ABDULLAHI v. STATE
(2022)LCN/15950(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/K/379/C/2017
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
SANI ABDULLAHI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT ALONE
Earlier, in the case of Adamu Saliu v. The State (2014) 12 NWLR (Pt. 1420) 65 at 84–85, Onnoghen JSC (as he then was) said as much that “Not only is it trite law that an accused person can be validly convicted on his confessional statement alone, the Courts however state that the trial Court, in the circumstance of a retraction by the accused, should direct itself on the requirement of looking for other evidence outside the confessional statement ……….which would corroborate and show that the confession is true.” PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Katsina State High Court delivered on 27/2/2017 by Honourable Justice I.B. Ahmed. The Appellant was tried along as 2nd accused with one Lawal Garba before the lower Court on a 3 count charge of culpable homicide punishable with death and armed robbery under Section 221 of the Penal Code and Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap Rule 11, Laws of the Federation of Nigeria, 2004.
The Respondent (Prosecution) alleged that on 13th March 2012, the Appellant, his co-accused and another killed one Mallam Maisamari Maigadi and Usman Maigadi at Magamar Jibia, and on the 2nd day of March 2012, they beat a night watchman and broke into the shop of one Adda’u Ismail at Magamar Jibia and took away valuable properties which included wrappers of different types, shadda, bags and boxes all valued at the sum of N500,000.
At the trial, eight (8) witnesses testified for the Respondent (Prosecution) and fourteen (14) exhibits were tendered and admitted.
The Appellant testified in his own defence. At the end of the trial, the learned trial Judge found the Appellant and his co-accused guilty as charged, convicted and sentenced them to death by hanging.
In coming to his conclusion, the learned trial Judge realized that there was no eye witness account or circumstantial evidence linking the Appellant to the crimes charged but nevertheless convicted the Appellant on his retracted confessional statements Exhibits 12A and 12B, 13A and 13B and 14A and 14B.
Dissatisfied with the judgment, the Appellant at first filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 25/05/2017. However, Appellant filed his extant Further Amended Notice of Appeal on 16/06/2021 while the same was deemed filed on 24/11/2021.
Learned counsel for the Appellant nominated two (2) issues for the determination of the appeal. They are:
“(1) Whether the trial Court properly evaluated the retracted and uncorroborated confessional statements of the Appellant before relying on them to convict the Appellant for the offences of culpable homicide punishable with death and armed robbery. Distilled from Grounds 2 and 3 of the Further Amended Notice of Appeal.
(2) Whether the prosecution’s evidence was sufficient in law, credible enough and properly relied upon by the trial Court to warrant the Appellant’s conviction for the offences of culpable homicide punishable with death and armed robbery. Distilled from Grounds 1 and 4 of the Further Amended Notice of Appeal.”
Learned counsel for the Respondent adopted the issues nominated by the Appellant for determination of the appeal.
I have carefully studied the issues nominated by the parties alongside with the processes filed in this appeal and I am convinced that a sole issue as below will be sufficient to deal with the appeal. It is:
“Whether the Appellant was rightly convicted of the offences charged in all the circumstances of the case.”
On the said sole issue, learned counsel for the Appellant reminded us that the central issue in this appeal borders on the probative value to be attached to a retracted confessional statement. He submitted that when Exhibits 12A–14B, the confessional statements allegedly made at the State CID in Katsina were to be tendered in evidence by the prosecution, the Defence counsel at the trial Court objected to their admissibility on the ground that the confessional statements made by the Appellant were not signed by him. That in spite of the objection, the learned trial Judge nevertheless admitted the statements on the basis that the question of weight to be attached to them will be determined at a later stage. However, that in spite of admission by the trial Court that there is no direct or eye witness account or circumstantial evidence of the offences for which the Appellant was standing trial, the trial Court proceeded to rely on the retracted confessional statements to convict the Appellant without any other corroborative evidence.
He submitted that where an accused person retracts his confessional statement, a trial Court must be wary of convicting on the same without some other compelling corroborative evidence and also subjecting the confessional statement to intense and detailed scrutiny. Also, any corroborative evidence must be consistent with the confessional statement in order to sustain a conviction.
On this, Appellant’s counsel referred to the cases of R. v. Sykes 18 CR APP R. 233, Friday Uzim v. The State (2019) LPELR–48983 (SC), Uwa v. The State (2015) 4 NWLR (Pt. 1450) 438 at 457–458.
He reiterated the tests established in the aforementioned cases beginning from the judgment of Kidley J. in R. v. Sykes (supra) as:
– Is there anything outside the confession, which shows that it may be true?
– Is it corroborated in any way?
– Are the relevant statements of fact made in it most likely true as far as they can be tested?
– Did the accused have an opportunity to commit the offence?
– Is the confession possible?
– Is the confession consistent with other facts, which have been ascertained and established?
On item (1), learned counsel for the Appellant submitted that the Exhibits 7A and 7B, the statement the Appellant did not object to that were made at the Jibia Divisional Police headquarters was clear and unequivocal that the Appellant did not kill or participate in the killing of the deceased watchmen and the armed robbery he was charged for.
That the Appellant did not say anything in Exhibits 7A and 7B with regard to the charge of armed robbery. With respect to the charge of culpable homicide punishable with death, the Appellant stated in the Exhibit that “I don’t know about the killing of the watchmen and two other watchmen in Jibia town. I don’t know the people that killed them.”
He submitted that the other confessional statements where the Appellant allegedly made a volte face, were denied and without any credible evidence outside the said confessions as admitted by the trial Court, to form a basis for convicting the Appellant.
On item (2) learned counsel for the Appellant submitted that there was no eye-witness, direct account or circumstantial evidence, indeed nothing to corroborate the retracted confessional statements.
He added that the co-accused, Lawal Garba, had also during the trial, raised no objection to the statements he made at the Jibia Divisional Police headquarters (i.e Exhibits 5A–6B).
He however denied the statements said to have been made at the State CID (i.e Exhibits 8A–11B). He noted that the unchallenged statements do not implicate the Appellant.
On item (3), learned counsel for the Appellant submitted that the statements of fact made in the retracted statements are most likely untrue. He reasoned that apart from the fact that the retracted confessional statements purportedly carry signatures instead of the Appellant’s thumbprint as can be seen on the unchallenged statements, that even the contents of the retracted confessional statements as they relate to the charge before the Court smack of untruths. They contradict the unchallenged statement of the Appellant that was made at the police station. Further, that whereas Exhibit 12B mentions four assailants. Exhibits 13B and 14B mention only three assailants. That these retracted confessional statements were allegedly made in a span of five days (28th March–2nd April 2012). That if they were indeed made by the Appellant, the details would not be changing in that short timeline.
On item (4), learned counsel for the Appellant insisted that the Appellant did not have the opportunity to commit the offences.
He submitted that the only evidence left outside the retracted confessional statements and the unsubstantiated testimonies of the Respondent’s prosecution’s witnesses are the unchallenged statements of the Appellant (Exhibits 7A and 7B) and the unchallenged statements of his co-accused, Exhibits 5A–11B. None of these statements state that the Appellant committed any of the offences he was charged with.
On items (5) and (6), learned counsel for the Appellant submitted that the evidence is clear that the confessions in the retracted confessional statements could not have been possible especially when considered that the Appellant denied signing them. He submitted further that the trial Court failed to avert its mind to the contradictions in the oral testimonies of PW7 and PW8 regarding the four different statements obtained from the Appellant at the Jibia station and State CID respectively, and the actual contents of the confessional statements. That from the testimonies of PW1–PW6, it is crystal clear that the police had arrested and painted the Appellant as the offender before PW7 and PW8 subsequently obtained and recorded the alleged confessional statements. And, that, when the statements made before PW7 did not implicate the Appellant, the police apparently had to concoct the ones allegedly taken at the State CID.
He added that the trial Court throughout its entire evaluation of the oral testimonies in the proceedings, failed and neglected to appraise or evaluate the contents of the extra-judicial statements in the entire judgment as contained on pages 56–79 of the Record of Appeal to determine the weight to attach to the alleged confession.
In relation to the offence of culpable homicide punishable with death, Appellant’s counsel submitted that apart from the fact of death, the prosecution did not prove the other ingredients required in law to ground conviction for the offence. There was no iota of evidence linking the Appellant to the death of the deceased persons either expressly or remotely.
He submitted that going through the entire gamut of the evidence led by the prosecution, particularly PW2’s, who happens to be the night watchman on duty on the night of the incidence, there is absolutely nothing that implicates the Appellant with any of the offences.
He also submitted that the law is settled that before an accused could be convicted for the offence of armed robbery, the prosecution must prove not only the commission of robbery by the accused, but that the accused was armed with firearms.
That there is nothing in the testimony of PW1 and PW2 to suggest that the Appellant was the culprit. All of the Respondent’s prosecution’s evidence was merely based on conjectures and suspicion.
Learned counsel for the Appellant, concluded that the trial Court’s reliance on the extra judicial statements of the Appellant which he denied ever making or signing occasioned miscarriage of justice to the Appellant, more so that the trial Court did not evaluate or examine the alleged confessional statements with a view to properly determine the weight to attach to them in light of the contradictory evidences of the prosecution’s witnesses, its uncorroborated contents and the unlikelihood of the Appellant making such a confession.
He urges us to resolve the issue in favour of the Appellant.
On the said sole issue, learned counsel for the Respondent submitted that corroboration is not necessary where a voluntary confession is direct and positive. That Exhibits 12, 13 and 14 were sufficient to warrant conviction of the Appellant the retraction notwithstanding.
He referred to the cases of Sale v. State (2020) 1 NWLR (Pt. 1705) 205 at 231, Mohammed v. State (2019) 6 NWLR (1668) 203 at 222–223, Sunday v. State (2018) 1 NWLR (Pt. 1600) 251 at 277–278, Adisa v. State (2019) 3 NWLR (Pt. 1660) 488 at 497, Musa v. State (2019) 4 NWLR (Pt. 1662) 335 at 349.
Learned counsel for the Respondent submitted that the trial Court was bound to admit the retracted statements of the Appellant and determine the weight to be attached to same in its judgment.
He referred to the cases of Onitilo v. State (2018) 2 NWLR (Pt. 1603) 239 at 259, Dibia v. State (2017) 2 SCNJ 100 at 131.
On the contention of the Appellant’s counsel that there was no credible evidence outside the retracted confessional statements to convict the Appellant, learned counsel for the Respondent referred to the evidence of PW1 to the effect that his shop was broken and his goods were carted away. He added that the failure to cross-examine PW1 was an acceptance of the truth of the evidence of the witness.
Also, that the confessional statements of the Appellant’s co-accused, Lawal Garba provide sufficient corroboration to Appellant’s Exhibits 12 –14. He posited that where evidence incriminating an accused person is from a co-accused, the Court is at liberty to rely on same.
He referred to the cases of Saliu v. State (2014) 14 NWLR (Pt. 1420) 65 at 85, Okiemute v. State (2016) LPELR–40639 (SC), Asimi v. State (2016) 12 NWLR (Pt. 1527) 414 at 435.
He submitted that the evidence of PW1 and Exhibits 1, 2, 3, 4, 8, 9, 10 and 11 corroborated the Appellant’s statements in Exhibits 12–14.
He regarded the Appellant’s evidence as unreliable for being inconsistent with his extra-judicial statements. He referred to the case of Ishaya v. State (2019) 4 NWLR (Pt. 1661) 76 at 90, Agu v. State (2017) 10 NWLR (Pt. 1573) 171 at 203. For the proposition that “where any witness, including an accused, made an extra-judicial statement that is inconsistent with his sworn testimony on oath in trial Court and gives no reasonable explanation for the inconsistencies, the only option to the trial Court is to regard his evidence as unreliable.”
He submitted that the Appellant’s confessional statements are not likely untrue merely because in Exhibit 12, he allegedly mentioned four assailants while in Exhibits 13 and 14, only three assailants were mentioned.
He reasoned that the numbers of assailants are not material as it was not an issue in the Court below.
Still on confessional statements, learned counsel for the Respondent referred to the case of Adeyemi v. State (2014) 13 NWLR (Pt. 1423) 132 at 162 and insisted that “identification is not necessary where the accused person in his confessional statement identified himself.”
He concluded that the Respondent proved its case against the Appellant beyond reasonable doubt.
In his Reply brief, learned counsel for the Appellant attended to almost all the issues raised in the Respondent’s brief of argument. For example, on the contention by the Respondent’s counsel that PW1 was not cross-examined, learned counsel for the Appellant reminded us that not every witness must be cross-examined. That PW1’s testimony may have established that he was robbed but does not place the Appellant as one of the robbers. He referred to the case of Consolidated Breweries Plc v. Aisowieren (2001) 15 NWLR (Pt. 736) 424 at 458– 459.
He submitted that there was no useful purpose for cross-examining PW1 whose testimony does not point to the Appellant as a culprit.
On suggestion by the learned counsel for the Respondent that Exhibits 12–14 by the Appellant are corroborated by Exhibits 8A–11B by the co-accused, Appellant’s counsel submitted first that the assertion at paragraphs 4.10 and 4.11 of the Respondent’s brief of argument that the Appellant’s co-accused, Lawal Garba adopted the confession of the Appellant is incorrect and not supported by the records.
Secondly, that the evidence of an accused person is no evidence against his co-accused who has not adopted it. He referred on this to the cases of State v. Gwangwan (2015) 13 NWLR (Pt. 1477) 600 at 625, Ajaegbo v. State (2018) 11 NWLR (Pt. 1631) 484.
On the discrepancies in Exhibits 12, 13 and 14, Appellant’s counsel submitted that if indeed the Appellant made the statements in Exhibits 12, 13 and 14, it is inconceivable that he would not remember the number of other persons he allegedly committed the crimes with. The element of participation with others was key to the offences charged, therefore, the number of other persons is very material.
Learned counsel for the Appellant insisted that while the statements in Exhibits 12–14 could not likely be true, the Appellant’s oral testimony is consistent with Exhibits 7A and 7B where Appellant denied involvement in the offences charged.
He concluded that the dictum in the case of Ishaya v. The State (2019) 4 NWLR (Pt. 1661) 76 cited at paragraph 4.17 of the Respondent’s brief is inapplicable to the facts of this case. He reasoned that the Court can only regard an accused person’s testimony as unreliable for being inconsistent with his extra judicial statement that he does not challenge. That here, the Appellant’s testimony is consistent with the statements he accepts.
Any inconsistency with the retracted statements is the mere reason why the trial Court ought to have been wary before relying on the same to convict the Appellant. Thus, said counsel, it is in fact the retracted extra judicial statements (Exhibits 12A–14B) that are unreliable.
Resolution of the Sole Issue
In determining the sole issue in this appeal, it is important to further reflect on the reasoning of the trial Court, the ratio decidendi which brought about the conviction of the Appellant – so as to limit the parameters of the content of the appeal.
The learned trial Judge at page 75 of records, indeed remarked that:
“As in the case of the first two counts, there was equally no direct or circumstantial evidence in proof of the third ingredient of this offence except that there was an armed robbery in which the night watchman of the shop of PW2 was attacked, injured with the arms and valuable goods carted away from the shop.
In this case PW2 was attacked by armed men, saw the arms with which he was attacked and injured but did not know who were the attackers.
In the circumstance the Court has to again fall back on the accused person’s confessional statement earlier cited and relied upon in proof of the third and final ingredient of the offence in the 3rd count of armed robbery.
The confessional statements of the accused persons being direct, unequivocal and positive are sufficient to prove the offence of armed robbery just as it was sufficient to warrant the conviction of the accused persons even without corroboration. See the case of Solola v. The State (2005) 5 NWLR (Pt. 937) 460 at 488.”
In the instant case, the learned trial Judge convicted the Appellant solely on the basis of the Appellant’s confessional statements Exhibits 12–14, fully conscious of the fact that the statements were in no way corroborated but took refuge in a misstatement of the law as regards retracted confessional statements as disclosed from the facts of the case.
By the above, the attempt in this appeal by the learned counsel for the Respondent that Exhibits 12–14 are corroborated by the evidence of PW1 or PW2 or Exhibits 8A–11B are unfounded conjectures which bear no relevance to the judgment of the trial Court or the record of Appeal. Apart from the fact that neither the evidence of PW1 nor Exhibits 8A–11B would have provided corroboration to Exhibits 12–14, the only question in this appeal is whether the trial Court was right to have convicted the Appellant on his retracted confessional statements Exhibits 12–14 without corroboration.
In speaking in favour of the trial Court’s decision, learned counsel for the Respondent referred to the case of Dukku Ishaya v. The State (2019) 4 NWLR (Pt. 1661) 76 at 90 for the proposition that;
“It is well settled that where any witness, including an accused made an extra-judicial statement that, is inconsistent with his sworn testimony on oath in Court, and gives no reasonable explanation for the inconsistencies, the only option open to the Court is to regard his evidence as unreliable – Oladejo v. State (1987) 3 NWLR (Pt. 61) 419 …..”
Suffice to say that the above quoted portion of the decision in Ishaya’s case (supra) having derived its authority from the decision of the Supreme Court in Oladejo v. State (supra) is per incuriam.
The decision of the Supreme Court in the case of Kehinde Gbadamosi v. The State (2019) 4 NWLR (Pt. 1661) 29 at 50 confirmed that the full Court of the Supreme Court has retracted from the decisions in Oladejo v. State (supra) and Asanya v. The State (1991) 3 NWLR (Pt. 180) 422 in the case of Egboghomone v. State (1993) 7 NWLR (Pt. 306) 383.
In Gbadamosi’s case (supra) Aka’ahs JSC who read the lead judgment of the Supreme Court had this to say at page 90 of the law report:
“On a final note, I wish to stress that this Court in Egboghonome v. State (supra) by a majority decision overruled the decision in Oladejo’s case which was adopted in Asanya’s case and held that Oladejo’s case was reached per incuriam and the Court erred in law in adopting it in Asanya’s case. So the inconsistency rule is restrictive and does not extend to extra-judicial confession which is inconsistent with the accused’s evidence in Court. It only relates to the statement of an ordinary witness whose evidence in Court is inconsistent with his extra-judicial statement and where such occurs, the testimony is to be treated as unreliable and the witness could be cross-examined on the statement to show the unreliability of the witness.
In the case of an accused person, the Court will take the view that the accused has retracted from the confession and apply the veracity test to see if the confession is true and where it comes to the conclusion that the confession is true and there is evidence to corroborate the confession, the Court could proceed to convict the accused based on the confession…..”
In the light of the above decision of the Supreme Court, I make bold to say that whenever an accused person retracts his confession, the trial Judge is obliged not only to apply the veracity test to be sure that the confession is true or likely to be true but also within it look for corroborative evidence before convicting the accused person.
Earlier, in the case of Adamu Saliu v. The State (2014) 12 NWLR (Pt. 1420) 65 at 84–85, Onnoghen JSC (as he then was) said as much that “Not only is it trite law that an accused person can be validly convicted on his confessional statement alone, the Courts however state that the trial Court, in the circumstance of a retraction by the accused, should direct itself on the requirement of looking for other evidence outside the confessional statement ……….which would corroborate and show that the confession is true.”
In the instant case, the learned trial Judge was in error to have convicted solely on the Appellant’s retracted confessional statements, Exhibits 12-14 without applying the veracity test and without any corroborative evidence to suggest that the confession is true. This has occasioned a miscarriage of justice to the Appellant. For these reasons, the sole issue in this appeal is resolved in favour of the Appellant.
Having resolved the sole issue in this appeal in favour of the Appellant, the appeal is meritorious and it is allowed. In consequence, the judgment and conviction of the Appellant, Sani Abdullah, for the offences of culpable homicide punishable with death and armed robbery in suit No. KTH/22C/2013 are hereby set aside.
Instead I enter a verdict of acquittal and discharge for the Appellant Sani Abdullahi
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, MOJEED A. OWOADE, JCA and I entirely agree with his reasoning and conclusions, there is merit in the appeal. The Appellant was charged with the offence of culpable homicide punishable with death and armed robbery contrary to Sections 221 of the Penal Code and Section 1 (2) of the Robbery and Firearms (special provisions) Act, Cap R11 LFN, 2004. Pursuant to Sections 36(5) of the Constitution of the FRN 1999 (as amended) and 135(1) of the Evidence Act, 2011 the Appellant is presumed innocent until his guilt is proved beyond reasonable doubt.
Proof beyond reasonable doubt does not mean the degree of absolute certainty but a high degree of probability. It does not however require proof beyond the shadow of doubt.
The commission of a crime can be proved by any of the following three ways thus;
(1) By direct evidence/evidence of an eye witness
(b) By confessional statement of the accused or
(c) By circumstantial evidence
See State v. Gwangwan (2015) 63 NSCQR 1 Adeyemo v. State (2015) 62 NSCQR 176.
In this instant case in the absence of either direct evidence or circumstantial evidence recourse can be had to confessional statement. A free, voluntary and direct confession of guilt once it is satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence. But in such situation, the Court should test the truth thereof.
More particularly when an accused person resile from his statement that he never made the statement, it is a matter of fact to be resolved by the evidence before the Court. Where there is no evidence to test the veracity of the confessional statement, it would agitate the mind of the trial Judge by creating some doubt as to the truthfulness or otherwise of the confession. In such situation, the Court should resolve the doubt in favour of the accused. It is better to set one hundred guilty persons free than to convict one innocent person.
The learned trial Judge was in error to have convicted the Appellant solely on the retracted confessional statement without any corroborative evidence.
The appeal is allowed. I abide by the consequential order(s) in the lead judgment.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
D.D. KILLI, ESQ. For Appellant(s)
ABDULRAHMAN UMAR, DPP KATSINA STATE. For Respondent(s)