Uche Obidiozo & Ors. V. The State (1987)

LawGlobal-Hub Lead Judgment Report

AGBAJE J.S.C.

On 15th October, 1987. I dismissed this appeal and reserved my reasons for that judgment till today. I now give my reasons.

The three appellants, Uche Obidiozo, Emma George (Alias Ogbogo) and Gilbert Eze (Alias ‘OY’) stood trial in a Kano State High Court on a charge containing four counts. The first and the third counts charged each with an offence of conspiracy to commit armed Robbery contrary to Section 3A(b) of the Robbery and Fire Arms Decree No.47 of 1970 as amended, which offence carried a penalty of 21 years imprisonment without option of a fine. The 2nd and 4th counts charged each with the offence of Armed Robbery contrary to Section 1(2)(a) of the same Decree which offence carries a mandatory death penalty.

The first, second and third appellants were the first, second and third accused persons respectively in the Kano State High Court, the trial court. At the end of their trial in the High Court the learned trial Judge Fernandez J. found them guilty as charged. He held in this regard as follows:-

“I have no doubt in my mind that the 1st, 2nd and 3rd accused persons did conspire to rob and did rob with fire arms the 3rd and 4th prosecution witnesses.

I therefore find each of them guilty as charged under 1st, 2nd, 3rd and 4th head of charge.”

After listening to the allocutus of Counsel for the appellants he pronounced sentences on them in the following manner:-

“Since the punishment under 2nd and 4th head of charge is mandatory, it would be useless to pronounce any Sentences on 1st and 3rd head of charge which is 21 years. The sentence of this Court is as follows:

1st Accused

2nd Head of Charge. You are sentenced to death.

You are to be hanged by the neck until you are dead.

4th Head of Charge. You are sentenced to death.

You are to be hanged by the neck until you are dead.

2nd Accused

2nd Head of Charge. You are hereby sentenced to death.

You are to be hanged by the neck until you are dead.

4th Head of Charge You are hereby sentenced to death.

You are to be hanged by the neck until you are dead.”

3rd Accused

2nd Head of Charge You are hereby sentenced to death

You are to be hanged by the neck until you are dead.

4th Head of Charge You are hereby sentenced to death.

You are to be hanged by the neck until you are dead.”

The appellants being dissatisfied with their convictions and sentences appealed against them unsuccessfully to the Court of Appeal, Kaduna branch. Being dissatisfied again with the judgment of the Court of Appeal they have each lodged a further appeal to this court. In this court Briefs of Arguments were filed both by Counsel for the appellants and Counsel for the respondent.

In this judgment the three appellants will hereinafter be referred to as the 1st, 2nd and 3rd accused persons respectively.

The 1st, 2nd and 3rd accused persons were charged in Count 1 of the charge against them with conspiracy to rob with violence, on or about the 11th of March, 1981, one Iya Abubakar of a sum of N3,000.00 and a bag containing some wearing apparels. Count 2 charged the accused persons with armed robbery of the said Iya Abubakar of the articles referred to in count 1. Count 3 charged the accused persons with conspiracy to rob with violence Cone Musa Mohammed of N3,000.00 on the same day i.e. 11th March, 1981. And count 4 charged the accused persons with robbery while armed with offensive weapons of the said Musa Mohammed of the articles enumerated in Count 3. The offences were said to be committed along Kano-Maiduguri Road in Wudil Local Government within the Kano State Judiciary Division.

The case for the prosecution was that on the night of 11th March, 1981 a team of Police Officers on patrol duty stopped a Peugeot saloon car with registration number AN 9190 EB, white in colour, at a junction on Zaria Road Kano at about 11.45 p.m., for a routine check. In the car were the three accused persons and another person now at large all of whom were ordered out of the vehicle. It was decided by the Police to search them all. On the body of the person now at large, a sum of N1,251.00 was discovered as a result of the search conducted on him.

The next person searched was the 2nd accused and on his person was found a sum of N1,007.50. The first person searched took advantage of the attention of all the Police men on duty being focused on the 2nd accused and escaped. His escape aroused the suspicion of the Police men on duty. The search of the other occupants of the car i.e. the 1st and the 3rd accused was suspended.

They and the vehicle in which they arrived at the check point were taken to the Criminal Investigation Division Office, Kano, their vehicle being driven by the 3rd accused with two Police Officers accompanying him in it while the 1st and 2nd accused persons rode in the Police vehicle. The vehicle of the accused persons was kept on the grounds of the C.I.D. Office that night with all the doors securely locked by 3rd accused and the key to them kept by a Police Officer. In the morning of the following day, i.e. 12th March, 1981, a search of the vehicle was conducted by two Police Officers.

The search began initially in the absence of any of the accused persons. When the Police Officers discovered a large sum of money in the glove compartment of the car they stopped further search of it and reported the matter to the Officers in charge of the Department who then in the company of the 3rd accused resumed the search of the vehicle. As a result of the search, two vehicle number plates each bearing registration number PL 3738 JC with figures and letters in white and on a black background were found in the boot of the vehicle; an automatic rifle No.3858 J with a corked magazine of a capacity of thirty rounds was found under the back seat of the vehicle. There were twenty-one live bullets in the magazine. Other goods recovered in the vehicle as a result of the search include the following:-

“The sum of N1,882. 10k in different notes.

Two driving licences issued in the name of Aniedum (now at large) and the second in the name of Joseph Odi.

Some wearing apparels including gown, shirts, trousers, Caps and one or two praying carpets.

Four charms.

Two tea shaped Screw drivers.

A bunch of six keys.

One Radio Cassette player for cars.

One black brief case.

Some quantity of Cartridges and Cassettes.

One tyre tube and some quantities of tooth brushes.”

The Police took custody of these various articles. The 3rd accused person claimed ownership of the vehicle but efforts by the Police to get him to produce the particulars of it were abortive. At the Police Station a sum of N307.00 was found on the first accused when he was searched but there was nothing found on the 3rd accused. Later in the day on 12th March, 1981 towards the evening after the search had been conducted a Police signal was received from Wudil Police Station by the C.I.D. in Kano to the effect that a robbery had been committed on the previous day along Kano/Maiduguri Road and that a Peugeot vehicle bearing registration number PL. 3738 JC was used by the robbers in the robbery operation. Because the registration number coincided with those on the plate numbers found in the boot of the Peugeot car in which the accused persons arrived at the Road junction at Kano and now being detained at the C.I.D. Office, Kano, the Police at Wudil Police Station were asked by the latter to transfer the case file of the robbery to C.I.D. Kano together with all the witnesses in the case. It is as a result of this that the victims of the robbery at Kano/Maiduguri Road appeared at the C.I.D. Kano.

It then transpired that Iya Abubakar P.W. 4 and Musa Mohammed P.W.3 on 11th March, 1981 boarded a Peugeot Station wagon with registration number PL. 5806 JA together with four other passengers at Mubi in Gongola State bound for Kano. The driver of the vehicle was one Gilbert Achukwu P.W.8. On their way to Kano at a point about one hundred kilo metres to Kanothe vehicle in which these passengers were traveling was forced to stop at gun point by the occupants of a Peugeot saloon car white in colour bearing registration number PL 3738 JC.

The vehicle stopped by the side of the passenger Station wagon. Three men came out of the Peugeot car and ordered at gun point the passengers of the Peugeot Station wagon out of their vehicle. The 1st accused held a gun and pointed it at the passengers who had been ordered out. Four of the passengers in the vehicle escaped into the bush when the attention of the 1st accused was turned elsewhere away from them, thus leaving two passengers behind i.e. P.W.3 and P.W.4.

Whilst the 1st accused held these two passengers at gun point two other occupants of the Peugeot car who came out of it with the 1st accused relieved Musa Mohammed P.W.3 of his money, a sum of N3,350.00 and his bag. They took away forcibly from Iya Abubakar P.W.4 a sum of N3,000.00 and his bag containing his wearing apparels and other things. At identification parades conducted on 16th March, 1981 P.W.3 Musa Mohammed, P.W. 4 Iya Abubakar and P.W.S Gilbert Achukwu identified the 1st accused as the person who held the passengers at gun point P.W.4 and P.W.8 also identified at the parades the 2nd accused as the person who relieved P.W.4 of his money, a sum of N3,000.00. The 3rd accused was not identified by anybody. Apart from the testimonies of P.W.3, P.W.4 and P.W.8 and the evidence as to the arrest of the accused persons at the check point at Kano Street junction and as to the articles found in the vehicle in which they arrived at the check point the police also relied on confessional statements said to have been made by each of the three accused persons.

The confessional statements were put in evidence by P.W.15 Joseph Okafor. The relevant portions of his evidence and of the proceedings in the trial court in this regard are as follows:-

“….. The same day the 3rd accused sent for me. He requested he wanted to talk to me. I brought him out and he merely told me that he was a victim of circumstance he told me he has never been to Kano before. He said he struggle to buy a taxi cab. That he was even training a brother at the University of Jos. That it was the 1st accused who invited him through the 2nd accused to come down with one Joseph Aniedum (now at large) because there was some business they would do. That when he came he was surprised that he was being introduced into robbery operation. When he realised it was robbery he was forced by the 1st accused to drive along.

I told him that he would have opportunity to say all what he knows in writing as investigation continues. I later returned him to the cell. Later in the day I brought him out into the open office I charged and cautioned him. He volunteered statement in English language. I recorded his statement in English language. I read it to him in English. He said it was correct and he signed the statement as correct. This is the statement State Counsel. I seek to tender it. Mr. Ugwidike I have consulted the 3rd accused and he said that the statement was not made voluntarily. That he was forced and tortured to sign prepared statement. 1st and 2nd accused also join the 3rd accused in saying this.

Court: At this stage I will have to order trial within trial as regards the admissibility of the Statements of the accused persons.

Case adjourned 12/3/82.”……………………

21/4/82

K/24C/81

Accused persons present.

Aliu Umar for the State.

Mr. Oge for the 1st and 2nd accused

Mr. Ugwuidike for the 3rd accused

Mr. Umar This case was adjourned for trial within trial. I am now making application that there is no need to go through such a procedure in this case. The accused persons have already said through their counsel that the statements were prepared by the police and they were forced to sign them. I will now refer the court to the case of the Queen v. Nwangbo Igwe 5 FSC 56-57 (ii) The Queen v. Imadebhor Iguabor 1962 Vol. 1 All N.L.R. part 2 page 287 paragraph 1-292.

Mr. Oge We shall clear the air during our time for defence.

Mr. Ugwuiidike I am of the view that the statement of the accused was not made voluntarily and is difficult (sic) from the case cited by the learned state counsel. (By Court most presumably) Pursuant to the legal authorities cited by the learned state counsel it is clear that there is difference between statement made voluntarily and statement already prepared in which accused person was asked to sign.

I therefore agree with the state counsel that it is not necessary to go through the procedure of trial within trial. I am therefore satisfied that the statements are made by the accused persons voluntarily and will now call on the last witness to tender them.

15th Witness continues: I recorded statement of the 3rd accused I can identify my handwriting. This is the statement of the 3rd accused person. Umar: I seek to tender the statement,”

(Italics mine).

Subsequently the statements of the 1st and 2nd accused persons were admitted in evidence apparently without any further objections to them.

The defence of each of the accused persons was a denial of the testimonies of the eye witnesses of robbery against him, and also of the evidence of Police Officers as regards what transpired at the check point and at the C.I.D. Office, Kano. In short, each of the accused persons denied being involved in the robbery with which he was charged.

The learned trial Judge relied on the evidence for the prosecution before him along the lines of the case for the prosecution I have indicated above including the confessional statements of the accused persons and found them guilty as I have stated above, having earlier on considered the defences of the accused persons and rejected them.

As I have said, the appellants appealed unsuccessfully against their convictions and sentences to the Court of Appeal, Kaduna Division. The accused persons have now lodged a further appeal to this court. I do not propose to reproduce the grounds of appeal here. I think it will be sufficient if I only set down the issues arising for determination in this appeal as identified in the Briefs of Arguments for the accused persons and they are as follows:-

“1. Whether the learned Justices of the Court of Appeal were right in holding that the trial Court was right in admitting the Appellants’ confessional statement without conducting a trial within trial.

2. Whether it is within the powers of the learned trial Judge to prescribe the mode of execution of the Appellants having regards to S.1(2)(3) of the Robbery and Firearms Decree No. 47 of 1970.
3. Whether it was proper of the learned trial Court to have sentenced the Appellants on two heads of the charge having found them guilty of all the four (4) heads of the charge,”

I take issue 2 first. There is no doubt that on the authority of the decision of this court in Ikem v. State (1985) 1 N.W.L.R. 378 (Part 2) Page 393 the learned trial Judge was wrong after having found the three accused persons guilty as charged to have proceeded to make an order as to the mode in which the mandatory sentences of death he passed on them should be carried out. It is no doubt for the Governor to decide or order that the accused persons be executed by hanging by the neck till they are dead or that they should each of them suffer death by firing squad, according to the provisions of Section 1(2)(3) of the Robbery and Firearms Decree No.47 of 1970 as amended. But I cannot find anything in the decision of this court in the case in question suggesting that an error like the one the trial Judge has committed in this case will ipso facto render the whole of the proceeding including the conviction and sentence void. In other words, I cannot find anything in the judgment to the effect that such an error will be sufficient to persuade an appellate court to set aside the whole of the conviction and sentence.

In this regard I will refer first to Section 26 of the Supreme Court Act providing for the powers of this court in the determination of appeals. And I think the point at issue which relates in a way to the sentence passed in this case is covered by Section 26(3) of the Act. By virtue of the provisions of that subsection this court can quash the wrong sentence which the trial court had passed and substitute therefore the right sentence which it ought to have passed.

There are also the provisions of Section 30 of the Supreme Court Act 1960 read along with those of Section 24 of the Court of Appeal Act which enable this Court to exercise any power that could have been exercised by the trial court.

The mandatory death sentence was pronounced by the trial court. The error it made is in prescribing the wrong manner of its execution. On the authorities of Ayodele Adetokunbo v. The State (1984) 2 S. C. 7 and Ntibunka & anor. v. The State (1972) 7 S.C. 71 at 75, as this is not a situation where the trial court failed to pronounce the appropriate sentence, the occasion does not even arise in this case for this court to pronounce the appropriate sentence which the trial court ought to have pronounced. As to the error made by the trial court in ordering the wrong mode of carrying out the death sentence and which order was affirmed by the court below, I am satisfied that this court can put right part of the sentence, by virtue of its powers under Section 30 of the Supreme Court Act (read along with Section 24 of the Court of Appeal Act) if the accused persons’ convictions and sentences are upheld here.

As to the 3rd issue namely whether it was proper for the trial court to have sentenced the accused persons on two counts of the charge having found him guilty of all the four counts charged, there is no doubt that an accused person having been found guilty on a count must have a sentence pronounced on him on that count. So there is a point in the submission of counsel for the accused persons that the learned trial Judge having found them guilty on four counts should have pronounced sentences on them on each of the counts on which they were found guilty. But the failure of the trial Judge to pronounce any sentence on the counts on which he found the accused persons guilty cannot vitiate the convictions on the counts.

At the worst the trial would be said to be incomplete as regards those counts and in that event the case would be remitted by an appellate court to the trial court for it to complete the trial. See Adeshina v. Police 1956 1 F.S. C. 55. Where as in this case a death sentence has been passed on an accused person in respect of some of the counts in which he stood trial and the death sentence is confirmed on appeal it will not only be futile to send the case back to the trial court to pass sentence on the other counts and thereby complete them, it will also not be in the interest of justice to delay the execution of that death sentence which the remittance of the case to the trial court for completion will inevitably entail. I will consider the order I will make as to the counts of the charge which were not complete, after I shall have given my judgment on the counts carrying the mandatory death sentence.

So I now come to the first issue arising in this appeal namely whether the court below was right in holding that the trial court was right in admitting in evidence the accused persons’ confessional statements without first conducting a trial within a trial.

I have set out above the circumstances leading up to the admission in evidence of the confessional statements of the accused persons without the holding of a trial within a trial. In considering this issue I should start by reproducing the provisions of the Evidence Act dealing with confessional statements.

“27.(1) 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.

(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.

3) Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or a jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.

28. A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.”

It is clear law that if evidence of a confession is objected to on the ground that the confession is not made voluntarily the Judge sitting alone should hear evidence on the point which may be tendered and then rule on its admissibility before receiving the confession in evidence. See R. v. Onabanjo 19363 WACA 43 and R. v. Kassi & Ors. 1939 5 WACA 154. It is equally clear law that it must be shown affirmatively and the part of the prosecution that the statement was made voluntarily. I may remark that in R. v. Kassi (Supra) when the statements of the accused persons in the case were being tendered in the course of the case for the prosecution counsel for the defence objected to their being received in evidence on the ground simpliciter that they had been made under duress or were induced by promises. In other words the ground of the objection was simply that the statements were not voluntarily made. One can therefore say that when an objection is taken to a statement on the ground simpliciter that it was not voluntarily made by an accused person a trial within a trial must be held to determine the admissibility of the statement before it can be admitted in evidence.

After R. v. Kassi (supra) there is the case of R. v. Igwe, (1960) 5 FSC 55 where it was held as follows:-

“It is now too late to question the rule whether voluntariness or otherwise of a confession must be decided by the Judge before its admission, even where the Judge is sitting without a jury, since the Courts of this country have applied that rule for many years; but we see no reason to extend the scope of the rule to cases where a confession is challenged, not because it is alleged that it is not voluntary, but because it is alleged that the accused never made it at all. We are of opinion that in such a case the question whether the accused made the confession is a matter to be decided by the Judge in his fact-finding capacity at the conclusion of the case, and that the alleged confession can properly be admitted as part of the evidence when it is tendered by the prosecution.”

Referring to R. v. Igwe, (supra) the Federal Supreme Court said in The Queen v. Imadebhor Eguabor, (1962) 1 All N.L.R. 287 at 292 held:

“as this Court held in R. v. Igwe, (1960) 5 F.S.C. 55, it is only where an issue arises as to whether a confession was made voluntarily that the exceptional procedure of holding a kind of trial within a trial should be adopted, and if an accused person wishes to deny that he made a statement attributed to him, or that his statement was correctly recorded, the time for him to do so is when he comes to make his defence. It follows that he should not be permitted to say anything whether by way of admission or denial, when the statement is tendered by the prosecution; a fortiori he should not be invited to say anything, though it is not clear whether or not that was done here.”

So it can be confidently said on the authorities of R. v. Igwe and The Queen v. Eguahor (supra) that where an issue arises as to whether a confession was made voluntarily a trial within a trial must be adopted to determine the admissibility of the confession before it is ever admitted in evidence. On the other hand when the issue was whether the accused made the statement or not or that the statement was correctly or incorrectly recorded, the statement can be admitted in evidence without holding the exceptional procedure of a trial within a trial, there then being no issue as to whether the confession was made voluntarily.

I have given the broad decision in Igwe’s case without dwelling on the grounds upon which objection was taken to the admissibility of the statement of the accused in the case. I must now go to the ground of objection in the case. The confession was challenged by the appellant’s counsel in the trial court, not however on the usual grounds that it was inadmissible because it was not voluntary but on the ground that there was in fact no confession by the appellant because he had never made one, the Police having concocted the whole written statement and persuaded the appellant to put his thumb print to it on a promise of being taken as a crown witness. So there is the point in Igwe’s case that it was alleged that the accused persons thumb print to the concocted confession was not voluntary and that it has been procured by an inducement or promise which no doubt had reference to the charge against the accused and which again undoubtedly came from a person in authority. What I have just said notwithstanding it was held in R. v. Igwe that a trial within a trial to determine the admissibility of the statement objected to before it was admitted in evidence was not necessary and that the statement in question was rightly admitted in evidence without the prior holding of such a trial.

I have quoted above the relevant provisions of the Evidence Act dealing with confession and the decisions of our superior courts on it. I have also quoted earlier on in this judgment the proceedings of the trial court in respect of the admissibility of the confessions I am now considering.

In the present case, the trial court having listened to the grounds of the objection to the admissibility of the confession decided in the first place to hold a trial within a trial to determine its admissibility. For ease of reference I shall repeat the grounds of objection:-

“This is the statement State Counsel I seek to tender it. Mr. Ugwidike I have consulted the 3rd accused and he said that the statement was not made voluntarily. That he was forced and tortured to sign prepared statement. 1st and 2nd accused also join the 3rd accused in saying this.”

The trial within a trial was fixed for 12/3/82. The trial of the case itself could not for one reason or another continue on that day. The trial was eventually resumed on 21/4/82. On that day as I have shown from the proceedings of that day copied earlier on in this judgment counsel for the prosecution Mr. Umar called the attention of the learned trial Judge to the decision in R. v. Igwe and R. v. Eguabor. Mr. Ugwidike, Counsel for the 3rd accused in the lower court for his part told the court that he was of the view that the statement of the 3rd accused was not made voluntarily and that the situation is different from that in the cases cited by the learned State Counsel. The learned trial Judge having listened to the new submissions of counsel on the point of the admissibility of the statement in question resiled from his earlier decision that he would hold a trial within a trial to determine the admissibility of the Statements of the accused persons without holding such a trial. It is the admissibility of the statements of the accused persons in the circumstances I have just high-lighted that issue 1 raised in the accused persons’ Brief of Arguments has to do with. The submission of counsel for the accused persons on issue 1 is two pronged. In the first place it is submitted that on the authority of R. v. Igwe and R. v. Eguabor the learned trial Judge should have held a trial within a trial to determine the admissibility of the accused persons’ statements before admitting them in evidence. It was the submission of counsel that the grounds of objection in the present case were not on all fours with those in Igwe’s case. So counsel for the accused persons contended that the learned Justices of the Court of Appeal erred in law and misdirected themselves when they held that what happened in the case now before us was almost on all fours with the cases relied upon by the learned trial Judge.

It appears clear to me that the main ground of the objection to the admissibility of the statement of the 3rd accused when it was about to be tendered was that the statement was not made voluntarily. It is the usual ground as pointed out even in Igwe’s case upon which the admissibility of an accused statement is questioned in order to warrant a trial within a trial. Going back to Igwe’s case, the main ground of objection to the statement sought to be tendered there was that there was no confession in fact in that the appellant therein did not make a statement. In the instant case it is true counsel for the appellant added after saying the statement in question was not voluntarily made that the 3rd accused was forced and tortured to sign a prepared statement. But there was no suggestion here as there was in Igwe’s case that the prepared statement was not what the 3rd accused had told the Police. Or to put it in another way it was not suggested that the prepared statement was concocted by the Police. So in the instant case having regard to the manner the objection of counsel to the 3rd accused had been recorded it cannot be said that the 3rd accused denied being the author of the prepared statement. It is to be observed that P.W.15 Joseph Okafor had given evidence of what the 3rd accused had told him broken he ever took the statement which he sought to put in evidence. So in the instant case it appears clear to me that the objection to the statement of the 3rd accused was based on the usual ground that it was inadmissible because it was not voluntary and not on the ground that the accused person denied the statement attributed to him. It follows therefore in my judgment that the decision in Igwe’s case supra had been wrongly applied in the instant case for the grounds of objection in this case and those in Igwe’s case were not the same. So I agree with counsel for the accused persons that even on the authority of Igwe’s case a trial within a trial should have been conducted in the instant case to resolve the admissibility of the statement attributed to the 3rd appellant before it was admitted in evidence for the objection to the admissibility of the statement was based on the usual ground that the statement was not voluntary and not on the ground that it was not made by him. Since this was not done, the statement was wrongly admitted in evidence and should therefore be expunged from the evidence in this case. What I have just said will cover too the confessional statements attributed to the 1st and 2nd accused persons.

I pointed out above that the learned trial Judge decided upon objection being taken to the admissibility of the statement of the 3rd accused person to conduct a trial within a trial in respect of the admissibility of all the statements of the three accused persons together before he resiled from that stand. Nothing turns on this point in the case now on trial before us. But I would like to say only in passing that in the case of Okhuegbe v. The State, S.C.22/69 of February 13, 1970 (unreported) the Supreme Court deprecated the trial of the issue of the admissibility of more than one statement together on the ground that such a course is irregular and prejudicial to the fair trial of the issue before the trial court.

I will now consider the other ground upon which counsel for the accused persons contended that a trial within a trial should have been conducted. This other ground has to do with the correctness or otherwise of the decision in R. v. Igwe supra. I have held above that the actual point decided in R. v. Igwe does not apply in the instant case. This is not the same thing as saying that the ratio decidendi it lays down does not apply here. I have set down this as interpreted in the later decision of R. v. Eguabor. The aspect of the decision in R. v. Igwe which counsel for the accused persons and indeed counsel for the respondent have asked this court to review is that part of it which tends to suggest that where the signature or thumb print of an accused person had been procured to a statement in circumstances which suggest that the signing of the statement was not voluntary the holding of a trial within a trial is not necessary once the body of the statement is denied.

In a situation where an accused person denied a statement attributed to him together with the signature on it there is evidently no issue as to whether the statement was made voluntarily. Equally the same is a situation where an accused person denies the body of a statement but admits his signature on it but alleges nothing suggesting that the signature to it was not voluntary. It is the situation where an accused person denies being the maker of a confession in a written statement but adds that in any event the signature to the confessional statement was not voluntary in that his signature or thumb print to it was obtained by an inducement, threat or promise having reference to the charge against him and proceeding from a person of authority that I am now concerned with. It appears to me that given the facts in R. v. Igwe and the decision there even in this last situation the holding of a trial within a trial to determine the admissibility of the statement will not be necessary, if reliance is placed on that case.

Counsel for both sides have asked us to review this aspect of the decision in R. v. Igwe, it being suggested on both sides that no issue as to the voluntariness of the statement arises in such a situation. I have quoted above Sections 27 and 28 of the Evidence Act which are relevant to the issues of confession I am now considering. 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. See Section 27(1) of the Evidence Act. The admission by an accused person of his signature to a confessional statement is without anything more evidence that he is the maker of the document in the sense that either he writes it or accepts or agrees with its contents. So in my view an accused person’s signature or thumb print to a written statement is an integral part of that statement. So if an accused person alleges that the signature or thumb print to the confessional statement was not voluntary he necessarily questions the voluntariness of the whole of the confessional statement on the ground that it is not voluntary. In such a situation I am inclined to agree with Counsel for both parties that it cannot rightly be said that no issue arises as to whether the confessional statement was made voluntarily. And because of Section 28 of the Evidence Act as interpreted in the decisions I have earlier on cited in this judgment the issue of admissibility of the statement must be tried before it is admitted in evidence. So in so far as the decision in R. v. Igwe tends to suggest, having regard to the grounds of the objection to the admissibility of the confessional statement in the case, that once an accused person denies making a confessional statement a trial within a trial to determine its admissibility is not necessary and that it is immaterial that the accused person alleges that his undoubted signature to the statement was not voluntary, it goes too far. I would say that in a situation where an accused person alleges that his admitted signature to a confession was not voluntary an issue as to whether the confession was made voluntarily arises for as I have shown above the accused person’s signature to a confessional written statement is an integral part of that statement.

For the reasons I have given above I am satisfied that the statements of the accused persons in this case have been wrongly admitted in evidence in this case. I would therefore expunge them from the proceedings in this case. This however is not the end of the matter for Section 226 of the Evidence Act provides as follows:-

“226. (1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

(2) The wrongful exclusion of evidence shall not of itself be ground for the reversal of any decision in any case if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same.”

In line with the above statutory provisions it has been held both in criminal and civil cases that if the appeal court is of the opinion that the inadmissible evidence cannot reasonably have affected the decision appealed from it will not interfere. If, however, there is other evidence in the case, and although the appeal court thinks that the inadmissible evidence must have influenced the decision, yet it is unable to say that without the inadmissible evidence the decision would or would not reasonably have been different, its proper course will be to order a retrial. See Ajayi v. Fisher (1960) 1 F.S.C. 90 and R. v. Thomas (1958) F.S.C. 8.

Now it is the submission of learned Counsel for the Respondent that in the absence of the inadmissible confessional statements there was ample evidence to justify the conviction of each of the three accused persons. As regards the 1st and the 2nd accused persons it cannot be seriously contended that there was not enough evidence to convict them in the absence of the confessional statements. There was the evidence of eye witnesses to the crime against them.

In other words they were picked at identification parades by victims of the robbery as some of those who perpetrated the crime. The robbery was conducted in broad daylight so there was no question or the eye witnesses being mistaken in their identification because of poor light at the time the incident happened. There was equally no question that the perpetrators of the crime disguised themselves at the time of the robbery. As to the 3rd accused person, none of the eye witnesses of the crime identified him as one of those who took part in the robbery. However, he was found in the evening of the day of the robbery driving the car used in the robbery operation earlier on in the day. He admitted being the driver of the vehicle all that day. At the time he was stopped at the check point driving the vehicle in question the vehicle was carrying registration number AN 9190 EB. It was proved in evidence that the registration number plate the vehicle carried earlier on in the day at the time the robbery was committed bore number PL 3738 JC.

The number plates bearing these registration numbers were found in the boot of the car the 3rd accused himself admitted he had been driving all that day. It is not difficult at all to discern the reason why the number plates of the vehicle involved in the robbery were changed. The change is evidently intended to cover up the tracks of the perpertrators of the robbery and to put the Police off the scent in their search for the vehicle involved in the robbery operation.

Since it is an admitted fact that the 3rd accused was the driver of the vehicle in question at all times material to this case, the change of the number plates could not have happened without his knowledge and consent and cooperation. There was evidence also that at the scene of the crime the vehicle used in the operation stopped there and waited for those who actually carried out the robbery operation to finish what they were doing. They then returned to the car and were driven off in it. The 3rd accused was admittedly the driver of the vehicle at the time. He no doubt stayed behind in the car and did not go out of it to actually participate in the robbery operation. But from what I have been saying above it is clear without any doubt that the 3rd accused was not an innocent onlooker at all of all that happened. Everything the 3rd accused did that day as revealed by the evidence against him as shown above points clearly to the fact that he aided the actual perpetrators of the robbery to commit the offences with which all of them were charged and also to the fact that he was right from outset a party to the conspiracy to commit the offences. I have reached this conclusion without paying the slightest attention to the confessional statement said to have been made by the 3rd accused which I have ruled to be inadmissible.

The conclusion I reach therefore is that I agree with the learned counsel for the Respondent that the confessional statements wrongly in my judgment admitted in evidence cannot reasonably have affected the decision of the trial court against any of the three accused persons now before us on appeal which decision was affirmed by the court below.

In the result the appeal of each of the appellants in my judgment fails and it is hereby dismissed. The judgment of the trial court and that of the Court of Appeal in respect of each of the appellants are hereby affirmed by me. The convictions and sentences of all the appellants are hereby affirmed by me.

Having confirmed the convictions and sentences of each of the appellants, in line with what I have earlier on said in this judgment in this regard, the mode of execution of the death sentence passed on each of the accused persons is hereby varied by me as follows:-

“The death sentence passed on each of the accused shall be executed by hanging on the neck until he be dead or he shall suffer death by firing squad as the Military Governor of Kano State may direct.”

For the same reason and equally in line with what I have said earlier on in this judgment it will serve no useful purpose nor will it be in interest of justice to send the case back to the trial court to complete the trial of counts 1 and 3 by pronouncing sentences in respect of them.

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SC.197/1986