COMMISSIONER OF POLICE v. ALOZIE (2017)

COMMISSIONER OF POLICE V. EPHRAIM ALOZIE

In The Supreme Court of Nigeria

On Friday, the 20th day of January, 2017

SC.60/2013

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
MUSA DATIJJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria

Between

COMMISSIONER OF POLICE –Appellant

AND

EPHRAIM ALOZIE –Respondent

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CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): My Lords, this appeal turns on a very narrow compass. I shall return to it anon. Before then, however, it would only be proper to trace its forensic trajectory from the Court of first instance to this final Court. The respondent herein, Ephraim Alozie, was arraigned before the High Court of the Federal Capital Territory, Abuja, for the offences of conspiracy and armed robbery.In proof of their case, the prosecution called five witnesses, PW1 – PW5. While PW2, a co-accused person, testified in favour of the Prosecution. PW1 and PW5 were the police Officers involved in the investigation of the case. While the PW1 received the report of the robbery incident and recovered certain items from the locus criminis, the Investigating Police Officer, PW5, in his evidence, identified and tendered a confessional statement which the respondent, allegedly made. The said statement was recorded by Emmanuel Okoye who was a member of the Investigating team. The said statement was admitted in the proceedings as Exhibit B.
The evidence of the PW2 was that both himself and the respondent were members of an armed robbery gang. He, it was, who spied on the victim, the deceased person, prior to the robbery incident.
On his part, the respondent, not only denied making the said Exhibit B, he equally denied committing the offence he was charged with. The said Court (hereinafter, simply, referred to as “the trial Court”), upon finding him guilty as charged, convicted and sentenced him. His appeal to the Court of Appeal, Abuja Division was successful. The said Court (hereinafter, simply referred to as the lower Court”) quashed his conviction and sentence, hence, this further appeal by the prosecution, wherein this Court was entreated to determine the sole question:
Whether the Court below was right in rejecting and expunging the confessional statement, Exhibit B, from the evidence on the ground of failure to conduct trial within trial resulting in the discharge and acquittal of the respondent of the offences of criminal conspiracy and armed robbery?
The respondent also, formulated a sole issue for the determination of the appeal. It was framed thus:
Whether the Court below was right and justified in discharging and acquitting the respondent of the offences of criminal conspiracy and armed robbery?
My Lord, I take the view that the appellant sole issue better captures the main agitation of this appeal. It would therefore, be adopted as the sole issue for the determination of this appeal.
Thus, for the avoidance of any doubt, the sole issue for the resolution of the divergent submissions hereunder is:
Whether the Court below was right in rejecting and expunging the confessional statement, Exhibit B, from the evidence on the ground of failure to conduct trial within trial resulting in the discharge and acquittal of the respondent of the offences of criminal conspiracy and armed robbery?
ARGUMENTS OF COUNSEL ON THE SOLE ISSUE
APPELLANT’S CONTENTION

When this appeal was heard on October 27, 2016, Chief F. F. Egele, for the appellant, adopted the Amended brief of argument filed on September 19, 2016, although deemed properly filed on October 27, 2016. In the said brief, Sections 28 and 29 of the Evidence Act 2011 were cited on the relevance and admissibility of a confessional statement of an accused person. The following cases were cited; Nsofor and Anor v State (2005) All FWLR 397 (pt 242) 397, 409-410; Ikemson and Ors v. The State [1989] 3 NWLR (pt. 110) 455, 476.
It was contended that where an accused person objects to the voluntariness of a statement, that issue must first be determined through a trial within trial before its admissibility or otherwise, Ojegele v The State[1988] 1 NWLR (pt. 71) 414; Madjemu v. The State [2001] 9 NWLR (pt. 718) 349.
Counsel submitted that the mere denial of a confessional statement is not a sufficient ground for rendering it inadmissible, citing Igago v The State (1999) 10-12 SC 84; [1999] 14 NWLR (pt. 637) 1; Madjemu v The State (supra).
He pointed out that, at the trial Court, the respondent denied making the confessional statement at the point it was being tendered by PW5, the investigating police Officer. He referred to Page 203 of the record.
He explained that the trial Court admitted the statement as Exhibit B, holding that the weight to be attached to it would be determined later. He observed that, by the above objection, the respondent not only disputed the correctness of its contents, but also denied making the statement. In his view, since that objection amounted to a retraction of the confessional statement, its admission in evidence as Exhibit B was proper, Obidiozo v State (1987) 4 NWLR (pt. 67) 748; Ehot v State [1993] 4 NWLR (pt. 290).
He further submitted that, since the respondent denied making the said confessional statement, there was no basis for a trial within trial, citing the objection to the effect “he did not make any statement.” He pointed out that the ground

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of the objection was neither hinged on the complaint that he was tortured to make the statement nor that he made the statement under duress, citing the respondent’s evidence-in- chief at pages 209  210 of the record where he insisted that he made no statement to the police.
He noted that there was a marked distinction between the admissibility of a confessional statement and the weight attachable to it through the ascription of evidential value. He cited Ubierho v The State [2002] 5 NWLR (pt. 819) 644; Madjemu v The State (supra) as authorities which laid down the guide for determining the truth or veracity and what weight to attach to a confessional statement.
He submitted that for a confessional statement to be acted upon in convicting an accused person, it must be direct, positive, unequivocal and point to the fact that the accused person committed the crime, Odu v F.R.N. [2002] 5 NWLR (pt. 761) 615; Amachree v Nigerian Army [2003] 3 NWLR (pt. 807) 256.
He maintained that, by the guidelines for accessing a confessional statement, there was abundant evidence, outside the confessional statement – Exhibit B – pointing to the fact that the respondent committed, or partook in the said offences of robbery, citing the testimonies of PW2, page 187 (lines 19-26) of the record which, in his view, clearly supported and corroborated Exhibit B and the fact that the respondent committed the said offences.
He drew attention to the confessional statement of the co-accused person, Peter Ogu, Exhibit A, pages 25 – 26 of the record. He explained that Peter Ogu was also convicted by the trial Court: a conviction that was affirmed by the Court below. He observed that Exhibit B, at pages 33-34 of the record, mentioned Peter Ogu as one of the robbers. He however, conceded that the statement of an accused person to the police is only evidence against him and not evidence against a co-accused person.
According to him, the evidence of a co-accused person, implicating an accused person directly or inferentially in the commission of the crime, must be examined before coming to the conclusion that he had a case to answer or committed the crime. He citedOhaka and Ors v The State [1988] 7 SC (pt. II) 24 , 37, for this view.
Counsel canvassed the view that a Court can act on a retracted confessional statement to convict an accused person, Nkwuda Edamine v The State [1996] 3 NWLR (pt. 438) 530; Gira v The State [1996] 4 NWLR (pt. 443) 375, 388. He maintained that the admissibility of the respondent’s confessional statement, Exhibit B, and the high evidential value which the trial Court accorded it, were well- founded.
In his submission, Exhibit B, and other pieces of evidence no matter how slight they were, met the standard of proof that is, proof beyond reasonable doubt. In effect, the prosecution successfully established the ingredients of the offences of criminal conspiracy and armed robbery,Ikemson v. The State (supra).
He invited the Court to hold that the lower Court erred in rejecting and expunging Exhibit B on the ground that the trial Court ought to have conducted a trial within trial to determine its admissibility. He finally, urged the Court to hold that the lower Court was in error in acquitting and discharging the respondent.
RESPONDENTS ARGUMENTS
On his part, Aliyu Saiki, for the respondent with I. T. Hassan and A. Abdulwahab (Mjss), adopted the respondent’s brief of argument. In the main, his contention was that a person standing trial for an offence could be convicted based on his admission of guilt, that is, his confession or by the surrounding circumstances, that is, circumstantial evidence; or by an eye witness account.
He made the point that the basis of admissibility of a confessional statement is voluntariness, citing Section 29 (2) of the Evidence Act, 2011. He maintained that once an accused person makes a statement under caution admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional, citing Ikemson and Ors v The State (supra). He pointed out that, in consequence, any confession made or extracted through violence, threats, promise or any extraneous circumstances suggesting lack of free will would be irrelevant and cannot be acted, or relied, upon at the trial of the accused person, Section 29 of the Evidence Act.
He canvassed the view that a conviction could be based solely on the confessional statement of the accused person, Ubierho v The State (supra). He contended that a Court can act on a retracted confessional statement to convict an accused person, Nkwuda Edamine v The State (supra).

He explained that, at the trial, the respondent objected to the admissibility of the purported confessional statement at

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the point it was being tendered by PW5, the investigating police officer, (IPO). He pointed out that the respondent’s objection was on the ground that he signed the purported confessional statement under duress and therefore the statement was not voluntary, citing page 203 of the record. He noted that the trial Court, instead of conducting a trial within trial, admitted the statement in evidence and marked it Exhibit B, stating that the weight to be attached to it would be determined later.
He submitted that the trial Court was in grave error in admitting the alleged confessional statement in the face of the respondents objection without first determining the voluntariness or otherwise of the statement by conducting a trial within trial. He maintained that the conduct of the trial within trial was imperative and imminent considering the fact that the appellants witness, the PW2, had earlier testified thus “They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape, [page 188 of the record].
In his view, the fact that the respondent objected to the admissibility of the statement on the ground that he did not make the statement but signed it under duress raised the question of voluntariness which the trial court ought to have determined first, Nsofor v State [2005] AII FWLR (pt. 242) 397.
He observed that the respondent, in his defence, explained the surrounding circumstances leading to his signing the statement Exhibit B under duress, citing Nsofor v State (supra). He further, submitted that where a confessional statement was the mode adopted to establish the guilt of the accused person in criminal proceedings, voluntariness comes before the truth of the statement, that is to say, admissibility must be determined first before any consideration of the content as to its truthfulness.
Consequently, before the statement could be relied, and acted, upon it must have been properly and rightly admitted in evidence, Nsofor v State (supra) 415.
He maintained that the alleged confessional statement of the respondent, Exhibit B, was wrongly admitted in the face of the objection and the trial Court’s failure to conduct a trial within trial to ascertain and determine its voluntariness. He therefore, took the view that the trial Courts reliance on Exhibit B to convict the respondent was misplaced and in error. He invited the Court to hold that the lower Court was right to have rejected and expunged Exhibit B for having been wrongfully admitted in evidence by the trial Court.
He submitted that, in criminal trials, the establishment of the commission of a crime does not transcend the establishment of the guilt of the accused person except there is a link or nexus between the accused person and the commission of the crime, citing Obiakor v State (2002) 6 SC (pt. 1133) 39-40; Bozin v State (1985) LPELR -799 (SC).
He insisted that, in this appeal, there was no evidence linking the respondent with the commission of the offences charged. He pointed out that the appellant’s witnesses did not link the respondent with the crime except PW5 who merely, tendered the alleged confessional statement, purportedly recorded by his colleague without more. PW3, the victim and an eye witness to the robbery, did not identify the respondent as one of the robbers. He urged the Court to resolve the sole issue in favour of the respondent.
RESOLUTION OF THE SOLE ISSUE
Now, as pointed out earlier, when the Prosecution applied that the statement of the appellant (as second accused person) be admitted in evidence through PW5, the Investigating police Officer, counsel for the respondent objected thus:
“We are objecting to the admissibility of the statement in evidence. The accused said he was put under duress to sign the statement, he never made any statement.”
[page 203 of the record; italics supplied for emphasis] The trial Court admitted the statement in evidence and marked it as Exhibit B, holding that it “would determine the weight to attach to the statement at the end of the day,” [page 203 of the record]. At page 236 of the record, the said trial Court, observed that in the same vein, a critical look at Exhibit B shows that DW2, Ephraim Alozie, signed the document and not (sic) thump print. What it means is that the accused persons are denying [the exhibits] in totality.
Further, at page 237 of the record, the trial Court maintained that:
“…it is very unlikely that the Investigating Police Officer who recorded the statements separately would concoct such story only to implicate the accused persons in a matter of life and death. Again, it is very unlikely that the Superior Police Officer, I. G. Audu, Superintendent of Police, would endorse the two statements to confirm that they were made by the two accused persons…”

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The Court took the view that the “retraction of the said exhibits is only an afterthought. The denial of the statements cannot avail the accused, [page 238 of the record].
On appeal, the lower Court found thus:
“There is no doubt that the trial Judge only considered the last part of the objection to the admissibility of the statement, to the effect that the appellant did not make a statement. He therefore admitted it in evidence and said he would consider its weight later on. I think the trial judge completely missed the point when he failed to consider the first ground of objection to the admissibility of the statement, and the most crucial part for that matter. The appellant said he was put under duress to sign the statement.’
It is as clear as day, that the appellants objection was to the voluntariness of the statement sought to be tendered, and the Judge ought to have known so. Apart from the clear words used in objecting, other evidence led before the Court, clearly raised the issue of the voluntariness of the statement, which the trial judge should have considered. For before the Prosecution applied to tender the appellant’s statement, PW2, David Udoh, had given evidence before the Court and stated at page 188 of the record that:
‘They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape. Peter said he was the one who shot the man.. Ephraim said he was the one who was holding the gun’
This piece of evidence was already before the Court when the statement, Exhibit B, was sought to be tendered. It should not have been ignored in toto by the trial Judge when the appellant raised the voluntariness of his alleged confessional statement. Since PW2 was a living witness to the flogging of the appellant, he was a competent witness who might have been called by the appellant to testify, if a trial within trial had been conducted, as it ought to have been, to ascertain the voluntariness of the statement.
In my considered view, the trial Court here ought to have known and ought to have considered the objection to the admissibility of the statement was clearly and crucially based on its non-voluntariness and not that it was simply a denial of making it. In such a situation, the trial Judge had a duty to subject that statement to the test of voluntariness before he could admit it into (sic) evidence. The only way known to law is to conduct a trial within trial.
Since the trial Court in this appeal had failed to conduct a trial within trial, and the objection was on the voluntariness of the statement, the statement, i.e Exhibit B, was wrongly admitted in evidence. It ought not therefore to be considered. It is therefore hereby expunged from the record, and for the avoidance of doubt, all references and reliance on it, to convict the appellant are also expunged from the record..”
[pages 300 -304 of the record] As indicated earlier, when the Prosecution applied that the said statement be admitted in evidence through PW5, the investigating Police Officer, counsel for the respondent objected thus:
“We are objecting to the admissibility of the statement in evidence. The accused said he was put under duress to sign the statement, he never made any statement.”
[page 203 of the record; italics supplied for emphasis] The appellant counsel contended that, by the above objection, the respondent not only disputed the correctness of its contents, but also denied making the statement. In his view, since that objection amounted to a retraction of the confessional statement, its admission in evidence as Exhibit B was proper.
With profound respect, counsel would seem by this submission, to be conflating two dissimilar situations. Surely, it is a positive rule of our accusatorial jurisprudence that no statement of an accused person is admissible against him unless it is shown by the prosecution to have been made voluntarily.
This principle is as old as the Laws received from England. In England, the principle is as old as Hale, Gbadamosi and Anor v State (1992) LPELR-SC.290/1991, citing Ibrahim v R (1914) AC, 559 609; Ikpasa v State[1981] 9 SC 7, 29; John Dawa and Anor v State (supra) at 258; Auta v State [1975] 1 All NLR 163, 169.
The question of involuntariness often arises where an accused person alleges that he was subjected to torture in the making of a confessional statement. In other words, though, he made the statement, it was not a product of his free will since he was forced to make it, Mbang v State [2013] 7 NWLR (pt 1352) 48; Ibeme v State [2013] 10 NWLR (pt 1362) 333; Olatunbosun v State [2013] 17 NWLR (pt 1382) 167.
In this sort of situation, the trial Court is under obligation to conduct a trial-within-trial (also known as voire dire or mini trial) to determine the veracity or otherwise of the claim. As this Court (per Nweze, JSC) explained in FRN V Dairo (2015) LPELR -24303 (SC) 44-45:
“..the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of involuntary and hence, inadmissible evidence from the wheat of

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admissible evidence whose cogency and probative value are indubitable. The cases on this point are legion: they are countless. Only one or two of them will be cited here, Ogudo v The State (2013) LPELR-20138 (SC); Auta v State (1975) 4 SC 125; Effiong v State (1978) 8 NWLR (Pt 562) 362; Lasisi v State (2013) LPELR- 20183 (SC) 29; The State v Rabiu (2013) LPELR- 20183 (SC) 29; Ogudu v The State (2011) LPELR-860 (SC); Nwangbonu v State (1987) 4 NWLR (Pt 67) 748; Ogunye v State (1999) 5 NWLR (Pt 664) 548, 570. 
Scholars are also unanimous on this issue, I.H Dennis, The Law of Evidence [second Edition] (London: Sweet and Maxwell, 2002) 184; L. O, Aremu, “The Voluntariness of Confessions in Nigerian Law,” in 1977-1980 Nigerian Law Journal, 32; J Amadi, Contemporary Law of Evidence in Nigeria [Vol.1] (Port Harcourt: Pearl Publishers, 2011) 324; M. A. Owoade, “Voluntariness of Confessions in Nigerian Law – Need for Reform,” in 1987 Nigerian Current Law Review 179.”
On the other hand, a retraction or denial of a confessional statement does not affect its admissibility, Mbang v State (supra). In other words, where an accused person denies his confessional statement, the trial Court has no obligation to conduct a trial within trial, Mbang v State (supra); Abdullahi v State [2013] 11 NWLR (pt 1366) 435.
This has long been settled in the very old cases of R v. Sapele and Anor (1952) 2 FSC 74; R v Itule (1961) All NLR 462; the relatively old decision of Ikpasa v The State (1981) 9 SC 7; Akpan v State (1992) LPELR -381 (SC) 36; Osakwe v State [1994] 2 SCNJ 57; Nwangbonu v The State [1994] 2 NWLR (pt 327) 380; Bature v State [1994] 1 NWLR (pt 320) 267; Eragna and Ors v The AG, Bendel (1994) LPELR (SC) 30; Idowu v State (1996) 11 NWLR (Pt 574) 354; as well as the more recent decisions of Silas Sule v State (2009) LPELR-3125 (SC) 28-30, G-B; FRN v Iweka(2011) LPELR -9350 (SC) 53; Oseni v. The State (2012) LPELR -7833 (SC) 22-23.
As has been well settled, a confession, if voluntary, is deemed to constitute a relevant facts as against the person who made it, hence it is admissible against that person only, Nsofor v State [2004] 18 NWLR (pt 905) 292; Lasisi v State [2013] 9 NWLR (pt 1358) 74; Saidu v State [1982] 4 SC 41; Adebayo v AG, Ogun State [2008] 2 SCNJ 352.
As a corollary, the Courts are bound to reject an accused person’s confession which eventuated from torture, duress, threat or inducement, Ehot v. State [1993] 4 NWLR (pt 290) 644; Nwosu v State [1986] 4 NWLR (pt 35) 326; Odeh v FRN [2008] 12 NWLR (Pt 1103) 1.
The only process of determining the voluntariness of a confession is through a trial within-trial, Mbang v State[2013] 7 NWLR (pt 1352) 48, 72. This is also the only process of testing the admissibility of a confession where it is challenged on the grounds of threat, undue influence, duress etc, Nsofor v State (2004) 18 NWLR (pt. 905) 292; Auta v State [1975] 4 SC 125; Gbadanosi v State [1991] 6 NWLR (pt 196) 182.

As the lower Court insightfully found:
“…I think the trial Judge completely missed the point when he failed to consider the first ground of objection to the admissibility of the statement, and the most crucial part for that matter. The appellant said he was put under duress to sign the statement.’ It is as clear as day, that the appellants objection was to the voluntariness of the statement sought to be tendered, and the Judge ought to have known so. Apart from the clear words used in objecting, other evidence led before the Court, clearly raised the issue of the voluntariness of the statement, which the trial Judge should have considered. For before the prosecution applied to tender the appellant statement, PW2, David Udoh, had given evidence before the Court and stated at page 188 of the record, that:
‘They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape. Peter said he was the one who shot the man. Ephraim said he was the one who was holding the gun’
This piece of evidence was already before the Court when the statement, Exhibit B, was sought to be tendered. It should not have been ignored in toto by the trial Judge when the appellant raised the voluntariness of his alleged confessional statement. Since PW2 was a living witness to the flogging of the appellant, he was a competent witness who might have been called by the appellant to testify, if a trial-within-trial had been conducted, as it ought to have been, to ascertain the voluntariness of the statement.
In my considered view, the trial Court here, ought to have known and ought to have considered the objection to the admissibility of the statement was clearly and crucially based on its non-voluntariness and not that it was simply a denial of making it. In such a situation, the trial Judge had a duty to subject that statement to the test of voluntariness before he could admit it into (sic) evidence. The only way known to law is to conduct a trial within trial…
Since the trial Court in this appeal had failed to conduct a trial within trial, and the objection was on the voluntariness of the statement, the statement, i.e, Exhibit B, was wrongly admitted in evidence, it ought not therefore to be considered at all by the trial Court or this Court. It is therefore hereby expunged from the record, and for the avoidance of doubt, all references and reliance on it, to convict the appellant are also expunged from the record..”
(pages 300 -304 of the record)
My Lords, I am entirely in agreement with the above findings and

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reasoning of the lower Court. Since even the Prosecutions witness, PW2, was honest enough to concede to the torture which prompted the so-called confession of the accused person, the lower Court was right in holding that:
“In my considered view, the trial Court here, ought to have known and ought to have considered the objection to the admissibility of the statement was clearly and crucially based on its non-voluntariness and not that it was simply a denial of making it. In such a situation, the trial Judge had a duty to subject that statement to the test of voluntariness before he could admit it into (sic) evidence. The only way known to law is to conduct a trial within trial…
Since the trial Court in this appeal had failed to conduct a trial within trial, and the objection was on the voluntariness of the statement, the statement, i.e. Exhibit B, was wrongly admitted in evidence. It ought not therefore to be considered at all by the trial Court or this Court. It is therefore hereby expunged from the record, and for the avoidance of doubt, all references and reliance on it, to convict the appellant are also expunged from the record…”[pages 300 -304 of the record] In the circumstance, I find no merit in the appellant’s complaint against the above findings and conclusion. Contrariwise, the submissions of the learned counsel for the appellant would have been well-taken if what was in issue was the question of the retraction of the appellant confession.
As indicated earlier, a retraction or denial of a confessional statement does not affect its admissibility, Mbang v State (supra). In other words, where an accused person denies his confessional statement, the trial Court has no obligation to conduct a trial within trial, Mbang v State (supra); Abdullahi v State (2013) 11 NWLR (pt 1366) 435;R. v Sapele & Anor (supra); R v Itule (supra); Osakwe v State (supra); Nwangbonu v The State (supra); Bature v State (supra); Eragna and Ors v The AG Bendel (supra); Idowu v State (supra); Sule v State (supra); FRN v Iweka (supra); Oseni v The State (supra).
In the latter situation, that is, where an accused person retracts or resiles from his confessional statement, the trial Court would be perfectly right to admit it and determine the weight to be attached to it in its judgment.
For this purpose, it [the trial Court] would consider issues, such as the ones indicated hereafter.
They are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v The State (2012) LPELR -9348 (SC) 32-33, G-D; Kareem v FRN [2002] 7 SCM 73; Akpan v The State [2001] 11 SCM 66.
These principles which were enunciated in R v. Sykes (1913) 8 C.A.R. 233, 236 have been consistently, endorsed by our superior Courts, Kanu v The King (1952) 14 WACA 30; The Queen v Obiasa (1962) NLR 651; [1962] 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Onochie and Ors v The Republic (1966) NMLR 307; Jafiya Kopa v. The State (1971) 1 All NLR 150; Dawa v The State [1980] 8 -11 SC 236; Ejinina v The State [1991] 5 LRCN 1640, 1671; Arthur Onyejekwe v The State [1992] 4 SCNJ 1, 9; [1992] 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor v. The State [2004] 3 NWLR (pt. 860) 367; [2004] 1 SCNJ 65; [2004] 1 SC (pt 1) 65.
However, the situation in the instant case was different, As the lower Court found:
“.. before the Prosecution applied to tender the appellant’s statement, PW2, David Udoh, had given evidence before the Court and stated at page 188 of the record, that;
‘They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape. Peter said he was the one who shot the man, Ephraim said he was the one who was holding the gun…’
This piece of evidence was already before the Court when the statement, Exhibit B, was sought to be tendered. It should not have been ignored in toto by the trial Judge when the appellant raised the voluntariness of his alleged confessional statement. Since PW2 was a living witness to the flogging of the appellant, he was a competent witness who might have been called by the appellant to testify, if a trial-within-trial had been conducted, as it ought to have been, to ascertain the voluntariness of the statement.”
[pages 300 -304 of the record] Regrettably, the trial Court failed to ascertain the voluntariness of Exhibit B which it admitted and acted upon in convicting the appellant. The lower Court was therefore right in expunging the said exhibit from the record. In all, this appeal is devoid of any scintilla of merit. Accordingly, I hereby enter an order dismissing it. Appeal dismissed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: I read the judgment just delivered by my learned brother, Nweze JSC. I agree with my brother that the appeal should be dismissed. I hereby dismiss the appeal.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother Nweze JSC just

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delivered. I entirely agree with his lordship’s reasoning and conclusion that the appeal lacks merit and dismiss the appeal too. It is unnecessary for me to restate the facts of the case that brought about the appeal, same having been thoroughly captured in the lead judgment. I rely on the summary of these facts made in the lead judgment in emphasizing the resolve to dismiss the appeal.
My lords, it is evident from the record of this appeal that of the five witnesses the appellant relied upon to secure the conviction of the respondent, none was an eye witness. What occurred and led to the admission of and the reliance on Exhibit B, the respondent’s purported confessional statement, by the trial Court is fully captured at page 202- 203 of the record.
Please read same as herein under reproduced:-
“PW5:. On 21-2-2006 Ephraim Alozie made a confessional statement . I can recorgnize the statement.
Ct: Witness identified the statement(s).
Pros Counsel: We seek to tender the statement(s) in evidence.
Def counsel: We are objecting to the admissibility of the statement in evidence. The accused said he was put under duress to sign the statement. He never made the statement.
Court: The statement is admitted in evidence and marked as Exhibit B. The Court would determine the weight to attach to the statement at the end of the day.
 (Underlying mine for emphasis)
In its judgment, the trial Court at page 235 of the record in relation to the respondent thus:-
“Through PW5 Hyginus Uba, the prosecution tendered Exhibits A and B. Exhibit A is the confessional statement of Peter Ogu (1st accused). While Exhibit B is the confessional statement of Ephraim Alozie (2nd accused). At the point when the prosecution applied to tender Exhibit A in evidence, the learned defence counsel raised an objection on the grounds that the statement was obtained involuntarily. The Court ordered for a trial within trial..
The next issue at this stage is how to determine the veracity of Exhibits A and B. The test for determining the truth or otherwise of a confessional statement is to seek for any other evidence be it slight of circumstances which makes it probable that the confession is true. See the case of Akpan v The State (1992) 6 NWLR (Pt. 248) 439 at 460 and Ikpasa v. A.G. Bendel State (1981) supra. a critical look at Exhibit B shows that DW2 Ephraim Alozie signed the document and not thumb print. What it means is that the accused person(s) are denying Exhibits A and B in totality.

It is glaring from the record particularly reproduced above that whereas the trial Court has conducted a trial-within trial before admitting Exhibit A, the extra judicial statement of the 1st accused it finds confessional, no such trial has been conducted in relation to Exhibit B, the respondent’s statement inspite of his objection that he was tortured. Yet, the trial Court in the course of its judgment found Exhibit B confessional and relied on it to convict the respondent. Learned respondents counsel is right in defending the lower Court’s judgment to the effect that the trial Courts reliance on Exhibit B which voluntariness has not be ascertained is perverse.
Our jurisprudence is replete with decisions which the lower Court dutifully invoked to set-aside the trial Courts wrong judgment. Having failed to ascertain the voluntariness of Exhibit B, even if same is shown to be ex-facie voluntary, and it is not, the trial Court is indeed wrong to have arrived at its decision on the basis of the inadmissible and unavailing Exhibit. See Nsofor V. State (2005) FWLR (pt 242) 397; Ogudo V. The State (2011) 12 SC (Pt 1) 71 and Lasisi V. State (2013) LPELR 20183 (SC) 29. The lower Court having rightfully expunged the wrongly admitted statement arrived at the correct and lawful decision in the case.
It is for the foregoing and more so the fuller reasons adumbrated in the lead judgment that I adjudge this appeal as lacking in merit and dismiss same. I abide by the consequential orders made in the lead judgment as well.
KUMAI BAYANG AKA’AHS, J.S.C.: I had the preview of the judgment of my learned brother, Nweze JSC dismissing the appeal as lacking merit. I agree with the reasoning and conclusion arrived at in the lead judgment.
The respondent alone with 2 others stood trial before the High Court of the Federal Capital Territory, Abuja for the offences of conspiracy, armed robbery, culpable homicide and rape contrary to Sections 97, 298, 221 and 283respectively of the Penal Code. At the end of the trial, Peter Ogu (1st accused) and himself (2nd accused) were found guilty of conspiracy to commit armed robbery as well as armed robbery contrary to Sections 97 and 298 Penal Code and sentenced to 5 years for criminal conspiracy and 10 years for armed robbery and a fine of N10,000.00. The sentences were to run consecutively. The conviction was based principally on their alleged confessional statements which were admitted as Exhibits “A” and B. They were however acquitted and discharged of the offence of rape.
The respondent was dissatisfied with his conviction and appealed to the Court of Appeal, Abuja and the appeal was allowed thereby upturning his conviction and sentence in appeal No. CA/A/215C/2012 on 16/1/2013. The

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appeal turned on the alleged confessional statement Exhibit “B.
The prosecution felt aggrieved and appealed to this Court and the issue agitated in the Amended Appellant’s brief is:-
Whether the Court below was right rejecting and expunging the confessional statement, Exhibit A from the evidence on the ground of failure to conduct trial within trial resulting in the discharge and acquittal of the Respondent of the offences of criminal conspiracy and armed robbery (Grounds 1 and 2).

It should be noted that the statement admitted in evidence as the confessional statement of the respondent is Exhibit “B” and not Exhibit “A which was the statement of Peter Ogu who was the 1st accused.
PW5, Hyginus Uba, a Police Constable No.37205 testified as follows:-
I recorded the statement of Ephraim Alozie on 10/2/2006. On 21/2/2006 Ephraim Alozie made a confessional statement which was recorded by my team member Emmanuel Okoye. I told Emmanuel Okoye to record the confessional statement. After he recorded the statement he brought it to me and I attached it to the one he made on 10/2/2006. I took Ephraim Alozie to a superior officer I. G. Audu (S.P). He read the statement to the suspect and he accepted making the statement. Then Ephraim Alozie signed and Emmanuel Okoye signed as the recorder. I can recognize the 1st statement through my hand writing, name and signature. I can also recognize the 2nd statement through the hand writing of Emmanuel Okoye whom I had worked together with since 2004.
After identifying the statements the prosecution applied to tender them in evidence but the defence counsel objected on the ground that the accused was put under duress to sign the statement. This is what took place on 2/11/2009.
Court: Witness identified the statements.
Pros. Counsel: We are objecting to the admissibility of the statement in evidence. The accused said he was put under duress to sign the statement, he never made a statement.
Court: The statement is admitted in evidence and marked as Exhibit B. The Court would determine the weight to attach to the statement at the end of the day. (see pages 202-203 of the records).
From what took place in the Court as reproduced above, it is clear that the voluntariness of the making of Exhibit B by the respondent was directly in issue and a trial within trial ought to have been conducted before it could be admitted evidence.
See: Nsofor v. State (2004) 18 NWLR (Pt. 905) 292.
The learned trial Judge jumped the gun when he decided to admit the statement without conducting a trial within trial to determine its voluntariness and hence admissibility. He must have thought that the respondent was merely denying making of the statement. This error by the Learned trial judge was fatal to the prosecutions case. As it turned out the trial Judge relied heavily on Exhibit B in finding the respondent guilty. The Court below did the right thing to expunge the said Exhibit B from the record and having done so, there was no evidence to establish without doubt the culpability of the respondent in the offences charged. In the result the respondent was acquitted and discharged of the offences for which he was found guilty and convicted.
It is for this reason and the fuller reasons contained in the lead judgment of my learned brother, Nweze JSC that made me to find that the appeal lacks merit and consequently dismissed same and to affirm the judgment delivered by the Court of Appeal, Abuja on 23/10/2012 in CA/A/215C/2012. Appeal is dismissed.
AMIRU SANUSI, J.S.C.: I had a preview of the judgment prepared and just read by my learned brother C.C. Nweze JSC.
I am in entire agreement with the reasons and conclusions arrived at by His Lordship. While adopting those reasons and conclusion as mine, I also wish to chip in few comments in their support. The learned trial judge during the trial had perhaps declined to conduct trial within trial before admitting the purported confessional statement of the accused person now respondent, simply because he was carried away by the tone or mode of the objection raised by the learned respondents counsel that they were objection to the admissibility of the said statement because the respondent said he did not make the statement. However, previously and as borne out by the record, evidence abound that the respondent was put under duress to sign the statement. To my mind, that presupposes that the respondent herein, did not voluntarily sign it. The trial Court then without conducting a trial within trial proceeded to admit the statement in evidence and marked it Exhibit B with a rider that it would later determine the weight to attach to it. Still on the issue of the objection by the learned defence counsel, the learned defence counsel in his own words raised categorical objection to the effect that the accused was put under duress to sign the statement which he never made. My understanding of such wording of objection is that the contents of the statement were concocted and were ascribed to be the one he made and was therefore forced to sign same.

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It is therefore wrong, in my view, for the appellant to take the stance that the accused person, now respondent, simply denied making the statement simpliciter, as would make the statement to be admissible in evidence on the established principle of law, that mere denial of making a confessional statement does not render or make it inadmissible. SeeMbang v State (supra).
Admittedly, where an accused person merely denies making a statement simpliciter, or the trial Court is not bound to conduct any trial within trial. Conversely, where an accused person, as in this instant appeal, alleged that his signature was obtained by force, or by trick, that necessarily brings to fore an issue as to the voluntariness of that statement itself, which could only be determined by the trial Court by conducting a trial within trial. See Saidu v The State (1982) 4. Sc (reprint)
My lords. I think it is not out of place to restate the law on procedure of determining the voluntariness of confessional statement. Where in the course of criminal proceedings a confessional statement of an accused person is tendered in evidence by the prosecution and question is raised by the defence with regard to whether it was made or obtained voluntarily, the trial Court has a duty, and in fact MUST suspend the main trial and conduct a trial within trial to determine its voluntariness or otherwise. At the end of the mini trial, the trial Court must make up its mind in the light of the evidence adduced before it by both the prosecution and the defence, on whether such statement was voluntarily made by the accused or not. If in its opinion, the statement in question was voluntarily made, it will admit it. But if the trial Court finds that it was not voluntarily obtained, for instance there was slightest evidence of duress, force, promise, inducement or that trick was applied to the accused person, it will reject such statement and mark it so in its ruling and will proceed with the main trial, except that it will not act on it in its determination on the case.
But if on the other hand, the trial Court after conducting the trial within trial finds that the statement was voluntarily made by the accused, it will deliver its ruling admitting it and mark it so accordingly and then proceed with the main trial and it could later use or act on it in the determination of the case. However, where it is the case of retraction of the confessional statement, that is to say, where the accused simply denies making the statement, such statement can still be admitted when tendered by the prosecution notwithstanding the objection by the defence. The matter of retraction could still be taken up by the defence/accused in his defence. In such situation, it is not of any necessity to conduct a trial within trial, as I stated above, once no minutest element of allegation of evidence of involuntariness or any vitiating factor of confessional statement was applied and raised in the course of the trial. It is within the precinct of a trial Court to consider, if in deciding the credibility of the retracted confession, what weight to ascribe to it. See Adisa Wale vs The State (2013) 14 NWLR (pt. 1375) 562.
Now, in this instant case it is clear as crystal that the prosecution applied duress on the accused before obtaining the statement (Exhibit B) as admitted by the defence. For instance, while testifying in Court, as shown on page 188 of the record, PW2 testified inter alia, thus:-
“They took Peter and Ephraim (appellant) to the theatre and flog (sic) them to confess who killed the man who died at Dape. Peter said he was the one who shot the man. Ephraim said he was the one who was holding the gun……..

It is noteworthy, that the above piece of evidence was given at the trial Court even before the purported confessional statement of the accused/respondent (Exhibit B) was tendered in evidence, other pieces of evidence also abound from the testimony of PW2 which brought out or had confirmed that some elements of duress was applied on the accused/Respondent in obtaining the statement i.e Exhibit B.
It is my considered view therefore that if the learned trial judge had cast his mind to those pieces of evidence which were raised by the witness in question, they would have convinced him to at least, see the need or necessity to conduct a trial within trial in the circumstance, to enable him determine whether the statement in question was voluntarily made by the accused. However, he unfortunately failed to do so. In this situation I find myself in tandem with the finding of the Court below, that the trial Court was wrong in refusing or failing to conduct trial within trial in the circumstance.
Thus, in view of these few comments and for the more detailed and elaborate reasons and the conclusion arrived at in the leading judgment of my learned brother, I also see no merit in this appeal. It is hereby dismissed by me. Appeal is dismissed.

Appearances

F. F. Egele- For Appellant

AND

Aliyu Saiki with him, I.T. Hassan and A. Abdulwahab (Miss) –For Respondent

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