KINGSLEY v THE STATE

KINGSLEY v THE STATE


IN THE COURT OF APPEAL
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN

ON THURSDAY, 11TH MAY, 2017


Appeal No: CA/B/37C/2015
CITATION:

Before Their Lordships:

PHILOMENA MBUA EKPE, JCA

SAMUEL CHUKWUDUMEBI OSEJI, JCA

MOORE ASEIMO ABRAHAM ADUMEIN, JCA


BETWEEN

OSEMEKE KINGSLEY

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Interference with Findings of Fact – Situations in which the Appellate Court will interfere with the findings of fact by the Trial Court

Circumstances in which an appellate court will interfere with the findings of facts made by a lower court

“Since the trial Court failed to draw the necessary inferences from proved facts, which would have tilted the imaginary scale of justice in favour of the Appellant, this Court will have no option than to interfere with such findings of the lower Court particularly where such findings as in the instant case are adjudged perverse. See:

1. ADEROTI V. THE STATE (2009) AII FWLR (PT 454) 1450.

2. EDJEKPO V. OSIA (2007) AII FWLR (PT. 361) 1617.

3. ANYANWU V. UZOWUAKA (2009) 13 NWLR 119 @ 143.”Per EKPE, JCA read in context

B. EVIDENCE
2. Trial within Trial – Circumstances under which a Trial Court will be mandated to carry out a trial within trial

When a trial within trial will be conducted; Effect of failure to conduct same when required

“The first issue herein to be considered is whether the lower Court was right to have acted on the confessional statement of the Accused/Appellant even in the face of vehement objection by counsel that the said extra judicial statement was not voluntarily obtained. The learned trial Judge ruled that the said objection would be determined at the final Judgment and proceeded to admit the said statement as Exhibit “A”. In his words:

“I will consider the issue of duress in the body of the Judgment.”

What can be gleaned from the above decision of the lower Court is that the trial Judge had decided to waive the issue of trial within trial and pushed it to the back burner for consideration at the final Judgment.

It is however trite law and well settled that where the admissibility of a confessional statement is challenged on the ground that it was not voluntarily made, the trial Court then has the mandate to invite the prosecution to establish the voluntariness of the said statement by conducting a trial within trial.

Suffice it to say that the trial Court failed to do same hence the issue on appeal as raised by the Appellant.

In ordinary legal parlance, once an extra judicial statement is objected to, it behoves on the trial Court to conduct a trial within trial to determine the admissibility of the said document in order to give credence to any further procedure of the Court.
Learned counsel for the Respondent on his part had this to say:

“I am of the same page with Appellant counsel and in complete agreement that the law is now well settled that where the admissibility of a confessional statement or any statement is challenged on the ground that it was not made voluntarily, it is mandatory on the trial Court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within trial.”

Learned counsel cited a number of authorities among whom are OGUNYE V. THE STATE (1999) 5 NWLR (PT. 604) page 548 ITU VS. THE STATE (2014) AII FWLR (PT. 750) page 1245.
Learned counsel for the prosecution further towed the line of reasoning of the Appellant’s counsel by thus stating:

“We robustly submit that the procedure adopted by the learned trial Judge in admitting the disputed confessional statement in evidence as Exhibit “A” without first determining that it was voluntarily made after the appellant’s counsel had taken objection to its admissibility on grounds of involuntariness is wrong in law.”

The pertinent question here is: was Exhibit ‘A’ regarded as a confessional statement by the trial Court? The contents of the said Exhibit reveal that the Appellant admitted the commission of the offence to the police.

S. 27(1) of the Evidence Act defines confessional statement as an admission made at any time by a person charged with commission of a crime, stating or suggesting the inference that he committed the crime in question. See SUNDAY V. FED. REP. OF NIG. (2013) LPELR 20192. There is indeed no gainsaying the fact that confession is the best evidence in criminal jurisprudence where the accused person admits that he committed the offence for which he is charged. For this purpose, the accused person is the figurative horse’s mouth. He committed the offence, confesses and admits the offence and there cannot be a better piece of evidence. In that regard, the law is that a trial Judge can admit a confessional statement only if it was made voluntarily and without any inducement, threat or promise from anyone in authority. See SABURI ADEBAYO V. A.G. OF OGUN STATE (2008) 7 NWLR (PT. 1055) 201.

In the instant case, once it has been established that the Appellant made a confessional statement, it becomes mandatory that the trial Judge conducts a trial within trial to determine the voluntariness of the said confessional statement. The process of trial within trial is not whether or not the Appellant retracted his statement but it is to test the voluntariness or otherwise of the statement. See GWANGWAN V. THE STATE (2011) LPE R 4223. See also LASISI V. THE STATE (2013) LPELR 20183.
The principle of trial within trial is one aspect of dispensing equal justice and fairness under the Rule of Law. By this simple procedure, it is assured that statements of a person charged with a criminal offence obtained by a police officer or anyone in authority otherwise afflicted by any inducement, threats or promises being illegal at law are expunged from the mainstream of the prosecution’s case at the trial of his cause or matter; and the Court is precluded from acting upon it in dealing with the case.

In the instant case, the Appellant had clearly denied the fact that the statement was voluntarily made. Courts have ruled in a legion of cases that once a statement has been denied by an Appellant that it was made by duress, it becomes inadmissible until proved otherwise. The Apex Court in the case of GBADAMOSI V. THE STATE (1992) 9 NWLR (PT. 266) 465 stated thus:

“So much has been said by the learned Justices of the Court of Appeal on the history and position and conduct of a “trial within trial” in our criminal procedure. I do not intend to embark on the same exercise in this Judgment, as there has been no ground of appeal filed challenging the long-standing procedure as illegal or contrary to law and therefore inviting us to set it aside. If and when that is done, the whole matter may have to be re-examined. Suffice it for me to say that I share the views of the learned Justices of the Court of Appeal as to the problems surrounding this procedure; but secondly, that the procedure is now very much of our vide The Queen v. Igwe (1960) SCNLR 158; (1960) FSC 55 at 56, that it cannot be overlooked or decreed into illegality by the Court of Appeal. The learned Justices of the Court of Appeal were, with respect, very wrong to have done so in the face of the decision of this Court which have made this procedure mandatory and part of the law.”

I agree with the submission of learned Appellant’s counsel that the approach of the trial Judge of resorting to a consideration of the argument of counsel for the purpose of determining the admissibility of Exhibit ‘A’ in the course of delivering Judgment instead of conducting a trial within trial during the proceedings so as to determine the voluntariness of the statement which was raised at the point of tendering it was manifestly perverse. I also tow the line of reasoning of the Respondent’s counsel who decided in his submission to throw in the towel by thus submitting:

“Also wrong in law was the approval of the trial Judge by resorting to a consideration of the argument of counsel for the purpose of determining the admissibility of Exhibit ‘A’ in the course of delivery of Judgment.”

The legal implication of admitting Exhibit A which was timeously objected to on grounds that it was made under duress without conducting a trial within trial is that it shall be rejected. See EHOT V THE STATE (1993) 4 NWLR (PT. 290) 644 @ 673 para C. There is need to state clearly here that at this material point where the voluntariness of a confessional statement is in issue, the trial Court is under an obligation to conduct a trial within trial with a view to determining the admissibility or otherwise of the confession. In that regard and in the instant case, the failure to conduct a trial within trial renders the confessional statement inadmissible. It is therefore my humble and ardent view as rightly expressed by both learned counsel on each side of the divide that the learned trial Judge ought to have taken the precaution of conducting a trial within trial as required by law. From the totality of all of the above summation, I hold that the statement of the Appellant was wrongly admitted in evidence and ought to be expunged.” Per EKPE, JCA read in context

3. Admissibility of Evidence – Position of the law as regards reliance by the Court on evidence already declared inadmissible

Whether courts can act upon evidence that is legally inadmissible

“What can be gleaned from the totality of the above summation is that the Appellant had already been discharged on counts one and four in the charge. The confessional statement which embodies Exhibits B and B1 in counts 2 and 3 has been expunged from the Court’s record due to the absence of a trial within trial. It is however settled law that a Court is not entitled to rely on a document or process which it had already declared inadmissible as the basis of its decision as the learned trial did in the instant case. See the following: KABIR V. ACTION CONGRESS (2012) AII FWLR (PT. 649) 638; SHANU V. AFRIBANK NIG. PLC (2013) FWLR (PT. 136) 823 @ 851 – 852 para G – A.” Per EKPE, JCA read in context

4. Admissibility of Evidence – Duty of the Court where objection is taken to tendered evidence

Whether a trial judge can admit an evidence to which an objection has been taken

“I reiterate the position of the Apex Court in the case of GBADAMOSI V. THE STATE per Ogundare JSC when he thus stated:

“When evidence is tendered and objection is taken to it, as a matter of law, a Judge decides on the admissibility of that evidence before allowing it to go in. To allow evidence objected to, to go in first and decide at the end of the trial on its admissibility might likely result in some miscarriage of justice for it would be impossible to say that the mind of the Judge as a Judge of fact would not have been poisoned or affected by the contents of that evidence even though at the end it was held to be inadmissible.” Per EKPE, JCA read in context

C. JUDGMENT
5. Perverse Decision – Duty of the Appellate Court to interfere where a judgment has been found to be perverse
*********What is required of an appellate court when faced with a perverse judgment

“This is a proper case for this Court to interfere as the Judgment of the trial Court is adjudged perverse. In the case of ATOLAGBE V. SHORUN (1985) NWLR (PT. 2) 360, the Apex Court defines perverse as simply:

“Persistence in error, different from what is reasonable or required, against the weight of evidence”. In the case at hand, the trial Court simply shut its eyes to the obvious procedure of conducting a trial within trial.

A perverse finding is also one that ignores the evidence or normal procedure before the Court and which results in or amounts to a miscarriage of justice. See ATOLAGBE V. SHORUN (supra).” Per EKPE, JCA read in context


LEAD JUDGMENT DELIVERED BY EKPE, JCA


This is an appeal against the Judgment of Honourable Justice I.E. Okogwu, of the Delta State High Court sitting at Agbor Judicial Division delivered on the 27th day of March, 2014 wherein the Appellant was charged on a four-count information of conspiracy to kidnap, demanding money with menaces, written threat to murder and conspiracy to murder.

The Appellant was found guilty and convicted on count 2 and 3, and sentenced to prison for two years and five years respectively without an option of fine.

FACT OF THE CASE:

The Appellant was charged to Court on four counts of conspiracy to kidnap, demanding money with menaces, written threat to murder and conspiracy to murder and he pleaded not guilty to all the counts. At the trial, the prosecution called three (3) witnesses in proof of its case beyond reasonable doubt and tendered Exhibits “A” – the statement of the accused, Exhibits “B” and “B1” which are the alleged text messages and Exhibit “C” – the handset recovered from the accused. At the close of the prosecution’s case, the Appellant’s counsel made a no case submission. The learned trial Judge in his ruling upheld the no case submission in respect of counts 1 and 4 pursuant to Section 286 of the Criminal Procedure Law. However, in counts 2 and 3, the trial Judge overruled the no case submission and called upon the accused to open his defence. The Appellant testified for himself and called no witness. In his defence, he denied the allegation against him.

In arriving at his Judgment, the learned trial Judge relied heavily on the alleged confessional statement of the Appellant in finding him guilty.

Dissatisfied with the said Judgment, the Appellant has hereby filed a Notice of Appeal. The Notice of Appeal is founded on pages 111 – 113 of the records containing five grounds of appeal.

ISSUES FOR DETERMINATION:

The Appellant has raised two issues for determination as follows:

1. Whether the extra judicial statement of the Appellant to the police which he denied at the trial was rightly admitted in evidence as Exhibit “A”

2. Whether the prosecution succeeded in proving its case beyond reasonable doubt.

Learned counsel for the Respondent on the other hand also formulated two issues for determination thus:

1. Whether the extra judicial statement of the Appellant to the police which was objected on grounds of duress was rightly admitted in evidence as Exhibit “A” without conducting a mini trial known as trial within trial.

2. Whether the learned trial Judge was right in holding that the prosecution has proved the charges of demanding money with menaces and written threats to murder in counts 2 and 3 against the Appellant beyond reasonable doubt.

The issues formulated by counsel in both parties are exactly the same. I have however chosen to adopt the issues for determination as couched by the Appellant as they appear to be more elegant and all embrasive.

ISSUE ONE:

WHETHER THE EXTRA JUDICIAL STATEMENT OF THE APPELLANT TO THE POLICE WHICH HE DENIED AT THE TRIAL WAS RIGHTLY ADMITTED IN EVIDENCE AS EXHIBIT “A”.

Learned counsel for the Appellant submitted that the extra-judicial confessional statement Exhibit “A” was objected to by the Appellant’s counsel at the time the prosecution sought to tender it in evidence on the ground that it was not voluntarily made. Counsel further stated that it is settled law that, where the admissibility of a confessional or any statement is challenged on the ground that it was not made voluntarily, it is mandatory on the trial Court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within trial. He called in aid the cases of OGUNYE V. STATE (1999) 5 NWLR (PT.604) 548; EHOT V. STATE (1993) 4 NWLR (PT. 290) 644; ITU V. STATE (2014) AII FWLR (PT. 750) 1245 and GBADAMOSI V. STATE (1992) 9 NWLR (PT. 266) 465 among others, stating that the procedure adopted by the trial Judge in admitting the confessional statement without first determining that it was voluntarily made after the Appellant’s counsel had taken objection to its admissibility on grounds of involuntariness, is wrong in law. Counsel further maintained that in the case of ITU V. STATE (supra) at page 1285 paragraph F, the position of the law on this point is thus:

“It needs to be reiterated at this material point that where the voluntariness of a confessional statement is in issue, the trial Court is under a duty to conduct a trial within trial with a view to determining the admissibility or otherwise of the confession. Thus the failure to conduct a trial within trial renders the confessional statement inadmissible.”

Counsel finally concluded his submission on this issue that Exhibit “A” is inadmissible in evidence and urged this Court to so hold.

In his reply, learned counsel for the Respondent submitted that the disputed extra-judicial confessional statement was objected to by the Appellant’s counsel at the time the prosecution sought to tender it in evidence through PW3 on the ground that it was made under duress. In a further submission, learned counsel for the Respondent stated thus and 1 quote:

“I am of the same page with Appellant counsel and in complete agreement that the law is now well settled that where the admissibility of a confessional statement or any statement is challenged on the ground that it was not made voluntarily, it is mandatory on the trial Court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within trial.”

He then cited the following cases: OGUNYE V. THE STATE (1999) 5 NWLR (PT. 604) page 548; ITU VS. THE STATE (2014) AII FWLR (PT.750) page 1245; EHOT VS. THE STATE (1993) 4 NWLR (PT. 290) page 644 and GBADAMOSI VS. THE STATE (1992) 9 NWLR (PT. 266) page 465 and agreed that the procedure adopted by the learned trial Judge in admitting the disputed confessional statement in evidence as Exhibit “A” without first determining that it was voluntarily made after the Appellant’s counsel had taken objection to its admissibility on grounds of involuntariness is wrong in law. Counsel further maintained that the legal implication of admitting Exhibit “A” which was timeously objected to on grounds of involuntariness without conducting a trial within trial by the learned trial Judge is that, it is inadmissible and shall be rejected. The case of EHOT V. THE STATE (supra) is cited and also that of ITU VS. THE STATE (supra) where the Apex Court stated the position of the law thus:
“It needs to be reiterated at this material point that where the voluntariness of a confessional statement is in issue, the trial Court is under a duty to conduct a trial within trial with a view to determining the admissibility or otherwise of the confession. Thus the failure to conduct a trial within trial renders the confessional statement inadmissible.”

Counsel concluded on this issue that he is in total agreement with the Appellant’s counsel but that the Judgment could still stand to convict the Appellant.

RESOLUTION:

The Appellant was charged on four counts of conspiracy to kidnap, demanding with menaces, written threat to murder and conspiracy to murder. In a considered Judgment delivered at the High Court of Delta State sitting at Agbor, on the 27th day of March, 2014, the Appellant was convicted of the offences of demanding with menaces and written threats to murder. The learned trial Judge hinged his conviction and sentence mainly on the confessional statement of the Appellant tendered at the lower Court as Exhibit “A”. The alleged text messages which had been printed from a cyber café and tendered as Exhibits “B” and “B1” were later expunged from the Court’s record. Exhibit ‘C’, which is the handset recovered from the Appellant was also not relied upon as the lower Court considered such as having no evidential value.

The first issue herein to be considered is whether the lower Court was right to have acted on the confessional statement of the Accused/Appellant even in the face of vehement objection by counsel that the said extra judicial statement was not voluntarily obtained. The learned trial Judge ruled that the said objection would be determined at the final Judgment and proceeded to admit the said statement as Exhibit “A”. In his words:

“I will consider the issue of duress in the body of the Judgment.”

What can be gleaned from the above decision of the lower Court is that the trial Judge had decided to waive the issue of trial within trial and pushed it to the back burner for consideration at the final Judgment.

It is however trite law and well settled that where the admissibility of a confessional statement is challenged on the ground that it was not voluntarily made, the trial Court then has the mandate to invite the prosecution to establish the voluntariness of the said statement by conducting a trial within trial.

Suffice it to say that the trial Court failed to do same hence the issue on appeal as raised by the Appellant.

In ordinary legal parlance, once an extra judicial statement is objected to, it behoves on the trial Court to conduct a trial within trial to determine the admissibility of the said document in order to give credence to any further procedure of the Court.

Learned counsel for the Respondent on his part had this to say:

“I am of the same page with Appellant counsel and in complete agreement that the law is now well settled that where the admissibility of a confessional statement or any statement is challenged on the ground that it was not made voluntarily, it is mandatory on the trial Court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within trial.”

Learned counsel cited a number of authorities among whom are OGUNYE V. THE STATE (1999) 5 NWLR (PT.604) page 548 ITU VS. THE STATE (2014) AII FWLR (PT. 750) page 1245.
Learned counsel for the prosecution further towed the line of reasoning of the Appellant’s counsel by thus stating:

“We robustly submit that the procedure adopted by the learned trial Judge in admitting the disputed confessional statement in evidence as Exhibit “A” without first determining that it was voluntarily made after the appellant’s counsel had taken objection to its admissibility on grounds of involuntariness is wrong in law.”

The pertinent question here is: was Exhibit ‘A’ regarded as a confessional statement by the trial Court? The contents of the said Exhibit reveal that the Appellant admitted the commission of the offence to the police.

S. 27(1) of the Evidence Act defines confessional statement as an admission made at any time by a person charged with commission of a crime, stating or suggesting the inference that he committed the crime in question. See SUNDAY V. FED. REP. OF NIG. (2013) LPELR 20192. There is indeed no gainsaying the fact that confession is the best evidence in criminal jurisprudence where the accused person admits that he committed the offence for which he is charged. For this purpose, the accused person is the figurative horse’s mouth. He committed the offence, confesses and admits the offence and there cannot be a better piece of evidence. In that regard, the law is that a trial Judge can admit a confessional statement only if it was made voluntarily and without any inducement, threat or promise from anyone in authority. See SABURI ADEBAYO V. A.G. OF OGUN STATE (2008) 7 NWLR (PT. 1055) 201.

In the instant case, once it has been established that the Appellant made a confessional statement, it becomes mandatory that the trial Judge conducts a trial within trial to determine the voluntariness of the said confessional statement. The process of trial within trial is not whether or not the Appellant retracted his statement but it is to test the voluntariness or otherwise of the statement. See GWANGWAN V. THE STATE (2011) LPELR 4223. See also LASISI V. THE STATE (2013) LPELR 20183.

The principle of trial within trial is one aspect of dispensing equal justice and fairness under the Rule of Law. By this simple procedure, it is assured that statements of a person charged with a criminal offence obtained by a police officer or anyone in authority otherwise afflicted by any inducement, threats or promises being illegal at law are expunged from the mainstream of the prosecution’s case at the trial of his cause or matter; and the Court is precluded from acting upon it in dealing with the case.

In the instant case, the Appellant had clearly denied the fact that the statement was voluntarily made. Courts have ruled in a legion of cases that once a statement has been denied by an Appellant that it was made by duress, it becomes inadmissible until proved otherwise. The Apex Court in the case of GBADAMOSI V. THE STATE (1992) 9 NWLR (PT. 266) 465 stated thus:

“So much has been said by the learned Justices of the Court of Appeal on the history and position and conduct of a “trial within trial” in our criminal procedure. I do not intend to embark on the same exercise in this Judgment, as there has been no ground of appeal filed challenging the long-standing procedure as illegal or contrary to law and therefore inviting us to set it aside. If and when that is done, the whole matter may have to be re-examined. Suffice it for me to say that I share the views of the learned Justices of the Court of Appeal as to the problems surrounding this procedure; but secondly, that the procedure is now very much of our vide The Queen v. Igwe (1960) SCNLR 158; (1960) FSC 55 at 56, that it cannot be overlooked or decreed into illegality by the Court of Appeal. The learned Justices of the Court of Appeal were, with respect, very wrong to have done so in the face of the decision of this Court which have made this procedure mandatory and part of the law.” I agree with the submission of learned Appellant’s counsel that the approach of the trial Judge of resorting to a consideration of the argument of counsel for the purpose of determining the admissibility of Exhibit ‘A’ in the course of delivering Judgment instead of conducting a trial within trial during the proceedings so as to determine the voluntariness of the statement which was raised at the point of tendering it was manifestly perverse. I also tow the line of reasoning of the Respondent’s counsel who decided in his submission to throw in the towel by thus submitting:

“Also wrong in law was the approval of the trial Judge by resorting to a consideration of the argument of counsel for the purpose of determining the admissibility of Exhibit ‘A’ in the course of delivery of Judgment.”

The legal implication of admitting Exhibit A which was timeously objected to on grounds that it was made under duress without conducting a trial within trial is that it shall be rejected. See EHOT V THE STATE (1993) 4 NWLR (PT. 290) 644 @ 673 para C. There is need to state clearly here that at this material point where the voluntariness of a confessional statement is in issue, the trial Court is under an obligation to conduct a trial within trial with a view to determining the admissibility or otherwise of the confession. In that regard and in the instant case, the failure to conduct a trial within trial renders the confessional statement inadmissible. It is therefore my humble and ardent view as rightly expressed by both learned counsel on each side of the divide that the learned trial Judge ought to have taken the precaution of conducting a trial within trial as required by law. From the totality of all of the above summation, I hold that the statement of the Appellant was wrongly admitted in evidence and ought to be expunged.

Issue one is therefore resolved in favour of the Appellant against the Respondent.

ISSUE TWO:

WHETHER THE PROSECUTION SUCCEEDED IN PROVING ITS CASE BEYOND REASONABLE DOUBT.

Learned counsel for the Appellant referred to the findings of the lower Court thus:

“I note that there are a few lapses in the evidence of the prosecution. Exhibit “C” for example recovered from the accused has no evidential value. It was not shown to contain any information or communication between him and the PW2 who is the complainant in this case. Exhibits “B” and “B1” are the print outs of text messages of demanding money from the complainant with threat of death. First that I note that the accused denied the contents of Exhibits “B” and “B1”. Again the source of those Exhibits is doubtful. The IPO ought to have done one of 2 things i.e. either tender the phone itself as Exhibit in Court or in the alternative he could have gone to the service provider MTN to do the printing for the purpose of litigation. I agree with the defence counsel on this point. Exhibits “B” and “B1” are hereby expunged. I note also that the State counsel applied to tender the said phone but that the application was refused. The reason is that the application was not made timeously it came at the close of the case for the defence and the Court were of the view that admitting the exhibit at that stage will work hardship on the accused. So far the prosecution have not shown any evidence of threat from the accused to the complainant in the absence of Exhibits “B” and “B1” and also in the absence of the phone of the complainant which contains the threat. There is therefore nothing at this stage to connect the accused with the charge in counts 2 and 3.”

Counsel then argued that the above evaluation of the case of the prosecution by the learned trial Judge is enough to support a conclusion that the prosecution failed to prove its case beyond reasonable doubt.

Counsel further submitted that under cross examination, the PW3, Inspector Steven Odey, who investigated the case, gave the following answer thus:

“I investigated this matter. The entry made in this case is that of threat to life. No entry of kidnap was made. No entry of murder was made or armed robbery. None of stealing too was made. I wrote the statement of the accused. He signed the statement 5 times. He denied kidnapping the complainant. … He is Austin Duru Exhibits “B” and “B1” are not from MTN Office. It was made from a cyber café.”

He further contended that It is settled law that a Court is not entitled to rely on a document i.e. Exhibits “B” and “B1” which had already been declared inadmissible or rejected as the basis for its decision as the learned trial Judge did in the case at hand. He cited these cases to buttress the above point. KABIR V. ACTION CONGRESS (2012) AII FWLR (PT. 649) 638; SHANU V. AFRIBANK NIG. PLC (2013) FWLR (PT. 136) 823 @ pages 851 852 paras G – A.

Counsel stated that it is the law that the evaluation of evidence of parties is the primary function of the Court of first instance that had the singular opportunity and advantage of watching and scrutinizing the demeanor of the witnesses. Where the trial Court failed to use such advantage to draw the necessary inferences from proved facts and deliberately shuts its eyes to the very patent facts which would have tilted the imaginary scale of justice in favour of the Appellant, the Court of Appeal would interfere with the findings of the lower Court. He then cited the case of ADEROTI V. STATE (2009) AII FWLR (PT. 454) 1450 and EDJEKPO V. OSIA (2007) AII FWLR (PT. 361) 1617.

In his reply, learned counsel for the Respondent submitted that proof beyond reasonable doubt does not mean proof beyond all iota or shadows of doubt. Thus if the evidence is strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is said to be proved beyond reasonable doubt. He then referred to the case of MOSES VS. THE STATE (2003) FWLR (PT. 141) page 1969 @ 1986 para E Ratio 6.

Counsel further stated that in discharging the onus of proof, there are three ways to prove the commission of crime:

i) By evidence of eye witness

ii) By confessional statements

iii) By circumstantial evidence where direct or confessional statements are lacking.

He contended that to succeed in a charge of demanding money with menaces under Section 406 of the Criminal Code Cap. C21 Vol. I Laws of Delta State 2006, the prosecution shall prove the following ingredients:

a) That the accused person made a demand of money from the complainant (the Victim)
b) That the demand is accompanied by a threat of any injury, detriment or harm of any kind to be caused the complainant by either the accused or any other person if the demand is not complied with.

c) That the accused must have the intent to steal the money demanded from the complainant.

He cited the cases of UTTEH V. THE STATE (1992) 2 NWLR (PT. 223) page 257 @ 274 and AKINDIPE VS. THE STATE (2008) 15 NWLR (PT. 1111) page 560 @ 571.

Learned counsel for the Respondent maintained that it is proper for the trial Court to rely on the evidence of PW2 and PW3 to convict the Appellant. That the offence of demanding money with menaces is committed even though money has not been paid into the Appellant’s said account in the bank. He called in aid the cases of RUNSAWE VS. C.O.P. (1968) 1 N.M.L.R 112 @ 115, C.O.P. VS. SMART EDEDEY (1964) ANLR 110 SC and C.O.P VS. FEDEDEY (1966) 1 N.M.L.R 383 @ 386.

Counsel also referred to Section 167 of the Evidence Act 2011 and submitted that the Court was right to have presumed that the Appellant actually was at Access Bank to receive the money before he was arrested by the police. He further called in aid the cases of OKERE VS. THE STATE (2001) 2 NWLR (PT. 697) page 297, OKOSI VS. THE STATE (1998) Vol. I A.C.L. R and argued that, it is the law that evidence adduced in Court that is relevant to the issue in controversy and has neither been challenged nor successfully debunked becomes good and credible evidence for the Court to be rely upon. He further cited the case of ARCHIBONG VS. THE STATE (2006) AII FWLR (PT.323) page 1747 @ 1768 – 17 69 paras G – A, and submitted that even if this Court expunged Exhibit “A”, “B” and “B1”, the remaining legally admissible evidence can ground a conviction in count 2. Respondent’s counsel at page 15 of lines 19 to 28 of the Respondent’s brief of argument stated thus:

“Applying the evidence on record to the above ingredients of the offence of written threats to murder under Section 323 of the Criminal Code Law, I am inclined to agree with learned counsel for the appellant that in the absence of any documentary evidence and in the absence of the G.S.M phone to show the written threat message to kill, count 3 cannot be proved. This is because the tendering of documentary exhibits such as Exhibits B and B1 and the tendering of the phone showing the threat message received is a necessity and in their absence count 3 cannot be proved. I therefore, have nothing to urge in support of the conviction and sentence of the appellant in count 3.”

RESOLUTION:

Issue 2 is whether the prosecution succeeded in proving its case beyond reasonable doubt. The learned trial Judge in the body of the Judgment at page 108 of the records, made the following finding:

“I note that there are a few lapses in the evidence of the prosecution. Exhibit “C” for example recovered from the accused has no evidential value. It was not shown to contain any information or communication between him and the PW2 who is the complainant in this case. Exhibits “B” and “B1” are the print outs of text messages of demanding money from the complainant with threat of death. First I note that the accused denied the contents of Exhibits “B” and “B1”. Again the source of those Exhibits is doubtful. The IPO ought to have done one of 2 things i.e. either tender the phone itself as Exhibit in Court or in alternative he could have gone to the service provider MTN to do the printing for the purpose of litigation. I agree with the defence counsel on this point. Exhibits “B” and “B1” are hereby expunged. I note also that the State counsel applied to tender the said phone but that the application was refused. The reason is that the application was not made timeously, it came at the close of the case for the defence and the Court were of the view that admitting the exhibit at that stage will work hardship on the accused. So far the prosecution have not shown any evidence of threat from the accused to the complainant in the absence of Exhibits “B” and “B1” and also in the absence of the phone of the complainant which contains the threat. There is therefore nothing at this stage to connect the accused with the charge in counts 2 and 3.”

The learned trial Judge noted that the source of Exhibits B & B1 is doubtful. To begin with, Exhibits B & B1 are the print outs of text messages of demanding money from the complainant with death threats. The charges which nailed the Accused/Appellant are embodied in Counts 2 and 3. The Appellant was thus discharged in counts 1 and count 4. It is however necessary to make a critical analysis of the said Courts 2 and 3 upon which the accused person was convicted. Count 2 is demanding money with menaces while count 3 is written threats to murder.

Learned counsel for the prosecution submitted that in proving its case, the prosecution is not expected to do so with absolute certainty or to prove beyond reasonable doubt i.e. beyond any iota of doubt. He recounted the 3 ways of discharging the onus of proof as follows:

i) By evidence of eye witness

ii) By confessional statements

iii) By circumstantial evidence where direct or confessional statements are lacking.

He cited a number of authorities to buttress this point. Learned counsel noted that the demand by the accused to the complainant could be oral or by any other means of communication. He further opined that the evidence which the lower Court relied upon to convict the Appellant was from the circumstantial evidence of PW2 and PW3. It is however worthy of note that Exhibits B & B1 are the subject of the confessional statement. It is also noteworthy that the said confessional statement had earlier in this discourse been pronounced as having been wrongly admitted by the lower Court and ought to have been expunged from the Court’s records. In the same vein, Exhibits B and B1 – the subject of the alleged confession had already been expunged by the learned trial Judge in the body of the Judgment. It was clearly stated therein that the source of Exhibits B & B1 is doubtful and that so far the prosecution has not shown any evidence of threat from the accused to the complainant in the absence of Exhibits “B & B1”

What can be gleaned from the totality of the above summation is that the Appellant had already been discharged on counts one and four in the charge. The confessional statement which embodies Exhibits B and B1 in counts 2 and 3 has been expunged from the Court’s record due to the absence of a trial within trial. It is however settled law that a Court is not entitled to rely on a document or process which it had already declared inadmissible as the basis of its decision as the learned trial did in the instant case. See the following: KABIR V. ACTION CONGRESS (2012) AII FWLR (PT. 649) 638; SHANU V. AFRIBANK NIG. PLC (2013) FWLR (PT. 136) 823 @ 851 – 852 para G – A.

In sum, the learned trial Judge was misguided as to the correct procedure to adopt in determining the voluntariness of the extra judicial statement of the Accused/Appellant.

I reiterate the position of the Apex Court in the case of GBADAMOSI V. THE STATE per Ogundare JSC when he thus stated:

“When evidence is tendered and objection is taken to it, as a matter of law, a Judge decides on the admissibility of that evidence before allowing it to go in. To allow evidence objected to, to go in first and decide at the end of the trial on its admissibility might likely result in some miscarriage of justice for it would be impossible to say that the mind of the Judge as a Judge of fact would not have been poisoned or affected by the contents of that evidence even though at the end it was held to be inadmissible.”

Since the trial Court failed to draw the necessary inferences from proved facts, which would have tilted the imaginary scale of justice in favour of the Appellant, this Court will have no option than to interfere with such findings of the lower Court particularly where such findings as in the instant case are adjudged perverse. See:

1. ADEROTI V. THE STATE (2009) AII FWLR (PT 454) 1450.
2. EDJEKPO V. OSIA (2007) AII FWLR (PT. 361) 1617.

3. ANYANWU V. UZOWUAKA (2009) 13 NWLR 119 @ 143.

In conclusion therefore, I do hereby make the following findings:

a. The learned trial judge failed to conduct a trial within trial in compliance with the correct procedure laid down in a plethora of appellate decision for the purpose of determining the voluntariness of the extra judicial statement attributed to the Appellant when objection was taken to its admissibility and admitted it in evidence as Exhibit “A”.

b. The learned trial Judge relied heavily on Exhibit “A” as well as Exhibit “B” and “B1” which said Exhibits “B” and “B1” the Court had earlier expunged from the Records in finding the Appellant guilty and sentencing him.

c. The Police Investigation as found by the learned trial Judge was shoddy and there was no attempt by the prosecution to prove beyond reasonable doubt the ingredients of the offence in counts 2 and 3 of the charge preferred against the Appellant.

d. The learned trial Judge also relied on the rampant occurrence of the offence of kidnapping in the society in convicting and sentencing the Appellant notwithstanding the finding of the Court that there is no evidence to link the appellant with the offence of kidnapping.

This is a proper case for this Court to interfere as the Judgment of the trial Court is adjudged perverse. In the case of ATOLAGBE V. SHORUN (1985) NWLR (PT. 2) 360, the Apex Court defines perverse as simply:

“Persistence in error, different from what is reasonable or required, against the weight of evidence”. In the case at hand, the trial Court simply shut its eyes to the obvious procedure of conducting a trial within trial.”

A perverse finding is also one that ignores the evidence or normal procedure before the Court and which results in or amounts to a miscarriage of justice. See ATOLAGBE V. SHORUN (supra).

On the whole and for the various reasons stated here above, I am of the unalloyed view that this appeal is meritorious and succeeds.

Accordingly, the Judgment of the lower Court delivered on the 27th day of March, 2014 is hereby set aside. The accused is hereby discharged.

OSEJI, JCA

I have read in draft the judgment just delivered by my learned brother PHILOMENA MBUA EKPE, JCA.

I agree with the reasoning and conclusion that the appeal has merit and should be allowed. I also allow the appeal and I abide by the consequential orders made in the lead judgment.

ADUMEIN, JCA

I had a preview of the judgment just delivered by my learned brother, PHILOMENA MBUA EKPE, JCA. My learned brother has elaborately dealt with the issues in this appeal.

In this case, by the evidence accepted by the trial Court, the prosecution did not conclusively prove the guilt of the Appellant beyond reasonable doubt. It is for this reason that I also allow the appeal and set aside the judgment of the trial Court.