MOHAMMED v. STATE
(2020)LCN/14418(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, July 28, 2020
CA/G/11/C/2020
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
BABAN NANA ABUBAKAR MOHAMMED APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT A COUNSEL’S CONTROL OVER THE INSTRUCTIONS GIVEN BY HIS CLIENT MUST BE COMPLETE AND TOTAL OR NONE
A Counsel’s control over the instructions given by [his] client must be complete and total or none… A client, having engaged a Counsel to conduct his case, is bound by the client’s agreement however much he may disapprove of that course.”
Also in Adewunmi V Plastex (Nig) Ltd (1986) LPELR-164(SC) 28, F-G; Vol. 17 (1986) (Pt. II) NSCC 852, 861 & 863-864, per Eso, JSC, the Supreme Court authoritatively pronounced as follows:
“Once a Counsel appears in Court in a case and announces appearance, the Court assumes he has the authority of his client for the conduct the case… It is not for the Court to start an enquiry into his authority and the Court never does…, once he is so instructed, and his appearance and announcement in Court that he is so instructed, raises the presumption of his authority, he assumes full control of the conduct of his client’s case.”
In Cappa and D’Alberto Ltd V Akinitilo (2003) LPLER-829(SC) 15-16, B-E, Tobi, JSC added his imperial and authoritative voice to this important issue thus:
“The authority of Counsel at the trial extends to the action and all matters which are incidental to the action. Where the authority is not specifically limited by his client, as it is in this appeal, the sky, the Englishman says, becomes the limit, to the extent that he could within the Law, commit the client. After all, by the brief, he is clothed with some apparent authority he can use to the best advantage of his client by the application of his expertise and professionalism. Flowing from the above relationship, Counsel can, in the course of performing his professional duties, commit his client either by way of a specific undertaking or by clear admission.” PER SANKEY, J.C.A.
DUTY OF THE COUNSEL TO REPRESENT HIS CLIENT’S CASE
The general principle of law is that, subject always to the authority of a client to countermand the general authority of Counsel or to withdraw or amend his instruction during the course of proceedings or even to dismiss his Counsel, Counsel has full authority and control over the conduct of the case for which he is briefed, and to bind the client in the proceedings – Ogboru V Uduaghan (supra) 33-34, C, per Chukwuma-Eneh, JSC. There is however a duty on Counsel to present his client’s case with utmost diligence, skill and integrity. See also Zakirai V Muhammad (2017) LPELR-42349(SC) 12-13, E-C, per Augie, JSC; Abah V Monday (2015) 14 NWLR (Pt. 11) 569, 588, per Nweze, JSC; Makun V FUT, Minna (2011) 18 NWLR (Pt. 1278) 190, 235; Afegbai V AG Edo State (2001) LPELR-193(SC) 40-41, G-D, per Karibi-Whyte, JSC;Elike V Nwakwoala (1984) LPELR-1118(SC) 12-18, C, per Aniagolu, JSC. PER SANKEY, J.C.A.
MEANING OF “PROOF BEYOND REASONABLE DOUBT”
Instead, the law is that when the prosecution has attained such a degree of proof that leads only to the remote possibility in favour of the accused, the case is proved beyond reasonable doubt. In Miller V Minister of Pensions (1947) All ER 322, 373, Denny, J. (as he then was), warned that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt; and also that proof beyond reasonable doubt does not mean proof to a mathematical certainty. Were it to be so, then no case could ever be proved – Oyem V FRN (2019) LPELR-47392(SC) 15-16, B-E, per Onnoghen, CJN. PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is a sister Appeal to the following two (2) Appeals:
A. Appeal No. CA/G/71/C/2019, between Isah Usman V (1) The State, (2) Sadiq Hussaini and (3) Baban Nana Abubakar Mohammed; and
B. Appeal No. CA/G/72/C/2019, between Sadiq Hussaini V (1) The State, (2) Isah Usman and (3) Baban Nana Abubakar Mohammed.
The trio of the Appellant, Isah Usman and Sadiq Hussaini were charged before the High Court of Gombe State in Case No. GM/14C/2017 for the same offences in respect of the same incident. They were tried together before the same Court, represented by the same Counsel and, at the end of the trial, they were all found guilty as charged and sentenced to death. Dissatisfied with the Judgment, they all filed separate Appeals to this Court with identical grounds of Appeal. The Records of Appeal transmitted to this Court for the Appeals are the same. In addition, the issues crafted for determination by the parties are virtually the same, as well as the submissions of learned Counsel on both sides except for a few subtle differences in respect of the individuals. The differences in
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the three Appeals lie mainly in the names of the parties, the respective Appeal numbers and the fact that the confessional statements of the Appellant herein, Exhibits A1, B1, G and G1 in this Appeal, are Exhibits E, E1, H and H1 and A, B, F and F1 in the other two sister-Appeals.
This Appeal is against the Judgment of the High Court of Justice of Gombe State delivered on November 2, 2018 by Pindiga, J., wherein the Appellant, Baban Nana Abubakar Mohammed, was convicted on a three-count charge of criminal conspiracy contrary to Section 97 of the Penal Code, culpable homicide punishable with death contrary to Section 221 of the Penal Code and Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended). As a result, he was sentenced to death by hanging.
The facts leading to the Appeal are briefly as follows:
By an Amended Charge dated June 30, 2017 the Appellant was charged along with the 1st and 2nd accused persons, i.e. Isah Usman and Sadiq Husseini, with the following three counts of offences:
1) Criminal conspiracy to commit armed robbery and culpable homicide punishable with
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death contrary to Section 5(b) and punishable under Section 1(2) (b) of the Robbery and Firearms Special Provisions Act, 1990 (as amended) and Section 97 of the Penal Code;
2) Culpable homicide punishable with death contrary to Section 221 of the Penal Code; and
3) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended).
The substance of the allegations in the charge was that on June 24, 2016, the Appellant alongside the co-accused persons, conspired together and while armed with knives and cutlasses, robbed one Tijjani Mohammed of his Samsung handset and money to the tune of N1,800.00. They also stabbed him on his chest and stomach which ultimately led to his death. Upon being arraigned in Court, the Appellant pleaded not guilty to the charge. The case proceeded to trial and the prosecution, in proof of the charge, adduced evidence through seven (7) witnesses and thirteen (13) Exhibits. Some of the exhibits which were considered crucial are the medical report on the deceased – Exhibit C, the Hausa confessional statements of the Appellant and their English translations made first
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at the Pantami Police Division and subsequently at the State CID Gombe, NPF – Exhibits A1, B1, G and G1. In his defence, the Appellant and the co-accused persons testified for themselves and the 1st accused called one other witness, DW4.
On November 2, 2018 the learned trial Judge delivered his Judgment wherein he found the Appellant and his co-accused persons guilty of the offences charged, convicted and sentenced them to death by hanging. Dissatisfied, the Appellant filed his Notice of Appeal on January 9, 2019. This Appeal is however predicated on an Amended Notice of Appeal filed with the leave of this Court on 29-05-20 and deemed filed on 02-06-20, wherein he complained on 13 grounds.
At the hearing of the Appeal on June 25, 2020, Adedayo Adesina Esq. adopted the Appellant’s Brief of argument filed on 08-06-20 and settled by the same Counsel, Adedayo Adesina, Esq., in urging the Court to allow the Appeal. On his part, Zainab A. Rasheed Esq., the Solicitor-General of Gombe State Ministry of Justice, adopted the Respondent’s Brief of argument filed on 22-06-20 and settled by him, Zainab A. Rasheed Esq., in urging the Court to dismiss
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the Appeal and affirm the conviction and sentence passed on the Appellant. Both learned Counsel made brief submissions in adumbration of their respective Briefs of argument as contained in the Record of this Court.
The Appellant, in his Brief of argument, distilled three issues from his thirteen grounds of Appeal for the determination of the Court. They are as follows:
(i) “Whether the lower Court was right to have convicted the Appellant for the three counts of offences viz: (i) Criminal Conspiracy to Commit Armed Robbery and Culpable Homicide punishable with death contrary to Section 5(b) and punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) and Section 97 of the Penal Code; (ii) Culpable Homicide punishable with death contrary to Section 221 of the Penal Code; and (iii) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) based on the retracted confessional statements of the Appellant. (Grounds 1, 2, 4, 7, 9 and 11)
(ii) Whether having regards to the totality of the evidence placed before the trial Court and the
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position of the law, the 1st Respondent proved beyond reasonable doubt all the offences for which the Appellant was convicted by the lower Court. (Grounds 3, 5, 6, 10 and 12)
(iii) Whether the failure of the lower Court to properly evaluate the evidence adduced by the 1st Respondent (Prosecution) and the Appellant in his defence and make clear findings on same occasioned a miscarriage of justice against the Appellant. (Grounds 8 and 13)”
For the Respondent, two issues were framed for determination as follows:
1. “Whether the learned trial Court was right in law holding that the prosecution had proved its case beyond reasonable doubt against the Appellant for the offences of criminal conspiracy, armed robbery and culpable homicide punishable contrary to Sections 97 of the Penal Code, Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) and Section 221 of the Penal Code respectively. This issue relates to Grounds 1, 2, 3, 4, 5, 6, 7, 8, 10, 12 and 13.
2. Whether a conviction can be sustained on a free and voluntary confession of an accused person notwithstanding that he had retracted same. This
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issue related to grounds 5, 9, and 11.”
Of the two sets of issues submitted for determination by the parties, I adopt the issues framed by the Appellant, much as they a tad verbose. However, they essentially capture the issues arising from the Appellant’s complaints in his 13 Grounds of appeal. Issue 2 of the 1st Respondent comes within the ambit of issue 1 of the Appellant; while the 1st Respondent’s issue 1 fits snugly into the Appellant’s issues 2 and 3. I therefore adopt the Appellant’s issues in considering the Appeal. However, they shall be addressed in this order: issue one shall be taken first and alone, while issues two and three shall be taken together.
ARGUMENTS
Issue one – Whether the lower Court was right to have convicted the Appellant for the three counts of offences viz: (i) Criminal Conspiracy to Commit Armed Robbery and Culpable Homicide punishable with death contrary to Section 5(b) and punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) and Section 97 of the Penal Code; (ii) Culpable Homicide punishable with death contrary to Section 221 of the Penal Code
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and (iii) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) based on the retracted confessional statements of the Appellant. (Emphasis supplied)
The crux of the submission of learned Counsel for the Appellant under this issue is that, whereas the learned trial Judge relied only on the confessional statements of the Appellant, Exhibits A1, B1, G and G1, to convict the Appellant of the offences charged, the statements were subsequently retracted and their veracity was not tested in line with the decisions of the Court inEdhigere V State (1996) 8 NWLR (Pt. 464) 1, 10; Ogudo V State (2011) 18 NWLR (Pt. 1278) 1, 26; and Okoh V State (2014) 8 NWLR (Pt. 1410) 502, 526.
Counsel also contends that the confessional statements were worthless because the copies served on him along with the proofs of evidence before trial were unsigned, whereas those tendered and admitted in evidence as Exhibits A1, B1, G and G1 were duly signed – Omega Bank (Nig.) Plc V OBC Ltd (2005) 8 NWLR (Pt. 928) 547, 577; &Ogudo V State (supra) 30. Counsel therefore submits that the doubts created
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around the veracity and reliability of these confessional statements should be resolved in the Appellant’s favour and that it was unsafe for the lower Court to have ascribed weight and probative value to the statements and thereafter convicted him placing reliance on them -Nweze V State (2017) LPELR-42344(SC).
Counsel also takes up issues with the fact that the confessional statements were recorded in Hausa language and translated into English language by the same Police officer, PW5. He contends that this violated the Appellant’s constitutional right to fair hearing -Queen V Nnana Okoro (1960) NSCC 93, 94; State V Eze (1972) 2 ECSLR (Pt. 2) 7, per Araka, J. Consequently, he urged the Court to expunge the confessional statements or, in the alternative, not to attach any probative weight to them.
In response, learned Counsel for the Respondent submits that the Court can safely convict an accused person based on his retracted confessional statement. Such a retraction is merely a question of fact to be decided by the Court in its Judgment and so does not affect its admissibility. It can be acted upon by the Court once it is proved to be
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voluntary, positive and unequivocal regardless of the fact that the accused person resiles from it -Eboghonome V State (1993) 7 NWLR (Pt. 307) 383.
Counsel submits that the confessional statements of the Appellant, Exhibits A1, B1, G and G1, are positive, direct and properly proved. Therefore, it can ground a conviction even without any corroborative evidence so long as the Court is satisfied with the truth thereof. However, where it is retracted, there is a duty on the Court to test the truth of the confessional statement by examining it in the light of other credible pieces of evidence before it -Mohammed V State (2007) 11 NWLR (Pt. 1045) 303; Olabode V State (2011) 9 LRCNCC 49, 55; Sule v. State (2009) 7 LRCNCC 10, per Ogbuagbu, JSC.
Counsel submits that the confessional statements, married alongside the circumstantial evidence, directly and positively linked the Appellant with the death of the deceased and this is evident in the testimonies of PW1, PW2, PW3, PW4, PW5, PW6 and PW7. In addition, no objection having been raised at the point in which they were tendered, they are presumed to have made voluntarily – Milla V State (1985) 3 NWLR (Pt. 11)
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190; Idowu V State (2000) 12 NWLR (Pt. 680) 48; Ikemson V State (1989) 3 NWLR (Pt. 110) 455.
Counsel urged the Court to confirm the conviction and sentence of the Appellant based on the Appellant’s confessional statements and the circumstantial evidence presented -Agoala V State (1991) 2 NWLR (Pt. 17) 509; Obiasa V Queen (1962) 2 SCNLR 402.
RESOLUTION OF ISSUE ONE
In considering this issue, I have given close attention to the competing submissions of both learned Counsel and the authorities relied upon. Before addressing the specific issues raised, it is pertinent to state the baseline on the manner of proof of criminal cases in a Court of law. There are three modes of proof of criminal cases and they are as follows: (a) by the testimonies of eyewitnesses who witnessed the commission of the crime(s) by the accused person(s), which is referred to as direct proof; (b) through the confessional statement(s) voluntarily made by the accused person(s); and (c) through circumstantial evidence, which irresistibly points to the fact that the accused person(s), and no other, committed the offence(s), i.e. indirect proof – Emeka V State (2001) 6 SCNJ 267.
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A confessional statement can be defined as an admission by a person accused of committing a crime anywhere and at anytime, stating or suggesting the inference that he committed the crime – Section 28 of the Evidence Act, 2011. A free and voluntary confession of guilt by an accused person, provided it is direct, positive, unequivocal and it was made voluntarily, is sufficient to ground a conviction as a confession always remains the best proof of what he has done -Fabiyi V State (2015) 6-7 SC (Pt. I) 83; Dogo V State (2013) 2-3 SC (Pt. II) 75, 92-94; Osetola V State (2012) 6 SCNJ 321.
It is settled law, of which I am mindful, that before a Court convicts an accused person on his confessional statement alone, it must ascertain whether such a confessional statement was made voluntarily; and also that it was direct, positive and cogent; and it must also be consistent with other facts proved where it is retracted – Jimoh V State (2014) 10 NWLR (Pt. 1414) 105. In addition, the Supreme Court has, over the years, evolved some procedural requirements which a confessional statement must meet in order to be relied upon by trial Courts. Some of
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these requirements are as follows: (i) it must contain the words of caution; (ii) the words of caution must have been administered in the language understood by the accused person; (iii) the confessional statement must be duly signed/thumb-printed by the accused person; (iv) the statement should be recorded in the language understood by the accused person; and (v) the statement should have been read over and interpreted to its maker in the language in which it was recorded.
In the instant case, the complaint of the Appellant is that the trial Court convicted him on his confessional statements, Exhibits A1, B1, G and G1, which statements were unsigned and also retracted in Court. According to him, the trial Court relied solely on these confessional statements to convict him of the three offences of criminal conspiracy, culpable homicide punishable with death and armed robbery. It must first be emphasized that the confession of an accused person to the commission of an offence plays a vital role in the determination of his guilt. Therefore, a trial Court is empowered to convict an accused person on his confessional statement alone once it is convinced that
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the confession was voluntary.
In the instant case, the initial confessional statements of the Appellant and the 1st and 2nd accused persons made at Pantami Division Gombe State Police Command were tendered through PW5, the first Investigating Police Officer (IPO) Cpl. Isa Salestina. Even though Counsel for the Appellant and the other two accused persons denied that they (accused persons) made the statements, they were rightly received in evidence as Exhibits E, E1, F, F1 and G, G1 respectively, based on their relevance to the proceedings as there was no challenge to their voluntariness (page 102 of the Record). The documents were therefore certainly both relevant and admissible in evidence and could be acted upon by the trial Court without reservation. However, what was left was the weight to be attached to the documents at the close of trial. As an addendum, it is equally the law that even if the process of admission of such statements in evidence was irregular, (which is not the case in the instant Appeal), where no objection is raised at the point of tendering, such irregularity would be taken to have been waived and cannot be made the subject of a
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complaint on appeal.
After the investigations at Pantami Division of the Police Command, the case was transferred to the State CID Gombe State Command NPF. PW3, Cpl. Abdiel Arami, the second Investigating Police Officer (IPO), was assigned to investigate and receive the statement of the Appellant in respect of the allegations against him. Page 108 of the Record discloses that he diligently went through the laid down process for receiving a statement from a person accused of criminal offences. When the prosecution applied to tender the statement of the Appellant made to PW3 which was confessional in nature in evidence, Counsel for the Appellant had no reservations whatsoever and so it was admitted in evidence as Exhibits A1 and B1 – pages 94-95.
In respect of the Appellant’s first confessional statement made at Pantami Police Division, Exhibits G and G1, the Appellant, duly signed the words of caution after being cautioned in Hausa, the language which he understands, about his rights to either make a statement or not, in respect of the allegations. Thereafter, he volunteered his statement in Hausa language which was recorded by PW5 and later
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translated into English language by the same officer. He duly signed the statement.
In this confessional statement, the Appellant freely admitted his criminal responsibility with regard to his agreement and the plan hatched with the co-accused persons, including two others at large. He also admitted his participation in the physical aspects of the offences of armed robbery and culpable homicide, forming the actus reus, to wit: the attack and stabbing of the deceased with knives and cutlasses; as well as the intention behind his actions forming the mens rea, to wit: the decision to kill the deceased since they had recognized him as one “Yaya Tijjani” living in the neighbourhood and therefore were afraid that he could identify them – Okeke V State (2003) 15 NWLR (Pt. 842) 25. For ease of reference, the relevant portions of this confessional statement in Exhibit G (the Hausa statement) and Exhibit G1 (its English translation) are reproduced hereunder:
“… On 24/6/2016 at about 2100 hours, myself, Isa alias Saluwa, alias Baffa, Sadiq alias melotso and Bayye we came to Bolori Primary School here in Gombe, we then met one man which I
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did not know his name together with his girlfriend, we then attacked them. Bayye stabbed him immediately with a knife on his ribs and chest, we then snatched his Samsung Galaxy handset Tcno handset belonging to his girlfriend and money which I don’t know how much, but we shared N350.00 each. The handsets Bayye and Sadiq left with it. After doing the act, Sadiq and Isa then said they recognised him, they leave (sic) in the same quarters, Baffa and Isa then went back and still stabbed him since he did not run. In fact the person did not done anything wrong to me, but since we discussed among ourselves that we don’t have money we will go out for operation, that is why we did that, but I know to attacked person and collected his property is not good and kill somebody is not good also, is an offence and I have committed the offence for doing that. Because lack of money is not an excuse. Bayye and Baffa were from Jigawa State Kwandikko village, Basilka L.G.A. because after committing the offence they left to their village.”
Again in his second confessional statement, Exhibits A1 and B1, which he made when he was transferred to the State CID
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Gombe State Command NPF for further investigation, the Appellant again restated his nefarious role in the incident inter alia as follows:
“On 24/6/2016 at about 2100hrs, we left Bolori five (5) of us, and we decided to go and attacked people to collect valuable items. We took three cutlasses, one knife and one touch light, we went to the side of Bolori Primary School, there we saw a male and female standing, then Baiye stabbed him with a knife on his chest twice, then Bappa collected his handset Samsung and a Tecno handset from the female, including N1,000.00 one thousand eight hundred naira only. Then I used a cutlass and I gave him a cut on his leg. We share the money N130. 00 each, five of us, namely (1) Baban nana Abubakar (2) Bappa (3) Sadiq (4) Baiye (5) Isah Salwa. We all went and committed the crime together. The two handset Sadiq went with Tecno handset while Baiyi went with the Samsung. After committing I ran to Kalshingi and I was hiding there at Yamaltu Dabba. On 07/06/2017 at about 1800hrs I was arrested at Kalshingi because of the crime we committed and because of what we did to the victim led to his death. Biye and Bappa they ran to
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Jigawa State, they are hiding over there.”
It is significant, as afore-stated, that at the point of tendering the second confessional statement made at the State CID Gombe, Exhibits A1 and B1, through PW3, no manner of objection was raised by Counsel for the Appellant (95 of the Record). It was only in respect of first statement which was made upon his arrest at the Pantami Police Division, Exhibits G and G1, that the Appellant denied making the statement (page 102 of the Record). Notwithstanding this, the law is settled that the mere retraction of a voluntary confessional statement by an accused person, as in the instant case, neither renders the confessional statement inadmissible or worthless or untrue in relation to his guilt – Idowu V State (2000) 7 SC (Pt. II) 50; Silas V State (1996) 1 NWLR 59.
On the issue of corroborative evidence, contrary to the submission of Counsel for the Appellant, the learned trial Judge did not convict the Appellant solely on his confessional statements. From the printed Record of the trial Court, the learned trial Judge took pains to examine other pieces of evidence offered by the prosecution in proof of the
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offences charged, with a view to determining if the confessional statements were true, in spite of the fact that the confessional statements, (as reproduced earlier in the body of this Judgment), were direct, positive and unequivocal.
In this regard, the trial Judge made several references to the evidence of PW1, Rashida Saleh, the young lady who was with the deceased on the fateful night, and was also attacked along with him by the Appellant and his co-assailants. In her evidence, she graphically described in considerable detail how she and the deceased were attacked with knives and cutlasses, dispossessed of their possessions, and even went on to recount the conversation among the assailants conveying the decision to kill the deceased for fear that he had recognized them. PW1 was honest enough to say that she was unable to identify any of their attackers because they flashed their torchlight in her eyes. Since this is eyewitness testimony, I will reproduce a few relevant portions of it for ease of reference. At pages 84-85 of the Record, she testified as follows:
“On the 24 day of June 2016 I was sent to take food to my Aunty’s house.
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I then called my fiancee by flashing we then talked, then he came and we meet (sic)… we greeted… then came five young men, they then were about to pass us but came back and flashed us with their torchlight, then asked us to bring money and our phones. He did not argue he removed and gave it to them, they also collected my own. I don’t know how much they collected from him. As they were about to go they came back and one of them said it is our elder brother Yaya Tijjani he recognize us so we should stab him. They told one “A chaka a chaka masa wuka” he then stabbed him. I did not see their faces when they were stabbing him because it was only moonlight and they flashed our eyes so that we cannot recognize them. After they stabbed him they left.”
Again, the learned trial Judge considered the statement of complaint made to the Police by the deceased himself soon after the attack, Exhibit D. Therein, the deceased described the vicious attack on him and PW1 on the night of 24-06-16 by the assailants with lethal weapons and how they dispossessed him of his Samsung Galaxy handset and the sum of N1,800.00. The relevant
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portions of the said statement are set out hereunder as follows:
“Today 24/6/2016 at about 2100hrs I was standing on the road near Dr. Ishaya Clinic, unknown person(s) suddenly came in that same road, they were many. One of them then asked for my handset and I gave them the handset is Samsung Galaxy valued N27, 000.00k and they also collected my money cash N1,800.00k. After giving them the property one among them stabbed me with knife on my ribs. Immediately they left. I don’t have problem with anybody. I can’t recognize them.”
PW5, the first IPO at Pantami Division, in her evidence corroborated the report lodged by the deceased, his condition and how she rushed him to the hospital where he subsequently died on 26-06-16.
The learned trial Judge also referred to and relied upon the medical evidence presented by the prosecution in the form of the medical report, Exhibit C, wherein the medical doctor with the Gombe Specialist Hospital who examined the corpse, PW4 – Dr. Bello Abdulshaheed Aminu, described the injuries, stab wounds, e.t.c, which were consistent with the other pieces of evidence contained in the confessional
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statements, the evidence of PW1 and the statement of the deceased, himself, Exhibit D. Again, its contents are reproduced as follows:
“The above named patient was admitted into the Emergency room on 25th June 2016 with stab wound to the left hypochondrium, and was managed as a case of penetrating abdominal injury with Spleenic injury and haemoperotoneum.
The patient was being planned for emergency exploratory laparatomy, but he ceased breathing and was declared clinically dead at 2:05am on 26th July, 2016.”
One last important factor considered by the trial Judge was the uncontroverted evidence adduced by the other prosecution witnesses of how the Appellant and his co-travelers fled the scene of crime, as well as the town, and went into hiding until they were fished out by vigilantes who handed them over to the Police.
By a combination of all the above pieces of evidence, the learned trial Judge was convinced that the confessional statements of the Appellant, Exhibits A1, B1, G and G1, were true and that the evidence served as adequate corroboration sufficient upon which to base the conviction of the Appellant for the offences
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charged. I cannot fault this. Nonetheless, I must reiterate that even without corroboration, (which was however found in abundance in the instant case), a confessional statement which is made voluntarily and is direct, cogent, credible and positive, is enough to ground a conviction. That is the law – Kamila V State (2018)LPELR-43603(SC) 18, per Amiru Sanusi, JSC; Akinfe V State (1988) 7 SCNJ (Pt. II) 226; Yahaya V State (1986) 12 SC 282, 290.
On the quality of the evidence of the investigating Police officers (IPOs), PW3, PW5 and PW7, which the Appellant has asked us to disregard as hearsay, I must say that contrary to Counsel’s submission, investigating Police officers narrate to the Court the nature of their investigations and the outcome of such investigations, as well as the items recovered, if any, and any evidence discovered and their observations during the course of such investigations. In addition, investigators give narrations of when and how accused persons made extra-judicial statements to the Police, if any, confessional or otherwise, and the circumstances thereof. Thus, it is incumbent upon trial Courts to take into consideration such
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vital pieces of evidence discovered in the course of investigations in order to arrive at a just decision, one way or the other – Kamila V State (2018) LPELR-43603(SC) 22-23, D-A.
What the evidence before the trial Court discloses is that the Appellant, after having been arrested and confronted with the allegations, confessed to having committed the offences at the earliest opportunity. It is significant also that Counsel did not at all cross-examine the two IPOs from Pantami Police Division and the State CID Headquarters Gombe, i.e. PW5 and PW7 respectively, on the allegations of torture later made by the Appellant when he testified as DW1. In his defence, the Appellant alleged that the statements were not voluntary and that he did not make them. The law is that where an accused person has failed to raise an objection to the tendering of evidence during trial, he cannot raise that objection on Appeal -Oyem V FRN (2019) LPELR-47392(SC) 25, A, per Okoro, JSC.
It has also been contended by Counsel that the learned trial Judge should not have acted on these free and voluntary confessions made twice by the Appellant, first at the Pantami Police
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Division and secondly at the State CID Command Gombe just because he subsequently retracted them while testifying in his defence. The general principle of law is that that an accused can be convicted solely on his confessional statement without corroboration once it is satisfied of the truth of the confession – Blessing V FRN (2015) LPELR-24689(SC) per Ogunbiyi, JSC. When a confession is made, an accused person is hook, line and sinker admitting to all the ingredients of the offence(s) he has confessed to, and in the course of this, he usually reveals other facts which the prosecution and the world may not even know in respect of the crime, except for the culprit. This is more so where the confessional statement is unequivocal, clear and voluntary without any evidence of interference to taint it, such as threat, violence, etc. Thus, it follows that a confessional statement is the best, most direct and potent weapon in the hand of the prosecution against an accused person upon which a trial Court can legitimately act – Oyem V FRN (2019) LPELR-47392(SC) 12-13, A-C, per Abba-Aji, JSC.
Additionally, it is the settled position of the law that a confessional
26
statement is the best form of evidence. A confession binds the maker and is sufficient to ground a conviction once it is unequivocal and believed by the Court to be true – Oyem V FRN (2019) LPELR-47392(SC) 24, D-F, & 25, A, per Okoro, JSC; Igri V State (2012) 16 NWLR (Pt. 1327) 522, 532; Okewu V FRN (2012) 9 NWLR (Pt. 1305) 327, 352; Amanchukwu V FRN (2009) 8 NWLR (Pt. 1144) 475. Thus, the principle of law is that an accused person who retracts his confessional statement may still be convicted of the offence(s) charged if the confessional statement is direct, positive and unequivocal, and there is some evidence outside the confession, no matter how little, which tends to show that the confession is true – Kamila V State (2018) LPELR-43603(SC) 40, D-E, per MD Muhammad, JSC. Therefore, with or without the testimonies of PW1, the eyewitness and the other 6 prosecution witnesses, the trial Court was right to convict the Appellant based on his unequivocal confessional statements, notwithstanding his latter-day retraction. Thus, based on all the above, I answer issue one in the affirmative and resolve it against the Appellant.
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Issues two and three taken together:
Issue two – Whether having regards to the totality of the evidence placed before the trial Court and the position of the law, the 1st Respondent proved beyond reasonable doubt all the offences for which the Appellant was convicted by the lower Court.
Issue three – Whether the failure of the lower Court to properly evaluate the evidence adduced by the 1st Respondent (Prosecution) and the Appellant in his defence and make clear findings on same occasioned a miscarriage of justice against the Appellant.
Under issue two, Counsel for the Appellant submits that the Respondent did not proffer any credible and admissible evidence at the lower Court warranting the conviction of the Appellant. Counsel submits that the Appellant who was not initially arraigned before the Court with the 1st and 2nd accused persons with whom he subsequently stood trial. Instead, the charge was amended on July 11, 2017 and he was joined to it as the 3rd accused person. Prior to this joinder, PW1 and PW2 had testified. After the joinder, the Respondent adopted the evidence of these two witnesses.
Counsel thus submits that the Respondent, having amended
28
the charge and joined the Appellant, PW1 and PW2 ought to have given their evidence afresh, rather than the Respondent adopting their evidence given earlier in the absence of the Appellant. Counsel submits that this procedure has breached the Appellant’s right to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Reliance is placed on Idakwo V Ejiga (2002) 13 NWLR (Pt. 783) 156, 166-167 and Ndukauba V Kolomo (2005) 4 NWLR (Pt. 915) 411, 431.
On the matter of proof of the offences charged, Counsel submits in respect of count one for criminal conspiracy to commit armed robbery and culpable homicide, that the 1st Respondent failed to discharge the burden placed on it to prove same beyond reasonable doubt. His main reason is that the trial Court relied solely on the retracted confessional statements of the Appellant to convict him. He therefore adopted his arguments offered under issue one above and submits that the confessional statements, Exhibits A1, B1, G and G1 were unreliable, equivocal, indirect and doubtful, and so no weight should have been attached to them. He contends that the
29
trial Court drew an inference of conspiracy from the confessional statements without testing their veracity or analyzing the details of the facts proved by applying the six steps laid down in R V Sykes (1913) 8 CAR 233, and that this is fatal to the conviction of the Appellant – Bako V State (2018) LPELR-44479(CA).
On count two of the charge, which is culpable homicide punishable with death, Counsel again submits that the trial Judge relied solely on the confessional statements to convict the Appellant, while attempting to find corroborative evidence outside the confessional statements. Yet in the same breath, he however contends that the evidence relied upon as corroborative evidence does not qualify as such because the evidence of PW2, PW3, PW4, PW5, PW6 and PW7 was all hearsay as they were not present at the scene of crime – Uwa V State (2015) 4 NWLR (Pt. 1450) 438, 471-472.
With regard to the evidence of the PW1, the only eyewitness to the crimes, Counsel submits that she did not identify the Appellant as the assailant who stabbed and killed the deceased, thus her evidence does not qualify as independent evidence connecting the Appellant with
30
the offences charged – Adeleye V State (2015) 3 NWLR (Pt. 1446) 229, 247, 249; State V Gwangwan (2015) 13 NWLR (Pt. 1477) 600, 626.
On count three of the charge for armed robbery, Counsel submits that again the trial Court only relied on the retracted confessional statements of the Appellant to convict him. He therefore relied and adopted his earlier submissions to submit that the said confessional statements were unreliable, equivocal, indirect and doubtful and so no weight should have been attached to them. In addition, that the trial Court failed to look for other independent evidence outside the confessional statements to corroborate them.
Furthermore, while conceding that the first two ingredients of the offence of armed robbery were proved, i.e. that there was a robbery and that it was carried out with the use of offensive weapons, Counsel submits that the prosecution failed to prove the third ingredient which was that the accused person, now Appellant, participated in the robbery. For this, he relied on Exhibit D, the statement of the deceased himself, as well as the evidence of PW1, the sole eyewitness, both of who stated that they could not
31
identify their attackers. He contends that the evidence of the other witnesses, PW2 to PW7, was all hearsay as they were not eyewitnesses. He relies on Alor V State (1997) 4 NWLR (Pt. 505) 511 to submit that in criminal cases, conviction can only be based on legal proof and not on suspicion or speculation. Thus, that the trial Court was in error when it grounded the conviction of the Appellant solely on Exhibits A1, B1, G and G1 without corroboration. He urged the Court to resolve issue two in favour of the Appellant.
In respect of issue three, Counsel submits that the lower Court failed to evaluate the evidence adduced by the Appellant and to make clear findings. He contends that, contrary to the finding of the trial Court, the Appellant retracted his confessional statements during his evidence as DW3 and also at the point when the statements were being tendered in evidence.
Counsel submits that the failure of the trial Court to properly evaluate the evidence of the Appellant constitutes a denial and breach of the Appellant’s right to fair hearing and this has occasioned a miscarriage of justice – Karibo V Grend (1992) 3 NWLR (Pt. 230) 426;
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Moronkeji V Adegbosin (2003) 8 WLR (Pt. 823) 612; Kalio V Woluchem (1985) 1 NWLR (Pt. 4) 610, 622.
Counsel also submits that this failure has rendered the Appellant’s conviction unreasonable, unwarranted and it cannot be supported by the evidence placed before the trial Court. He therefore urged the Court to hold that the findings of the trial Court were perverse, have occasioned a miscarriage of justice and so to resolve issue three in favour of the Appellant. In conclusion, Counsel urged the Court to allow the Appeal, quash the conviction of the Appellant and acquit him of the offences convicted.
In response, learned Counsel for the Respondent submits with regard to the issue of joinder of the Appellant to the charge after PW1 and PW2 had testified, that the Appellant and his co-accused persons were represented by Counsel, Abubakar Adamu Imam Esq. who was in Court throughout the proceedings when PW1 and PW2 testified (pages 84 to 88 of the Record) and he concurred with the procedure adopted. In addition, the Appellant did not establish any negligence, laxity or indolence on the part of his Counsel such that could have led to a denial of his
33
right to fair hearing. Counsel therefore urged the Court to hold that there was no denial of fair hearing to the Appellant or any miscarriage of justice occasioned thereby.
Counsel further submits that on the first count of criminal conspiracy charged, it is quite often inferred from circumstantial evidence, and that it is based on common intention and purpose, not minding what specific acts any of the conspirators did – Sule V State (2009) LRCNC 1, 11; Abdullahi V State (2010) 8 LRCNC 32.
Counsel submits that contrary to the submission of the Appellant, Counsel submits that the learned trial Judge relied on other pieces of evidence outside the confessional statements of the Appellants and his co-accused persons in convicting the Appellant. He refers to all the confessional statements of the three accused persons inclusive of the Appellant, as well as the medical report and the statement of the deceased himself, Exhibits A, A1, B, B1, C, D, E, E1, F, F1, G, G1, H and H1 to submit that they provide a clear inference from which the offence of criminal conspiracy can be drawn.
On count two for the offence of armed robbery, Counsel submits that
34
the learned trial Judge relied on the evidence of the eyewitness evidence of PW1, the investigating Police officer, PW5, the evidence of PW6 in conjunction with all the confessional statements of the three accused persons (the Appellant inclusive), Exhibits A, A1, B, B1, E, E1, F, F1, G, G1, H and H1 respectively. He further submits that a free and voluntary confession of guilt by an accused person, if direct, positive, duly made and satisfactorily proved is sufficient to ground a conviction even without corroborative evidence – Oseni V State (2012) 4 SCM 150, 153.
In respect of count three for the offence of culpable homicide, Counsel submits that the trial Court based his conviction of the Appellant on the Appellant’s confessional statements, Exhibits A1, B1, G and G1, in conjunction with the following:
– On proof of death of the deceased, the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 as well as the medical report Exhibit C establishing that the deceased was dead.
– On proof that the death of the deceased was caused by the Appellant and his co-accused persons, the confessional statements of all three accused persons (the Appellant
35
inclusive) – Exhibits A, A1, B, B1, E, E1, F, F1, G, G1, H and H1, in conjunction with the medical report, Exhibit C and the evidence of PW4, the medical report.
– On proof that the Appellant intended to cause the death of the deceased, again the confessional statements of all three accused persons (the Appellant inclusive) – Exhibits A, A1, B, B1, E, E1, F, F1, G, G1, H and H and the medical evidence in the form of the evidence of PW4 and Exhibit C. Counsel submits that by stabbing the deceased in the abdomen, the Appellant and his co-accused knew that death would be the likely result of their actions. In addition, that a man intends the natural consequences of his act -Udu V State (2000) NWLR (Pt. 664) 283, 286; Damilola V State (2010) 5 SCM 166, 170.
RESOLUTION OF ISSUES TWO AND THREE
In initiating his submissions under issue two, learned Counsel for the Appellant has complained about the procedure adopted in the trial Court after the charge was amended to incorporate the Appellant as the 3rd accused person in the trial, contending that it breached the Appellant’s right to fair hearing. I have examined the Record of the trial Court in
36
this regard, and I believe that it is imperative to reproduce the relevant portion of the proceedings in order to place the issue in context for consideration.
At page 92 of the printed Record, the following transpired:
“ON 11TH DAY OF JULY 2017
…
3 accused persons present
Hafsat Aliyu Abubakar SC for the State
Abubakar Adamu Imam for all accused persons
Hafsat – The 3rd accused was at large and later arrested we have an application to join him. Before the Court is an application to amend the criminal charges pursuant to Section 208 CPC and Section 211 1999 Constitution… We urge the Court to grant the application.
Imam – No objection.
Court – There being no objection application dated 30/6/2017 and filed on 3/7/2017 is hereby granted as prayed.
…
Read and explain the charge to the 3 accused persons
3 counts charge read and explained to all the 3 accused persons.
Did you understand the count charges read over to you?
…
3rd accused person – yes I understand
Are you guilty or not guilty?
I am not guilty
Hafsat – I apply to recall PWI and PWII in this
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case. Also we have an application to call additional witnesses… We urge this Court to grant our application.
Abubakar Imam – No objection
Court – Application to call additional witnesses granted as prayed… Case adjourned to 17/7/17 for hearing.
…
ON THE 27TH DAY OF JULY 2017
…
3 accused person present
Hafsat Aliyu A. SC for State
Abubakar Adamu Imam for all the accused person
Hafsat – We have two witnesses in Court. We also adopt the evidence of our two witnesses.
Abubakar Imam – We have no objection and have nothing to add to their cross-examination.
Court – Case adjourned to 10 and 11th October 2017 for accelerated hearing.”
(Emphasis supplied)
From these proceedings, it is apparent that, at the point when Counsel for the Respondent applied to adopt the evidence of the PW1 and PW2 who had testified before the Appellant was joined as a 3rd accused person to the charge, Abubakar Adamu Imam Esq., Counsel who appeared on record for the Appellant, as well as for the two other accused persons, and who was at all times in Court when these two witnesses, PW1 and PW2, testified,
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and who had also extensively cross-examined them on the evidence, (pages 84-88 of the Record), expressly and firmly stated as follows when the Respondent’s Counsel applied to adopt the evidence of the witnesses:
“Abubakar Imam – We have no objection and have nothing to add to their cross-examination.”
Consequently, even though the ideal thing would have been for the witnesses to be recalled to afford the 3rd Respondent an opportunity to hear their testimony, etc, his Counsel who was acting on his behalf and in his best interest, agreed for the evidence of the said witnesses to be adopted. In addition, he expressly stated that he had no need to further cross-examine them, having previously done so. As Counsel acting on behalf of the Appellant, he was speaking for the Appellant and the Court is not entitled to interfere with the way and manner he conducts the case of his client. The law is that the conduct of a case lies wholly with Counsel. A free-hand concept given to Counsel includes compromising his client’s case even to the extent of submitting to Judgment, provided he acted in a proper manner, exhibited good faith
39
and is not shown to have overreached or defrauded his client. Put another way, where a party employs the services of a Counsel of his choice to represent him in a matter before the Court, as constitutionally provided, he should be given a free hand to act and conduct his client’s case in a manner befitting his professional competence and ability. The independence of Counsel to conduct his case should be asserted. This is not however to encourage Counsel to be negligent in the conduct of his client’s case. On the part of a client, he is also expected to engage diligent Counsel whom he believes would deliver and not act to his detriment or put his interest in jeopardy. On the question of whether or not the exercise of discretion by Counsel could be subject to question, judicial authorities on the views held by the apex Court are legion and very instructive. I will walk through a few. The Supreme Court in the case of Nyako V Adamawa State House of Assembly (2016) LPELR-41822(SC) 21, A-D, MD Muhammad, JSC in the lead Judgment of the Court held:
“Thirdly, decisions of this Court, too numerous to count, recognise the very wide powers of a
40
counsel, being an agent and mouthpiece, in the course of performing his professional duties, to commit his client by way of any concession or admission of facts and same may be binding on his client except same is against express authority of or retracted by the client before judgment.”
The learned Jurist at pages 49-52 of the E-Report also referred to another decision of the Court in Okonkwo V Kpajie (1992) 2 NWLR (Pt. 226) 633, per Nnaemeka,-Agu, JSC on the scope and amplitude of the authority of Counsel in representing his client, as follows:
“I must note that a counsel who is representing his client… is the agent and mouthpiece of his client in the litigation. So he has implied authority to make admissions on behalf of his client during the progress of litigation, either for purpose of dispensing with proof at the trial, when they are regarded as conclusive, or incidentally as to any of the facts in the case, when they are prima facie evidence only… In the instant case, no issue has been raised to show that counsel made the concession in question without due instruction or authorization by his clients. Indeed, in the
41
circumstances in which it was made, he must be deemed to have been instructed and authorized to make it… It is relevant here to cite the case of Attorney General of the Federation V AIC Ltd &Ors (1995) 2 NWLR (Pt. 378) 388… This Court is not in a position to allow learned Counsel for the Appellant to resile from the concession he made for and on behalf of the appellant.”
In his own contribution to the Judgment of the Court, Nweze, JSC at pages 95-97, D-E of the E-Report, held as follows :
“My Lords, the authority of Counsel, duly instructed, to conduct a case, to assume the plenitude of control over it, has never been doubted… Being the dominus litus in regard to the control and conduct of his client’s case in Court, albeit to the best of his ability, … his power to compromise the case, subject only to the qualification that he is not in fraud of his client, has neither been impugned nor his competence to submit to judgment been impeached… Hence, while in control thereof, his client is bound by all action orbit within the sphere of his actual authority without any express or implied
42
limitation… The apparent authority with which Counsel is clothed when he appears to conduct a case is to do everything which in the exercise of his discretion he may think best in the interest of his client in the conduct of the case; if within the limits of this apparent authority he enters into an agreement, should be held binding on his client…”
Again, in the case of Akanbi V Alao (1989) 3 NWLR (Pt. 108) 118 his lordship Craig, JSC subscribed to and adopted the view held by Eso, JSC in the case of Mosheshe General Merchants Ltd V Nigeria Steel Products Ltd when he said as follows:
“A Counsel who has been briefed and has accepted the brief and also has indicated to the Court that he has instructions to conduct a case has full control over the case. He is to conduct the case in the manner proper to him; so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes he could filibuster, if he considers it necessary for the conduct of his case but subject to the caution of the Court. The only option open to the client is to withdraw instructions from the counsel or if the
43
Counsel was negligent, sue in tort for professional negligence. Such are the powers but such are also the risks.”
Yet again, in the case of Ogboru V Uduaghan ((2013) LPELR-20805(SC) 10-13, F-D, Ogunbiyi, JSC held inter alia thus:
“A Counsel stands in the position of an advocate in place of his client as fully empowered and not in half measure. To hold a Counsel in less capacity or esteem is to set a dangerous precedent for the legal profession and erode independence of representation. The fiduciary relationship of Counsel and client is that of trust… a counsel is neither a steward nor a servant of his client but stands at the bar as an authority. The learned authors [of] Halsbury’s Laws of England 4th Edition Volume 3 at paragraph 1189 had set out the scope and authority of Counsel conducting a case or an appeal on behalf of his client… it was specifically said as follows:-
“When a Counsel is instructed, then subject to his duties to the Court, and subject to his right to advise another course of action, he must accept and adhere to the instructions given by or on behalf of his client, but Counsel is
44
entitled to insist, and as a general rule, ought to have complete control over how those instructions are carried out and over the actual conduct of the case. If he is not given this control he is entitled to refuse or return the brief.”
A Counsel’s control over the instructions given by [his] client must be complete and total or none… A client, having engaged a Counsel to conduct his case, is bound by the client’s agreement however much he may disapprove of that course.”
Also in Adewunmi V Plastex (Nig) Ltd (1986) LPELR-164(SC) 28, F-G; Vol. 17 (1986) (Pt. II) NSCC 852, 861 & 863-864, per Eso, JSC, the Supreme Court authoritatively pronounced as follows:
“Once a Counsel appears in Court in a case and announces appearance, the Court assumes he has the authority of his client for the conduct the case… It is not for the Court to start an enquiry into his authority and the Court never does…, once he is so instructed, and his appearance and announcement in Court that he is so instructed, raises the presumption of his authority, he assumes full control of the conduct of his client’s
45
case.”
In Cappa and D’Alberto Ltd V Akinitilo (2003) LPLER-829(SC) 15-16, B-E, Tobi, JSC added his imperial and authoritative voice to this important issue thus:
“The authority of Counsel at the trial extends to the action and all matters which are incidental to the action. Where the authority is not specifically limited by his client, as it is in this appeal, the sky, the Englishman says, becomes the limit, to the extent that he could within the Law, commit the client. After all, by the brief, he is clothed with some apparent authority he can use to the best advantage of his client by the application of his expertise and professionalism. Flowing from the above relationship, Counsel can, in the course of performing his professional duties, commit his client either by way of a specific undertaking or by clear admission.”
Thus, where Counsel apparently acts within the scope of his authority without any express or implied limitation, the client is bound by the exercise of such authority. The duty of Counsel is to advise his client out of Court and to act for him in Court and, until the authority is withdrawn, he has, with
46
regard to all matters that relate to the conduct of the case, unlimited power and discretion to do that which is in the best interest of his client. It is therefore settled law that Counsel, as the ostensible agent of his client, binds his client in the actions taken in Court on his behalf. He is taken to have given his Counsel authority to act in the manner he does and in the actions he takes in Court when representing him. Counsel is the master of his client’s case and whatever pronouncements he makes in Court regarding his client’s case will be seen by the Court as authoritative and as representing his client’s position. By the same token, clients are not masters to their Counsel, and so how Counsel conduct their clients’ cases in Court are entirely up to them. It would be setting a dangerous precedent if the reverse were the case. This is more so when the client does not produce written instructions to show that Counsel acted out of the scope of his specific instructions. Hence, a client is bound by any decision taken by his Counsel in a case as the Counsel, being in charge of the case given to him in trust, is presumed
47
to be working in the interest of his client; and the client is therefore bound by such decisions unless the contrary is proved. No limitation can be imposed by the client on the implied authority of Counsel to conduct his case. Once a client has retained Counsel of his own choice, he is bound by his Counsel’s pronouncements and actions or inaction in Court in the course of such representation, however much he may disapprove. He has the general duty as Counsel and this ought not to be inhibited. The general principle of law is that, subject always to the authority of a client to countermand the general authority of Counsel or to withdraw or amend his instruction during the course of proceedings or even to dismiss his Counsel, Counsel has full authority and control over the conduct of the case for which he is briefed, and to bind the client in the proceedings – Ogboru V Uduaghan (supra) 33-34, C, per Chukwuma-Eneh, JSC. There is however a duty on Counsel to present his client’s case with utmost diligence, skill and integrity. See also Zakirai V Muhammad (2017) LPELR-42349(SC) 12-13, E-C, per Augie, JSC; Abah V Monday (2015) 14 NWLR (Pt. 11) 569, 588,
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per Nweze, JSC; Makun V FUT, Minna (2011) 18 NWLR (Pt. 1278) 190, 235; Afegbai V AG Edo State (2001) LPELR-193(SC) 40-41, G-D, per Karibi-Whyte, JSC;Elike V Nwakwoala (1984) LPELR-1118(SC) 12-18, C, per Aniagolu, JSC.
The question in the present case is whether the Appellant is bound by what his Counsel did. In this regard, it appears to me that I am constrained and bound by precedents and cannot say otherwise than that the Appellant, having retained Counsel to conduct his case, is bound by his Counsel’s decision to agree to the adoption of the evidence of PW1 and PW2 having been in Court when they testified and also having cross-examined them; as well as his decision not to further cross-examine the witnesses upon the joinder of the Appellant to the case. It however goes without saying that the fact that the Appellant was represented by Counsel is not an issue to be trifled with because Counsel has an unflinching obligation to forcefully defend his client’s case within the ambit of the law and the decorum with which the profession is known for. He is not expected to acquiesce at unfair proceeding that is capable of doing harm to the
49
case of his client as that is precisely the raison d’etre why lawyers are engaged to handle matters in Court in the first place, in order to showcase their skill and expertise where laymen are unable to cope. See Ikpa V State (2017) LPELR-42590 (SC) 30, C-F, per Augie, JSC; Adegboye V Salawu (LPELR-22140(CA) per Galinje, JCA (as he then was).
In the instant case, given the facts and circumstances of the case as reflected in the Record, I am satisfied that the Appellant was in no way prejudiced since the prosecution witnesses were vigorously cross-examined by his Counsel and the Appellant’s defence was clearly geared towards negativing the notion that he committed the offences as alleged in the charge against him. This is more so that, as rightly submitted by Counsel for the Respondent, the Appellant has neither alleged nor established any negligence, laxity, indolence or even collusion on the part of his Counsel on record, Abubakar Adamu Imam Esq., such that can be said to have denied him fair hearing.
Having dealt with this preliminary point raised by the Appellant, the starting point to the consideration of issues two and three for
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determination must be a reminder that proof beyond reasonable doubt is not intended to be a magic wand for the benefit of an accused person. Instead, the law is that when the prosecution has attained such a degree of proof that leads only to the remote possibility in favour of the accused, the case is proved beyond reasonable doubt. In Miller V Minister of Pensions (1947) All ER 322, 373, Denny, J. (as he then was), warned that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt; and also that proof beyond reasonable doubt does not mean proof to a mathematical certainty. Were it to be so, then no case could ever be proved – Oyem V FRN (2019) LPELR-47392(SC) 15-16, B-E, per Onnoghen, CJN.
In the instant case, by a combination of the evidence of (1) PW1, the only eyewitness who gave in riveting detail an account of the attack on her and the deceased by five young men; (2) the report lodged and statement made by the deceased himself (Exhibit D) to the first Police IPO (PW5) before he died, wherein he gave details of the attack in writing, which report may actually have served as a dying declaration but for the fact that he did not
51
identify his attackers; (3) the confessional statements of the Appellant, Exhibits A, B, G and G1; (4) as well as those of the 1st and 2nd accused persons which corroborated the evidence of PW1 in every material particular; (5) the medical report, Exhibit D, and the evidence of PW3 (the medical Doctor) who authored the report, which further corroborated the manner and cause of death of the deceased; (6) in conjunction with the evidence of the other witnesses (PW2 and PW6) and the Police investigators (IPOs) PW3, PW5 and PW7, a water-tight case was made out against the Appellant and his cohorts by the prosecution. Thus, the learned trial Judge acted rightly in relying on the retracted confessional statements amply corroborated by the above pieces of evidence to convict the Appellant as charged.
Furthermore, as has been well articulated by the Respondent in his submissions, the evidence of conspiracy to commit armed robbery and culpable homicide in count one of the charge, can be found in the confessional statements of the Appellant and the 1st and 2nd accused persons, i.e. Exhibits A, B, A1, B1, F, F1, E, E1, H and H1 wherein they all confessed to how
52
they planned and agreed to carry out the armed robbery.
In furtherance of this agreement, the Appellant, 1st and 2nd accused persons and others still at large, activated their plan and carried out the attack on the hapless and defenceless duo of the deceased, Tijjani Mohammed, and his girlfriend, PW1 – Rashidah Saleh, on the roadside where they stood waiting for public transport at night.
From the confessional statements of the accused persons, inclusive of those of the Appellant, amply corroborated by the evidence in Court of PW1 and Exhibit D, the statement of the deceased speaking, as it were from beyond the grave, the Appellant and his co-accused accused as well as those others at large, flashed their torchlight into the eyes of their victims which prevented them (accused persons) from being recognized, and proceeded to attack them with lethal weapons. In addition, they collected the GSM Samsung Galaxy handset of the deceased, the Tecno handset of PW1, as well as the sum of N1, 800.00 cash. Still not satiated, they proceeded to stab the deceased in the chest and abdomen with knives and slashed his head and leg with cutlasses, all aimed at
53
killing him so that he would not identify them as his assailants because, from their own confessional statements, they themselves had recognized him as one Yaya Tijjani from their neighbourhood and they were afraid that he could also identify them. However, it is ironic and a cruel twist of fate that from the written complaint/statement of the deceased lodged at the Pantami Police Station before he died, Exhibit D, he had not in fact recognized any of his attackers and so was unable to tell the Police their identities when he was asked by PW5, the IPO. The Appellant and the co-accused persons therefore viciously snuffed out the life of the deceased unnecessarily even after inflicting grievous injuries on him and forcefully dispossessing him of his property.
In the same vein, the PW1 who was with the deceased during the brutal attack, honestly testified that she had not been able to identify any of the attackers due to the flashlight which they shone in her face. However, it was the Appellant, 1st and 2nd accused persons in their own confessional statements who gave graphic accounts of their actions on the fateful night, which accounts were eerily in
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tandem and aligned in all material particulars with the accounts of the attack given by their victims, i.e. the deceased and PW1. This therefore established the truth and veracity of both the confessional statements as well as the evidence of the prosecution witnesses.
From the nature and character of the evidence adduced by the prosecution, the learned trial Judge properly evaluated the evidence and ascribed probative value thereto at pages 128-179 of the printed Record, but specifically at pages 171 to 178 thereof. Thus, contrary to the contention of the Appellant, the learned trial Judge, far from relying solely on the confessional statements of the Appellant, which he was entitled to do since they were direct, positive, cogent and unequivocal, the learned trial Judge found ample corroboration in other pieces of evidence presented to the Court in view of the fact that they were subsequently retracted by the Appellant in his defence. His lordship of the trial Court identified and enumerated such corroborative evidence as being found in the evidence of PW1 (eyewitness) and PW7, who was present when the 2nd accused confessed to the crime and identified
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his co-conspirators, (page 177); as well as the evidence of PW3, PW4, PW5 and PW7, the investigating Police officers to whom the confessional statements were made (page 176 of the Record), PW4 – the medical doctor who certified the deceased dead and issued the medical report – Exhibit C, and the evidence of PW6, the brother of the deceased who was with him until he died two days after the attack.
Thus, based on the mammoth evidence adduced by the prosecution as opposed to the lame and weak evidence adduced by the Appellant in his defence as DW1, which evidence comprised mainly of a mere denial and retraction of the confessional statements, the learned trial Judge acted rightly in my humble view, in his findings and conclusion that the prosecution proved the three-count charge against the Appellant to the standard required by law, beyond reasonable doubt. Based on all the above, I am satisfied that, contrary to the contention of the Appellant, the learned trial Judge evaluated the evidence presented to the Court and came to a right conclusion. I therefore decline the Appellant’s invitation to interfere with these findings. For these reasons, I
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resolve issues two and three also against the Appellant.
Having resolved all three issues for determination against the Appellant, I find the Appeal sorely lacking in merit. It fails and is dismissed.
Accordingly, I affirm the Judgment of the High Court of Justice, Gombe State in Case No. GM/14C/2017 between The State V (1) Isah Usman, (2) Sadiq Hussaini and (3) Baban Nana Abubakar Mohammed, delivered on November 2, 2018 by Pindiga, J., as well as the conviction and sentence of death.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to read the draft of the lead Judgment by my learned brother, JUMMAI HANNATU SANKEY, JCA and I am in total agreement with the reasoning and conclusion reached therein.
It is settled law that mere denial of making or signing a confessional statement by an accused person is not sufficient ground on which to reject it particularly where it was properly tendered. See the cases of AKWUOBI vs. THE STATE 2016 LPELR-SC.379/2011 and OKWESI vs. STATE 1995 NWLR 119.
A free and voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved
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before the trial Court, alone, is sufficient to warrant a conviction as in the instant appeal. There was also no objection whatsoever at the time of tendering the statements. Therefore, the argument by the learned Appellant’s Counsel cannot hold as clearly stated in the lead Judgment. The Court below as contained in the Record also in addition to the confessional statements took cognizance of the corroborative evidence of the PW1, PW4, PW5, the complaint of the deceased himself immediately after the attack, Exhibit D and the medical report of the medical doctor who attended to him, Exhibit C, admitted without objection as sufficient corroboration to warrant a conviction. It is important to note that, the Appellant’s confessional statement alone, in law, was sufficient for conviction.
For the fuller reasons clearly put in the lead Judgment, I also dismiss the appeal and affirm the Judgment of the High Court of Justice, Gombe State in Case No.GM/14C/2017 between The State vs. (1) Isah Usman, (2) Sadiq Hussaini and (3) Baban Nana Abubakar Mohammed, delivered on November 2, 2018 by Pindiga J. as well as the conviction and sentence of death.
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JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read the draft of the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA. I adopt the reasoning and conclusion reached therein that the appeal is lacking in merit, and thus fail and is hereby dismissed.
However, to reiterate my agreement with the conclusion reached in the Judgment, I will make a few remarks on the following prominent issues in the appeal.
The contention of the Appellant’s Counsel that the learned trial Judge was in error in acting on the Confessional Statement of the Appellant in convicting him does not reflect the facts and evidence adduced at the trial and the settled position of the law on the role of Confessional Statement in a criminal trial.
A Confessional Statement is an admission by an accused person that he committed the crime of which he is alleged to have committed or suggesting the inference that he committed the crime. See Section 28 of the Evidence Act, 2011. The Supreme Court in the case of Ifeanyichukwu Akwuobi vs. The State (2016) LPELR-41389 (SC) held:
“It is trite law and already settled that a free and
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voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved before the trial Court is alone sufficient to warrant a conviction even if there is no corroborative evidence. Therefore, a conviction based on such a Confessional Statement will not be quashed on appeal, merely because it is based entirely on the evidence of confession by the Appellant. What is important is that the Court must be satisfied with the facts and circumstances in which the confession was made. See, R. V. Ajayi Omakaro (1941) 146, Anthony Ejinima vs. The State (1991) 6 NWLR (Pt. 200) 627, (1991) 7 SCNJ 318 (1991) 7 SC (Pt. 11) 1.” per Ariwoola, JSC (pp. 39 – 40, paras F – D).
In this case, the trial Judge did not convict the Appellant solely on his Confessional Statements. Notwithstanding that the Confessional Statements were direct, positive and unequivocal, the trial Judge took pains to examine other pieces of evidence produced by the prosecution, with a view to ascertaining that the Confession was indeed made. The prosecution evidence examined by the trial Judge include the evidence of PW1, Rashida Saleh who was
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with the deceased and was also attacked along with him by the Appellant and his co-assailants. In her evidence she narrated to the Court how they were attacked with knives and cutlasses, and dispossessed of their properties. She was however honest enough to state that she could not identify any of the attackers because they flashed their torchlight in her eyes. The trial Judge also considered the statement of the deceased (complainant) made to the police soon after the attack as contained in Exhibit “D”. Also considered is the evidence of the first IPO (PW5) and the medical report. Indeed, there was abundant evidence outside the Confessional Statements to establish the guilt of the Appellant beyond reasonable doubt.
Apart from the foregoing issue which his Lordship considered in scintillating details, his Lordship’s Judgment is also laced with articulate discourse of other arguments canvassed by Appellant’s Counsel culminating in the resolution of same against the Appellant that cannot be faulted.
I totally endorse those resolutions.
In consequence, I too find no merit in this appeal and dismiss it.
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Therefore, the Judgment of the trial Court delivered by his Lordship Pindiga, J. on 2nd November, 2018 as well as the conviction and sentence of death is hereby affirmed.
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Appearances:
Adedayo Adesina, Esq., with him, T.J.J. Danjuma, Esq. For Appellant(s)
Zainab A. Rasheed, Esq., Solicitor-General, Gombe State Ministy of Justice, with him, Nape H. Barka, Esq., Principal State Counsel and Abdulkadir U. Ibrahim, Esq. Senior State Counsel – for the 1st Respondent For Respondent(s)
