Peter Iliya Azabada Vs The State (2014)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the Judgment of the Court of Appeal holden at Abuja, in appeal No. CA/A/16C/2009 delivered on the 12th day of July, 2011 in which the court dismissed the appeal of appellant against the Judgment of the High Court of Kogi State in charge No. HCL/31C/2005 delivered on 20th June, 2008 convicting appellant of the offence of criminal conspiracy, armed robbery and culpable homicide punishable with death and for which he was sentenced accordingly.

Appellant, together with one Adamu Saliu, were charged on a three count charge with the following offences before the High Court of Kogi State holden at Kotonkarfe:

“COUNT 1:

That you Adamu Saliu and Peter Iliya Azabada on or about the 9th day of August, 2003 at Akpogu-Ozugbe Road, Koton-Karfi in Kogi Local Government Area within the Kogi State Judicial Division agreed to do an illegal act to wit: you agreed to commit armed robbery and culpable homicide punishable with death on Mohammed Abubakar, deceased, and the same acts were done in pursuance of the agreement, and you thereby committed the offence of criminal conspiracy punishable under section 97(1) of the Penal Code.

COUNT 2.

That you Adamu Saliu and Peter Iliya Azabada on or about the 9th day of August, 2003 along Akpogu-Ozugbe Road, Koton-karfi in Kogi Local Government Area within the Kogi State Judicial Division committed the offence of armed robbery by doing an act to wit: you both armed yourselves with guns which are dangerous or offensive weapons and robbed Mohammed Abubakar (deceased) of his Nissan Sunny model saloon Car with Registration NO. KOGI AA 967 KKF and thereby committed an offence punishable under section 298(C) of the Penal Code.

COUNT 3.

That you Adamu Saliu and Peter Iliya Azabada on or about the 9th day of August, 2003 along Akpogu-Ozugbe Road, Koton-Karfi in Kogi Local Government Area within the Kogi State Judicial Division in furtherance of your common intention committed the offence of culpable homicide punishable with death by doing an act to wit: you shot Mohammed Abubakar (deceased) to death with a gun with the intention of causing his death and you thereby committed an offence under section 79 of the same code.”

Appellant is the second accused mentioned in the above charge. Though appellant made a confessional statement he denied/retracted it in the course of trial.

The issues that have been identified by learned counsel for appellant, SYLVA OGWEMOH ESQ, in the appellant’s brief deemed filed on 27/3/14 for the determination of the appeal are as follows:-

“1. Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the appellant merely on the strength of the confessional statement of the appellant and which confessional statement was retracted by the appellant in his oral testimony before the trial High Court of Kogi State.

2. Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the appellant for conspiracy to commit armed robbery and culpable homicide when there were materials (sic) contradictions in the evidence of the prosecution before the trial court.
3. Whether the Court of Appeal Abuja Division was right, in law, in refusing to set aside the conviction and sentence of the appellant having found that it was wrong in law for the trial Judge to pass sentence on only one of the counts as charged after convicting the appellant on the counts of offences contained in the charge sheet before the trial court.”

The above issues are very similar to the three issues formulated by learned counsel for the respondent, P.H. OGBOLE ESQ in the respondent’s brief also deemed filed and served on 27/3/14. I therefore need not reproduce them herein as to do so will serve no useful purpose.

In arguing issue 1, learned counsel for appellant referred the court to exhibit “F” which was retracted by appellant and stated that the learned trial Judge convicted appellant solely on the strength of exhibit “F”. It is the contention of counsel that with the retraction of exhibit “F”, the court was faced with two contradictory statements, exhibit “F” and the oral testimony of appellant and that the effect in law on that situation is that the testimony is to be treated as unreliable while the statement, exhibit “F”, is not regarded as evidence on which the court can act, relying on Sule Vs The State, (2009) 17 NWLR (Pt.1169) 33 at 66; that under the inconsistency rule the court ought to reject both exhibit “F” and the oral testimony in the court and that the trial Judge was wrong when he relied on exhibit ‘F’ in convicting and sentencing appellant and that the lower court was also wrong in affirming the said conviction and sentence.