THE STATE V SANI IBRAHIM
In the Supreme Court of Nigeria
Thursday, January 17, 2019
Case Number: SC.1097/2016
IBRAHIM TANKO MUHAMMAD
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
AMINA ADAMU AUGIE
(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN. JSC)
The appellant and five others were charged before the High Court of Katsina State, Katsina Judicial Division on a two-count charge as follows:
That you (1) Sani Ibrahim, (2) Abubakar Ibrahim, (3) Abdu Musa, (4) Nura Buhari, (5) Ibrahim Abduihamid and (6) Ibrahim Tukur on or about the 23’d day of July 2003 at Mazado Timber Factory along Yahaya Madawaki Way, Katsina, within Katsina Judicial Division, had formed a common intention to commit culpable homicide punishable with death in furtherance of which you caused the death of one Usman Dan-Iyau (Mai-gadi) of the same address by doing an act to wit-beating him and thereafter slaughtering him with a knife with the knowledge that death will be the probable consequence of your act; and thereby committed an offence punishable under section 221 (b) read with section 79 of the Penal Code.
That you (1) Sani Ibrahim, (2) Abubakar Ibrahim, (3) Abdu Musa, (4) Nura Buhari, (5) Ibrahim Abduihamid and (6) Ibrahim Tukur on or about the 23 d day of July 2003 at Mazado Timber Factory along Yahaya Madawaki Way, Katsina, within Katsina Judicial Division, had formed a common intention to steal, in furtherance of which you broke into the premises and office of the said Mazado Timber Factory and used personal violence on one Usman Dan-Iyau (Mai-gadi) of the same address and thereby committed an offence under section 2 (2) (b) read with section 2(1) of the Robbery and Firearms (Special Provision) Act Cap.398 Laws of the Federation 1999 as amended.”
The accused persons were arraigned on 21st June, 2005. They pleaded not guilty to each of the counts. The appellant was the 1st accused. The deceased who was a night guard at Mazado Timber Factory, was allegedly beaten and slaughtered to death by the appellant and his co-accused. The prosecution’s case was based, essentially, on the confessional statements of the 1st, 2nd, 3rd, 4th and 6th accused persons and Exhibit L, the post mortem report. The medical doctor, though summoned, did not attend court to testify. The knife allegedly used in the commission of the offence was tendered but rejected.
At the conclusion of the trial, the appellant and his co-accused, except the 6th accused who had died in the course of the hearing, were found guilty on both counts and sentenced to death. They appealed against their conviction and sentence to the Court of Appeal, Kaduna Division. The court set aside the judgment of the trial court and acquitted and discharged the appellants. It held that the confessional statements relied upon by the trial court did not meet the credibility test; that Exhibit L as to the cause of death was in conflict with the alleged confessions of slaughtering the deceased; that the evidence of the appellants as to how and where they were arrested was contrary to the evidence of PW6 who said he arrested them all at Gidan Nama around 3am while they were asleep.
The State was dissatisfied with the judgment and has appealed to this court vide its notice of appeal dated 9/7/15 containing four grounds of appeal. The appeal was argued on the Amended Notice of Appeal deemed filed on 21/3/2018, which also contains four grounds of appeal.
At the hearing of the appeal on 25th October, 2018, FREDRICKS E. ITULA ESQ., adopted and relied on the appellant’s amended brief of argument filed on 3/10/17 but deemed filed on 21/3/18 in urging the court to allow the appeal. G.C. UGOCHUKWU ESQ., adopted and relied on the respondent’s brief, which was also deemed filed on 21/3/18 in urging the court to dismiss the appeal.
The appellant raised two issues for the determination of this appeal as follows:
1. Whether the learned Honourable Justices of the Court of Appeal were right when, they held that the retracted confessional statement of the appellant did not pass the tests laid down for the conviction solely on the confession which created doubt in the mind of the court and therefore was resolved in favour of the appellant.
2. Whether the failure on the part of the prosecution to call the medical doctor for cross-examination and tendering of the alleged knife which was tendered but marked rejected have constituted a set back on the evidence presented by the prosecution.
Learned counsel for the respondent distilled a sole issue thus:
Whether the lower court was right to set aside the trial courts conviction and sentence of death passed on the respondent and substituting an order of discharge and acquittal?
I shall adopt the sole issue formulated by learned counsel for the respondent in determining this appeal, as it is concise and to the point.
Learned counsel for the appellant commenced his submissions by reiterating the settled principle of law that in a criminal proceeding, the prosecution must prove its case beyond reasonable doubt. He submitted that in a charge of culpable homicide punishable with death the prosecution must prove:
a.the death of a human being;
b.that the death was caused by the accused person;
c.that the act of the accused which caused the death was done with the intention of causing death or grievous bodily harm; and
d.that the accused person knew that death would be a probable consequence of his act.
He referred to: Bright Vs The State (2012) 8 NWLR (Pt.1302) 297 @ 302. He submitted that the death of a human being was proved through the evidence of PW1 and PW4, Exhibit L, the medical report, Exhibits G, G1 and H and H1 (photographs of the deceased) and Exhibits J and 31 (negatives of the photographs).
On whether the appellant was one of those who caused the death of the deceased, he submitted that the prosecution is at liberty to adopt any of the following methods in proving its case:
a.by direct evidence;
b.by circumstantial evidence; and
c.by the confessional statement of the accused.
See: Emeka Vs The State (2001) 14 NWLR (Pt.734) 666 @ 683.
He submitted that in the instant case, the prosecution relied on the confessional statement of the appellant, Exhibit C (Hausa version) and Exhibit CI (English translation), wherein he described vividly how he and his co-accused killed the deceased. He submitted that once the court is satisfied that the confessional statement is freely and voluntarily made and that it is direct and positive, it can base a conviction on it without the necessity of corroborative evidence. He referred to Section 29 (2) of the Evidence Act, 2011 and several authorities, including Yusufu Vs The State (1976) 6 SC 167: Ogoala Vs The State (1991) 2 LRCN 66 and Igiri Vs The State (2012) 16 NWLR (Pt.1327) 522.
He noted that Exhibits C and C1 were tendered without objection. He submitted that where no objection is raised at the point of tendering a confessional statement, the presumption is that it was voluntarily made. He relied on: Osuagwu Vs The state (2013) l – 2 SC 194. He submitted that the time to raise an objection to the voluntariness of a confessional statement is at the time it is tendered. He referred to: Adebayo Vs The State (2014) 5 SCN3 825 @ 883.
He submitted that the retraction of his confessional statement in the course of his defence at the trial is belated and cannot affect its admissibility. He referred to: R V. Itula (1961) AU NLR 249; Salawu Vs The State (1971) NMLR 462; Akpan Vs The State (2001) 7 SC (Pt.II) 29. Relying on Okoh Vs The State (2014) 8 NWLR (Pt.1410) 502 @ 506, he submitted that where an accused person retracts his confessional statement, the court is enjoined to look for evidence outside the statement, no matter how slight, that makes the confession probable. He set out the guidelines for examining a confessional statement as stated in R Vs. Svkes (1913) Cr.App. Rep. 233 @ 236 – 237.
He submitted that once tendered and admitted in evidence, a confessional statement forms part of the prosecution’s case and being a statement of admission of guilt by the accused, it is the best evidence in a criminal prosecution. He cited the case of: Soloia & Anor. Vs The State (2005) 5 SCN3 139 @ 154; (2005) 5 SC (Pt.I) 135. He submitted that the court duly considered other evidence outside of Exhibits C and C1 before concluding that the appellant was guilty of the offences with which he was charged.
He submitted that the reasoning of the lower court that not much probative value could be placed on Exhibits C and C1 because, apart from his age and address, no other personal information known only to him was contained therein, should not be allowed to stand. He submitted that the appellant’s age and address are facts within his personal knowledge. He submitted further that the issue as to contradiction between the evidence of PW6 as to where he arrested the appellant and his co-accused and the appellant’s testimony as to how he was arrested, was not welt founded, as there was evidence before the court that the appellant and his co-accused were arrested for a different offence and it was while undergoing interrogation that the appellant confessed to the robbery in this case. —
He submitted that for contradictions in the evidence of prosecution witnesses to be material and capable of rendering the evidence unreliable, it must relate to the material ingredients of the offence. See: Igabele Vs The State (2006) LPELR-1441 (SC); (2006) 6 NWLR (Pt.975) 100. He submitted that the evidence as to how the appellant was arrested is not material. He submitted that it is not in every case where the prosecution fails to tender the weapon used to commit an offence that it would be fatal to its case. He relied on: Olayinka Vs The State (2008) 6 ACLR 194: (2007) 9 NWLR (Pt. 1040) 561; Simon Vs The State (2017) LPELR-41988 (SC). He submitted that the evidence of PW4 and Exhibits G, G1, H and H1 were sufficient proof of the fact that the deceased was slaughtered with a knife.
With regard to medical evidence, he submitted, relying on Ogbu Vs The State (1992) 8 NWLR (Pt.259) 255; Onwumere Vs The State (1991) 4 NWLR (Pt.186) 428 and Babaga Vs The State (1996) 7 NWLR (Pt.460) 279, that medical evidence is not always essential to prove the cause of death, especially where the deceased died on the spot or where there is abundant evidence of the manner of death. He submitted that in any event, medical evidence is opinion evidence which is merely advisory and is not necessarily binding on the court. He referred to some Indian authorities on the point. He submitted that all that is required is proof that the death of the deceased was a direct result of the act of the accused. He asserted that the prosecution discharged this burden in the instant case.
Learned counsel for the respondent on the other hand, contends that the lower court was right in setting aside the judgment of the trial court on the ground that there were reasonable doubts in the prosecution’s case.
He submitted that the issue in this appeal borders on the proper evaluation of evidence, which is the bedrock of any decision. He referred to: Onwuka Vs Ediaia (1989) 1 NWLR (Pt.96) 182 @ 208 – 209. He submitted that in criminal cases, the evaluation of evidence consists of: (a) what was the evidence before the trial court?; (b) whether the trial court accepted or rejected the evidence upon the correct perceptions; (c) whether it correctly approached the assessment of the evidence before it and placed the right probative value on it. He referred to: Al-Mustapha Vs The State (2013) LPELR-20995. He set out the ingredients of the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code and submitted that the death of the deceased is not in doubt. He submitted that the issue in contention is whether the appellant is linked with the killing of the deceased and whether the prosecution proved the required intent to
cause death or knowledge that death would be a probable consequence of his act. He conceded that the prosecution does not have to rely on direct evidence and that in deserving cases, circumstantial evidence that is cogent and points irresistibly to the guilt of the accused, is admissible and can ground a conviction. He referred to: Ogba Vs The State (1992) 2 NWLR (Pt.222) 164 @ 198; Ukorah Vs The State (1977) 4 SC 167; Gabriel Vs The State (1989) 5 NWLR (Pt.122) 457; Akano Vs A.G. Bendel State (1988) 2 NWLR (Pt.75) 201. He submitted that a confessional statement that is positive, direct and unequivocal can equally ground a conviction. See. Nwaebonvi Vs The State (1994) 5 NWLR (Pt,343) 138; Yusuf Vs The State (1976) 6 SC 167; Bature Vs The State (1994) 1 NWLR (Pt.320) 267.
He submitted that in looking for evidence outside the respondent’s statement to determine if it was credible, the learned trial Judge erred by relying on the retracted statements of the other accused persons. He submitted that it is well settled that the statement of an accused person to the Police confessing that he committed the offence with which he is charged, is admissible against the maker only and does not bind a co-accused. He referred to: Enitan Vs The State (1986) 3 NWLR (Pt.30) 604: Badmus Vs C.O.P. (1942) 12 WACA 432; The State Vs Gwanqwan (2015) LPELR-24837 (SC). He submitted that the approach of the learned trial Judge is not sustainable in law.
He submitted that the respondent’s alleged confessional statement did not pass the test laid down in R V. Svkes (supra). He submitted that the court is entitled to consider not only the contents of the statement but also its structure. He submitted that in this case, the structure of the respondent’s statement raised serious doubts as whether it was made by him.
He reiterated the view expressed by the lower court that the statement did not contain any of the respondent’s personal information, which would be facts strictly within his knowledge. He submitted that the evidence of the appellant that the respondent confessed that he owned the knife used to kill the deceased and that it was recovered from him, was debunked when it was discovered that the number used to identify the recovered knife by the witness could not be found on the knife sought to be tendered.
He submitted that while it is not mandatory to tender the weapon used in the commission of an offence, in a situation where a witness testifies as to a certain state of affairs, he has the onus of proving same. He referred to: Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 561 @ 575 – 576, wherein this court held that the tendering of the weapon was not necessary since the prosecution did not allege its recovery and submitted that the converse must also be true, to wit: where evidence is given that the weapon was recovered, it ought to be tendered in evidence. He submitted that failure to tender the knife in this case negatively impacted on the prosecution’s case.
He submitted that the evidence of the prosecution that a blood-stained knife was recovered from the respondent about three weeks after the incident, was not credible. He submitted that a forensic test ought to have been, conducted to determine whether the bloodstain belonged to a human being and specifically whether it belonged to the deceased. He submitted that another inconsistency in the prosecution’s case is that the appellant, in his statement said the deceased was slaughtered with a knife, while the medical report, Exhibit L, stated the cause of death to be multiple lacerations on the head and- possible fractured mandible. He submitted that where the prosecution’s case is replete with inconsistencies, it raises doubt, which was rightly resolved in the respondent’s favour. He referred to: Alamu Vs The State (2009) 10 NWLR (Pt.1148) 31 @ 46: Ankwa Vs The State (1969) l ALL NLR I33 @ 136. He submitted that the
inconsistency could have been resolved through the maker of Exhibit L, who in spite of several adjournments for the purpose, did not attend court to be cross-examined. He submitted that his non-appearance undermined the probative value that could be attached to Exhibit L.
He submitted further that although the prosecution is not required to call a host of witnesses to prove its case, in the circumstances of this case, the maker of Exhibit L was a material witness, whose evidence would have had a decisive effect on its case. He contended that the failure to call him was fatal. He referred to:
The State Vs Nnolim (1994) 5 NWLR (Pt.345) 395 @ 406: The State Vs Azeez (2008) 14 NWLR (Pt.1108) 439 @ 470 B – F. Relying on the case of: Onubogu Vs The State (1974) 9 SC 1 @ 20. he submitted that the appellant is not at liberty to pick and choose which version of the evidence the court should accept. He also referred to: Udosen Vs The State (2007) 4 NWLR (Pt.1023) 125 @147 @ 160.
Learned counsel submitted further that the lower court was right when it held that the evidence led by the appellant that the respondent and his co-accused were arrested on the same day and at the same time in the same place was contrary to the evidence of the respondent that they were arrested at different locations. He submitted that the appellant failed to prove that the respondent and his co-accused were acquainted before the day they were arrested.
He submitted that the respondent gave evidence during the trial of how he was tortured before his statement was obtained. He commended the decisions of this court in: Owhoruke Vs C.O.P. (2015) 6-7 SC (Pt. II) 40 @ 59 – 60 and Valentine Adie Vs The State (1980) ALL NLR 39; (1980) LPELR-176 (SC), on the need for the court to be cautious when relying on confessional statements or circumstantial evidence to found a conviction. He urged the court to dismiss the appeal.
It is a settled principle of law that in criminal proceedings the prosecution must establish the guilt of the accused person beyond reasonable doubt. It is also well settled that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt or beyond any iota of doubt. If the prosecution has led evidence that is cogent, credible and compelling, which points irresistibly to the guilt of the accused, it would have discharged the burden. Proof beyond reasonable doubt depends not on the quantity of witnesses for the prosecution but upon the quality of the evidence given. See: Basil Akalezi Vs The State (1993) 2 NWLR (Pt.273) 1; Michael Vs The State (2008) 13 NWLR (Pt.1104) 361: Smart Vs The State (2016) LPELR-40728: Nwaturocha Vs The State (2011) 6 NWLR (Pt.1242) 170.
There are several methods by which the prosecution may discharge the burden of proof placed on it by law, that is:
a.By direct evidence of eye witnesses;
b.By circumstantial evidence; and
c.By the confessional statement of the accused person.
Any one or a combination of the methods may be relied upon.
See: Abirifon Vs The State (2013) 13 NWLR (Pt.1372) 587: Ogunkayode Vs The Queen (1954) 14 WACA 458; Egboghonome Vs The State (1993) 7 NWLR (Pt.306) 383: Igabele Vs The State (2006) 6 NWLR (Pt.976) 100 @ 120-121 H-A; Adio Vs The State (1986) 5 SC 194 @ 219-220.
Sections 28 and 29 (1) and (2) of the Evidence Act, 2011, provide as follows;
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
29. (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.”
Thus, a confession is relevant and admissible in evidence if it is positive and direct and constitutes one or all the elements of the offence charged. The court must also be satisfied that it is unequivocal and that it was voluntarily made. See: Igbinovia Vs The State (1981) LPELR-1446 (SC) @ 17 B – D; (1981) 2 SC 5: Yesufu Vs The State (1976) 6 SC 163; Adebayo Vs The State (2014) LPELR-22988 (SC) & 55 – 56 F – A. Once admitted in evidence, a confessional statement forms part of the prosecution’s case and its probative value will be considered alongside other evidence in the case. See: Egboahonome Vs The State (1993) 7 NWLR (Pr.306) 383: Osung Vs The State (2012) 18 NWLR (Pt.1322) 256; Akpan Vs The State (2001) 15 NWLR (Pt.737) 745.
It must also be stated that the time to object to the voluntariness of a confessional statement is when it is sought to be tendered and not after it has been admitted in evidence. See: Godsgift Vs The State (2016) LPELR-40540 (SC) & 31 B – C: Olatekan Vs The State (2002) 2 SCN3 104: Muhammad Vs The State (2017) LPELR-42098 (SC) @ 17 – 18 C – B. It is quite clear from the record of proceedings that on 13/7/05 the respondent’s statement recorded in Hausa language and its English translation (Exhibits C and C1) were admitted in evidence without objection.
The allegation that the statement was obtained under duress made at the trial during the respondent’s defence, was too late in the day. The learned trial Judge was right to have considered its probative value along with other evidence before him, its retraction at the trial notwithstanding. See: Egboghonome Vs The State (Supra). As pointed out by the learned trial Judge, the prosecution relied mainly on the confessional statements of the appellant and his co-accused in securing their conviction. It is trite that a conviction may be based solely on the confessional statement of an accused person without corroboration if it is positive, direct and properly proved. See: Mohammed & Anor. Vs The State (2007) LPELR-1894 (SC) @ 13 B – E:(2007) 11 NWLR (Pt.1045) 303: Milla Vs The State (1985) 3 NWLR (Pt.11) 190: Ikpo Vs The State (2016) LPELR-40114 (SC) @ 38 – 39 C – C.
It has been the practice of our courts over the years to be guided by the test laid down in R V. Svkes (1913) 8 cr. APP. Reports 233, to satisfy itself that the confession is probable before basing a conviction on it. The court is enjoined to consider the following:
i)Whether there is anything outside the confession which shows that it may be true;
ii)Whether the confessional statement is in fact corroborated;
iii)Whether the relevant statements of fact made in it are most likely true as far as they can be tested;
iv)Whether the accused had the opportunity of committing the offence;’
v)Whether the confession is possible; and
vi)Whether the alleged confession is consistent with other facts that have been ascertained and established.
See also: Ubierho Vs The State (2002) 5 NWLR (Pt.819) 644 @ 655; Nwachukwu Vs The State (supra); Lawal Vs The State (2016) LPELR-40633 (SC) & 21 – 22 B: Fabiyi Vs The State (2015) LPELR-24834 (SC) @ 33 – 34 E- D.
In order to prove the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code, the prosecution must prove beyond reasonable doubt:
a.the death of a human being;
b.that the death resulted from the act of the accused person;
c.that the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm would be its probable consequence.
See: Maivaki Vs The State (2008) 7 SC 128 @ 129; Usman Vs The State (2013) 12 NWLR (Pt,1367) 76; Ismail Vs The State (2011) LPELR- 9352 (SC) @ 18 – 19 F – C.
Learned counsel on either side concede that the death of the deceased is not in doubt. The issue to be resolved is whether the learned trial Judge was right when he held that the appellant was one of those who killed him or whether the court below was right when it held that the prosecution failed to prove its case beyond reasonable doubt.
The prosecution called seven witnesses, six of whom were Police officers. PW1, Yunusa Abdullahi, is the operator of the timber factory where the deceased met his death. He testified that the deceased worked for him at the factory, which he also referred to as the saw mill. That on 23rd July 2003, his driver returned from Lagos with goods around 6am and found the deceased in his room in a pool of blood. He came to inform him and he accompanied his driver back to the scene where he found the deceased already dead. He immediately went to Sabon Gari Police Station to make a report. The D.P.O. and five other policemen proceeded to the scene. The deceased was placed in the Police vehicle and taken to Katsina General Hospital where he was pronounced dead. Under cross-examination he stated that there was so much blood on the deceased that it was difficult to recognise him. He also stated that his office was broken into and ransacked although nothing was taken.
PW3, a Police corporal testified that while investigating a different case of robbery, when the respondent and his co-accused were transferred to State CID Katsina, they confessed that it was not the only crime they had committed and that they told him they were the ones who slaughtered the security guard at the saw mill on 23/7/2003. It was PW3 who recorded the respondent’s statement. Both the Hausa and English translation were tendered and admitted in evidence without objection as Exhibits C and Cl respectively. No question was put to PW3 as to the voluntariness of the statement.
PW4 was Sgt. Yusuf Sanda, attached to Sabon Gari Police station where the incident was first reported. He testified that he visited the scene in the company of a photographer. He stated that he saw the deceased covered with blood, with a deep cut on his head, and saw that a sharp object had “tampered with his throat.”.
He also Stated that they saw blood stains about 100 metres from where the body was found. Photographs taken of the deceased along with the negatives were admitted in evidence and marked Exhibits G and G1, H and H1 and J and J1 respectively. The medical report was tendered through him and marked Exhibit L. The knife allegedly recovered from the respondent was sought to be tendered through PW7. Learned counsel for the respondent raised an objection to its admissibility, which was upheld by the court. It was accordingly rejected.
Now, in Exhibit C1 (the English version of Exhibit C), the respondent stated, inter alia:
“On our coming out we sighted a watch night lying down sleeping and we started beating him. Later I bring out knife with me and. slaughtered him on his neck as we drag him down to the bush. Later again we advice to bring him back to the shop and we do so and later lock him inside the shop.”
It is relevant to note that the learned trial Judge cautioned himself on the need to apply the test in R Vs Svkes (supra) in determining the weight to be attached to the respondent’s confessional statement. He found that aspects of the statement tallied with other evidence in the case; such as the evidence of PW1 as to how he found the deceased. The evidence of PW4 that blood stains were found about 100 metres away supports the respondent’s statement that the deceased was initially dragged to the bush before being brought back to the office. The learned trial Judge also found that each of the 1st, 2nd, 3rd, 4th and 6th accused persons gave similar accounts in their statements as to how they broke into the shop but did not find money. How they beat the deceased, killed him and dragged his body to the bush and later brought him back to the office.
It is true that by virtue of Section 29 (4) of the Evidence Act, 2011, where more than one person is charged with a criminal offence, a confessional statement by one of the accused is only admissible against the maker unless any of the other accused persons in whose presence the confession was made, adopts the statement by words or conduct.
In the instant case, there were 6 accused persons standing trial. Their confessional statements were admissible against each of them and the court was entitled to consider the evidence outside those statements, which made it probable that they were true.
What the court found was that each accused separately gave details of what transpired and named their co-accused. The court found that the individual statements tallied with other evidence led by the prosecution. Indeed, the lower court was of the same opinion. I refer to page 172 of the record. The submission of learned counsel for the respondent that the lower court relied on the confessional statements of his co-accused to convict the respondent, is misconceived.
I am inclined to agree with learned counsel for the appellant, that the lower court erred in holding that Exhibits C and C1 could not be relied upon because they did not contain the respondent’s personal information. No such objection was raised when the statements were tendered in evidence. It was never contended that the statements were not made voluntarily. Furthermore, the learned trial Judge had properly subjected the statements to the relevant test and found the confession to be true.
It is pertinent to observe that the comments made by the lower court regarding the state of the knife allegedly recovered from the respondent were made obiter. This is because the knife was tendered and rejected and therefore did not form part of the prosecution’s case. It was not before the court. Any comments on its condition are speculative and not borne out by the record. The court’s observations in this regard must be and are hereby discountenanced.In the instant case, the respondent unequivocally admitted the role he played in the death of the deceased. What the prosecution is required to do is to call the witnesses it considers necessary to discharge the burden of proving its case beyond reasonable doubt.
It would be recalled that the respondent, along with his co-accused, was also charged with attempted robbery punishable under Section 2 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1999 as amended.
The learned trial Judge at pages 91 – 92 of the record held:
“It is part of the requirements for accepting a confessional statement to have something outside the confessional statement. On this I refer to the testimony of PW1, the owner of the Timber Factory who stated among other thing (sic) “on the 23d of July, 2003, my driver came back from Lagos with goods at 6.00am in the morning he was the first to see the deceased in his room in a pool of blood at the Saw Mill Factory. He then met me at home and informed me what happened.”
All the statements of the accused contain the aspect of slaughtering the deceased with a knife. Some specifically mentioned the 1st accused as the one who perpetrated the act and ultimately put him in his room. The second accused specifically stated that “we started beating him with sticks.” On the cause of death, the exhibit K which is the Hospital Card issued when the deceased was taken to the hospital, it is stated that “the deceased is a security guard who was attacked by armed robbers while on duty. He had deep lacerations on the head with possible fracture of the mandible and other bones as a result of the assault He was brought dead and confirmed dead. There is also tendered in evidence the negatives and photographs of the deceased and the door to the office of the furniture factory as Exhibit G and G1, H and HI and J and J1 respectively. On the submission of counsel to the accused that the prosecution did not prove its case beyond reasonable doubt on the allegation of attempt to commit robbery contrary to section 2 (1) and 2 (b) of the Robbery and Firearms (Special Provisions) Act (supra), the explanation of counsel on this issue is not acceptable to the court. The accused in their statement stated that they broke the door to the office but did not get any money but they said they saw the security man and they beat him up and subsequently slaughtered him.”
The reasoning of the learned trial Judge is sound and unassailable. The confessional statement of the respondent, which was corroborated by other established facts, which the court believed and found to have been voluntarily made, was sufficient to ground the conviction in this case. The failure of the maker of Exhibit L to testify, having regard to the facts and circumstances of this case was not fatal.
I am therefore in agreement with learned counsel for the appellant that the lower court erred when it set aside the respondent’s conviction and sentence. I hold that there is merit in this appeal. It is accordingly allowed. The judgment of the Court of Appeal, Kaduna Division, delivered on 12/6/2015 acquitting and discharging the respondent is hereby set aside. The judgment of the High Court of Katsina State delivered on 6/5/2009 convicting the appellant of culpable homicide punishable with death under Section 221 (b) of the Penal Code and common intention to steal contrary to Section 2 (2) (b) of the Robbery’ and Firearms (Special Provisions) Act, and the sentence of death and life imprisonment respectively imposed on him, are hereby restored.
EJEMBI EKO, JSC: The Respondent was the 1st Accused at the trial High Court of Katsina State. He was tried jointly with others on a two count charge of conspiracy to commit culpable homicide punishable with death under Section 221 (b) of the Penal Code Law of Katsina State read together with Section 79 of the same Penal Code, and armed robbery contrary to Section 2 (1) and punishable under Section 2 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of LFN, 1999. The High Court, finding him guilty as charged, convicted him and sentenced him to death. On his appeal to the Court of Appeal (the Lower Court) the conviction and sentence were all set aside; hence this appeal by the prosecutor.
Other salient facts of this appeal having been adroitly summarised in the lead judgment just delivered by my learned brother, K. M. O. KEKERE-EKUN, JSC, which I hereby endorse; I no longer intend to repeat them.
Exhibits C & C 1, an extra-judicial statement made by the Respondent, were confessional. They were admitted in evidence through the Police investigator without any objection. The appropriate time to object to admissibility of any statement intended to be used by the prosecution against the accused person is when the statement is being tendered and not after, particularly on appeal: IWEKA v. FRN (2011) LPELR – 9350 (SC); OGUDO v. THE STATE (2011) NWLR (pt. 1278) 1 at 45.
The Respondent subsequently retracted Exhibits C & C 1. A retracted confessional statement is nonetheless admissible in evidence. The practice however is to look for some corroborative evidence outside the confession which makes the fact of the making of the confession credible and reliable before the court relies on it to convict the accused, the maker. This practice which has come to be known as the “SYKE’S RULE”, following R. v. SYKES (1913) 8 Cr. App Report 233, has since become part of our criminal law jurisprudence, it having been cited with approval in several cases including UBIERHO v. THE STATE (2002) 5 NWLR (pt. 819) 644; FABIYI v. THE STATE (2015) LPELR – 24834 (SC). The Rule ensures that the trial court must properly satisfy itself that the retracted confession was infact made truly and voluntarily by the accused person.
The PW.3 testified that the Respondent freely and voluntarily made the statement, Exhibits C & C 1; which he recorded from the Respondent upon words of caution administered to him. His evidence remains unscathed.
He was not shaken under cross-examination. Other pieces of evidence at pages 14, 15, 16, 26 and 30 of the Record to the effect that the Appellant confessed to his slaughtering or participating in the slaughtering of the deceased night watch-man remain unscathed. In particular, the PW.3, also testified, undiscredited, that all the accused persons (including the Respondent) confessed on 23rd July, 2003 that they slaughtered the deceased. These pieces of evidence are consistent with the substance of Exhibits C & C 1. The evidence of the PW4 at Page 26 of the Record that a sharp object tampered with the throat of the deceased is consistent with the admission that the deceased was slaughtered. The pieces of evidence extrinsic to or outside Exhibits C & C 1 overwhelmingly corroborated Exhibits C & C1 in materia particular. They make it most probably true that the Respondent made the statement. I neither think nor agree with the defence that the mere fact of Exhibits C & C 1 not containing the personal information or biodata of the Appellant, the confessor, renders the confession unreliable. Once the confession, from other surrounding or extrinsic evidence, was satisfactorily established or proved to have infact been made voluntarily it becomes reliable or a credible evidence against the accused person, the maker. The important thing, for a confession to be credible and reliable, is the fact that it was voluntarily made. That is all. For the purpose of this case the evidence of the PW.2, PW.3 and PW.4 amply corroborate the confession of the Respondent that he actively participated in the slaughtering of the deceased.
The fact that the PW.6 testified that all the accused persons were arrested while sleeping together is in my view a mere trifling inconsistency which does no material harm to the substance of the preceding act of causing the death of the deceased by slaughtering him. The Respondent confessed to his participating in that material actus reus. The evidence of the PW.6 does not
offer any–other material version of the slaughtering of the deceased inconsistent with the allegation of the prosecutor. It cannot therefore offer itself as any material contradiction that casts reasonable doubt of the guilt of the Respondent for the offences charged, as to bring the case within the principles in CHRISTOPHER ONUBOGU v. STATE (1974) 4 U. I. L. R 538; PAUL AM EH v. THE STATE (1978) 6 – 7 SC 27, BOY MUKA v. THE STATE (1976) 10SC305.
I agree with my learned brother, K. M. O. KEKERE-EKUN, JSC, that there is substance in this appeal. The decision of the Lower Court delivered on 12th June, 2005 acquitting and discharging the Respondent, clearly unwarranted having regard to the totality of the evidence in the printed Record, is hereby set aside.
Consequently, the conviction and sentence of the Respondent by the trial High Court of Katsina State are hereby restored.
AMINA ADAMU AUGIE. JSC: I read in draft the lead Judgment delivered by my learned brother, Kekere-Ekun, JSC, and I agree with him that the Appeal is, indeed, meritorious and must be allowed. The Respondent was arraigned with five other Accused Persons, one of whom died in the course of the trial at the High Court of Katsina State [the trial Court].
Thus, he was not tried alone, and typically, where more than one Accused Persons, who are tried together, make confessional Statements to the Police during the course of the investigations, one of the burning Issues in the Appeal, as in the case, is whether the extra-judicial Statement of one Accused is binding on another.
The position of the law is that the Statement of a Co-Accused is different and distinguishable from his oral testimony in Court. The Statement is his Statement; hot his evidence, and it is binding on him only – Suberu V. State (2010) 8 NWLR (Pt 1197) 586 SC
However, it is also settled that where evidence incriminating an Accused Person comes from the Co-Accused Person, the Court is at liberty to rely on it, provided the Co-Accused, who gave such incriminating evidence, was tried along with that Accused Person – see Dairo V. The State (2017) LPELR-43724(SC) and Micheal V. The State (2008) 13 NWLR (Pt 1104) 383, where this Court held:
The fact that the evidence was that of a Co-Accused does not prevent it from being a credible and reliable evidence, once he was jointly tried with the other Accused Persons.
So, the Court is allowed to rely or act upon incriminating evidence given by the Co-Accused Person against another Accused Person, as long as the Accused Person is jointly tried with the Co-Accused.
In this case, Respondent argued that the trial Court erred by relying on the retracted Statements of the other Accused Persons. But the trial Court did not rely on Statements of his Co-Accused in convicting him; it considered evidence outside their Statements, which were admissible against each one, and it found that their individual confessional Statements tallied with evidence adduced by the Prosecution. In other words, there was sufficient evidence led by the Prosecution, which corroborated his own confession.
The law says that where a confessional statement is the only evidence a trial Court would find to convict, particularly where it has been retracted, the trial Court must look for corroboration, no matter how slight, and satisfy itself that it was free, voluntary and properly taken – Ogudu V. State (1991) 18NWLR (Pt 1278) 1 SC. In this case, there is no question that the evidence adduced by PW2, PW3 and PW4 corroborated the Respondent’s confession that he actively participated in causing the death of the deceased.
Consequently, I also allow the Appeal and I also set aside the decision of the Court of Appeal in its Judgment of 12/6/2015. and hereby restore the decision of the High Court of Katsina State.
AMIRU SANUSI. JSC: The Judgment of my learned brother Kekere-Ekun JSC was made available to me before now. On perusing same, I find myself at one with her reasoning and conclusion that this appeal has substance and merit and must be allowed
I accordingly allow the appeal and I order that the Judgment of the trial court be restored while setting aside the Judgment of the penultimate court. Appeal allowed.
FREDRICKS E. ITU LA ESQ. for the Appellant with N.A. OBINNA ESQ, CHISOMUMEH ESQ, and ULOAKU OKECHUKWU-PHILIP ESQ.|G.C. UGOCHUKWU ESQ.for the Respondent with E.O.OKONKWO ESQ.||