State V. Sadiq (2021)
LAWGLOBAL HUB Lead Judgment Report
JOHN INYANG OKORO, J.S.C.
This appeal is against the decision of the Court of Appeal, Kaduna Judicial Division delivered on 3rd July, 2015 in appeal No. CA/K/435/C/2014. In that appeal, the Court below acquitted and discharged this Respondent of the conviction and sentence imposed on him by the High Court of Katsina State for offences of robbery and culpable homicide.
The Respondent who was 3rd accused person, was arraigned together with four others before the High Court of Katsina State on a two count charge of robbery and culpable homicide as follows:
“Count one: That you Babangida Abubakar alias Gidgo of Sabuwar Kofa quarters Katsina, Sani Idris alias Shamuloke of Kofar Marusa quarters Katsina, Abdulhadi Sadiq alias Baba Reza of Kofar Marusa quarters Katsina, Lawal Abubakar alias Dan Lawal of Kofar marusa quarters Katsina and Idris Umar alias Dan Idi of Sabuwar Unguwa Koren Dorowa Katsina, on or about the 11th day of October, 2012 while in company of others now at large, while armed with sticks and matchets, attacked, wounded and left unconscious Sulaiman Abubakar and Usman Abubakar who are security guards of Mangal Plaza, Yahaya Madaki way, Kofar Kaura Katsina, you then burgled and entered the shop of one Alh. Babangida Ali at the same address where you took away different types of G. S. M. handsets valued at about the sum of Three Million Naira (N3 million) and money in the sum of Three Hundred and Fifty Two Thousand Naira (N352,000.00) and you thereby committed an offence punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.”
“Count two: That you Babangida Abubakar alias Gidigo of Sabuwar Kofa quarters Katsina, Sani Idris alias Shamuloke of Kofar Marusa quarters Katsina, Abdulhadi Sadiq alias Baba Reza of Kofar Marusa quarters Katsina, Lawal Abubakar alias Dan Lawal of Kofar Marusa quarters Katsina and Idris Umar alias Dan Idi of Sabuwar Ungwa Koren Dorowa Katsina, on or about 11th day of October, 2012 while in company of others now at large, at Mangal plaza Yahaya Madaki Way Katsina, attacked and beat one Usman Abubakar with sticks and cut him with matchets which resulted in his death with the knowledge that death would be the probable consequence of your act and you thereby committed the offence of culpable homicide punishable under Section 221 of the Penal Code”.
They were all found guilty on both counts and sentenced to death by hanging. The Respondent’s appeal to the Court below was allowed wherein he was accordingly acquitted and discharged. It is against that decision of the Court of Appeal that the Appellant has now appealed to this Court.
The prosecution’s case is that on or about 11th October 2012, the Respondent in company of others now at large, while armed with sticks and machetes attacked and grievously injured two security men at Mangal plaza, Yahaya Madaki Way, Kofar Kaura Katsina, leaving them unconscious, which act subsequently resulted in the death of one of the security men. They also burgled the shop of one Alhaji Babangida Ali Mai-chanji (the PW1) at the same premise and stole the sum of N352,000.00 cash and G.S.M. handsets valued at about N3,000,000.00. About two months after the robbery incident, one Muhammad approached PW2 to purchase battery for his phone. Upon close inspection, it was discovered that the phone which Muhammad sought to purchase battery for was actually one of the phones stolen during the robbery incident. He was therefore apprehended and upon interrogation he led the police officers to one Suleiman Kasuwar Tsaye who upon his arrest stated that the phone was given to him to sell by Idris Umar (the 5th accused person). The police conducted a search in the house of Idris Umar from where 3 other handsets and several other stolen items were recovered.
On arraignment, all accused persons pleaded not guilty to both counts of robbery and culpable homicide. The prosecution called a total of 10 witnesses and tendered several exhibits including exhibits A and A1 which were this Respondent’s extra-judicial statements recorded in Hausa language and translated into English language. The Respondent raised an objection to the admissibility of his confessional statement on the ground that he was forced to thumbprint the statement. Despite his objection, the learned trial Judge admitted the statements without a trial within trial and relied on same to convict the Respondent.
At the Court of Appeal, it was found that the confessional statements were wrongly admitted for failure to test its voluntariness in a trial – within-trial. Exhibits A and A1 were therefore expunged from the record and the Respondent acquitted and discharged. It is against the judgment of the Court below that the Appellant has now appealed to this Court in his amended notice of appeal filed on 10th February, 2020 but deemed filed on 19th march, 2020.
Both parties filed and exchanged their briefs of arguments deemed filed on 19th March, 2020 respectively. The appeal was set down for hearing on 30th September, 2021 wherein the Appellant distilled two issues for determination which were equally adopted by the Respondent as follows:
(i) Whether the Court of Appeal was right in expunging the confessional statement of the Respondent and holding that there was no other evidence to ground his conviction (Ground 2); and
(ii) Whether the Court of Appeal was right in holding that the Statement of the Respondent was not voluntarily procured. (Ground 1)
A careful perusal of the two issues for determination proposed by the Appellant and adopted by the Respondent shows that the argument on both issues centre essentially on the decision of the Court below to expunge the Respondent’s confessional statement in exhibits A and A1 from record on the ground that they were wrongly admitted. In my opinion, the two issues are more or less the same except for the different words used to couch them.
I also hold the view that the first issue canvassed by the parties is sufficient to determine this appeal. I shall therefore adopt same as reproduced supra, although I shall reframe it to make it concise as follows:
“whether the Court of Appeal was right to expunge the Respondent’s confessional statement from record for being involuntarily procured and wrongly admitted in evidence.”
Learned counsel for the Appellant in his argument laboured to distinguish the facts in the case of Uche Obidiozo & Ors v. The State (1987) LPELR-2170 (SC) from the instant case to show that there are differences between where an accused person raises objection to the voluntariness of his confessional statement and where an accused person denies making the statement. Counsel submitted that where admissibility of a statement is challenged on the ground that it was not made voluntarily, it is for the Judge to determine whether or not the prosecution has established that it was made voluntarily in a trial within trial, which he contends is not the situation in this case. Counsel placed reliance on the case of Queen v. Eguabor 1962 vol. 1 All NLR part 2 page 287 to buttress his argument.
Learned counsel for the Appellant further argued that the objection of the Respondent was predicated on the fact that he did not make the statement and also on the fact that the Illiterate Protection Law was not complied with in the recording of his statement. Thus, the statement was admissible pending the weight to be attached to it. The expunging of the confessional statement on the authority of Uche Obidiozo v. The State (supra) was wrong in law and a clear departure from the established position in Queen v. Igwe 5 FSC 56-56, he contended.
Learned Counsel finally relied on the authorities of Augustine Nwangbomu v. The State (1994) LPELR-2105 (SC): Manu Galadima v. The State (2012) LPELR-15530 (SC) and Egboghonome v State (1993) 7 NWLR (pt. 306) 383 SC, to submit that the attitude of the Respondent towards the confessional statement is that of denial which goes to the issue of retraction and not voluntariness as misconstrued by the learned justices of the Court of Appeal. He therefore urged on this Court to resolve the issue in favour of the Appellant and allow the appeal.
On his part, learned counsel for the Respondent argued that the Respondent’s ground of objection to the admissibility of his confessional statement and the decision of the Court of Appeal to expunge the statement from record having been procured by force are on all fours with the facts and findings in the case of Obidiozo v The State (Supra). Counsel submitted that the current position of our law is that when a Defendant alleges that his signature or thumb print on a written confessional statement was procured by force or intimidation, a trial-within-trial is mandatory to determine the voluntariness of the statement.
Learned Counsel argued further that by the authorities of Corporal Jona Dawa & Anor. V. State (1980) LPELR 932 (SC) and Obidiozo v. The State (supra), this Court has departed from the position laid down in Queen v Igwe (supra) where it was held that allegation that signature or thumb print on a written Confessional Statement procured by force will not warrant a trial-within-trial.
Finally, Counsel argued that the learned justices of the Court of Appeal were on firm ground to have expunged the Respondent’s confessional statement in exhibits A and A1 from record, same having been obtained by force and was not subjected to the voluntariness test in a trial-within-trial. He then urged this Court to resolve this issue in favour of the Respondent and dismiss the appeal.
In the appeal before us, the learned trial Judge held that the prosecution proved its case against the Respondent beyond reasonable doubt and therefore convicted the Respondent and sentenced him to death by hanging. His Lordship relied on the Respondent’s confessional statement recorded in Hausa language and translated into English language by PW5 who was a police officer. The trial Court relied on the statement and found the Respondent guilty as charged despite the fact that the Respondent raised an objection to its admissibility on the ground that he was forced to thumb print the statement.
At the Court below, the Respondent’s confessional statement was expunged from the record on the ground that it was wrongly admitted, the trial Court having not conducted a trial-within-trial to ascertain its voluntariness. The Court went further to acquit and discharge the Respondent having found no other evidence linking him to the offence.
For reference, a portion of the vexed judgment of the Court of Appeal which is at page 177 of the record is reproduced as follows:
“Therefore, as the law now stands, the Appellant’s thumbprint which he said he was forced to append on the exhibits A and A1 are part and parcel of the whole statement and cannot be detached or severed from the body of the statements. A claim that his thumbprint on the statement was not voluntarily appended on the statement is invariably a claim that the statement was not voluntary, which calls for a trial within trial.
The learned trial Judge with respect was in error to have declined to conduct a trial-within-trial. The result is that the statements were wrongly admitted. The consequence of that, to quote Agbaje JSC again Is that: – “I would expunge them from the proceedings in this case. ”
I abide by that order of the Supreme Court and accordingly, I expunge exhibits A and A1 from the record.
Having expunged the statements from the record, the question of whether the Court could convict upon, the now expunged confessional statement does not arise. In the circumstance, this issue is resolved in favour of the Appellant that exhibits A and A1 were wrongly admitted and relied upon by the learned trial judge to convict the Appellant”
In his conclusion at page 184 of the record, the Court set aside the decision of the trial High Court convicting and sentencing the Respondent to death and thereby acquitted and discharged the Respondent.
My lords, the issue to be determined in this appeal is whether the prosecution proved the offences of robbery and culpable homicide made against the Respondent beyond reasonable doubt based principally on the extra-judicial statements made by the Respondent to the police which the trial Court admitted in evidence as exhibits A and A1.
The Court below disagreed with the findings of the learned trial Judge on the ground that the Respondent, having alleged that he was forced to endorse the confessional statement, the Court was duty bound to conduct a trial within trial to ascertain its voluntariness. The statement was therefore expunged from the record and the Respondent’s conviction and sentence set aside.
It is now well settled that in our criminal jurisprudence, the onus is on the prosecution to establish its case beyond reasonable doubt.
See Josiah Orungua & Ors v. The State (1970) All NLR 266; (1970) LPELR 2780 (SC)
– Olayinka Afolalu v. The State (2010) 16 NWLR (PT 1220) 584
– Miller v. Minister of Pensions (1947) 2 All ER 372
– Yongo v. Commissioner of Police (1992) 4 SCNJ 113; (1992) 8 NWLR (pt. 257)36
– Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516
– Babuga v. State (1996) LPELR-701 SC; (1996) 7 NWLR (PT. 460) 279
– Sections 135 and 138 of the Evidence Act, 2011 (as amended)
I need to emphasize that the standard of proof required of the prosecution is not proof beyond all shadow of doubt as absolute certainty is impossible in any human adventure.
See State v. James Gwangwan (2015) 13 NWLR (pt 1977) 600 at 621.
The law has made it explicit that there are three ways of proving criminal liability by the prosecution in any criminal trial, to wit:
(a) Confessional statement of the accused.
(b) Evidence of an eyewitness otherwise known as direct evidence; or
(c) Circumstantial evidence which must be cogent and compelling leading to the irresistible conclusion that the accused committed the offence.
See Agboola v. The State (2013) 8 SC M 157; (2011) 11 NWLR (pt 1366) 619
– Abdullahi Ibrahim v. State (2014) 3 NWLR (pt 1394) 305
– Alufohai v. The State (2015) 3 NWLR (pt. 1445) 172.
In the instant case, it seems to me that the prosecution relied largely on the Respondent’s confessional statement as the only substantial evidence linking him to the commission of the offence. I note that the Respondent took the earliest opportunity in Court to resile from voluntarily endorsing the confessional statement at the point of its being tendered in evidence. At that juncture, what was expected of the learned trial Judge was to conduct a mini-trial to ascertain the voluntariness or otherwise of the confessional statement before admitting it in evidence.
See Auta v. The State (1975) 4 SC 125; Gbadamosi & Ors v The State (1992) 9 NWLR (pt. 266) 465 at 480; (1992) 11- 12 SCNJ 1268; Effiong v The State (1998) 5 SCNJ 158 at 166; (1998) 8 NWLR (pt. 562) 362.
The law is trite and well established that the Court can admit and safely rely on a retracted confessional statement to convict an accused person once the Court is satisfied that such statement is voluntary, direct, positive, unequivocal and a truthful account of what transpired. The law has however made it desirable for the Court to look for some corroboration outside the confessional statement, to determine if the circumstances made it probable that the confession was true.
See Haruna v. A-G, Federation (2012) 9 NWLR (pt. 1306) 419
– Alarape v. State (2001) 5 NWLR (pt. 705) 79
– Osuagwu v. The state. (2013) 5 NWLR (pt. 1347) 360.
In otherwords, a confessional statement remains the best form of evidence against an accused person once it is proved to be voluntary, direct and positive. The Court can rely solely on it to ground conviction.
See Edhigere v. The State (1996) 8 NWLR (pt. 464) at P. 1;
– Oseni v. State (2012) 5 NWLR (pt 1293) 351
– Egboghonome v State (1993) 7 NWLR (pt. 306) 383.
At this juncture, I consider it pertinent to make a distinction between a situation where an accused person completely denies making a confessional statement and where an accused contends that he made or endorsed the confessional statement under duress.
In the first situation, the Court is at liberty to admit the statement without having to conduct a mini-trial to determine its veracity. Only that the weight to be attached to the statement would be determined after subjecting it to the six-way tests prescribed by the law as follows:
(i) Is there anything outside the confession to show that it is true?
(ii) Is it corroborated?
(iii) Are the statements made in it true as far as can be tested?
(iv) Was the prisoner one who had the opportunity of committing the offence?
(v) Is the confession possible?
(vi) Is the confessional statement consistent with other facts which have been ascertained and have been proved?
Once the statement has been subjected to these tests and it is ascertained that there are other facts outside the confession to corroborate it, the law decrees that same can be relied upon to ground conviction.
See R v. Sykes (1913)8 LR APP R-233 approved and applied in Dawa v. State (1980) 8-11 SC 236; Musa v. State (1995) 9 NWLR (pt. 421) 540 at 554.
On the second scenario where the accused person alleges that he made the statement or endorsed same under duress or some form of influence by a person of authority, the law requires that a trial-within-trial must be conducted to ascertain the voluntariness of the statement.
See State v. Gwangwan (supra).; Obasi Onyenye v. The State (2012) LPELR 7866(SC)
This issue was primarily considered in the case of Akpa v. State (2008) 14 NWLR (pt. 1106) 1 at 98 where this Court per Ogbuagu, JSC observed as follows:
“… trial within trial is ordered and conducted where the voluntariness of the making of the statement by an accused person is in issue or raised by an accused person. In other words, where an accused person admits making the statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial is conducted in order to determine whether the statement was voluntary or made by duress or otherwise. When the Judge is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court”.
Flowing from the above and with due respect to the learned trial Judge, the evidence of the Respondent did not amount to a retraction. Rather, he challenged the voluntariness of the evidence extracted from him by the police by use of force. He did not contend the fact that the statement was recorded in Hausa language by PW5 and translated into English Language after it had been read over to him. His only objection was that he was forced to thumb print on the statement, which objection automatically pulled a cloak of involuntariness over the statement.
Having successfully cast doubt on the voluntariness of his thumb print on the statement, the learned trial Judge ought to have conducted a trial within trial to ascertain the voluntariness of the endorsement on the statement. Admitting the confessional statements and marking them as exhibits without testing their voluntariness in a mini-trial, was in my humble view, fatal to this case. The Court below was therefore on sound wicket when it expunged exhibits A and A1 from record for having been wrongly admitted. I so hold.
Now, having affirmed the judgment of the Court below expunging the Respondent’s confessional statement from record, I shall consider if there exist any other evidence which linked the Respondent to the offence charged.
I must say that I have carefully perused the record of appeal and the only mention of the Respondent is in the evidence of PW5, the police officer who recorded the statement of the Respondent already expunged by the Court below and the evidence of DW4, Lawal Abubakar, in exhibit A1 as well as the evidence of DW5, Idris Umar in Exhibit H1 wherein the Respondent was named as one of the persons who participated in the crime.
The law is settled that an accused person’s confession is only evidence against him and not against a co-accused person except otherwise adopted by the co-accused. Putting it differently is to say that where an accused person makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices but himself alone. The Court cannot therefore rely on the confession of one accused person to convict another accused person unless the confessional statement is voluntarily adopted by the co-accused, although it can be used as a corroborating evidence where other pieces of vital evidences exist pointing to the fact that the co-accused committed the offence.
See Ozaki v. State (1990) LPELR-2888 (SC); (1990) 1 NWLR (pt. 124) 92 Evbuomwan v C O P (1961) NWLR 257
– Section 199 of the Evidence Act 2011 (as amended)
In the case of State v. Gwangwan (supra), my learned brother, Fabiyi, JSC, in his contributory judgment, had this to say:
“A statement made to the Police by an accused person implicating a co-accused is not admissible against that accused. Where the prosecution intends to use the statement against a co-accused, as herein, then the prosecution is bound to make a copy of the incriminating statement available to the co-accused for him to reject or adopt same. There is nothing in the record that same was carried out by the prosecution. The decisions in the cases of Mumuni v. The State (1975)6 SC 79; Chukwueke v. The State (1991) 7 NWLR (pt 205) 604 and Yongo v. Commissioner of Police (1992) 8 NWLR (pt.257) 36 are in point here.”
In the instant case, the Court below was on firm footing to discountenance the inference that the statements of DW4 and DW5 implicated the Respondent as long as he did not adopt same.
From all that I have said above, I hold the firm opinion that the Court below was in order when it held that:
“the result is that there is nothing on record linking the appellant to the crime committed.”
To my mind, having expunged the Respondent’s confessional statement from the record, the prosecution had no other evidence to sustain the charge against the Respondent. There was indeed no evidence to infer the offences of robbery and culpable homicide. This issue is resolved against the Appellant and in favour of the Respondent.
It has now become trite in our criminal law jurisprudence that it is better that 10 guilty persons go free than that one innocent person be convicted. This Court for all intent and purposes frowns at technical justice but in a situation where the law prescribes the manner in which justice must be attained, circumventing such set down rule would certainly vitiate justice. My point here is that the learned trial Judge fell into a grave error by not conducting a trial within trial to ascertain the voluntariness of the Respondent’s confessional statement. Having said that, I affirm the decision of the Court of Appeal which set aside the judgment of Katsina State High Court in this case. I also affirm the order setting aside the conviction and sentence of the Respondent to death by hanging. I uphold the order of acquittal and discharge of the Respondent rendered by the Court below.