MUHAMMED v. STATE (2020)

MUHAMMED v. STATE

(2020)LCN/14256(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, June 11, 2020

CA/K/535/2018

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

YA’AU MUHAMMED APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

RELIANCE ON A CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

The law is quite clear that a confessional statement can be eminently relied upon in convicting an accused person without more. The simple reason is that a confessional statement as the name states, is confessional. It bares the mind of the confessor. As long as the confessional statement is not the product of any oppression, that is to say, torture, inhuman or degrading treatment, use or threat of violence whether or not amounting to torture (Section 29(2) of the Evidence Act, 2011) and the statement states or suggests the inference that the defendant committed the crime (Section 28 of the Evidence Act), the case is as good as an open-and-shut case. What can be better than a statement, as it were, from the horse’s mouth?.PER DANIEL-KALIO, J.C.A.

TEST TO BE APPLIED BEFORE A CONVICTION IS BASED ON A CONFESSIONAL STATEMENT ALONE

While the confessional statement can be regarded as the best evidence, our Courts have nonetheless come to the position that there are some tests that should be applied before a conviction is based on a confessional statement alone. The tests are to make double sure, that is to say, take great care to give assurance that the confessional statement being relied upon is indeed worthy of such reliance. In the case of NWEZE V. STATE (2017) LPELR- 42344 the Supreme Court stated that six tests must be met or satisfied before a confessional statement can be solely relied upon to convict an accused person. The tests are:
1. Is there anything outside it (the statement) to show that it is true?
2. Is it corroborated?
3. Are the statements made in it true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and which have been proved?
The tests have their origin in the English case of R V SYKES (1913) 8 CAR 233, 236 and have been followed in countless other cases in this country including QUEEN V. OBIASA (1962) 1 ANLR 65; AKPAN V THE STATE (1992) 6 NWLR Part 248 439, 460; DAWA V. THE STATE (1980) 8-11 SC 236; AIGUOREGHIAN & ANOR V THE STATE (2004) 3 NWLR Part 860 P.367. PER DANIEL-KALIO, J.C.A.

TEST FOR THE COMPETENCE OF A PERSON TO TESTIFY IN COURT

Now Section 175 (1) of the Evidence Act, 2011 states that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. Section 175(2) of the Evidence Act specifically addresses the competence of persons of unsound mind to testify. It states: “A person of unsound mind is not incompetent to testify, unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them.” PER DANIEL-KALIO, J.C.A.

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): At the High Court of Kaduna State (the Court below), the Appellant, Ya’au Muhammed was charged along with one Ibrahim Adamu with having carnal knowledge of one Ya’u Umar through his anus without his consent on or about the 23rd day of November,2016 after he was lured by them into the APC office at Kwannan Lami Tudun Wada, Kaduna. The offence is punishable under Section 259 of the Penal Code, Laws of Kaduna State, 2017. The Appellant and his co-accused pleaded ‘not guilty’ to the charge. The Learned trial Judge H. A. L Balogun, J, took evidence from four Prosecution witnesses including the alleged victim who testified as PW4, heard from the Appellant and his co- accused, and considered five Exhibits tendered, including confessional statements and a medical report. The Learned trial Judge also considered the submissions of Learned Counsel. He placed reliance on the confessional statements of the Appellant which he found was corroborated by the evidence of PW4, the victim. He held that the retraction of the confessional statements was a mere afterthought. The Learned trial Judge found the

evidence of the Appellant and his co-accused to be contradictory. He was not impressed by the Appellant’s demeanor under cross-examination and found him to be evasive. All considered, he found the Appellant and his co- accused guilty of the offence. They were sentenced to seven years imprisonment each. The Judge ordered that the years that they have been in detention be taken into consideration in computing the years they will spend in prison, in effect making the time of imprisonment to commence on 1/12/16. The Judgment was delivered on 19/7/18.

The Appellant was dissatisfied with the Judgment and therefore filed a Notice of Appeal challenging it. The Appellant and the Respondent exchanged Briefs of Argument. The Appellant’s Brief was settled by Dele Oye, Esq. That of the Respondent was settled by Maryam M. Salisu of the Ministry of Justice, Kaduna.

The Appellant distilled the following two issues for determination in this appeal:-
1. Whether the trial Court was right in convicting the Appellant in the face of the apparent failure of the Prosecution to prove the essential ingredients of the offence of sexual intercourse against the order of

nature (unnatural offence) against the Appellant.
2. Whether the trial Court was right in convicting the Appellant primarily on the uncorroborated and retracted confessional statements of the Appellant.

On its part, the Respondent distilled four issues. They are:
1. Whether or not the lower Court’s decision is sustainable on the basis of the evidence on record which was led by the Prosecution.
2. Whether the Learned trial Judge was right in convicting the Appellant on the uncorroborated and retracted confessional statements (Exhibits P2 and P3).
3. Whether there was any contradiction in the Respondent’s case and if there was such contradiction, whether it was material enough to cause reasonable doubt in the Respondent’s case.
4. Whether the contradictions and inconsistencies in the Appellant’s evidence were material enough to cast reasonable doubt in this case.

The issues distilled by both the Appellant and the Respondent’s Counsel are essentially about the treatment of the evidence by the Court below, that is to say, whether the evidence have probative value and should have been relied upon in convicting the Appellant. I am

of the view that a single issue is quite adequate to resolve this appeal. I will therefore reformulate the issues raised in this appeal to read simply: whether the Court below was right to have convicted the Appellant of the offence with which he was charged considering the evidence before that Court.

Arguing this issue, the Appellant’s Learned Counsel submitted that the elements of the offence for which the Appellant was charged are similar to those of the offence of rape. He referred to the case of MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR Part 1089 p.338 at p.390. He contended that the ingredients of the offence which he contended includes putting or inserting the penis of an Accused in the anus of the victim, were not proved in the case on appeal. Rather it was contended, the evidence before the Court below were speculative. He submitted that for the Court below to have held that the offence of sodomy was proved, that Court should have gone beyond relying on the assertions of PW4, the alleged victim of the offence. He referred to Exhibit 3, the medical report, and submitted that the report on the face of it, failed to confirm that there was anal

penetration of PW4. Also he argued, the maker of the medical report was never called to testify as to the content of the report. Learned Counsel also submitted that the Court below ought not to have attached any probative value to Exhibit P3. Turning to the confessional statements of the Appellant, Exhibits P2 and P5, Learned Counsel submitted that they run contrary to the charge against the Appellant which states that the offence was committed on or about the 23rd day of November, 2016. The confessional statement in Exhibit P2 he argued, states that the time that the Appellant had anal sex with PW 4 was ‘about one year ago’. He referred also to the confessional statement, Exhibit P5 where the Appellant said he had ‘homosexual’ with PW4 ‘for over a year now’. It was submitted that a confession by definition is supposed to be a positive and unequivocal admission of guilt and that cannot be said of Exhibits P2 and P5. The confessional statements he therefore submitted, should not have warranted the decision that the Appellant was guilty of the offence. Turning to the evidence of the alleged victim, PW4, at p. 79 and 80 of the record of appeal, it was submitted

that the contradictions therein confirm the mental challenges of the alleged victim. It was contended that the testimony of PW4 was largely incoherent and that he was unable to state with certainty the time that the offence was committed. While conceding that Section 175 (2) of the Evidence Act, 2011 allows persons of unsound mind to testify, there is need for the Court to exercise caution with regard to evidence elicited from such persons especially when such evidence is shown to be inconsistent and contradictory, he submitted. It was further submitted that corroborative evidence should have been obtained from other sources other than PW4 as his evidence was inconsistent and unreliable.

Learned Counsel submitted that the confessional statements of the Appellant were not tested to ascertain their veracity and therefore the Court below should not have placed sole reliance on them to convict the Appellant. Learned Counsel referred to the case of ASUQUO V. THE STATE (2016) 14 NWLR Part 1532 p.309 at p.328 where the Supreme Court stated that it is desirable that before a conviction can be properly based on retracted confessional statement, there should be

some corroborative evidence outside the confession which would make it probable that the confession was true. Learned Counsel referred to the tests in R V. SYKES (13) 18 CR APP 233, which case has been followed in numerous other cases, and submitted relying on the case of OKASHETU V. STATE (2016) 15 NWLR Part 1534 P.126 at p.152, that a Court cannot act on a confessional statement without first applying the tests for determining the veracity and correctness of the confessional statement. It was submitted that the Learned trial Judge in the case now on appeal, neither referred to, nor applied the tests in R V. SYKES (supra) before relying on the confessional statements, Exhibits P2 and P5, to convict the appellant. We were urged to resolve the issue in the Appellant’s favor.
In his argument in response, the Respondent’s Learned Counsel submitted that the essential ingredient of the offence for which the Appellant was charged and convicted is penetration against the order of nature and that the PW4 at the lower Court testified that the Appellant had been sexually violating him through the anus. He submitted that through the testimony of PW4, penetration was

established.
Learned Counsel submitted that conviction can be secured based on a confessional statement even without corroboration so long as the confessional statement is freely made, and positive. He contended that that is the position of the law even with regard to a confessional statement that is retracted. He cited a number of cases including IDOWU V. THE STATE (2000) 7 SCNJ 245; SOLOLA V. THE STATE (2005) 11 NWLR Part 937 p. 460; JAMES AFOLABI V. THE STATE (2016) LPELR-40300. It was submitted that it was never the case of the Appellant that he was beaten or tortured before he made his confessional statements. His only grouse he contended was that Exhibit P2 was not read over to him before he signed it and that Exhibit P5 was not made to PW2. He submitted that PW1, PW2 and PW3 however testified that both Exhibit P2, and P5 were made voluntarily and their evidence were not challenged under cross-examination. The implication of the non challenge he submitted, is that the Appellant accepted the truth of the evidence of the said PW1, PW2, and PW3. He cited OFORLETE V. THE STATE (2000) 12 NWLR Part 681 p. 415 at p.435. Learned Counsel submitted that it is

however the practice of the Courts to look beyond the confessional statement by seeking corroborative evidence, no matter how slight. The tests to confirm the confessional statement whether such statement is retracted or not he submitted, has been laid down in a number of cases. He cited some cases. They include R V. SYKES (1913) CR AP 233, 236-237; OSENI V THE STATE (2012) 2 SCNJ Part 1 p.215 at 233; OSETOLA V. THE STATE (2012) SCNJ Part 11. P.329 at p.35. It was contended that the learned trial Judge applied the tests stated in those cases before relying on the confessional statements of the Appellant. Turning to the submission of the Appellant’s Learned Counsel that the contents of the confessional statements, Exhibits P2 and P5, were at variance with the Charge against the Appellant, the Respondent’s Learned Counsel submitted that it was not the case. The Charge, he submitted, is that the offence was committed on or about the 23rd day of November, 2016. This he argued, meant that the offence was committed before or even after 23/11/2016. He submitted therefore that the confessional statements showed that the Appellant committed the offence.

With regard to the mental challenge of the PW4, the Respondent’s Learned Counsel submitted that the Learned trial Judge was rightly satisfied that the challenge notwithstanding, the PW4 knew what he was talking about. It was submitted that where a trial Court has properly evaluated evidence before it, the Appellate Court will not substitute its views with that of the trial Court. He submitted that the findings of the trial Court were not perverse and as such this Court should not interfere with them. He submitted that the Learned trial Judge was even lenient in sentencing the Appellant as the offence carried a 21 year term imprisonment. We were urged to dismiss the appeal. Now, the argument of the Appellant’s Learned Counsel in trying to persuade us that the decision of the Court below is wrong can be classified into two. They are:
(1) The contents of the confessional statements did not reflect the commission of the crime having regard to the time of the commission of the crime as stated in the Charge; and
(2) The confessional statements were retracted and not corroborated.

With regard to the argument that the contents of the confessional statements did not

reflect the commission of the crime having regard to the time of the commission of the crime as stated in the Charge, a look at the wording of the Charge as regards the time of the commission of the crime shows that it was not very specific as to the time of the crime. The charge reads inter-alia “That you IBRAHIM ADAMU, YA’U MUHAMMED on or about the 23rd day of November, 2016…” Now, the phrase ‘on or about’ has received judicial interpretation in a number of cases. In VEEPEE INDUSTRIES LTD V. COCOA INDUSTRIES LTD (2008) LPELR- 3461 (SC) the Supreme Court stated that the phrase ‘on or about’ connotes something ‘near to’ in number, time, place, quality, size, quantity or degree’. The Court went on to explain thus “if it relates to number, it means the exact number is not known. If it relates to size, it means the exact size is not known. If it relates to time, it means the exact time is not known, etc. So it is a word (sic) which comes with uncertainty or speculation.” In AKPA V. STATE decided in 2006 (unfortunately the judgment and the full citation had not been fully downloaded on the electronic platform at the time of the writing of this judgment), this

Court held that where the phrase ‘on or about’ is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It is clear to me that the phrase ‘on or about’ is used to indicate an approximate time or location. When used in a pleadings for example, its use is to prevent a variance between the pleading and the proof. When used in a charge, it serves the same purpose. It is to prevent a variance between the charge and the proof of the charge whether through a confessional statement or some other evidence. Thus, the argument of the Appellant’s Learned Counsel that the Lower Court should not have given credence to the confessional statements of the Appellant because their content as to the date of the commission of the crime is not in harmony with the date of the commission of the crime as stated in the Charge, is misconceived. Besides, the portion of the Appellant’s confessional statement in Exhibit P5 quoted by the Appellant’s Learned Counsel at p. 16 of the Appellant’s Brief cannot lead to the conclusion that the crime was committed years ago. It merely shows that the Appellant has been engaged in unnatural sex through

the anus with PW4 for quite some time and same was engaged in with the PW4 lately at the APC office. The portion of the confessional statement quoted by the Appellant’s Learned Counsel reads:
“I meet (sic) with one boy by name Umar Ya’u at my working place for over a year now and I carry him to APC where I have homosexual with him”

I now turn to consider whether the Lower Court was right to have relied on the confessional statements. The law is quite clear that a confessional statement can be eminently relied upon in convicting an accused person without more. The simple reason is that a confessional statement as the name states, is confessional. It bares the mind of the confessor. As long as the confessional statement is not the product of any oppression, that is to say, torture, inhuman or degrading treatment, use or threat of violence whether or not amounting to torture (Section 29(2) of the Evidence Act, 2011) and the statement states or suggests the inference that the defendant committed the crime (Section 28 of the Evidence Act), the case is as good as an open-and-shut case. What can be better than a statement, as it were, from the horse’s mouth?

including QUEEN V. OBIASA (1962) 1 ANLR 65; AKPAN V THE STATE (1992) 6 NWLR Part 248 439, 460; DAWA V. THE STATE (1980) 8-11 SC 236; AIGUOREGHIAN & ANOR V THE STATE (2004) 3 NWLR Part 860 P.367.
It will be wrong to say that the Court below did not apply the tests in R V SYKES (supra).Learned Counsel himself agreed in his argument that the Learned trial Judge found that the confessional statements were corroborated by the evidence of PW4. There is no doubt that one of the six tests is to ask the question whether the confessional statement was corroborated. It seems that the grouse of the Appellant is that the trial Court in his view, was not cautious in accepting the evidence of PW4 as corroborative because PW4 is a person of unsound mind. Now Section 175 (1) of the Evidence Act, 2011 states that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. Section 175(2) of the Evidence Act specifically addresses

the competence of persons of unsound mind to testify. It states: “A person of unsound mind is not incompetent to testify, unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them.” The Learned trial Judge was evidently aware of the provision of the law when he relied on the evidence of PW4 which he found to be corroborative of the confessional statements of the Appellant. He found that PW4 was rational in his answers. He found that although the PW4 could not recall the exact date of the crime, the said PW4 stated in his evidence that it was about two years prior to the date he gave evidence, having given evidence on 30/4/18. The Learned trial Judge was impressed. He summed up his impression of PW4 in the following words:
“From the observation, even though PW4 broke down when he recalled what was done to him by the defendants, he did not strike the Court as not knowing where he was. He maintained his evidence even under cross- examination as to the sexual assaults on him. He also said he was born in 2003 which corresponds with his evidence in chief where he said he was born 15 years ago”.

ago”.
The Learned trial Judge then concluded: “It is my finding that the evidence of PW4 provided the necessary corroboration for the defendants double confessions and I so hold.” I cannot fault the finding and conclusion of the learned trial Judge. He was right to have held that the evidence of PW4 corroborated the confessional statements of the Appellant.
All considered, I find that the appeal has no merit. I dismissed it. The Judgment of the lower Court is affirmed.

HUSSEIN MUKHTAR, J.C.A.: I was privileged to read in advance the lead judgment just rendered by my learned brother, Obietonbara O. Daniel Kalio, J.C.A. I agree completely with the reasons and the conclusion that the appeal has no merit. It deserves to be and is hereby dismissed. The judgment of the Court below is affirmed.
I subscribe to other consequential orders made in the judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother O.O. DANIEL-KALIO JCA, in the appeal by the Appellant against his conviction and sentence by the lower Court for having carnal knowledge, along with one Ibrahim Adamu, of one Ya’u Umar

through his anus, punishable order Section 259 of the Penal Code and sentenced to seven years imprisonment each. I have no reason to fault the meticulous and well written judgment of the trial judge H.A.L. Balogun J.

In alignment with my learned brother, I also find no merit in this appeal and dismiss it. The judgment of the lower Court is accordingly affirmed.

Appearances:

DELE OYE, ESQ. For Appellant(s)

MARYAM M. SALISU, ESQ. For Respondent(s)