⦿ CASE SUMMARY OF:
Charles Kingsley Joe Isong v. The State (2016) – SC
by PipAr Chima
⦿ LITE HOLDING
Where the accused does not challenge the voluntariness of the confessional statement, there is no need for the Trial Court to conduct a trial-within-trial.
⦿AREA OF LAW
Evidence Law
⦿ TAG(S)
Evidence Law
Trial within trial
Confessional statement
⦿ PARTIES
APPELLANT
Charles Kingsley Joe Isong
v.
RESPONDENT
The State
⦿ CITATION
(2016) JELR 34218 (SC)
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Suleiman Galadima, J.S.C.
⦿ APPEARANCES
* FOR THE APPELLANT
– A. A. ADEDEJI
* FOR THE RESPONDENT
– ESSIEN E. UDOM Esq.
⦿ FINDING OF FACT
The Appellant was arraigned and charged along with three others, namely Victor Essien Victor, Ukeme Sunday Usen and Monday Akpan Sunday, before the Akwa Ibom State High Court on three-count charge of armed robbery contrary to Section 1 (2) (a) of the Robbery and Fire Arms (Special Provisions) Act Cap.398, Vol.22, Laws of the Federation of Nigeria, 1990.
The case for the prosecution was that on or about the 22nd day of June 2001, the Appellant herein and his gang, armed with offensive weapons robbed the residents of the premises situate at No.1 Bassey Ekanem Street, Eket, Akwa Ibom State and dispossessed the residents therein of the various properties and sums of money. The prosecution in proof of its case called five witnesses, while the Appellant and his co-accused testified in their own defence.
The case for the Appellant, who denied the three-count charge, was that he was neither at the scene of the robbery let alone committed the offence alleged.
He was dissatisfied with the testimony of PW3 who never stated in his two statements to the police that he identified him (the Appellant) but came with the evidence for the Respondent at the trial.
The Appellant also denied making any voluntary confessional statement, as it was obtained after he was tortured, mercilessly beaten, and shot on his legs. However at the conclusion of the trial the learned trial judge in his judgment delivered on 27th day of July, 2006 held that the prosecutor had proved its case beyond reasonable doubt and there after convicted and sentenced the Appellant and the 1st accused person, but acquitted the 3rd and 4th accused persons.
Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal. The Court in a majority decision of 2 – 1, delivered on the 25th day of August, 2011 dismissed the appeal of the Appellant and affirmed his conviction and sentence by the trial Court.
⦿ CLAIM
⦿ ISSUE(S)
1. Whether the Justices of the Court of Appeal were right in law to have relied on the confessional statement of the Appellant in affirming his conviction and sentence by the trial Court when same was never admitted to test as required by law?
2. Whether the Justices of the Court of Appeal were right in law in affirming the conviction and sentence of the Appellant by the trial Court in spite of the material discrepancies that trailed the identity of the Appellant and the identification parade conducted by the police?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. On the issue of admissibility of the statements of the Appellant the learned trial Judge ruled that there was no substance in the objection and accordingly admitted the statements. Again, the Court below in considering the voluntariness of the Exhibits concluded that they were freely and voluntarily made. That the statements were direct and positive enough to sustain a finding of guilt, regardless of the fact that the Appellant sought to resile or retract them altogether. I cannot fault this finding. Once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. Where there is visual and positive identification of the accused at the scene of the crime which is believed by the trial judge, the Appellate Court should not disturb such finding: SAMUEL ATTA v. THE STATE (2010) 3 -?? 5 (Pt.1) 1. Indeed, that is the law. I cannot disturb concurrent findings of the two Courts below on this issue.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
* PROCEDURAL
I agree with the learned counsel for the Respondent that the Appellant’s counsel had really misunderstood the fundamental requirement in criminal trial. A trial within trial is required in law where the objection to admissibility of a statement is based on the ground that it was not made voluntarily. In that case there has to be a trial within trial to determine the question of voluntariness. It is only where this is proved by the prosecution that the statement is admitted in evidence. – Galadima, JSC. Kingsley v. State (2016)
Indeed, it is settled law that where a confession is objected to not as in the instant case where no objection was raised as to the valuntariness of these extra judicial statements – a judge sitting alone must hear and determine its admissibility. – Galadima, JSC. Kingsley v. State (2016)
When a trial Court is confronted with a statement made by an accused person which is confessional, there are two situations that may arise. The accused person may object to the admissibility of the statement on the ground that it was not voluntarily made; that it was procured by means of torture, inducement or fear. In such circumstances, it is the duty of the court to conduct what is commonly referred to as a “trial within trial” to determine if indeed the statement was voluntarily made, Where the accused person denied making the statement at all, a trial within trial is unnecessary. The Court would be at liberty to admit the statement in evidence and at the conclusion of the case determine the probative value to attach to it. – Galadima, JSC. Kingsley v. State (2016)
The rule with respect to conducting a trial within a trial operates only in cases of questioning the voluntariness or otherwise of confessions. It does not operate where an accused person denies making the statement or retracts. – Galadima, JSC. Kingsley v. State (2016)
* SUBSTANTIVE
Confirmation before a superior police officer of a statement made by the accused that he was the one who committed the crime may be dispensed with and the confessional statement may be admitted if there is no suspicion of such statement not being voluntary. See MUSA KASA v. THE STATE (1994) 6 SCNJ. – Galadima, JSC. Kingsley v. State (2016)
