Inusa Saidu V. The State (1982)
LawGlobal-Hub Lead Judgment Report
O. OBASEKI, J.S.C.
The appellant was first arraigned before Nnaemeka-Agu, J., sitting at Onitsha High Court on a charge of murder of Jeremiah Godwin Ufondu. Nnaemeka-Agu, J., heard evidence from 8 prosecution witnesses and three defence witnesses including the accused persons on 15/2/77 to 17/6/77. He also heard a part of the address of defence counsel before adjourning on the 17/6/77 for the address to continue on 5/8/77. Before the adjourned date, Nnaemeka-Agu, J., was appointed a Justice of the Federal Court of Appeal and lost jurisdiction to continue the hearing to judgment. Thereafter, the appellant was then arraigned before Nwokedi, J., for trial de novo on the same information. Before Nwokedi, J., 7 witnesses called by the prosecution testified while the appellant alone testified in his own defence. Counsel for the defence and counsel for the prosecution addressed the court before Nwokedi, J., delivered a considered judgment on 22/12/78 wherein he found the appellant guilty, convicted him and sentenced him to death. The facts of the case proved and accepted by the learned trial Judge Nwokedi, J., are simple and are briefly as follows:
The appellant, an Hausa man from Yola, Adamawa, Gongola State, and a soldier, serving in the Nigerian Army, stationed at Orlu, after receiving treatment for 13 days as a patient in the Military Hospital at Onitsha was discharged on the 14th day. He left the hospital ostensibly to return to his unit. He walked along Bishop Shanaham Street sucking orange fruit as he moved on. It was 11.00 am on 7/10/75, when he came to 41 Bishop Shanaham Street. At that point and place he threw away the remains of the orange he had sucked dry carelessly and it landed on the deceased on the right cheek. The deceased did not take kindly to such conduct and he remonstrated with the appellant. The appellant retorted, became abusive and poured out of his mouth the words “Da brubanka Nyamirin Banza” which was taken as abuse by the deceased. The appellant, still in a rage, jumped over a gutter, got to where the deceased was and gave him a kick on his private part. A fight ensued but stopped after Adolphus, a son of the deceased, had been detailed to go for the police by P.W.2, the wife of the deceased. There were five Hausamen civilians around who showed sympathy for the appellant. Following the insistence of the 5 Hausamen that the deceased be taken to and handed over to the military police, they (five Hausamen) grabbed and took the deceased and headed for the military police station at Uga Street Onitsha. The appellant also accompanied them and, of course, the relations of the deceased including 2nd PW his wife followed. On the way to the military police station, they beat up the deceased and the appellant drew his dagger and stabbed the deceased on the neck. Mortally injured, the deceased fell to the ground whereupon the appellant and the five Hausamen took to their heels and disappeared from view. The deceased bleeding profusely from the stab wound, got up and rushed to the civilian police station. There he, through PW 2, lodged a complaint before he was taken to Iyienu Hospital where he later died following heavy loss of blood from the stab wound which extended to the oesophagus. The appellant after being identified by 2nd PW to the police was later arrested that afternoon and charged. The appellant after being cautioned, made a statement Exhibit C to the police – Corporal Igbinosun and because it was in part confessional, PW 3, Frank Odita, attested it after the appellant accepted the statement as his. This statement was admitted for identification but it has featured very prominently in the judgment. It reads:
“On 7/10/75 I go Bishop Shanaham Road, them dey drink. Me I buy my drink. One man de there, he begin fight me. They reach like seven people wey they there. Me self I beat them. Them dey cause me, and me I begin dey cause them. One man get up and give me slap and I ask am why he slap me. That time they don gather me dey beat me. They fell me down, they begin they march me say we all be army. When I got up, I take one knife wey I pick from ground and I chuck the man for neck. People wey dey there take the knife and my money the sum of N70 with my shoe and shirt. I no know any of this people before. I nor well na belly dey pain me. Na only neck I cut am. I pick the knife from one girl pan who dey sell orange. I nor know the man before and we nor quarrel. I nor know any of them before. I know the place, but I nor fit know any of the people. I do not know if the man die.” Signed YNKN”
P.W.2, Comfort Ufondu was the only witness who testified as an eye witness among the 7 witnesses who testified at the instance of the prosecution.The conviction of the appellant was founded principally on the confessional statement Exhibit C, and the oral testimony of PW 2 by the learned trial Judge who said inter alia in his judgment:
“On the controversial alleged confessional statement of the accused Exhibit C, I have no doubt in my mind that the accused made the statement. I believe the evidence of PW 3, Mr. Odita that accused admitted before him that he made the statement voluntarily. I am satisfied that all the requirement for admissibility of confessional statements were complied with and that the statement was properly admitted in evidence at this trial.” (Underlining mine).
“Having settled the issue of the confessional statement of the accused, the court could on the basis of that statement convict the accused. But as I said earlier, I believe completely the evidence of the wife of the deceased. I am aware of the fact that PW2 is the wife of the deceased and that her evidence should be received with caution. In the circumstances …… I nevertheless caution myself about her evidence. But her evidence is not the only evidence against the accused. The confessional statement taken together with the evidence of PW2 in my view reinforces my belief that the accused killed the deceased.” (Underlining mine). Aggrieved by the conviction and sentence, the appellant appealed to the Federal Court of Appeal. His appeal was heard by the Federal Court of Appeal (consisting of Ademola, Aseme and Belgore, JJ.C.A) and in a considered judgment, the court (Belgore, J.C.A., dissenting) dismissed the appeal. Still aggrieved, he has brought his appeal against conviction and sentence to this court on 6 grounds.
After reading counsel’s brief and hearing submission of counsel on ground 2, I am of the opinion that the ground raises substantial issues of law, the resolution of which will dispose of this appeal in favour of the appellant. The ground reads: “The majority judgment was erroneous in point of law in so far as their Lordships (majority) failed to uphold the appellant’s complaint about the wrong admission of the alleged confessional statement (Exhibit C) said to have been made by the appellant who denied doing so and on which the trial court relied and which was wrongly admitted as Exhibit ‘C’ despite objection and merely identified by PW 3”. Learned counsel for the appellant submitted that Exhibit C was never admitted in evidence by the learned trial Judge Nwokedi, J., as a confessional statement made by the appellant and so did not form part of the prosecution case against the appellant and should be expunged. That being so, learned counsel submitted, its use by the learned trial Judge was a serious error and since it formed the foundation of the learned trial Judge’s belief (of the evidence of PW2 and) that the appellant killed the deceased, its expunction deprives the evidence of PW2 of its reinforcement, weight and value on which to convict.
Intimately connected with ground 2 is ground 4 which reads: “The majority judgment was erroneous in point of law by failure of their Lordships (who gave majority opinions) to uphold the complaint of the appellant that the prosecution failed to call beside the lone witness (the deceased widow) any of the other witnesses who were alleged to have witnessed the stabbing and despite the written application of the defence for the said alleged eye-witnesses to be made available for cross-examination, a ground that was conceded by the State at the appeal hearing. Thus the evidence was based on the evidence of only an interested witness.” Learned counsel for the appellant’s submission on this ground is that if these witnesses had corroborated the evidence of PW2, it would have made the evidence of PW 2 reliable, and given it sufficient weight and value to establish the truth of the incriminating part of Exhibit C if properly admitted, and constitute a body of unassailable evidence on which to convict the appellant.There is also, in my view, substantial merit in this submission when considered in the light of the evidence given by PW2, denying previous knowledge of the appellant and that the 5 Hausa men beat up the deceased. The testimony on cross-examination reads: “The five Hausa men who were removing the deceased to the military police at a stage beat up the deceased and later accused stabbed him. Accused before this incident I did not know, I got to know his name after his arrest. I mentioned the name of the following Hausa men to the police as the persons who beat up my late husband, viz: (1) Merisa, (2) Umoru (3) Gombe (4) Daraza and (5) Melpha.”
The submissions made in this appeal on the above grounds affect the quantum, quality and weight of the evidence given to establish the identity of the appellant as the murderer of the deceased.
The issues raised in the brief and during the argument of counsel before us are fourfold and give rise to the following questions:
“(1) Was the alleged controversial confessional statement, Exhibit C, admitted for identification only or in evidence as part of the prosecution’s case
(2) If it was admitted in evidence as part of the case for the prosecution is the statement confessional in the fullest extent within the true and full meaning of the word confessional; and
(3) Was the confessional statement, Exhibit C, proved to be voluntarily made and true to satisfy the principles and conditions for admissibility and qualify it for assessment and evaluation in the process of arriving at a finding and decision.
(4) Was the failure of the prosecution to call all the witnesses listed at the back of the information and the remaining eye witnesses as prosecution witnesses not a breach of the duty on the prosecution and fatal to the case for the prosecution
These issues are weighty issues. Their resolution will determine whether the appellant will succeed or fail in this appeal.The issues were also raised before the Federal Court of Appeal. That court adverted its mind to them but failed to give them the full measure of intellectual attention. Ademola, J.C.A., dealing with them said, inter alia: “On the question of Exhibit C, the contention of the appellant’s counsel was that, it was admitted through somebody else other than the person who recorded it. I do not think that there is any substance in this objection in as much as 3rd PW the police officer through whom it was admitted knows the writing and is familiar with the signature of the recorder – Section 6 (1) Evidence Act …….
To say that the appellant was deprived of his right of cross-examination on it as if he was the recorder of the statement is putting the matter too highly. Infact, Exhibit E which was admitted without objection by the defence is a record of the former abortive proceedings in this case before Nnaemeka-Agu, J. ……. I notice however that the learned trial Judge did not make use of this Exhibit E in his consideration of the whole of the evidence before him”……….. “Next is the submission that Exhibit C did not name the deceased as having been stabbed by the appellant, it is sufficient to say that the statement talked of the appellant stabbing a man during a fight with many people. The learned counsel for the appellant submitted that the evidence of the wife of the deceased 2nd P.W. should have been treated with great caution.
It is to be noted that the learned trial Judge directed his mind to this very problem and in addition to the evidence of the wife of the deceased used the confession in Exhibit C to arrive at the conclusion that it was the appellant who stabbed the deceased on the day in question. I can find nothing wrong in the course which the learned trial Judge took over this matter. On the question of not calling all the witnesses listed at the back of the information, it is settled law that the prosecution is not obliged to call all the witnesses listed but calls those material to its case”. (Underlining mine).
Aseme, JCA., also dealt with the issues in his judgment when the learned Justice said: “There are however two important points in the argument of the learned counsel I would like to comment upon. These are firstly the identity of the person who killed the deceased and secondly the admissibility of the alleged confessional statement Exhibit B. On the question of identity the only eye witness was 2nd PW Comfort Ufondu, the widow of the deceased……… This woman was present throughout the whole episode …….. up to the time that the deceased was stabbed. This witness gave account of what happened and her evidence which was not discredited in any way by the rigorous cross-examination of the learned counsel was believed by the trial Judge ….On the question of admissibility of the alleged confessional statement, Exhibit C, Mr. Ilobi learned counsel submitted that there ought to have held a trial within a trial before the statement was admitted. ….. Such trial only becomes necessary when there is objection that the statement was obtained by intimidation threat or show of promise of any kind thereby rendering the statement not to be free and voluntary exercise on the part of the accused person. Suffice it to say that no such issues arose in this case. There was satisfactory evidence in compliance with S. 34 Evidence Law by 6th PW, ASP Ibrahim Idi Ame that all efforts to produce investigating police officer Jacob Igbinosun, the recorder of the disputed statement was abortive. For this reason, previous statement of Igbinosun Exhibit E touching on how he obtained the disputed statement became relevant and was admitted without objection.” (Underlining mine). It is not the law that in criminal trials documentary exhibits which are inadmissible can be admitted in evidence by consent. The stringent rules of admissibility laid down in the law of evidence with regard to confessional statement excludes admission of the statements accused persons made to the police in evidence by consent or from the bar even if without objection being taken by the defence in breach of those rules.
The questions left unanswered by Ademola, JCA., and Aseme, J.C.A., are:
(1) Was the confessional statement Exhibit C made by the appellant admitted in evidence to form part of the case for the prosecution or for identification i.e. a document identified by Frank Odita as a document brought to him which he read to the appellant and attested to but awaiting evidence as to the making and identification by Igbinosun before admission in evidence
(2) Was the objection to the admissibility of the document on the ground that the signature of the appellant on it was obtained by force or trick, heard and ruled on by the learned trial Judge
The record of proceedings before the learned trial Judge shows clearly that the document – confessional statement made by the appellant was only on record as an identified document waiting for Cpl. Igbinosun to testify on how it came into being and to tender it for admission in evidence so as to enable the trial Judge deal with all possible objections to admissibility and rule on them before admitting it in evidence or rejecting it. More emphatically, the record of proceedings at which the statement was ordered to be marked Exhibit C on 29th day of May, 1978, during the testimony of Frank Odita (PW 3) reads: “While I was Divisional Crime Officer, the accused person was brought before me by Cpl. Igbinosun of my department with a confessional statement which he said was made by the accused person. The statement was recorded in pidgin English. I read the statement to him and I asked him if what I recorded represented his statement to the police. Accused said yes and I endorsed the statement after the accused had adopted it as his own. I see my endorsement on the statement of the accused. I have worked with Cpl. Igbinosun for one year. I know his handwriting very well. I see accused statement. The handwriting on it was that of Cpl. Igbinosun. Counsel seeks to tender the statement. Mr. Asika Ilobi (appearing for accused) (words in brackets mine) objects to the tendering of the statement for the following reasons:
(1) A few minutes ago when interpreter explained to accused person that the witness in the box alleged that sometime ago he the accused was brought before him to have this statement endorsed by the witness, the accused denied having any such transaction with the witness.
(2) It has not been shown by the prosecution why the writer or the maker of this document is not in court so as to tender the statement and to be cross-examined as to the circumstances of obtaining the statement. Urges the court to reject the statement. Mrs. Mbanefo in reply says that statement is being tendered as a document made by Cpl. Igbinosun whose writing is known by witness. Refers to S. 60 (1) of the Evidence Law.
“At the last trial Cpl. Igbinosun testified and proceedings in the earlier case could be tendered in these proceedings:
Ruling: ‘The court has not reached the stage whether the accused has made statement or not. Witness is merely concerned with identifying and producing statement handed to him by Cpl. Igbinosun as being the statement of the accused. At this stage objection is premature and overruled. Statement admitted and marked Exhibit C.’ Accused said he did not make the statement Exhibit C. “When the accused was brought to me, I spoke to him in pidgin English and he replied in pidgin English. Cross-examined by Mr. Asika Ilobi for the accused ….There is a signature on the accused’s statement credited to the accused person. There are three signatures purported to be signatures of the accused person on Exhibit C. The three signatures on the statement of the accused person are the three marks to which my attention has been drawn ……
Put: Your men particularly Igbinosun were enthusiastic to create an inanimate document to which accused was not a party.
Ans: I don’t know. I don’t know where the accused was arrested.” ……(Underlining mine)
PW 6 Ibrahim Idi Ame, ASP in charge Crime Division, Onitsha gave evidence that Cpl Igbinosun was transferred from Nsukka police command to Benin Police command and that he on 19/11/78 sent a telegram in terms of Exhibit D to the Commissioner of Police Benin to warn him that Cpt. Igbinosun was required to give evidence on 28/11/78. He received no reply before he was called to testify. Failure to receive a reply is no evidence that the telegram was received. It is to be observed that Benin City is about 90 miles or less than 200 kilometres from Onitsha and a car takes less than two and a half hours to get to Benin City from Onitsha and transport fare is only a few Naira. The evidence of PW6, in my view, does therefore not show a sufficient effort to get Cpl. Igbinosun to court to testify.
It is doubtful and I cannot subscribe to the view or opinion, that the provision of Section 34 of the Evidence Law was made to facilitate the admission of previous evidence of witness like Cpl. Igbinosun who was a serving police officer alive and living in Benin City, a place less than 200 kilometres from the sittings of the trial court in subsequent trials.
However, apparently in the belief that the evidence of PW6 satisfied the conditions prescribed by Section 34 of the Evidence Law, PW 7, Ibe Egbuniwe, Clerk of court, High Court Onitsha was called. He tendered the evidence of Cpl. Jacob Igbinosun who testified as PW3 before Nnaemeka-Agu, J., and his evidence was admitted as Exhibit E. But unfortunately, the witness did not identify and did not produce the statement the accused appellant made to Cpl. Igbinosun which was tendered and admitted in evidence during his testimony. This was a very fatal omission having regard to the ruling of the learned trial Judge Nwokedi, J., on the objection to the admission of the statement which ruling has been reproduced fully above. Surprisingly, Exhibit C has been extended to cover the confessional statement. The exhibit marking should have been confined to the endorsement made by Frank Odita PW3 on the document which was admitted by the ruling and the statement given identification marking.
What is a confession under the Evidence Law of Anambra State Section 27(1) of the Evidence Law Cap. 49 L/EN 1963 applicable in Anambra State defines a confession thus: “A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.” A confession, if voluntary, is deemed to be a relevant fact as against only the person who made it (see Section 27(2) Evidence Law Cap. 49 L/EN 1963). A confession is irrelevant in a criminal proceeding if the making of the confession has been caused by any inducement, threat, or promise having reference to the charge against the accused person, proceeding from a person in authority (see Section 28 Evidence Law Cap. 49 LFN 1963). It has therefore long been established as a positive rule of Nigerian criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement. The principle is as old as the laws received from England and in England the principle is as old as Hale. See Ibrahim v. R. (1914) AC 559 at 609; Godwin Ikpasa v. The State (1981) 9 S.C 7 at 29; Corporal Jona Dawa and Anor. v. The State (1980) 8-11 S.C 236 at 258. The evidential value of a confession if true is very great indeed. It is very much sought after by police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses in cases where there are no or very few eye witnesses.
A confession can support a conviction if proved to be made and true.
Reg. v. Chartwood (1980) 1 WLR 874;
James Obi Achabua v. The State (1976) 12 S.C 63 at 68;
Jimoh Yesufu v. The State (1976) 6 S.C 167 at 173.
To be of any value a confessional statement must be admissible and properly and legally admitted in evidence. It is of no value if it is not in evidence. In the instant case, there is no record to show that Exhibit C, the confessional statement was produced and admitted in evidence as a statement made voluntarily by the accused appellant or that the facts contained therein are true and refer to the offence with which the appellant is charged. In a criminal trial, where the prosecution tenders in evidence a confessional statement signed by the defendant, it is presumed that the prosecution is relying on the signature as the defendant’s acknowledgment of the statement as his own. Since for such a confession to be admissible the prosecution had to show that it had been made voluntarily, a defendant’s allegation that the signature had been obtained by force or by a trick necessarily raises an issue as to the voluntariness of the statement itself which had to be determined by the trial Judge.It appears to me in the instant appeal, that the appellant has been deprived wrongly, in my view, of the safeguard of the Judge’s ruling as to the admissibility of the confessional statement Exhibit C despite the fact that the defence formally objected to the statement being admitted both before Nwokedi, J., and Nnaemeka-Agu, J., (as he then was). In the circumstances, the trial has, in my view, been materially defective and the appellant’s conviction must be quashed. See Reg. v. Chartwood (1980) 1 WLR 874; Ajodha v. The State; Chandree and Ors. v. The State (1981) CLR 555 (1981) 3 WLR 1.Where a mixed statement namely one containing confessions and self exculpatory parts is under consideration by a jury in a case where the person charged had not given evidence, in deciding where the truth lay the jury has to consider the whole statement, both the incriminating part and the excuses or explanations. See R. v. Duncan (Finlay) (1981) CLR 560. Exhibit C is a mixed statement one part containing what has been described as confession although the victim was not identified as the deceased and the other part exculpatory in that the stabbing of one of the several unknown assailants was done in a drinking bar and in self-defence and or provocation. At the trial before Nnaemeka-Agu, J., this statement did not have an easy passage into evidence. The record of the proceedings at that trial which was admitted in evidence as Exhibit E, Cpl. Igbinosun testifying, reads in part: “I charged and cautioned the accused in pidgin English with the offence of murder. He volunteered a statement in pidgin English which I recorded down in pidgin English read over to him in pigin English, he said it was correct and signed it. I counter-signed it as the recorder”. This is the statement made by the accused person, tendered. Mr. Ilobi objects, says that the accused told him he doesn’t understand English hence interpreter is being used.
The signature on the alleged statement is shown to the accused person and he says “It was the 1 PC who held my hand as I held a biro, and made the signature on the document”.
“Court: I hereby direct that the statement be read out to the accused person so that he says whether or not the contents are what he told the police.
Note: The statement is read out to the accused and when asked whether he made the statement to the police he said he did not.
Mrs. Mbanefo: on the accused person’s statement above, he did not make the statement at all. He says he does not speak or understand pigin English and he did not sign because his hand was held and his mark made on the paper. The statement should therefore be admitted and the issues as to whether or not he made it resolved at the end of the trial.
Mr. Ilobi: A reasonable interpretation of the statement of the accused person is that this is not his voluntary statement. A statement that his hand was held and a mark made on the document means that the document is not his voluntary statement. The issue should be tried.
Court: The accused person said that the whole statement is not his, in that he does not speak pigin English at all and it is written in pigin English. He said he did not make the contents when interpreted to him. This, in my view, is very different from saying that it was his statement but not his voluntary statement. It shows that he did not make the statement at all. In the result, I hold that the statement should be admitted on the testimony of the 3rd PW the issue of whether or not it was the statement of the accused person will be decided later.
Statement admitted and marked Exhibit B.” (Underlining mine).
When the evidence of Cpl. Jacob Igbinosun was admitted through PW7, the statement Exhibit B was omitted, not identified and was not produced by the witness and was not admitted in evidence by the learned trial Judge as should have been done. The position therefore is that the issue of admissibility raised before Nnaemeka-Agu, J., was side tracked by him because the accused said he did not speak pigin English and the same issue of admissibility when raised before Nwokedi, J., was treated as premature because in the words of his ruling “The court has not reached the stage whether the accused has made a statement or not”.
The learned trial Judge, Nwokedi, J., surprisingly used the statement and treated it as if it had been admitted in evidence before him as a statement made by the appellant. It was the most important piece of evidence on which he convicted the appellant. This was a fatal error as a Judge is not entitled to convict an accused person on evidence of a confessional statement not proved before him to have been made by the accused person voluntarily. Underlying this restriction in the instant appeal was the unresolved issue whether when an accused person who signs a statement, disowns the statement in court and explains that his signature on it was forcibly put on it or fraudulently or by a trick obtained it does not raise an issue as to admissibility calling for a trial within a trial, i.e. a voir dire to determine the issue. A signature to a confessional statement is an acknowledgment that the statement was made by the owner of the signature and where the signature is obtained by force or threat of force or by inducement or by a trick or fraud, it cannot be said that the statement was voluntary; and, in my view, an issue as to admissibility is raised which can only be resolved by a trial within a trial and a ruling before the confessional statement can be admitted as part of the evidence for the prosecution, or rejected as inadmissible.
It is otherwise if the statement allegedly made by the accused person is not signed or the signature, where there is one, is disowned. The duty of deciding authorship and admissibility arises when a confessional statement is disowned but the signature on it accepted with explanation of duress or inducement. In such circumstances, the issue of admissibility which is an issue for the Judge overlaps the issue of authorship which is a matter for the jury or Judge sitting alone as jury to resolve. The decision on authorship for purposes of admissibility is different from the decision on authorship for purposes of assessment and finding of guilt. Many a time when an accused person denies authorship, Judges have tended to close the issue of admissibility and hold that the only issue was that of authorship.
The difficulty in appreciating the existence of an issue of admissibility when a signature to a confessional statement has been disowned as voluntarily added or appended to the statement has not been common to Nigeria alone. It was also the experience of the West Indies and until the case of Ajodha v. The State, Chandree and Ors. v. The State (1981) 3 WLR 1 (PC) that issue when raised attracted conflicting rulings from the Judges of first instance and the Court of Appeal. The Privy Council has in Ajodha’s case resolved the issue as one of admissibility calling for a trial within a trial and a ruling. The facts of that case are briefly as follows: “The defendant Ajodha was tried in 1975 on charges of murder, robbery and rape. The only prosecution evidence against him was a confessional statement which he had signed. His defence was that he was not the author of the statement and that he had been forced to sign it. He was convicted. At neither trial was objection taken to the admissibility of the statements.
The Court of Appeal dismissed the defendant’s appeal against conviction. On defendant’s appeal to the judicial committee of the PC Held, allowing the appeal that where in a criminal trial the prosecution tendered in evidence a confessional statement signed by the defendant the prosecution was relying on the signature as the defendant’s acknowledgment of the statement as his own and since it was established that for such a confession to be admissible, the prosecution had to show that it had been made voluntarily a defendant’s allegation that his signature had been obtained by force or by a trick necessarily raised the issue which had to be determined by the trial Judge and that accordingly the Judge ought to have ruled on admissibility and since each defendant had been wrongly deprived of the safeguard of such a ruling, the trial had been materially defective and the convictions should be quashed.” (Underlining mine).
Lord Bridge of Harwick delivering the reasons for the decision of the Board (allowing the appeal against conviction) said: “In all cases where the accused denies authorship of the contents of a written statement but complains that the signature or signatures on the document which he admits to be his own were improperly obtained from him by threats or inducement he is challenging the prosecutions evidence on both grounds and there is nothing in the least illogical or inconsistent in his doing so.
It has to be remembered that the rule requiring the Judge to be satisfied that an incriminating statement by the accused was given voluntarily before deciding that it is admissible in evidence is anomalous in that it puts the Judge in a position where he must make his own findings of fact and this creates an inevitable overlap between the fact finding functions of the Judge and jury”…… “…….. In the case presently under consideration where the accused denies authorship of the statement but admits signing it under duress, the overlap of functions is more complex.
Hearing evidence on the voir dire, the Judge will of necessity examine all the circumstances and form his own view of how the statement came to be written and signed. In practice the issue as to authorship and that as to whether the signature was voluntary are likely to be inseparably linked. One can hardly evisage a case where a Judge might decide that an accused was not responsible for the contents of the statement but signed it voluntarily. A jurist might say that in considering the issue of authorship the Judge was usurping the function of the jury, but if it is necessary to consider the issue of authorship before the Judge can be satisfied that the statement was signed voluntarily there is in truth no usurpation but only a discharge by the Judge of his necessary function in deciding the question of admissibility.
If the Judge rules the statement to have been signed voluntarily and therefore admissible, in this as in the simple case the issues both as to authorship and as to the manner in which the statement was obtained will again have to be canvassed and left for consideration by the jury.The instant appeal is nearly on all fours with the case of Ajodha (supra). The existence of a statement bearing the signature is common to both. The allegation of use of force or trickery to obtain the signature is also common to both. The classification of the statement as a confessional statement is common to both. On the strength of the confession either alone or in the instant appeal in conjunction with other evidence, conviction was entered against the accused in each case. The inevitable need to decide authorship when considering admissibility may have tended to scare the judges of first instance away from the issue of admissibility. However, difficult as it may be, I consider it a necessary duty which a Judge must perform to enable him give the accused person a fair trial demanded by the Constitution of the Federal Republic of Nigeria. Failure to discharge this duty necessarily results in the use of evidence which occasions miscarriage of justice in that it leads the Judge to convict where its absence would have led to an acquittal.
The 4th issue raised in this appeal which naturally arises from the successful resolution of the first issue in favour of the appellant is whether the failure to call four of the witnesses whose name appear at the back of the Information is not a breach of the duty of the prosecution. This issue was raised to emphasize the weakness of the case put forward by the prosecution as appellant’s counsel repeatedly and with the eloquence at his command made issue of the fact that of the over five eye witnesses available only one eye witness was called to testify and that one was the wife of the deceased whose mind would not be favourably disposed to any suspect in the dock alleged to be the murderer of her husband and breadwinner. This court has repeatedly stated of recent that although the burden on the prosecution is to prove his case against the accused beyond any reasonable doubt, the prosecution has a discretion to call only those witnesses required to unfold its case. The law does not impose on the prosecution the duty of function of both the prosecution and defence. See:
Effiong Udofia v. The State (1981) 11 -12 S.C. 49 at 63;
Okonofua v. The State (1981) 5-7 S.C. 1 at 18;
Samuel Adaje v. The State (1979) 6 -9 SC 18 at 28;
Senevirantne v. The King (1936) 3 All ER 36 at 48 PC;
Reg. v. Nigent (1977) 1 WLR 789.
Since the conviction of the appellant was founded on the evidence of 2nd PW and the confessional statement combined, the expunction of the confessional statement is fatal to the conviction and the appeal succeeds.
It is to ensure that the innocent in our society is not deprived of his life and liberty that our laws have laid down very strict test of admissibility for confessional statements before they become available legal evidence for assessment and evaluation. Any piece of evidence which slips into the record of proceedings without passing the test of admissibility is not legal evidence and is liable to be expunged by the appeal court.
It does not give the court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law courts, they are entitled to walk about in our streets and tread the Nigerian soil and breathe the Nigerian air as free and innocent men and women. I would and I hereby allow the appeal, set aside conviction and sentence and enter a verdict of acquittal.
The appellant is hereby ordered to be discharged.