17/08/2021
MUSTAPHA vs. FEDERAL REPUBLIC OF NIGERIA(2020)
LCN/14255(CA)
ISSUE:TRIAL WITHIN TRIAL-
Whether trial within trial can be ordered during the defence of an accused person where he raises involuntariness in his testimony against a confessional statement earlier admitted without objection(Issue is mine)
*PRINCIPLE:*
"Under this issue, the Appellant has sought to impugn or discredit the integrity of the judgment on the ground that the lower Court ought not to have acted on the Exhibits A1-A4 on the ground that the Court failed to conduct a trial-within-trial even when the Appellant in his evidence as DW1, had stated that the confessional statements were not voluntary. I have therefore examined the facts as disclosed on the Record. At pages 33-34 thereof, it is recorded that when the prosecuting Counsel applied to tender the four statements of the Appellant made to the Police/EFCC in evidence, the Appellant’s Counsel stated curtly but explicitly thus:
“DEFENCE COUNSEL: The witness has identified the statements and I have no objection.”
In the absence of any objection of any sort, the four statements written by the accused person himself were promptly admitted in evidence and marked Exhibits A1-A4 respectively. Thus, nowhere in the course of these proceedings did the Appellant or his Counsel raise an objection to the admissibility of the said statements on the ground that they were not voluntarily made.
Instead, it was long after the statements had been admitted in evidence as Exhibits A1-A4 through the PW3, that the Appellant in his evidence-in-chief given during his defence, contended that he was forced to make the confessional statements and so sought to retract the confession on that ground. Evidently, from this scenario and in these circumstances, the voluntariness or otherwise of the Exhibits A1-A4 were never put in issue before their admission into evidence to warrant the conduct of a trial-within-trial. The only obligation on the lower Court was thereafter in its judgment to determine the weight to be attached to the Exhibits since the Appellant in his defence sought to retract the confession contained in the Exhibits by contending that it was the PW1 who put him up to it and prompted him to impersonate an EFCC operative and also to extort money from him (PW1). And this the lower Court no doubt did as is evident from pages 63-66 of the Record.
It must be said that the law is long since settled that the purpose of a trial-within-trial is to determine whether or not statement(s) made by an accused to the Police were voluntarily made. Where the authorship of the statement is denied, the question of voluntariness and ipso facto a trial-within-trial will be irrelevant. Thus, the argument that the lower Court should have held a trial-within-trial in the instant case does not hold water because it is only where an issue arises as to whether or not a confession was made voluntarily that the exceptional procedure of holding a trial-within-trial should be adopted by a trial Court.
Put in another way, a trial-within-trial is by no way automatic in all situations and circumstances. The purpose is to call evidence to determine the voluntariness or otherwise of a confessional statement. The trial-within-trial is only required where the accused person objects to the admissibility of the confession on the ground that it was not voluntary, but was obtained by threat, intimidation or duress. The objection must be raised at the point when the prosecution seeks to tender the confessional statement in evidence. If the Appellant raises no objection and the confessional statement is admitted in evidence, the issue of a trial-within-trial cannot subsequently arise.
The origin, reasons and incidence of a trial-within-trial were fully considered by the Supreme Court as far back as 1992 in its decision in Gbadamosi V. State (1992) NWLR (Pt. 266) 465. See also FRN V. Iweka (2011) LPELR-SC.454/2010 where Mukhtar, JSC, observed:
“A trial within trial becomes necessary at the stage where a caution statement is about to be tendered and its admissibility was objected to promptly by the accused person, and not anytime later.”(Emphasis supplied)
Consequently, the purpose of a trial-within-trial is certainly not to determine whether the accused made a statement.
Thus, where an accused person disowns the statement in question, there can be no trial-within-trial. See also the following decisions: Nweneke V. State (2019) LPELR-47018 (CA); Ori V. State (2017) LPELR-43258(CA) 9-10, C; Igri V. State (2009) LPELR-4374 (CA) 37, D-E; Mustapha Mohammed V. State (2006) LPELR-7690(CA) 32, B-E; and Okaroh V. State (1988)3 NWLR (Pt. 81) 214.
Consequently in the circumstances, contrary to the contention of the Appellant, Exhibits A1-A4 relied upon by the lower Court were not discredited since the Appellant did not object at all to the admissibility of the Exhibits on the basis of voluntariness at the point when they were tendered in evidence. Based on all the above, I again resolve this issue against the Appellant and in favour of the Respondent." Per SANKEY, JCA.
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