➥ CASE SUMMARY OF:
The State v Abdu Musa (2019) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.625/2016
➥ JUDGEMENT DELIVERED ON:
Friday, 1st February, 2019
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ WHEN A CONFESSIONAL STATEMENT CAN GROUND A CONVICTION
Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the Court is satisfied that it was voluntarily made, the Court can rely on it to ground a conviction even though retracted at the trial. 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. — K.M.O. Kekere-Ekun, JSC.
⦿ FACTORS THE COURT WILL CONSIDER BEFORE RELYING ON A RETRACTED STATEMENT
Before relying on a retracted confessional statement to convict an accused person, the factors the Court would consider are as follows: 1. Whether there is anything outside the confession which shows that it may be true; 2. Whether the confessional statement is in fact corroborated; 3. Whether the relevant statements of fact made in it are most likely true as far as they can be tested; 4. Whether the accused had the opportunity of committing the offence; 5. Whether the confession is possible; and 6. Whether the alleged confession is consistent with other facts that have been ascertained and established. See: R Vs Sykes (1913) 8 Cr.App. Report 233; Ubierho Vs The State (2005) 5 NWLR (Pt. 919) 644 @ 655; Nwachukwu Vs The State (supra); Fabiyi Vs The State (2015) LPELR -24834 (SC) @ 33-34 E-D. — K.M.O. Kekere-Ekun, JSC.
⦿ IT IS NOT IN EVERY CASE THAT A MEDICAL DOCTOR MUST BE CALLED
A lot of heavy weather has been made about the failure of the prosecution to call the medical doctor to testify in this case. First of all, it must be stated, that it is not in every case that the medical doctor must be called to testify. By virtue of Section 55 (1) of the Evidence Act, 2011, the report of the medical officer who performed the autopsy may be taken as sufficient evidence of its contents. See: Edoho Vs The State (2010) 14 NWLR (Pt. 1214) 651; Isiekwe Vs The State (1999) 6 NWLR (Pt. 617) 43; Popoola Vs The State (2013) 17 NWLR (Pt. 1382) 96. The facts and circumstances of each case will determine whether the attendance of the maker of the medical report is essential. Secondly, it is for the prosecution to determine the number of witnesses to call in order to discharge the burden of proving its case beyond reasonable doubt. It has been held that what is material is not the quantity of witnesses but the quality of the evidence adduced. See: Akalezi Vs The State (1993) 2 NWLR (Pt. 273) 1; Smart Vs The State (2016) LPELR 40728 (SC); Nwaturuocha Vs The State (2011) 6 NWLR (Pt. 1242) 170. — K.M.O. Kekere-Ekun, JSC.
⦿ WHAT IS A CONFESSION?
A confession is defined as a statement admitting or accepting that one is guilty of a crime. Legally speaking; a confession is a statement by which an individual acknowledges his or her guilt in the commission of a crime. A person makes a confession when he is guilty of something which is criminal in nature. See Nsofor v State (2008)18 NWLR (pt.905)292; Abdullahi v State (2015) EJSC Vol.8)103. In short, a confessional statement is an acknowledgement expressly made by an accused in a criminal case, of the truth of the main fact charged or some essential part of it. See also Akpan V State (2001)11 SCM 66 or (2001)15 NWLR (pt.737)745; Nwachukwu v State (2002)12 SCM 143; Jimoh v State (2014) LPELR 22464 (SC); Onuoha v State(1987) 4 NWLR (pt.65)331; Adebayo v State (2015)EJSC (VOL.4) 60. — A. Sanusi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C.
⦿ FOR THE APPELLANT
Emeka Obegolu Esq.
⦿ FOR THE RESPONDENT
Chukwuka Ikwuazom Esq.
➥ CASE HISTORY
It was alleged that on or about the 23rd day of July 2003 at Mazado Timber Factory along Yahaya Madawaki way, Katsina within Katsina Judicial Division, the appellant and his co-accused conspired to kill and did in fact kill one Usman Dan-Iyau (Mai-gadi) by beating him and slaughtering him with a knife. It was also alleged that in furtherance of a common intention to steal, they broke into the aforesaid Timber Factory and used violence on Usman Dan-Iyau (Mai-gadi), who subsequently died.
The respondent in this appeal was the 3rd among five persons arraigned before the High Court of Katsina State, Katsina Judicial Division on a two-count charge of conspiracy to commit culpable homicide punishable with death punishable under Section 22 (1) of the Penal Code read with Section 79 thereof 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 Laws of the Federation of Nigeria, 1999, as amended.
On 6th May, 2009, in a considered judgment, the learned trial Judge found all the accused persons guilty on each of the two counts and convicted them accordingly. In respect of the first count they were sentenced to death by hanging while on the second count they were sentenced to life imprisonment.
Being dissatisfied with the judgment they filed an appeal before the Court of Appeal, Kaduna Division. The Court, on 12/6/15 found their appeal to be meritorious and allowed it. They were all acquitted and discharged.
The state is now the party aggrieved and has appealed to this Court vide its amended notice of appeal, which was deemed filed on 23/5/18.
➥ ISSUE(S) & RESOLUTION
I. Whether the lower Court was right when is set aside the conviction and sentence of the appellant having regard to the evidence on record?
RULING: IN APPELLANT’S FAVOUR.
A. “Exhibit A in Hausa language and Exhibit A1, its English translation, constitute a direct, positive and unequivocal admission of the part the respondent played in the commission of the crime. He however retracted the statement at the trial and alleged that he was beaten by the Police and forced to thumbprint the document. It is important to note that when the Hausa and English versions of the respondent’s statement were being tendered through PW2, there was no objection raised. The law is that the proper time to object to the admissibility of a confessional statement is at the stage 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; Olalekan Vs the State (2002) 2 SCNJ 104; Muhammad Vs The State (2017) LPELR — 42098 (SC) @ 17-18 C-B.”
B. “It is pertinent to state at this juncture, that this appeal is a sister appeal to Appeal No SC.1097/2016: The State Vs Sani Ibrahim, in which judgment was delivered on 18/1/2019. The respondent in that appeal was the 1st accused at the trial Court, while the respondent in this appeal was the 3rd accused. The same judgment is the subject of this appeal. Now, one of the grounds upon which the lower Court allowed the respondent’s appeal was that the confessional statements of the accused persons were bereft of personal information known only to them, which would have made the statement more probable. I adopt my reasoning in the sister appeal here. I am inclined to agree with learned counsel for the appellant, that the lower Court erred in holding that Exhibit A translated in Exhibit A1 could not be relied upon because did not contain the respondent’s personal information. No such objection was raised when the statement was tendered in evidence. It was never contended that the statement was not made voluntarily. It must also be reiterated that the learned trial Judge found it to be consistent with other evidence duly established before placing reliance on it. There was therefore no basis for the finding of the lower Court in this regard.”
C. “The learned trial Judge painstakingly applied the test to the evidence before him and found that there was evidence outside the statement that was consistent with the facts stated therein. He also found that all the accused person gave similar accounts of what transpired on the fateful day including the fact that they broke into PW1’s office but did not find any money. Their statements were also found to be consistent regarding the fact that they beat the deceased and dragged his body into the bush before taking him back to the factory premises. The fact of dragging the deceased to the bush before returning him to the factory is consistent with the evidence of PW4 who stated that he saw blood stains about 100 meters from the factory. Having subjected Exhibit A and A1 to the required test, the learned trial Judge was entitled to rely on them in convicting the appellant.”
“From all that I have said above, learned counsel for the appellant has satisfied me that the judgment of the lower Court must be interfered with. The onus on the prosecution is to establish its case beyond reasonable doubt but not beyond the shadow of a doubt. See: Galadima Vs The State (2012) 18 NWLR (Pt. 1333) 60; Stephen Vs The State (2013) 8 NWLR (Pt. 1355) 153; Nwaturuocha v The State (2011) 2-3 SC (Pt. 1) 11; Igabele Vs The State (2006) 6 NWLR (Pt. 975) 100. I hold that the prosecution satisfactorily discharged the onus of proving the guilt of the respondent beyond reasonable doubt.
In conclusion, I resolve the sole issue in this appeal in the appellant’s favour. The appeal succeeds and is hereby allowed. The judgment of the Court of Appeal, Kaduna Division delivered on 12/6/2005 acquitting and discharging the appellant is hereby set aside. The judgment of the High Court of Katsina State delivered on 6/5/2009 convicting the appellant for culpable homicide punishable with death under Section 221 (b) of the Penal Code and for common intention to steal punishable under Section 2 (2) (b) of the Robbery and Firearms (Special Provisions) Act, and the sentences of death and life imprisonment respectively imposed on him, are hereby restored.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ FREE AND VOLUNTARY CONFESSIONAL STATEMENT CAN GROUND A CONVICTION
In the case of Udo v State (2016) 12 NWLR (Pt.1525) pp.33-34, paras. H-A, this Court held that: “Free and voluntary confessional statement of an accused alone is sufficient to sustain his conviction, provided the Court is satisfied that it was made in a free atmosphere and is direct, unequivocal and positively proved. In this case, the two statements made by the appellant as Exhibits 4 and 5 were confessional. They were sufficient to convict the appellant thereon. Consequently, the defence of alibi raised by the accused during his testimony was too late in the day and only an afterthought”.
➥ REFERENCED (OTHERS)