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.
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.
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 gunshot 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.
Appeal dismissed
Concluded
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