Berende V. Frn (2021)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The appellant was arraigned before the Federal High Court, Abuja, along with one Saheed Oluremi Adewumi on a six-count charge, of various offences under the Terrorism (Prevention) Act, 2011, as amended. The charges are as follows:
That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December, 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by provision of material assistance and terrorist training together with others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1) (a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.
That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Tehran in Iran had information which you know to be of material assistance about the terrorist training at Tehran in Iran and the subsequent spying of Chabbad house Lagos and AA Consulting Lagos and you failed to disclose such information to the law enforcement officers as soon as
reasonable practicable, and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.
That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Iran and Dubai UAE received from AMIR, an Iran terrorist, (now at large) the sum of four thousand dollars ($4,000), three thousand, five hundred Euros (€3,500) and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to Section 13(1) (a) (i) of Terrorism (Prevention) Act 2011 as amended, and punishable under Section 13 of the same Act.
That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Lagos, Ilorin Nigeria, Tehran in Iran, agreed to recruit persons for AMIR, an Iranian Terrorist, now at large, and did recruit the following: Saheed Oluremi Adewumi, Sulaiman Olayinka Saka and Biliaminu Mohammed Yusuf and you therefore committed an offence punishable under Section 10 of Terrorism (Prevention) Act 2011 as amended.
That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI
ADEWUMI, and others now at large between September 2011 and December 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing of information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of Terrorism (Prevention) Act 2011 as amended.
That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUMI, between September 2011 and December 2012 at Lagos, through the technological devices including camera supported the commission of terrorist act and thereby committed an offence punishable under Section 12 of Terrorism (Prevention) Act 2011 as amended.
They were arraigned on 28th August, 2013. They both pleaded not guilty to each of the six counts. The trial commenced on 22nd October, 2013. The first prosecution witness was one James Eneizi from the Department of State Services (DSS). He testified that the DSS received some intelligence reports that some Nigerians were recruited by Iranians and trained in acts of terrorism and returned to Nigeria to perpetrate such activities. He testified that the officer in charge of
counter terrorism directed that the report be investigated. It was in the process of the investigation that the appellant was arrested in Ilorin on 17th December, 2012. The second accused was arrested a week later. The home of the appellant was searched. Some media items, the sum of US$5,800 and other incriminating items were recovered. He was taken to the national headquarters of the DSS in Abuja.
PW1 testified that two officers were assigned to interview the suspects and to witness their statements, which they wrote themselves. He stated that the appellant made two statements on 8/2/13 and 25/2/13. He was brought before him and he confirmed that he made the statements voluntarily, he (PW1) endorsed them. At the point of tendering the statements in evidence, an objection was raised on the ground that the statements were not made voluntarily. A trial-within-trial was conducted to determine the truth or otherwise of the assertion. In a considered ruling delivered on 22/10/2014, the Court held that the statements were made voluntarily and admitted them in evidence as Exhibits B and B1. The Court held, inter alia:
“It is clear that one of the easy
ways of determining the voluntariness of a confessional statement said to have been made by an accused person is when the said statement is taken before a Superior Police Officer for confirmation and countersigning. It is my humble view that if the accused is objecting to the voluntariness of a confessional statement said to have been made by him, he would have ample opportunity during confirmation before a Superior Police Officer to object to its voluntariness. In the case at hand, the 1st and 2nd accused persons have admitted being taken before TPW2 for the confirmation of their confessional statements, but none of them testified on objecting to the voluntariness of their statements before TPW2. Having regard to the pronouncement of the Supreme Court in the Alarape’s case, supra, the confirmation of the 1st and 2nd accused persons’ statements by TPW2 has made the determination of the voluntariness of their statement a lot more easier.
In conclusion, I am of the firm view that the two statements sought to be tendered have passed the test of veracity and voluntariness laid down by law and as stated by the Supreme Court in the cases of Alarape Vs The State and Akpan Vs The State, both supra.
…the said statements are hereby admitted as Exhibits B, B1 and C, C1 respectively.”
The appellant was dissatisfied with the ruling and appealed to the Court below. The appeal was unsuccessful, hence the instant appeal. The notice of appeal filed on 18/6/2009 but deemed filed on 8/10/20 contains 10 grounds of appeal. At the hearing of this appeal on 11th March, 2021, M.I. HANAFI ESQ., adopted and relied on the appellant’s brief filed on 20/11/2020 in urging the Court to allow the appeal. CHIOMA ONUEGBU ESQ., Principal State counsel, Federal Ministry of Justice, adopted and relied on the respondent’s brief filed on 4/2/21, in urging the Court to dismiss the appeal.
The appellant formulated 3 issues for determination, to wit:
- Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two extra-judicial statements of the appellant were made voluntarily and therefore admissible? (Grounds 1, 2, 4, 5, 6, 7, 8 and 9).
- Whether the Court of appeal Justices were correct when they held that grounds 13, 17, 18 and 19 of the
grounds of appeal raise fresh issues not raised before the trial Court? (Ground 3).
- Did the Court of appeal consider the issue raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice? (Ground 10).
The respondent raised a sole issue for consideration by this Court, namely:
Whether this Court can re-evaluate the evidence before the trial Court or upturn the concurrent findings of the trial and lower Court in the circumstances of this case?
I am of the view that the appellant’s issue 1 is sufficient to resolve this appeal. I adopt it.
Whether the Court of appeal was correct when it held that the appellant’s extra-judicial statements were voluntarily made?
In support of this issue, learned counsel referred to the characteristics of a confessional statement as provided in Sections 28 and 29 of the Evidence Act, 2011 and as defined in several decided authorities, including Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455 @467 H; State vs Gwangwan (2015) 13) 92 @ NWLR (Pt.1477) 600 @ 624F; Gbadamosi vs The State (1992) 9 NWLR
(Pt. 266) 465 @ 489 B – C; Iregu vs The State (2013) 12 NWLR (Pt.1367) 92 @ 117 G – H. Learned counsel submitted that the evidence of the respondent at the trial within trial (TWT) was to the effect that several interviews were conducted with the appellant from the time of his arrest on 18/12/2012. That he volunteered to make statements, which he did, after the cautionary words were administered to him on 8/2/2013 and 25/2/2013. That each time, after making the statements, he was taken before a Superior Police Officer (SPO) where he confirmed that they were voluntarily made. It was further stated that the interview sessions were recorded on four DVDs, which were tendered in evidence during the TWT.
On the other hand, the appellant maintained that the statements were made under duress. It was his contention that he was made to undergo a lie-detector test during the oral interview using a polygraph machine. He alleged that the machine was used without his consent and therefore violated his fundamental right to remain silent as provided in Section 35 (2) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended. On the right of an
accused person to remain silent, he referred to Abadom Vs The State (1997) 1 NWLR (479) 1 @ 20 H; Mbele vs The State (1990) 4 NWLR (Pt.145) 484 @ 500 – 501 H – A; Utteh vs The State (1992) 2 NWLR (Pt.233) 257 @ 274 G. He reproduced the evidence of the appellant at pages 476 – 479 of the record as to what transpired during the use of the polygraph machine. He argued that the use of the machine deprived the appellant of the discretion to remain silent and therefore the two statements were tainted with an incurable virus. He referred to a Canadian authority: R Vs Beland & Phillips (1987) 2 SCR 398, where the Canadian Supreme Court rejected the use of the results of a polygraph test conducted on the suspects.
Learned counsel argued that PW1’s denial of any knowledge of a polygraph test conducted on the appellant was feeble at best, having regard to the fact that PW2 testified that he had attended courses and training on the use of polygraph machines. He surmised that such training would be unnecessary if there was not intention to utilise it. He was of the opinion that the respondent ought to have invited the persons who conducted the test, named by the
appellant, to rebut his evidence. He submitted that in the absence of evidence in rebuttal, there was no reasonable ground to disbelieve the appellant’s testimony. He observed that the learned trial Judge did not make any reference to the conduct of the polygraph test in his ruling. He noted further that the Court below held that there was no nexus between the use of the polygraph machine and the making of the appellant’s statements. He insisted that the circumstances described by the appellant was proof that the confession was obtained by reason of threat or fear instilled in him.
Learned counsel also observed that the prosecution failed to tender the appellant’s extra-judicial statements which were being challenged, during the TWT. He submitted that they were tendered for identification only. He submitted further that the failure to tender the statements was fatal to the TWT proceedings. He submitted that the law is settled that the Court cannot rely on a document that is not properly before it. He argued that the observation by the lower Court, to the effect that neither party applied to tender the statements and that the appellant was at liberty to
apply for them to be admitted to enable him rebut the evidence of voluntariness, was erroneous, as it had the effect of shifting the burden of proof on him. He submitted that the burden of proof lies on the respondent. He referred to Gbadamosi Vs The State (supra); Iregu Vs The State (supra); Alabi Vs The State (1993) NWLR (Pt. 307) 511 @ 531A. He submitted that without the tendering of the statements, the Court was left with the ipsi dixit of the respondent’s witnesses that the appellant made any confessional statement at all.
In reaction to the finding of the lower Court that the appellant failed to utilise the opportunity of confirmation before PW2 to deny the voluntariness of his statement and that he also failed to use the opportunity of the TWT to do so, learned counsel argued that the appellant’s testimony at the TWT was an attack against his entire testimony. He noted that the appellant testified that PW2, the Chief Investigating Officer, interacted with him constantly throughout the investigation, threatened him and also promised him amnesty if he made a statement. He contended that PW2 was an interested party and it would have made no
difference if he had mentioned that he was threatened. On whether the appellant challenged the evidence of confirmation proffered by PW2 at the lower Court, he referred to Grounds 14 and 15 of the notice of appeal before that Court.
Learned counsel argued that the appellant testified that he made a statement on the 23rd/24th of December, 2012 to the white men who conducted the polygraph test on him, which was not tendered by the respondent, despite being served with a subpoena to produce it. He submitted that where the accused person challenges the voluntariness of the confessional statements sought to be tendered, the prosecution has a duty to tender all the extra-judicial statements made by him, including those that are favourable to him. He referred to Okonkwo vs The State (1998) 8 NWLR (Pt.561) 210 @ 248. He submitted that the failure to tender the statement was a breach of the appellant’s right to fair hearing.
As regards grounds 13, 17, 18 and 19 of the notice of appeal, learned counsel contended that the lower Court was wrong when it held that they raised fresh issues not raised before the trial Court. He argued that ground, 13, 17, 18 and
19 are grounds of law, which raised the issue of the validity of the TWT when the extra-judicial statements were not tendered, the failure to conduct separate TWT for each accused and the failure to separate the TWT in respect of each challenged statement. He noted that the issues were argued in the appellant’s written address at the conclusion of the TWT. He also submitted that ground 17 relates to the failure to tender the statement made on 24/12/2012, which the appellant had testified to. He submitted further that the lower Court failed to consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal. He submitted that the Court has a duty to consider all the issues raised before it dispassionately and urged this Court to invoke the provisions of Section 22 of the Supreme Court Act, and revisit the issues.
In response, learned counsel for the respondent submitted that it is not the practice of this Court to interfere with concurrent findings of fact or to re-evaluate the evidence where no miscarriage of justice has been established. He referred to Igago Vs The State (1999) 12 SCNJ 140; Nkebisi vs The State (2010) ALL FWLR
(Pt. 521) 1407. He submitted that not only did the appellant fail to allege torture when taken before PW2 for confirmation of his statement, there were video recordings of the process of taking his statements, which were admitted in evidence as Exhibits TWT1 – TWT4. He submitted that the exhibits speak for themselves. He submitted further that while the prosecution’s case was consistent, the appellant, in a bid to deny his voluntary confession, gave conflicting evidence, which was properly evaluated and resolved against him. He referred to the ruling of the learned trial Judge at pages 476 – 497 of the record, which was affirmed by the lower Court. He submitted that the allegation of torture was an afterthought.
Learned counsel submitted that the respondent did all that was required to establish the voluntariness of Exhibits B and B1, having regard to the provisions of Section 29 of the Evidence Act. He referred to Exhibits TWT1 – TWT4, the confirmation of the statements before PW2, as well as the uncontradicted testimonies of PW2 and PW3. He submitted that the statements were corroborated by the evidence of PW6, PW7 and PW8 in addition to admissions made
by the appellant in the course of his defence in the TWT.
He submitted that contrary to the appellant’s contention, the burden of proof of particular facts, as opposed to proof of guilt, rests on the party who alleges the existence of such facts. He submitted that appellant had the onus of proving torture, oppression and inducement in the making of his statements. He referred to Section 136 of the Evidence Act and Nwangbomu Vs The State (2001) ACLR 9. He argued that assuming without conceding that a polygraph test was conducted on the appellant, it does not detract from the voluntariness of the statements.
He noted that the appellant’s constitutional right to remain silent was never raised throughout the trial. He submitted that the allegations of threat, inducement, promise of amnesty, withholding of his eye medication and so on cannot avail him having regard to Section 31 of the Evidence Act. He also referred to Section 14 of the Act and the case of Haruna Vs A.G. Federation (2012) 49 NSCQR 1410 @ 1430; (2012) 9 NWLR (Pt.1306) 419 to the effect that what governs admissibility is relevancy and once the evidence is relevant, the Court is bound to admit it.
He submitted that the appellant’s counsel’s submissions regarding the legitimacy of a polygraph test and his reliance on the case of R. Vs Beland & Phillips (supra) are irrelevant, as it was not an issue before any of the lower Courts. He submitted that the onus was on the appellant to prove the existence of the statement allegedly made on the 23rd or 24th of December, 2012. He also submitted that as regards Exhibits B and B1, distinct evidence was led in respect of the circumstances in which they were obtained. He urged the Court to resolve the appeal aginsta the appellant and to uphold the concurrent findings of the two lower Courts.
Sections 28, 29 (1), (2) and (5) and 31 of the Evidence Act provide:
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
- (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceeding and it is not excluded by the Court in pursuance of this Section. (2) If, in any proceeding, where the
prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(5) In this section, “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture.
- If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have
answered, whatever may have been the form of these questions or because he was not warned that he was not bound to make such statement and that evidence of it might be given.”
There is no dispute as to the fact that the appellant’s extra-judicial statements admitted in evidence as Exhibits B and B1 are confessional. He challenged their admissibility on the ground that they were not made voluntarily but as a result of oppression, which took the form of:
(a) The conduct of a polygraph test by some white men at the behest of the DSS, during which he was shouted at and threatened by the men conducting it;
(b) Denial of his eye medication for the treatment of Glaucoma from 18th – 25th December, 2012, to coerce him into speaking the truth;
(c) The threat that his wife and children would be brought to see him in the interrogation room during the test;
(d) Leaving him in a cold room overnight;
(e) Threats and intimidation by PW2 overnight.
Where it is alleged that a confessional statement was obtained under duress or as a result of threat or inducement, the Courts have developed the practice of conducting a trial within trial
(TWT) or mini trial to ascertain the voluntariness of the statement. The onus is on the prosecution to prove that it was freely and voluntarily made. See Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 5; Gbadamosi vs The State (1992) 9 NWLR (Pt.266) 465 @ 480: Effiong vs The State (1998) 8 NWLR (Pt.562) 362. On the other hand, where the accused outrightly disowns the confession and asserts that he did not make the statement at all, it would be admitted in evidence and considered alongside other evidence led at the trial to determine its probative value. See Ikpasa vs Bendel State (1981) NSCC 300; Ikumonihan vs The State (2018) LPELR-44362 (SC) @ 7 – 9 B – A.
The question that then arises is: whether the prosecution discharged the onus of proving beyond reasonable doubt that the statements were voluntarily made?
The respondent called three witnesses at the TWT, namely TPW1, TPW2 and TPW3, while the appellant testified in his own defence. TPW1, James Simon, testified that he and another colleague, James Khanoba were directed by TPW2, Mr. James Eneizi, the Chief Investigator, to interview the appellant and his co-accused. He stated that the appellant
was cautioned and informed that he was not obliged to say anything but if he elected to do so, his statement would be recorded and could be used in evidence. He stated that he understood the caution and agreed to participate in the interview and that several sessions were conducted. He agreed to make a statement in writing, which he did on 8/2/13. He read over the statement and he (appellant) signed each page, while James Khanoba countersigned. He was taken before TPW2 where he confirmed that it was his statement and that he made it voluntarily. TPW2 endorsed it. He volunteered another statement on 25/2/13 and it went through the same process of caution, countersignature and endorsement by TPW2.
TPW2, in his testimony stated that the appellant was brought before him on two separate occasions. On each occasion, he asked if he made the statements voluntarily and, on both occasions, he confirmed that he did. He therefore endorsed the statements as having been made voluntarily.
TPW3, Aliyu Usman, a technician attached to the Counter-Terrorism Department of the Department of State Services, testified that he recorded the interview sessions conducted with
the appellant and produced DVDs which he handed over to TPW2. The interviews were recorded in four parts. The footage was saved to the hard drive of the recording kit from which DVDs were produced. They were admitted in evidence and marked Exhibits TWT1 to TWT4. All the witnesses were thoroughly cross-examined.
The appellant, as part of his defence, gave copious evidence spanning pages 476-479, 480-483 of the record, regarding the circumstances in which a polygraph test was conducted on him by the white men between the 18th – 24th December 2012. He stated inter alia:
“On 23/12/12, the man that called himself Zakariyya came to my cell in the morning. He put on my head one elaborate hood. All alone, it has been the one I was wearing in that cell. He led me into the interrogation room. He told me there and then that my wife and two of my children were on their way and they want them to see me in this miserable condition. I pleaded to him not to allow that, but he left me in the room with annoyance. At the end of the day around 5pm, the test was concluded and they told me that I have failed the test. They also told me that my family are coming up to see
my condition. To avert my family seeing me, I must continue the next day, 24/12/12. I agreed that I rather continue the next day. My experience of the test on 24/12/12 was most stressful involving about four sessions. It was concluded around 6pm.
In the end, the three of them came into the interrogation room to announce the result of the test. They asked me whether I thought I passed and I said yes. The doctor congratulated me and said I passed. The three of them in turn hugged me. The four of us sat on chairs and formed a close circuit. The team leader said if he were Mr. President, you would go home today, but yet, don’t worry. We will write a report about you to the State Security Service and they will use it. In the end, they asked if I could work for them and I said I can’t.
They persuaded further but I still said I can’t. That was how we parted with the white men on 24/12/12. The white people asked me to write a statement which I did and submitted it to them. I wrote the statement on 24/12/12 earlier and they even read it.
On 25/12/12, my eye drugs was (sic) handed over to me. …On 26/12/12, the officers moved me from that cell into another facility.”
It is evident from the testimony above that the alleged incidents of oppression and inducement referred to were in relation to the conduct of the polygraph test, which was concluded on 24/12/12. He stated that he received his eye medication the following day, 25/12/12. Furthermore, he testified that the whole exercise ended amicably on 24/12/12, when he was hugged by the white men and congratulated for passing the test. So impressed were they that they even tried to persuade him to work for them, which he declined. He stated that he wrote a statement on 24/12/12, which he gave to the white men.
It must be stressed here that the purpose of the TWT conducted by the trial Court was to test the voluntariness of Exhibits B and B1, the statements made on 8/2/2013 and 25/2/2013 and no more. At the time the Court ordered for the conduct of the mini trial, the only evidence before the Court was the evidence of PW1 to the effect that the appellant volunteered the two statements to him. The alleged statement made to the white men on 24/12/2012, after the polygraph test, is not relevant for this purpose. The Court below
at pages 654 – 655 of the record held thus:
“The confessional statements, whose voluntariness was disputed and was being tried and were at the end of the trial admitted as Exhibits B and B1 were made on 8/2/13 and on 25/2/13 respectively. There is nothing in the evidence showing any nexus between a polygraph test of the appellant that ended successfully in his favour on 24/12/2012, and the voluntariness of his confessions made about two months thereafter. By his own testimony, when requested to make a written statement on the same 24/12/2012, he did so voluntarily, and if he was able to voluntarily make a written statement immediately after the conclusion of the polygraph test on 24/12/2012, then the argument that the same test that ended on 24/12/2012 in his favour did violate the voluntariness of his confessions on 8/2/2013, cannot be valid. There is no evidence that shows how the polygraph test of to 24th December, 2012 deprived the appellant of the free will or discretion to make or not to make the confessions about two months later on 8/2/2013 and 25/2/2013.
In any case, the issue here is not about the admissibility of the evidence of the
appellant while on the lie or truth detector machine and the results of the polygraph test or the written statement he made on 24/12/2012 following the conclusion of the test. The arguments about the admissibility of the polygraph test examination and result in evidence and the Canadian judicial decision in R V. Beland & Phillips (1987) 2 B, are therefore not relevant here.”
I am in complete agreement with their Lordships in this regard, particularly as there was no attempt by the prosecution to tender any polygraph test results in evidence.
Another vital issue is the evidence of TPW2, that on each occasion when he was brought before him, the appellant confirmed that he made his statements voluntarily. The procedure of taking a suspect who has made a confessional statement before a superior officer for confirmation is not a legal requirement. It is an administrative practice that has gained judicial approval, as an additional means of ensuring that a confessional statement is voluntary. See Smart Vs The State (2016) 1 – 2 SC (Pt. II) 41; Ojegele vs The State (1988) LPELR-2370 (SC) @ 15 – 16 B – B; Hassan vs The State (2017) 5 NWLR (Pt.1557) 1.
It behoves any suspect who alleges that his statement was obtained under duress, to take advantage of the opportunity of being taken before a superior police officer, to complain. The appellant did not complain, rather, on both occasions he admitted that he made the statements voluntarily. Learned counsel for the appellant submitted that the appellant was not in a position to complain because the superior officer, TPW2, was complicit in his oppression. With due respect to him, his address, no matter how erudite, cannot be a substitute for evidence. The Court below observed, and I agree with their Lordships, that if indeed, he had reasons why he felt compelled to confirm the voluntariness of his statements before TPW2, he had an opportunity during his defence in the TWT to explain his position to the Court. I also agree with their Lordships that the appellant’s confirmation that he made the statements voluntarily is consistent with the evidence of TPW1 and TPW2 during the TWT that the statements were voluntarily made. In my view, the affirmation by the Court below of the holding of the learned trial Judge in this regard cannot be faulted.
As observed earlier, digital recordings were made of the interview sessions and converted into DVDs, which were tendered in Court. The appellant has not raised any serious challenge to the recordings. The testimony of TPW3 remained unimpeached under cross-examination.
As regards the contention that the statements were not tendered during the TWT, the said statements were shown to and identified by TPW1 and TPW2. Both witnesses were copiously cross-examined by learned counsel for the appellant regarding the circumstances in which they were obtained. I am of the view that the issue should have been raised before cross-examination of the witnesses took place. Similarly, the contention that there ought to have been separate trials in respect of each statement and each accused, ought to have been raised at the trial. Having acquiesced in the alleged wrong procedure, it was too late for the appellant to complain on appeal. See State Vs Onyeukwu (2004) 14 NWLR (Pt.893) 340. Where a party, aware of an irregularity, proceeded to take steps other than to challenge the defect in the proceedings, he would be presumed to have acquiesced, condoned or waived the irregularity or
defect and cannot later be heard to complain about it. See Saleh vs The State (2018) LPELR-46337 (SC) @ 18 B – F; Nnakwe vs The State (2013) LPELR-20941 (SC).
There are concurrent findings of fact by the two lower Courts that the statements, Exhibits B and B1 were voluntarily made. The appellant was unable to dislodge the convincing evidence of the prosecution witnesses that all necessary steps were taken to ensure the voluntariness of the confessions. The findings have not been shown to be perverse and I am not persuaded to interfere.
In conclusion, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower Court delivered on 15th April, 2019, affirming the ruling of the Federal High Court, Abuja delivered on 22nd October, 2014 admitting the appellant’s extra judicial statements in evidence as Exhibits B and B1 is affirmed.