Conviction of an accused person upon a retracted confessional statement invalid (1)

 In The Supreme Court Of Nigeria

Holden At Abuja

On Friday, The 6th Day Of June, 2014

Before Their Lordships:

Walter S.N. Onnoghen Justice Supreme Court

Suleiman Galadima Justice Supreme Court

Bode Rhodes-Vivour Justice Supreme Court

Kumai B. Aka’ahs Justice Supreme Court

John I. Okoro Justice Supreme Court

Sc.367/2011

Between

Peter Iliya Azabada         ————-Appellant 

And

The State —————- Respondent

There is therefore no doubt in law that Appellant can, in the circumstances of this case, be convicted on Exhibit ‘’F’’ alone. However, where an Accused person later retracts his confession at trial, the practice has evolved whereby the court(trial) must look for some evidence outside the confession which would make the confession probable. So held his lordship, W.S.N. ONNOGHEN (JSC) his learned brothers SULEIMAN GALADIMA, BODE RHODES-VIVOUR, KUMAI B. AKA’AHS and JOHN I. OKORO (JJSC), concurring while unanimously dismissing the Appellant’s appeal. 

  The appellant was represented by Sylva Ogwemoh, (with him J.O. Okosun, A, Ikahane),while the Respondent was  represented by P.H. Ogbe (with him P.A. Ogwuche, B, Bassey, P.C. Ashuikeka, O. Imobighe, N. Chidubem and V.U. Maynya) 

THE facts are as contained in the body of the judgment. The Appellant, together with one Adamu Saliu, were charged on a three count charge with the following offences before the High Court of Kogi State Holden at Kotonkarfe.

Count 1

    That you Adamu Saliu and Peter Illiya Azabada on or about the 9th day of August, 2003 at Akpogu-Ozugbe Road, Koton Karfi in Kogi Local Government Area within the Kogi Judicial division agreed to do an illegal act to wit: you agreed to commit armed robbery and culpable homicide punishable with death on Mohammed Abubakar, deceased and the same acts were in pursuance of the agreement, and you thereby committed the offence of criminal conspiracy punishable under Section 97(1) of the Penal Code.

Count 2

    That you Adamu Saliu and Peter Illiya Azabada on or about the 9th day of August, 2003 at Akpogu-Ozugbe Road, Koton Karfi in Kogi Local Government Area within the Kogi Judicial division agreed to do an illegal act to wit: you both armed yourselves with guns which are dangerous or offensive weapons and robbed Mohammed Abubakar (deceased) of his Nissan Sunny Model saloon Car with Registration No: KOGI AA 967 KKF and thereby committed an offence punishable under Section 298© of the Penal Code.

Count 3

    That you Adamu Saliu and Peter Illiya Azabada on or about the 9th day of August, 2003 at Akpogu-Ozugbe Road, Koton Karfi in Kogi Local Government Area within the Kogi Judicial division agreed to do an illegal act to wit: you shot Mohammed Abubakar (deaceased) to death with a gun with the intention of causing his death and you thereby committed an offence under Section 79 of the same Code’’

    Appellant is the second Accused mentioned in the above charge. Though the Appellant made a confessional statement he denied/retracted it in the course of trial.

    The Appellant was brought before the High Court of Kogi State, Kotonnkarfe which convicted the Appellant of the offence of criminal conspiracy, armed robbery and culpable homicide punishable with death and for which he was sentenced accordingly. He appealed to the Court of Appeal Abuja which also affirmed the judgment of the trial court. Further dissatisfied, the appellant further appealed to the Supreme Court.

The Appellant distilled the following issues for determination of the appeal thus:

“1.Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the Appellant merely on the strength of the confessional statement was retracted by the Appellant in his oral testimony before the trial High Court of KogiState.

2.Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the Appellant for conspiracy to commit armed robbery and culpable homicide when there were material (sic) contradictions in the evidence of the prosecution before the trial court.

3. Whether the court of Appeal Abuja Division was right, in refusing to set aside the conviction and sentence of the Appellant having found that it was wrong in law for the trial Judge to pass sentence on only one of the counts as charged after convicting the Appellant on the counts of offences contained in the charge sheet before the trial court.’’

The above issues are very similar to the three issues formulated by the Respondents, therefore, the Supreme Court did not find it needful to reproduce same.

    This is an appeal against the judgment of the Court of Appeal Holden at Abuja, in Appeal No. CA/A/16C/2009 delivered on the 12th day of July, 2011 in which the court dismissed the appeal of Appellant against the judgment of the High Court of Kogi State in Charge No. HCL/31C/2005 delivered on 20th June, 2008 convicting Appellant of the offence of criminal conspiracy, armed robbery and culpable homicide punishable with death and for which he was sentenced accordingly.

Appellant is the second Accused mentioned in the above charge. Though Appellant made a confessional statement he denied/retracted it in the course of the trial.

The issues that have been identified by learned counsel for Appellant, Sylva Ogwemoh Esq, in the Appellant’s brief deemed filed on 27/3/14 for the determination of the appeal are as follows:

    “1. Whether the court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the Appellant merely on the strength of the confessional statement was retracted by the Appellant in his oral testimony before the trial High Court of Kogi State.

  2. Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the Appellant for conspiracy to commit armed robbery and culpable homicide when there were materials (sic) contradictions in the evidence of the Prosecution before the trial court.

 3. Whether the Court of Appeal Abuja Division was right, in law, in refusing to set asidetheconvictionand sentence of the Appellant having found that it was wrong in law for the trial judge to pass sentence on only one of the counts as charged after convicting the Appellant on the counts of offences contained in the charge sheet before the trial court’’

    The above issues are very similar to the three issues formulated by learned counsel for the Respondent, P.H. Ogbole, Esq, in the Respondent’s brief also deemed filed and served on 27/3/14. I, therefore need not reproduce them herein as to do so will serve no useful purpose.

    In arguing Issue 1, learned counsel for the Appellant referred the court to Exhibit ‘’F’’ which was retracted by Appellant and stated that the learned trial judge convicted Appellant solely on the strength of Exhibit ‘’F’’. it is the contention of counsel that with the retraction of Exhibit ‘’F’’ and the oral testimony of Appellant and that the effect in law on that situation is that the testimony is to be treated as unreliable while the statement, Exhibit ‘’F’’ is not regarded as evidence on which the court can act, relying on Sule v. the State (2009) 6-7 S.C. (pt 111) 28, that under the inconsistency rule the court ought to reject both Exhibit ‘’F’’ and oral testimony in the court and that the trial judge was wrong when he relied on Exhibit ‘’F’’ in convicting and sentencing Appellant and that the lower court was also wrong in affirming the said conviction and sentence.

    It is the further submission of counsel that the court being faced with the retraction of Exhibit ‘’F’’, vis-à-vis the oral version of events as testified to by Appellant should have resorted to 

corroborating evidence in convicting the Appellant; that there was no eye witness account of an independent witness on record on the matter of corroboration, counsel cited and relied on: Bassey v State (2012) 4-5 S.C. 119.

    Learned counsel then urged the court ‘’to reject the finding by the lower courts that Exhibit ‘F’ was a confessional statement freely and voluntarily made by the Appellant to ground a conviction for the offences as charged and discharge and acquit the Appellant on all the counts……’’ as no other evidence was produced by the prosecution linking Appellant with the crime.

    Referring to the provisions of Sections 28 and 29 of the Evidence Act, 2011, learned counsel for the Respondent submitted that a confessional statement is admissible in evidence to prove the charge once it is established that it was made voluntarily and is positive etc, as in the instant case; that an Accused person can be convicted based on his confessional statement without more, relying on: Akpan v State (1992) 6 NWLR (pt 248) 439 at 468.

    Learned counsel urged the court to resolve the issue against Appellant, the issue under consideration is not as complicated as learned counsel for Appellant has made it to seem; it is very simple and straight forward in view of the following admitted facts.

(a) Exhibit ‘F’, the confessional statement of Appellant was admitted in evidence without objection. Initially counsel for Appellant objected to its admissibility on grounds of duress etc etc resulting in a trial within a trial procedure being invoked but was aborted almost at the tail end when learned counsel for Appellant withdrew the objection. At that stage it is clear that Appellant is deemed to have admitted making Exhibit F and voluntarily too. At that stage, the law is that the confessional statement of an Accused, where it is direct, positive, unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for the conviction of the Accused person. This court in Akpan v State (1992) 6 NWLR (pt. 248) 439 at 468 thus stated that:

“It is an established principle of our law that an Accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts which I have been proved’’.

    The above rule is a rule of practice. The practice is designed to determine which of the two versions of events relating to the commission of the crime given by the Accused concerned is likely to be the correct one- the version in the confessional statement and the new version presented by him at the trial proper. Where, in examining the surrounding facts and circumstances revealed in evidence by the witnesses, the court finds relevant facts and circumstances supporting or verifying the facts confessed to by the Accused in the retracted statement, it means the confessional statement is reliable and can be so relied upon in convicting the Accused person, his retraction notwithstanding.

    The question, however is whether there is evidence on record to corroborate the confessional statement of Appellant in Exhibit ‘F’?. The answer as concurrently found by the lower courts is yes.

There is evidence on record and which the trial judge believed, that Appellant went to the radio repair shop of P.W.2 and deposited with him for safe keeping, a polythene bag which contained two locally made pistols and blood stained cloth. In Exhibit ‘F’ Appellant admitted purchasing the pistols together with the Co-Accused and cartridges with which they shot and killed the deceased and robbed him of his vehicle, the particulars of which were later recovered from the house of the Co-Accused.

    There is also the testimony of P.W. 3 as regards the polythene bag and its content and how he took it to the bush and gave them to Appellant where they were engaged in sawing timber. Exhibit ‘F’ also contains details of the events of that day and after, which only a participant I the crime would have known and recounted.

    Finally on this issue, it is settled law that the Supreme Court does not make a practice of interfering with concurrent finding of facts by the lower courts except  special circumstances such as where the findings is not supported by evidence on record or is otherwise perverse, etc . see Hausa v State (1994) 6 NWLR (pt. 350) 281 at 309, etc.