Iorver Terver & Ors V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED A. DANJUMA J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of F.N. Kpojime, sitting at the High Court of Benue State, Makurdi Judicial Division where at one Iorver Terver being one of the 3 accused persons standing trial for the offences of conspiracy, rape and armed robbery by his learned counsel had strenuously taken an objection to the admissibility of his extra Judicial Statement sought to be tendered in evidence. The objection was to the effect that the said statement was obtained by force and after torture and inducement and was not therefore voluntarily made.

It was also argued that the said statement was in fact recorded by the investigating police officer and the appellant forced by torture and promise to append his signature thereto. The said statement was, however, admitted in evidence as Exhibit ‘8’ after the Trial Judge had ordered and conducted a trial within trial where at witnesses testified for the parties, including the appellant himself. The ruling is contained at pages 10-12 of the record. For the purpose of clarity the Trial Judge held thus:-

“In conclusion, I overrule the objection and hold that the accused person voluntarily made the statement sought to be tendered. It is therefore admitted in evidence as Exhibit 8”.

After the ruling which was delivered on 18-4-12, the learned Trial Judge adjourned the case, to 23-5-2012 for continuation of hearing which hearing has been stalled for now, as on the 30-4-12, the 1st appellant in the joint trial filed a notice of appeal against the admissibility of his statement. The grounds of appeal are as contained in the record of appeal after page 54 thereof and unnumbered.

The grounds of appeal which are five in number challenges the ruling on diverse grounds relating to want jurisdiction; 2 – denial of fair hearing ; 3 – mis-direction in law and 4 – perversity and mis-carriage of justice.

The record of the appeal was transmitted on 11-6-12 and the appellant filed the appellant’s brief of argument on 24/7/12.

The respondent who had earlier on filed a motion on notice pursuant to order 7 rule 10(1) and order 17 R. 2 of the court of appeal rules 2011 and section 36(1) of the constitution of the Federal Republic of Nigeria (as amended) and under the inherent at jurisdiction of this court for leave to file the respondent’s brief out of time, however withdrew same and it was struck out on 6-2-13.

The appellant based on the above and in the absence of a respondent’s brief sought and was granted an order on 7-2-13 for hearing the appeal on the appellant’s brief alone. on the 20th March 2013, being date of the hearing, J. K. Ishember adopted the appellant’s brief of argument filed on 24/7/12 and urged that the appeal be allowed. The appellant distilled 4 (four) issues for determination from his 5 grounds of appeal.

The issues are as follows: –

i. Whether the lower court was seized with jurisdiction after raising an issue suo motu and proceeded to resolved (sic) same without giving the appellant an opportunity to react the issue so raised? (Distilled from ground one of the notice of appeal).

ii. Whether the right of fair hearing under section 36 of the constitution of Nigeria 1999 as amended can be suspended in a trial within trial of the appellant? (Distilled on ground two of the notice of appeal.

iii. Whether the test of voluntariness as defined by section 29(2) and (5) of the evidence act 2011 is determined by similarity of extra Judicial statements recorded for an accused person at different police stations? Distilled from grounds three and four.

iv. Whether from the totality of the evidence before the court, the prosecution has proved beyond reasonable doubt that the second extra judicial statement recorded for the accused was not obtained in a manner contrary to the provisions of section 29 of the evidence act? (Distilled from ground 5 of the notice of appeal).