⦿ CASE SUMMARY OF:
Augustine Ibeme v. The State (2013) – SC
by PipAr Chima
⦿ LITE HOLDING
Where the confessional statement is challenged on the ground that the accused person did not make it, that is, he denies it as in the appeal in hand the trial judge should admit the statement in evidence and not bother himself with whether the accused person made the statement.
This is a matter that is decided at the end of trial after the judge must have taken into consideration all the circumstances. It is only then that a decision can be properly made as to whether or not the accused person did make the statement.
⦿AREA OF LAW
Retraction of confessional statement
(2013) JELR 35713 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
Christopher Chukwuma-Eneh, JSC
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FINDING OF FACT
In this appeal the appellant along with 2 (two) others have been arraigned on a three-count charge of conspiracy, forgery and attempting to cheat before the trial High Court. The prosecution at the trial has sought to tender the appellant’s confessional statements through the investigating police officer (I.P.O.). The appellant through his counsel has objected to the admissibility of the statements alleging that the statements are not voluntary as they have been obtained by use of force exerted by the witness (i.e. I.P.O.) on the appellant. A trial within trial therefore has to be conducted to determine the admissibility of the confessional statements in a word as regards their voluntariness.
The prosecution has called three (3) witnesses to close its case. The appellant excluding himself called two witnesses to testify for the defence and has tendered one exhibit, for the defence to close its case. The trial court in overruling the objection has held as follows: “…The accused persons have merely retracted the statements and this being the case the statements are admissible in evidence – Nwabuonu v. The State (supra) 299. And has proceeded to admit the appellant’s statements marked as Exhibits H1 and H2.”
Dissatisfied with the decision the appellant has appealed unsuccessfully to the court below hence he has appealed to this court by a notice of appeal.
The appellant and two others are standing trial before a Plateau State High Court on an amended charge for the offences of conspiracy, forgery, and attempt to cheat contrary to Sections 97, 364 and 322 of the Penal Code.
1. Whether the lower court was correct in holding that the appellant retracted his statement to the police in the trial-within-trial?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the context of the appellant’s case here it is interesting to note that he has conceded in paragraph 3.7 of his brief that where a confessional statement is sought to be tendered and it is objected to on the ground that the accused person is not the maker of that statement or that the statement has been incorrectly recorded that notwithstanding the statement can still be tendered and received in evidence without holding a trial within trial in that case there is no issue of the statements being voluntary or not. He relies on Nwachukwu v. The State (supra). To make this assertion is self defeating in the circumstances of the appellant’s case in this appeal as what has happened here is fairly similar to the proposition as per his submission above. The trial court on having found that the appellant has retracted his statements in the trial within trial and so the question of voluntariness of the statements is no longer in issue. It has rightly in my view, proceeded to admit these statements in evidence as Exhibits H1 and H2. And as observed by Justice Douglas on this all-important issue of procedure in our jurisprudence particularly so where as in this instance the procedure has been structured to weed out statements obtained in an oppressive manner in our criminal Justice System as eloquently provided by sections 28 and 29 (supra). He has said and I quote: “It is procedure that spells much of the difference between the Rule of law and the Rule of whim or whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under the law.” See: 367 U.S. at 901-902; 81 S/C. at 1752.
ii. In the appellant’s testimony for the defence at the trial within trial the appellant has clearly denied making the statements exhibits H1 and H2 – in short he has retracted his statements’. This has raised an absurd situation meaning as I have reasoned above that the trial within trial should never have been ordered in the first place as the central basis that the statements have been made by the appellant himself to sustain the proceedings appears not to have been in place in the case from the beginning. And the finding of the trial court to that effect is at page 75 of the record and it reads as follows: “The D2 had said he was made to recopy the statement under consideration and was not taken before any superior officer for the endorsement of the statements he is in effect denying the contents of the statements and at the same time saying that the statements ascribed to him which were endorsed by a superior police officer is different from the statement he was made to recopy. The only conclusion to be reached is that the statements were not his.” (underlining for emphasis).
iii. In the premises, it is not the business of the trial court to engage in such a trial within trial that would otherwise result in making orders in vacuo particularly so in this matter where the appellant on the facts of the case has nowhere acknowledged that the statements exhibits H1 and H2 as his but that he has not made them voluntarily. In the face of the finding by the trial court in this matter that the appellant has avowedly denied the statements exhibits H1 and H2 as his; the trial court bound not to have embarked in the first place on a futile inquiry under a trial within trial to test the voluntariness of the said Exhibits as counsel for the appellant has put the trial court unto an unnecessary voyage of inquiry. It can be seen that the instant trial within trial has degenerated into a farce as the issue of voluntariness of the appellant’s confessional statements is not really in issue ab initio.
⦿ ENDING NOTE BY LEAD JUSTICE – Per – Chukwuma-Eneh JSC.
This appeal in its entirely is bereft of any merits whatsoever as the purpose it has set out to achieve is, with respect, grounded on a misconceived appellant’s case in regard to the involuntariness of the appellant’s alleged confessional statement, thus unnecessarily procrastinating the final determination of this matter since July 2006 of the Ruling appealed from in this matter. It is a sheer waste of the valuable time of the court and the appellant’s counsel should have known better not to have advised appealing in this matter.
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
I must however emphasise the commendable practice of having confessional statements being endorsed by a superior police officer on having been satisfied on its voluntariness. These procedural safeguards are the most effective means to enable a trial court discover the truth of the matter as to the voluntariness or otherwise of an accused’s confession. – Chukwuma-Eneh JSC. Ibeme v. State (2013)
I must emphasise that the function of a court in trial within trial is narrowed down to determining solely the question of voluntariness of the statement in issue and not on whether or not the statement is that of the accused person or improperly recorded. It boils down to the proposition that there is no way an accused person who has not acknowledged his alleged confessional statement sought to be tendered by the prosecution in a trial within trial can come round to object to its voluntariness. The absence of his locus to otherwise so contend is indisputable. – Chukwuma-Eneh JSC. Ibeme v. State (2013)