Adamu Saliu V The State (2014)

LAWGLOBAL HUB Lead Judgment Report

Walter Samuel Nkanu Onnoghen. JSC

This is an appeal against the judgment of the Court of Appeal Holden at Abuja in appeal NO. CA/A/16C/2009 delivered on the 12th day of July, 2011 in which the court dismissed the appeal of appellant against his conviction and sentence by the High Court of Kogi State in charge NO. HC/31C/2005 delivered on the 20th day of June, 2008./nThe facts of the case include the following:/nAppellant and one Peter lliya Azabade were alleged to have waylaid the deceased, one Mohammed Abubakar, along Akogun – Ozugbe road, KotonKarfe, in Kogi State on the 9th day of August, 2003 with the intention of “robbing the deceased of his car. During the robbery, appellant and Peter Azabade were armed with locally made pistols with which they shot and killed the deceased and depossessed him of his car, a red Nissan Saloon car with registration NO. KOGI AA 969 KAF./nPAGE| 2/nAppellant and co-accused were charged to the High Court of Kogi State on a three count charge of conspiracy, armed robbery and culpable homicide punishable with death. They were tried, found guilty and sentenced accordingly. Appellant was dissatisfied with the conviction and sentence and consequently appealed to the lower court which dismissed same and affirmed the conviction and sentence of appellant by the trial court. The present appeal is a further appeal by appellant against the said judgment of the lower courts./nLearned Counsel for appellant, BIRIYAI DAMBO ESQ has formulated four issues for the determination of the appeal in the appellant brief filed on 22/5/2012. The issues are as follows:/n”(a) Whether taking into consideration the peculiar facts of’ this case, the learned trial judge and the lower court treated EXHIBIT “E” (alleged confessional statement) properly as the true confessional statement of the Appellant to ground a conviction of armed robbery, conspiracy and culpable homicide./n(b)Whether from the totality of evidence before this Honourable court the prosecution has proved its case beyond reasonable doubt in respect of the three heads of charge against the Appellant considering the role of corroborative evidence in their proof./n(c)Whether in the face of the evidence adduced the learned trial Judge and indeed the lower court drew the right inferences and were thereby right in law to have convicted the Appellant on the three heads of charge./n(d)Whether the conviction and sentence of the Appellant by the trial court and upheld by the lower court is right despite the absence of a separate sentence in respect of each and every count as charged before the trial court.”/nOn his part, learned counsel for the respondent, STEVE ADEHI ESQ in the respondent brief filed on 5/7/12 formulated two issues for the determination of the appeal. These are as follows:/n”(i) Whether the conviction and sentence passed on the Appellant by the Trial Court was rightly upheld by the Court of Appeal having regard to the evidence led by the prosecution before the Trial Court./n(ii) Whether the Court of Appeal was right when it upheld the conviction and sentence of the Appellant despite the failure of the Trial Court to pass distinct and separate sentences in respect of two of the three counts for which the Appellant was convicted.”/nLooking at the issues as presented by both counsel, I am of the view that the respondent’s issues/nPAGE| 3/nbest capture the complaints of appellant though I will adopt the issues and arguments thereon as presented by learned counsel for appellant in this judgment./nIn arguing his issue 1, learned counsel for appellant stated that the trial judge based the conviction of appellant on facts contained in exhibit “E” which conclusion was affirmed by the lower court; that appellant maintained, during trial within trial, that he neither thumb printed nor made exhibit “E” particularly as appellant is literate and that the said exhibit “E” was written and thumb printed on behalf of appellant by PW 6; that the lower courts failed to find out whether it was appellant who made exhibit “E”, relying on Ogunyevs The State (1999) 5 NWLR (pt. 604) 548 at 570, 572; Aiguoreghian vs The State (2004) 3 NWLR (pt. 860) 367 at 403; it is the contention of counsel that the lower courts are in error in holding that appellant retracted exhibit “E” and that, in any event, there is no corroborative evidence in respect of the contents of exhibit “E” – the alleged confessional statement of appellant, relying on Ogudovs The State (2011) 18 NWLR (pt. 1278) 1 at 26; 32; 45 – 47; Alarapevs The State (2001) 5 NWLR (pt. 705) 79 at 98 – 99; Osenivs The State (2012) 5 NWLR (pt. 1293)351 at 387./nIn respect of issue 2, counsel submitted that there is no corroborative evidence on record linking appellant with the offences charged particularly as appellant is alleged to have retracted the confessional statement, exhibit “E”; that the only evidence adduced by the respondent to link appellant with the offence are exhibits “A”, “A1” and “A2” which are photographs of the deceased at the locus criminis which did not capture the images of appellant; exhibit ‘C’, a search warrant of the premises of appellant from which a car key which was neither tendered in evidence nor proven to be the particular key used to drive the stolen car from Kaduna back to Kogi State; that the vehicle particulars allegedly found in the premises of appellant in the course of executing exhibit ‘C was not endorsed on the said exhibit ‘C as being those of the stolen vehicle nor were they tendered in evidence; that exhibits “G”, “G1” and “H”, the two locally made pistols and a blood stained cloth respectively, were not found in the custody of appellant but PW2; that evidence of PW4, rather than implicate appellant implicated PW4./nIt is the further submission of counsel that there is no corroborative evidence outside exhibit ‘E’ linking appellant with the offence charged particularly as the confessional statement, exhibit “E” was retracted; that where a trial judge had drawn a wrong conclusion from accepted or proven facts and which facts do not prove the case of the prosecution, an appellate court has/nPAGE| 4/nthe duty to interfere with such findings as same are perverse, relying on Abdullahi vs State (2008 17 NWLR (pt. 1115)203 at 219./nOn issue 3 learned counsel submitted that the inferences drawn as it relates to the guilt of appellant and the evidence of the prosecution witnesses relied upon including the exhibits, the deductions made leading to the conviction and sentence of appellant are unsustainable as same bordered on sentiments and suspicion, relying on Orji vs State (2008) 10 NWLR (pt. 1094) 31 at 47 – 48; 51; 52, 57; 61 that there was no eye-witness account of the events thereby making the case to be dependent on circumstantial evidence; that the circumstantial evidence relied upon are not cogent to establish the cause of death of the deceased as PW5 had said that he did not know what made the holes on the body of the deceased nor what killed the deceased; that the holes on the corpse of the deceased could have been caused by a spear or sharp object rather than exhibits “G” and “G1”; that no doctor’s report on the corpse was tendered in evidence./nIt is the contention of counsel that even if it is assumed that what PW6, PW1 and the rest of the police search team recovered from the premises of appellant are the vehicle key and particulars of the deceased vehicle, these cannot amount to circumstantial evidence in proof of the allegation that appellant killed the deceased or conspired to so do; that there is nothing to show that the vehicle was stolen at the time the deceased was killed; that mere possession of the vehicle or keys and particulars thereof four days after the Commission of the alleged offence is not enough link with the murder of the deceased; that the prosecution did not prove that it was the act of appellant that killed the deceased./nFinally on issue 4, learned counsel submitted that sentencing in a criminal proceeding must comply with certain standards particularly the avoidance of lumping together of sentences or non-sentencing for offences upon which convictions were returned; that such decisions are liable to be set aside, relying on the case of Oyediran & ors vs The Republic (1966) NSCC (Vol. 4) 252; (1967) NMLR 122 and section 269 of the Criminal Procedure Code and urged the court to resolve the issues in favour of appellant and allow the appeal./nOn his part, learned counsel for respondent submitted that from the totality of the evidence on record, the lower court was right in sustaining the conviction and sentence of appellant; that the conviction of appellant was not based solely on his confessional statement, exhibit “E” but also on the totality of evidence of PW1 – PW7 and the confessional statements of appellant and/nPAGE| 5/n2nd accused; that the trial judge also evaluated the evidence of DW1 and DW2 called by appellant before arriving at the decision./nOn exhibit “E” counsel stated that the initial reaction of appellant to the admission of that document as an exhibit is that though he made the document, it was made involuntarily; that this resulted in a trial within trial procedure to determine the issue of voluntariness of the statement which procedure was later terminated due to the withdrawal by appellant of his objection; that appellant later denied ever making exhibit “E” which in effect amounts to a retraction, as found by the trial court and affirmed by the lower court./nIt is the further submission of counsel and rightly in my view, that the trial court applied the right procedure to satisfy itself that it was appellant that made exhibit “E”, which was, in any event, not objected to by appellant; that the court carefully examined the evidence of PW5, PW2, PW4 and PW1 before arriving at the guilt of appellant as the evidence corroborated the contents of exhibit ‘E’ relying on Ogunbayo vs. State (2007) 8 NWLR (pt. 1035) 157 at 179; that the cause of death of the deceased is not in doubt at all as Exhibit “E” & “F” stated how appellant and the co-accused bought pistols with which they short the deceased twice and confirmed him dead before taking away his car; that there was no necessity for the prosecution to furnish a medical report on the deceased as to the cause of death as evidence before the court clearly shows the cause of death, relying on Awopeju vs State (2001) 12 SCNJ 293 at 300; Ben vs The State (2006) 16 NWLR (pt. 1006) 582; that the key and particulars of the vehicle of the deceased were found in the possession of appellant; the contact made by appellant with the view of selling the vehicle, the process leading to the recovery of the vehicle in Kaduna etc. It was safe and right to infer that appellant conspired to and indeed killed the deceased and robbed him of his car. Relying on the decision of this court in the case of Madagwa vs The State (1988) 12 S.C (pt. 1) 68, learned counsel submitted that where a person is found in possession of a stolen car a few hours after same was stolen he is rightly presumed to be the thief./nIt is the further contention of counsel that the attempt at impugning the integrity of PW4 and the confessional statement, exhibit “E” is misconceived and clearly an afterthought; that it was appellant who led the police to arrest PW4 at Abuja; that appellant admitted that PW4 took him to a man in Kaduna for the purpose of selling the stolen car, etc; that the contention of appellant that he can read and write and did offer to write his statement cannot be supported/nPAGE| 6/nhaving regards to his testimony which shows that he is a school drop-out and a taxi driver and urged the court to resolve the issues against appellant./nOn the issue of failure of the trial court to pass distinct and separate sentences in respect of two of the three counts of the convictions, learned counsel submitted that the failure is not fatal to the conviction and sentence of the appellant; that the failure has not resulted in any miscarriage of justice to the appellant; that having regard to the sentence of death passed on appellant a further sentence would make no difference or have any effect or would be superfluous as the sentence on those two counts is also death; that though section 269 of the Criminal Procedure Code requires a trial court to specify the punishment to which an accused is sentenced, section 275 of same allows any error in specifying such sentence to be remedied, relying on Obidiozo vs The State (1987) 4 NWLR (pt. 64) 148 at 179. Finally, learned counsel urged the court to invoke its general powers to impose two additional sentences of death on appellant, resolve the issues against appellant and dismiss the appeal./nI have carefully gone through the record of appeal and submissions of both counsel on the relevant issues identified for determination in this appeal./nIt is very clear that the main issue raised by appellant is the legal status of exhibit “E” and/or its effect on the charge having regards to the requirement of corroboration of retracted confessional statement./nThe contention of learned counsel for appellant is that since appellant denied making exhibit “E” the lower courts had a duty to make a finding as to who made it (Exhibit ‘E’) and even if exhibit “E” is treated as a retracted confessional statement the lower courts ought to have assessed evidence adduced on record corroborative of the said exhibit “E”; that there is no extraneous evidence corroborative of exhibit ‘E’ in any material particular./nThe question is whether learned counsel is right in his submissions. To begin with, it is not in doubt that appellant contested the admissibility of exhibit ‘E’ as a confessional statement on the ground that it was’ not voluntarily made by him which resulted in a trial within trial proceedings./nThe proceedings were, however, aborted when appellant withdrew his objection to the admissibility of the statement. At page 89 of the record appears the following:-/nTolifashe, Esq – we object to the tendering of the two statements because they are a product of threat, severe human degradation and not voluntary.”/nPAGE| 7/nHowever, at page 105 of the record and after the prosecution had closed its case and the defence had opened in the trial within trial proceedings, the following appears:-/nTaifashe, Esq:- After a careful perusal of the evidence adduced, we shall abandon our earlier objection on the voluntariness of the statements of the accused persons which we made on 14/12/06 which we challenged the voluntariness of the confessional statements. We therefore have no objections to the tendering of the statements of the accused persons in evidence.”/nFrom the above, it is clear that exhibit ‘E’ was eventually admitted without objection whatever. It is settled law that an accused person can be validly convicted on his confessional statement alone. With the withdrawal of the objection to the admissibility of exhibit ‘E’, appellant admitted unequivocally that he made the said statement and voluntarily too. Appellant also stated that he agreed that the police should write his statement for him and read same to him; the fact that the statement was later admitted in evidence as exhibit “E’ without objection speaks volume as to the identity of its maker./nNot only is it trite law that an accused person can be validly convicted on his confessional statement alone, the courts however state that the trial court, in the circumstance of a retraction by the accused, should direct itself on the requirement of looking for other evidence outside the confessional statement, in this case, exhibit ‘E’ which would corroborate and show that the confession is true. In that regard, the lower courts, concurrently found/held that there was sufficient evidence of corroboration of the contents of exhibit ‘E’ having regards to the evidence of PW2, PW3, PW4 and PW5 as evaluated at pages 156 – 157 of the record by the trial Judge which was affirmed by the lower court. It is settled law that the Supreme Court does not make a practice of inferring with the concurrent findings of fact of the lower courts except in exceptional circumstance, such as where the finding has been demonstrated to be perverse or not supported be evidence on record, etc, etc, which have not been demonstrated to have occurred in the instant case. I therefore find no reason to disturb the said concurrent findings./nSecondly, I wish to state that the requirement that the trial court should look for independent evidence in corroboration of the confession or which tends to connect the accused to the commission of the crime charged, is basically a rule of practice which is satisfied if there exists evidence outside the confession which links the accused with the crime. In this case, there is/nPAGE| 8/nalso exhibit ‘F, the confessional statement of the co-accused and the independent testimony of seven prosecution witnesses. The practice of seeking for corroboration of the confessional statement arises only where the accused person retracts his confession at the trial, as in the instant case./nThe lower courts concurrently found and held that there was corroboration of the confessional statement of appellant and I have seen no reason to interfere with the said findings particularly as no special circumstance, necessitating such interference, has been proved/established before this court. The findings are supported by evidence on record and are therefore not perverse etc./nIn the case of Mohammed vs The State Vol. 2 N.C.C. 574, this court held, at page 586 as follows:-/nIt is important to say that when the confessional statement of the appellants were tendered, there was no objection, and so there was no trial within trial. In the absence of objection, this court can come to the conclusion that the statements were made voluntarily by the Appellants. This court held in Adio vs State (1986) 2 NWLR (pt 24) 581 that a free and voluntary confession of guilt by an accused person, if it is direct, positive and satisfactorily proved occupies the, highest place of authenticity when it comes to proving beyond reasonable doubt. The judgment of this court is valid. After all, the accused is the best person and in the best position to say whether he committed the offence or not although he may decide to hide the truth from the court, If he says that he committed the offence, the prosecution need not prove the offence any longer. The confession is enough proof of the offence beyond reasonable doubt”/nOn the issue as to whether the lower court was right when it upheld the conviction and sentence of appellant despite the failure of the trial court to pass distinct and separate sentences in respect of two of the three counts for which appellant was convicted, I agree with learned counsel for the respondent that the failure is not fatal to the conviction and sentence of appellant I hold the considered view that the failure of the trial Judge to pass separate sentences after conviction of appellant for the offences of conspiracy and armed robbery has not, in anyway, resulted in any miscarriage of justice to appellant which would have resulted in this court setting aside the convictions and sentence by the trial Judge. 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/nPAGE| 9/nappellate court. To qualify for a setting aside order, the mistake/error must be substantial/material and should lead to a miscarriage of justice if not corrected or set aside./nIn the instant case, the two counts for which appellant was convicted but not sentenced carry the same sentence of death as the count of culpable homicide punishable by death for which appellant was convicted and sentenced. It is preposterous that appellant is complaining that the trial court sentenced him to death for one count instead of three death sentences for the three counts on which he was convicted!! He is also contending that the failure to add the other two death sentences should nullify the validly imposed sentence of death for one of the counts!! This is clearly the act of a drowning man clinging to a straw to save his life./nFinally on this issue, though section 269 of the Criminal Procedure Code requires a trial court to specify the punishment to which an accused person is sentenced, section 275 of the said Criminal Procedure Code provides that any error in specifying such a sentence is remediable which means that such an omission is not fatal to the case of the prosecution./nSee also the case of Obidiozo vs The State (1987) 4 NWLR (pt. 64) 747 where this court held that an error by a trial court on the mode of sentence passed on a convict will not, without more, render the proceedings, including the conviction and sentence void./nIn the circumstance I find no merit whatsoever in this appeal which is accordingly dismissed by me./nAppeal dismissed.

SC. 366/2011