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BERENDE v. FRN (2021) – SC

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➥ CASE SUMMARY OF:
BERENDE v. FRN (2021) – SC

by PipAr Chima

➥ COURT:
Supreme Court – SC.707C/2019

➥ JUDGEMENT DELIVERED ON:
Friday, June 04, 2021

➥ AREA(S) OF LAW
Confessional statement.
Polygraph test.
Trial-within-trial.

➥ NOTABLE DICTA
⦿ CONFESSIONAL STATEMENT: VOLUNTARINESS VS DISOWNING
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 18 (TWT) or mini trial to ascertain the voluntariness of the statement. The onus is on the prosecution to prove that it was freely and voluntarily made … On the other hand, 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. – Kekere-Ekun JSC. Berende v. FRN (2021)

⦿ TAKING A SUSPECT BEFORE A SUPERIOR OFFICER IS NOT A LEGAL REQUIREMENT
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. – Kekere-Ekun JSC. Berende v. FRN (2021)

⦿ CANNOT COMPLAIN AGAINST IRREGULARITY PARTICIPATED IN
Having acquiesced in the alleged wrong procedure, it was too late for the appellant to complain on appeal. See State Vs Onyeukwu (2004) 14 NWLR (Pt.893) 340. 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 27 defect and cannot later be heard to complain about it. – Kekere-Ekun JSC. Berende v. FRN (2021)

⦿ ONUS ON SUSPECT TO PROVE TORTURE AND OPPRESSION
An area that has to be cleared in the proof of the voluntariness of an extra-judicial statement or that it was involuntarily made, is that while the burden to establish that the statement was voluntarily made rests on the prosecution, the burden of proving any particular fact such as the allegation of torture and oppression regarding the confessional statement lies on the party so asserting which in this case is the appellant. – M. Peter-Odili JSC. Berende v. FRN (2021)

⦿ TEST TO PROVE CONFESSIONAL STATEMENT
The tests for determining the voluntariness of a confessional statement have been consistently applied by this Court in a plethora of cases 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. – J.I. Okoro JSC. Berende v. FRN (2021)

Available:  BRITISH AIRWAYS v. MR. P. O. ATOYEBI (2014) - SC

⦿ CONFESSION DOES NOT BECOME IRRELEVANT DUE TO DECEPTION
My Lords, the law is trite that a confession otherwise relevant does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he needed to have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and the evidence of it might be given. – J.I. Okoro JSC. Berende v. FRN (2021)

➥ PARTIES
APPELLANT
Abdullahi Mustapha Berende

v.

RESPONDENT
Federal Republic of Nigeria

➥ LEAD JUDGEMENT DELIVERED BY:
Kudirat Motonmori Olatokunbo Kekere-ekun, J.S.C

➥ APPEARANCES
⦿ FOR THE APPELLANT
– M.I. Hanafi Esq.

⦿ FOR THE RESPONDENT
– Chioma Onuegbu Esq, Principal State counsel, Federal Ministry of Justice.

➥ CASE HISTORY
The appellant was arraigned before the Federal High Court, Abuja, along with one Saheed Oluremi Adewumi on a six-count charge, of various offences under the Terrorism (Prevention) Act, 2011, as amended.

PW1 stated that the appellant made two statements on 8/2/13 and 25/2/13. He was brought before him and he confirmed that he made the statements voluntarily, he (PW1) endorsed them.

At the point of tendering the statements in evidence, an objection was raised 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 delivered on 22/10/2014, the Court held that the statements were made voluntarily and admitted them in evidence as Exhibits B and B1.

The Court held, inter alia: “It is clear that one of the easy 4 ways of determining the voluntariness of a confessional statement said to have been made by an accused person is when the said statement is taken before a Superior Police Officer for confirmation and countersigning. It is my humble view that if the accused is objecting to the voluntariness of a confessional statement said to have been made by him, he would have ample opportunity during confirmation before a Superior Police Officer to object to its voluntariness. In the case at hand, the 1st and 2nd accused persons have admitted being taken before TPW2 for the confirmation of their confessional statements, but none of them testified on objecting to the voluntariness of their statements before TPW2. Having regard to the pronouncement of the Supreme Court in the Alarape’s case, supra, the confirmation of the 1st and 2nd accused persons’ statements by TPW2 has made the determination of the voluntariness of their statement a lot more easier. In conclusion, I am of the firm view that the two statements sought to be tendered have passed the test of veracity and voluntariness laid down by law and as stated by the Supreme Court in the cases of Alarape Vs The State and Akpan Vs The State, both supra. 5 … the said statements are hereby admitted as Exhibits B, B1 and C, C1 respectively.”

Available:  Ojo v. Gharoro (2006)

The appellant was dissatisfied with the ruling and appealed to the Court below. The appeal was unsuccessful, hence the instant appeal.

➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]

I. Whether the Court of appeal was correct when it held that the appellant’s extra-judicial statements were voluntarily made?

RULING: IN RESPONDENT’S FAVOUR.
I.A. The Court below 23 at pages 654 – 655 of the record held thus: “The confessional statements, whose voluntariness was disputed and was being tried and were at the end of the trial admitted as Exhibits B and B1 were made on 8/2/13 and on 25/2/13 respectively. There is nothing in the evidence showing any nexus between a polygraph test of the appellant that ended successfully in his favour on 24/12/2012, and the voluntariness of his confessions made about two months thereafter. By his own testimony, when requested to make a written statement on the same 24/12/2012, he did so voluntarily, and if he was able to voluntarily make a written statement immediately after the conclusion of the polygraph test on 24/12/2012, then the argument that the same test that ended on 24/12/2012 in his favour did violate the voluntariness of his confessions on 8/2/2013, cannot be valid. There is no evidence that shows how the polygraph test of to 24th December, 2012 deprived the appellant of the free will or discretion to make or not to make the confessions about two months later on 8/2/2013 and 25/2/2013. In any case, the issue here is not about the admissibility of the evidence of the 24 appellant while on the lie or truth detector machine and the results of the polygraph test or the written statement he made on 24/12/2012 following the conclusion of the test. The arguments about the admissibility of the polygraph test examination and result in evidence and the Canadian judicial decision in R V. Beland & Phillips (1987) 2 B, are therefore not relevant here.”
I am in complete agreement with their Lordships in this regard, particularly as there was no attempt by the prosecution to tender any polygraph test results in evidence.

Available:  CHIEF ADEBAYO BASHORUN OLUFOSOYE & ORS. v. JOHNSON O. OLORUNFEMI (1989)

I.B. 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. Learned counsel for the appellant submitted that the appellant was not in a position to complain because the superior officer, TPW2, was complicit in his oppression. With due respect to him, his address, no matter how erudite, cannot be a substitute for evidence. The Court below observed, and I agree with their Lordships, that if indeed, he had reasons why he felt compelled to confirm the voluntariness of his statements before TPW2, he had an opportunity during his defence in the TWT to explain his position to the Court. I also agree with their Lordships that the appellant’s confirmation that he made the statements voluntarily is consistent with the evidence of TPW1 and TPW2 during the TWT that the statements were voluntarily made. In my view, the affirmation by the Court below of the holding of the learned trial Judge in this regard cannot be faulted.

I.C. As observed earlier, 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 testimony of TPW3 remained unimpeached under cross-examination.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Sections 14, 28, 29(1), (2) and (5) and 31 of the Evidence Act.

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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