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Conviction may be based on a confessional statement – SC

IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA ON FRIDAY, THE 24TH DAY OF MAY, 2013 SUIT No: SC. 247/2010       SC. 247A/2010      …

IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

ON FRIDAY, THE 24TH DAY OF MAY, 2013

SUIT No: SC. 247/2010

      SC. 247A/2010

      SC. 247B/2010

WALTER SAMUEL NKANU ONNOGHEN;                                       

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE; NWALI SYLVESTER NGWUTA; OLUKAYODE ARIWOOLA, MUSA DATTIJO MUHAMMAD  JUSTICES, SUPREME COURT          

BETWEEN 

SANI ABUDULLAHI       –   APPELLANTS

ABDULLAHI BLACK

HUSSAINI DANJUMA  

 AND

THE STATE –       RESPONDENT      

 JUDGMENT

Delivered by (MUSA DATTIJO MUHAMMAD), JSC

This is an appeal against the decision of the Court of Appeal, Abuja Division, affirming the judgment of the Niger State High Court convicting and sentencing the appellant for offences contrary to Sections 265, 283 read together with Sections 79 and 294 of the Penal Code. It is pertinent to state that the appellant, Sani Abdullahi, was tried, convicted and sentenced by the latter court, hereinafter referred to as the trial court, along with two others: Abdullahi Black and Hussaini Danjuma. Dissatisfied, all the three appealed ‘to the former court, hereinafter referred to as the court below, whereat their appeals were dismissed.

FACTS

The respondent’s case is that the three appellants, on or about the 31st May, 2006 at about 1:00 am at Suleja, posing as policemen, carried away one Binta Garba from the room of her boy friend at Bakin Kasuwa to Yangonon area of Suleja town and, against her consent, individually had sexual intercourse with her.

Binta Garba’s boy friend, Abubakar Isah, testified as PWI at the trial court. He reported the incident to the Emir of Suleja and subsequently to the “A” Division Police Station, Suleja. When brought back to his house by the appellants, Binta, he told the court, looked upset. Pursuant to the report lodged with the police, so many arrests were made from which multitude the witness identified the appellants.

It is PWI’s further evidence that appellants came to his house twice on the fateful date. They inflicted some injury on and extorted the sum of six hundred Naira from him as well. He remained unshaken under cross examination.

PW2, Bala Ibrahim, a corporal attached to “A” Division Police Station Suleja was, on 1st June, 2006 detailed to investigate the case reported by PW1.  Two of the appellants had already been arrested then.   The 3rd appellant was later taken to the police station by his parents.   PW2 it was who obtained statements from the appellants.  The appellants, he asserted,   voluntarily   gave   him   their   statements which statements counsel objected to their being admitted on the grounds that the appellants did not make them. In overruling the objection and admitting the statements, the trial court held thus:-

” Court-‘ The claim that the accused persons did not make confessional statements is not a ground not to admit the statements in evidence. The statements of 1st, 2nd and 3rd accused persons are also admitted to exhibits “3”, “4”, “5” and “6”‘ respectively. “

Respondent’s efforts to make Binta Garba testify having yielded no result, the trial court forced it to close its case.

The appellants gave evidence on their own behalf. The case of Sani Abdullahi and Abdullahi Black, the appellants in appeals Nos. SC. 247/2010 and SC. 247A/2010 is that on the 31st May, 2006 shouts of their neighbours woke them up from sleep. The two were sleeping in Sani Abdullahi’s room. They decided to find out what was behind the shouts.  Not far from PW1’s house, they met some people and on enquiry they were informed that some people wanted to rape a girl. The incident, they told the court, took place around 12 midnight. They also told the court that they saw the appellant in appeal No. SC 247B/2010 at the scene. Along with the said appellant, they pleaded with the people intent on raping the girl to spare her. They however left the appellant behind at the same scene only to be arrested the following day for raping the very girl they urged others not to rape.

After their arrest, PW2 recorded the statements of the appellants in all the three appeals. They were later arraigned.

The 3rd appellant, Hussaini Danjuma was also attracted by some noise in front of his residence and on approaching the scene he discovered that a girl had been arrested by some men. He pleaded that the men left the girl alone and in PWI’s presence departed and went back home. It is his case also that he was arrested the next day.

At the end of trial, the trial court held in respect of the 1st head of charge as follows:-

In view of the foregoing I find each of the accused persons guilty of attempt to commit rape punishable under S 283 of the Penal Code reads along with Section 95 of the same code as provided under Section 219 of the CPC and I convict them accordingly.”

The court having also held the ingredients of the offence under Section 265 of the Penal Code proved by the respondent found the appellants guilty and convicted them as charged. They were however discharged and acquitted for the offence under Section 294 of the code which the court held had not been proved by the respondent.

At the court below, the appellants relied on a composite brief wherein three issues were raised for the determination of their appeal by that court.

The respondent’s brief in all the three appeals were settled by Rotimi Ojo Esq. and filed on 22nd November, 2012. The respondents have, in respect of each of the three appeals, adopted the issues formulated by each of the appellant therein as the issues calling for determination in the particular appeal.

It is my firm and considered view that the just determination of the three appeals requires the resolution of only the 1st and 3rd issues formulated by the appellant in appeal No. SC.247A/2010 as similarly distilled by the appellants in the two other appeals to wit:-

“(a) Whether the Appeal Court erred in affirming the judgment of the trial court based on   the   confessional   statements   of the accused; which the Accused objected to and denied making any statement

 (b) Whether the Court of Appeal erred in law when it held that the prosecution proved its case beyond reasonable doubt.”

The contention of each of the appellants under the 1st issue supra is that their conviction by the trial court as affirmed by the court below solely on the basis of his confessional statement is wrong in law. It is argued that their respective statements not being direct and positive, in the absence of any corroboration, cannot be the basis of a safe conviction by any reasonable tribunal.    At the trial Court, counsel to each of the three appellants argues, each accused has objected to his statement being admitted as same had not been made by him.  The lower court’s affirmation of the trial court’s failure to ascertain if indeed the appellants had made the statement ascribed to them is perverse.

Under the 2nd of the two issues identified for the determination of the appeals, learned counsel for all the three appellants submit that the testimonies of PW I and PW II do not provide the required reliable corroborative evidence necessary for the conviction of the appellants. Evidence outside the confessional statement of the appellants, learned counsel contends, is a necessity to warrant a conviction. Indeed, it is contended, the evidence proffered by the two witnesses  who  never witnessed  the  commission  of the offences the appellants are convicted for being hearsay is of no use.

On the whole, it is urged that the two issues be resolved in favour of the appellants, their respective appeals allowed and the decision of the court below set-aside. Appellants in consequence are to be discharged and acquitted.

In reply, learned counsel for the respondent in all the three appeals argues that the evidence of PW II, the investigating police officer who recorded the statements   of all the appellants, shows that all procedures were duly complied with in obtaining the statements; that the statements were read to the appellants after which they voluntarily appended their signatures to them.

Counsel argues that the burden has been discharged against all the appellants. In discharging that burden, it is submitted, the prosecution can do so by any or a combination of any of: (1) confessional statement (ii) circumstantial or (iii) direct evidence of an eye witness. The voluntary confessional statement of each of the appellants, learned counsel asserts, contain proof of the two offences the appellants were tried for and convicted  by the trial  Court.   No  law  requires the prosecution to employ a particular form of evidence, of the three, counsel submits, in the discharge of its burden. The inability of the respondent to call Binta, the victim of the offences the appellants are convicted for does not derogate from the requirements of the law. Learned counsel relies on appellants’ voluntary statements which, he submits, are direct and positive to insist that the lower court’s judgment based on such concrete and lawful evidence cannot be interfered with.

In my determination of the three appeals I shall simultaneously consider the two issues as identified as having arisen for the determination of all the appeals.

The two charges the appellants are convicted for read:-

“1.   That you Sani Abdullahi, Sani Abdullahi (Black) and Hussaini Danjuma  on or about the 31st May, 2001 at Suleja within the Jurisdiction of this Honourable Court carried away one Binta Garba from the room of her boyfriend Abubakar Isah at Bakin  Kusuwa  at   1.00am   under the pretext that you were policemen, to one yangonon area,  behind I.B.B. Market, Suleja, you each had sexual intercourse with her one after the other against her will and against her consent, you thereby commit an offence contrary to section 283 of the Penal Code to be read together with section 79 of the Penal Code.

2.That you Sani Abdullahi, Sani Abdullahi (Black) and Hussaini Danjuma  on or about 31st May 2006 at Suleja within the Jurisdiction of this Honourable court beat up Abubakar Isah inflicting injuries on him while earring away his girlfriend from him at her Bakin Kasuwa residence to be raped, you thereby commit an offence contrary to section 265 of the Penal Code. “

The court below in affirming the trial court’s decision inter— alia hold thus:-

“In the Instant appeal, a careful perusal of the judgment of the lower court showed that the trial court had tested and ascertained facts in the proceedings against the contents of Exhibit 3″, 4″, 5″and 6”.

The Pw1 testified that appellants were among the people that came to his house on 31st day of May 2006 and carried away his girl friend to an unknown place where she was raped.

All the appellants except the 1st appellant in their statement confirmed that they raped the victim but in their evidence before the lower court they denied raping the victim i. e. Binta,

But that denial notwithstanding, it is my view that their confessional statements were voluntary and unequivocal and the lower court was right in convicting them.” The court proceeded on the point as follows:-

“……… The evidence of the appellants at the lower court was that their statements in exhibits 3, 4, 5 and 6 were made after they were tortured. It would be noted that this aspect of the appellant’s evidence is purely retraction of the confessional statements earlier made which does not in any way constitute a defence to the charges against the appellants.

The trial court reviewed the evidence at page 40 of the record of proceedings when the trial judge held that.

I also observed that when the accused persons testified to court they all retracted their confessional statements.’

In my humble view the later retraction of the confessional statements made by the appellants would not affect its voluntariness. “

The court concluded that the respondent having proved the two offences the appellants stand trial for, the trial court is right to have convicted them.

The questions the three appeals raise have been raised in and answered by this Court in a seemingly endless body of cases. The questions are: (1) what is a confessional statement and when is it safe to ground conviction solely on same?

The court below has correctly stated the principle that by virtue of Section 27 (1) and (2) of the Evidence Act a confessional statement is an admission made at any time by a person charged with certain offences stating or suggesting that he committed the offences. It is equally part of the principle that a confessional statement is deemed to constitute relevant facts against the person who made it only if voluntarily given by its maker and/or obtained from him. See Nsofor v. The State (2004) 18 NWLR (part 905) 292.

In the instant case, exhibits 3, 4, 5 and 6 are the statements of the appellants PW II told the trial court he voluntarily obtained from the appellants. Exhibit 33 the extra judicial statement of Sani Abdullahi, the appellant in appeal No. SC 247/2010, states thus:

“……On 01/06/2006 at about 0100 hrs myself and the following persons went to Abubakar’s house and forcefully bring him and his girl friend out of his room. First of all we identify ourselves to them as police officers, we take (sic) his girl friend away from him, we took her to Yangongon market opposite IBB Market Suleja and raped her, myself did not have sexual intercourse with the girl.    Is the following persons that has sexual intercourse with the girl (1) Babale Chairman (2) Sule Fuska (3) Sule Tanko (4) Zubairu White House (5) Hassan Yanbiu.   After the above mentioned persons had sexual intercourse with the girl, myself, and one Dantani took the girl back to her boy friend Abubakar where Babale Oji Chairman requested that he must give us N400 before we leave the girl for him, he actually gave the N400 to Babale Chairman ………… I also joint (sic) them in attacking the complainant,  Chairman  Mohammadu All …………gave us cutlass that we should attack the complainant, we actually effected injuries on their body (sic) with cutlass and In exhibit 4, Abdullahi Black the appellant in appeal No. SC 247A/2010 states in part as follows:-

“The truth of this case is that on the 01/06/2006 at about 1230hrs myself and the following persons went to one Abubakar house at Bakin Kasuwa Suleja and identify ourselves to him as Police Officers,, that very time he was with his girl friend who come to visit him right from Jos we forcefully take away the girl to Yangongon Area Suleja and had sexual intercourse with her after I had sexual intercourse with her I left them to my house, I don’t know who returned her back home, but later the same date we went and attacked the complainants and injured  them   with   cutlass.   I participated  in the fighting.   Chairman did not give us cutlass he is not aware of the fighting.” (underlining mine for emphasis).

The statement of Hussaini Danjuma. the appellant in appeaj No. SC 247B/2010 whereat he states in part thus:-

“I was in my house at Bakin Kasuwa Su/e/a one Babale Oji came and called me that one Abubakar has brought one girl into his room, we went and called the following person’s and   jointly   went to Abubakar house when we arrived we took the girl you (sic) yangongon Area back of IBB Market Suleja and had sexual intercourse with her, Sule Fuska was the first person that has sexual internause (sic) with the give (sic) Babale Oji was the second person, Sani Zisko the third person, Sule Tanko the fourth person, I was the fifth person, Zubairu White House was the last person,  when I finished I left them to my house. On the 1st day of June, 2006 Sani Black came and told me that fought with Abubakar the boy friend to the girl we had sexual inter cause with I did not participated in the fighting that is all I know.”

Now, from the foregoing passages of the extra judicial statements of the appellants what offences can any reasonable tribunal infer the appellants admitted having committed?

It appears to me that it is only the appellant in appeal No. 247A/2010., Abdullahi Black who by his statement, exhibit 4, admits the offences contained in the 1st and 2nd heads of charge in respect of which the trial court’s conviction of all the appellants the court below affirmed.

Abdullahi Sani, the appellant in appeal No. 247/2010 however clearly denies in exhibit 3, his extra judicial statement, having committed the offence of rape the trial court convicted him for and which conviction the court below affirms inspite of the finding to the contrary. He however admits committing the offences under the 2nd head of charge.

The trial court convicted him and court below has also affirmed.

The appellant in appeal No. 247B/2010, Hussaini Danjuma, on the other hand, while admitting committing the offence in the 1st head of charge for rape, denies inflicting on PW I injuries, the offence under the 2no head of charge the trial court convicted him for which conviction the court below also affirms.

I am in complete agreement with learned respondents’ counsel that it is not the law that a confessional statement of an accused person must, in all cases, be corroborated to entitle the trial court convict the accused for the offences the accused admitted having committed. This Court in numerous of its decisions has been emphatic, and the court below has in its decision towed the line, that a conviction may be based solely on a confessional statement once the confessional statement is direct, positive and unequivocal. Indeed in Nwachukwu v. State (2007) 17 NWLR (part 1062) 31 at 70, a case alluded to by both sides in the three appeals, the confessional statement of an accused that is positive, direct, and voluntarily has been held to be the best evidence a criminal court can conveniently admit to convict its maker. See also Akpa v. State (2008) 14 NWLR (part 1106) 72 at 98¬99 and Olalekan v. State (2001 18 NWLR (part 793) 824.

In the instant appeals, all the appellants appear consumed in the argument that the trial court, in the face of the objection they raised when the respondent herein tendered exhibits 3, 4, 5 and 6 as exhibits, should have conducted a trial within a trial before admitting same in evidence. The court’s failure in doing so and the lower court’s affirmation of the trial court’s stand on the point, in spite of the evident lapse, it is argued, is fatal.

An accused who denies  making any statement at all and seeks the rejection of one the prosecution asserts he has made would be seen as resiling from that which he indeed voluntarily made. That fact does not in law render the statement, if confessional, inadmissible. In Akpa v. State (supra) this Court has held thus-‘

“Where an accused person denies making a confessional statement,   the  that Court is expected to admit the statement in evidence as an exhibit and in its judgment decide whether or not such denial avails the accused persons. Thus, a confession does not become inadmissible merely because an accused person denies having made it. In this respect, a confession contained in a statement made to the police by a person under arrest is not to be   treated   differently   from   any other confession. In short, the denial of an accused person of making a statement to the police is an issue of fact to be decided in the judgment as the issue does not affect admissibility of the statement. ”

From the foregoing, learned appellants’ counsel cannot simply be right in their insistence that the court below has erred in its affirmation of the trial court’s decision admitting and relying on exhibits 3, 4, 5 and 6, the extra judicial statements of the appellants the appellants retracted from in the course of trial.  The 1st issue is therefore resolved against the appellants in all the three appeals.

Both sides in the appeals are one and correctly too that the law requires the respondent to prove its case beyond reasonable doubt, this is a principle of great antiquity. The question here as raised by the appellants in furtherance of the 2nd issue in their three appeals is if the court below is right in affirming the trial court’s decision that the respondent has discharged that burden in respect of the offences for which all the appellants have been convicted.

It must be stressed at this point that apart from their confessional statements only the evidence of PW I, in the manner it has, remains relevant as to the facts required in proof of the charges against the appellants. The relevance of the testimony of PW I, it must however be stated, appear limited. The conviction of the appellants having proceeded on the basis of their confessional statements, they can only be lawfully convicted on the basis of the facts they confessed in their respective statements which facts constitute any of the offences they have been convicted for.

It has earlier been demonstrated in this judgment, through the passages extracted and reproduced from their respective confessional statements, firstly, that the appellant in appeal No. SC. 247/2010 in exhibit 3, his statement, only admitted inflicting on PWI the injury by virtue of which the appellants are convicted under the 2na head of charge. In the same statement, the appellant denied raping Binta as alleged in the 1st head of charge.

The point has also been made that the appellant in appeal No. SC. 247A/2010 admitted committing the offences under the 1st and 2nd heads of charge and that the appellant in appeal No. SC. 247B/2010 admitted committing the offence under the 1st head of charge only.

It must be stressed that once there is nothing outside the confessional statements of the appellants to base their conviction under any of the heads of charge for which they were tried, the trial court’s decision convicting them for the charges as affirmed by the court below cannot endures on appeal. It does only if founded on evidence on record other than their confessional statements. The testimony of PW I, is only to the effect that his girl friend was forcefully removed from his residence and subsequently returned. Nothing more. The evidence of PW II equally remains unavailing to the respondent.

In the circumstance, therefore, learned appellant’s counsel is right is his submission that the decision of the court below affirming the conviction of the appellant in appeal No. SC. 247/2010 for rape, proof of which is not borne by the evidence on record, is perverse.

I also agree with learned appellant’s counsel in appeal No. SC. 247B/2010 that the lower court’s affirmation of the trial court’s decision convicting the appellant therein under the 2nd head of charge is equally perverse for the same reason, which reason explains my resolution of the 2na issue in favour of the two appellants. In consequence, the two appeals, Nos. 247/2010 and 247B/2010 succeed in part.

The lower court’s decision in respect of appeal No. SC.247A/2010 affirming the decision of the trial court convicting the appellant therein for the two heads of charge, having evolved from direct, positive and unequivocal admission of the appellant that he has committed the two offences, however, endures. For the avoidance of doubt, while the conviction and sentences of the appellants in appeal Nos. SC. 247/2010 and SC.247B/201 0 for the 1st and 2nd heads of charge respectively are hereby set aside, their conviction and sentence for the 2nc and 1st head of charge respectively are, however, hereby further affirmed. In appeal No. SC.247A/2010 the lower court’s affirmation of the trial court’s conviction and sentence of the appellant therein for both heads of charge which have endured are hereby further affirmed, the appeal having totally failed.

 

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