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:
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.
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.
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.
- 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.
- 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.
It is the further submission of counsel that the court being faced with the retraction of exhibit “F”, vis-a-vis the oral version of events as testified to by appellant should have resorted to corroborating evidence in convicting appellant; that there was no eye witness account of an independent witness on record on the matter of corroboration, counsel cited and relied on Bassey Vs State (2012) 12 NWLR (Pt.1314) 209 at 227.
Learned counsel then urged the court “to reject the finding by the lower courts that exhibit ‘F’ was a confessional statement freely and voluntarily made by the Appellant to ground a conviction for the offences as charged and discharge and acquit the Appellant on all the counts….” as no other evidence was produced by the prosecution linking appellant with the crime.
Referring to the provisions of sections 28 and 29 of the Evidence Act, 2011, learned counsel for the respondent submitted that a confessional statement is admissible in evidence to prove the charge once it is established that it was made voluntarily and is positive etc, as in the instant case: that an accused person can be convicted based on his confessional statement without more, relying on Akpan Vs State (1992) 6 NWLR (Pt.248) 439 at 468. Ntaha Vs State (972) 4 S.C.1. Yusuf Vs State (1976) 6 S.C. 167; that appellant confessed in exhibit ‘F’ to how he and the co-accused purchased a gun and cartridges and how, on 9-8-2003 they went to Akpogu Ozugbe road and waited for the deceased to return from his transport business and shot and killed him and stole his Nisan car with registration No. AA 969 KKF, Kogi the particulars of which were found in the house of the co-accused person; that there is evidence as to how appellant went to the radio repair shop of Friday Kaura – PW2 and gave him a polythene bag containing the two locally made pistols and blood stained cloth for safe keeping; that the above evidence corroborated the confessional statement of appellant on which the trial court relied in convicting and sentencing appellant; that it is therefore not correct that the court relied solely on the retracted confessional statement to convict appellant.
Learned counsel urged the court to resolve the issue against appellant, the issue under consideration is not as complicated as learned counsel for appellant has made it to seem; it is very simple and straight forward in view of the following admitted facts:
(a) Exhibit “F”, the confessional statement of appellant was admitted in evidence without objection. Initially counsel for appellant objected to its admissibility on grounds of duress etc etc resulting in a trial within a trial procedure being invoked but was aborted almost at the tail end when learned counsel for appellant withdrew the objection. At that stage it is clear that appellant is deemed to have admitted making exhibit “F” and voluntarily too. At that stage, the law is that the confessional statement of an accused, where it is direct, positive, unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for the conviction of the accused person. This Court in Akpan Vs State (1992) 6 NWLR (Pt.248) 439 at 468 thus stated that:
“it is an established principle of our law that an accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts which have been proved.”
There is therefore no doubt in law that appellant can, in the circumstances of the 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 – see Kopa Vs State (1971) 1 All NLR 151: Onochie Vs The Republic (1966) NWLR 307. The above rule is a rule of practice. The practice is designed to determine which of the two versions of events relating to the commission of the crime given by the accused concerned is likely to be the correct one – the version in the confessional statement and the new version presented by him at the trial proper. Where, in examining the surrounding facts and circumstances revealed in evidence by the witnesses, the court finds relevant facts and circumstance supporting or verifying the facts confessed to by the accused in the retracted statement, it means the confessional statement is reliable and can be so relied upon in convicting the accused person, his retraction notwithstanding
The question, however is whether there is evidence on record to corroborate the confessional statement of appellant in exhibit ‘F’ The answer as concurrently found by the lower courts is yes.
There is evidence on record and which the trial Judge believed, that appellant went to the radio repair shop of PW2 and deposited with him for safe keeping, a polythene bag which contained two locally made pistols and blood stained cloth. In exhibit ‘F’ appellant admitted purchasing the pistols together with the co-accused and cartridges with which they shot and killed the deceased and robbed him of his vehicle, the particulars of which were later recovered from the house of the co-accused.
There is also the testimony of PW3 as regards the polythene bag and its contents and how he took it to the bush and gave them to appellant where they were engaged in sawing timber. Exhibit ‘F’ also contains details of the events of that day and after, which only a participant in the crime would have known and recounted.
Finally on this issue, it is settled law that the Supreme Court does not make a practice of interfering with concurrent finding of facts by the lower courts except in special circumstances such as where the finding is not supported by evidence on record or is otherwise perverse, etc, etc, etc. see Hausa Vs State (1994) 6 NWLR (Pt.350) 281 at 309, etc, etc.
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 circumstance and having regards to the facts of the case relevant to the issue under consideration, I resolve issue 1 against 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, the nature of which was not identified by counsel but that the doubt ought to have been resolved in favour of appellant; that there is no evidence of who was present when the said bag was handed over by appellant to PW2 and why PW2 did not enquire of the contents of the bag from appellant at the time of handing over.
It is the further submission of learned counsel that the evidence of PW6 at page 88 of the record to the effect that appellant was arrested on 2/9/03 “and brought to State C.I.D, Lokoja along with a bag containing two locally made pistols and a blood stained cloth and handed over to me” is in conflict with evidence of PW1, another police officer; that the prosecution failed to discharge the burden of proof to prove that appellant committed the offence of culpable homicide as required by section 135(1) of the Evidence Act, 2011 and as a result the appellant is entitled to a verdict of discharge and acquittal; that there is no medical evidence to prove the cause of death neither has it been proved that appellant was present at the scene of crime etc, etc. Learned counsel then urged the court to resolve the issue in favour of appellant.
On his part, learned counsel for the respondent submitted that the lower court was right in affirming the conviction and sentence of appellant by the trial court for the offences charged as there is evidence on record linking appellant with the commission of the offence; that the court can, where there is no direct evidence, rely on circumstantial evidence to convict an accused person; that no reason has been offered by appellant as to why PW2 would want to frame up appellant for the offence he did not allegedly commit; that PW2 and appellant are well known to each other as they also came from the same community; that there is no conflict or contradiction in the evidence of PW1 and PW6 as to from who the bag was recovered. On proof of cause of death by medical evidence, learned counsel submitted that where the cause of death is known, as in the instant case, there will be no need for a medical evidence to prove same and that in any event, there was a medical report in the instant case which served as surplusage, relying on Akpan Vs. State supra. Finally counsel urged the court to resolve the issue against appellant.
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 1, 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 by killing the deceased.
The killing was by gun shot as admitted in exhibit ‘F’. In that circumstance there is no need for a medical report or evidence to further establish the cause of death of the deceased. In any event, there is no doubt at all that the deceased is no longer alive after the events of that day neither has appellant suggested that he is alive and living somewhere. It is also my considered view that the best evidence of the death and cause of death of the deceased was stated vividly by appellant in his confessional statement, exhibit ‘F’: that he and his co-accused shot and killed the deceased once on the chest and later on the stomach. The act of killing was not permitted by law and therefore unlawful.
Finally on this issue it is important to note that the version of events of the day of incident as given in oral testimony by appellant 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 appellant, exhibit “F”.
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 Vs C.O.P. (2007) 16 NWLR (Pt. 1060) 378 at 407 in which the court held that where a trial court fails in sentencing an accused on all the counts in a 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 Vs State (1993) 7 NWLR (Pt.307) 554 at 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 Vs State (1993) 7 NWLR (Pt.307) 554 at 583 this Court held that:
“The omission to pronounce the sentence after conviction per se 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 in a miscarriage of justice to the appellant. It must be 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 conclusion I find no merit whatsoever in the same.