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Home » Nigerian Cases » Supreme Court » Bio V. State (2020) LLJR-SC

Bio V. State (2020) LLJR-SC

Bio V. State (2020)

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At the Ayetoro Judicial Division of the High Court of Ogun State, sitting at Ilaro, the appellant in this appeal, (as accused person), was arraigned, along with Musunmola Kolawole, on a two-count charge of conspiracy to commit armed robbery contrary to Section 6 and, punishable under Section 1 of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11, Laws of the Federation of Nigeria, 2004.

Sequel to his trial and conviction, the appellant appealed to the Court of Appeal (lower Court, for short): which Court dismissed his appeal, prompting his further and final appeal to this Court. He concreted two issues for the determination of his appeal. They were framed thus:

  1. Whether the lower Court was right to have held that the trial Court rightly admitted exhibit DD in evidence?
  2. Whether the Court below was right to have held that the trial Court did not breach the appellant’s right to fair hearing when the trial Court refused to hear the appellant’s pending application seeking the leave of the trial Court to be allowed to adopt the appellant’s final written



Arguments on the Issues

Issue One

Whether the lower Court was right to have held that the trial Court rightly admitted exhibit DD in evidence?

Appellant’s Contention

At the hearing of this appeal on October 17, 2019, learned counsel for the appellant, Shuaibu Enejoh Aruwa, Esq., adopted the brief filed on July 28, 2017. On this issue, he argued that the lower Court upheld the findings of the trial Court that the appellant voluntarily made the confessional statement – exhibit DD. He referred to the lower Court’s decision on page 148 of the record to the effect that the appellant retracted his confessional statement. He cited Saidu v. The State (1982) 4 SC 41. He urged the Court to allow the appeal.

Respondent’s Contention

On his part, Emmanuel Oboh adopted the respondent’s brief deemed, properly, filed on October 17, 2019. He pointed out that the appellant’s counsel failed to draw the Court’s attention to the evidence of the Prosecution at the trial within trial, pages 49 – 53 of the record and the ruling of the trial Court, pages 54 – 56 of the record. He also, referred to the


evidence of the appellant at the trial within trial, pages 52 – 53 of the record; Onyenye v. The State (2012) 15 NWLR (Pt. 1324) 586; Oseni v. The State (2010) 2 SCNJ 215; Solola v. The State (2005) 5 SCNJ 139, (2005) 11 NWLR (Pt.937) 460; Alarape v. The State (2001) 2 SCNJ 162, (2001) 5 NWLR (Pt.705) 79; Sule v. The State (2009) MSCQS (Pt. 384) 1069, (2009) 17 NWLR (Pt.1169) 33; Ikemson v. The State (1989) 20 MSCC (Pt. 11) 471, (1989) 3 NWLR (Pt.110) 455; Princewill v. The State (1994) 6 NWLR (Pt. 353) 703.

He contended that, since the trial within trial was concerned with the question of the retraction of the appellant’s statement, (and not its voluntariness), the lower Court rightly, upheld the decision of the trial Court. He maintained that the appellant only recanted the exhibit in contradiction to asserting its involuntariness. He urged the Court to dismiss this issue.

The appellant’s counsel, as already indicated earlier adopted his reply brief deemed properly, filed on October 17, 2019.

Resolution of the Issue

The decision of the lower Court, (page 147 of the record), which prompted this issue, was the said Court’s


resolution in favour of the trial Court’s reasons on pages 55 – 56 of the record. Listen to the trial Court’s reasons in favour of the prosecution:

The learned State counsel “…submitted that when a confession is challenged on the ground that the accused persons never made a statement at all, the issue is a matter to be decided at the conclusion of the case and the confessional statements can properly be admitted when tendered by the Prosecution, that in such a case, trial within trial is not called for.

I agree with the submission of the learned state counsel that the evidence of the two accused persons during trial within trial amounts to a retraction of their confessional statements and what is expected of the Court at this stage is to admit the confessional statements and take a decision on it at the end of trial …”

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On appeal before the lower Court, the Court, (that is, the lower Court), had this to say:

… A confessional statement made by an accused person does not become inadmissible merely because he retracted it at the trial. The retraction would be taken into consideration in determining the weight to be attached


thereto. Once a confessional statement is proved to have been made voluntarily and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground a conviction regardless of the fact that the maker resiled therefrom…. The retraction of exhibit DD will not affect the confessional statements once the Court is satisfied as to the truth …

(page 147 of the record)

My Lords, I find no reason for disturbing the judgement of the lower Court. I entirely, endorse the view that a retraction or denial of a confessional statement (as the lower Courts found the appellant to have done) does not affect its admissibility.

This has long been settled in the very old cases of German Awip v. Queen (1957) SCNLR 39; Itule v. Queen (1961) 2 SCNLR 183; the relatively old decisions ofIkpasa v. The State (1981) 9 SC7; Akpan v. State (1992) LPELR – 381 (SC) 36, (1992) 6 NWLR (Pt.248) 439; Osakwe v. State (1994) 2 SCNJ 57, reported as In re: Osakwe (1994) 2 NWLR (Pt.326) 273; Nwangbomu v. The State (1994) 2 NWLR (Pt. 327) 380; Bature v. State (1994) 1 NWLR (Pt. 320) 267; Eragua and Ors v. The A.-G., Bendel (1994) LPELR- (SC) 30;


Idowu v. State (1998) 11 NWLR (Pt. 574) 354; as well as the more recent decisions of Silas Sule v. State (2009) LPELR-3125 (SC) 28-30, G-B, (2009) 17 NWLR (Pt.1169) 33; FRN v. Iweka (2011) LPELR – 9350 (SC) 53; (2013) 3 NWLR (Pt. 1341)285; Oseni v. The State (2012) LPELR -7833 (SC) 22-23; (2012) 5NWLR (Pt.1293) 351.

What the law enjoins, in such situations, is the application of the principles which should be considered in determining whether or not to believe and act on such a confession which an accused person resiled from as enunciated in R. v. Sykes (1913) 8 C.A.R.233, 236; Kanu v. The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; (1962) 1 SCNLR 137; Obosi v. The State (1965) NMLR 119.

Other cases include: Onochie and Ors v. The Republic (1966) NMLR 307; (1966) 1 SCNLR 204; Jafiya Kopa v. The State (1971)1 All NLR 150; Dawa v. The State (1980) 8 – 11 SC 236; Ejinima v. The State (1991) 5 LRCN 1640, 1671, (1991) 6 NWLR (Pt.200)627; Arthur Onyejekwe v. The State (1992) 4 SCNJ 1, 9; (1992) 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State (2004)3 NWLR (Pt. 860) 367; (2004) 1 SCNJ 65; (2004) 1 SC (Pt.1) 65.


These are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v. The State (2012) LPELR -9348 (SC) 32-33, G-D; (2012) 17NWLR (Pt. 1329) 251; Kareem v. F.R.N. (2002) 7 SCM 73, (No.2)(2002) 8 NWLR (Pt.770) 664; Akpan v. The State (2001) 11 SCM 66; (2001) 15 NWLR (Pt. 737) 745.

The appellant’s counsel was, with respect, muddling up the law in his submissions: submissions which the lower Court rightly, discountenanced. I find no merit in this issue. I therefore, resolve it against the appellant and in favour of the respondent.

Issue Two

Whether the Court below was right to have held that the trial Court did not breach the appellant’s right to fair hearing when the trial Court refused to hear the appellant’s pending application seeking the leave of the trial Court to be allowed to adopt the appellants final


written address?

On this issue, the appellant’s counsel noted that, on May 20, 2014, the trial Court ordered parties to file their respective final written addresses within fourteen days. In furtherance thereof, the appellant’s counsel filed the final address on June 16, 2014 out of time. On June 18, 2014, he filed an application to regularise the said final address. He pointed out that the trial Judge refused the application: a position which was upheld by the lower Court. Relying on FAAN v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249) 219, 225 he urged the Court to set aside the lower Court’s position.

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Respondent’s Arguments

In reply, the respondent’s counsel cited page 62 of the record to show that, although the trial Court granted the parties twenty eight days (that is, fourteen days to either side) within which to file their addresses, at the end of this period, the appellant’s counsel was yet to comply with the said order.

​In consequence of the above, the trial Court ordered the Prosecution to file its own address within seven days. It, additionally, foreclosed the right of the defence to file its


address. The defence counsel was absent from Court. He furnished no reason for his absence.

He explained that it was after the Prosecution had filed its address that the defence counsel indicated his willingness to file his address. The trial Judge discountenanced the application for the enlargement of time.

He pointed out that the lower Court affirmed the correctness of the trial Court’s decision, pages 153 – 155 of the record. In effect, it was the appellant that refused to avail himself of the opportunity of being heard. He cited Adebayo v. Attorney General of Ogun State (2008) 7 NWLR (Pt. 1085) 201. He urged the Court to dismiss the appeal on this ground.

Resolution of the Issue

Undoubtedly, what prompted this issue was the decision of the lower Court at pages 152 et seq of the record. Listen to Fasanmi, JCA, (who read the leading judgement):

The right to be heard is a two edge (sic) sword. One, the Prosecution should be heard timeously and two, the accused (person) to avail himself of the right extended to him by the Court to present his own side of the case. The trial Court discharged its duty by creating an atmosphere for


fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turnaround to accuse the Court of denying him of fair hearing, Newswatch Communications Ltd. v. Ibrahim Attah (2006) 6 SCM 134, 138.

The learned trial Judge at page 64 of the record found as follows:

This morning, the learned defence counsel drew the attention of the Court to her application for extension of time claiming that she could not come to Court on the last adjourned date on health grounds, the Court threw it back to her that she was not ill but in another Court, she admitted that she was in a Court in Abeokuta.

Appellant’s counsel deliberately failed to avail himself of the opportunity of delivering his address. In spite of the closure of the appellant’s counsel’s address, the learned trial Judge gave consideration to the written address filed by the appellant in his judgement at page 73 of the record when he opined:

The learned defence counsel filed a written address out of time, she was not allowed to adopt it as her right to file written address had been foreclosed. I must say however


that I read through her written address for whatever it was worth, she did not raise any special defence in favour of the accused persons.

The learned trial Judge did not breach appellant’s right to fair hearing. An address is not a substitute for compelling evidence on the pages of the record. The evidence adduced at the trial of the case is overwhelming. The foreclosure of the appellant’s counsel’s address has not occasioned any miscarriage of justice. The trial Court was right to have convicted the appellant in view of the overwhelming evidence on the record …

(Pages 154 – 155 of the record; italics supplied for emphasis)

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My Lords, I find no reason for disturbing the flawless position of the lower Court. It cannot be gainsaid – and there are authorities in support of this – that a trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party.

​At that stage, the trial Judge will, and rightly too for that


matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his doorsteps by the trial Judge, cannot complain that he was denied fair hearing, Newswatch Communications Ltd. v. Atta (2006) LPELR -1986 (SC) 25; D – G; (2006) 12 NWLR (Pt.993) 144.

Thus, while it is the duty of the Court to create the atmosphere or environment for a fair hearing of a case, it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. That is not fair to the Court and counsel must not instigate his client to accuse the Court of denying him fair hearing, Chidoka v. First City Finance Co. Ltd. (2001) 2 NWLR (Pt. 697) 216, 227; Newswatch Communications Ltd. v. Atta (supra) 25; B-D.

​From the observation of the


trial Court set out above, it is obvious that counsel for the appellant falls into the category of those who think that litigation is a matter of planting mines to deceive the opponent with a view to destroying his case undeservedly in limine, Newswatch Communications Ltd. v. Atta (supra).

My Lords, I would like this to be placed in the public domain- as this Court once did – that litigation is a process where the parties set out their cases frankly and fully for the determination of the Court. Advocacy borne out of trickery and a miserly presentation of a client’s case cannot therefore, pass for good advocacy, Tunbi v. Opawole (2000) 2 NWLR (Pt. 644) 275; Ecoconsult Ltd. v. Pancho Villa Ltd. (2000) 3 NWLR (Pt. 647) 141; Ajidahun v. Ajidahun(2000) 4 NWLR (Pt. 654) 605; Newswatch v. Attah (supra).

Perhaps, nothing could be more fitting than this advice which this Court offered a long time ago. True, indeed, as the Court said the fair hearing principle formerly entrenched in Section 33 of the 1979 Constitution, and now Section 36 of the 1999 Constitution, is not for the weakling, the indolent or the lazy litigant.

​Truth told, the principle


of fair hearing is for the party who is alive and agile in the judicial process: a party who takes advantage of the principle at the appropriate time. Contrariwise, the principle is not available to a party who sets a trap in the litigation process against the Court (as the appellant’s counsel did at the trial Court) and turns around to accuse the Court of assumed wrong doing even when the so-called wrong doing was, as a matter of fact, propelled or instigated by the party, through his counsel, Newswatch Communications Ltd. v. Atta (supra). I have no hesitation in resolving this issue against the appellant.

Having resolved the two issues against the appellant. This appeal must be, and is hereby, dismissed as it has no redeeming feature. Appeal dismissed. I affirm the concurrent judgements of the lower Courts.


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