(2018) LPELR-44052(CA)

Transcription

1 ASUQUO v. THE STATE CITATION: In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON TUESDAY, 20TH FEBRUARY, 2018 Suit No: CA/C/165C/2017 CHIOMA EGONDU NWOSU-IHEME STEPHEN JONAH ADAH Before Their Lordships: JOSEPH OLUBUNMI KAYODE OYEWOLE Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal EDET STEPHEN ASUQUO - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI 1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: What prosecution must prove in a charge of murder "In determining that an accused is guilty of murder, it is imperative for the prosecution to establish beyond reasonable doubt that the deceased died, that the cause of death resulted from the act of the accused person who knew that death or grievous bodily harm could result from his said act and that the accused person had no justifiable defence for the said act. See JOHN OGBU VS STATE (2007) 29 NSCQR 221 and ABOGEDE VS STATE (1996) 5 NWLR (PT 448) 270."Per OYEWOLE, J.C.A. (P. 9, Paras. C-E) - read in context

2 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: Condition precedent for securing conviction for murder "The offence for which the Appellant was convicted and sentenced in that of murder. Although ours is not the mosaic law of an eye for an eye, under our penal laws the penalty for the offence of murder is death. The signification of this that those who kill by the sword should not fear the return of the sword or be allowed in any sense to escape from justice. In the case of Njoku & Ors Vs. THE STATE (2013) 2 NWLR (PT. 1339) 548, Onnoghen, JSC (as he then was) held that: "It is elementary in criminal trial that before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of this two main elements of any crime that is the ACTUS REUS and the MENS REA. ACTUS REUS is taken to be the wrongful deed that generally must be coupled with MENS REA. MENS REA is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful act by the accused but must establish that the accused has the correct legal (criminal) mind of committing the act. The two must co-exist whether explicitly or by necessary implication. In their interplay of words/phrases reflected in their book: 'Criminal Law 831', 3rd Edition 1982, Rolin M. Perkins and Ronald N. Boyce, states that: "The actus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus." Exploring this further, it must be well understood that before conviction is secured for murder certain conditions must be present. Rhodes-Vivour, JSC, in the case of KOLADE VS. THE STATE (2017) LPELR (SC) held that: "For the prosecution to succeed under Section 316 of the Criminal Code, the prosecution should prove beyond reasonable doubt that a person died and that he died as a result of an act by the Appellant. The act of the Appellant which caused the death of Olaleye Kolade must be one of the six circumstances in Section 316 of the Criminal Code. If the act of the Appellant which caused the death is not one of the six circumstances, the death of the deceased is no longer murder. The six circumstances are: 1. If the Appellant intends to cause the death of the deceased or that of some other person; 2. If the Appellant intends to do to the deceased or to some other person some grievous harm; 3. If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life; 4. If the Appellant intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the fight of an offender who has committed or attempted to commit any such offence; 5. If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid; 6. If death is caused by willfully stopping the breath of any person for either of such purposes. See ILODIGWE VS. THE STATE (2012) 5-7 SC (PT. 11) P. 143; CHUKWU VS. THE STATE 12 SC (PT. VII) P. 60."Per ADAH, J.C.A. (Pp , Paras. D-B) - read in context

3 3. EVIDENCE - CONFESSIONAL STATEMENT: Meaning of a confession and when same will be relevant "A confession is a statement by the accused person stating or suggesting the inference that he committed the alleged offence. A confession however is only relevant if freely and voluntarily made. A free and voluntary confession is sufficient to ground conviction."per OYEWOLE, J.C.A. (Pp. 4-5, Paras. F-A) - read in context 4. EVIDENCE - TRIAL WITHIN TRIAL: Meaning and nature of a trial within trial "A trial within trial as the name suggests is interlocutory in the course of the main trial. The extant procedure is that at the stage of the trial when the prosecution seeks to introduce the confession in issue into the evidence, the defence would object stating that the said confession was involuntarily made. The trial Judge will then embark on a trial within trial to examine the circumstances surrounding the making of the said statement and resolve whether the said statement was voluntarily made. See Sections 28 and 29 of the Evidence Act, 2011, ADAMU SALIU VS THE STATE (2014) 58 NSCQR 411, EMEKA VS STATE (2001) 14 NWLR (PT 734) 666, OLALEKAN VS STATE (2001) 18 NWLR (PT 746) 793 at 809 and RASHEED LASISI VS THE STATE (2013) 54 NSCQR 39."Per OYEWOLE, J.C.A. (P. 5, Paras. A-D) - read in context 5. EVIDENCE - CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same "In the witness box while testifying for his defence, the Appellant gave evidence at variance from the content of his said admitted confessions which properly set the stage for the application of the tests contained in AKPAN VS THE STATE (supra) referred to by Chief Iyanam. That an accused resiled at trial from his earlier confession does not automatically indicate that the earlier confession would be discountenanced by the Court and contrary to the submissions of the said learned counsel, the trial cannot be back-pedaled to a trial within trial. What would be done is a process of evaluation whereby the Court would examine the said confession together with evidence already admitted and consider whether there is anything outside the confession to show that it is true, whether the confession is corroborated, whether the accused person had the opportunity of committing the offence charged, whether the confession of the accused person was possible and whether the confession is consistent with other facts which have been ascertained and have been proved. This test now described as test of truthfulness or test of validity was laid down in R VS SYKES (1913) 8 CRIMINAL APPEAL REPORT, 233 and approved by the West African Court of Appeal in KANU VS KING (1952/55) 14 WACA, 30. It has subsequently been widely accepted and followed in a number of cases. See RASHEED LASISI VS THE STATE (supra), OMOJU VS FRN (2008) 2 SCNJ 197, ASIMIYU ALARAPE VS THE STATE (2001) 5 NWLT (PT 705) 79 at 99 and AKPAN VS THE STATE (supra)."per OYEWOLE, J.C.A. (Pp. 5-7, Paras. F-B) - read in context

4 6. EVIDENCE - CROSS-EXAMINATION: Effect of failure to cross-examine a witness on material point "In this case, the Appellant made two consistent confessional statements at two different police formations to different police investigators. The said statements were before the trial Court as Exhibits 2 and 4. PW1 and PW2 notified the police of the murder and got the youths of the village to arrest the Appellant. PW3 testified that the body of the deceased was recovered behind the Appellant's house and equally recovered the blood stained machete in the house of the Appellant. He took photographs of the deceased in the state it was recovered and tendered the photographs admitted as Exhibits 1 and 1A respectively. PW3 was not crossexamined on all the recoveries made which validate the confessions of the Appellant indicating that the Appellant did not dispute the veracity thereof. See PATRICK OFORLETE VS THE STATE (2000) 3 NSCQLR 243." Per OYEWOLE, J.C.A. (Pp. 7-8, Paras. B-A) - read in context 7. EVIDENCE - MEDICAL EVIDENCE: Circumstance where medical evidence would not be needed "Medical evidence is helpful in determining cause of death but not in every circumstances of murder. Where there is cogent and credible evidence before the Court as to how the deceased died, medical evidence becomes superfluous. In the present situation the trial Court had benefit of the confessions of the Appellant which detailed how the deceased was killed. The trial Court also received direct evidence of the subsequent recovery of the body of the deceased and blood stained machete which corroborated the said confessions. It is my humble view that there was no confusion as to how the deceased met her unfortunate demise and medical evidence as to cause of death here is totally superfluous. See PETER ILIYA AZABADA VS THE STATE (2014) 58 NSCQR 531, ASIMIYU ALARAPE VS THE STATE (supra) and JOHN OGBU VS STATE (supra)."per OYEWOLE, J.C.A. (Pp. 9-10, Paras. E-C) - read in context

5 8. EVIDENCE - TRIAL WITHIN TRIAL: When a trial within trial will and will not be conducted "The argument is that Lower Court did not conduct trial within trial before accepting and relying on the confessional statement of the Appellant. It is definitely not the law that every confessional statement must be subjected to a trial within trial before it is relied on by the trial Court. That would be putting unnecessary burden on the prosecution. The position of our Criminal Procedure Law was laid out by Kekere-Ekun, JSC in the case of ISONG VS. THE STATE (2016) LPELR (SC). His Lordship in that case held as follows: "When a trial Court is confronted with a statement made by an accused person which is confessional, there are two situations that may arise. The accused person may object to the admissibility of the statement on the ground that it was not voluntarily made; that it was procured by means of torture inducement or fear. In such circumstances, it is the duty of the Court to conduct what is commonly referred to as a "trial within trial" to determine if indeed the statement was voluntarily made, where the accused person denied making the statement at all, a trial within trial is unnecessary. The Court would be at liberty to admit the statement in evidence and at the conclusion of the case determine the probative value to attach to it. See: MADJEMU VS. THE STATE (2001) 9 NWLR (PT. 718) 349; OJEGELE VS. THE STATE (198 8) 1 NWLR (PT. 71) 414; THE STATE VS. ISAH (2012) 10 NWLR (PT. 1327) H-C." The position is therefore very clear that it is only where there is a direct challenge to the admissibility of a confessional statement on the ground that it was made voluntarily, that the necessity of trial within trial will come up for the voluntariness of the statement to be resolved. In the instant case, there was no such challenge so the Lower Court was at liberty to rely on it without conducting trial within trial. The Lower Court therefore was absolutely right to rely on the confessional statement of the Appellant in convicting the Appellant. The decision of the Lower Court cannot be faulted in his case."per ADAH, J.C.A. (Pp , Paras. F-D) - read in context

6 JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting in Itu Judicial Division delivered on the 27th February, 2017 by EDEM AKPAN J convicting the Appellant for murder and sentencing him to death. The antecedent facts were that that the Appellant was arraigned alongside a co-accused before the trial Court on 13th June, 2016 on two counts of conspiracy to commit murder and murder of one Glory Ubong Friday. They both pleaded not guilty and trial commenced immediately. 4 witnesses testified for the prosecution comprising PW1 the Village Council Chairman of Ikot Otu, Itu Village where the incident took place and the community to which the Appellant belonged, PW2 the Village Head of the said Village and PW3 and PW4, the police investigators. The evidence tendered included the blood stained machete recovered from the residence of the Appellant, the photographs of the mangled corpse of the deceased as recovered from the premises of the Appellant and the confessional statements of the Appellant admitted at trial without objection and 1

7 detailing how the said gruesome murder was committed. The Appellant and his co-accused denied involvement in the alleged offence and each gave evidence to that effect from the witness box. After taking final addresses of counsel for the two sides the learned trial Judge gave a considered judgment convicting the Appellant but acquitting his co-accused. Exercising his constitutional right of appeal, the Appellant filed a notice of appeal on the 7th April, 2017 containing 5 grounds. At the oral hearing of the appeal, Chief Iyanam his learned counsel adopted the appellant s brief filed on the 15th June, 2017 and the reply brief filed on the 5th December, 2017 as the arguments of the Appellant in furtherance of his appeal. Eyo-Nsa Esq., the learned Director of Public Prosecutions, Akwa Ibom State adopted the respondent s brief filed on the 2nd November, 2017 but deemed properly filed and served on the 28th November, 2017 as the arguments of the Respondent in contesting the appeal. The Appellant distilled the following 2 issues for determination which were adopted by the Respondent: 1. Whether the failure of the

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9 learned trial Judge to conduct a trial within trial to determine the voluntariness of the confessional statement did not occasion a miscarriage of justice. 2. Whether the failure of the prosecution to tender or rely on a medical report and the testimony of a medical examiner was not fatal to its case in the circumstance. I shall take the issues seriatim. The first issue is whether the failure of the learned trial Judge to conduct a trial within trial to determine the voluntariness of the confessional statement did not occasion a miscarriage of justice. Arguing this issue, Chief Iyanam submitted that the testimony of the Appellant at trial indicated that he was subjected to various acts of torture implying that his alleged confession was involuntary and thereby necessitating a trial within trial. He argued that the failure to conduct a trial within trial vitiated the judgment of the trial Court which relied substantially on the said involuntary confessional statement of the Appellant. He referred to LASISI VS THE STATE (2013) LPELR-20183(SC), AUGUSTINE IBEME VS THE STATE (2013) LPELR-20138(SC), TAKIDA VS STATE 3

10 (1969) 1 ALL NLR 270 at , DARE JIMOH VS THE STATE (2014) LPELR-22464(SC) and OWHORUKE VS COP (2015) LPELR-24820(SC). The response of Eyo-Nsa Esq., was that a trial within trial is regulated and would not arise where no objection was taken to the admissibility of the confessional statement at trial and that the said confession was later resiled from by the Appellant at trial would not preclude its being relied upon. He referred to SHODIYA VS THE STATE (2014) 57 NSCQR 1139, BELLO SHURUMO VS THE STATE (2010) 6 NCC 84 at 87 and MANU GALADIMA VS THE STATE (2012) 52 NSCQR (PT 1) 525. In his reply brief, Chief Iyanam argued that voluntariness of a confession is essential and that a confession should not be accredited without being subjected to the test of veracity set out in AKPAN VS THE STATE (1992) 6 NWLR (PT 248) 439 at 460, which procedure according to learned counsel, is only afforded by a trial within trial ignored by the trial Court in this instance. A confession is a statement by the accused person stating or suggesting the inference that he committed the alleged offence. A confession however is only relevant if freely and voluntarily 4

11 made. A free and voluntary confession is sufficient to ground conviction. A trial within trial as the name suggests is interlocutory in the course of the main trial. The extant procedure is that at the stage of the trial when the prosecution seeks to introduce the confession in issue into the evidence, the defence would object stating that the said confession was involuntarily made. The trial Judge will then embark on a trial within trial to examine the circumstances surrounding the making of the said statement and resolve whether the said statement was voluntarily made. See Sections 28 and 29 of the Evidence Act, 2011, ADAMU SALIU VS THE STATE (2014) 58 NSCQR 411, EMEKA VS STATE (2001) 14 NWLR (PT 734) 666, OLALEKAN VS STATE (2001) 18 NWLR (PT 746) 793 at 809 and RASHEED LASISI VS THE STATE (2013) 54 NSCQR 39. In the case at hand, a perusal of the record of appeal reveals evidently that there was no objection to the tendering of the confessional statements of the Appellant at trial and the said statements made at two different police formations on different dates, were admitted without objection from the defence. In the witness box while 5

12 testifying for his defence, the Appellant gave evidence at variance from the content of his said admitted confessions which properly set the stage for the application of the tests contained in AKPAN VS THE STATE (supra) referred to by Chief Iyanam. That an accused resiled at trial from his earlier confession does not automatically indicate that the earlier confession would be discountenanced by the Court and contrary to the submissions of the said learned counsel, the trial cannot be back-pedaled to a trial within trial. What would be done is a process of evaluation whereby the Court would examine the said confession together with evidence already admitted and consider whether there is anything outside the confession to show that it is true, whether the confession is corroborated, whether the accused person had the opportunity of committing the offence charged, whether the confession of the accused person was possible and whether the confession is consistent with other facts which have been ascertained and have been proved. This test now described as test of truthfulness or test of validity was laid down in R VS SYKES (1913) 8 CRIMINAL APPEAL REPORT, 233 6

13 and approved by the West African Court of Appeal in KANU VS KING (1952/55) 14 WACA, 30. It has subsequently been widely accepted and followed in a number of cases. See RASHEED LASISI VS THE STATE (supra), OMOJU VS FRN (2008) 2 SCNJ 197, ASIMIYU ALARAPE VS THE STATE (2001) 5 NWLR (PT 705) 79 at 99 and AKPAN VS THE STATE (supra). In this case, the Appellant made two consistent confessional statements at two different police formations to different police investigators. The said statements were before the trial Court as Exhibits 2 and 4. PW1 and PW2 notified the police of the murder and got the youths of the village to arrest the Appellant. PW3 testified that the body of the deceased was recovered behind the Appellant s house and equally recovered the blood stained machete in the house of the Appellant. He took photographs of the deceased in the state it was recovered and tendered the photographs admitted as Exhibits 1 and 1A respectively. PW3 was not cross-examined on all the recoveries made which validate the confessions of the Appellant indicating that the Appellant did not dispute the veracity thereof. See PATRICK OFORLETE VS THE STATE (2000) 3 7

14 NSCQLR 243. In the circumstances there was no need for a trial within trial and I resolve this issue against the Appellant and in favour of the Respondent. The remaining issue is whether the failure of the prosecution to tender or rely on a medical report and the testimony of a medical examiner was not fatal to its case in the circumstance. Arguing this issue, Chief Iyanam submitted that in view of the absence of any eye witness account, the Respondent ought to have adduced medical evidence of cause of death linking the Appellant with the death of the deceased. He referred to THE STATE VS NATHANIEL OKPALA (2012) 6 NSCR 1 at 20, OCHIBA VS THE STATE (2010) LPELR-9002(CA), GALADIMA VS THE STATE (2017) LPELR (SC) and AKPAN VS THE STATE (supra). The response of the learned Director of Public Prosecutions was that medical evidence is not a necessity in all instances of murder as where compelling evidence exist of the circumstances of death such as was provided by the Appellant in extra judicial confessions, medical evidence becomes unnecessary. Learned counsel referred to AZABUDA VS THE STATE (2014) 58 NSCQR (PT 1) 531 at 536, AKPA VS

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16 STATE (2008) 14 NWLR (PT 1106) 72, BEN VS STATE (2006) 16 NWLR (PT 1006) 582, SHAFFU ATIKU & ORS VS THE STATE (2010) 9 NWLR (PT 1199) 241 at 273, BABUGA VS STATE (1996) 7 NWLR (PT 400) 279 and ADAVA VS STATE (2006) 9 NWLR (PT 984) 152. In his reply brief Chief Iyanam reiterated his earlier arguments that the circumstances of this case made medical evidence essential. In determining that an accused is guilty of murder, it is imperative for the prosecution to establish beyond reasonable doubt that the deceased died, that the cause of death resulted from the act of the accused person who knew that death or grievous bodily harm could result from his said act and that the accused person had no justifiable defence for the said act. See JOHN OGBU VS STATE (2007) 29 NSCQR 221 and ABOGEDE VS STATE (1996) 5 NWLR (PT 448) 270. Medical evidence is helpful in determining cause of death but not in every circumstances of murder. Where there is cogent and credible evidence before the Court as to how the deceased died, medical evidence becomes superfluous. In the present situation the trial Court had benefit of the confessions of the Appellant which 9

17 detailed how the deceased was killed. The trial Court also received direct evidence of the subsequent recovery of the body of the deceased and blood stained machete which corroborated the said confessions. It is my humble view that there was no confusion as to how the deceased met her unfortunate demise and medical evidence as to cause of death here is totally superfluous. See PETER ILIYA AZABADA VS THE STATE (2014) 58 NSCQR 531, ASIMIYU ALARAPE VS THE STATE (supra) and JOHN OGBU VS STATE (supra). I therefore resolve this issue as well against the Appellant and in favour of the Respondent. In totality I find no merit in this appeal and I accordingly dismiss it. The judgment of the learned trial Judge convicting and sentencing the Appellant to death for the murder of the deceased is hereby affirmed. CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the opportunity of reading the draft of the lead judgment just delivered by my learned brother, J.O.K OYEWOLE, JCA in this criminal appeal. I agree with the reasoning and conclusion therein that there is no reason or justification to interfere with the findings and

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19 conclusion of the learned Judge. I equally dismiss this appeal while affirming the conviction and sentencing of the Appellant to death for the murder of the deceased. STEPHEN JONAH ADAH, J.C.A.: I was opportuned to read in draft the judgment just delivered by my learned brother, J.O.K. Oyewole, JCA. My learned brother has dealt well with the issues raised in this appeal. I am in complete agreement with his reasoning and resolution of the issues. I also do not from those issues find any merit in this appeal and will dismiss the appeal. The offence for which the Appellant was convicted and sentenced in that of murder. Although ours is not the mosaic law of an eye for an eye, under our penal laws the penalty for the offence of murder is death. The signification of this that those who kill by the sword should not fear the return of the sword or be allowed in any sense to escape from justice. In the case of Njoku & Ors Vs. THE STATE (2013) 2 NWLR (PT. 1339) 548, Onnoghen, JSC (as he then was) held that: It is elementary in criminal trial that before an accused person is asked to undergo any sort of sentence, 11

20 there must be a finding by the trial Court on the concurrence of this two main elements of any crime that is the ACTUS REUS and the MENS REA. ACTUS REUS is taken to be the wrongful deed that generally must be coupled with MENS REA. MENS REA is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful act by the accused but must establish that the accused has the correct legal (criminal) mind of committing the act. The two must co-exist whether explicitly or by necessary implication. In their interplay of words/phrases reflected in their book: Criminal Law 831, 3rd Edition 1982, Rolin M. Perkins and Ronald N. Boyce, states that: The actus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus." Exploring this further, it must be well understood that before conviction is secured for murder certain conditions must be present. Rhodes-Vivour, JSC, in the case of KOLADE VS. THE 12

21 STATE (2017) LPELR (SC) held that: For the prosecution to succeed under Section 316 of the Criminal Code, the prosecution should prove beyond reasonable doubt that a person died and that he died as a result of an act by the Appellant. The act of the Appellant which caused the death of Olaleye Kolade must be one of the six circumstances in Section 316 of the Criminal Code. If the act of the Appellant which caused the death is not one of the six circumstances, the death of the deceased is no longer murder. The six circumstances are: 1. If the Appellant intends to cause the death of the deceased or that of some other person; 2. If the Appellant intends to do to the deceased or to some other person some grievous harm; 3. If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life; 4. If the Appellant intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the fight of an offender who has 13

22 committed or attempted to commit any such offence; 5. If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid; 6. If death is caused by willfully stopping the breath of any person for either of such purposes. See ILODIGWE VS. THE STATE (2012) 5-7 SC (PT. 11) P. 143; CHUKWU VS. THE STATE 12 SC (PT. VII) P. 60. In the instant case, this Court must look at the case before the Lower Court and see if these prescribed conditions were prevalent before the Appellant was convicted. These could be glaring or seen from the evidence and findings of the Court below. The four witnesses for the prosecution gave evidence which at the end of the trial remain sadly intact and not in any form discredited. There was confessional statement of the Appellant before the notice. The learned counsel for the Appellant made frantic effort to impeach the confessional statements of the Appellant in this appeal. The argument is that Lower Court did not conduct trial within trial before accepting and relying on the confessional statement of the Appellant. It is definitely not the law that every confessional 14

23 statement must be subjected to a trial within trial before it is relied on by the trial Court. That would be putting unnecessary burden on the prosecution. The position of our Criminal Procedure Law was laid out by Kekere-Ekun, JSC in the case of ISONG VS. THE STATE (2016) LPELR (SC). His Lordship in that case held as follows: When a trial Court is confronted with a statement made by an accused person which is confessional, there are two situations that may arise. The accused person may object to the admissibility of the statement on the ground that it was not voluntarily made; that it was procured by means of torture inducement or fear. In such circumstances, it is the duty of the Court to conduct what is commonly referred to as a trial within trial to determine if indeed the statement was voluntarily made, where the accused person denied making the statement at all, a trial within trial is unnecessary. The Court would be at liberty to admit the statement in evidence and at the conclusion of the case determine the probative value to attach to it. See: MADJEMU VS. THE STATE (2001) 9 NWLR (PT. 718) 349; OJEGELE VS. THE STATE (1988) 1 NWLR (PT. 71) 414; THE STATE VS. ISAH (2012) 10 NWLR 15

24 (PT. 1327) H-C." The position is therefore very clear that it is only where there is a direct challenge to the admissibility of a confessional statement on the ground that it was made voluntarily, that the necessity of trial within trial will come up for the voluntariness of the statement to be resolved. In the instant case, there was no such challenge so the Lower Court was at liberty to rely on it without conducting trial within trial. The Lower Court therefore was absolutely right to rely on the confessional statement of the Appellant in convicting the Appellant. The decision of the Lower Court cannot be faulted in his case. With the foregoing and the fuller reasons advanced in the lead judgment, I come to the conclusion that this appeal is lacking in merit. I dismiss the appeal and also uphold the conviction and sentence of the Appellant by the Lower Court. 16

25 Appearances: Chief U. IYANAM with him,u. UBAHA Esq. For Appellant(s) UDUAK EYO NSA (DPP, Akwa Ibom State O. P. OKPO (ASS, CSC) For Respondent(s)