numbered grounds and one unnumbered omnibus ground from which two issues were formulated in the Appellant’s Amended brief of argument filed on 12/10/09 but deemed filed on 27/10/09. The two (2) issues are:-

“1. Whether or not the prosecution proved beyond reasonable doubt that the accused person was not coerced, threatened or induced to write the alleged statement tendered in evidence to make it admissible in law. (Grounds 1 & 2 of the Notice of Appeal).

2. Whether a certified true copy of the alleged confessional statement of the accused person is admissible in law in the circumstances of the case. (Ground 3 of the Notice of Appeal).”

Two (2) issues which are substantially impari materia, with the above issues were also raised in the Respondent’s brief of argument filed on the 18/2/10 but deemed filed on the 20/4/10. They are as follows:-

“1. Whether from the facts and evidence tendered at the trial, the prosecution was able to establish that the Appellant’s confessional statement was voluntarily obtained without threat or inducement.

2. Whether a certified true copy of the confessional statement of the Accused person is admissible in law in the circumstances of the case.”

In reaction to the Respondent’s brief the Appellant’s Reply brief was filed on the 7/5/10.

When the appeal came up for hearing in Court on the 10/11/10, Mr. Hassan T. Fajimite, Esq. who led S.A. Suleman, Esq., appeared for the Appellant, adopted the Appellant’s brief and the Appellant’s Reply brief which he both settled, as the submissions in support of the appeal. He urged us to allow it and set aside the ruling of the Federal High Court admitting in evidence, the named statement of the Appellant at the trial.

The Respondent was not represented at the hearing but the Court’s record showed that Mr. George Lawal, Esq. had appeared in the case on 20/1/10 when it was adjourned to the date of hearing and taken the date.

There was no communication to the Court from the said Counsel to excuse the absence at the hearing and since the Respondent had filed a brief of argument as stated above, the Court, pursuant to Order 17, Rule 9(a) of the Court of Appeal Rules, 2007, the appeal was treated as having been duly argued by the Respondent on the said brief. Since the issues submitted by both learned Counsel for the parties are not dissimilar, I intend to use the formulation by the learned Counsel for the Appellant in the determination of the appeal.

Issue 1

The submissions by the Appellant on this issue are to the effect that the statement admitted by the High Court constitutes a confessional statement in law as provided in Section 27(1) of the Evidence Act, interpreted in several judicial authorities including UBIEHO v. STATE (2005) 20 WRN 111 at 122. It was submitted that only voluntary confession not shown to have been procured or caused by any inducement, threat or promise is relevant and admissible in evidence. Section 28 of the Evidence Act and the case of EKURE v. STATE (1999) 13 NWLR (635) 456 at 458 were cited in support. Learned Counsel for the Appellant then argued that the Respondent here did not discharge the obligation to prove the voluntariness of the statement in question at the trial within trial. He set out a portion of the evidence of the only witness who testified for the Respondent at the trial within trial and what he said the witness admitted under cross examination and contended that the witness was contradicted as to the truth of his evidence in chief as the people who were said to have participated in taking the statement of the Appellant were denied and not called to testify at the trial within trial.

According to him, the “default” to call PW2 and PW3 in the main trial to testify in the trial within trial, was fatal to the case of the prosecution and has therefore failed to prove beyond reasonable doubt that the statement in question was voluntary with only the ipse dixit of the witness before the Court. Sections 27(2) and 28 of the Evidence Act were referred to by learned Counsel who maintained that the Appellant had unequivocally shown in his evidence in chief and reiterated under cross examination in the trial within trial that his brother was not present when he wrote the statement and that PW3 had a gun to his head while he wrote it. It was also contended by him that the prosecution did not cross examine the Appellant on vital or material points in his evidence and so relying on authority of:

OFORLATE v. STATE (2000) 12 NWLR (681) 415 at 436; DAGGASH v. BULAMA (2004) 14 NWLR (892) 144 at 240 and GAJI v. PAYE (2003) 8 NWLR (523) 583 at 605. the Respondent is deemed to have accepted the truth of such points. Further, that the material points robustly established the Appellant’s evidence at the trial within trial. In addition, it was submitted that though the strength of a party’s case is not determined by the number of witnesses, the law is that where witness or witnesses who could give credible evidence in proof of a particular matter is or are left out, the Court is entitled to invoke the provisions of Section 149(d) of the Evidence Act that the evidence which could be and is not produced, be unfavourable to the person who withhold it.

The case of AGBI v. OGBEH 26 NSCQR (2) 1257 at 1298 was relied on as authority for the submission and the High Court was said to have erred when it did not invoke Section 149 of the Evidence Act against the Respondent as was done in the case of AMACHREE v. NIGERIA ARMY (2003) 3 NWLR (807) 256 at 279. The Court was also invited to note that the statement said that it commenced at 2.30 p.m. which contradicts the evidence of the Respondent that the Appellant made only one statement which was voluntary at about 1.00 p.m. thereby created doubt about the voluntariness of the statement in question which should be resolved in Appellants’ favour. IGP v. OGUNTADE (1971) 2 ALL NLR 11 and RE: OSAKWE (1994) 2 NWLR (326) 273 were cited on the point.