By Chioma Angela Okeke

A trial within trial (TWT) is merely a distinct and separate proceeding to determine the admissibility of an alleged confessional extra judicial statement, which an accused person alleges was not voluntarily made. The need for a TWT usually arises during a criminal trial in Court where the defendant objects to the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not voluntarily made by him having been obtained under duress or some threat of whatever nature or intimidation or actual physical torture to his person. [1]

The Court at this stage temporarily halts the trial and conducts a mini trial within the context of the main trial to try to determine the veracity of the account of the defendant as to whether his statement to the police was voluntarily made or not. TWT takes the form of a normal trial as witnesses are called to give evidence and are subject to cross examination by the other side. Afterwards, the Court proceeds to write a ruling either admitting the statement of the accused or rejecting same after which the main trial temporarily suspended, continues.[2]

What then happens when an accused person sets up a defence of non est factum in relation to a confessional statement i.e. denies making a confessional statement? Here, the accused is not saying that he was coerced or induced to make the statement at the police station, but that he did not make any statement at all or that the contents of the document is alien to him. In Isah & Ors v. State,[3] the issue was whether denial of making a confessional statement is synonymous with alleging that it was involuntarily made or obtained, and, whether mere denial of the confessional statement renders such statement inadmissible?

In that case, the court per Orji-Abadua, J.C.A at pages 26 – 27 paragraph E stated thus:- “It is a known principle that an involuntarily obtained statement admitting commission of crime or confession cannot be used in prosecuting an accused person. Such a statement is inadmissible both because it is likely to be unreliable and because of society’s aversion to forced confession, even if true. It is clear as crystal that denial of an alleged confessional statement is, not in the least, the same as alleging that it was made without the volition or free will of the accused. Therefore, the law is that a confession or an admission by an accused of the commission of the offence with which he is charged is not rendered inadmissible in evidence merely because the accused, at the point of tendering the said statement or during his examination in chief or cross-examination denied ever making such statement. A confessional statement is rendered inadmissible if the accused claimed he was coerced into making the same, and, a trial within a trial was conducted during which he was able to prove to the Court the frightful circumstance under which the said statement was obtained from him.”

In Akpan v State (2008) 14 N.W.L.R Part 1106 page 72 the Supreme Court at pages 97 and 98 paragraphs. H-C, per Ogbuagu, J.S.C., stated thus:

“When the learned Counsel for the appellant objected to the tendering of what has been described by him in the appellant’s Brief, as “purported confessional statement of the appellant”, on the ground that the signature thereon, was not that of the appellant and that the appellant was seeing the document for the first time – i.e. that he never made the statement, in my respectful view, a trial within trial, should not have been conducted. This is because, trial within the trial is ordered and conducted where the voluntariness of the making of the statement by an accused person, is in issue or raised by an accused person.”[4] In Isah & Ors V. State,[5] the Court per Per Orji-Abadua , J.C.A ( Pp. 27-30, paragraphs. F-B ), stated thus:

“As I observed earlier, there is nothing on the record suggestive of the fact that the admissibility of those Exhibits was objected to based on their involuntariness which would have necessitated the trial Court holding a trial with a trial or conducting an investigation in respect thereof, and that being the case, I am, therefore inclined, in the light of the above principles, to hold that the trial Court was not wrong in admitting Exhibits 1, 1(A), 2, 2(A) and 5 and 5(A) in evidence as confessional statements of the Appellants.”

In view of the foregoing authorities, where an accused person is  merely disputing the correctness of the  contents of a written statement or that he did not make or sign the  confessional statement at all, it is not necessary  to have a trial within trial. The  court will admit the document and decide the weight to be addressed to it. The question of the weight to be attached to the contents of a statement which has been denied becomes an issue for the Judge to determine at the end of the trial.

[1]Dibia v State (2012) LPELR-8564(CA).

[2] Nweneke V. State (2019) LPELR-47018(CA).

[3] (2010) LPELR-5077(CA).

[4] Nsofor v The State (2002) 10 N.W.L.R. Part 775 page 274, per Ba’aba, J.C.A.

[5] (2010) LPELR-5077.

Written by Chioma Angela Okeke

Of all the comments and write-ups I have read since the senseless massacre of some Igbo youths in Enugu on Sunday, August 23, none has struck me as the one by Aloy Ejimakor, titled, ‘Enugu Massacre: Forget IPOB, they are Ndigbo’.

Ejimakor is a lawyer and personal counsel to Mazi Nnamdi Kanu, the leader of the Indigenous Peoples of Biafra (IPOB). But he did not write as somebody with any relationship with Kanu. He wrote as an Igbo, concerned and rattled at the volume of violence visited on his kinsmen by the security agents. “Whoever takes the life of an IPOB member is taking the life of an Igbo and therefore will ultimately account to Ndigbo. It’s not a threat; it’s a fact”, is one of the remarkable points he made in the write up.

He goes ahead to describe an IPOB member as simply ‘any Eastern Nigerian (especially the Igbo) who will rather have Biafra than a Nigeria that eats her children, especially her Igbo children’. You will need to appreciate the depth of this definition, to understand the force behind the agitation and actions of the youths from the East. Let me make this point from the outset – I am a believer in a fair and equitable Nigeria.  

Various accounts have been rendered on issues leading up to the Enugu mayhem. I agree with the Ohanaeze President, Nnia Nwodo, on the need to get to the root cause of the matter. One thing that however cannot be overlooked in the Enugu shooting is that it was human lives that were wasted; it was the blood of Nigerians that was shed. By that singular act, Nigeria as a nation, has been further diminished.

Some have described the Enugu incident as one killing too many. They are correct. Since August 2015 when the Nigerian security operatives began to turn their guns against the youths from the East, more than 150 souls have been wasted. In 2017, a global organisation, Amnesty International, managed to put a figure to those felled in some of the encounters between the youths and the soldiers. The report was based on analysis of 87 videos, 122 photographs and 146 eye witness testimonies, all revealing soldiers firing live ammunition to disperse unarmed youths on street protests.

A chilling aspect of the report was on how, at least 60 protesters were shot dead within two days leading to the Biafra Remembrance Day of May 29, 2016. It also captured the gory incidence of massacre of youths in Aba, Abia State, earlier in February.

There is no doubt that some may not agree with the agenda of the youths, either of IPOB or any other platform. Some may also disagree with their strategies or context of their agitation. But none can sincerely accuse them of employing violence in going about their mission.

The failure of understanding these harmless Igbo youths and hence the regular mobilisation of maximum force against them, rather, has to do with the “us and them” disposition of the Nigerian leadership on issues confronting that part of the country.

It is this terrible mindset that has blinded the authorities of the Nigerian state on the reasons behind the agitations. At the heart of the issue, is a question of injustice and inequity. Since the end of the Civil War in 1970, the South East, in particular, has been on the receiving end of marginalisation from successive administrations in the land. Aside near absence of federal infrastructure in the area, appointment of indigenes of the zone into offices, has not been commensurate with their counterparts from other parts of the country.

Previous administrations had in going about the nauseating trend, applied some diplomacy. But none had been as audacious and ferocious in manifesting this running animosity towards the people as the current Muhammadu Buhari government. In words and deeds, the President and his government have put up demonstrations that sell the impression that there could be an axe to grind with the people.

The youths from the region, are not blind to these unfriendly dispositions. Thus, convinced that they are not wanted in the Nigeria Project, the dream of an independent state of Biafra where their future could be secured, offers irresistible attraction. Of course, the idea may be utopian, as some have said. There are some who even insist that the geography and circumstances of the 1967 – 1970 Biafra, no longer exist, to warrant the agenda. Some also argue that a new template in seeking autonomy from an existing entity, has overtaken the traditional approach of ‘nzogbu – nzogbu’ street protest. These are arguments that have their strengths and weaknesses. All however border on the strategies adopted by the youths and not the justness of their demand.

What is therefore needed in getting around the issue is dialogue, particularly given that the strong arm tactics adopted by the government in forcing the boys to drop their agenda, have not yielded any positive results.

The danger in the regular deployment of maximum force against the youths, is that it may, over time, get them toughened to the point of welcoming death as manifestation of fidelity to their cause and heroic escape from internal servitude. This could be quite fatalistic. But perhaps more than that, the tendency of the Nigerian government at readily unleashing mayhem at its people, is clearly against the tide of contemporary international relations where the principles of consultation and compromise hold sway.

It particularly sounds awkward that while the government deploys men and resources to woo murderous Boko Haram terrorists and other criminal elements in the North for a dialogue and has been serially duped in the process, it derives pleasure in its security operatives mowing unarmed youths in the East. This regular senseless ejaculation of might by the government against a particular section of the country, cannot be allowed to continue unchallenged.

It is, thus, high time the leadership of the Igbo, took up this matter of gross human rights violation and outright genocide with appropriate international organisations, since it has become clear that there are no avenues for getting justice for the people within the context of present Nigerian state. Ohanaeze leadership cannot wait indefinitely to get to the root of the August 23 killings before taking up the matter with appropriate local and international authorities.  

Whether we agree or not, in the continuous harassment of the Igbo youths, Nigeria remains scandalized in the eyes of civilized nations. In the genocidal actions against them for merely expressing their rights to association, this country continues to go down in essence and substance.

And by that bizarre action, the Buhari administration continues to widen the gulf of mistrust between it and the people from that part of the country.

•Duru is the Editor of TheNiche Newspapers, Lagos. He can be reached on (08054103327, [email protected])

By Ikechukwu Amaechi

([email protected]; 08055069065)

Nasir el-Rufai is hurting. Badly. He is angry. Very, very angry.

It serves him right.

The Kaduna State governor is beside himself with rage because he was booted out of the 60th Annual General Conference of the Nigeria Bar Association (NBA) which kicked off virtually today.

He is hurting because he was originally billed to be one of the star attractions at the August gathering in August.

He was to rub shoulders with Vice President Yemi Osinbajo; Rivers State Governor, Nyesom Wike; House of Representatives Speaker, Femi Gbajabiamila; Chief Justice Tanko Mohammed; former President Olusegun Obasanjo; former Deputy Senate President, Ike Ekweremadu; Attorney General and Justice Minister, Abubakar Malami; Commonwealth Lawyers Association (CLA) President, Brian Speers; and Judicial Institute for Africa Director of Training, Linda Dobbs.

A man in love with the sound of his own voice, and not one to miss such an auspicious platform, El-Rufai had already primed himself to deliver a killer punch of a speech that would damn and, perhaps, silence his critics forever.

But some lawyers, apparently scandalised that such a divisive figure was offered the platform to further spew his obtuse, imperceptive and disruptive rhetoric, protested and demanded he be disinvited as a guest speaker.

The aggrieved lawyers felt that failure to withdraw his invitation would be a bounteous reward for bad behaviour. The NBA leadership acquiesced.

There has been a bedlam ever since. El-Rufai’s supporters are up in arms.

Some of them who are lawyers have threatened to boycott the conference. The deposed Emir of Kano, Lamido Sanusi, made a surprise visit to Kaduna, the first since his dethronement, and took a swipe at the NBA.

“Withdrawing the invite does not show us as people who want progress. Because if you disagree with someone, having him in your hall where you can tell him your views is important and he can defend himself,” Sanusi argued.

The Sultan of Sokoto, Alhaji Sa’ad Abubakar lll, also came calling. The timing of his visit is instructive. According to El-Rufai, he also expressed support for his efforts at bringing peace to Kaduna State.

All these are expected.

El-Rufai, a man of immense political muscle, is well-heeled and entrenched in the power superstructure of the Muslim North. He believes he is one of those who own Nigeria and, therefore, remains infallible, no-matter what he does. The consequence of such sense of entitlement is the vexatious swagger and predatory impunity.  

He sees the NBA’s action as ultimate humiliation and will fight back in any way he can.

But even as he plots revenge, he pretends that the NBA’s rebuff does not matter to him. After all, he insists, it was the association that invited him. So, if they decide to withdraw the invitation, it is their problem, not his.

But don’t be deceived by the bold face and braggadocio, the NBA’s stern rebuke is ego-deflating and humiliating to El-Rufai.

So, when he says he “wishes to make clear that he did not seek the platform and is not agitated that he has one less speaking engagement,” it is sheer baloney.

Such antics remind me of the Igbo saying that when a rat escapes a child on a hunting expedition, he dismisses it as a “shit-hole rat.”

El-Rufai surely needed one more, not one less, speaking engagement to continue espousing his jaundiced, cynical and jaded worldview of ethno-religious supremacy.

Such opportunities pump his adrenaline. Denying him is a hit below the belt, a quintessential sucker punch.

Some people have argued, just like Sanusi, that withdrawing the invite was a wrong-headed move by the NBA. To them, the platform would have put him on the hot seat to provide the lawyers an opportunity to grill him.

So, rather than shoving him off the list of guest speakers, a question and answer segment could have been factored into the programme to give Nigerian lawyers the opportunity to engage him and pick his brain.

Maybe!

But what difference would it have made?

El-Rufai, the unapologetically proud and brilliant Fulani, tweeted on July 15, 2012 that: “We will write this for all to read. Anyone, soldier or not, that kills the Fulani takes a loan repayable one day no matter how long it takes.”

He would have used the NBA platform to further espouse his highly skewed narrative aimed at unconscionable ethnic baiting and profiling.

Those claiming that by disinviting him the NBA denied him a fair hearing, are either missing the point if they are truly sincere in their submission or they are simply being mischievous.

It is not a surprise that El-Rufai is hitching a ride on this fair-hearing wagon.

But he has had the fairest opportunity to air his opinion on the ugly developments in his state. He monopolises the bully pulpit of his office. He is a regular face on television and radio talk shows.

Journalists in the print media fall over themselves to avail him the pages of their newspapers, an opportunity the victims of the Kaduna macabre orchestra can only dream of.

But rather than using the bully pulpit of his high office to bring out the best in civic life, he divides the people and insults those who disagree with him.

So, what difference will the NBA platform make? None that I see. If anything, it would have afforded him one more opportunity to spew ethnic and religious hatred, insult his critics and further divide the people.

It is good that he was denied the opportunity. Kaduna, and indeed Nigeria, needs less, not more, of El-Rufai’s incendiary rhetoric.

Those imputing ethnic and religious motive to the NBA’s courageous and commendable action also miss the point. It is, no doubt, a narrative that resonates with the man and one he is actively promoting.

But it is too simplistic.

In the first place, El-Rufai is not the first Muslim from the northern part of the state to govern Kaduna. Ahmed Makarfi, a Muslim, governed eight years with relative peace. At no time did Makarfi incite one ethnic group against another.

El-Rufai was disinvited neither because of his religious belief nor ethnic origin. Among other invitees, Gbajabiamila is a Muslim from the South; Mohammed and Malami are Muslims from the North.

The young lawyers who championed this cause gave their reasons.

In its petition to the NBA’s Technical Committee on Conference Planning, the Open Bar Initiative – an advocacy and justice initiative for lawyers across Nigeria – listed El-Rufai’s lack of “empathy,” statement that invaders “will go back in body bags” ahead of the 2019 elections, the threat by his son, Bello, to support gang-rape of a Twitter user’s mother, routine arrest and intimidation of critics, contempt for judicial pronouncements, among other gripes.

The leadership of the NBA, whose motto is ‘respect for rule of law, democratic norms and values’, agreed with the petitioners and took the heartwarming step of axing El-Rufai from the conference.

That is the crux of the matter.

Last week when I wrote in the article Nasir el-Rufai and the carnage in Southern Kaduna that if he persists in playing whack-a-mole politics with people’s lives, Nigerians must make a conscious decision to call him out, I didn’t know that the NBA would deploy its huge moral authority to do so.

Will that change anything? We wait and see. But by rebuking El-Rufai, the NBA has done Nigeria a good turn.  

The Niche