LEGAL NUGGETS (41): What An Accused Person Desirous Of Impeaching His Earlier Statement Is bound To Establish.By Adedotun Habeeb Adetunji LL.M (M.IoD), FCAI.

AKPAN vs. THE STATE(2018) LPELR-46003(CA)

ISSUE: CONFESSIONAL STATEMENT-What an accused person desirous of impeaching his earlier statement is bound to establish

PRINCIPLE:
"The issue as raised by the appellant and which the respondent joined is very germane and crucial, it is the bedrock on which the
whole proceedings lie. The appellant's main contention here is that the trial Court had improperly applied the principles enunciated by
the Supreme Court in the case of Okanlawon V. State (supra) to Exhibit D and thereby destroying the potent defence and contention of
the appellant. In the said case under reference, the Supreme Court was emphatic that an accused person desirous of impeaching his
earlier statement is duty bound to establish that his earlier statement cannot be true or correct by showing any of the following:-
(a) That he did not infact make any such statement as presented; or
(b) That he was not correctly recorded; or
(c) That he was unsettled in mind at the time he made the statement, or
(d) That he was induced to make the statement. The way to discharge the burden of establishing any of the above by an accused at
the tendering of his confessional statement is by calling evidence during a trial within trial which presupposes that an accused must
object to the admissibility of his statement immediately it is tendered. Then, where required; the trial Court will order a trial within trial
to test the veracity of the alleged confessional statement. The law is also settled that once a statement complies with the law and
rules governing the method for taking it and, it is tendered and not objected to by the defence, whereby it was admitted as an exhibit,
then it is a good evidence and no amount of retraction will vitiate its admission as a voluntary statement. It is a different matter from a
statement objected to ab initio during trial where voluntariness is challenged in such a case there will be a trial within trial to decide its
voluntariness. Similarly, this is a different matter from where the accused admits at the time a statement is sought to be tendered that
though he signed the statement, he did so not voluntarily but under some undue influence or duress, in which case the Court would
weigh the credibility to be attached to such statement. See IKEMSON V. STATE (1989)6 SC (Pt. 1) 114 at 119 - 120. Also in OBISI V.
CHIEF OF NAVAL STAFF (2004)5 SC (Pt. 1) 136 at 144, the appellant in the course of the proceedings said that the
investigation officer used a "subtle approach" to get an admission from him. The apex Court reasoned that, if the investigating officer
intimidated the appellant to make a confessional statement, the appellant had the right to tell the Court what happened i.e. how he
was forced to make and sign a statement he later disclaimed and not to rely on equivocation and invocation of expression of a
doubtful meaning. The foregoing has spelt out the difference between an extra-judicial statement of the accused which is
confessional in nature and that which is not. The necessity of conducting trial within trial arises only where its voluntariness is clearly
and unequivocally challenged at the point of tendering it. Irrespective of whether an extra-judicial statement is confessional in nature
or not once it is admitted without any objection but later retracted, same can be considered along with other evidence by the trial
Court who at the end would decide whether or not the appellant did make the statement alleged by the police.
In the instant case, the appellant through his counsel at the trial Court denied making the statement credited to him and also the
signature in the statement. While admitting the statement in evidence, learned trial said at page 67 of the record of appeal that:- "The
retraction of the statement by the accused person does not render the statement admissible in law. The Court at the stage of writing
judgment shall make appropriate findings as to whether or not the accused person made the statement and what weight to be
attached to the statement. Accordingly, the statement said to have been made by the accused person dated 31/1/2015 is hereby
admitted in evidence as an exhibit and marked "Exhibit D". Commenting on Exhibit D learned trial Judge has this to say in his
judgment at pages 84 - 85 of the record of appeal:-
"I have taken pains to summarize the contents of Exhibit D which the accused denied as his statement made to the police in relation to
this case in order to highlight material consistency between Exhibit D and the evidence of the accused person in Court." The name on
Exhibit D is the name of the Accused person. The address of the Accused person in Exhibit D
is the same address given in evidence by the accused person. Like in Exhibit D the accused person told the Court that he spent the
night of 30/1/2015 breaking 31/1/2015 in the girlfriend's house at Ibiaku in Uruan Local Government Area. The accused person in his
evidence in Court gave the name of the girlfriend as Eno consistent with the name stated in Exhibit D. Just as stated in Exhibit D, the
accused accepted under cross-examinati
on that he used to work with Sinopec Company. In Exhibit D the Accused person denied the
commission of the offence charged just as the accused person did before the Court while testifying in his defence. Throughout his
defence, the accused person did not deny any of the personal details stated about him in Exhibit D such as the phone number of the
accused stated in Exhibit D as well as the accused person's marital or family history and profile. I disbelieve the accused person that
he did not make Exhibit D to the police in this case. I rather believe that the accused person voluntarily made Exhibit D in this case to
the police and that Exhibit D is the true and correct statement of the accused person voluntarily
made to the police following his arrest by the police upon complaint of PW1 herein. The Court shall therefore make use of Exhibit D in
the evaluation and assessment of the evidence adduced before the Court in this case as the accused person has not successfully
impeached Exhibit D. The accused person has not shown that he infact did not make Exhibit D as presented or that he was not
correctly recorded or that he was unsettled in mind at the time he made the statement and/or that he was induced to make the
statement as the accused person has the duty and burden in law to do to successfully impeach his earlier statement even though
Exhibit D is not confessional in nature - OKANLAWON V. THE STATE (2015)17 NWLR (Pt. 1489) 445 at 479, E - A." I have rightly and
correctly stated the law as to the circumstances when trial within trial is desirable and when it is not. There would be need for trial
within trial where the appellant can clearly demonstrate by the nature of the language he used to express his ordeal that the
statement credited to him was obtained by force, trick or non-recognizable legal ways. In the absence of that it will be idle for this
Court to forage out in an attempt to be considered to have done its duties magnificently and according to its calling. See OBISI V. CHIEF
OF NAVAL STAFF (supra). What the trial Court did in the present case was to rely on the case of OKANLAWON V. STATE (supra) in
coming to a conclusion that the accused did not discharge the burden on him to impeach his extra-judicial statement and nothing
more. It is my considered view that the test and standards set down by the apex Court in the above case are not restricted to
confessional statement but all statements that are retracted by person said to have made it. And the fact that the trial Judge used the
word "voluntary" twice in relation to Exhibit D does not make the appellant's statement confessional in nature as the trial Court rightly
found same not confessional. I therefore cannot but agree completely with the submission of the learned Attorney-General that the
trial Judge never applied the wrong principle of law in the assessment and evaluation of Exhibit D. He neither discarded the appellant's
defence of alibi nor the appellant's contention that PW1 and PW2 had no child of the age of the victim. Also the learned trial Judge
after applying the recommended test as to the truthfulness of the statement and found it to be consistent with other evidence in the
case he was right in admitting Exhibit D and relying on it along with other pieces of evidence in arriving at his decision and no
miscarriage of justice was thereby occasioned. Issue 1 is accordingly resolved in the affirmative." Per SHUAIBU, JCA.(Pp.6-14,Paras.F-B)