Failure of Prosecution to Tender Statement(s) During Trial-Within-Trial – When to Raise Objection Thereto

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 4th Day of June, 2021

 Before Their Lordships

Mary Ukaego Peter- Odili

Kudirat Motonmori Olatokunbo Kekere-Ekun

 John Inyang Okoro

Ibrahim Mohammed Musa Saulawa

Samuel Chukwudumebi Oseji

Justices, Supreme Court

  1.  707C/2019


             Abdullahi Mustapha Berende                                                               Appellant


Federal Republic of Nigeria                                                                   Respondent


 (Lead judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere- Ekun, JSC)


The Appellant was arraigned before the Federal High Court, along with one Saheed Oluremi Adewumi on six-count Charges of various offences under the Terrorism (Prevention) Act, 2011 as amended. The first prosecution witness who is an officer of the Department of State Services (DSS) testified that the DSS received some intelligence reports that some Nigerians were recruited by Iranians and trained in acts of terrorism and returned to Nigeria to perpetrate such activities. He testified that the officer in charge of counter terrorism directed that the report be investigated, and it was in the process of the investigation that the Appellant was arrested. PW1 testified further that two officers were assigned to interview the suspects and to witness their statements which they wrote themselves. PW1 stated that the Appellant made two statements on 8/2/13 and 25/2/13. The Appellant was taken before PW1, and he confirmed that he made the statements voluntarily.

At the point of tendering the statements in evidence, the Appellant raised an objection on the ground that the statements were not made voluntarily. A trial-within-trial was conducted to determine the truth or otherwise of the assertion. In a considered ruling, the trial court held that the statements were made voluntarily and admitted them in evidence as Exhibits B and B1. The appeal to the Court of Appeal was equally not successful; hence, the further appealed to the Supreme Court.

Issues for determination

The Appellant formulated three issues for determination of the appeal, while the Respondent formulated one issue. The court, in its determination of the appeal, adopted and considered only the first issue raised by the Appellant thus:

 “Whether the Court of Appeal was correct when it held that the Appellant’s extra-judicial statements were voluntarily made?”


Submitting on the sole issue, counsel for the Appellant referred to the characteristics of a confessional statement as provided in Sections 28 and 29 of the Evidence Act, 2011 and as defined in decided authorities including GBADAMOSI v. THE STATE (1992) 9 NWLR (Pt. 266) 465. Counsel submitted that the evidence of the Respondent at the Trial-within-trial (TWT) was to the effect that several interviews were conducted with the Appellant from the time of the arrest on 18/12/2012. That the Appellant volunteered to make statements, which he did, after the cautionary words were administered to him on 8/2/2013 and 25/2/2013. And each time, after making the statements, the Appellant was taken before a Superior Police Officer (SPO) where he confirmed that they were voluntarily made. It was stated further that the interview sessions were recorded on four DVDs, which were tendered in evidence during TWT. Counsel for the Appellant maintained that the statements were made under duress and that the Appellant was made to undergo a lie-detector test during the oral interview using a polygraph machine. He contended that the machine was used without his consent and therefore, violated the Appellant’s fundamental right to remain silent as provided in Section 35(2) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended. Counsel further relied on the decision in R v. BELAND & PHILIPS (1987)2 SCR 398. Counsel observed that the prosecution failed to tender the Appellant’s extra-judicial statements which were being challenged, during the TWT and that the failure to tender the said statements was fatal to the proceedings. He argued that the observation by the lower court that neither party applied to tender the statements and that the Appellant was at liberty to apply for them to be admitted and thereby, enabling him to rebut the evidence of voluntariness was erroneous as it had the effect of shifting the burden of proof on the Appellant. Counsel submitted further that the burden of proof lies on the Respondent.

In response to the submissions above, counsel for the Respondent submitted that it is not the practice of the Apex Court to interfere with concurrent findings of fact or to re-evaluate the evidence where no miscarriage of justice has been established – Counsel relied on IGADO v. THE STATE (1999) 12 SCNJ 140. He submitted that not only did the Appellant fail to allege torture when taken before PW2 for confirmation of his statement, there were video recordings of the process of taking the statements, which were admitted in evidence as Exhibits TWT1-TWT4. Counsel submitted that while the Prosecution’s case was consistent, the Appellant, in a bid to deny his voluntary confession, gave conflicting evidence, which was properly evaluated and resolved against him. He stated that the allegation of torture was an afterthought. Learned Counsel further submitted that the Respondent did all that was required to establish the voluntariness of Exhibits B and B1, having regard to the provisions of Section 29 of the Evidence Act. Counsel referred to Exhibits TWT1-TWT4, the confirmation of the statements before PW2, as well as the uncontradicted testimonies of PW2 and PW3. He submitted that the statements were corroborated by the evidence of PW6, PW7 and PW8 in addition to admissions made by the Appellant during his defence in the TWT. Counsel submitted that contrary to the contention of the Appellant, the burden of proof of particular facts, as opposed to proof of guilt, rests on the party who alleges the existence of such facts. Counsel further submitted that the Appellant had the onus of proving torture, oppression, and inducement in the making of his statements. He referred to Section 136 of the Evidence Act and NWANGBONA v. THE STATE (2001) ACLR 9. Counsel argued that assuming, without conceding, that a polygraph test was conducted on the Appellant, it does not detract from the voluntariness of the statements. The Appellant’s constitutional right to remain silent was never raised throughout the trial; counsel submitted that the allegations of threat, inducement, promise of amnesty etc. cannot avail the Appellant having regard to Sections 14 and 31 of the Evidence Act, Counsel also relied on HARUNA v. A.G. FEDERATION (2012)9 NWLR (Pt. 1306) 419. It was his submission, regarding the legitimacy of a polygraph test and his reliance on the case of R v. BELAND & PHILIPS, that same were irrelevant, as it was not an issue before any of the lower courts.

Court’s Judgment and Rationale

In deciding the sole issue, the Supreme Court relied on the provisions of Section 28, 29 (1), (2) & (5) and 31 of the Evidence Act 2011, to hold there is no dispute as to the fact that the Appellant’s extra-judicial statements admitted in evidence as Exhibits B and B1 are confessional. The apex court held that where it is alleged that a confessional statement was obtained under duress or as a result of threat or inducement, the courts have developed the practice of conducting a TWT or mini trial to ascertain the voluntariness of the statement.  The onus is on the prosecution to prove the voluntariness of the statement and to establish that it was freely made – OLAYINKA v. THE STATE (2007) 9 NWLR (Pt. 1040) 5.

 The court also held that where an accused outrightly disowns the confession and asserts that he did not make the statement at all, it would be admitted in evidence and considered alongside other evidence led at the trial to determine its probative value – IKPASA v. BENDEL STATE (1981) NSCC 300. The purpose of the TWT conducted by the trial court was to test the voluntariness of Exhibits B and B1. At the time the court ordered for the conduct of the mini trial, the only evidence before the court was the evidence of PW1 to the effect that the Appellant volunteered the two statements to him. The alleged statement made after the polygraph test, is not relevant for this purpose. Another vital issue is the evidence of TPW2, that on each occasion when the Appellant was brought before him, the Appellant confirmed that he made his statements voluntarily. The court held that it behoves any suspect who alleges that his statement was obtained under duress, to take advantage of the opportunity of being taken before a Superior Police Officer, to complain. The Appellant did not complain, rather on both occasions he admitted that he made the statements voluntarily. Given the foregoing, the apex court agreed with the decision of the lower court, confirming that the Appellant’s confirmation that he made the statements voluntarily is consistent with the evidence of TPW1 and TPW2 during the TWT.

As regards the contention that the statements were not tendered during the trial-within-trial, Their Lordships held that the statements were shown to and identified by TPW 1 and TPW2. Both witnesses copiously cross-examined by learned counsel for the Appellant regarding the circumstances in which they were obtained. I am of the view that the issue should have been raised before cross-examination of the witnesses took place. … Having acquiesced in the alleged wrong procedure, it was too late for the Appellant to complain on appeal. See STATE v ONYEUKWU (2004) 14 NWLR (Pt. 893) 340.

 The court concluded that there are concurrent findings of fact by the two lower courts that the statements, Exhibit B and B1 were voluntarily made. The Appellant was unable to dislodge the convincing evidence of the prosecution witnesses that all necessary steps were taken to ensure the voluntariness of the confessions. The court thereby affirmed that the findings have not been shown to be perverse so as to persuade the court to interfere.

 Appeal dismissed.


M.I. Hanafi with D.T. Nwachukwu, O.A. Omolase and Y.A. Yussuf for the Appellant.

Chioma Onuegbu (D.D.P.P.F) with Chinwe Obasi (Principal State Counsel), and Anikan O. Ekong (Principal State Counsel) Fed. Ministry of Justice, for the Respondent.

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