SALAMI v. STATE
(2020)LCN/15194(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, March 26, 2020
CA/IB/164C/2017
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Nonyerem Okoronkwo Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
JUBRIL SALAMI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
DEFINITION OF A “CONFESSION”
A confession is defined in Section 28 of the Evidence Act as “an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
The admission must state or suggest an inference that the maker of the statement committed the crime in question. It follows that a confession must be direct and positive and not equivocal. See Joseph Okoro Abasi vs. The State (1992) 10 SCNJ 113. It also follows that a statement amounting to only an implication in a crime for example, by mere presence without more cannot be regarded as a confession. See Nigeria Navy & 2 Ors vs. Lt. Commander S.A. Ibe Lambert (2007) 9 SCNJ. There was evidence even from the team leader Kehinde Adedotun that appellant was employed “about 3 days ago before the incident”. PER OKORONKWO, J.C.A.
DUTY OF THE COURT BEFORE CONVICTING ON AN EXTRA-JUDICIAL STATEMENT OF AN ACCUSED PERSON
Before proceeding to convict on an extra-judicial statement of an accused persons, the Court must be satisfied that the statement, in law, amounts to a Confession. Section 28 of the Evidence Act, 2011, defines a confession as follows:
“A confession is an admission made at a time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” PER TSSAMANI, J.C.A.
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The appellant in this appeal Jubril Salami was convicted along with two others for the offence of conspiracy and murder contrary to Section 324 and 219 of the Criminal Code. The charges as follows:
COUNT I
That you Ibrahim Isah (M), Kehinde Adedotun (M) and Jubril Salami (M) on or about the 24th day of May, 2005 at Ajangboju area, Akobo, Ibadan, in the Ibadan Judicial Division conspired together to commit felony, to wit murder and thereby committed an offence contrary to and punishable under Section 324 of the Criminal Code, Cap. 38 Volume II, Laws of Oyo State of Nigeria, 2000.
COUNT II
That you Ibrahim Isah (M), Kehinde Adedotun (M) and Jubril Salami (M) on or about the 24th day of May, 2005 at Ajangboju area, Akobo, Ibadan in the Ibadan Judicial Division murdered one Yemi Shotanmi and thereby committed an offence contrary to and punishable under 319 of the Criminal Code Cap. 38, Volume II, Laws of Oyo State of Nigeria, 2000.
DATED 18TH DAY OF MAY 2006
The appellant pleaded not guilty and the case proceeded to trial.
At the trial, the Court placed total reliance on the confessional statement of the appellant and on the basis of the confessional statement convicted the appellant and sentenced him to death.
Against the sentence and conviction, the appellant lodged this appeal by a Notice of Appeal filed at the Oyo State High Court registry on 27th February, 2017 whereby the following grounds of appeal were raised:
GROUND I
The learned Trial Judge erred in law on the degree of evidence required to sustain the inferences/findings of conspiracy as charged.
GROUND II
The learned Trial Judge erred in law and on the facts in holding that the prosecution has proved its case beyond reasonable doubt against the Appellant despite the material contradictions in the case of the prosecution and thereby occasioning a miscarriage of justice.
GROUND III
The verdict of the Learned trial Judge is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence.
Facts of the case
From the evidence led in Court and accepted by the Court, the facts of the case were that the appellant and his co-accused Ibrahim Isah 1st accused and Jubril Salami were employed as night watch guard at Ajangboju Akobo Estate Community. They were under the supervision of the Baale of the estate. There was evidence that the appellant was employed on the 21st of May, 2005 barely two days to the incident or event that led to this case and appeal.
While they were on duty on the night of 23rd May 2005 about 1.00 pm, they found a man walking alone in the night whom they accosted and questioned. As the man could not account for his presence in the estate, they took him to the Baale who after examining the man ordered them to kill the man at an agric bush nearby. According to the confessional statements, Exhibit C1, C2 and C3 of the accused persons in particular Exhibit C2 of the appellant. They led the “wandering” man to the agric bush where 1st accused shot the man on the chest and he died immediately. They resumed their work thereafter but were arrested by the police where each of the accused made the confessional statements. Commenting on the confessional statements, the learned trial Judge commented thus at page 201 – 203 of the record:
“The 3 accused persons in Exhibits C1, C2 and C3, all voluntarily admitted to having killed the deceased. They infact testified as to how he was shot. I note the evidence of PW2 Oyeboade Alade who testified that on the night of 22/05/05 he was in his house when he heard a noise outside around his house at about 12 midnight. That he went out and he saw the 3 night guards (now 3 accused persons) beating a man whom they instructed to shout “kengbeakara” (bean cake) around the area in the dead of the night. He advised them to stop beating the man and to take him to the Baale’s house. That while discussing, the arrested person tried to escape and he ran into his neighbor’s house and his said neighbor PW3 drove him out and the man was caught again by the suspects. That the 3 suspects went away with the deceased. PW3 Mr. Ambali Akanmu corroborated the evidence of PW2 that the 3 accused persons went away with the arrested deceased. They were advised to take him to the Baale’s house. The evidence as given by PW2 and PW3 corroborated the evidence of the 3 accused persons as given on the point”.
Although, the appellant and the other accused persons each retracted from the confessions at the trial, the trial Court disbelieved them and held thus at page 204 of the record thus:
“I earlier stated in the trial within trial that the statement were made voluntarily and I still so hold. On the issue of retraction of the statements made by the suspects. See the case of Nwachukwu v. The State where Iguh JSC stated at page. 254 line 11.19 as follows:
“The fact that the accused did subsequently retract his confession does not mean that the Court cannot act on it and convict him accordingly as the circumstances of the case justify it. See Nkwuda Edamine v. The State (1996) 4 NWLR 375 at 388. It is however desirable particularly if the confession is subsequently retracted that there should be some corroboration, no matter how slight but a conviction will not be quashed mainly because it is based upon the evidence of a confession by the appellant.”
Of and concerning corroboration of the confessional statements the learned trial Judge found corroborative evidence to the confession in the evidence of PW2 Oyeboade Alade. The trial Court commented thus:
“The 3 accused persons in Exhibits C1, C2 and C3, all voluntarily admitted to having killed the deceased. They infact testified as to how he was shot. I note the evidence of PW2 Oyeboade Alade who testified that on the night of 22/05/05 he was in his house when he heard a noise outside around his house at about 12 midnight. That he went out and he saw the 3 night guards (now 3 accused persons) beating a man whom they instructed to shout “kengbeakara” (bean cake) around the area in the dead of the night. He advised them to stop beating the man and to take him to the Baale’s house. That while discussing the arrested person tried to escape and he ran into his neighbor’s house and his said neighbor PW3 drove him out and the man was caught again by the suspects. That the 3 suspects went away with the deceased. PW3 Mr. Ambali Akanmu corroborated the evidence of PW2 that the 3 accused persons went away with the arrested deceased. They were advised to take him to the Baale’s house. The evidence as given by PW2 and PW3 corroborated the evidence of the 3 accused persons as given on the point”.
Having found corroboration as shown above, the trial Court felt justified in convicting appellant of the offence of conspiracy and murder as charged.
Issues for determination
Appellant
In the appellant’s brief of argument filed 20/9/17 but deemed 28/2/19 the appellant raised a sole issue for determination namely.
Whether on the totality of the pieces of evidence before the trial Court, the guilt of the Accused/Appellant was proved beyond reasonable doubt. Grounds I, II and III.
Respondent
Similarly, the respondent in its brief of argument, raised a single issue for determination being.
Whether on the strength of the evidence adduced at the trial Court, it was right to hold that the prosecution proved its case beyond reasonable doubt?
Both issues of the parties raise the question of adequacy or sufficiency of evidence. The major evidence that was the fulcrum of the judgment is the alleged confessional statement of the appellant handwritten in ink. In order to fully consider the adequacy of evidence that resulted in the conviction of the appellant, I shall set out below Exhibit C3 being the statement of the appellant made on 23/6/05:
I Jubril Salmi (M) of the above mentioned place, I am a native of Igbeti, I was born to the family Compound Elerugba in Igbeti. I attended L.A. Primary School my elementary study but after my primary school I did not further again, later between 2001 – 2003 I went to learn Re-wire job, after that I went to our farm in order to work for my freedom ceremony money while I was at the farm things not moving at all, I decide to come down to Ibadan and joined my brother one Kehinde who lives in Ajangboju Estate Akobo Ibadan a Vigilante Security man. I came to Ibadan and joined him and two others on about three days ago before the incident that brought me to this place occurred. I came from Igbeti to Ibadan through one “Isah” brother Kehinde was the person who employed me. The incident occurred on 22nd May, 2005 we commence our vigilante work as usual the work commence around 22.00hrs, we were posted to guide the Ajangboju Primary School Area it was myself and Isah that was posted together, later at about 01.00hrs, we sighted a man who was alone without any items with him, but running towards our direction from Elewi Village Via Ajangboju Estate Akobo, although before we sighted him, we hear some villagers people voice shouting thief, thief, later we arrested the man and myself and Isah held him by his trouser and took him before brother Kehinde who was in charge of Baba Baale area while I was licking the man to Kehinde, I asked him if you are not a thief why are you running, but he kept saying that I am not a thief and that we should take it easy with him. On getting to brother Kehinde, he Kehinde instructed us to stay at a place and that he is going to informed Baale about his arrest and for him to come and see the man they arrest, on the process of that the man now deceased made an attempt to escape and ran to somebody house, the owner of the house later pushed the deceased out but instructed us to handed over the deceased to Baale and instead of beating or to kill him, later while still standing, Baale and Kehinde arrived and met us staying with the man, Baale look at the man face, and the next words he uttered was that so it was this man and that the man is a thief and that he was a wanted person, after that Baale instructed us to take the man and he also follow us to a place known as Agric bush along and in between Ajangboju Estate and Elewiodo after Ajangbju Primary School. On getting to a point on a path road that link the two aforementioned places, Kehinde instructed me to go back to my position, immediately when I turned back within a second I heard a Gunshot, but I did not know who shot, later Isah came to me and I asked him who was the person that shot, he said it was himself and that it was Baba Baale that instructed him to shot the man we arrested, it was only brother Kehinde and Isah that was having in their possession Guns – that is using cartridges, they are the guns we use to collect from one Mr. Akinbiyi whenever we want to start our security work, the said Akinbiyi was the Chairman of landlord Association. The Gun which brother Kehinde use for security job that day was not among the one’s police recovered, but one of the recovered Gun was the one Isah use on the day of the incident. I am not sure if the deceased made mentioned of anybody that we should take him to at Ajangboju Estate apart from a man whom I later know his name to be one Boade and four others whom I can identify if seen but I did not know their names, apart from these men it was only Baale that knows about the man death.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In addition to my statement, I want to state it clearly before the police that I witness the killing of Yemi the deceased, in this case and I witness that Isah was the person who shot and killed the deceased, I heard Isah when he asked the deceased to face the bush and keep walking while the deceased complied with Isah order. The Baale command Isah to shot the man but I cannot say precisely where the Gun met the deceased but the man (deceased) was silent immediately he was shot, I did not know anything about how they purchased the Gun, but I know that we use to collect Guns from Mr. Akinbiyi for our security work, together with Cartridges, but I am not opportune to be carrying or use gun because of my Bad hand as a result of the accident I had some time ago, in respect of Akinro issue who was arrested alongside with us, Akinro happen to be the husband of my Aunty, but he is not the person who employed me as a security guard and he did not witness the incident that brought me here. When I was employed brother Kehinde took me to Mr. Akinbiyi house and Mr. Akinbiyi the Land lord Chairman promise to be given me the sum of N10,000 Ten Thousand Naira monthly.
Even up till now Mr. Akinbiyi has not started paying me and he has not served me with my admission letter, but he shows Kehinde and Isah to me that they will explained further, they did and I complied with them, I am a member of O.P.C Gani Adams faction Igbeti Chapter.
The question of evidence that arises in the statement reproduced above is whether the statement in its totality or in part can be said to be a confession of the appellant to the charges wherewith appellant was charged jointly with others.
A confession is defined in Section 28 of the Evidence Act as “an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
The admission must state or suggest an inference that the maker of the statement committed the crime in question. It follows that a confession must be direct and positive and not equivocal. See Joseph Okoro Abasi vs. The State (1992) 10 SCNJ 113. It also follows that a statement amounting to only an implication in a crime for example, by mere presence without more cannot be regarded as a confession. See Nigeria Navy & 2 Ors vs. Lt. Commander S.A. Ibe Lambert (2007) 9 SCNJ. There was evidence even from the team leader Kehinde Adedotun that appellant was employed “about 3 days ago before the incident”. Appellant himself at page 182 of the record testified thus:
That he worked as a night guard and got employed on 20/05/05. That he was at work on 21/05/05. That he was at work on 23rd May, 2005 when himself and other 2 accused persons heard some people shouting “thief, thief” from another area and after a while people started screaming in their area, Ajangboju.
In his statement earlier reproduced, appellant at page 31 of the record, lines 5 thereof was recorded thus- “on getting to a point on path road that linked the two aforementioned place, Kehinde instructed me to go back to my position… Immediately when I turned back I heard a gunshot but I did not know who shot…”
Where then is the confession in the statement of the appellant which raises an inference that he committed murder? I cannot see such statement. The appellant may have been present at the scene before the team leader asked him to go back to his position perhaps having regards that he was just employed about two days previously and perhaps knew nothing about their method but mere presence at the scene without more does not translate to a confession. Nigeria Navy & 2 Ors vs. Lt. Commander S. A. Ibe Lambert (2008)4 SCNJ 1. Furthermore, a careful scrutiny of the statements of the Co-accused persons namely Ibrahim Isah and Kehinde Adetotun would not show any cohesion or concert between the appellant and his Co-accused.
Another issue arising in this appeal has to do the lump evaluation of the evidence of the accused persons including the appellant by the trial Court. It is true the accused persons were charged and tried jointly but each is a separate trial and the case of each accused particularly the appellant is to be separately considered and separately evaluated. The following excess from the judgment will show what appears to be lumping of the trial of the 3 accused persons.
(i) At page 199 of record where the Court said “I have considered the evidence adduced by the prosecution and the defence of the 3 accused persons.”
(ii) At page 200, the accused persons are unable to bring themselves within the defence allowed under the law”.
(iii) At page 201 the trial judge said at each of the accused persons including the appellant thus:-
In the statements of the 3 accused persons Exhibit “C1”, “C2” and “C3” made to the police when the incident was still fresh in their minds, the 3 accused persons gave a detailed account of the event that led to the death of the deceased. DW1 Ibrahim Isah in Exhibit “C3” stated as follows:
“For me I am the one who triggered the Cartridge (S) gun to (sic) killed the deceased person. I shot him on his chest with one round of Cartridge and abandoned him inside that Agric farm. As at the time I shot I was in company of Jubril DW3 and Kehinde Adedotun Dw2.”
DW2 – Kehinde Adedotun in his own statement Exhibit C2 stated as follows:
“…on the process Isah who was in possession of another single barrel gun pushed the deceased into the bush and immediately shot the deceased. Isah shot the deceased while he was trying to look back when Isah pushed him to the bush I am sure that the shot met him by the chest…” DW3 Jubril Salami also stated in his statement admitted as Exhibit C1 as follows:
“…I went state it clearly before the police that I witness the killing of Yemi the deceased in this case and I witnessed that Isah was the person who shot and killed the deceased. I heard Isah he asked the deceased, to face the bush and keep walking, while the deceased complied with Isah’s order. The Baale commanded Isah to shoot the man but I cannot say precisely where the gun met the deceased but the man (deceased) was silent immediately he was shot. I did not know anything about how the purchased the gun, but I know that we used to collect guns from Mr. Akinniyi for our security work…”
The 3 accused persons have by their statement Exhibit “C1”, “C2” and “C3” confessed that they shot and killed the deceased late Yemi Shotona. There is no doubt that the prosecution relies on the confessional statement of the accused persons Exhibit C1”, “C2” and “C3” to fix the accused persons with the offence charged. The position of the Law is that a man may be convicted solely on his confession.
What was said at the appellant DW3 Jubril Salami does not without more, amount to a confession and if that is the only evidence implicating the appellant, it was with due respect to the trial Court misconceived. And that statement being the only evidence connecting the appellant with the said offence and it not being a confession, I answer the sole issue in the negative that there is not sufficient evidence to connect the appellant with the offence.
In the final result, the appeal succeeds, the judgment of the trial Court in so far as it connects and concern the appellant 3rd accused is set aside.
The 3rd accused herein appellant is discharged and acquitted. Appeal allowed.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the judgment delivered by my learned brother, Nonyerem Okoronkwo, JCA. I agree with his reasoning on the issues and conclusion that the appeal has merit and that it be allowed.
It is obvious from the judgment of the trial Court, that the learned trial Judge relied heavily on the confessional statements of the Appellant to convict him. This is evident at page 202 of the record, when the learned trial Judge quoted portions of the statements of the Appellant and his co-accused persons to hold that:
“The 3 accused persons have their statements, Exhibits “C1”, “C2” & “C3″ confessed that they shot and killed the deceased, late Yemi Shotona. There is no doubt that the prosecution relies on the confessional statements of the accused persons, Exhibits “C”, “C2“ & “C3″ to fix the accused persons with the offence charged. The position of the law is that a man may be convicted solely on his confession.”
The learned trial Judge then concluded at page 206 lines 12 – 18 of the record of appeal as follows:
“Based on all the above stated, having read Exhibit “C” along with the evidence of PW1, PW2, PW3, PW4, PW5, PW6 and PW7, I hold that all have corroborated the statements of the accused persons i.e. exhibits “C1”, “C2” and “C3”. I must therefore say that the requirement of the law as regards the corroboration of Exhibits “C1”, “C2” and “C3” i.e. statements of the accused persons have been satisfied in this case. It is clear that death was directly attributable to the act of the accused persons.”
Before proceeding to convict on an extra-judicial statement of an accused persons, the Court must be satisfied that the statement, in law, amounts to a Confession. Section 28 of the Evidence Act, 2011, defines a confession as follows:
“A confession is an admission made at a time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
In the instant case, the Appellant and two others were charged for conspiracy to commit murder and for murder. What should occupy the mind of the Court is, whether there was a murder, and whether the murder was the result of a conspiracy, and the accused person was involved in the conspiracy to commit the murder. The evidence on record reveals beyond any reasonable doubt that one Yemi Shotona was killed. The Appellant explained in his statement to the Police that he was a witness to the murder. In my view, for a person to say that he witnessed an act of murder, is not the same thing nor is it similar to saying that he committed the murder. The Appellant in his statement to the Police narrated the events that led to the killing of the deceased and also revealed the person that did the killing. None of his statements revealed, or showed any inference that the Appellant was part of the conspiracy to kill the deceased.
Now, the learned trial Judge merely held on the charge of conspiracy that:
“In the circumstances, from the totality of the evidence before me I am satisfied that DW1, DW2 and DW3 did conspire to murder the deceased Yemi Shotona on the 23rd day of May, 2005.”
It wasn’t enough for the learned trial Judge to say that he was satisfied that the Appellant and the other accused persons conspired to kill Yemi Shotona. He had a duty to evaluate the evidence on each of the accused persons before coming to a conclusion that such accused person; and in this case, the Appellant, was involved in a conspiracy to murder the deceased. On my part, I have carefully, soberly and with deep circumspection studied the totality of the oral and documentary evidence adduced at the trial but I am unable to see any piece of evidence upon which I can draw the inference that the Appellant was linked to any act of conspiracy to murder Yemi Shotona.
It is for the above reason and the other reasons ably stated by my learned brother in the lead judgment that I agreed that this appeal has merit. It is accordingly allowed. I abide by the consequential order(s) made by my learned brother in the lead judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have had the advantage of reading in draft, the judgment delivered by my learned brother, Nonyerem Okoronkwo, JCA wherein His Lordship set aside the Judgment of the High Court of Oyo State as regards the Appellant. I agree with him and also allow the appeal and set aside the decision of the trial Court in Charge No: I/29C/2006 convicting the Appellant. I align myself with the Order discharging and acquitting the Appellant.
Appearances:
B.T. Aderogba holding the brief of Adebayo Adegbite For Appellant(s)
A.W. Gbadegesin (Solicitor Gen. & Permanent Sec.) Min. of Justice Oyo State, with him, Kayode Babalola (Asst. Director) Min. of Justice Oyo State For Respondent(s)
