CHARLES v. FRN (2018) LPELR-43922(CA)

PRACTICE AREA: CRIMINAL PROCEDURE

INTRODUCTION

EKANEM, J.C.A. in the Appeal at hand explained the need for a trial-within-trial procedure as follows: “The need for a trial-within-trial arises when at the point of tendering the extra-judicial confession of an accused person, the defence objects to its admissibility on the ground that it was not obtained voluntarily. The trial of the substantive charge is put on hold for the sole purpose of determining the voluntariness of the making of the confessional statement and hence its admissibility or otherwise.”

On whether a Court may, at the trial-within-trial stage, delve into the substantive suit, the learned Justice said “The law is that a Court must be cautious in its ruling at an interlocutory stage not to make any pronouncement or observation on the facts which might appear to determine the main issue/s or tend to prejudice the main issue.” he went on to say “It is my view that this position of the law applies to a trial Court’s ruling in a trial-within-trial. The trial Court must ensure that it makes no pronouncement or observation which might appear to determine the yet to be concluded substantive trial or any issue that will arise thereat no matter how much the parties by their evidence and the addresses of their counsel tempt it to do so.” He said further that “ … The impression that the trial judge had already made up his mind … was bad or unacceptable.”

He concluded by saying that: “[Trial-within-trial] is not held for the purpose of testing the truthfulness of the content of the statement.”

FACTS OF THE CASE

On a two-count charge, the appellant was charged alongside two other persons for conspiracy to commit an offence and alone in respect of his failure to declare the sum of $102,885 to the officers and men of the Nigerian Customs Service contrary to the provisions of Section 2(3) and Section 18 respectively of the Money Laundering (Prohibition) Act, 2011 (as amended by Act No 1 of 2012 before the Federal High Court, Lagos Judicial Division.

The trial of the appellant and his co-accused persons commenced on 25/4/2016. The prosecution called two witnesses. In the course of the evidence-in-chief of the second witness for the prosecution, the prosecution sought to tender through him several documents including appellant’s statement made on 9/10/2015, another statement made by appellant on the same date and a further statement made by the appellant on 19/11/2015. Appellant’s counsel objected to their admissibility. The objection was on the basis that the statements were obtained contrary to Section 29 of the Evidence Act, that is, that they were involuntary. Consequently, the trial Court directed a trial-within-trial.

During the trial-within-trial, the prosecution called four witnesses while the appellant testified for himself. Written addresses were filed in which the appellant contended, inter alia, that the respondent did not comply with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act (ACJA) 2015 in taking the statements of the appellant. The prosecution took the stand that the provisions were directory and not mandatory.

In its ruling delivered on 15/5/2017, the trial Court held, inter alia, that the presence of the appellant’s legal practitioner during the taking of his confessional statements pursuant to Section 17(2) of the ACJA was not mandatory on account of the use of the word “May” therein.

The trial Court ruled in favour of the respondent and accordingly admitted the statements of the appellant in evidence as exhibits. Aggrieved by the ruling, the appellant has appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The following are the issues formulated by the appellant and adopted by the Court for the just determination of this appeal:

  1. Whether having regard to the intendment and purpose of the Administration of Criminal Justice Act, 2015 (ACJA) the learned trial judge was right when he interpreted the provision of [Section] 17(2) of the Administration of Criminal Justice Act 2015 to be permissive and not mandatory. Formulated from grounds 1 & 2.
  2. Given the state of the law with regards to trial within trial whether the ruling of the trial Court at interlocutory stage is not over reaching. Distilled from grounds 3, 4, 5 and 6.
  3. Having regard to the nature of the evidence led at the trial and the conclusion reached by the Lower Court, whether the judgment (sic; ruling) of the Lower Court can stand (Distilled from grounds 7, 8 and 9).

HELD

The Court’s decision in respect of the issues raised for determination in this appeal is as follows:

Issue 1 was answered in the negative and same was resolved in favour of the appellant.

Issue 2 was answered in the affirmative and same was resolved in favour of the appellant.

Issue 3 was answered in the negative and same was resolved against the appellant.

In the light of the above, the appeal was held to have merit hence, it was allowed. Consequently, the ruling of the trial Court admitting the extra-judicial statements of the appellant made on 9/10/2015, 9/10/2015 and 19/1/2015 was set aside and the said statements are ordered to be rejected in evidence and be so marked.

The Court further ordered that the case file should be remitted to the Chief Judge of the Federal High Court for re-assignment to another judge for hearing and determination to ensure compliance with the constitutional requirement of fair hearing by an impartial Court or Tribunal.

RATIO DECIDENDI

EVIDENCE – TRIAL WITHIN TRIAL: Whether Court can determine a substantive trial in its ruling on a trial within trial

“The law is that a Court must be cautious in its ruling at an interlocutory stage not to make any pronouncement or observation on the facts which might appear to determine the main issue/s or tend to prejudice the main issue. See Globe Fishing Industries Ltd v Coker (1990) 7 NWLR (Pt.162) 265, Ogbonnaya v Adapalm (Nig.) Ltd (1993) LPELR – 2288 (SC), Oduntan v General Oil Ltd (1995) LPELR – 2249 and Mbonu V Nigeria Mining Corporation (2006) 13 NWLR (Pt.998) 659 also reported in (2006) LPELR – 12911(CA). It is my view that this position of the law applies to a trial Court’s ruling in a trial-within-trial. The trial Court must ensure that it makes no pronouncement or observation which might appear to determine the yet to be concluded substantive trial or any issue that will arise thereat no matter how much the parties by their evidence and the addresses of their counsel tempt it to do so.

In its ruling in the trial-within-trial, the trial Court remarked that the evidence the appellant gave of what transpired at the airport before he was taken to the office of the EFCC is exactly what is contained in the statements he objected to and that it was a case of retracted confessional statement. I agree with appellant’s counsel that the trial Court erred in making the finding at that stage. What transpired at the airport was of little or no relevance to the voluntariness or otherwise of the written statements made at the office of the EFCC. The slip does not however amount to the trial Court prejudging the substantive matter.

Again the trial Court’s reference to Nsofor v State supra. does not amount to the trial Court jumping the gun. Having erroneously held that it was a case of retracted confession, the trial Court only stated what the law is on retracted confessional statements. It did not express any opinion as to the weight to be attached to the statements.

At page 208 of the record, the trial Court in its ruling made the following remarks.

“Now the 2nd Defendant in his evidence before the Court said he went to see one Ojukwu Rowland who was detained at Okotie Eboh EFCC detention office. That it was then the said Rowland told him (1st Defendant) of one Charles Akaeze (1st Defendant) whom he never knew as at then. That he wrote an application to see the 1st Defendant and that he was allowed to see him. One wonders why 2nd Defendant whom claimed he never met the 1st Defendant before in his life decided to apply to see him while in detention. Is this evidence of not knowing the 1st Defendant by the 2nd defendant believable? What motivated the 2nd Defendant to come to the Commissioner’s office for one reason and thereafter decided to change his mission to see the 1st Defendant whom he never met. This and other questions leave much to be desired. The above puzzles are meant for the Defendants at their leisure time, for their sober reflections.”

The above statement of the trial Court was irrelevant to the determination of the issue of voluntariness of the statements of the appellant and his co-accused persons. It must be remembered that count 1 of the charge in the substantive matter is for the offence of conspiracy by the appellant, 2nd defendant and 3rd defendant. Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. The appellant and his co-defendants pleaded not guilty which implies denial of conspiring. Conspiracy is normally inferred from circumstances. The remark of the trial Court above appears to bear on the charge of conspiracy as the trial Court wondered why the 2nd defendant who claimed he never met appellant before in his life decided to apply to see him while he (appellant) was in detention. The trial judge posed a rhetorical question as to the credibility of the story of the 2nd defendant that he had never met appellant before then. After posing another question as to the motivation of the 2nd defendant in seeking to see appellant, he stated that:

“This and other questions leave much to be desired. The above puzzles are meant for the Defendant at their leisure time for their sober reflections.”

The Phrase “leave much to be desired” is an idiomatic expression which shows something “to be bad or unacceptable” Oxford Advanced Learner’s Dictionary 7th Ed. Page 396.

That leaves the impression that the trial judge had already made up his mind that the story of the 2nd defendant that he had never met the appellant before then was bad or unacceptable. The observation of the trial Judge and his posers appear to bear on the count of conspiracy which is to be determined in the main suit. No wonder respondent’s counsel, in an understatement, described it as “curious observation” at paragraph 4.11, page 7 of his brief of argument. “Per EKANEM, J.C.A. (Pp. 24-28, Paras. A-A)

EVIDENCE – TRIAL WITHIN TRIAL: Essence of trial within trial

“The need for a trial-within-trial arises when at the point of tendering the extra-judicial confession of an accused person, the defence objects to its admissibility on the ground that it was not obtained voluntarily. The trial of the substantive charge is put on hold for the sole purpose of determining the voluntariness of the making of the confessional statement and hence its admissibility or otherwise. It is not held for the purpose of testing the truthfulness of the content of the statement. See Mbang v State (2013) 7 NWLR (Pt. 1352) 48.”Per EKANEM, J.C.A. (Pp. 23-24, Paras. D-A)

EVIDENCE – CONFESSIONAL STATEMENT: Whether failure to comply with the rules for obtaining a confessional statement will render the statement inadmissible

“One of the primary functions of the police is to investigate all crimes which are brought to their notice and wherever possible, to bring the perpetrators before the Courts, together with all the relevant evidence. Controversies associated with methods used by law enforcement agents in the interrogation of suspected persons and the value of evidence obtained thereby has always been a source of judicial and societal concern. In an attempt to achieve a balance between the need to ensure that law enforcement agents are enabled to investigate crimes thoroughly and the need to ensure the protection of the innocent as well as the rights of the suspect, Judges in England developed what was known as ‘Judges’ Rules’ meant to guide the police on how far they should go when interrogating or taking statements from suspects or prisoners. These Rules were not rules of law but more in the nature of rules of caution. They, in effect provided a code of behaviour for the guidance of the police in investigation. The purpose of the Rules was to insure as far as possible that all statements admitted in evidence, more so if confessional in nature, were obtained freely and voluntarily. The fact that the police have adhered to these Rules in their investigation of a crime would guide the Judge in determining the weight to be attached to any confessional statement made by the accused.

Nevertheless, failure to observe the Rules would not, ipso facto, render the statement inadmissible, as long as the statement in issue was made freely and voluntarily; Ojegele v The State (1988) NWLR (PT.71) 414, (1988) LPELR-2370(SC), Kasa v. The State (1994) 6 SCNJ 1, (1994) LPELR-1671(SC); Smart v. The State (2012) LPELR-8026 (CA); Eyop v. State (2012) LPELR-20210 (CA); Babarinde v The State (2012) LPELR-3367(CA).

Certain provisions of Administration of Criminal Justice Act, 2015 (ACJA) are in the pattern of the Judges’ Rules and are aimed at providing a guide for the law enforcement officers and ensuring the protection of the innocent as well as the rights of the suspect. Section 1(1) thereof states that its purpose is: to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim.

Unlike the case with the Judges’ Rules which were cautionary, the provisions of ACJA have the force of law. Non-compliance with these provisions would automatically throw a purported confessional statement out of the window; Zhiya v People of Lagos State (2016) LPELR-40562(CA). I therefore share the view that the provisions of Sections 15(7) and 17(2), as well as Section 9(3) thereof, which are for the benefit of a suspect, are mandatory.” Per OTISI, J.C.A. (Pp. 31-34, Paras. D-A)

PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Effect of failure to seek leave to move/argue a preliminary objection

“It should be quickly mentioned that in the respondent’s brief of argument, a notice of preliminary objection is given at pages 2 and 3, paragraph 2.0. Argument in respect thereof is set out at page 3 paragraphs 2.1-2.3 of the said brief. During the hearing of the appeal, respondent’s counsel did not seek leave to move or argue the objection. In fact, she did not even refer to it. The preliminary objection is therefore deemed as abandoned. I accordingly strike out the same. See APGA V Anyanwu (2014) 7 NWLR (Pt.1407) 541, 553 and Abba V Shell Petroleum Development Company (Nig.) Ltd (2013) 11 NWLR (Pt.1364) 109.”Per EKANEM, J.C.A. (Pp. 3-4, Paras. E-B)

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