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Conviction of an accused person upon a retracted confessional statement invalid (2)

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IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA 

ON FRIDAY, THE 6TH DAY OF JUNE, 2014

BEFORE THEIR LORDSHIPS:

WALTER S.N. ONNOGHEN           JUSTICE SUPREME COURT

SULEIMAN GALADIMA           JUSTICE SUPREME COURT

BODE RHODES-VIVOUR           JUSTICE SUPREME COURT

KUMAI B. AKA’AHS           JUSTICE SUPREME COURT

JOHN I. OKORO           JUSTICE SUPREME COURT 

                                                                                     SC.367/2011

BETWEEN

PETER ILIYA AZABADA         ————-   APPELLANT

AND

THE STATE          ————— RESPONDENT

There is therefore no doubt in law that Appellant can, in the circumstances of this case, be convicted on Exhibit ‘’F’’ alone. However, where an Accused person later retracts his confession at trial, the practice has evolved whereby the court (trial) must look for some evidence outside the confession which would make the confession probable. So held his lordship, W.S.N. ONNOGHEN (JSC) his learned brothers SULEIMAN GALADIMA, BODE RHODES-VIVOUR, KUMAI B. AKA’AHS and JOHN I. OKORO (JJSC), concurring while unanimously dismissing the Appellant’s appeal. The appellant was represented by Sylva Ogwemoh, (with him J.O. Okosun, A, Ikahane),while the Respondent was  represented by P.H. Ogbe (with him P.A. Ogwuche, B, Bassey, P.C. Ashuikeka, O. Imobighe, N. Chidubem and V.U. Maynya)  

  The facts are as contained in the body of the judgment. In the instant case learned counsel for Appellant has not satisfied the court that the instant case is one in which the special circumstances exist to necessitate interference with the concurrent findings of fact by the lower court. In the circumstances and having regards to the facts of the case relevant to the issue under consideration, I resolve issue 1 against the Appellant.   

    On issue 2, learned counsel for Appellant submitted that the lower courts were in error in holding that Appellant was guilty of the offence of criminal conspiracy when the ingredients of the offence were not established: that there is no evidence linking Appellant with the commission of the offence(s) charged; that the evidence of PW2 about the bag containing two pistols does not amount to much particularly as PW2 admitted that the said bag was recovered from him (PW2) and not Appellant; that there was conflict between the evidence of PW2 and PW3 concerning the polythene bag which creates doubt.

    I have carefully gone through the submissions of both counsel and the record of proceedings as it relates to the evidence before the court. It must be remembered that while considering issue 1, I had come to the conclusion that Exhibit ‘F’ is a confessional statement known to law particularly having regard to the fact that same was admitted without objection. I have also held that in accordance with the principles of law established by a long line of cases decided by this court, a court is empowered to convict and sentence an Accused person on his confessional statement alone.

    In the instant case, however, there is the attempt by Appellant to retract the confessional statement though he admitted giving the police the personal details contained in Exhibit ‘F’. the question then is what is the effect of that retraction on the confessional statement, Exhibit ‘F’? which question was also answered in the consideration of Issue 1 to the effect that the court finding itself in that situation must look for evidence outside the confessional statement to determine the truth of the said confession, which I found from the record as haven been duly done by the lower courts.

    I therefore hold the considered view that having regard to the resolution of Issue 2 becomes a no issue. Exhibit ‘F’ and the surrounding circumstances including the evidence of PW2 and PW3 proved the ingredients of the offences charged. Exhibit ‘F’ clearly shows that Appellant and his Co-Accused willfully and intentionally prepared and plotted the murder/killing of the deceased and stealing of the deceased’s vehicle after procuring two locally made pistols and cartridges; that they actually carried out that intention of killing the deceased.

    Finally on the issue it is important to note that the version of events of the day of incident as given in oral testimony by Appellate was disbelieved by the learned trial judge whose province it is to hear the witness(es) testify, ascribe probative value to their testimony, watch their demeanour and either believe or disbelieve their evidence. On the other hand, the learned trial judge believed the testimony of the Prosecution witnesses which gave credence to the contents of the confessional statement of the Appellant. 

    In the circumstances, I resolve Issue 2 against Appellant. On Issue 3 it is the contention of learned counsel for Appellant that the trial judge violated the provisions of Section 269 of the Criminal Procedure Code by sentencing Appellant on only one of the three counts it convicted Appellant on and that the violation is fatal to the case of the Prosecution particularly as the word ‘shall’ is used in that section to indicate that compliance thereto is mandatory. Learned counsel urged the court to be persuaded by the decision of the Court of Appeal in the case of Garba v COP (2007) 16 NWLR (pt. 1060) 378) at 407 in which the court held that where trial court fails in sentencing an Accused on all the counts in charge, the entire proceedings is liable to be set aside on appeal and that the lower court was in error when, after finding that the trial court’s failure to sentence Appellant on two of the counts was in error, failed to set aside the proceedings; and urged the court to resolve the issue in favour of Appellant and allow the appeal.

    On his part, learned counsel for the Respondent submitted that though it is correct that the learned trial judge did not fully comply with the provisions of Section 269 of the criminal Procedure Code, Appellant has not shown how the failure has led to a miscarriage of justice to Appellant, relying on Ejelikwu v State (1993) 7 NWLR (pt. 307) 554aat 570; that the absence of a sentence on the other two counts is of no moment as the sentence of death for culpable homicide punishable with death is enough to secure the death of Appellant and urged the court to resolve the issue against Appellant and dismiss the appeal.

     There is no doubt that the trial judge in sentencing Appellant did so only in relation to the count of homicide punishable with death; that the court omitted to sentence Appellant for the offences of criminal conspiracy and armed robbery for which the judge had earlier convicted Appellant 

In the case of Ejelikwu v State (1993) 7 NWLR (pt. 307) 554 at 583 this court held that: ‘The omission to pronounce the sentence after conviction perse which comes after the pronouncement of a valid verdict, cannot retrospectively affect the validity of a properly conducted proceedings. The verdict has been made so be it’’.

    The above notwithstanding, Appellant has not shown how the failure to pronounce sentence on the two convicted counts has adversely affected the rights of Appellant thereby leading to a miscarriage of justice. It is settled law that it is not every error committed by a lower court that would result in the decision being set aside by an appellate court. For an error to qualify as one that will inevitably lead to the setting aside of the decision/judgment, it must be substantial in nature and must have resulted a miscarriage of justice to the Appellant.’’ It must be correct remembered always that the purpose of appeals is to correct errors of a lower court with the intention/desire of ensuring substantial justice to the parties and even the court. Where the error complained of is substantial and is likely to lead to a miscarriage of justice or has resulted in injustice, an appellate court will be eager to set aside the decision. However where the error is not substantial or has in no way resulted in a miscarriage of justice to the Appellant, as in the instant case, the court will not set aside the decision because to do so will rather result in injustice to the Respondent representing the society at large. I therefore find no substance in the issue under consideration and consequently, resolve same against Appellant.’’

    In the conclusion I find no merit whatsoever in the appeal and dismiss same.


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