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Whether use of polygraph test detracts from voluntariness of confessional statement  

By Guardian Nigeria
02 November 2021   |   2:10 am
A trial within trial was therefore directed by the trial Court to determine the voluntariness of the statements. At the conclusion of the mini-trial, the learned trial judge in a considered ruling held that the statements

BERENDE v. FRN
 
CITATION: (2021) LPELR-54991 (SC)
In the Supreme Court of Nigeria

ON FRIDAY, 4TH JUNE, 2021
Suit No: SC.707C/2019
 
Before Their Lordships:
MARY UKAEGBO PETER-ODILI  
Justice of the Supreme Court
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN  
Justice of the Supreme Court
JOHN INYANG OKORO      
Justice of the Supreme Court
IBRAHIM MOHAMMED MUSA SAULAWA                  
Justice of the Supreme Court
SAMUEL CHUKWUDUMEBI OSEJI                     Justice of the Supreme Court

BETWEEN

ABDULLAHI MUSTAPHA BERENDE                       – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA                        –Respondent(s)

LEADING JUDGMENT DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
FACTS
The facts are that the appellant and one Saheed Oluremi Adewumi were charged for various acts of Terrorism under the Terrorism (Prevention) Act 2011 (as amended).    In the course of the trial, the prosecution sought to tender two confessional statements of the Appellant. The appellant raised an objection to the admissibility of the two statements under the provisions of Section 29 of the Evidence Act on the ground that the statements were not voluntarily made by the appellant.  
  
A trial within trial was therefore directed by the trial Court to determine the voluntariness of the statements. At the conclusion of the mini-trial, the learned trial judge in a considered ruling held that the statements were voluntarily made and therefore admissible.
  
The appellant being dissatisfied with the ruling of the trial court appealed to the Court of Appeal. The Court of Appeal affirmed the decision of the trial court on the admissibility of the Appellant’s statement. Being still dissatisfied, the appellant further appealed to the Supreme Court.

ISSUES FOR DETERMINTION
The court determined the appeal based on a sole issue on whether the court of appeal was correct when it held that the appellant’s extra-judicial statements were voluntarily made.

APPELLANT’S SUBMISSION
Appellant’s counsel submitted that the appellant made the said confessional statements under duress. He contended that appellant was made to undergo a lie-detector test using a polygraph machine, which was used without his consent and therefore violated his fundamental right to remain silent as provided in Section 35 (2) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended. He further contended respondent ought to have invited the persons who conducted the test named by the appellant, to rebut his evidence. He submitted that in the absence of evidence in rebuttal, there was no reasonable ground to disbelieve the Appellant’s testimony.
 

 
Appellant’s counsel also observed that the prosecution failed to tender the appellant’s extra-judicial statements, which were being challenged during the trial within trial, and such failure was fatal to the trial within trial proceedings. He referred to OKONKWO V. THE STATE (1998) 8 NWLR (Pt.561) 210 @ 248.
  
Appellant’s counsel also argued that that ground, 13, 17,18, and19 of his notice of appeal raised the issue of the validity of the trial within trial when the extra-judicial statements were not tendered, and that the issues were argued in the appellant’s written address at the conclusion of the trial within trial. Thus, appellant’s counsel submitted that the Court of Appeal was wrong when it held that they raised fresh issues not raised before the trial court.  He also submitted that the Court has a duty to consider all the issues raised before it dispassionately and urged this court to invoke the provisions of Section 22 of the Supreme Court Act, and revisit the issues.

 RESPONDENT’S SUBMISSION
Respondent’s counsel referred to the characteristics of a confessional statement as provided in Sections 28 and 29 of the Evidence Act, 2011 and submitted that each time, after making the statements, the appellant was taken before a Superior Police Officer (SPO) where he confirmed that they were voluntarily made.
  
Respondent’s counsel submitted that it is not the practice of this court to interfere with concurrent findings of fact or to re-evaluate the evidence where no miscarriage of justice has been established: IGAGO V. THE STATE (1999) 12 SCNJ 140.
  
Respondent’s counsel submitted that the burden of proof of particular facts, as opposed to proof of guilt, rests on the party who alleges the existence of such facts.    He submitted that 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 NWANGBOMU V. THE STATE (2001) ACLR 9. He noted that the appellant’s constitutional right to remain silent was never raised throughout the trial. He submitted that the allegations of threat, inducement, promise of amnesty, withholding of his eye medication and so on cannot avail him having regard to Section 31 of the Evidence Act. He also referred to Section 14 of the Act and the case of HARUNA V. A.G. FEDERATION (2012) 49 NSCQR 1410, at 1430.

RESOLUTION OF ISSUES
The court first reproduced the provisions of Sections 28, 29 (1), (2) and (5) and 31 of the Evidence Act as regards the meaning of a confessional statement. The court then 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 trial within trial to ascertain the voluntariness of the statement. The onus is on the prosecution to prove that it was freely and voluntarily made. See OLAYINKA V. THE STATE (2007) 9 NWLR (Pt.1040) 5. The court further held that where the 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. See IKPASA V. BENDEL STATE (1981) NSCC 300.
  
The court held also that the procedure of taking a suspect who has made a confessional statement before a superior officer for confirmation is not a legal requirement. It is an administrative practice that has gained judicial approval, as an additional means of ensuring that a confessional statement is voluntary. See SMART V. THE STATE (2016) 1 – 2 SC (Pt. II) 41.
  
The court held that the tests for determining the voluntariness of a confessional are as follows: (1) whether there is anything outside the confession to show that it is true. (2) Whether the statement is corroborated, no matter how slight (3) whether the facts contained therein, so far as can be tested, are true. (4) Whether the accused person had the opportunity of committing the offence. (5) Whether the confession of the accused person was possible.
(6) Whether the confession was consistent with other facts, which have been ascertained and proved in the matter. See R V. SYKES (1913) 8 CAR 233 at 236, IKPASA V. ATTORNEY GENERAL OF BENDEL STATE (1981) 9 SC 7;
  
The court held that that a polygraph test was administered on the Appellant did not detract from the voluntariness of the statement made.

  
The court also held that the appellant should have taken advantage of the opportunity of being taken before a superior police officer, to complain that his statement was not voluntarily made. But the appellant did not complain, rather, on both occasions he admitted that he made the statements voluntarily.
  
The court also observed that digital recordings were made of the interview sessions and converted into DVDs, which were tendered in Court. The appellant has not raised any serious challenge to the recordings. The court thus held that where a party, aware of an irregularity, proceeded to take steps other than to challenge the defect in the proceedings, he would be presumed to have acquiesced, condoned or waived the irregularity or defect and cannot later be heard to complain about it. See SALEH V. THE STATE (2018) LPELR-46337 (SC) @ 18 B – F

The court thus conclusively held that the concurrent findings of fact by the trial court and Court of Appeal that the confessional statements were voluntarily made have not been dislodged. The findings have not been shown to be perverse and thus the Court is not persuaded to interfere.

HELD
The Supreme Court held that the appeal lacked merit and accordingly dismissed same.

APPEARANCES
M.I. Hanafi, Esq., with him, D. T. Nwachukwu, Esq.,
O.A. Omolase, Esq. and Y.A. Yussuf, Esq.                                      – For Appellant(s)

Chioma Onuegbu, Esq. (D.D.P.P.F), with him,
Chinwe Obasi, Esq. (Principal State Counsel),
Anikan O. Ekong (Principal State Counsel) Fed. Ministry of Justice   
  – For Appellant(s)