CORPORAL JONA DAWA & ANOR v. THE STATE (1980)

Alternative Citations:

DAWA & ANOR. v. THE STATE (1980) 8-11 S.C. (REPRINT) 147

In The Supreme Court of Nigeria

On Friday, the 28th day of November, 1980

SC.75/1979

Before Their Lordships

AYO GABRIEL IRIKEFEJustice of The Supreme Court of Nigeria

MOHAMMED BELLOJustice of The Supreme Court of Nigeria

ANDREWS O. OBASEKIJustice of The Supreme Court of Nigeria

ANTHONY N. ANIAGOLUJustice of The Supreme Court of Nigeria

AUGUSTINE NNAMANIJustice of The Supreme Court of Nigeria


Between

1. CORPORAL JONA DAWA
2. PRIVATE IBRAHIM MAIGIDAAppellant(s)

AND

THE STATERespondent(s)

…………………….A…………………….A. O. OBASEKI, JSC. (Delivering the Leading Judgment): My Lords, the issues raised in this appeal are confined within very narrow limits. Broadly speaking, they are three in number:
(1) whether the confessional statements Exhibit 35 and Exhibit 37, the statements made by the 1st and 2nd appellants respectively to the police admitting the plan to kill and the act of killing were admissible in view of the allegations of threats and torture;
(2) whether during the trial within a trial, the evidence called and adduced by the prosecution in rebuttal of the serious allegations of torture against some police officers was admissible in law and if admissible whether it did not constitute an erosion of the fairness of the trial and the standard of proof required to be satisfied by the prosecution;
(3) whether the confession by the appellants in their confessional statements was unequivocal, direct and positive enough to prove the offence and constitute sufficient evidence to support the conviction particularly of the 2nd appellant.
Before dealing with the submissions of counsel on these issues, a brief reflection on the facts of the case is desirable and will be helpful and I propose to set out the relevant primary facts briefly in the next paragraph.
The scene of crime was the room of the District Head of Lere Mallam Abubakar Bawa in the little village of Tafawa Balewa in Bauchi State. The time was 1.30 in the early hours of the morning of the 19th day of September, 1977 when with a view to having a quiet, restful and undisturbed sleep, the district head, at her request, permitted his second wife P.W.1 Memu Abubakar Bawa, to leave his room for her room where her grand child who was crying needed attention. After her exit (she only shut the door but did not lock the door) he fell asleep and seizing the opportunity, his assailants moved into his room unnoticed after scaling the compound wall to gain entrance to the compound and slew him with a sharp matchet with such skill that no one in the compound knew of their entry and attack till dawn. On completion of their task, they escaped scaling the wall at another end. At dawn when P.W.1 called to pay her morning respect and see that he did not miss his morning prayers, she found him unreceptive and moving closer, found him stone dead in a pool of blood on the bed. The police were called and they immediately swung into action. It was a difficult task as there were no eye witnesses.
Police investigation ultimately led to the arrest and arraignment of the two appellants who made confessional statements of complicity in the conspiracy and commission of the crime together with two others (Lance Corporal Gambo Yarda and John Kyauta who were acquitted by the Federal Court of Appeal) before the High Court (Barreto, J.), at Bauchi for trial on two heads of charges which read:
“(1) that you Corporal Jonah Dawa, Private Ibrahim Maigida, Lance Corporal Gambo Yarda and John Kyauta on or about the 18th day of September, 1977 at Tafawa Balewa Village within the Bauchi State Judicial Division agreed to do an illegal act, to wit, to cause the death of Mallam Abubakar Bawa, the district head of Lere and that you thereby committed an offence punishable under Section 97 (1) of the Penal Code read with Section 221 of the same law and triable by the High Court.
(2) that you corporal Jonah Dawa and Private Ibrahim Maigida on or about the 18th day of September, 1977 at Tafawa Balewa village within the Bauchi State Judicial Division caused the death of Mallam Abubakar Bawa the district head of Lere, by doing an act, to wit, inflicting deep and extensive wound on the skull with a matchet with the knowledge that his death would be the probable consequence of your act, and that you thereby committed an offence punishable under Section 221(b) of the Penal Code read with Section 80 of the same law and triable by the High Court.”

…………………….B…………………….

My Lords, the trial was long and tedious, interspersed with 7 trials within a trial. After 32 witnesses testified for the prosecution, 7 witnesses for the defence, several exhibits including the confessional statements of the appellants Exhibits 35 and 37 were tendered with the record of proceedings – running to over 400 pages, the learned trial Judge, Barreto, J., gave a considered judgment convicting all the 4 accused persons of the offence charged in count 1 and the two appellants of the offence charged in count 2. Their appeal to the Federal Court of Appeal against their conviction on count 1 was successful but the appeal of the two appellants against their conviction on count 2 was dismissed. Still aggrieved, the two appellants have come to this court on appeal, their grounds of appeal argued before us being as follows:
“(1) The Federal Court of Appeal misdirected itself in laws when it held at page 534……..that the procedure adopted by the trial court in the reception of rebuttal evidence of the confessional statements of the 1st and 2nd appellants during the trial -within-trial was regular.
(2) The decision of the Federal Court of Appeal is unreasonable and unwarranted having regard to the evidence as it is unsafe and unsatisfactory to convict on such evidence.”
Specifying the portion of the judgment complained of, the ground further reads:
“It is my submission that the Federal Court of Appeal should, in its evaluation of the probative value to be attached to the confessional statement, have adverted its mind to the unchallenged evidence of torture by the11th and 21st P.W. to which they were subjected by the interrogating police officers and Exhibit 28 (containing allegations of torture) in respect of suspects of the same murder incident.
(3) The Federal Court of Appeal misdirected itself in law and on the facts in upholding the conviction of the second appellant on the basis of his confessional statement per se. Vide
Particulars of Misdirection
The confessional statement of the second appellant was not sufficiently direct and positive.
(4) The Federal Court of Appeal misdirected itself in law in upholding the reception of the confessional statement (sic), i.e Exhibits 35 and 37 as it was made in consequence of improper inducement.
Particulars of Errors in Law
(a) General Jallo advised the 1st and 2nd appellants when they were brought before him after their arrest to co-operate with the police.
(b) The advice was made in the presence of P.W.19.
(c) The adjutant at page 89 line 18 asked the 1st appellant to tell the truth.
(5) The Federal Court of Appeal misdirected itself in law in reliance on corroborative evidence of Exhibits 35 and 37 in convicting the 1st and 2nd appellants.
Particulars of Error of Law
(1) Exhibits 35 and 37 were inadmissible since the rebuttal evidence was inadmissible
(2) Even if the rebuttal evidence was admissible the Court of Appeal should have adverted its mind to whether the trial Judge exercised judicial discretion in appraising the weight to be attached to them, vis-a-vis the evidence of P.W.11, P.W.21 and Exhibit 28.”

…………………….C…………………….

I shall now turn to the submissions of counsel.
The grounds of appeal have predetermined the field of argument which as already observed above, is centred around the confessional statements Exhibits 35 and 37. On ground 1, learned counsel for the appellants submitted that the Justices of the Federal Court of Appeal erred in holding that the learned trial Judge was right in holding that Exhibits 35 and 37 were voluntarily made and therefore admissible.
Both in his brief of arguments and his oral arguments before us learned counsel for the appellants contended that the evidence in rebuttal adduced by the prosecution in respect of the confessional statements of 1st and 2nd appellants i.e Exhibits 35 and 37 did not arise ex improviso or beyond human expectation or ingenuity to earn admissiblity in the proceedings. He also contended that sufficient legal foundation was not laid before the application to call rebuttal evidence was made and granted. It was for the prosecution to adduce positive evidence to prove voluntariness by calling all witnesses who participated directly and indirectly in the investigation and interrogation of the 1st and 2nd appellants whilst in custody and also the prison warder guarding the prisoners in custody to show that the interrogation of the 1st and 2nd appellants and the taking down of their statements were not preceded by and accompanied with threats and torture and that they made their statements voluntarily. He also contended that once the defence had intimated the grounds on which the confessional statements were objected to or going to be challenged the prosecution has been put on notice or on the alert and had a duty to produce all witnesses to testify and establish that both the 1st and 2nd appellants were not subjected to any form of threat or torture during interrogation before and at the time when the alleged confessional statements were being recorded, before the testimony of the appellants at the trial within a trial. He concluded that the need for rebuttal evidence arose as a result of the doubt as to the statements having been made voluntarily and that at that stage the statements should have been rejected and the door closed to rebuttal evidence.
In reply, My Lords, the learned Director of Public Prosecutions, Mr. Ozoh, submitted that sufficient legal foundation was established for the application to call evidence in rebuttal and that the matters on which the evidence in rebuttal was led arose ex improviso during the testimony of the appellants at the trial within a trial. It was during the testimony of the 1st appellant at that trial that he alleged for the first time that Superintendent of Police, Zekeri Haliru (P.W.10) Sgt. Damina (P.W.19) and Sgt.Irimiya (P.w.23) were present and among those who tortured and beat him to induce him make the confessional statement; that he was arrested on the 10th of October, 1977 and that the following day which was 11th October, 1977, on arrival at Bauchi the police started questioning him. There was no question, he contended, of the rebuttal evidence being necessary to clear doubts as to the voluntariness or otherwise of the statement. There was conclusive evidence already before the court that Sgt. Irimiya, P.W.23 was alone with the 1st appellant when the confessional statement Exhibit 35 was made. But the appellant having mentioned the names of police officers other than P.W.23 and failed to call them in support of his case, it became necessary in the interest of justice to call them and allow the court to hear them accept or refute the allegations of torture made against them.
The learned Director of Public prosecutions further submitted that it was similarly during the testimony at the second trial within a trial that the 2nd appellant for the first time made serious allegations of torture and beatings to extort from him confessional statement against Superintendent Zakari Haliru (P.W.10), Sgt. Irimiya (P.W.23); A. S. P. Hassan Yarwa and Isa Suwang Shallangwa Garkida (P.W.27) who was chief warder Bauchi Prisons. He went on further to submit that the application was made and properly granted under Section 237 Criminal procedure Code. The provisions of Section 237 (Criminal Procedure Code) gave wide powers to the courts. It reads:
“(1) Any court may at any stage of any inquiry, trial or other judicial proceeding under this Criminal Procedure Code summon any person as a witness or call as a witness any person in attendance though not summoned as a witness, and shall summon or call any such person –
(a) as his evidence appears to the court to be essential to the just decision of the case; or
(b) on the application of the Attorney-General, and if such application is made, the accused shall have a similar right in applying to the court to have any person summoned or called as a witness by the court.
(2) The court may examine or allow the prosecutor or complainant or the accused, as the case may require to examine any person summoned or called as a witness under this section, and shall allow the prosecutor or the accused, as the case may require, to examine any person so summoned or called under paragraph (b) of sub-section (1)

…………………….D…………………….

(3) Any person summoned or called as a witness under the provisions of this section may
(a) if examined by the prosecutor or complainant be cross-examined by the accused and then re-examined by the prosecutor or complainant;
(b) if examined by the accused be cross-examined by the prosecutor or complainant; and then re-examined by the accused.
(4) Notwithstanding anything contained in Section 222 of the Evidence Ordinance, any person summoned or called as a witness under the provisions of this section who is examined by the court may be cross-examined by the prosecutor or complainant and by the accused.
(5) The powers conferred by this Section may be exercised whether or not the person to be summoned or called and examined has already been examined as a witness in the proceedings.”
My Lords, it seems to me that the appellants’ counsel’s predominant pre-occupation with the confessional statements Exhibit 35 and Exhibit 37 springs from the fact that without the two statements, there is no evidence connecting the 1st and 2nd accused/appellants with the crime alleged. It was therefore necessary for the appellants to establish before this court that the statements Exhibit 35 and Exhibit 37 were caught by the provisions of section 28 of the Evidence Law Cap.. 40 L/NN 1963. This section reads:
“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 advantage or avoid any evil of a temporal nature,”
The gravity of the allegation is emphasised by the requirement of Section 124 of the Criminal Procedure Code Cap.30 L/NN1963. Section 124 of the Criminal Procedure Code reads:
“(1) No police officer or person in authority shall make use of any threat or of any promise of an advantage towards any person in an investigation under this chapter in order to influence the evidence he may give.”
Statements to police officers in the Northern States is governed by the Criminal Procedure (Statements to Police Officers) Rule Cap.. 30 L/NN 1963 and by its Rule 9 it is provided:
“Save as provided in the Evidence Law, no statement made to a police officer by a person against whom he has decided to make a complaint shall be admissible in evidence in any court unless such statement is made in accordance with these Rules.”
They are therefore not governed by the Judges Rules of England incorporated in the Criminal Procedure Act and Laws which govern statements to police in criminal proceedings in the Southern Sates. Of particular relevance are Rules 3, 4, 5 and 6 which read:
“3. Whether a police officer has decided to make a complaint against a person before a court, he shall first caution such person before asking him any question or any further question in the case.
4. A caution under these rules shall be in the form set out in the schedule.
5. Where a person against whom a police officer has decided to make a complaint makes a statement before there is time to caution him, he shall be cautioned as soon as possible thereafter.
6. A person against whom a police officer has decided to make a complaint, and who makes a voluntary statement shall not be cross-examined and no questions shall be put to him about such statement except for the purpose of removing ambiguity in what he has actually said”.

…………………….E…………………….

The Judges Rules are clearly excluded from application in the Northern States. Learned counsel for the appellants cited in support of his submissions the following cases;
Rex v. Day (1940) 27 CAR 168
Kind v. Frost (1839) 9 C & P 129 at 196 also cited in Archibold 39th Edition 341)
Regina v. thomas (1958) 3 FAC. 8
Owoyemi v. Omotosho (1961) 1 All NLR 304; (a civil case dealing with duty of the Court of Appeal in regard to inadmissible evidence); and Lawal Maiduguri v. The State (1969) 1 NMLR. 143.
In Rex v. Day, the defence had closed before an expert i.e a handwriting expert was called to give rebuttal evidence in a case of obtaining money on a forged document. The need for the evidence of handwritting expert was obvious from the outset and the appeal was on that ground allowed. The facts of that case are totally different from the facts of this case and are in my view of no real assistance to the appellant. In this case, the rebuttal evidence was given on matters which arose ex improviso at the trial within a trial directed solely to determining the defence objection that the written statements Exhibit 35 and Exhibit 37 were not voluntarily made the contention being that they were made as a result of threat and torture. In other words, the appellants’ contention was that the making of the statements was caused or induced by threats or torture, and as such the statements were on that ground inadmissible. The other cases are not directly relevant at this stage.
My Lords, as regards Exhibit 35, the objection raised by counsel for 1st accused/appellant was twofold – the 1st being that the words of caution (in Hausa) contained an element of inducement.
It was after this objection was over-ruled that the second objection complaining of threats and torture as inducing the making of the statement was raised. From the record of proceedings in the High Court the proceedings reads:
Ishaya Irimiya: S/Bible: Speaks English

“…………………………………………………………………..
I know all the accused persons…………… On 12th October, 1977 at the state CID in Bauchi…….I told the 1st accused that he jointly with others killed the district head of Lere the late Abubakar Bawa on 18th September, 1977 at Tafawa Balewa. After I had told the accused the allegation against him, I cautioned him in Hausa language. I wrote the words caution in Hausa language. I read over the words of caution to him in Hausa language. He said that he understood the words of caution and then signed it………..He then volunteered to make a statement to me in Hausa…..I produce the statement.”
Mr. Ozoh:
“I apply to tender the statement in Hausa of the 1st accused through this witness” (i.e. P.W.23)
Mr. Abutu:
“I object to the statement in Hausa of 1st accused being admitted in evidence on the ground that this cautional statement in Hausa language sought to be tendered contains an element of inducement. I submit that the word of caution the way it is found worded in this statement is defective and as such not admissible in evidence. I submit that the defect in the word of caution contains an element of inducement.”

Court:
“…………..
I therefore find that the word of caution in Hausa language administered to the 1st accused was substantially correct and it did not contain any inducement in evidence. I therefore order that the statement of 1st accused in Hausa language be admitted in evidence.”
Mr. Abutu:
” I humbly submit that there is still another objection which the defence wishes to raise to the admission of the statement which the court has just ordered to be admitted in evidence on the grounds that the statement of the 1st accused was obtained from him under threat and under torture. I submit that the application be granted because the defence would like to lead evidence to prove that the statement was obtained under torture and under threats. The 1st accused proposed to give evidence and wishes to call two witnesses.
Ozoh:
” I submit that the application………. is belated ……..The court has already ruled that 1st accused’s statement be admitted in evidence……..”
Abutu in reply:

“………..
I have instructions to raise the objection that this statement was obtained from the 1st accused under threat and torture.”

…………………….F…………………….

Court:
“The application…………..is rather belated since this accused is facing a very serious charge. I propose to allow his application to object to the statement sought to be tendered in evidence on the ground that it was obtained under threat and under torture.”
It is clear that up to this stage, the presumption is that the allegation of torture and threat made can only be directed at the police officer i.e. P.W.23 who took the statement from him. But surprisingly, during 1st accused/appellant’s testimony he made allegation of torture against Superintendent of Police Zakari Haliru (P.W.10), Sgt. Inshaya Irimiya (P.W.23), Sgt. Damina (P.W.19) and The Commissioner of Police. The record of his testimony inter alia reads:
“The police said that during the day time I did not tell them the truth but that now I should tell them the truth……….Superintendent of Police Zachari Haliru, Sgt. Damina; Sgt. Irimiya; ASP. Ambali and one fat Ibo officer were all present. They beat me with a rubber hose…………The commissioner of Police said that since I am not going to say anything, I should stand up. After I stood up he told me to place one of my fingers on the ground. I placed my left hand on the ground and lifted the right hand in the air. Then he took out his slippers and beat me up on my buttocks………..They asked me to tell the truth. I was not able to see properly because of the teargas which was put into my eyes…..On 12. 10.77 I did not make any statement to the police…….I was beaten because I refused to sign the statement……..

I can read and write in Hausa language. I did not make two statements to the police. I only made one statement. That was on 11.10.77. I did not sign any statements. The signatures on these statements are not mine. I see the statement dated 12.10.77. The signatures on these statements are not mine. On 17th October, 1977 I did not sign any statements.”
Under cross-examination, his testimony reads:
“I did not say that I did not sign the statement dated 12th October, 1977. I sign it under duress. I signed the statement dated 17th October, 1977. I was forced to sign the statement. I have forgotten so many things which I did not tell before this court. It is true that I am  sorry for telling this court a lie in my evidence yesterday when I said I did not sign these two statements.
…………
While I was subjected to beatings, Ishaya was writing what I was stating. It is true that I was forced to sign what Sgt. Ishaya wrote in that statement……… I did not sign my usual signature………It is true that I made three statements. I made the 1st one on 11.10.77. I made the second one on 12.10.77 and I made the third statement on 17.10.77. It is true that the statement which I made on 11.10.77 was free and made voluntarily. It is true that I made this statement on the very day we arrived in Bauchi,” (Underlining is mine)
The 1st accused /appellant called the Commissioner of police Muhammed Danmadani to testify after him. The Commissioner of Police testified and denied all the allegations of threats and torture made against him and the other police officers.
Thereafter, Mr. Ozoh made his application and the record reads:
Mr. Abutu: “I close my case for the defence.”
Mr. Ozoh: “This is a trial-within-a-trial. In view of the serious allegations made by 1st accused in his evidence, I apply for leave of this court under Section 237 (1) (b) and (5) of the CPC to produce evidence in rebuttal. I propose to call (1) Sgt. Damina P.W. 19; (2) PC Peter Egaji; (3) Zakari Haliru, P.W.10  and 3 other witnesses who are quite formal witnesses. They will identify certain documents which have been marked for identification

…………………….G…………………….

.”Mr. Abutu: “No objection.”
Court: “……….prosecution is granted leave to produce before this court evidence in rebuttal relating to the allegations made by the 1st accused in his evidence before this court.” (underlining is mine)
P.W.19, Sgt. Damina was recalled. According to the record of proceedings in the High Court, he testified to the fact that the date of arrest of 1st accused/appellant at Kaduna was 11.10.77 and that he was brought to Bauchi on 12.10.77. He also denied joining in the beating of the 1st accused with rubber hose and stated that he was off duty.
P.W.10 was also recalled and the record of proceedings shows that he stated that 1st accused/appellant was brought to Bauchi CID office on 12.10.77 and he interviewed 1st accused/appellant in the evening. He also denied the allegation of 1st accused that he beat him with rubber hose and brooms in order to force him to make the statement. He denied that they were brought to Bauchi on 11.10.77 as alleged by 1st accused.
Peter Egaji, PC. 52111 (P.w.24) station writer at State CID Bauchi also testified. The station diary showing entries that 1st accused/appellant was, along with 2nd appellant and 3rd accused, brought to the station on 12.10.77 was admitted as Exhibit 32 through him.

Clement Udeogwu (P.W.25) was called to testify. The 1st FIR dated 27.9.77 Exhibit 33 in respect of 28 accused persons charged to the Chief Magistrate Court for culpable homicide of late Abubakar Bawa was admitted through him to show that 1st, 2nd and 3rd accused appellants were not even arrested in connection with the case to justify their being taken as referred to in Exhibits 28 Solomon Lar’s letter complaining of police brutality and torture. Stephen Agawuru P.W. 26 was also called to testify. The FIR dated 29.9.77 in respect of 14 suspects charged to the Chief Magistrate’s Court Exhibit 34 was admitted through him. None of the appellants’ names appeared as they were not even arrested by then.
I have set out the proceedings at length in order to show the nature of and that the allegations of torture against the Commissioner of police, P.W.10, and P.W.19 arose ex improviso and were first made in the evidence of the 1st accused/appellant. They were not even put to P.W.23 in cross-examination in the trial within a trial. All that appeared to have been suggested evoked the following reply from P.W.23.
“It is not true that because he had denied the allegation, I started beating him by using my hands and feet.”
The learned Justices of the Federal Court of Appeal were in the circumstances perfectly justified in holding that the procedure adopted in the trial within a trial was regular and that calling rebuttal evidence did not shift the onus of proving the voluntariness of Exhibit 35.
The objection to Exhibit 37 followed similar lines. P.W.23 testified that 2nd accused/appellant made the statement voluntarily. Although the 2nd accused/appellant testified as to beatings meted out to him by the Commissioner of Police, the deputy Commissioner of Police, Superintendent of Police Haliru and Sgt. Ishaya, the beatings did not or failed to extract any confession from him. his testimony reads:
“Then the Commissioner of police told me that now that I had received the punishment, I should tell the truth. I again replied that I had nothing more to say…….
When I heard from the Superintendent of police Haliru that Pastor Joshua had made an allegation against me that we had killed the district head, I then lied against Pastor Joshua and told the Superintendent of police that it was Pastor Joshua, his son, Lawi and myself and the 1st accused who had gone and killed the district head of Lere. The Superintendent of police, Haliru, told me it was Pastor Joshua who had told them that myself and 1st accused had gone to Tafawa Balawa on 18th September, 1977…….
Sgt. Ishaya wrote down what I stated and then asked me to sign. I refused to sign this statement but they forced me to sign. I then signed the statement and also dated it.”

…………………….H…………………….

The Commissioner of police called by the 2nd accused denied his evidence of torture and threats allegedly meted to him by the Commissioner and his team of investigators.
Sule Bashiru, 4th D.W. called to testify for 2nd accused was the medical assistant in the dispensary inside the prison yard. He refuted the allegation that 2nd appellant complained in November, 1977 of pain in his penis as a result of police brutality. The only complaint was on 6/12/77 and that was of diarrhoea.
Although it was clear at that stage that the objection had not been susbstantiated, still, an application made for leave to adduce rebuttal evidence to answer the allegations of torture was granted and the prosecution called Isa Suwang Shallangwa Garkida P.W.27 and Chief Warder Bauchi Federal Prison to testify on the health of the accused persons in the prison yard, P.W.28 Mohammed Tata Salad, registrar of the Chief Magistrate’s Court to tender proceedings of 3.11.77 to show that 2nd accused person was present and represented by counsel. P.W.10 to rebut the allegation of cruelty and torture, and P.W.23 to rebut allegation of specific acts of torture and cruelty made against him.
As already indicated above, the 2nd accused/appellant was not led into the confessional statement by the violence or threats of violence. The evidence showed that violence and threats of violence had the opposite effect and what on his own admission made him confess to taking part in the killing was the information that Pastor Joshua made statement to the effect that he was at Tafawa Balewa on 18th September, 1977.
A statement of the present position of the law on this matter will throw more light on the procedure and purpose of the whole exercises. The purpose of a trial within a trial is not to determine whether the accused made the statement. See The Queen v. Igwe 5 FSC 55 at 56. It is to determine whether the statement is admissible.
It has long been established as a positive rule of law which has found a healthy place in our statutes (Section 28 Evidence Law of Northern Nigeria 1963 L/NN. See also Section 28 Evidence act L/FN. 1958) that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it was not obtained from him by fear of prejudice or hope of advantage, exercised or held out to him by persons in authority. The principle is as old as Hale and in this country since the reception of English law into our system. Voluntariness is only a test of admissibility. It is not an absolute test of the truth.
Where the admissibility of a statement is challenged on the ground that it was not made voluntarily, it is for the judge to determine whether or not the prosecution have established that it was made voluntarily to the extent that the judge is satisfied so that he feels sure about it. Where the question is raised it is for the judge to rule upon it after hearing any evidence on either side bearing upon any contested question of fact relevant to the determination. It is the duty of the trial Judge to hear any evidence as to the manner in which it is made at a trial within a trial in the absence of a jury. See:

…………………….I…………………….

R. v. Chardwick (1934) 24 Cr App R 138
The Queen v. Igweh 5 FSC. 55
The Queen v. Equabor (1962) 1 All NLR 287 at 29
Chan Wei Keung v. R. (1967)
R.v. Ovenall (1969) 1 QB
R.v. Burgess (1968) 2 All ER 54, (1968) 2 QB 112
DPP.v. Ping Lin (1975) 3 All ER 175
Maiduguri v. The state (1969) 1 NMLR 143
R.v. Francis and Murphy (1959) Cr App R 174
R.v. Richards (1967) 51 Cr App R 266
R.v. Moor (1972) 56 Cr App R 373
Wong Kam Ming v. The Queen (1979) 2 WLR 81
In The Queen v. Igweh 5 FSC.55, the federal Supreme Court (Hubbard, ag. FJ. delivering the judgment of the court) at p. 56 observed:
“The confession was challenged by the appellants in the court below 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 on it on the promise of being taken as crown witness. Mr. Cole for the appellant in this court contended that the learned judge should have tried the issue whether or not the tendered document was the appellants’ statement before admitting it. Mr. Cole was unable to cite any authority, Nigerian or English to support his contention on the particular facts of the case. All the authorities go to the question whether a statement was voluntary not to the question whether the accused made it. 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 rule to a case where the 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 the 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 …….“(Underlining is mine)
The issue has to be determined as one of fact and causation. Underlying the basic rules concerning the admissibility of confession is the need to be fair to the defendant: Kuruma v. R (1955) AC 197 P.c. the truth of the alleged confession is not directly relevant at the trial within a trial (see Kuruma v. R. (1955) AC 197. Sparks v. R. (1964) AC 964). To help the jury establish the probative value of the confession, it may be necessary to go over the testimony which the trial Judge has heard on the trial within a trial. (Chan Wei Keung v. The Queen (1967) AC 160, (1967) 1 All ER 948 PC
In practice, the defendant invariably gives evidence. The learned trial judge having followed the above procedure hallowed by practice and the provisions of our statute law could not be fairly accused of having adopted an irregular procedure and as rightly observed by the learned Justices of the Federal Court of appeal, calling evidence of rebuttal in circumstances of the case, which, is in my view necessary, is not shifting the onus of proof of the voluntariness of Exhibits 35 and 37 to the appellants. [See Cave J’s judgment in:
R.v. Thompson (1893) 2 QB 12.] The standard of proof required is very high and is put as proof beyond reasonable doubt. See –
R.v. Sartori (1961) Crim. LR 397
R.v. McLintock (1962) Crim. LR 549
R.v. cave (1963) Crim. LR.377
R.v. Thompson (1893) 2 QB 12.

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In my opinion, my Lords, the contention of appellants’ counsel must be rejected. The learned trial Judge did not depart from the regular procedure of deciding the issue of voluntariness of the confessional statements Exhibits 35 and Exhibit 37 and the evidence on record which he accepted definitely attained the standard of proof i.e proof beyond reasonable doubt required.
Accordingly, I find myself in entire agreement with the learned justices of the Federal Court of Appeal when they held that the procedure adopted was regular.
As regards the necessity for the rebuttal evidence, I am in no doubt, although it could be said that the rebuttal evidence was adduced out of abundance of caution and the desire of the court to give an opportunity of a hearing to innocent police officers and warders to refute the allegations in the interest of justice. It was however crystal clear that at the close of the evidence led by the defence that the voluntariness of the two statements had been established beyond reasonable doubt, the evidence of the accused/appellants in the proceedings having been discredited and having intrinsically discredited itself on the issue. The admission of untruths in their testimony before the court and confusion in their minds made by the appellants in court could not lead any reasonable tribunal to accept their allegations of the threats and torture as true.
Moreover, my lords, it appeared from their testimony that violence and threat of violence rather than weaken their resolve to accept suggestions hardened it. I find no merit in this ground and I hereby dismiss it.
That disposes of ground 1 of the grounds of appeal argued.
Arguments on ground 4 which raised issues of law and facts which were not raised either in the High Court, or the Federal Court of Appeal and on which evidence was not led was disallowed and the ground was struck out. This court has said times without number that it will entertain no such grounds.
Turning to ground 2, I find that the evidence of torture by the 11th P.W., was disbelieved by the learned trial Judge who gave very detailed and careful consideration to the testimony of the witness. His analysis of the testimony of this witness and his impressions of him could in my view, my lords not be improved upon as testified to in the following observations and conclusion of the learned trial Judge:
“Under cross-examination by the learned counsel for the defence. Mr. Abutu, Pastor Joshua Adamu changed his story and stated that he was asked by the police to identify the soldiers in the parade who were known to him. He said that he identified 1st, 2nd and 3rd accused as the soldiers he knew. If there was any truth in his evidence he ought to have identified the army cadet Paul Lawi Dutse who was his own son and could he say he did not know him. He gave a long story of how the police at Bauchi kept him under detention and made him to sleep in a toilet for four days and also how they subjected him to beatings until they forced him to say that he had seen the 1st, 2nd and 3rd accused in Tafawa Balewa on 19th September, 1977. He said that he told the police that he had seen 1st, 2nd and 3rd accused in Tafawa Balewa on 19th September, 1977 because he feared further punishment from them. I do not believe the evidence of this witness that the police subjected him to punishment and kept him under detention and forced him to sleep in a toilet for four nights.” (Underlining is mine.)
My Lords, the testimony of Jonathan Bature (P.W.21) is totally irrelevant. It is on record that he said on oath before the learned trial Judge:
“I do not know why I am before this court but I am here in response to a summons issued to me by the court.”
and under cross-examination after alleging stories of beatings and torture to make him accept the allegation made against him by the 4th accused John Kyauta said in conclusion:
“Up till this date I am still in the police cell.”
He was not charged along with the appellants as a result of any confessional statements made by him under torture. He has made no allegation against any of the appellants or accused persons in these proceedings as a result of police brutality. There is therefore no duty on the learned trial Judge to have regard to his unchallenged evidence of torture in assessing the probative value of the confessional statements Exhibits 35 and 37. All that can be gathered from his evidence in relation to this matter is that he knows all the accused persons and that 2nd accused/appellant is a blood relation. It was a waste of time calling him as a prosecution witness. He was also of no assistance to the defence.
My Lords, Exhibit 28, a letter of complaint by Mr. S.D. Lar, solicitor and advocate addressed to the commissioner of Police is equally irrelevant as the letter itself shows that the complaint contained therein was made in general terms and in respect of 28 suspects charged to court on 27th September, 1977 two weeks before the appellants were arrested by the police on the charge of culpable homicide. It is headed:
COMPOL v. HARUNA MAHAUCHI AND 27 ORS.

…………………….K…………………….

It states:
“I am counsel to the above-named accused persons who were arrested and charged to court on the 27th day of September, 1977 in connection with the unfortunate murder of the District Head of Lere, Mallam Abubakar Bawa…….
What is more, I was reliably informed by a number of the 42 or more citizens now in Bauchi prison in connection with the murder of the district head of Lere aforesaid that since their arrival in Bauchi they have been subjected at various times to all sorts of physical and mental torture by men of the criminal investigation department of the Nigeria Police.” (Underlining is mine.)
The fact that only 4 suspects who were not included in the 28 or 42 were eventually prosecuted testifies to the fairness of the police, the allegation of torture notwithstanding, It is proper to infer that the alleged torture did not work confessions and if that were so, I cannot see how it could have adversely affected the mind of the Federal Court of Appeal in the evaluation of the probative value of Exhibits 35 and 37.
There is absolutely no merit in this second ground of appeal and the ground fails.
My Lords, I shall deal briefly with ground 5. Learned counsel for the appellant did not impress this ground but submitted and conceded that the ground succeeds or fails with ground 1. Since learned counsel has not succeeded in making a case for ground 1, this ground must fail. In his brief of argument, learned counsel submitted that:
“corroboration of extra-judicial confession will only arise where the extra-judicial confession was properly admitted i.e where the rebuttal evidence is admissible.
If the extra-judicial evidence is legally inadmissible the issue of corroboration will not arise as there is no legal evidence to corroborate.”
In view of my comments, observations and conclusion on ground 1, the learned Justices of the Federal Court of Appeal were justified in placing reliance on the corroborative evidence of Exhibits 35 and 37. This ground fails.
The last ground to engage our attention, my lords, is ground 3. Ground 3 deals with the conviction of the 2nd accused/appellant. It complains that the confessional statement Exhibit 37 was not sufficiently direct and positive to form the basis of a conviction. Having regard to the observation and conclusion of the learned to wit:
“the case of the prosecution against the 1st and 2nd accused rests entirely on their confessional statements which were admitted in evidence as Exhibit 35 and Exhibit 37 respectively.”,
it becomes necessary to examine the confessional statement of 2nd appellant Exhibit 37 critically. The law is clear and settled on the point that for a confessional statement to attract and support a conviction, it must be proved to be free, voluntary, unambiguous, true, direct and positive.

On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R.v. Sykes (1913) 8 Cr App R 233 and approved by the West African Court of Appeal in Kanu v. the King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a judge must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is found on it, on appeal, it will be hard to sustain.
Since Kanu v. The King (Supra), authorities abound in this country where the highest court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. Among the long line of authorities may be mentioned:

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(1) The Queen v. Obiasa (1962) 1 All NLR
(2) Edet Obosi v. The State (1965) NMLR 119
(3) Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307
(4) Obue v. The state (1976) 2 S.C. 141
(5) Jimoh Yesufu v. The State (1976) 6 S.C. 167
(6) Ebhomien and Ors. v. The Queen (1963) 1 All NR 365
Two of them deserve special mention. They are Nos. 4 and 6.
In Ebhomien and ors. v. The Queen (supra), the appeal was allowed on the ground that the confessional statement on which the conviction was based was not voluntary.
Also in Obue v. The state (1976) 2 S.C. 141, the appeal was allowed because there was no proof of the veracity of the allegations contained in the statement.
Turning to the confessional statement of the 2nd appellant, Exhibit 37/37A, the complaint to the Federal Court of Appeal about its value was rolled up in ground 3 of the grounds of appeal argued before the Federal Court of Appeal which reads:
3. The alleged confessional statement of the appellant was not properly admitted in evidence as there was abundant evidence that it was not free and voluntary; and even if it had been properly admitted the evidential value of the confession is negligible and no weight should have been attached to it as it was not direct and positive in that it contained certain statements which were inconsistent with relevant facts as proved by independent prosecution witnesses, the learned trial Judge was in error in basing this conviction of the appellant on the said confessional statement. (Underlining is mine.)
The learned Justices after considering the matters taken into account by the learned trial Judge in assessing the probative value of the confessional statement, concluded:
“These and other matters meticulously detailed by the learned judge in his judgment cannot be brushed aside as irrelevant in the consideration of the truthfulness of the confession. The statement Exhibit 37 ‘(in relation to 2nd appellant)’ in our view is direct and positive and consistent.”
This ground must fail.”
I have examined the record of proceedings and the confessional statements Exhibit 37A and Exhibit 44A (which are English translations of Exhibit 37 and Exhibit 44 respectively) together with Exhibit 35A (the English translation of Exhibit 35) and find the observations and conclusion of the learned justices of the Federal Court of appeal justified.
Exhibit 37A is short and the relevant portion inter alia after the words of caution, reads:
“……three of us left Kaduna on 17/9/77 for Tafawa Balewa. We went by road. We arrived Jos at about 9.00 hours. We took another transport to Kabir. We arrived Kabir at about 1.20 noon. At Kabir we trekked to Tafawa Balewa. We arrived Tafawa Balewa. We went to Pastor Joshua’s house. We met him and his wife. We slept in his house. The following day, Sunday……We remained at home we did not go anywhere till evening. In the evening we ate food. There was rain. After the rain, then four of us Pastor Joshua Adamu, his son, Lawi; Corporal Jonah Dawa and I went out. When we went out then Pastor Joshua Adamu told us that we are going to the Chief’s house to kill him …..When we got to the house of the Chief, Pastor Joshua Adam climbed the wall. I did not climb with them. I stood behind the wall. After they finished, they came and met me. We went away………From there we went to Kabir that night. We were in civil dress……”
Exhibit 44A, the additional statement of 2nd accused/appellant reads: after the words of caution:
“Today 17/10/77 the police gave me the statement of Corporal Jonah Dawa and John Kyauta. I have read their statements. I agree with what Jonah Dawa said in his statement. But statement made by John Kyauta I have no comments over it. On 15/10/77 at police station, I was placed in a group of soldiers. They wrote our names inside a paper. They went and called Pastor Joshua. Pastor Joshua looked at us and he touched Corporal Jonah Dawa first. He later touched me and Gambo Yarda that we are the people who came to his house at Tafawa Balewa………(Underlining is mine.)

…………………….M…………………….

Signed………
17/10/77″
The relevant portion of the statement of Jonah Dawa Exhibit 35A reads after the words of caution:
“……………When I went to Kaduna we made arrangement with Lawi, son of Pastor Joshua adamu and Ibrahim Maigida that we should go to Tafawa Balewa and kill the chief. On 17/9/77 three of us left Kaduna for Tafawa Balewa. We joined transport from Kaduna to Jos. At Jos we joined another transport to Kabir. From Kabir we trekked to Tafawa Balewa. We arrived Tafawa Balewa on Sunday. We lodged at Pastor Joshua’s house. Before we got to Pastor Joshua’s house, people have gone to church. We did not meet Pastor Joshua at home. We went inside the town. We went to the market. There we ate food………In the night we went to Pastor Joshua’s house. We met him at home. He asked us have you come? He told me that they have finished eating. They gave us porage. Later we went out…….We don’t want Joshua’s wife to know our mission. When we went out Pastor Joshua said you came because of the killing of the Chief? We told him that we came because of the matter which he said when he went to Zaria. He told us that if people go to bed then we can go to the chief’s house. We went round with Pastor Joshua. Before we went round he brought knives. One matchet and two knives. In the night we saw people playing in the front of chief’s palace. But rain disturbed them. We went behind the wall and climbed. Pastor Joshua was in front. Ibrahim Maigida followed him. I followed him and Lawi followed me. Pastor Joshua led us to the room. Pastor Joshua was the first to matchet him. Ibrahim and I helped him. When we finished we went out through a different way. When we went out, we handed the cutlass and the knives to Pastor Joshua. We told him that we are going. We went away in the night……..Pastor’s son, Lawi, did not help us in killing the chief but he went to the chief’s house with us……….
Three of us Ibrahim Maigida, Lawi Joshua and I planned to go to Tafawa Balewa to kill the chief. Pastor Joshua did not tell us who plan it…………….” (Underlining is mine.)
My Lords, I may say that of particular significance is the fact that the 1st and 2nd appellants admitted in court during their testimony at the trial that the allegations they made against Pastor Joshua and his son, Lawi of involvement in the conspiracy and the killing of the chief and district head of Lere in their statements Exhibit 35 and Exhibit 37 were false. In any case the allegations even if they were true, could not be evidence against Pastor Joshua and his son, Lawi, as they were made in their absence. That leaves the confessional part of the statements effectively against the 1st and 2nd appellants then.
From the contents of the statement Exhibit 37/37A, Exhibit 44/44A and Exhibit 35/35A there is no gainsaying the fact that it is direct and that it is positive. Each conveys the hatching of the plan to kill the chief, the journey to the chief’s house and the killing of the chief in his bedroom with a matchet and knives. The truth of the allegations have been established by evidence outside the confessional statements beyond any reasonable doubt. The two appellants have been proved to be soldiers stationed at Kaduna. They admitted that fact in their testimony in court. They were seen at Tafawa Balewa village on the 18th day of September, 1977 by 11th P.W. and so identified at the parade by 11th P.W. The 2nd appellant was on leave at the material time as his evidence in defence established. The alibi he attempted to put up collapsed when his wife Esther Ibrahim (8 D.W.), he suborned to testify that she was rushed to hospital when she went into labour on 17/9/77 at the material point of time and that the 2nd appellant was visiting her hourly on 18/9/77 from 6.a.m. to 9.00p.m, admitted that it was in August, 1977 she was admitted and that she delivered her baby on 1/9/77. There is the proof of death and the nature of the injuries found on the head of chief by Dr. Mahmud P.W.9 finally, there is the evidence of Dr. Mahmud Umaru P.W.9 that the injuries could only have been inflicted by a long sharp instrument such as matchet or axe.
By itself alone, Exhibit 37/37A by virtue of Sections 83, 84 and 90 of the Penal Code 89 L/NN 1963 is sufficient to found a conviction of culpable homicide punishable with death.
Learned counsel submitted that Exhibit 37/37A (the confessional statement) on a correct interpretation shows that the 2nd appellant did not take part in the actual killing. He contended that he accompanied the 1st appellant only as far as the wall of the chief’s compound and no further.

This submission overlooks the fact that the confessional statement also shows that he waited till the return of the other members of the gang on completion of the mission and that they all went away home together. My Lords, he knew the object of their mission, he joined the gang from Kaduna to Tafawa Balewa village and from Pastor Joshua’s house to the compound of the chief of Lere at Tafawa Balewa village. He did not resile, he did not decamp, he did not withdraw, he accompanied the others to a point where he waited till they finished the job of killing the chief.

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That submission also overlooks the provision of the law. I refer to Section 83(b), Section 84 and Section 90 of the Penal Code Cap. 89 L/NN 1963. Section 83 reads:
“A person abets the doing of a thing who
(a) instigates any person to do that thing
(b) engages with one or more other person or persons in any conspiracy for the doing of that thing or
(c) intentionally aids or facilitates by any act or illegal omission the doing of that thing.”
The 2nd appellant becomes an abetter within the provisions of Section 83(b) above.
Section 84 defines abetment of offence. It provides:
“A person abets an offence who abets either the commission of an offence or the commission of an act which would be an offence if committed with the same intention or knowledge as that of the abetter by a person capable by law of committing an offence.”
Under Section 90, the provision of which reads:
“Whenever any person who if absent would be liable to be punished as an abettor is present when the act or offence or which he would be punished in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.” (Underlining is mine.)
The 2nd appellant by the confession in Exhibit 37/37A that he was present (his staying behind the wall notwithstanding) is deemed to have killed the chief and to be a principal in the first degree.
Even without adverting to Exhibit 44/44A which is also a confessional statement, Exhibit 37/37A the 1st confessional statement of the 2nd appellant therefore contains all the viable seeds of truth of complicity in the killing of the chief. The learned Justices of the Federal Court of Appeal therefore had ample justification in dismissing the ground of appeal contending the contrary and affirming the conviction of the appellant based on it. I find myself in complete agreement with them.
There is therefore no merit in ground 3 of the grounds of appeal before this court and I hereby dismiss it.
In summary, ground 4 is struck out and grounds 1, 2, 3 and 5 are not substantiated or made out.
Appellants’ counsel having failed to show any merit in any of the grounds of appeal, I hereby dismiss all the grounds of appeal as being without substance. The appeal fails and is hereby dismissed. The conviction for culpable homicide and sentence of death passed by the High Court, Bauchi (Barreto, J.), on the 1st and 2nd appellants and affirmed by the Federal Court of Appeal are hereby affirmed.

A. G. IRIKEFE, JSC.: I agree with the judgment just read by my Lord, Obaseki, JSC., that this appeal lacks substance and should be dismissed.
I hereby dismiss it, and affirm the decision of the Federal Court of Appeal in this matter, dated 13th July, 1979.

M. BELLO, JSC.: I have read in draft the judgment just delivered by my learned brother Obaseki, JSC., and for the reasons stated therein, I agree that the appeal should be dismissed and the convictions and sentences be further affirmed.

A. N. ANIAGOLU, JSC.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Obaseki, JSC., I agree with his conclusion that this appeal should be dismissed. It is hereby dismissed as lacking in merit. The conviction and sentence passed on the appellants are hereby affirmed.

A. NNAMANI, JSC.: My Lords, for the reasons set out in the judgment just delivered by my learned brother, my Lord OBASEKI, JSC., the draft of which I had the advantage of reading, I would also agree that the appeal be dismissed. This appeal is hereby dismissed. Judgment and sentence of the High Court of Bauchi state (Barreto, J.), as affirmed on 13th July, 1979, by the Federal Court of Appeal, Kaduna Judicial Division, are hereby affirmed.

Appearances

Chief Sobo SowemimoFor Appellant

AND

John C. Ozoh Esq., Director of Public Prosecutions, Bauchi State, (with him, Mallam Sa’Adu Mohammed, State counsel, Bauchi State)For Respondent


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