Whether  Court Can Rely on  Retracted Confessional Statement to Convict

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, 1st day of July, 2022

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro

Abdu Aboki

Ibrahim Mohammed Musa Saulawa

Tijjani Abubakar

Justices, Supreme Court

SC.64/2016

Between

Ibrahim Abdullahi … … … …             Appellant                                 And

FThe State… … … … …               Respondent

 (Lead Judgement delivered by Honourable John Inyang Okoro, JSC)

Facts

The deceased had a shop where he sold goods. PW5, who is the younger brother of the deceased, worked in the shop. On 31st May, 2009, at about 11.00pm, the deceased collected the money made from the sales of the day which he kept in his car trunk/boot,e and left for his house. PW5 subsequently left the shop to go home as well. However, as he approached the house, he saw some people flashing torch at him, who introduced themselves as thieves. PW 5 started shouting and made to go to the scene, but the thieves threatened to shoot him. He watched as they beat the deceased who attempted to run away, with blood oozing from his body. While running away, the deceased hit a wall and fell. At this point, people had come out to rescue the victims and as they were trying take the deceased to the hospital, they noticed the car trunk was opened and the money inside taken away. The deceased died on the way to the hospital.

Upon report of the incident to the Police, the case was investigated, leading to the arrest of the Appellant who was on the run, having been implicated by his co-accused. The Appellant made statements (Exhibits 1a and b) admitting to the crime. The Police also recovered from the scene of the crime, items belonging to the Appellant, his co-accused and others at large (Exhibits 3, 4a & b and 5). The Appellant was subsequently charged along with his co-accused, on a two-count charge of conspiracy to commit culpable homicide punishable with death, punishable under Section 221(b) and Section 79 of the Penal Code; and conspiracy to commit armed robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, CAP R11, Laws of the Federation of Nigeria, 2004. The Appellant and his co-accused, pleaded Not Guilty.

At the trial, the Appellant and other accused persons denied making Exhibits 1a and b, as well as ownership of items recovered at the scene of the crime (Exhibits 3, 4a & b, 5). The Prosecution called seven witnesses, while the Appellant testified for himself. Of the Prosecution witnesses called, counsel for the Appellant cross-examined only two of the witnesses (PW 2 and PW 3). At the conclusion of trial, the court struck out count one of the Charge, on the basis that it would amount to double conviction if the Appellant and his co-accused were convicted on both counts. The court convicted the Appellant on count two for armed robbery. The Appellant and his co-accused were accordingly sentenced to death, subject to the prerogative power of the Governor of Katsina State.

Unhappy with the conviction, the Appellant appealed to the Court of Appeal, which court dismissed the appeal and affirmed the decision of the trial court. The Appellant further appealed to the Supreme Court.

Issue for Determination

 The Appellant formulated two issues for determination, while the Respondent posed a sole issue. The court adopted the sole issue of the Respondent, as sufficient for determining the appeal thus:

Having regard to the facts of this case and the quality of the evidence led by the Prosecution at the trial, whether the Court of Appeal was not right in disallowing the appeal and affirming the conviction and sentence of the Appellant for the offence of armed robbery.

Arguments

In his submission, counsel for the Appellant argued that considering the totality of the evidence presented by the Prosecution before the court, the trial court and the Court of Appeal erred in law by holding that the Prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt. Relying on the provisions of Section 1(2)(a) of the Robbery and Firearms Act, he argued that the Prosecution must prove, not only that a robbery has been committed by the Appellant, but that the Appellant was armed with a firearm or any other offensive weapon at the time of the incident. Further, the weapon or firearm must come within the meaning of Section 9 of the Act. These ingredients must co-exist, to ground a conviction. Counsel also faulted the reliance of the courts, on circumstantial evidence without corroboration. He emphasised the attitude of court which is to examine circumstantial evidence narrowly and with care – OPARA v STATE (2006) 9 NWLR (Pt. 986) 518. Counsel argued further that the only other evidence linking the Appellant to the crime, were the alleged confessional statements in Exhibit 1a & b, which were retracted during the testimony of the Appellant in court. He posited that though the court is at liberty to convict an accused person on a retracted confession, the court must evaluate the confession, the accused person’s testimony and all the evidence available and that Exhibit 1a & b did not pass the six-way test outlined by the court in DEMO OSENI v STATE (2012) 5 NWLR (Pt. 1293) 219 at 440. Counsel reiterated that the Prosecution must prove its case, on the strength of his evidence. Even where an accused person elects not to lead evidence in proof of his innocence, the court ought to look at possible defences available to the accused person, even where he fails to raise them.

Responding to the submissions above, counsel argued for the Respondent that proof beyond reasonable doubt, is not proof beyond all shadow of doubt; it only means establishing the guilt of the accused person by compelling and conclusive evidence, as done by the Respondent – AKINLOLU v THE STATE (2016) 2 NWLR (Pt. 1497) 503. Counsel submitted that the Prosecution can prove the guilt of an accused person, in any of the ways highlighted in ITODO v STATE (2020) 1 NWLR (Pt. 1704) 1 at 28-29. Since the Appellant did not cross-examine PW5 and PW 6, their testimonies remain unchallenged, and the court could act on their evidence which corroborated the retracted confessional statement in Exhibit 1a & b. More so, the appeal is against concurrent findings of the trial and appellate court, which the Supreme Court will not disturb, except where the Appellant is able to show that the judgement is perverse. He argued that the Appellant had not shown that the findings of the courts below are perverse.

Court’s Judgement and Rationale

Deciding the issue, the Supreme Court held that to secure a conviction for the offence of armed robbery, the Prosecution is under duty to prove the ingredients of the offence as stated by the law, beyond reasonable doubt, as every person charged with a criminal offence is presumed innocent until proven guilty – Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Prosecution must prove that: (a) there was a robbery; (b) that the accused person committed the robbery and was armed with offensive weapons; and (c) that at or immediately before or after the robbery, the accused person wounded or used personal violence on any person – SANI v STATE (2015) 15 NWLR (Pt. 1483) 522 at 540. Each of the listed ingredients must co-exist, and be proved beyond reasonable doubt. Further, to discharge the burden of proof, the Prosecution can: (i) tender the confessional statement of the accused person; (ii) provide evidence of eyewitness(es); and (iii) provide circumstantial evidence – ADEYEMO v THE STATE (2015) LPELR-24688(SC). 

In this case, the Prosecution provided evidence on the three elements highlighted above, though it is only bound to establish the guilt of the Appellant by one of the three ways listed. Exhibit 1a and b, the confessional statement of the Appellant, were made by the Appellant admitting to commission of the offence as contemplated under Section 28 of the Evidence Act, 2011. When the Exhibits were tendered, the Appellant denied making the statements. The law is that, mere denial or retraction by an accused person of a confessional statement during trial does not make such statement inadmissible, or stop the court from relying on it to convict, if it is shown to be voluntarily made, direct, positive and unequivocal as to the admission of guilt by the accused person – PEDRO v STATE (2018) LPELR-44460(SC).

Also, different persons testified for the Prosecution and their testimonies showed that the confession of the Appellant is true, as he was implicated by his co-accused, he had the opportunity to commit the crime, and his confession is consistent with other facts as testified by the Prosecution witnesses. More so, the Appellant did not cross-examine PW5, who gave the eyewitness account, just as he did not cross-examine other witnesses for the Prosecution. Their evidence, therefore, remains unchallenged, and the court is entitled to act on it or accept those facts as established, provided they are not manifestly untrue – OFORLETE v STATE (2000) 12 NWLR (Pt. 681) 415 at 436.

The Supreme Court concluded that, considering the confessional statement of the Appellant, together with the unchallenged or uncontroverted testimonies of the Prosecution witnesses, it is obvious that the Prosecution was able to prove all the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt. The trial court was thus, right in convicting the Appellant based on the evidence before it, and the Court of Appeal was right to affirm the decision of the trial court. More so, the Supreme Court does not make a habit of disturbing the concurrent findings of facts by both the trial court and the Court of Appeal, unless it is shown by the Appellant that such findings of facts are perverse, not according to the record or laid down principles of law, or has occasioned a miscarriage of justice – AYENI v ADESINA (2007) NWLR (Pt. 1033). 

Appeal Dismissed.

Representation

J.D. Gusen, Esq. for the Appellant.

Shehu Wada Abdullahi Esq. for the Respondent (with the fiat of the Attorney-General, Katsina State).

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR), An Affiliate of Babalakin & Co.