Commissioner Of Police V. Ephraim Alozie (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

My Lords, this appeal turns on a very narrow compass. I shall return to it anon. Before then, however, it would only be proper to trace its forensic trajectory from the Court of first instance to this final Court. The respondent herein, Ephraim Alozie, was arraigned before the High Court of the Federal Capital Territory, Abuja, for the offences of conspiracy and armed robbery.

In proof of their case, the prosecution called five witnesses, PW1 – PW5. While PW2, a co-accused person, testified in favour of the Prosecution. PW1 and PW5 were the police Officers involved in the investigation of the case. While the PW1 received the report of the robbery incident and recovered certain items from the locus criminis, the Investigating Police Officer, PW5, in his evidence, identified and tendered a confessional statement which the respondent, allegedly made. The said statement was recorded by Emmanuel Okoye who was a member of the Investigating team. The said statement was admitted in the proceedings as Exhibit B.

The evidence of the PW2 was that both himself and the

respondent were members of an armed robbery gang. He, it was, who spied on the victim, the deceased person, prior to the robbery incident.

On his part, the respondent, not only denied making the said Exhibit B, he equally denied committing the offence he was charged with. The said Court (hereinafter, simply, referred to as “the trial Court”), upon finding him guilty as charged, convicted and sentenced him. His appeal to the Court of Appeal, Abuja Division was successful. The said Court (hereinafter, simply referred to as the lower Court”) quashed his conviction and sentence, hence, this further appeal by the prosecution, wherein this Court was entreated to determine the sole question:

Whether the Court below was right in rejecting and expunging the confessional statement, Exhibit B, from the evidence on the ground of failure to conduct trial within trial resulting in the discharge and acquittal of the respondent of the offences of criminal conspiracy and armed robbery

The respondent also, formulated a sole issue for the determination of the appeal. It was framed thus:

Whether the Court below was right and justified in

discharging and acquitting the respondent of the offences of criminal conspiracy and armed robbery

My Lord, I take the view that the appellant sole issue better captures the main agitation of this appeal. It would therefore, be adopted as the sole issue for the determination of this appeal.

Thus, for the avoidance of any doubt, the sole issue for the resolution of the divergent submissions hereunder is:

Whether the Court below was right in rejecting and expunging the confessional statement, Exhibit B, from the evidence on the ground of failure to conduct trial within trial resulting in the discharge and acquittal of the respondent of the offences of criminal conspiracy and armed robbery

ARGUMENTS OF COUNSEL ON THE SOLE ISSUE

APPELLANT’S CONTENTION

When this appeal was heard on October 27, 2016, Chief F. F. Egele, for the appellant, adopted the Amended brief of argument filed on September 19, 2016, although deemed properly filed on October 27, 2016. In the said brief, Sections 28 and 29 of the Evidence Act 2011 were cited on the relevance and admissibility of a confessional statement of an accused person. The following cases were

cited; Nsofor and Anor v State (2005) All FWLR 397 (pt 242) 397, 409-410; Ikemson and Ors v. The State [1989] 3 NWLR (pt. 110) 455, 476.

It was contended that where an accused person objects to the voluntariness of a statement, that issue must first be determined through a trial within trial before its admissibility or otherwise, Ojegele v The State [1988] 1 NWLR (pt. 71) 414; Madjemu v. The State [2001] 9 NWLR (pt. 718) 349.

Counsel submitted that the mere denial of a confessional statement is not a sufficient ground for rendering it inadmissible, citing Igago v The State (1999) 10-12 SC 84; [1999] 14 NWLR (pt. 637) 1; Madjemu v The State (supra).

He pointed out that, at the trial Court, the respondent denied making the confessional statement at the point it was being tendered by PW5, the investigating police Officer. He referred to Page 203 of the record.

He explained that the trial Court admitted the statement as Exhibit B, holding that the weight to be attached to it would be determined later. He observed that, by the above objection, the respondent not only disputed the correctness of its contents, but also denied making the statement. In his

view, since that objection amounted to a retraction of the confessional statement, its admission in evidence as Exhibit B was proper, Obidiozo v State (1987) 4 NWLR (pt. 67) 748; Ehot v State [1993] 4 NWLR (pt. 290).

He further submitted that, since the respondent denied making the said confessional statement, there was no basis for a trial within trial, citing the objection to the effect “he did not make any statement.” He pointed out that the ground of the objection was neither hinged on the complaint that he was tortured to make the statement nor that he made the statement under duress, citing the respondent’s evidence-in- chief at pages 209 210 of the record where he insisted that he made no statement to the police.

He noted that there was a marked distinction between the admissibility of a confessional statement and the weight attachable to it through the ascription of evidential value. He cited Ubierho v The State [2002] 5 NWLR (pt. 819) 644; Madjemu v The State (supra) as authorities which laid down the guide for determining the truth or veracity and what weight to attach to a confessional statement.

He submitted that for a

confessional statement to be acted upon in convicting an accused person, it must be direct, positive, unequivocal and point to the fact that the accused person committed the crime, Odu v F.R.N. [2002] 5 NWLR (pt. 761) 615; Amachree v Nigerian Army [2003] 3 NWLR (pt. 807) 256.

He maintained that, by the guidelines for accessing a confessional statement, there was abundant evidence, outside the confessional statement – Exhibit B – pointing to the fact that the respondent committed, or partook in the said offences of robbery, citing the testimonies of PW2, page 187 (lines 19-26) of the record which, in his view, clearly supported and corroborated Exhibit B and the fact that the respondent committed the said offences.

He drew attention to the confessional statement of the co-accused person, Peter Ogu, Exhibit A, pages 25 – 26 of the record. He explained that Peter Ogu was also convicted by the trial Court: a conviction that was affirmed by the Court below. He observed that Exhibit B, at pages 33-34 of the record, mentioned Peter Ogu as one of the robbers. He however, conceded that the statement of an accused person to the police is only evidence against

him and not evidence against a co-accused person.

According to him, the evidence of a co-accused person, implicating an accused person directly or inferentially in the commission of the crime, must be examined before coming to the conclusion that he had a case to answer or committed the crime. He citedOhaka and Ors v The State [1988] 7 SC (pt. II) 24 , 37, for this view.

Counsel canvassed the view that a Court can act on a retracted confessional statement to convict an accused person, Nkwuda Edamine v The State [1996] 3 NWLR (pt. 438) 530; Gira v The State [1996] 4 NWLR (pt. 443) 375, 388. He maintained that the admissibility of the respondent’s confessional statement, Exhibit B, and the high evidential value which the trial Court accorded it, were well- founded.

In his submission, Exhibit B, and other pieces of evidence no matter how slight they were, met the standard of proof that is, proof beyond reasonable doubt. In effect, the prosecution successfully established the ingredients of the offences of criminal conspiracy and armed robbery,Ikemson v. The State (supra).

He invited the Court to hold that the lower Court erred in rejecting and

expunging Exhibit B on the ground that the trial Court ought to have conducted a trial within trial to determine its admissibility. He finally, urged the Court to hold that the lower Court was in error in acquitting and discharging the respondent.

RESPONDENTS ARGUMENTS

On his part, Aliyu Saiki, for the respondent with I. T. Hassan and A. Abdulwahab (Mjss), adopted the respondent’s brief of argument. In the main, his contention was that a person standing trial for an offence could be convicted based on his admission of guilt, that is, his confession or by the surrounding circumstances, that is, circumstantial evidence; or by an eye witness account.

He made the point that the basis of admissibility of a confessional statement is voluntariness, citing Section 29 (2) of the Evidence Act, 2011. He maintained that once an accused person makes a statement under caution admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional, citing Ikemson and Ors v The State (supra). He pointed out that, in consequence, any confession made or extracted through violence, threats, promise or any

extraneous circumstances suggesting lack of free will would be irrelevant and cannot be acted, or relied, upon at the trial of the accused person, Section 29 of the Evidence Act.

He canvassed the view that a conviction could be based solely on the confessional statement of the accused person, Ubierho v The State (supra). He contended that a Court can act on a retracted confessional statement to convict an accused person, Nkwuda Edamine v The State (supra).

He explained that, at the trial, the respondent objected to the admissibility of the purported confessional statement at the point it was being tendered by PW5, the investigating police officer, (IPO). He pointed out that the respondent’s objection was on the ground that he signed the purported confessional statement under duress and therefore the statement was not voluntary, citing page 203 of the record. He noted that the trial Court, instead of conducting a trial within trial, admitted the statement in evidence and marked it Exhibit B, stating that the weight to be attached to it would be determined later.

He submitted that the trial Court was in grave error in admitting the alleged

confessional statement in the face of the respondents objection without first determining the voluntariness or otherwise of the statement by conducting a trial within trial. He maintained that the conduct of the trial within trial was imperative and imminent considering the fact that the appellants witness, the PW2, had earlier testified thus “They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape, [page 188 of the record].

In his view, the fact that the respondent objected to the admissibility of the statement on the ground that he did not make the statement but signed it under duress raised the question of voluntariness which the trial court ought to have determined first, Nsofor v State [2005] AII FWLR (pt. 242) 397.

He observed that the respondent, in his defence, explained the surrounding circumstances leading to his signing the statement Exhibit B under duress, citing Nsofor v State (supra). He further, submitted that where a confessional statement was the mode adopted to establish the guilt of the accused person in criminal proceedings, voluntariness

comes before the truth of the statement, that is to say, admissibility must be determined first before any consideration of the content as to its truthfulness.

Consequently, before the statement could be relied, and acted, upon it must have been properly and rightly admitted in evidence, Nsofor v State (supra) 415.

He maintained that the alleged confessional statement of the respondent, Exhibit B, was wrongly admitted in the face of the objection and the trial Court’s failure to conduct a trial within trial to ascertain and determine its voluntariness. He therefore, took the view that the trial Courts reliance on Exhibit B to convict the respondent was misplaced and in error. He invited the Court to hold that the lower Court was right to have rejected and expunged Exhibit B for having been wrongfully admitted in evidence by the trial Court.

He submitted that, in criminal trials, the establishment of the commission of a crime does not transcend the establishment of the guilt of the accused person except there is a link or nexus between the accused person and the commission of the crime, citing Obiakor v State (2002) 6 SC (pt. 1133)

39-40; Bozin v State (1985) LPELR -799 (SC).

He insisted that, in this appeal, there was no evidence linking the respondent with the commission of the offences charged. He pointed out that the appellant’s witnesses did not link the respondent with the crime except PW5 who merely, tendered the alleged confessional statement, purportedly recorded by his colleague without more. PW3, the victim and an eye witness to the robbery, did not identify the respondent as one of the robbers. He urged the Court to resolve the sole issue in favour of the respondent.

RESOLUTION OF THE SOLE ISSUE

Now, as pointed out earlier, when the Prosecution applied that the statement of the appellant (as second accused person) be admitted in evidence through PW5, the Investigating police Officer, counsel for the respondent objected thus:

“We are objecting to the admissibility of the statement in evidence. The accused said he was put under duress to sign the statement, he never made any statement.”

[page 203 of the record; italics supplied for emphasis]

The trial Court admitted the statement in evidence and marked it as Exhibit B, holding that it “would

determine the weight to attach to the statement at the end of the day,” [page 203 of the record]. At page 236 of the record, the said trial Court, observed that in the same vein, a critical look at Exhibit B shows that DW2, Ephraim Alozie, signed the document and not (sic) thump print. What it means is that the accused persons are denying [the exhibits] in totality.

Further, at page 237 of the record, the trial Court maintained that:

“…it is very unlikely that the Investigating Police Officer who recorded the statementsseparately would concoct such story only to implicate the accused persons in a matter of life and death. Again, it is very unlikely that the Superior Police Officer, I. G. Audu, Superintendent of Police, would endorse the two statements to confirm that they were made by the two accused persons…”

The Court took the view that the “retraction of the said exhibitsis only an afterthought. The denial of the statements cannot avail the accused, [page 238 of the record].

On appeal, the lower Court found thus:

“There is no doubt that the trial Judge only considered the last part of the

objection to the admissibility of the statement, to the effect that the appellant did not make a statement. He therefore admitted it in evidence and said he would consider its weight later on. I think the trial judge completely missed the point when he failed to consider the first ground of objection to the admissibility of the statement, and the most crucial part for that matter. The appellant said he was put under duress to sign the statement.’

It is as clear as day, that the appellants objection was to the voluntariness of the statement sought to be tendered, and the Judge ought to have known so. Apart from the clear words used in objecting, other evidence led before the Court, clearly raised the issue of the voluntariness of the statement, which the trial judge should have considered. For before the Prosecution applied to tender the appellant’s statement, PW2, David Udoh, had given evidence before the Court and stated at page 188 of the record that:

‘They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape. Peter said he was the one who shot the man.. Ephraim said he was the one who

was holding the gun’

This piece of evidence was already before the Court when the statement, Exhibit B, was sought to be tendered. It should not have been ignored in toto by the trial Judge when the appellant raised the voluntariness of his alleged confessional statement. Since PW2 was a living witness to the flogging of the appellant, he was a competent witness who might have been called by the appellant to testify, if a trial within trial had been conducted, as it ought to have been, to ascertain the voluntariness of the statement.

In my considered view, the trial Court here ought to have known and ought to have considered the objection to the admissibility of the statement was clearly and crucially based on its non-voluntariness and not that it was simply a denial of making it. In such a situation, the trial Judge had a duty to subject that statement to the test of voluntariness before he could admit it into (sic) evidence. The only way known to law is to conduct a trial within trial

Since the trial Court in this appeal had failed to conduct a trial within trial, and the objection was on the voluntariness of the statement, the

statement, i.e Exhibit B, was wrongly admitted in evidence. It ought not therefore to be considered. It is therefore hereby expunged from the record, and for the avoidance of doubt, all references and reliance on it, to convict the appellant are also expunged from the record..”

[pages 300 -304 of the record]

As indicated earlier, when the Prosecution applied that the said statement be admitted in evidence through PW5, the investigating Police Officer, counsel for the respondent objected thus:

“We are objecting to the admissibility of the statement in evidence. The accused said he was put under duress to sign the statement, he never made any statement.”

[page 203 of the record; italics supplied for emphasis]

The appellant counsel contended that, by the above objection, the respondent not only disputed the correctness of its contents, but also denied making the statement. In his view, since that objection amounted to a retraction of the confessional statement, its admission in evidence as Exhibit B was proper.

With profound respect, counsel would seem by this submission, to be conflating two dissimilar situations. Surely, it is a

positive rule of our accusatorial jurisprudence that no statement of an accused person is admissible against him unless it is shown by the prosecution to have been made voluntarily.

This principle is as old as the Laws received from England. In England, the principle is as old as Hale, Gbadamosi and Anor v State (1992) LPELR-SC.290/1991, citing Ibrahim v R (1914) AC, 559 609; Ikpasa v State [1981] 9 SC 7, 29; John Dawa and Anor v State (supra) at 258; Auta v State [1975] 1 All NLR 163, 169.

The question of involuntariness often arises where an accused person alleges that he was subjected to torture in the making of a confessional statement. In other words, though, he made the statement, it was not a product of his free will since he was forced to make it, Mbang v State [2013] 7 NWLR (pt 1352) 48; Ibeme v State [2013] 10 NWLR (pt 1362) 333; Olatunbosun v State [2013] 17 NWLR (pt 1382) 167.

In this sort of situation, the trial Court is under obligation to conduct a trial-within-trial (also known as voire dire or mini trial) to determine the veracity or otherwise of the claim. As this Court (per Nweze, JSC) explained in FRN V Dairo (2015)

LPELR -24303 (SC) 44-45:

“..the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of involuntary and hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable. The cases on this point are legion: they are countless. Only one or two of them will be cited here, Ogudo v The State (2013) LPELR-20138 (SC); Auta v State (1975) 4 SC 125; Effiong v State (1978) 8 NWLR (Pt 562) 362; Lasisi v State (2013) LPELR- 20183 (SC) 29; The State v Rabiu (2013) LPELR- 20183 (SC) 29; Ogudu v The State (2011) LPELR-860 (SC); Nwangbonu v State (1987) 4 NWLR (Pt 67) 748; Ogunye v State (1999) 5 NWLR (Pt 664) 548, 570.

Scholars are also unanimous on this issue, I.H Dennis, The Law of Evidence [second Edition] (London: Sweet and Maxwell, 2002) 184; L. O, Aremu, “The Voluntariness of Confessions in Nigerian Law,” in 1977-1980 Nigerian Law Journal, 32; J Amadi, Contemporary Law of Evidence in Nigeria [Vol.1] (Port Harcourt: Pearl Publishers, 2011) 324; M. A. Owoade, “Voluntariness of Confessions in Nigerian Law – Need

for Reform,” in 1987 Nigerian Current Law Review 179.”

On the other hand, a retraction or denial of a confessional statement does not affect its admissibility, Mbang v State (supra). In other words, where an accused person denies his confessional statement, the trial Court has no obligation to conduct a trial within trial, Mbang v State (supra); Abdullahi v State [2013] 11 NWLR (pt 1366) 435.

This has long been settled in the very old cases of R v. Sapele and Anor (1952) 2 FSC 74; R v Itule (1961) All NLR 462; the relatively old decision of Ikpasa v The State (1981) 9 SC 7; Akpan v State (1992) LPELR -381 (SC) 36; Osakwe v State [1994] 2 SCNJ 57; Nwangbonu v The State [1994] 2 NWLR (pt 327) 380; Bature v State [1994] 1 NWLR (pt 320) 267; Eragna and Ors v The AG, Bendel (1994) LPELR (SC) 30; Idowu v State (1996) 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; FRN v Iweka (2011) LPELR -9350 (SC) 53; Oseni v. The State (2012) LPELR -7833 (SC) 22-23.

As has been well settled, a confession, if voluntary, is deemed to constitute a relevant facts as against the person who made it, hence

it is admissible against that person only, Nsofor v State [2004] 18 NWLR (pt 905) 292; Lasisi v State [2013] 9 NWLR (pt 1358) 74; Saidu v State [1982] 4 SC 41; Adebayo v AG, Ogun State [2008] 2 SCNJ 352.

As a corollary, the Courts are bound to reject an accused person’s confession which eventuated from torture, duress, threat or inducement, Ehot v. State [1993] 4 NWLR (pt 290) 644; Nwosu v State [1986] 4 NWLR (pt 35) 326; Odeh v FRN [2008] 12 NWLR (Pt 1103) 1.

The only process of determining the voluntariness of a confession is through a trial within-trial, Mbang v State [2013] 7 NWLR (pt 1352) 48, 72. This is also the only process of testing the admissibility of a confession where it is challenged on the grounds of threat, undue influence, duress etc, Nsofor v State (2004) 18 NWLR (pt. 905) 292; Auta v State [1975] 4 SC 125; Gbadanosi v State [1991] 6 NWLR (pt 196) 182.

As the lower Court insightfully found:

“…I think the trial Judge completely missed the point when he failed to consider the first ground of objection to the admissibility of the statement, and the most crucial part for that matter. The appellant said he was put under duress

to sign the statement.’ It is as clear as day, that the appellants objection was to the voluntariness of the statement sought to be tendered, and the Judge ought to have known so. Apart from the clear words used in objecting, other evidence led before the Court, clearly raised the issue of the voluntariness of the statement, which the trial Judge should have considered. For before the prosecution applied to tender the appellant statement, PW2, David Udoh, had given evidence before the Court and stated at page 188 of the record, that:

‘They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape. Peter said he was the one who shot the man. Ephraim said he was the one who was holding the gun’

This piece of evidence was already before the Court when the statement, Exhibit B, was sought to be tendered. It should not have been ignored in toto by the trial Judge when the appellant raised the voluntariness of his alleged confessional statement. Since PW2 was a living witness to the flogging of the appellant, he was a competent witness who might have been called by the appellant to

testify, if a trial-within-trial had been conducted, as it ought to have been, to ascertain the voluntariness of the statement.

In my considered view, the trial Court here, ought to have known and ought to have considered the objection to the admissibility of the statement was clearly and crucially based on its non-voluntariness and not that it was simply a denial of making it. In such a situation, the trial Judge had a duty to subject that statement to the test of voluntariness before he could admit it into (sic) evidence. The only way known to law is to conduct a trial within trial…

Since the trial Court in this appeal had failed to conduct a trial within trial, and the objection was on the voluntariness of the statement, the statement, i.e, Exhibit B, was wrongly admitted in evidence, it ought not therefore to be considered at all by the trial Court or this Court. It is therefore hereby expunged from the record, and for the avoidance of doubt, all references and reliance on it, to convict the appellant are also expunged from the record..”

(pages 300 -304 of the record)

My Lords, I am entirely in agreement with the above findings and

reasoning of the lower Court. Since even the Prosecutions witness, PW2, was honest enough to concede to the torture which prompted the so-called confession of the accused person, the lower Court was right in holding that:

“In my considered view, the trial Court here, ought to have known and ought to have considered the objection to the admissibility of the statement was clearly and crucially based on its non-voluntariness and not that it was simply a denial of making it. In such a situation, the trial Judge had a duty to subject that statement to the test of voluntariness before he could admit it into (sic) evidence. The only way known to law is to conduct a trial within trial…

Since the trial Court in this appeal had failed to conduct a trial within trial, and the objection was on the voluntariness of the statement, the statement, i.e. Exhibit B, was wrongly admitted in evidence. It ought not therefore to be considered at all by the trial Court or this Court. It is therefore hereby expunged from the record, and for the avoidance of doubt, all references and reliance on it, to convict the appellant are also expunged from the record…”<br< p=””

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[pages 300 -304 of the record]

In the circumstance, I find no merit in the appellant’s complaint against the above findings and conclusion. Contrariwise, the submissions of the learned counsel for the appellant would have been well-taken if what was in issue was the question of the retraction of the appellant confession.

As indicated earlier, a retraction or denial of a confessional statement does not affect its admissibility, Mbang v State (supra). In other words, where an accused person denies his confessional statement, the trial Court has no obligation to conduct a trial within trial, Mbang v State (supra); Abdullahi v State (2013) 11 NWLR (pt 1366) 435; R. v Sapele & Anor (supra); R v Itule (supra); Osakwe v State (supra); Nwangbonu v The State (supra); Bature v State (supra); Eragna and Ors v The AG Bendel (supra); Idowu v State (supra); Sule v State (supra); FRN v Iweka (supra); Oseni v The State (supra).

In the latter situation, that is, where an accused person retracts or resiles from his confessional statement, the trial Court would be perfectly right to admit it and determine the weight to be attached to it in its judgment.

For this purpose, it [the trial Court] would consider issues, such as the ones indicated hereafter.

They 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; Kareem v FRN [2002] 7 SCM 73; Akpan v The State [2001] 11 SCM 66.

These principles which were enunciated in R v. Sykes (1913) 8 C.A.R. 233, 236 have been consistently, endorsed by our superior Courts, Kanu v The King (1952) 14 WACA 30; The Queen v Obiasa (1962) NLR 651; [1962] 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Onochie and Ors v The Republic (1966) NMLR 307; Jafiya Kopa v. The State (1971) 1 All NLR 150; Dawa v The State [1980] 8 -11 SC 236; Ejinina v The State [1991] 5 LRCN 1640, 1671; 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.

However, the situation in the instant case was different, As the lower Court found:

“.. before the Prosecution applied to tender the appellant’s statement, PW2, David Udoh, had given evidence before the Court and stated at page 188 of the record, that;

‘They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape. Peter said he was the one who shot the man, Ephraim said he was the one who was holding the gun…’

This piece of evidence was already before the Court when the statement, Exhibit B, was sought to be tendered. It should not have been ignored in toto by the trial Judge when the appellant raised the voluntariness of his alleged confessional statement. Since PW2 was a living witness to the flogging of the appellant, he was a competent witness who might have been called by the appellant to testify, if a trial-within-trial had been conducted, as it ought to have been, to ascertain the voluntariness of the statement.”

[pages 300 -304 of the record]

Regrettably, the trial Court failed to ascertain the

voluntariness of Exhibit B which it admitted and acted upon in convicting the appellant. The lower Court was therefore right in expunging the said exhibit from the record. In all, this appeal is devoid of any scintilla of merit. Accordingly, I hereby enter an order dismissing it. Appeal dismissed.

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SC.60/2013