DAVID OJEABUO v. FEDERAL REPUBLIC OF NIGERIA (2014)

DAVID OJEABUO v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/6791(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of January, 2014

CA/K/87/C/2011

RATIO

WHETHER MINOR CONTRADICTIONS IN THE EVIDENCE OF A WITNESS WOULD AFFECT THE CREDIBILITY OF A WITNESS

it is settled law that contradiction in the evidence of a witness that would be fatal must relate to material facts and be substantial. It must deal with the real substance of a case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial- Osetola Vs State (2012) 17 NWLR (Pt 1329) 251, Osung vs State (2012) 18 NWLR (Pt 1332) 256, Famakinwa vs State (2013) 7 NWLR (Pt 1354) 597, Musa Vs State (2013) 9 NWLR (Pt 1359) 214 and Iregu Vs State (2013) 12 NWLR (Pt 1367) 92. In Theophilus Vs The State (1996) 1 NWLR (Pt.423) 139, the Supreme Court at 155 A-B put the point thus:

“…It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

WORDS AND PHRASES: CONTRADICTIONS

DISTINCTION BETWEEN PROOF BEYOND REASONABLE DOUBT AND PROOF BEYOND ALL IOTA OF DOUBT

It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. It simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt.1324) 119, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Ajayi Vs State (2013) 9 NWLR (Pt 1360) 589. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB A.O. ABIRU Justice of The Court of Appeal of Nigeria

Between

DAVID OJEABUO Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Kaduna in Suit No FHC/KD/33C/2009 and delivered by Honorable Justice M.L. Shuaibu on the 30th of June, 2010. The Appellant, along with one Chinedu Ugwu, was arraigned before the lower Court on a three count charge of, without lawful authority, trafficking/transporting, aiding one Mr. Obinna to deal in and being in possession of 648 kilogrammes of cannabis sativa, otherwise known as Indian hemp, a narcotic drug contrary to the provisions of Sections 11(b), 14(b) and 19 of the Nigeria Drug Law Enforcement Agency Act of 2004.

The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial and during which the Respondent, as the prosecution, called three witnesses and tendered several exhibits, inclusive of the confessional statements of two accused persons, while the Appellant and his co-accused testified in their defence. At the conclusion of the trial and, after the written addresses of Counsel, the lower Court found the Appellant and his co-accused guilty as charged and sentenced the Appellant to five years on the first count and fifteen years each on the second and third counts with a directive that the sentences are to run concurrently. The Appellant was dissatisfied with the judgment of the lower Court and he filed a notice of appeal dated the 23rd of July, 2010 against it. The notice of appeal contained five grounds of appeal.

In agitating the complaints of the Appellant against the judgment of the lower Court in this appeal, Counsel to the Appellant presented a brief of arguments dated the 6th of April, 2011 and filed on the 7th of April, 2011 and it consisted of twelve pages. In response, the Respondent filed a brief of arguments dated the 4th of March, 2013 and this was sequel to an order of extension of time to file its brief of arguments made by this Court on the 26th of February, 2013. The brief of arguments consisted of eighteen pages. The Appellant filed a reply brief of three pages dated the 15th of March, 2013. Counsel to the parties relied on and adopted the contents of their respective briefs of arguments at the hearing of the appeal.

Counsel to the Appellant formulated a sole issue for determination in this appeal and it was:

Whether the learned trial Judge was right in convicting the Appellant on the three count charge basing his decision on the testimonies of the prosecution witnesses which was full of doubt and Exhibit C, the alleged confessional statement of the Appellant, without considering the evidence of the Appellant which was never contradicted or controverted by the Respondent?

In his response brief of arguments, Counsel to the Respondent formulated two issues for determination. These were:

i. Whether the Respondent discharged the burden of proof placed upon it in a criminal trial of this nature, i.e. proof beyond reasonable doubt, against the Appellant.

ii. Whether there were contradictions or inconsistencies in the evidence of the prosecution witnesses so as render them unsafe to convict the Appellant.

The two issues for determination formulated by the Counsel to the Respondent are basically the same as the singular issue for determination formulated by the Counsel to the Appellant; the difference being their respective approaches in presenting arguments on the complaints of the Appellant in this appeal.

Counsel to the Appellant prefaced his submission with the essential ingredients necessary to be established by the Respondent to ground and sustain the charges brought against the Appellant and he stated that the plea of Not Guilty entered by the Appellant placed a duty on the Respondent to prove all the said essential ingredients beyond reasonable doubt with such qualitative evidence that will leave the trial Court with the irresistible conclusion that the Appellant committed the offences for which he was charged. Counsel stated that the Respondent did not discharge the burden placed on it as the quality of the evidence it led was not up to par and that the witnesses were self serving in their evidence and contradicted themselves and Counsel then proceeded to highlight three main areas in the testimonies of the three prosecution witnesses which, he said, contained the contradictions.

Firstly, Counsel stated that all the three prosecution witnesses were emphatic in their testimonies, both in chief and under cross-examination, that it was twenty-eight bags of compressed Indian hemp that were recovered from the Appellant and his co-accused and that it was these twenty-eight bags that were handed over to the Exhibit Keeper, the third prosecution witness. Counsel stated that when the time came to tender the said recovered bags of compressed Indian hemp, the third prosecution witness stated that the recovered substances were in twenty-seven bags and he tendered the twenty-seven bags and they were admitted as exhibits, despite the objection of the Appellant thereto. Counsel stated that the decision of the lower Court to admit the recovered substances on the grounds that the emphasis in the charge was on weight of the substances and not on the number of bags and that the difference between twenty eight bags and twenty seven bags was trifling was not well grounded and Counsel stated that the contradiction was material in view of the fact that the Appellant denied carrying such substances.

Secondly, Counsel referred to the testimonies of the first and second prosecution witnesses on how the recovered substances were discovered in the vehicle driven by the Appellant. Counsel stated that while the first prosecution witness testified that the initial search of the vehicle did not yield anything and that it was on the second search that the substances were discovered, the second prosecution witness gave evidence that the substances were discovered concealed in the empty crates of drinks when he searched the vehicle the first time. Counsel stated that this was a material contradiction.

Thirdly, Counsel stated that there was a whole confusion in the testimonies of the prosecution witnesses, both at the trial and in the course of trial-within-trial, on the location where the statement of the Appellant, tendered as Exhibit C, was recorded; was it at Birni-Gwari or was it in Zaria, and that while the first prosecution witness suggested in his examination in chief in the main trial that the statement was recorded in Birni-Gwari, he testified in the course of trial within trial that the statement was recorded in Zaria. Counsel stated that from the testimonies of the prosecution witnesses, the recovered substances and the accused persons were transferred to Zaria after their arrest in Birni-Gwari and whereat the recovered substances were weighed and found to be 648 kilogrammes and this weight was reflected in the statement of the Appellant, Exhibit C. Counsel stated that the place where the statement of the Appellant was taken was of utmost importance in this matter because if it was in Birni-Gwari and by which time the weight of the recovered substances was not known, then the insertion of the weight of the substances in the statement raises the issue of whether the statement tendered was indeed the statement made by the Appellant.

Counsel stated that the Appellant had stated in his testimony that the statement tendered as Exhibit C was not the statement he made and that he made his statement in his own handwriting in Birni-Gwari and signed it at the end and that the officer before whom he made the statement did not follow them to Zaria and that it was not the second prosecution witness that obtained his statement but another officer. Counsel stated that the Appellant was emphatic that he did not make Exhibit C and that the signature thereon was not his own and was different from his signature on his driver’s licence, which was part of the items admitted as Exhibit F, and that these testimonies of the Appellant were not challenged by cross-examination. Counsel urged this Court, on the authority of Mamman Vs Dambe (2002) FWLR (Pt 86) 428, to compare the signature of the Appellant on Exhibit C with his signature on his driver’s licence, part of Exhibit F, and to hold therefrom that, in the circumstances of this case, a doubt has been created warranting the discharge of the Appellant as such doubt should be resolved in his favour and he referred to Okonji Vs State (1987) NSCC 291. Counsel urged this Court to allow the appeal.

In response, Counsel to the Respondent prefaced his arguments with the statement that it is the primary responsibility of the prosecution to prove the case against an accused person beyond reasonable doubt and he referred to the provisions of Sections 135 and 139 of the Evidence Act. Counsel thereafter enumerated the essential ingredients of the charge against the Appellant and he traversed through the oral and documentary evidence led by the Respondent in the lower Court in proof of the charge against the Appellant and he tied the different aspects of the evidence of the prosecution witnesses to the essential ingredients of the charge against the Appellant and the requirements of the law and concluded that the Respondent led credible and cogent evidence to establish the offences with which the Appellant was charged.

On the issue of contradictions in the testimonies of the prosecution witnesses raised and argued by the Appellant, Counsel to the Respondent stated that there were no contradictions in the testimonies to make them unsafe to convict the Appellant. Counsel stated that for contradiction in the evidence of the prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradiction of inconsistencies must relate to the material ingredients of the offence charged and that it is not every inaccuracy in the testimonies of witnesses that will render such testimonies unreliable; he referred to the cases of Igabeli vs State (2005) 4 QCCR 77 and Ikemson vs State (1989) 3 NWLR (Pt 110) 455, amongst others. Counsel referred to the alleged contradiction in the number of the bags of the recovered substances between twenty-seven bags and twenty-eight bags and stated that it did not derogate from the weight of the substances said to have been found in the possession of the Appellant and his co-accused and that the Appellant and his co-accused were arrested with the substances.

On the alleged contradiction in the testimonies of the first and second prosecution witness on whether the said recovered substances were discovered in the vehicle driven by the Appellant on the initial search or subsequent search, Counsel traversed through the testimonies of the two witnesses on the issue and stated that they were consistent and not in conflict at all. On the alleged contradiction on the location of where the statement of the Appellant was obtained, Counsel stated that the entire submission of the Appellant thereon were technical arguments and should be discountenanced and he referred to the case of Omoju Vs Federal Republic of Nigeria (2008) 4 SCLR (Pt 4) 63. Counsel stated that what was important was that the Appellant and his co-accused were arrested in possession of compressed dried weeds which, on being analysed, were found to be Cannabis Sativa with a gross weight of 648 kilogrammes and for which they had no lawful authority and any alleged contradictions of inconsistencies in the testimonies of the prosecution witnesses were not material to the charge against the Appellant. Counsel urged this Court to dismiss the appeal.

As stated earlier, the Appellant was charged with trafficking/transporting, aiding one Mr. Obinna to deal in and being in possession of 648 kilogrammes of cannabis sativa, otherwise known as Indian hemp, without lawful authority contrary to the provisions of Sections 11(b), 14(b) and 19 of the Nigeria Drug Law Enforcement Agency Act of 2004. To sustain this charge, the Respondent was obligated to establish the following essential elements by credible evidence beyond reasonable doubt :- (i) that the Appellant knowingly transported and aided one Mr. Obinna to deal in and was found in possession of cannabis sativa, otherwise known as Indian hemp, with the knowledge that the Indian hemp was in his possession; (ii) that the Appellant had no lawful authority to transport, deal in or to be in possession of the Indian hemp; (iii) that the doing of the above constitute an offence; (iv) that what was transported and found in possession of the Appellant was scientifically examined and found to be Indian hemp; and (v) that there was no break in the chain of handling the said Indian hemp.

Now, it is trite that an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31. And that the only known and legitimate way or method of laying a complaint before a higher court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. The notice of appeal, just like pleadings, is binding on the parties and the Court – Federal Airport Authority of Nigeria vs Greenstone Ltd (2009) 10 NWLR (Pt.1150) 624.

This present appeal is predicated on a notice of appeal of the Appellant dated the 23rd of July, 2010.This notice of appeal is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated – Uwazurike vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt.1050) 1 and First Bank of Nigeria Plc vs Maiwada (2013) 5 NWLR (Pt.1348) 444. This Court is only empowered to review the judgment of the lower Court on the basis of the grounds of appeal and the issues legitimately distilled there from, and on no other basis.

The basis upon which the Appellant has challenged the judgment of the lower Court in this appeal is that the lower Court was wrong to have convicted the Appellant on the evidence led by the Respondent as the evidence of the prosecution witnesses were contradictory and inconsistent in three main areas: (i) on the number of the bags of the compressed Indian hemp said to have been recovered from the Appellant and his co-accused; (ii) the number of searches conducted to recover the said substances and (iii) the location where the statement of the Appellant was taken and recorded. The issue of these contradictions and inconsistencies in the testimonies of the prosecution witnesses were raised before the lower Court. The lower Court dealt with them thus:

“It is against the above background that the court will examine the contradictions alluded by the defence. First and foremost there is nothing on the statements of the accused person to show that same were recorded in Zaria not Birni Gwari. The evidence of PW1 and PW2 is in harmony with of the defence in that regards. Secondly, on the initial result of the search conducted by the prosecution witnesses which discloses no incriminating substance found in the V/Wagon vehicle driven by the accused persons vis-a-vis the subsequent discovery after discrete search. This court did not find any contradiction thereof and it is not material whether the discovery of the suspected substance was sequel to the first or second search conducted on the vehicle of the vehicle of the accused persons. . . . On the number of the bags recovered from the V/Wagon vehicle driven by the Accused persons the Prosecution witnesses (PW1 and PW2) gave the number as 28 which was also the exact number contained in the Accused persons extra judicial statement. However, the exhibit Keeper (PW3) told the court that 28 bags were brought to him but when counted it turns out to 27 bags and no explanation was proffered for the shortage….
In the instant case there is overwhelming evidence that the drugs substance was found in possession of the accused person and that they aided one Mr. Obinna in transporting same. Therefore, the failure of the Prosecution to proffer explanation of the shortage is of no significance.”

Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains – Bassey Vs State (2012) 12 NWLR (Pt 1314) 209, Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248 and Egwunmi Vs State (2013) 13 NWLR (Pt.1372) 525. Reading through the records of appeal, the testimony of the first prosecution witness, Alao Suleiman Dauda, an operative with the Nigerian Drug Law and Enforcement Agency, in his examination in chief before the lower Court on the number of searches conducted on the vehicle of the Appellant and his co-accused and the number of the bags of the substances discovered in the vehicle went thus:

“…I thereafter perceived Indian Hemp odour in the vehicle. I asked whether anyone of them smokes Indian Hemp to which they answered in the negative and that only the 2nd Accused smokes cigarette. I thereafter instructed my officers to search the vehicle which the officers did but found nothing. Upon my insistence, the 1st Accused said they have 10 kilograms in the vehicle and after shifting an empty crate it was found. I immediately arrested them and brought them to Birni-Gwari Area Command of NDLEA where exhibit was offloaded and counted to be 28 bags compressed….” (see page 55 of the records)

Under cross examination, the witness stated:

“We were three at the patrol when we arrested the Accused Persons. Yes, I peeped through the vehicle and saw empty crates but it was after thorough search that my colleague Mr. Evan Okegbe noticed the suspected substance. They discovered the compressed Indian Hemp concealed with empty crates….” (see page 63 of the records)

The second prosecution, Evan Okegbe, also an operative of the Nigerian Drug Law and Enforcement Agency, stated in examination in chief on the same issues thus:

“…On his stoppage, my colleague, PW1, asked what he was carrying to which he answered “empty crates” and I was invited to come over. I looked in and heard a smell of Indian Hemp and hence went into the vehicle where I saw Indian Hemp myself concealed in empty crates. We immediately took the Accused persons to our office in Birni Gwari. We carried out a random search and found out that it was 28 bags of compressed Indian Hemp. . . (see page 64 of the records)

Under cross-examination, the second prosecution witness stated:

“We were three officers on patrol namely: myself, PW1 and Olaleye Olushola who is the leader of the team. I searched the vehicle and I found Indian Hemp. I sensed the odour and the 1st Accused said he had only ten kilogrammes but I found more than that. It is not true that nothing was found in the vehicle because I found Indian Hemp inside the vehicle. At the point of arrest, we perceived the odour and we carried them to our office where we discovered the compressed 28 bags. …” (See page 65 of the records)

On the issue of the number of bags of Indian Hemp recovered from the Appellant and his co-accused, the third prosecution witness, the Exhibit Keeper of the Nigerian Drug Law and Enforcement Agency, Kabir Nuhu, stated in his examination in chief thus:

“…The bags of suspected Indian Hemp were 28 bags. I took the sample of the suspected Indian Hemp and field-tested it using United Nations Testing kits and it proved positive of Indian Hemp. I weighed the substances and it weighed 648 kilogramme….” (see page 67 of the records)

Under cross-examination, the witnesses said:

“Yes, twenty-eight bags of the recovered Indian Hemp were handed over to me at Zaria. . . .” (see page 71 of the records)

It was at the point of tendering the bags of recovered substances that only twenty seven bags were produced by the third prosecution witness. It is clear that the testimonies of the first and second prosecution witnesses on the search conducted on the vehicle of the Appellant and his co-accused to discover the recovered substances were not in conflict with each other and they were not inconsistent. They were consistent and said the same thing in essence. Also, the testimonies of the three prosecution witnesses on the quantity of the recovered substances were the same; that it was twenty eight bags of compressed Indian Hemp. The only anomaly was that twenty seven bags of Indian Hemp were produced and tendered at the trial by the third prosecution witness, instead of the twenty eight bags. This did not amount to an inconsistency or a contradiction in the testimonies of the three prosecution witnesses on the number of recovered bags of Indian Hemp. What the Appellant ought to have done was to have demanded an explanation from the third prosecution witness on the shortfall, but strangely, the Counsel to the Appellant did not cross-examine the witness on the issue at the trial.

Going forward and even assuming that there were inconsistencies in the testimonies of the witnesses on the search and number of bags of compressed Indian Hemp recovered, it is settled law that contradiction in the evidence of a witness that would be fatal must relate to material facts and be substantial. It must deal with the real substance of a case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial- Osetola Vs State (2012) 17 NWLR (Pt 1329) 251, Osung vs State (2012) 18 NWLR (Pt 1332) 256, Famakinwa vs State (2013) 7 NWLR (Pt 1354) 597, Musa Vs State (2013) 9 NWLR (Pt 1359) 214 and Iregu Vs State (2013) 12 NWLR (Pt 1367) 92. In Theophilus Vs The State (1996) 1 NWLR (Pt.423) 139, the Supreme Court at 155 A-B put the point thus:
“…It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom.”
This point was reiterated by Rhodes-Viviour, JSC in Egwunmi Vs State (2013) 13 NWLR (Pt.1372) 525, a matter on culpable homicide, at page 555 D-F thus:
“When two or more persons are called as witnesses to say what they saw on a particular day there are bound to be discrepancies in their testimonies. The court is only concerned with testimony on material facts and not peripherals that have no bearing on the substance in issue.
The material facts in this case are: (i) when was Alhaji Umoru Bamayi killed; (ii) how was he killed; (iii) who killed him. It is only if there are contradictions in the testimony of the prosecution witnesses on the above that grave doubt would be cast on the prosecution’s case.”

In the instant case, the material facts are (i) did the Appellant knowingly transport or aid in the transportation of, and was he found in possession of, Indian hemp, with the knowledge that the Indian hemp was in his possession; (ii) did the Appellant have lawful authority to transport or to be in possession of the Indian hemp; and (iii) was what was transported by and found in possession of the Appellant scientifically examined and found to be Indian hemp. Clearly, the alleged contradictions or inconsistencies, if any, on the number of searches conducted to discover the Indian Hemp and on the number of bags of Indian Hemp discovered did not touch on the material facts in this matter. Thus, if indeed they existed, they are but trifling and trivial inconsistencies that had no bearing on the case of the Respondent before the lower Court.

On the issue of the location of where the statement of the Appellant was recorded, the entire case of the Appellant and the submissions of his Counsel thereon, and on the question of the signature of the Appellant and on how the statement was taken and on the officer who took the statement, were aimed at one thing; to support the assertion of the Appellant that he did not make the confessional statement tendered as Exhibit C at the trial. It is settled law that a confessional statement does not become inadmissible merely because an accused defendant denies having made it. The denial of a statement made by an accused defendant to the police is only an issue of fact to be decided in the judgment and it is not an issue which affects admissibility of the statement – Akpa Vs State (2008) 14 NWLR (Pt 1106) 72, Sule Vs State (2009) 17 NWLR (Pt 1169) 33, Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1 and Galadima Vs State (2012) 18 NWLR (Pt 1333) 610. What is required is that before the court would believe and act on such a retracted confession it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu Vs State (2009) 1 NWLR (Pt 1123) 523. Kabiru Vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State supra and Galadima Vs State supra.

Reading through the judgment of the lower Court in this case, it is obvious that the learned trial Judge clearly understood the need to subject the confessional statement of the Appellant, Exhibit C, to the above tests in view of its retraction by the Appellant and that after reiterating the tests, as stated above, the lower Court said thus:

“Applying the above guidelines to the case at hand particularly the evidence as to the existence of Mr. Obinna in the picture which essentially are facts ordinarily known to the Accused persons makes the offence(s) charged possible. Also linking the facts that both the vehicle in question and the goods being conveyed belonged to Mr. Obinna as shown in the evidence of the Accused persons makes their statements in exhibits B and C true. Also being the only occupants of the said vehicle provided opportunity for the accused persons to commit the offences charged. Thus the Accused persons extra judicial statements were aptly corroborated by both the evidence of the prosecution witnesses as well as the evidence of the 2nd Accused as DW1. The extra judicial statements are consistent with other facts which have been proved. It is my respectful view that the confessional statement passes these tests satisfactorily…” (see page 96 of the records)

The lower Court had earlier found in the judgment that the Appellant and his co-accused were affected while transporting the said Indian Hemp in a Volkswagen vehicle with registration No XV 173 ABC, tendered as part of Exhibit F at the trial, on the Birni Gwari – Lagos Expressway and that it was clear that the vehicle in question belonged to a Mr. Obinna as borne out by the evidence of the defence. None of these findings and the findings that the confessional statement of the Appellant, Exhibit C, passed the required tests to make the lower Court believe its contents and make use of it were not appealed against and/or contended by the Appellant on this appeal. It is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties – Amale Vs Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike vs Nwachukwu (2013) 3 NWLR (Pt.1342) 503, Nwaogu vs Atuma (2013) 11 NWLR (Pt 1364) 117. In effect, the findings of the lower Court that the confessional statement, Exhibit C, was made by the Appellant and that his retraction of same was an after-thought remain binding and conclusive between the parties on the issue. It cannot be re-examined by this court – Alakija vs Abdulai (1998) 6 NWLR (Pt 552) 1 and Opara Vs Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt.1002) 342.

Thus, the entire case of the Appellant and the submissions of his counsel on the location of where the statement of the Appellant was recorded and on the question of the signature of the Appellant and on how the statement was taken and the officer who took the statement being directed to support the assertion that the Appellant did not make the confessional statement, Exhibit C, really go to no issue in this appeal.

The Appellant has not given this Court any reason to tamper with the judgment of the lower Court. In conclusion therefore, this Court finds that this appeal is lacking in merit and it is hereby dismissed. The judgment of the Federal High Court sitting in Kaduna in Suit No FHC/KD/33C/2009 and delivered by Honorable Justice M L. Shuaibu on the 30th of June, 2010 convicting the Appellant for the offences charged and sentencing him there for is hereby affirmed. These shall be the orders of this Court.

DALHATU ADAMU, J.C.A.: I have read the draft of the judgment of my learned brother H,A.O. Abiru, JCA in this appeal. I agree with his reasons and the conclusion he arrived at. I also feel that the appeal is lacking in merit and should be dismissed. I hereby also dismiss it and affirm the judgment of the Federal High Court Kaduna convicting the appellant for the offence charged and sentencing him accordingly as charged.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: My learned brother, Abiru, J.C.A., has critically dealt with the issues presented by the parties in this proceeding. I am in complete agreement with him that this appeal is devoid of merit and should be dismissed. Accordingly, this appeal is dismissed by me and the judgment of the lower Court is hereby affirmed.

Appearances

Olugbenga OgunniranFor Appellant

AND

Ibrahim Dangam, Chief Legal Officer, NDLEAFor Respondent