The Administration of Criminal Justice Act (ACJA), 2015 exerts quick dispensation of justice as one of the main objectives of the statute. Various states of the federation that have enacted their
Administration of Criminal Justice Laws also emphasised the imperative of timely conclusion of criminal cases as a cardinal objective of the enactment of the laws. These provisions were made in recognition of the fact that there are some practices and procedures which constitute stumbling blocks to speedy trial and quick dispensation of justice in the Nigerian criminal justice system. This has necessitated efforts geared towards removing such practices and procedures. Section 306 of the ACJA which abolished stay of proceedings in criminal trials is an effort in this regard and happily, the provision got judicial approval in the case of Olisah Metuh v. FRN (2017) 5–7 MJSC 83.
One procedure that has received various opinions on its continued relevance to the modern criminal justice system is the “Trial Within Trial”. While the ACJA is silent on the relevance or otherwise of this procedure, some States of the Federation have taken steps to abolish the procedure via different Practice Directions. An example is Abia State where the Chief Judge issued Practice Direction which reforms the practice of Trial-Within-Trial in the State. In the recent case of UCHENNA MUONEKE v. THE STATE, CA/OW/161C/2021, the Court of Appeal upheld the Practice Direction as valid.
Trial Within Trial is an old procedure which enjoys approval within our criminal justice system. It was inherited from the English common law system which guides the practice and procedures of courts in Nigeria. It usually comes up in criminal trials where a confessional statement of the defendant is sought to be tendered in evidence by the prosecution. It is a mini trial to be conducted by the court to ascertain the voluntariness or otherwise of a confessional statement. The procedure is not available to a defendant who denied or retracted his confession. This is where the defendant states that he did not make the statement in question at all; the court will not adopt the procedure of trial within trial. Rather, the court will admit the statement and determine the weight to attach to it at the time of judgement. However, where the contention of the defendant is that the statement was made under duress or involuntarily, the court is obligated to conduct a mini trial to determine the voluntariness or otherwise of the statement. This procedure was explained by the Supreme Court in the case of IKUMONIHAN v. STATE (2018) LPELR-44362(SC) 1 at pp 7 – 8 where the Court held as follows:
“A distinction is usually drawn as regards practice and procedure in relation to the admissibility of a confession in evidence - - between a confession objected to on the ground that it was not made at all by an Accused, in which case such a confession may be said to have been retracted, and a confession objected on the ground that it was not voluntary in that although an Accused Person agreed to have made the confession, his complaint would be that he was forced or induced to make it. In the latter case, what is attacked is the admissibility in evidence of the confession and, therefore, a trial within trial must be held, the confession having been challenged on voi dire so as to determine whether or not the confession was voluntary. …”
The courts in Nigeria including the Supreme Court have held over the years that trial within trial is sacrosanct to determining the voluntariness or otherwise of a confession. Any trial conducted and concluded without trial within trial when voluntariness of a confessional statement is in issue is a nullity and the same will be set aside by the appellate courts. This was the situation in the case of STATE v. SANI (2018) LPELR-43598(SC) 1 where the trial Judge took the evidence of witnesses who testified during the main trial as including evidence for trial within trial and gave ruling on the voluntariness of the confessional statement of the defendant during judgement. The Court of Appeal set aside the procedure adopted by the trial court as irregular and this was adopted by the Supreme Court. Justice Rhodes Vivour has this to say at pages 23-25:
… Once a trial within trial is ordered by the trial judge the main trial is suspended until the conclusion of the trial within trial. The trial within trial commences with the state calling witnesses, usually police officers who would be examined under oath by the state and cross-examined by the defence. The witnesses for the state are to satisfy the Court that the accused person made the confessional statement voluntarily while the defence counsel is to show the contrary i.e. that the accused person was forced or induced to make the statement. After the state concludes its evidence the accused person goes into the witness box to explain to the Court how he was forced, or induced to make the statement. He may call witnesses, but they can only be called after he has given evidence. I have reproduced extracts from proceedings in the trial Court on the mini trial. It is so clear that the learned trial judge made no attempt to follow well laid down procedure in conducting the trial within trial.
It was wrong for proceedings in the trial within trial and the main trial to be taken together, and allowing the accused person no time whatsoever after the Ruling on the trial within trial was delivered before delivery of judgment in the main trial. Such a procedure is unknown to criminal procedure and prejudicial to the accused person even if his counsel consents to such strange procedure.
The overall interest of justice is clearly in question. Lumping the trial within trial with the main trial clearly compromised the respondent's right to a fair hearing as he was denied the opportunity after the Ruling to decide how to go about his defence before judgment was delivered. The accused person should not be denied that right even if his counsel acquiesced to this irregular procedure. This is premised on the position of the law that fair hearing in a criminal trial cannot be waived.
It must never be forgotten that this is a criminal trial that carries the death penalty. Substantial justice must be seen to be done. Reliance on technicalities would definitely lead to injustice.
An accused person must always be given the benefit of the doubt when there are blunders in the case of the prosecution. None compliance with well laid down procedure would never result in the Court achieving substantial justice. We are not satisfied with the procedure adopted by the learned trial judge in the conduct of the trial within trial. The trial within trial is accordingly declared a nullity. Exhibits F and F1 which were admitted in evidence in the trial within trial were wrongly admitted as the procedure adopted was wrong. After considering all the arguments we think that the Court of Appeal could have come to no other conclusion, and that the appeal must be dismissed .This appeal is hereby dismissed.”
There are some arguments in favour of trial within trial which suggest that the procedure entrenches the right of the defendant to fair hearing as provided under sections 35(2) and 36 of the Constitution of the Federal Republic of Nigeria (1999) as amended and section 29 of the Evidence Act. Trial Within Trial places the burden of proving the voluntariness of the confessional statement on the prosecution and gives the defendant opportunity to cross examine the prosecution witnesses (either the set that have testified before or a new set of witnesses entirely) while the court has the opportunity of assessing the prosecution witnesses afresh in order to form opinion on the mode of obtaining the confession from the defendant. The defendant has the right to also call his/her own witnesses to prove the involuntariness of the confession. While the process of trial within trial is on-going, the main trial is suspended and the mini trial to confirm the voluntariness or otherwise of the confession takes the centre stage. The trial judge is expected to give a ruling after the trial whether to admit the confessional statement as having been made voluntarily or reject it for involuntariness.
Section 29(2) of the Evidence Act, 2011 provides that:
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 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.
While it is abundantly clear that the Court is enjoined by this provision to ascertain the state in which the confessional statement of the defendant was obtained, the provision did not set out the procedure to follow. It has therefore been argued that the procedure of trial within trial is only enjoined as a matter of practice without any statutory backing. This is more so in view of the fact that the jury system which necessitated the use of the old practice of mini trial to ascertain preliminary issues of confession in order to shield the jurors from possibility of bias or being exposed to improper evidence is no longer applicable in the Nigerian judicial system. The provision of the Jury Law, Cap. 58, Laws of Lagos State of Nigeria 1973 which gives statutory backing to the practice of trial within trial is no longer applicable. Section 67 of the said Jury Law provides thusly:-
“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.”
With the absence of a jury system in the Nigerian criminal justice system, the judge hears the evidence and determines both issues of fact and law. The need for a mini trial where issues bordering on voluntariness of confession is no longer sustainable especially considering the negative impact of the practice on the criminal justice system.
There is no gainsaying the fact that the practice of trial within trial causes delay in the criminal justice system thereby offending section 36(1) of the Constitution which stipulates that the defendant is entitled to trial within reasonable time. The procedure may last for as long as possible depending on the number of witnesses and availability of those witnesses that the prosecution and the defendant are willing to call. A ruling on trial within trial is subject to appeal from the trial court (which could be a Magistrate Court or a High Court) up to the Supreme Court. This may last for several years and it will definitely impact on the judicial time and resources for the trial of a defendant.
Furthermore, trial within trial has the tendency of foisting bias against the defendant at the preliminary stage of evidence. As stated above, trial within trial is a mini trial with all the essential elements of a complete trial. As explained by the Supreme Court in the case of BABARINDE & ORS VS STATE (2013) LPELR-21896(SC) 1 at pp. 14 – 15:
“It is necessary to reiterate the fact that a trial within trial is a complete process in itself within the substantive trial. The trial Court halts the main trial to conduct a mini trial specifically to determine whether or not a confessional statement allegedly made by an accused person was made voluntarily. See: Adelarin Lateef & Ors. v. F.R.N.(2010) 37 WRN 85 @ 107 lines 25 - 45; Jimoh & Anor. v. The State (2011) LPELR-4357. (CA) 1 @ 19 - 20 F - D. As submitted by learned counsel for the respondents, the witnesses in a trial within trial are re-sworn. They testify, call additional witnesses if necessary, and tender exhibits; the witnesses are subjected to cross-examination and at the conclusion of the trial, counsel to the parties address the Court. The Court delivers a considered ruling on the voluntariness or otherwise of the statements sought to be tendered.”
The procedure explained by the Supreme Court suggests that the trial court must assess the credibility of witnesses of both sides and give opinion on its assessment in its ruling. At this stage, the guilt or otherwise of the defendant might be decided inadvertently. It will be difficult for a judge who believed after conducting trial within trial that a confessional statement was made voluntarily not to convict the defendant on that confession at the end of the trial. This will mean that the guilt of the defendant was reached before the conclusion of the prosecution case.
While it is imperative to allow the defendant to challenge the voluntariness of his alleged confession and a decision is reached before using that confession, there is nothing in our present law which suggests that the decision to rely on the confession or otherwise can only be reached through the instrumentality of trial within trial. It is safe to state that the practice is rigidly entrenched by the case law. In as much as case law is part of our judicial system, it is necessary to understand the position of statutes including rules of courts and practice direction vis a vis the judicial precedent in the hierarchy of laws in the Nigerian legal system.
Apart from the constitution which is the fundamental law of the land, statutes rank first in order of importance of the Nigerian laws. Where the constitution or statutes donates power to the Chief Judges of each state including the Federal Capital Territory to make rules of court (which include Practice Direction), the rules so made rank supreme to any judicial precedent which conflicts with the rules save where the case law decides the validity of the rules as against the provisions of the constitution or statutes. Practice Direction has been described by the Supreme Court in BUHARI VS INEC & ORS (2008) 19 NWLR (PT 1120) 246 AT 341 thus:
“Practice Directions, as the name implies, direct the practice of the Court in a particular area of procedure of the Court. A Practice Direction would be described as a written explanation of how to proceed in a particular area of law in a particular Court. …”
Therefore, Practice Direction is a veritable tool in the hands of Chief Judges of each State including the Chief Judge of the Federal High Court to dictate the process to be employed in determining the voluntariness or otherwise of a confessional statement. It is in this light that the decision of the Court of Appeal in UCHENNA MUONEKE v. THE STATE (supra) which validates the Practice Direction issued by the Chief Judge of Abia State modifying the procedure for trial within trial is correct despite being a radical departure from the long line of previous decisions of the Court and even the Supreme Court.
In view of the detrimental effect of trial within trial to speedy dispensation of justice, it is recommended that while the legislature amends the ACJA and the ACJL of each State to abolish the practice of trial within trial which in many occasions stalls criminal trials, the Chief Judges of each State including the Chief Judge of FCT and Federal High Court should issue Practice Directions which would modify the practice of ascertaining voluntariness or otherwise of a confessional statement with a view to ensuring speedy dispensation of justice and fair trial of the defendant.