C.O Anah, SAN Memorial Colloquium: Trial Within Trial Is Not Part of Nigerian Law — Justice Danlami Senchi, Lawyers

*Say It Wouldn’t Make Difference Whether It Is Conducted Properly Or Not
*Say Several Defendants Have Continually Used The Procedure To Frustrate Trial
*Recommend Abolition Of Trial Within Trials
*Recommend That Challenging Voluntariness Of Statement Should Be Part Of The Main Trial

A Justice of the Court of Appeal, Hon. Justice Danlami Zama Senchi, and Senior lawyers have called for the abolition of trial within trial.

They made the call during the C.O Anah, SAN Memorial Colloquium on 30th September, 2021 at the Auditorium of the Nigerian Bar Association, Central Business District, FCT, Abuja “Trial Within Trial: an Incongruity with Speedy Administration of Criminal Justice.” According to them, trial within trial is not provided by any Nigerian Law and the procedure has been used by Defendants to frustrate trials.

At the event were Hon. Justice Danlami Zama Senchi JCA Court of Appeal  represented by Babafemi Ajiboye Esq, Prof. Yemi Akinseye  George SAN, Mrs. Chinyere Moneme and Mr. Simon Lough Assistant Commissioner of Police

Read details below

The program kicked off at about 11:30am and was anchored by Mr. Chukwueze Ani and Miss Mimi Ayua. The C.O Anah Colloquim is the first of its kind and many more to come. Opening prayer was rendered by Miss Rachel  Osibilor, followed by the rendition of the national anthem, a welcome address by Miss Adaeze Anah and a goodwill message by Dr. Rapulu Ernest Nduka. Introduction of speakers was done by Miss Mimi Ayua Esq.  In attendance were the following eminent members of the legal profession;

1. Justice Danlami Zama Senchi JCA Court of Appeal represented by Babafemi Ajiboye Esq
2. Yemi Akinseye George SAN
3. Chinyere Moneme
4. Simon Lough Assistant Commissioner of Police

The Hon. Justice Danlami Zama Senchi expressed his concern with the dangers occasioned by the blind and slavish adherence to the practice of Trial within Trial especially when he was sitting as a judge of the High court of the Federal Capital Territory. The hon. justice gave an overview of the term Trial within Trial generally, etymologically and historically, stating that it is a practice whereby an on-going trial is stalled in order to decide an issue involved in such trial separately.

Historically, the jury system was on in Lagos State long before and after the enactment of the Jury Law, Cap. 58, Laws of Lagos State of Nigeria 1973.  The concept of “Trial Within Trial“ was undoubtedly recognized under that law. Section 67 of the said Jury Law provides as follow:-

“Where an argument or certain evidence takes place, or is likely to be about to take place, and the Judge is of the opinion that the Accused must be unfairly prejudiced if such argument is heard in the presence of the jury, the Judge may direct the jury to retire to their room during evidence.”

Moving unto the practice in present day Nigeria, the learned justice pointed out the fundamental right to personal liberty citing Section 35 (2) of the constitution of the federal republic of Nigeria stating that the implication of the above provision is that any statement made by a person upon lawful arrest must be made voluntarily by him. Citing a plethora of cases and statutes such as UTTEH V. THE STATE (1992) LPELR-6239 (SC), AJUDUA V F.R.N (2014) LPELR 24126 (CA), Section 28 and 29 (1) of the Evidence Act 2011 which all provide that a Defendant has the right to remain silent and cannot be forced to make a statement during investigation. The effect of the statutory provision is that a confessional statement made by a suspect is admissible in evidence against him once relevant and not excluded. against him once relevant and not excluded. Exhaustively stating the circumstances wherein confessional will be excluded, he cited section 29(2) of the Evidence Act 2011 as follows:

(2)      If, in any proceeding where the prosecution proposes to give in evidence a confession made by a Defendant, it is represented to the Court that the confession was or may have been obtained –

      (a)   by oppression of the person who made it; or

(b)   in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence,

the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.”

Section 29(5) of the said Act defines the word ‘oppression’ to include “torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture”. Subsection (3) also empowers the Court to suo motu require such proof from the prosecution as provided for under the circumstances outlined in Subsection (2) above. These statutory provisions are to the effect that the court is permitted to suo motu raise the issue of oppression or unreliability of a confessional statement and order trial within trial.

Thus it is clear from the foregoing provisions that where a confessional statement made by a Defendant is sought to be used by the prosecution against him at trial, the defence counsel is obliged to raise objection to the use of such confessional statement on grounds that it was obtained by oppression from the Defendant and the prosecution then bears the burden of proving beyond reasonable doubt that it was given voluntarily by the Defendant. It is only upon satisfactory proof by the prosecution (of the Defendant’s statement being without oppression) that the Court can use and rely on the Defendant’s statement in the trial of the criminal charge against him. See collectively the cases of LASISI V. STATE (2013) LPELR-20183(SC), STATE V. OBOBOLO (2017) LPELR-48405(SC) and ACHUKU V. STATE (2014) LPELR-22651(CA).

He further stated that there can be no gainsaying that there is a real and existing likelihood that extra-judicial statements containing confessions obtained from a Defendant involuntarily may not be true as it may have been obtained by fear of prejudice (duress) or hope of advantage or promise (inducement) and that even if it were true, the use of same against such a Defendant at trial would amount to a breach of his constitutional right to remain silent. Hence, the provision of the law of evidence seeks to exclude such confessional statements from being used in evidence against the Defendant from whom it was obtained. He went on to state that although the Act does requires the voluntariness of a confessional statement to be tested when the need arises, it does not exactly spell out the precise procedure to be adopted in conducting such a test, thus the practice procedure of conducting a trial within trial. YUSUF & ANOR V. STATE (2019) LPELR-46945(SC) and STATE V. SOYINKA (2020) LPELR-49493(CA).

He highlighted the principle that a trial within trial is not conducted when the Defendant contends that the confessional statement in question was not made by him at all, but when the Defendant admits making the statement but rather contends that it was not made voluntarily. Then the Court is obliged to conduct a trial within trial to determine the voluntariness of the said statement. See the cases of OWIE V. THE STATE(1985) LPELR-2847(SC) and JIMOH V. STATE (2014) LPELR-22464(SC).

Bringing to light the principle of fair hearing as established in  Section 36 Constitution of the Federal Republic of Nigeria 1999 (as Amended)and the innovative Administration of Criminal Justice Act (ACJA) 2015 which is to achieve speedy dispensation of justice and emphasizing that the need for a speedy trial cannot be overemphasized, he stated that trials must be conducted within a reasonable time. Hence the need for the expulsion of trial within trial as same is the very antithesis of speedy trial and justice because in the course of conducting a mini trial which is to shield the jury from premature exposure to evidence and argument on an issue that might occasion bias before the proper hearing of the case the judge is exposed to evidence, he is not supposed to before the conclusion of the main trial itself. See the case of STATE V. SOYINKA (2020) LPELR-49493(CA).

Pointing out the irrelevance of the practice( trial within trial) he cited the Evidence Act 2011 and the ACJA 2015, (extant law on the procedure for criminal trials), stating that these laws do not provide that a trial within trial must be conducted to determine the voluntariness or appear to be silent as to the procedure to be adopted in determining the voluntariness of a confessional statements sought to be used against a Defendant at trial. This was supported by the case of GBADAMOSI & ANOR V. STATE (1992) LPELR-1313(SC) where the Court of Appeal held that the conduct of a ‘trial within a trial’ is not part of Nigerian Law and whether it was properly conducted or not made no difference to the trial. Citing Edict No.1 of 1975 as having abolished the Jury Law Cap. 58 Laws of Lagos state, he stated that in his opinion as far as Lagos is concerned since there is no law that gives statutory (sic) for a Judge to conduct a trial within the trial determining the admissibility of evidence which may be regarded as prejudicial to an accused person during a trial.

 According to him “But happily there are voices raised calling for a stop to conducting a trial within the trial by trial judges. It is absolutely obsolescent and we should say no in no uncertain language.”

Quoting Nnaemeka-Agu, J.S.C in the case OF MICHAEL V. THE STATE (1990) 1 TLR (pt.1) page 34 at page 45 he read

“I must confess that I have my reservation about the continued need for a trial-within-a-trial in this country in which our judges are both judge and jury. In England where judges and jurors are different, there is always need to prevent jurors from being influenced by arguments (which may mention some of the contents of an inadmissible statement) as to whether or not a particular statement was obtained under duress or the like. In the country in which it is not possible to shield the judge being judged and jury, from any part of the proceedings. I doubt whether the duplication of the hearing by conducting a trial within a trial is anything but a cosmetic mimicry. It is regrettably, still the law in this country.”

He however noted that the only factor sustaining the continued practice of conducting trial within trial to test the voluntariness of a confessional statement in Nigerian legal system is the principle of judicial precedence.  

In his view, the honourable justice stated that instead of mandatorily conducting a separate trial, a better approach to determine the issue of voluntariness of a statement should be as follows:-

1. Having been served with the proof of evidence containing a copy of the Defendant’s statement, his counsel shall file a notice before trial indicating his intention to object to the statement on grounds that it was not obtained voluntarily from the Defendant.
2. The said notice shall be filed in Court and a copy served on the Prosecution who shall then take it as notice that it shall be required to prove that the Defendant’s statement was obtained voluntarily at the trial of the matter.

• In calling evidence to prove its entire case against the Defendant at the trial of the matter, the Prosecution shall also call evidence to prove that the Defendant’s confessional statement was obtained voluntarily.

1. The Defence shall have opportunity to cross-examine the prosecution’s witness and also lead evidence in rebuttal if and when presenting its defence.
2. At the close of evidence and after hearing arguments from both the Prosecution and Defence, the Court shall in its final judgment rule on the issue of voluntariness of the Defendant’s statement.
3. Where the Court finds that the statement was obtained voluntarily, the Court may proceed to rely on and use same in the rest of its Judgment.

• Where the Court finds that the statement was obtained by means of oppression or inducement and thus not given voluntarily, the Court shall discountenance such statement and expunge it from the records. It must be noted here that the position of the law is that where inadmissible evidence is received or admitted in evidence by a Court, such Court has the power (and duty) when it comes to consider its judgment to treat such inadmissible evidence as if it had never been admitted, i.e. expunge it from the records even when no objection had been raised to its admissibility. – HASHIDU V. GOJE (2003) LPELR-10310(CA).

He also suggested that provisions of extant laws relating to the admissibility of extra-judicial statements such as the Evidence Act and ACJA be amended to accommodate the foregoing proposed procedure for testing the voluntariness of confessional statements during trial or such other procedure that would ensure the determination of both the issue and the substantive matter by a single trial.

In conclusion, he anticipated the commencement of conversations towards doing away with the draconian practice of conducting separate trials for the sole purpose of such a test. 

THE SECOND PAPER WAS PRESENTED BY PROF.YEMI AKINSEYE-GEORGE SAN.

INTRODUCTION

 In his paper, he started by saying the reason the Nigerian police and other crime investigators often place heavy reliance on confessional statement of suspects is the lack of resources and expertise forensic and other forms of investigation. Like the learned Hon. Justice, he also posited that the evidence Act allows the use of confessional statement but it does not spell out the procedure for admitting such statement and so over the years the courts have developed the practice of Trial-within-trial as a means of ensuring that confessional statements are obtained voluntarily. His paper argues in the main that the practice of Trial-within-trial in criminal proceedings has outlived its usefulness as it offends against the objective of speedy trial of criminal proceedings enacted by the Administration of Criminal Justice Act 2015. In his paper, he advocated that rather than conducting a separate Trial-within-trial, the procedure for admitting or rejecting a confessional statement should be part and parcel of the main trial. He expatiated the process in the case of Babarinde &  Ors (2013)  LPELR 21896 (SC), Pg. 1 at 14-15.

The Current Practice with respect to Trial-within-trial

He described the current practice with respect to Trial-within-trial as clearly illustrated by the following decisions of the Supreme Court in HASSAN v. STATE (2016) LPELR-42554(SC) page 1 at 15 where the Supreme

Court, per Olabode Rhodes. –  Vivour, JSC, held as follows:

‘When in  the course of  trial  the prosecution seeks to tender the  confessional   statement   of   an  accused  person,  as  it happened  in this  case and  there  is  an  objection on  the grounds that  it was obtained under duress and not voluntarily made, what  is in issue is the admissibility in evidence of  the confession and the trial judge must order  that  a trial-within- trial (mini  trial) is held. The purpose of a trial-within-trial is to determine whether or not the confession was voluntary.

 Abuses of the Practice of Trial-within-trial

The learned senior advocate posited that as important as the purpose for the conduct of Trial-within-trial is, several defendants have continually used the procedure as a tool to stall and waste the time of the court. He cited the case of FEDERAL REPUBLIC OF NIGERIA V. T. A. DAIRO & ORS[1] as apt. Here, the respondents were arraigned on a 15-count amended charge of committing various offences in 2008. The first nine witnesses were examined in chief; duly cross examined and discharged, accordingly. However, the prosecution’s attempt to tender the confessional statement of the first respondent was, stoutly, resisted by counsel for all the accused persons on the ground of involuntariness. A Trial-within-trial was conducted and the trial court ruled that the statement was voluntarily made and admitted the statement in evidence with a caveat that it will decide on weight to be attached during judgment. Dissatisfied with the ruling, the defendants applied and stayed further proceedings while they proceeded to appeal the ruling at the Court of Appeal. The Court of Appeal upheld their appeal and expunged the evidence. The prosecution eventually appealed to the Supreme Court and the Supreme Court upheld their appeal on 30^th January, 2015. The confessional statement was admitted and the case was returned to the trial court for the continuation of trial. In support of this case, he emphasized that what is clear and undeniable is that Trial-Within-Trial has been one of the major tools for delaying or frustrating trials in our courts as in cases where there are multiple defendants with several confessional statements, what a defence counsel needs to do to stall the proceedings is simply to object to the voluntariness of each of the confessional statements. And the current law is that the trial court must put aside the substantive matter and embark on the conduct of Trial-Within-Trial to determine the voluntariness of each of the confessional statements. That process could take several years during which the substantive cases would be kept in abeyance.

Why the Practice of Trial-within trial should be abolished-

He pointed out that the advocacy for the abolition of Trial-Within-Trial is not novel as it dates as far back as 1991, citing the dicta of Niki Tobi J.C.A. (as he then was) concerning the abolition of trial within trial in   Gbadamosi & Ors. v. State (1991) 6 N.W.L.R. (Pt. 196) 182 at 208 – 209.  His

A trial within the trial is an off-shoot of the jury system. In this country the jury system having been on in Lagos in the 1930’s if not before that time. In 1945, an Ordinance relating to jurors and trial with a jury was enacted for the whole of Nigeria, see Cap. 90, Laws of the Federation of Nigeria and Lagos 1958. By Legal Notice 1955, the 1945 Ordinance was applied to Northern, Western and Eastern Regions, and to Lagos and the Southern Cameroons. I am not aware of any legislation on jury trials in the Northern, Western, Eastern Regions and Southern Cameroons. By the Adaptation of Law Legal Notice 112 of 1964, the Jury Ordinance was applicable only in Lagos. Lagos when it became a State on its own enacted a Jury Law. See Cap. 58 Laws of Lagos State of Nigeria: 1973. By Section 67 of Cap. 58, statutory recognition was given to the fact that jury must withdraw during a trial when certain legal argument are being unfolded before the Court. The section read thus: – “Where an argument or certain evidence takes place or is likely to be about to take place and the Judge is of the opinion that the accused must be unfairly prejudiced if such argument is heard in the presence of the jury, the Judge may direct the jury to retire to their room during evidence”. Edict No 1 of 1975 abolished the Jury Law, Cap. 58, Laws of Lagos State of Nigeria.

Problems associated with Trial-Within-Trial

He stated that there are problems surrounding the procedure of a Trial within Trial, he pointed out that First, it protracts the judicial process. It is a matter of experience that a criminal trial can be prolonged for weeks and months, because of a trial within trial. Second, in most cases, the exercise is not realistic because the issue of admissibility of the evidence is being tried by the same Court as the one which determines guilt and third, it relates to the psychology the inadmissibility of the evidence has on the Court in the subsequent determination of the guilt of the accused. The Court may have its prejudices as this is a human element which can hardly be ruled out. In his view, the procedure of a trial within trial is unnecessary duplication in our criminal process as it wastes so much valuable trial time and does not necessarily work in favour of the accused person, a person who is presumed innocent by the Constitution until he is proved guilty.

The Objective of Speedy Trial and other statutory justification for the abolition of Trial-within-trial

Laying the foundation of the objective of Trial within Trial, he cited the provision of the Constitution of the Federal Republic of Nigeria which guarantees to every defendant, ‘a fair trial within a reasonable time’. He also stated that it is the foundation of the provision of Section 1 (1) of the Administration of Criminal Justice Act 2015, which provides, inter alia, for speedy dispensation of justice. Going further, he pointed out that although the conduct of Trial-Within-Trial is not strictu sensu stay of proceedings, its effect is the same  as that of stay of proceedings, at least to the extent that the trial of the substantive matter must be put aside or suspended, to enable the conduct of a mini-trial with respect to the confessional statement which is alleged to be made involuntarily or under duress or oppressive conduct on the part of the investigator. Thus, he argued that the mini trial should be subsumed in the main trial as same saves the time of all; the court, the prosecution and the defence.

New approach to the treatment of confessional statements

He stated that an overwhelming majority of the States of the Federation have taken the bull by the horn in legislating a new approach to the procedure pertaining to admissibility of confessional statements in their courts. For example, the Administration of Criminal Justice Law of Kaduna State, Section 37 (6) & (7) provides:

“A Prosecutor who seeks to rely on a confessional Statement allegedly made voluntarily by a suspect shall, while presenting the prosecutor’s case adduce evidence to show the voluntariness of the said statement. Any objection to the admissibility of such confessional statement shall be recorded and shall be ruled upon by the Court while delivering judgment in the substantive case.”

 In his humble view, the courts are bound to apply these statutory provisions as they are superior, both in hierarchy and quality, to the extant case law on the subject, and that the plethora of judicial decisions from the Supreme Court and the Court of Appeal mandating Trial-Within-Trial regarding admissibility of confessional statements challenged for involuntariness must, henceforth be read subject to the statutory provisions of the ACJLs of the States, adding that The Courts are therefore bound to give effect to the provisions which, in our humble opinion will promote speedy trial without compromising the rights of defendants to fair hearing.

In conclusion, he stated that there is no doubt that the practice of Trial-Within-Trial in criminal proceedings is archaic and has outlived its usefulness. The Administration of Criminal Justice Laws of various States have improved on the Federal ACJA by specifically providing for a new and more sensible way of dealing with the admissibility of confessional statements alleged to be involuntarily made.

THE THIRD PANELIST MRS. CHINYERE MONEME.

INTRODUCTION

In her introduction, she pointed out that there are three ways of proving a crime before a court of law. The first is via eyewitness accounts, the second way is via circumstantial evidence and lastly through the confessional statement(s) of the accused person. See the case of Ayedatiwor v. State (2018) 11 NWLR (Pt. 1631) Pp 554 paras A-F.

According to her any practitioner in the Nigerian criminal justice system instinctively knows that once a statement of an accused person is tendered in evidence and the defendant objects to the tendering of the statement on grounds of involuntariness the life span of such a criminal trial is automatically extended by at least two years. she further stated that In the trial within trial the burden of proving the voluntariness of the confessional statement again lies on the prosecution who opens its case by calling witnesses to prove the voluntariness of the statement. At the close of the prosecution’s case, the burden of proof shifts to the defendant who in turn calls his own witnesses to prove the involuntariness of the statement and that at the end of the mini trial, At the end of the mini trial, the judge takes into account the totality of evidence adduced by the parties before him including the testimony of witnesses, the surrounding environment, and circumstances in which the statement(s) were taken see the case of Borishade v FRN (2012) 18 NWLR Pt 1332 P 347. The judge will also take into consideration whether a word of caution was duly administered by the investigating officer to the defendant before he commenced taking the confessional statement. See the case of Kim v. State (1992) 4 NWLR (Pt. 233) P. 17 at 25. Reading combined provisions of sections 15(4) and 17 of the Administration of Criminal Justice Act 2015 which provide that a suspect’s confessional statement be made in writing and recorded electronically or taken in the presence of a legal practitioner of his choice are to the effect that  the Act only serves to make the proof of the voluntariness of a  confessional statement easier and does nothing to shorten the trial process by forestalling or abolishing a trial within trial.

However, it was pointed emphasized that in criminal trial, most defendants through their counsel argue that the absence of the defendant’s counsel at the point of taking the confessional statement contravenes the provisions of section 17 of the Administration of Criminal Justice Act 2015 and often cite the Court of Appeal decisions in the cases of Agbanimu v FRN (2018) LPELR – 43924 (CA); Charles v FRN (2018) LPELR – 43922 (CA); Zhiysa v. People of Lagos State 92006) LPELR- 40562 (CA); Awele v People of Lagos State 92016) LPELR – 41395; Kadiri v State (2019) LPELR – 47794 (CA) to support their argument that not taking a confessional statement in the presence of a defendant’s counsel renders a confessional statement inadmissible in evidence.

Emphasis was laid on the effect undue delay and impediment to justice the mini trial has on women. According to the statistics report of the organisation Women in Canada in their article Women and the Criminal Justice system:

“The involvement of women and girls in the criminal justice system is largely as crime victims rather than perpetrators. While females make up about half of the violent crime victims, they represent a minority of the offenders…”

According to her, the delays occasioned by trial within trial have negatively impacted on women more than their male counterparts. Victims of rape as well as other heinous crimes are mostly women. As a result of the docility of the female gender, women most often fall victims to criminals as it is common knowledge (even to criminals themselves) that women put up less fight and resistance in the face of threats to their person and property and as a result of the psychological distress suffered by the women folk, the weight of the sponsorship of most criminal trials (especially when it comes to bearing the cost of witness expenses) lies on ordinary grandmothers, mothers, aunts, sisters, daughters etc who are willing to go the extra mile to attain justice for themselves or their loved ones.

Still emphasizing on the bane of trial within trial she pointed out that the solution to these problem lies with:

1. the judiciary to adopt a system where confessional statements are admitted after an objection is raised and the weight to be attached to the statement determined at the end of the trial. This procedure, if adopted will go a long way to enhance the speedy administration of justice.
2. The Executive: Providing critical infrastructure such as CCTV cameras, drones, forensics, police body cameras etc for evidence gathering will enable the prosecution to rely more on real evidence during criminal trials rather than placing sole reliance on confessional statements and having to cross the hurdle of going through a trial within trial to prove the voluntariness of confessional statements.
3. The Police: The lack of an efficient police force is equally an impediment to the speedy administration of justice. The torture of suspects by some police officers inadvertently points to the lack of capacity for the police to thoroughly investigate the crime through forensic science and technology
4. Legal Practitioners: Lawyers are critical actors in the justice system and should exhibit the highest sense of integrity and professional responsibility by not raising false and frivolous objections on the voluntariness of the defendant’s confessional statement as a ploy to exonerate their clients and waste the time of the court thereby frustrating the quick dispensation of justice. The watchword of a lawyer is integrity and lawyers have a duty to assist the court in attaining justice. Since it is common knowledge that the police do not have a good reputation in Nigeria, some legal practitioners capitalize on this to object to their client’s statements claiming that the police tortured them into making same.

She concluded by saying a trial within trial is an archaic procedure which ought to be jettisoned since the mini trial can also be subsumed in the main trial where the judge makes his findings on the voluntariness or otherwise of the statement in his judgment thereby saving precious judicial time and expense(s) that would otherwise have been incurred in conducting a trial within trial.

THE FOURTH LECTURE WAS PRESENTED BY SIMON LOUGH ASSISTANT COMMISSIONER OF POLICE IN CHARGE OF PROSECUTION, LEGAL DEPARTMENT, NIGERIA POLICE HEADQUARTERS, ABUJA.

INTRODUCTION:

The fourth lecture was presented by Simon Lough Assistant Commissioner of Police in charge of Prosecution, Legal Department, Nigeria Police Headquarters, Abuja.

He started the lecture quoting Prof. Yemi Osinbanjo, Vice President of the Federal Republic of Nigeria in an article in the African Report of October 2020 thus, “when it takes too long, people lose confidence in the judicial process and look for their own ways of resolving their problems. Some of these can be anti-social or give rise to conflict. The issue is how to mitigate some of these delays, one of those is time limit for trial.”

In recognition of the need for speedy dispensation of justice he cited the provision of section 1 of the Administration of Criminal    Justice Act 2015.  

MEANING:

Giving the meaning of trial within trial, he stated that it is mini trial within the context of the main trial. It is a procedure in criminal law wherein an alleged extra-judicial confessional statement alleged to have been made by an accused person.

THE LEGAL FRAMEWORK FOR THE CONDUCT OF TRIAL WITHIN TRIAL

The legal framework for the conduct of trial within trial to determine the voluntariness of an extra-judicial confessional statement of an accused person in criminal trial in Nigeria provided under sections 28 and 29 of the Evidence Act 2011.

Section 28 defines confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. He noted that the test for the admissibility of a confessional is its voluntariness.

He noted that every confessional statement obtained by oppression is inadmissible in law. However, the person standing trial against whom the statement is sought is sought to be tendered, has a duty to promptly inform the court at the appropriate time of the fact that the said confessional statement was involuntarily made by him.

CONDITIONS PRECEDENT TO THE CONDUCT OF TRIAL WITHIN TRIAL

He emphasized that Trial within Trial is not conducted as a matter of course and so it must be predicated on certain conditions which are as follows:

1. There must be a main criminal trial in a court of competent jurisdiction.
2. The prosecution must seek to tender a confessional statement of the accused in the trial as an exhibit.
3. The accused person must be present in court and in the dock for his trial.
4. The accused person or his/her counsel must object to the admissibility of the confessional statement.
5. The statement sought to be tendered must be a confessional statement.

He further stated that it is imperative to note that the accused person or his counsel must decide whether or not to object to the admissibility of the said statement and where he decides to, he must do so in clear, precise and unequivocal terms. the only reason for objection to the admissibility of a confessional statement is if it was not freely and voluntarily made.

CONSEQUENCES OF TRIAL WITHIN TRIAL

He emphasized that the conduct of trial within trial has both positive and negative consequences. Some of the positive consequences include:

1. It ensures fairness and promotes the cause of justice as provided in section 36(1) of the 1999 constitution as amended.
2. It guarantees an accused person adequate facilities and opportunity for the preparation of his defense as provided in section 36(6) of the 1999 constitution as amended.
3. It ensures that the statement of the accused person being relied upon by the court was made voluntarily and without of any form of inducement or threat.
4. It ensures that the legal requirement in section 15(4) and 17(2) of the Administration of Criminal Justice Act in the recording of the statement of an accused person is followed
5. It gives the trial court the confidence to rely on a confessional statement admitted after the trial within trial to convict the accused person without hesitation.

The negative consequences include:

1. It constitutes delay in the speedy conclusion of cases.
2. It is a complete negation of provisions of sections 36(1) and (4) of the 1999 constitution as amended and section 1 of the ACJA 2015
3. It is capable of frustrating the case of the prosecution as most of the witnesses including the victim may not remember the fact of the case again due to delay.
4. It deprives victims of crimes the justice they deserve as some of the victims die before the conclusion of the case.
5. It places financial burden on both the accused person, the prosecution and even the court.
6. It leads to waste of judicial time.

In conclusion, in view of the negative impact of trial within trial, the speaker was of the opinion that it be abolished and a better system of determining the voluntariness of confessional statement of an accused person such as lie detectors and mandatory electronic recording of of statements of suspects be adopted in criminal investigation.

INTERACTIVE SESSION

At the conclusion of the paper presentation and discussions by the panelists, the floor was open for an interactive session between the speakers and the audience. The session was moderated by Mr. Philemon.

Mr. Philemon asked Prof. Yemi Akinseye George to throw more light on justice Senchi’s comment that trial within trial is a waste of time. The learned SAN said the advocacy for the reform of trial within trial is in the interest of all parties citing the case of Metum v. F.R.N where the defendants kept their case perpetually in court because they had no defense. He further emphasized that he is not advocating that cases be rushed but simply for cases to make progress within a reasonable time and that an advocacy for abolishment is not the same as being rushed. According to him,” all we are saying is that let us make our criminal justice system more business- like”

The moderator, pointing his question at Mrs. Chinyere Moneme, asked her what the way forward is for a defense counsel in a situation where lawyers intentionally tell their clients to tell lies in court.

Mrs Moneme said what criminal justice system wants is the truth and not to get justice, prosecution or acquittal at all cost. She further stated that integrity is the hallmark and that role of lawyers and the court is to get justice. Therefore legal practitioners should stick to the evidence.

The moderator asked Prof. Akinseye George SAN the possibility of electronic evidence being doctored and if there is any reform to that Prof. Akinseye George said that there are ways the genuineness of electronic evidence can be established. He also stated that the burden is on he who alleges to prove. He further emphasized that his advise for defence counsel is to stick to the law.

 The moderator said when talking about paper and cyber- crimes, one still finds legal practitioners talking about the voluntariness or involuntariness of a statement. With this, he asked the learned SAN what his take is in the issue and also his idea on the issue of promises and inducement.

 The SAN said a mere promise will not negate the voluntariness of a confessional statement. He cited an example of a person kept in a dirty environment which he/she is not used to in order to make such person confess as not constituting inducement.

 Still on the issue of inducement, the moderator asked Mr. Simon Lough, (ACP) how to prove inducement in court if trial within trial is to be abolished.

 Mr. Simon Lough said normally, evidence has to be brought by prosecution that there was inducement. Then at that point, the burden shifts to the defense, and when evidence is not properly brought, it would be rejected.

From the audience, an attendant commented that the solution to the administration of justice does not lie in the abolishment of trial within trial. He said he thinks that the procedure has some advantages which can be reformed. He also asked if it is possible for the police to obtain statement from accused persons without resorting to torture.

Mr. Simon Lough response to that was that statements can be taken without torture. For instance, in cases of cyber- crimes, documents will be shown to the accused person. However, the only exception is in cases of kidnap and armed robbery where thorough investigation will be made.

Still on comments, Mr. Ajuluchukwu said trial within trial shouldn’t be scrapped but modified he said courts should adhere to the provisions of ACJA as both the ACJA and ACJL talk on video recording.

The chairman of Bwari branch also commented that both the substantive and mini trials should be brought together to manage time. 

The learned SAN Prof. Akinseye George said he is not advocating that defendants should not be given opportunity to defend themselves but that the defense at the point of proving his case should frontload such. He concluded by saying that reform should be made and that Nigerian criminal justice system should wear the cap of this new thinking.

The interactive session ended with a conclusion that trial within trial should be reformed.

VOTE OF THANKS

ADAEZE ANAH ESQ, who was overwhelmed with joy thanked Almighty God for life and the steam, her family and everyone in no particular order who participated directly and indirectly as the program came to a wrap.

The lecture was brought to a close at about 1:30pm

[1] (2015) LPELR – 24303 (SC).