Sani Abdullahi & Ors. V. The State (2009)
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JIMI OLUKAYODE BADA J.C.A.
This is an appeal against the Judgment of High court of Niger State of Nigeria in Suleja Judicial Division in charge No NSHC: SD/1C/07 -The State vs Sani Abdullahi and 2 others delivered on the 31st day of July 2007.
The Appellants were arraigned before the lower court on a three count charge as follows:-
“Count One
That you Sani Abdullahi, Abdullahi Black and Hussaini Danjuma on or about the 31st May 2006 at Suleja within the Jurisdiction of this Honurable Court carried away one Binta Garba from the room of her boy Friend Abubakar Isah at Bakin Kasuwa at about 1.00am under the pretext that you were policemen, to one Yangongon 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 (sic)an offence contrary to Section 283 of the Penal Code to be read together with Section 79 of Penal Code.
Count Two
That you Sani Abdullahi,SaniAbdulahi Black and Hussaini Danjuma on or about the 31st May 2005 at Suleja within the Jursidiction of this Honurable Court beat up Abubakar lsah inflicting injuries on him while carrying away his girlfriend from him at her Bakin Kasuwa residence to be raped, you thereby commit(sic) an offence contrary to Section 265 of Penal Code.
Count Three
That you SaniAbdullahi, SaniAbdullahi (Black) and Hussaini Danjuma on or about the 31st May 2006 at Suleja within the Jurisdiction of this Honurable Court forced one Abubakar Isah to give you N600 when you brought back his girl friend, Binta Garba to him after you raped her, the N600, was given to you, thereby commit (sic) an offence contrary to section 294 of the Panel Code.”
At the trial the prosecution called two witnesses while the three accused persons testified in their own defence.
The learned Trial Judge at the conclusion of hearing, convicted the three accused persons/appellants. Each of the accused persons were sentenced to five (5) years imprisonment on 1st Count and three (3) months imprisonment on 2nd Count all without an option of fine.
The sentences were to run concurrently.
Dissatisfied with the said Judgment of the Lower Court, the Appellants therefore appealed to this court.
The Learned Counsel for the Appellants formulated three issues for determination as follows:-
“(1) Whether is it correct to say that the Appellants made confessional statements and retracted them.
(2) Did the trial Court consider the defence put forward by the Appellants.
(3) Did the Prosecution prove its case beyond reasonable doubt as required by Law.
The learned Counsel for the Respondent on the other hand formulated three issues for determination as follows:-
“(1) Whether the Prosecution did not prove its case beyond reasonable doubt to sustain the conviction.
(2) Whether the Statement was not properly admitted in evidence and acted upon.
(3) Whether there was any defence by the appellants”.
At the hearing, the Learned Counsel for the Appellants referred to the brief of argument dated 9th day of May 2008 and Filed on the same date. He adopted and relied on the said brief of argument in urging the Court to allow the Appeal.
The Respondent’s Counsel even though served with the hearing notice that this appeal was to come up for hearing on 22nd October 2009, he failed to appear in Court. In the circumstance since the parties in the appeal have filed their respective briefs of argument and pursuant to Order 17 Rule 9 (4) of the Court of Appeal Rules 2007, the appeal will be treated as having been duly argued.
The issues for determination formulated by Counsel for the parties are identical in Context, however I will rely on the issues as set out in the appellants’ brief of argument in the determination of this appeal.
ISSUE 1
Whether it is correct to say that the Appellants made confessional statements and retracted them.
It was contended on behalf of the Appellants that they did not make any confessional statement.
Learned Counsel for the appellants stated that the statements made by the appellants did not qualify as confessional statements.
He referred to the evidence of the accused persons that they were tortured and forced to sign the statements. He also stated that the accused persons were not cross examined in respect of the evidence of torture and the involuntariness of the statements.
He therefore submitted that the trial court erred in failing to order trial within trial.
He referred to the Case of:- Solomon Ehot Vs The State (1993) 5 SCNJ page 65
It was also stated that the trial Court was wrong to have admitted in evidence three statements of the accused persons together and at the same time.
He relied on the case of:-
– Uche Obidiozo & others v. The State (1987) 11 – 12 SC page 103.
The Learned Counsel for the Respondent in his own submissions stated that the requirement of admissibility of Confessional statement is that a confessional statement to be relevant must be voluntary. He went further in his argument that it was not the contention of the appellants that they were forced to make Exhibits 3, 4, 5, and 6 when they were objecting to the admissibility of the documents. He stated further that it was later at their defence stage that the appellants raised the issue which is called retraction of the statements, coming too late after the admission of the statements.
He referred to Section 27(1) and (2) of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990.
He submitted that since the statements were voluntarily made, the court was right to have admitted the said statements in evidence and the court was right to have relied on the said statements being voluntary, positive and unequivocal to convict the appellants.
He relied on the Case of:-
-Nsofor v. The State (2004) 18 NWLR Part 905 page 292
The Appellants in this case were convicted for the offence of Attempt to commit rape contrary to section 283, and 95 of the Penal Code read together with section 219 of the Criminal Procedure Code.
The prosecution called 2 witnesses while the 3 accused Persons/Appellants testified in their defence.
The prosecution tendered the Statements of the 3 accused Persons/Appellants at the lower court and it was marked as Exhibits 3, 4, 5 and 6. The learned Counsel for the Respondent Contended that Statements of the three Appellants before the lower Court were Confessional Statements whereas the learned Counsel for the Appellants in his objection contended that they never made any Confessional Statement.
After listening to submission by the prosecution and Defence, the learned trial Judge overruled the objection on behalf of the Appellants and he admitted the Statements in evidence(see page 28 of the Record of Proceedings)
It is settled that an accused person confronted in court by the prosecution that he made a statement voluntarily, must make his stand clear. Either that he did not make the statement in which Case the court will rule after the submission by both parties or that it was not voluntarily made due to some duress undue influence or coercion. In the former case the court may admit the statement in evidence and assess its weight in the final decision. In the latter case, the voluntariness must be tried by what is called trial within trial and if found to have been made voluntarily, it is admitted in evidence, if not it is rejected as evidence.
In this case the defence i.e. Appellants never said while objecting to the admissibility of the statements that they were forced to make the statements, rather they said they never made any Confessional statements.
In such a situation, the statements are admissible and it remains for the trial Court at a later stage in the proceedings to determine whether or not it was the appellants who made the statement.
The Lower Court was therefore right at that stage to have admitted the said statements in evidence.
By virtue of section 27 (1) and (2) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a Confessional statement is an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that offence. Confession if voluntary are deemed to be relevant facts as against the person who made them.
It was at the defence stage before the lower court that the appellants raised the issue that the statements were made after they were tortured.
It should be noted that the statements of the appellants at the lower court were confessional statements but it was denied at the defence stage of the trial.
A confession does not become inadmissible merely because the accused persons denied having made it. The fact that the appellants took the earliest opportunity to deny having made the statements may lend weight to their denial but it is not in itself a reason for ignoring the statement.
Furthermore in determining the weight to be attached to a confessional statement, retracted or not retracted, the court must ask itself the following questions:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Was the prisoner one who had the opportunity of committing the offence?
(e) Is their confession possible?
(f) Is it consistent with other facts which have been ascertained and Have been proved?
If the confessional statement passes the tests satisfactorily a conviction founded on it will invariably be upheld.
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 Exhibits, 3, 4, 5, and 6
See the Case of :-Nsofor Vs The State (supra).
The PW1 testified that the 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 Statements 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.
In the circumstance, this issue is resolved in Favour of the Respondent.
Issues 2 & 3 ( Taken Together)
– Did the trial Court consider the defence put forward by the Appellants.
– Did the Prosecution prove its case beyond reasonable doubt as required by Law.
The Learned Counsel for the Appellants referred to their defence before the Lower Court and the involuntariness of the statements obtained from them by the Police. He submitted that the failure of the prosecution to cross-examine the appellants on the involuntariness of their statements means that the prosecution has accepted the truth in the evidence of the appellants.
He referred to the Case of:-
-Patrick Oforlete vs The State (2000) 12 NWLR Part 681 Page 415 at 439 Paragraphs D- H and Page 440 Paragraph F.
He also submitted that the Lower Court failed to Consider the defence of the appellants in its Judgment.
He relied on the following Cases:-
-Francis Asanva Vs The State (1991) 3 NWLR Part 180 Page 482 at 451
-Akpabio Vs The State (19941 7-8 S.C. Paee 429 at 456.
-Chunewam Kim Vs The State (1992) 4 NWLR Part 233 Page 17 at 51.
The Learned Counsel for the Respondent Stated that the only evidence the Appellants gave was that Exhibits 3, 4, 5, and 5 were made after they were tortured, and that this was considered by the Lower Court in its Judgment.
The contention of Counsel for the appellants that the appellant were not Cross-Examined was punctured by the reference to the Record of Proceedings. In this Case, 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 appellants’ 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 observe that when the accused persons testified in 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. Furthermore the Confessional Statements of the appellants that they came to the house of the boy friend of Binta and took her away by force was Corroborated by the evidence of PW1 to the effect that the accused persons/appellants and other people came to his house at 1.00am and took away his girlfriend by force on 31/5/06.
Furthermore, the 3rd Appellant in his Statement which was filed as proof of evidence, gave the names of those present at the scene of the Crime. And under Cross-Examination he gave the same names to the court.
In the circumstance the Lower Court was right to have Convicted the appellants on the Confessional Statements obtained by police from them which was tendered in evidence and marked as Exhibits 3, 4, 5, and 6. See the following Cases:-
-Edhigere Vs The State (1995) 9-10 SCNJ Page 36
– Mumuni Vs The State (1975) 6 S.C. Page 79
– Aremu Vs The State (1991) 5 NWLR Part 200 page 637
-Akpan Vs The State (1992) 6 NWLR Part 248 page 439
-Kim Vs The State (supra)
On the issue of proof beyond reasonable doubt, Learned Counsel for the Appellants referred to section 35(5) of the 1999 Constitution of the Federal Republic of Nigeria. He went further that the guilt of the Appellants must be proved beyond reasonable doubt as Stated in Section 138 (1) of the Evidence Act. On the meaning of “proof beyond reasonable doubt,” Learned Counsel referred to the following Cases:-
– Mbaneneen Shande Vs The State (2005) 12 NWLR Part 939 Page 301 at 321
– Oforiete Vs The State (Supra) 434 paragraph G-H
– Esangbedo Vs The State (1989) 4 NWLR Part 113 page 57 at 69-70
He went further that the learned trial Judge placed heavy reliance on the Confessional Statements of the Accused Persons/Appellants.
It was contended on behalf of the Appellants that the accused persons/Appellants made Statement on 1/6/2005 and it was discovered to be Confessional Statements on 9 / 6/ 2006.
Learned Counsel for the Appellants therefore submitted that the above statements ran contrary to the proof of evidence filed before the trial Court. He went further that the purport of IPO’S statement at page 19 of the Record of Proceedings is to the effect that the accused persons made two Statements and that the two Statements are in issue.
He relied on the case of:-
-The Queen Vs Obiasa (1962) NSCC Page 412
It was also contended that the said Confessional Statement failed the test laid down in above case.
Another issue raised is the refusal of the complainant to come to Court. He submitted that the Complainant’s absence was deliberate and it imparts some ulterior motive.
It was submitted further that omission to call Binta Garba has occasioned a miscarriage of Justice.
Learned Counsel therefore urged that the appeal be allowed and the conviction be set aside.
The Learned Counsel for the Respondent submitted that in Criminal trials, it is trite Law that the prosecution must prove its Case beyond reasonable doubt. He went further in his argument that if any ingredient of the offence is not proved, the accused shall be discharged and acquitted.
He relied on the following:-
– Section 138 of the Evidence Act Cap 112, Laws of the Federation 1990
– Nwoke Vs The State (2001) 4 NWLR part 704 page 588 at 595 ratios 4 and 5
It was further submitted on behalf of the Respondent that to sustain a conviction against the accused persons under Section 283 of the Penal Code, the following ingredients of the offence must be proved.
(a) That the accused had sexual intercourse with the woman in question.
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(b) That the act was done in circumstances falling under any of the five paragraphs in section 282(1) of the Penal Code.
(c) That the woman was not the wife of the accused person(s), or if she was his wife that she had not attained puberty.
(d) That there was penetration.
Learned Counsel for the Respondent also submitted that there are three ways by which the prosecution can prove the guilt of an accused person.
They are as follows:-
(1) By Confessional Statement or
(2) By Circumstantial evidence; or
(3) By evidence of eye witnesses.
He relied on the case of:-
– Emeka Vs The State (2001) 14 NWLR part 734 page 666 at 669 ratio 1
He went further in his argument that having regard to the totality of evidence adduced by the prosecution, particularly evidence by PW2 and Exhibits 3, 4, 5and 6 corroborated by the evidence of PW1 that the prosecution did prove its Case beyond reasonable doubt and that the trial Court was right to have convicted the accused persons/ appellants.
In this case under consideration the pertinent question at this juncture is-Did the prosecution prove its Case beyond reasonable doubt?
Proof beyond reasonable doubt has been stated to be proof that excludes every reasonable or possible hypothesis, except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions.
Therefore, for evidence to warrant Conviction, it must exclude beyond reasonable doubt all other conceivable hypothesis except the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence, in which case doubt would have been created.
See the following Cases:-
– Mbanengen Shande Vs The State (2005) 12 NWLR page 301 part 939 at page 32l Paragraphs B-D.
-Oforiete Vs The State (Supra)
-Esanebedo Vs The State (Supra)
There are 4 ingredients to be proved under section 283 of the Penal Code in order to sustain a conviction against the accused persons, they are as follows:-
(1)That the accused person had sexual intercourse with the woman in question.
According to the Record of Proceedings, PW 1 and PW 2 testified and the statements of the accused Persons/Appellants were admitted in evidence as Exhibits 3,4,5and 6 respectively. All the statements confirmed that the accused Persons/Appellants had sexual intercourse with Binta. Although first accused Person/Appellant denied having sexual intercourse with the said Binta.
I have held earlier in this Judgment that the Confessional Statements are voluntarily and unequivocal and the Lower Court properly convicted the accused Persons/Appellants based on the said Statements. See the case of :-
-Daniel Nsofor & Other Vs The State (Supra)
(2) That the sexual intercourse was without the consent of the said Binta.
The PW1 testified that the appellants were among the ten members gang that came to his house in the night of 31st May 2006 at about 1.00am. He stated that he was beaten up by them and they took away his Girl friend Binta Garba who came to him on a visit from Jos to unknown place. Again in Exhibit 3, 4, 5 and 6 it was stated that the accused Persons/Appellants had sexual intercourse with the said Binta. And looking at the circumstances surrounding the Case the intercourse was without Binta’s Consent.
(3) The third ingredient is that the woman was not the wife of the accused persons.
Falling back on the testimony of PW1, he said Binta Garba was his girl friend on a visit to him from Jos. In view of that piece of evidence, it could not be said that Binta was the wife of any member of the gang.
(a) The fourth ingredient is that there was penetration. Again the Statements of the accused Persons/Appellants are relevant, where it was Stated the accused Persons and others took Binta Garba to an area behind I.B.B market at Suleja and had sexual intercourse with her one after the other.
It is my view that once there was sexual intercourse, it is implied that there was penetration.
In view of the foregoing it is my view that the ingredients of the offence were proved.
It was also contended on behalf of the Appellants that the Complainant Binta Garba’s failure to attend the Court and testify amounted to ulterior motives on the part of the prosecution and that it amounted to withholding evidence.
In reaction to this the Learned Counsel for the Respondent submitted that Binta Garba was not the Complainant and that the State is the Complainant. I agree with the Learned Counsel for the Respondent on that point. It is my view that the Prosecution has all rights to decide who should be called as a witness in proof of their Case. Based upon the foregoing, it is my view that the prosecution has proved its Case beyond reasonable doubt I hereby resolve issues 2 and 3 in favour of the Respondent.
In the final analysis, it is my view that this appeal lacks merit and it is hereby dismissed. The conviction and sentences passed by the Lower Court are hereby affirmed.
Other Citations: (2009)LCN/3476(CA)
