[Criminal Law and Procedure] – [Confessional Statement] – [Whether can Ground Conviction]
ISSUES FOR DETERMINATION:
- Whether the learned Justices of the Court of Appeal, Makurdi Division were right to have affirmed the decision of the learned trial Judge admitting the appellants extra judicial statement – exhibit 2 as evidence and treated same as confessional statements in spite of the fact that same were retracted by the appellant.
- Whether the learned Justices of the Court of Appeal, Makurdi Division were right to have affirmed the decision of the learned trial Judge that the prosecution proved its case beyond reasonable doubt against the appellant as to warrant his conviction for the offences charged having regard to the totality of evidence before the court.
FACTS:
Sometime in 2002, one Angulu Akitse, who hailed from Benue State, was apprehended at Abuja, with a human head in his possession. He told the Police that the head was that of one Sunday Usue (the deceased), whom four persons, including the appellant, killed for money-making rituals, at the behest of their friend’s master.
The body of the deceased, without a head, heart and genitals, was later discovered at the River Benue bank near Abinsi in Guma Local Government Area, Benue State. Apart from Bomboi Bawa, whose master asked for the human head, the said Angulu Akitse, one Luka Ali, and the appellant as third accused, were arraigned before the High Court of Benue State and charged with the offences of conspiracy and culpable homicide punishable with death.
During trial, when the prosecution counsel sought to tender the statement of the appellant through the police officer that recorded it, learned defence counsel for the appellant objected on the ground that the statement was not voluntary, and he asked for a trial-within-trial. In its ruling on the objection, the trial court admitted the statement. At the conclusion of trial, the three accused persons, including the appellant, were sentenced to death by hanging for conspiracy to kill Sunday Usue, and intentionally and unlawfully killing Sunday Usue.
Aggrieved, the appellant appealed to the Court of Appeal, which dismissed his appeal and affirmed the decision of the trial court. Further aggrieved, the appellant appealed to the Supreme Court. Appealed was dismissed.
HELD:
On when voluntariness of confessional statement can be challenged and whether confessional statement alone can ground conviction:
It is at the trial-within-trial that an accused person can effectively challenge the prosecutor as to the voluntariness of a confessional statement. If the confessional statement is admitted after the trial-within-trial the accused person cannot argue that he did not make the confession voluntarily without first impugning the trial-within-trial. A voluntary confession which is direct, positive, and satisfactorily proved is sufficient to warrant conviction even without any corroborative evidence so long as the court is satisfied of the truth of the confession.
NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:
- A.G., Oyo State v. Fairlakes Hotel (1988) 5 NWLR (Pt. 92) 1
- Adamu v. State (1991) 4 NWLR (Pt. 187) 530
- Afolabi v. C.O.P. (1961) SCNLR 307
- Agugua v. State (2017) 10 NWLR (Pt. 1573) 254
- Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446
- Asuquo v. State (2016) 14 NWLR (Pt.1532) 309
- Azogor v. State (2014) LPELR – 24414
- Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt. 763) 512
- Bello v. Police (1956) SCNLR 113
- Bouwor v. State (2016) 4 NWLR (Pt. 1502) 295
- Dagayya v. State (2006) 7 NWLR (Pt. 980) 637
- Dawa v. State (1980) 8-11 SC 236
- Dawai v. State (2018) 5 NWLR (Pt. 1613) 499
- Edhigere v. State (1996) 8 NWLR (Pt. 464) 1
- Ejinima v. State (1991) 6 NWLR (Pt. 200) 627
- Eke v. State (2011) 3 NWLR (Pt. 1235) 589
- Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410
- Enewoh v. State (1990) 4 NWLR (Pt. 145) 469
- Esseyin v. State (2018) 14 NWLR (Pt. 1640) 491
- Eyisi v. State (2000) 15 NWLR (Pt. 691) 555
- Fatilewa v. State (2008) 12 NWLR (Pt. 1101) 518
- Galadima v. State (2017) 12 NWLR (Pt. 1580) 339
- Hassan v. State (2001) 6 NWLR (Pt. 709) 286
- Ibigbami v. Mil. Gov., Ekiti State (2004) 4 NWLR (Pt. 863)243
- Ibrahim v. State (1991) 4 NWLR (Pt. 186) 399
- Idemudia v. State (1999) 7 NWLR (Pt. 610) 202
- Ighalo v. State (2016) 17 NWLR (Pt. 1540) 1
- Ikemson v. State (1989) 3 NWLR (Pt. 110) 455
- Iliyasu v. State (2015) 11 NWLR (Pt. 1469) 26
- Kanu v. R. (1952) 14 WACA 30
- Lanre v. State (2019) 3 NWLR (Pt. 1660) 506
- Nwabueze v. State (1988) 3 NWLR (Pt. 86) 16
- Nworu v. State (2018) LPELR-44640
- Obineche v. Akusobi (2010) 12 NWLR (Pt. 1205) 383
- Ochemaje v. State (2008) 15 NWLR (Pt. 1109) 57
- Odu v. State (2001) 10 NWLR (Pt.772) 668
- Oforishe v. Nigerian Gas Co. Ltd. (2018) 2 NWLR (Pt. 1602) 35
- Ogunye v. State (1999) 5 NWLR (Pt. 604) 548
- Okabichi v. State (1975) 3 SC 96
- Okashetu v. State (2016) 15 NWLR (Pt.1534) 126
- Olude v. State (2018) 10 NWLR (Pt. 1627) 292
- Onah v. State (1985) 3 NWLR (Pt. 12) 236
- Onyegbu v. State (1995) 4 NWLR (Pt.391) 510
- Orisa v. State (2018) 11 NWLR (Pt. 1631) 453
- Oseni v. State (2012) 5 NWLR (Pt. 1293) 351
- Osho v. State (2012) 8 NWLR (Pt. 1302) 243
- Owhoruke v. C.O.P. (2015) 15 NWLR (Pt.1483) 557
- Queen v. Itule (1961) 2 SCNLR 183
- Shehu v. State (2010) 8 NWLR (Pt. 1195) 772
- Shide v. State (2018) LPELR-45038
- State v. Gwangwan (2015) 13 NWLR (Pt.1477) 600
- State v. Salawu (2011) 18 NWLR (Pt.1279) 580
- Uor v. Loko (1988) 2 NWLR (Pt. 77) 430
- Usufu v. State (2007) 3 NWLR (Pt.1020) 94
- Yanor v. State (1965) ANLR (Reprint) 199
- Yusuf v. State (2007) NWLR (Pt.1020) 116
FOREIGN CASES REFERRED TO IN THE JUDGMENT:
- R. v. Sykes 18 Cr. App. 233
- Rex v. Baskerville (1916) 2 KB 658
NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:
- Constitution of the Federal Republic of Nigeria, 1999 (as amended), Ss.171(6), 197, 198, 199(1), 200, 201(1)(2), 208(5)
- Evidence Act, S. 128
BOOKS REFERRED TO IN THE JUDGMENT:
- Black’s Law Dictionary 9th Ed
- Black’s Law Dictionary, 8th Ed.
FULL JUDGMENT
AUGIE, J.S.C. (Delivering the Leading Judgment):
I will adopt the respondent’s issues in dealing with this appeal; not only do they capture the substance of the appellant’s grouse, they are in proper sequence since it is an established fact that the appellant’s conviction is based on exhibit 2, the subject of issue. Trial-within-trial is exactly what it implies: a mini trial within the main trial, wherein the confessional statement of an accused is subjected to a closer scrutiny to determine whether or not the statement was freely and voluntarily made by him to the Police.
It is settled that where an accused says that he did not make the confession, a trial court is entitled to admit it in evidence, and decide at the conclusion of the trial whether or not he had made it. But where he agrees that he made the confession but says that he was forced or tortured to make it, he is attacking its admissibility, so, trial-within-trial must be held to determine its voluntariness. In this case, the appellant challenged the admissibility of the said statement on the ground of involuntariness. The trial court rightly conducted a trial-within-trial and overruled his objection. In affirming the trial court’s decision, the Court of Appeal held:
“From proceedings leading to the admission in evidence of exhibit 2 as can be patently seen in the record of appeal. I do not see any justification whatsoever to interfere with the ascription of credibility by the learned trial Judge to the evidence adduced by both the appellant and prosecution on this Issue, particularly the acceptance of the evidence of PW3 and PW4, regarding how exhibit 2 was obtained from the appellant. What is more, the appellant having not appealed against the ruling of the trial court on the trial-within-trial cannot now be heard to attack it in the instant appeal.”
The Court of Appeal is right: it is difficult for an appellate court to set aside a trial court’s finding, which is predicated on credibility. Since the trial court did not accept his story that he was tortured to make exhibit 2, the appellant cannot expect the Court of Appeal to evaluate or assess evidence adduced at the trial-within-trial.
Weight of evidence is the persuasiveness of some evidence in comparison with other evidence. See Black’s Law Dictionary 9th Ed. In this case, there were no eye-witnesses, and apart from PW3, who also testified as TWT1, the evidence of PW1, PW2 and PW4 centered on the other accused persons. As the trial court put it:
“None of the witnesses for the prosecution testified as an eye witness. The prosecution’s case was founded largely on the confessional statements of the accused. Exhibits 1, 2 and 4.”
The respondent submitted that the said evidence of PW3 as TWT1 at the trial-within-trial, corroborates the confession in exhibit 2. But its argument does not hold water because a trial-within-trial is only used to test the voluntariness of a confessional statement and not what value or weight to attach to it as evidence at the trial. mIn effect, evidence from a trial-within-trial, wherein voluntariness of a confession is determined cannot be transplanted, injected or imported into the main trial, wherein issue of guilt is decided. So, PW3’s evidence at the trial within trial is immaterial in this appeal.
Be that as it may, the appellant also argued in his brief that “In exhibit 2, the appellant denies the commission of the offences alleged against him.” I do not think that he is referring to exhibit 2, which is set out at pages 18-19 of the record (reproduced earlier), wherein he stated how, motivated by the “plenty money” that they would get from Bomboy’s master, he and his friends agreed to kill and remove the deceased’s head and how they actually killed him. Even more damning, the appellant clearly stated in exhibit 2 that:
“I shot Sunday at the back he felled (sic) down and died when he died Ali hold Sunday’s head while Angulu removed the head of Sunday with a sharp knife and put it in a bagco bag, Angulu gave the head to Bomboy we all came back to Abinsi, but before we came back to town we dragged the body of Sunday and covered the headless body with grass. When we came back to Abinsi, Bomboy and Ali took the head of Sunday and left for Abuja.”
I cannot fathom how he can say exhibit 2 is not a confession or that he denied “the commission of the offences alleged against him”. No doubt, the Court of Appeal was right when it held as follows:
“There is no iota of doubt in my mind that exhibit 2 is a confession, made by the appellant admitting his guilt. The trial court said that exhibit 2 is not lacking in veracity truth and credibility. I am equally of the view that exhibit 2 is quite direct, unequivocal and positive. It is full of suggestions from which it can only be inferred that the appellant in consensus ad idem with the other persons, whose names are stated therein, killed the deceased, Sunday Usue, on the day in question. I am, therefore, at one with the learned trial Judge that exhibit 2 is purely a confessional statement. The law is well-established that where a confessional statement is direct, positive and unequivocal as to the admission of guilt by an Accused without an additional corroborative evidence outside it…”
Whatever clouds the appellant may be hiding under, it is as clear as daylight that exhibit 2 is purely a confessional statement, and a confession, even without corroboration, is sufficient to support a conviction, so long as the court is satisfied of the truth. See Oseni v. State (2012) 5 NWLR (Pt. 1293) 351, where this court held:
“In Nigeria, a free and voluntary confession of guilt by (an accused), if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without corroborative evidence, as long as the court is satisfied as to the truth of the confession.”
To this end, the court is enjoined to evaluate the confession, the testimony of the accused and other evidence adduced at trial. It must also satisfy itself that the statement passed the six tests laid out by Ridley, J., in R. v Sykes (supra), which as the appellant submitted, was adopted and applied by this court in many cases. As suggested, the court must ask itself the following questions:
- Is there is anything outside the confession, which shows that it may be true?
- Is it corroborated in anyway?
- Are the relevant statements of fact made in it most likely true as far as they can be tested?
- Did the accused have an opportunity to commit the offence?
- Is the confession possible?
- Is the confession consistent with other facts, which have been ascertained and established?
In conclusion, it submitted that the appellant has not shown reasonable grounds to warrant overturning concurrent findings of facts by the two lower courts: that it is trite and elementary law that before this court can reverse the concurrent findings of fact, the party seeking such a reversal must show clearly the violation of some principle of law or procedure, which such violation, if corrected, the findings cannot stand, citing Agugua v. State (2017) LPELR-42021(SC); (2017) 10 NWLR (Pt. 1573) 254 and Olude v. State (2018)LPELR-44070(SC); (2018) 10 NWLR (Pt. 1627) 292.
At this point, it must be clear to anyone reading this that the appellant is grasping at straws with his arguments on this issue. To start with, he merely asserted in his brief that the lower courts “should have considered all the defences” that he raised but I take it that he means alibi which the trial court found did not avail him. The Court of Appeal was, therefore, right to conclude that the defence of alibi can definitely not avail the appellant, not having been properly raised. Clearly, the trial court and Court of Appeal considered his defence of alibi and found that it did not avail him. Thus, the suggestion made by the appellant that the lower courts “did not consider all the defences that he raised, is without merit. He raised a defence of alibi and I agree with the lower courts that in the circumstances of this case, the defence does not avail him.
Now, a vital witness is a witness, whose evidence may determine the case one way or the other, and failure to call him is fatal to the prosecution’s case. Onah v. State (1985) 3 NWLR (Pt. 12) 236 SC. Is the failure to call the person, who identified the deceased, and the medical doctor, a fatal error on the part of the prosecution? The trial court and the court of Appeal did not think so. I do not only think; I am certain that the failure to call the brother of the deceased. who identified the body, and the medical doctor, who issued exhibit 3, is not fatal to the prosecution’s case, as the identity of the body examined by the medical doctor is not in doubt.
Obviously, there was overwhelming evidence indicating that the headless body recovered from the said River bank, who was identified by “Terkaa Osue”, before it was taken for post-mortem examination, was that of Sunday Osue, the deceased in this case. The law says that where the totality of the prosecution’s evidence showed unmistakably that the body on whom a doctor performed a post-mortem examination, was that of the deceased, a separate witness, though desirable, is not a necessity. Where the identity of the deceased can be inferred from the circumstances of the case, then direct evidence is not essential, and where the deceased died in circumstances in which there is abundant evidence of the manner of death, medical evidence can be dispensed with.
I have said more than enough already. Suffice it to say that the concurrent findings of the two lower courts are unassailable. The appellant’s confession in exhibit 2 is not only rich with details, it is consistent with established facts: from the human head found with the first accused to the headless body of the deceased found exactly where the appellant said they killed him and hid his body. This appeal lacks merit. It fails and it is dismissed. I affirm the Court of Appeal’s judgment, which upheld the decision of the trial court, including appellant’s conviction and death sentence.
Appeal Dismissed.
LIST OF COUNSEL:
Dr. Agada Elachi., Esq with Johnson Ochai, Esq. – for the Appellant.
Eko Ejembi Eko Esq.- for the Respondent.