ISSUES

Whether the appellant could have been convicted on the basis of a confessional statement which he had retracted?

FACTS

The appellant and tow others were charged and tried for murder and assault occasioning harm. While the appellant alone was convicted for murder and a lesser offence of ordinary assault and was sentenced to death, the other two were discharged and acquitted on both counts. The appellants appeal to the Court of Appeal was dismissed, and he then appealed to the Supreme Court. The main issue for determination hinged on the admission by the courts below of the appellant's retracted confessional statement was made extra-judicially to the police.

HELD (Unanimously dismissing the appeal)

1.      On the impeachment of an earlier extra-judicial statement

An accused person who wishes to impeach his earlier extra-judicial statement must establish that his earlier confessional statement cannot be true or correct. He must therefore show that he was not correctly recorded; or that he in fact did not make the statement; or that he was unsettled in mind at the time he made the statement; or that he was induced to make the statement. Per Katsina-Alu, JSC, at page 253.

2.      On conviction based solely on the confession of an accused

An accused can be convicted on his confession alone when the conditions for this are present. An accused can therefore be convicted on his confession alone regardless of the fact that he resiled therefrom or retracted it altogether at the trial. It is however, desirable that the contents therein should be tested by facts outside the statement. In spite of the retraction, a confessional statement must be considered along with other evidence by the trial Judge who at the end would decide whether or not the appellant did make the statement as alleged by the police. Per Katsina-Alu, JSC, at page 253.

3.      On the nature of a confession

A confession is, by virtue of Section 27(1) of the Evidence Act an admission made at any time by a person charged with a crime stating or suggesting that he committed that crime. It follows that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes confessional. Per Katsina-Alu, JSC, at page 253.

Chief A. A. Aribisala, for the appellant

A. A. Lawal, Attorney-General, Oyo State, (with him, A.J. Raheem, Senior Legal Officer), for the respondent

The following cases were referred to in this judgment:

Nigeria

Achabna v The State (1976) 12 SC 63

Akinfe v State (1988) 7 SC (Part II) 131, (1988) 3 NWLR (Part 85) 729

Bature v State (1994) 1 NWLR (Part 320) 267

Egboghonome v State (1993) 7 NWLR (Part 306) 383

Godwin Ikpasa v A-G Bendel State (1981) 9 SC 7

John Bamgboye v A-G Western Nigeria (1966) NMLR 266

Kanu & others v The King 14 WACA 30

Oboso v The State (1969) 1 NMLR 204

Onochie & 7 others v The Republic (1966) NMLR 307

Onwumere v State (1991) 4 NWLR (Part 186) 428

Osakwe v A-G Bendel State (1991) 1 NWLR (Part 167) 315

R. v Itule (1961) All NLR 462

Salawu v State (1971) NMLR 249

Yesufu v The State (1975) 6 SC 167

Foreign

R v Sullivan (1887) 10 COX 347

R v Skyes (1913) 8 CAR 233

R v White & others [1823] 168, ER 922

The following statutes were referred to in this judgment:

Nigeria

Criminal Code Cap. 30 Volume II Laws of Oyo State, 1978: Ss 319(1); 351

Evidence Act: S 27(1)

Katsina-alu, JSC:- At the Ibadan High Court the appellant was, along with Wahabi Adisa and Saka Adekunle, charged with the murder of one Abiodun Iyiola contrary to Section 319(1) of the Criminal Code Cap. 30 Volume II Laws of Oyo State, 1978.

On the second count, the appellant, along with Wahabi Adisa, Saka Adekunle and Rasaki Layiwola, was charged with assault occasioning harm. The case was heard by Adekola, J (as he then was), who on 27 January, 1992 in a reserved judgment found only the appellant guilty of murder on count 1 and sentenced him to death accordingly. On the second count Adekola, J, also found only the appellant guilty of lesser offence of ordinary assault contrary to and punishable under Section 351 of the Criminal Code. The three other accused persons were acquitted and discharged on both counts.

The appellant's appeal to the Court of Appeal, Ibadan Division, was dismissed. This appeal is from the judgment of the Court of Appeal.

Against that judgment, the appellant has canvassed in the main that he never took part in the murder of the deceased. He also denied ever making Exhibits 'I' and 'II' which the two courts below held to be confessional statements. The questions stated for determination in the appellant's brief of argument appear to bear on these issues. They are:-

1.      Whether in view of the nature and quality of evidence adduced by the prosecution, the Court of Appeal did not err in affirming that the trial Judge rightly convicted and sentenced the appellant to death for murder?

2.      Whether the learned trial Judge rightly found that Exhibits 'I' and 'II' were actually made by the appellant. If the answer is "yes", whether the exhibits could rightly and properly be used to corroborate the evidence of PW1, Exhibits 'A', 'B', and 'C'?

3.      Whether the appellant's identity was properly established without doubts?

4.      Whether the lower court was right to have affirmed the appellant's conviction for a lesser offence of ordinary assault?

The respondent formulated three issues for determination which read as follows:-

1.      Is the Court of Appeal (lower court) in error by believing the contents of Exhibits 'I' and 'II' thereby affirming the conviction and sentence of the appellant by the trial court?

2.      Whether the identity of the appellant was in doubt?

3.      Whether the Court of Appeal was right to have affirmed the appellant's conviction for lesser offence of ordinary assault?

Briefly, the facts of the case as related by the respondent through PW1, Kunmi lyiola, the elder brother of the deceased Abiodun Iyiola, who gave an eye witness account of the incident were that on 26 August, 1990 both the deceased who was an apprentice motor (trailer) driver and himself left their house at Ogbere Babanla at about 4:30am in order that the deceased might meet his master at Oremeji by 5am. As they got to a place called and known as "Okikiade", seven men accosted them and asked where they were going to at that time of the day. When PW1 and the deceased tried to answer, the men ordered them to prostrate. They obeyed and in that condition PW1's hands were tied with ropes. Thereafter, PW1 and the deceased were attacked with machetes and cutlasses.

The deceased tried to escape but due to the severe injury he suffered from the machete cuts, he fell down and became unconscious. Thereafter the seven men ordered PW1 to take them to his house. When they nearly got to his house, the men ran away. It was then that PW1 was able to report the incident at the Agugu Police Station.

A police sergeant was detailed to accompany PW1 to the scene of the incident. Abiodun Iyiola was then taken to a hospital at Aremo for treatment. He died later in the hospital at about 10:15am on the same day i.e. 26 August, 1990.

According to PW1, the four accused persons arraigned at the trial court were among the seven men that accosted the deceased and himself. The body of the deceased was later taken to the State Hospital, Adeoyo where Dr M.A. Aboderin performed the post mortem examination on the body. However, before the commencement of the trial, Dr Aboderin died and the post mortem report was tendered and admitted in evidence by Dr T.I. Ipadeola as Exhibit 'K'.

The appellant made one (1) extra judicial statement to the police. The Yoruba and English versions of the statement were tendered and admitted at the trial as Exhibits 'I' and 'II' respectively. In Exhibit 'I' the appellant narrated how he and the other accused person pursued the deceased, macheted him until he fell down. Exhibit 'I' was thus treated as a confessional statement.

In his defence at the trial, the appellant vehemently denied making Exhibit 'I' thus retracting the confessional statement. In his evidence on oath he gave an account totally different from the contents of the extra-judicial statement. In his evidence-in-chief the appellant raised for the first time the defence of alibi when he claimed that he was in Ondo Province at all times material to the commission of the offence.

The learned trial Judge after a careful and thorough evaluation of the evidence before him, believed the evidence of the prosecution and found that the evidence of PW1 was corroborated by Exhibit 'I' made by the appellant and Exhibits 'A', 'B' and 'C' made by PW1 as to the role played by the third accused/appellant in the death of the deceased. The defence of alibi raised by the appellant was rejected by the trial Judge and consequently the appellant was found guilty of murder and was sentenced to death.

He was also found guilty of the lesser offence of ordinary assault on the second count.

The learned trial Judge in the course of his judgment said:-

"The evidence against the third accused can be found in his statement, Exhibit 'I', and the evidence given by him in defence of the charge and the statement and evidence given by the first PW and other prosecution witnesses.

It will be recalled that the name of the third accused was mentioned by first PW in his first statement by Exhibit 'A' which was made on 26 August, 1990 when the incident was still fresh in his memory. He stated further in Exhibit 'A' that third accused was one of the people beating him and the deceased on the day of the incident.

There is no doubt in my mind that the identity of the third accused was not in doubt to the first PW because he was able to identify third accused vividly when Akibu and Alfa Akibu were following first PW to know his house before both of them later ran way when they saw people gathered round the spot where the deceased was lying down.

Again in the second statement made by first PW on 29 August, 1990, he mentioned Kamoru as one of the seven people who were beating him and the deceased on the day of incident. So also was third accused's name mentioned in Exhibit 'C' and by the first PW on 29 August, 1990.

First PW was consistent in the mentioning of the third accused's name as one of the seven persons who participated in the beating of the deceased who later died as a result of injuries sustained in the hands of their assailants. I accept the evidence of the first PW that third accused participated in the commission of the crime on the day of incident.

It is pertinent at this stage to refer to the statement made by the third accused to the police immediately after his arrest. It is no doubt a confessional statement by the third accused voluntarily without any inducement or threat of any kind from the police. And I have no doubt in accepting it as voluntarily made by third accused.

A statement made to the police during the investigation of a case may amount to admission where an accused confessed the commission of a crime, where there is no eyewitness of the killing, he can be convicted on his own confession, once the confession is positive, direct and properly proved. See the case of Achabna v The State (1976) 12 SC 63 and the case of Oboso v The State (1969) 1 NMLR 204.

It is my finding that the confessional statement made by the third accused is corroborative of the evidence and the statements Exhibits 'A', 'B' and 'C' made by the first PW as to the role played by the third accused as the commission of the offence of murder."

The court below affirmed the conviction of the appellant. In a meticulous manner the court below per Adamu, JCA, said:-

"The main thrust of the submissions under the two issues is against the admission by the learned trial Judge of the extra-judicial statement made by the appellant to the police and its treatment by the said Judge as a confessional statement upon which inter alia he based his conviction of the appellant for the offence of murder. The argument of the appellant is that he did not make that statement to the police at all. This is different from saying that the appellant had made the statement involuntarily or was compelled or induced to do it under threat or duress. In the later case, it can be said that the statement though made was not voluntary and does not qualify as a voluntary confession under Section 27(1) of the Evidence Act, Cap. 112, Law of the Federation of Nigeria 1990. In such a case there is a need for a trial within trial to determine the voluntariness of such a statement or confession. (See Obue v State (1976) 2 SC 141 at 152; R v Eguabor (1962)1 All NLR 287 and Queen v Igwe 5 FSC 55). On the other hand where the extra-judicial statement in the nature of a confession is subsequently denied or retracted by an accused person (as is usually and mostly the case) in his evidence before the court a different consideration will arise and there is no necessity for a trial within trial. A confession or a confessional statement has been defined in a number of cases by both the Supreme Court and this Court as 'an admission made by an accused stating or suggesting that he committed the crime which is the subject of the charge preferred against him.' It is an acknowledgment of the crime of the accused. (See Ikemson v State (1989) 3 NWLR (Part 110) 455 at 476; Gira v State (1996) 4 NWLR (Part 443) 375 at 387; Iliya v State (1998) 2 NWLR (Part 538) 397 at 408; Buja v State (1991) 4 NWLR (Part 185) 287 at 297 and Egbeyom v State (2000) 4 NWLR (Part 564) 559 at 580).

It is trite that by virtue of Section 27(1) of the Evidence Act (supra) a confessional statement made as defined above alone can solely be the basis of conviction. However, It is very usual for an accused person to retract, deny or resile during his trial in the court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge of arraignment against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial Judge who is to test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstances outside the statement or in order to see whether they support, confirm or correspond with the said statement which will then be regarded as correct. In other words the statement will be subjected to scrutiny by the court in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case. (See Salawu v State (1971) NMLR 249; Akinfe v State (1988) 7 SC (Part II) 131, (1988) 3 NWLR (Part 85) 729 at 746-747; R v Itule (1961) All NLR 462; R v Skyes (1913) 8 CAR 233 and Onwumere v State (1991) 4 NWLR (Part 186) 428 at 440). On the part of an accused person who wants to resile from or retract his earlier confessional statement which he made extra-judiciously to the police, such a statement is not rendered inadmissible by the mere denial or retraction by the said accused person unless he leads sufficient evidence to rebut the accusation by the prosecution and it is thus his duty to explain to the court (as part of his defence) the reason(s) for the inconsistency between his earlier confessional statement to the police and the evidence he has given in his oral testimony before the court. (See R v Itule (supra); Onwumere v State (supra); Egboghonome v State (1993) 7 NWLR (Part 306) 383; Bature v State (1994) 1 NWLR (Part 320) 267; Akinfe v State (supra at page 746 of the report) and Salawu v State (supra) and Osakwe v A-G Bendel State (1991) 1 NWLR (Part 167) 315 at 327). Such an accused person who wishes to impeach his earlier extra-judicial statement has an onerous duty to establish that his earlier confessional statement cannot be true or correct by showing any of the following four events or instances:-

(a)     That he was not correctly recorded; or

(b)     That he in fact did not make the statement; or

(c)     That he was unsettled in mind at the time he made the statement; or

(d)     That he was induced to make the statement. (See Onwumere v State (supra) at page 440 of the report).

By applying the above principles of law on the extra-judicial statement of the appellant in the present case to the police (as per Exhibit 'I' and I (II), I have confirmed from the record that the learned trial Judge has discharged his duty under the law before admitting the said statement by applying the test recommended to ascertain its truth and by finding a corroborative evidence outside the confessional statement when he stated in his judgment as follows:-

'It is my finding that the confessional statement made by the third accused is corroborative of the evidence and the statements in Exhibits 'A', 'B' and 'C' made by the first PW as to the role played by the third accused as (sic) the commission of the offence of murder. See page 62 lines 19-22 of the record.'

Thus, the learned trial Judge was right in admitting the confessional statement of the appellant made to the police in Exhibits 'I' and 'II'. He did so in compliance with the principle in the cited authorities, and he did not therefore commit any error. On the other hand, the appellant in his denial of or retraction from the making of the confessional statement did not discharge his own duty (as imposed by the law) by taking any of the above listed steps to impeach or rebut the confessional statement in Exhibits 'I' & II. He only stated that the exhibit was not his statement and when cross-examined he said, that he 'did not make any statement to the police on 1 September, 1990.' (See page 40 lines 20-23 of the record).

In order to impeach the said statement he, the appellant, should have adduced evidence to show that the thumbprint on the statement which he admitted to have made to the police was not in fact his own right thumb impression. As he failed to show that the statement in Exhibit 'II' shown to him was not the one made by him because it did not bear his thumbprint, his mere denial or retraction will not render the statement inadmissible as per the principle in the above authorities. Also since the learned trial Judge after applying the recommended test as to the truthfulness of the statement and found it to be corroborative of other evidence in the case, he was right in admitting it and in relying on it along with other pieces of evidence in convicting the appellant."

As I have already shown, the prosecution relied on the confessional statement made by the appellant. The appellant denied the statement Exhibit 'I' in evidence and claimed that he knew nothing about the offence. In fact for the first time he claimed that he was elsewhere at the time of the commission of the offence. That is to say that the appellant raised a defence of alibi for the first time in his evidence.

It is true that an accused can be convicted on his confession alone when the conditions for this are present. These are fully laid down in several cases including R v Sykes (1913) 8 Cr App P 233 at 236-237; Yesufu v The State (1975) 6 SC 167. Even where the accused has retracted the statement: (See R v Itule (1961) All NLR 462; Salawu v The State (1971) NMLR 249; Godwin Ikpasa v A-G Bendel State (1981) 9 SC 7; Aknife v The State (1988) 7 SC (Part II) 131, (1988) 3 NWLR (Part 85) 729 SC).

A confession is, by virtue of Section 27(1) of the Evidence Act an admission made at any time by a person charged with a crime stating or suggesting that he committed that crime. It follows that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes confessional. An accused can therefore be convicted on his confession alone regardless of the fact that he resiled therefrom or retracted it altogether at the trial. It is however, desirable that the contents therein should be tested by facts outside the statement. It must be stated that the retraction notwithstanding a confessional statement must be considered along with other evidence by the trial Judge who at the end would decide whether or not the appellant did make the statement alleged by the police. In Godwin Ikpasa v A-G Bendel State (supra) the learned Judge did just that and came to the conclusion that the appellant made the statement. In John Bamgboye v A-G Western Nigeria (1966) NMLR 266, the voluntary admission made to the police by the appellant was different from his evidence in court. This Court held that the trial Judge, after considering the defence, rightly rejected the evidence of the appellant in court and also rightly accepted the voluntary admission to convict him of murder. In R v Itule (supra) the appellant retracted his confessional statement as a result of which the learned trial Judge did not consider it. The appellant was convicted of murder on other available evidence. The statement contained assertion of provocation. Since the trial Judge failed to consider the statement he consequently failed to consider the defence of provocation. This Court, the Federal Supreme Court, as it then was, held that failure to consider the confessional statement which had been retracted amounted to a substantial miscarriage of justice. The appeal was allowed and a conviction of manslaughter was substituted.

In the present case, PW1, was the star witness for the prosecution. He was not only at the scene of the incident, he was also a victim, albeit survivor of the brutal and unprovoked attack by the appellant and his cohorts directed at himself and his younger brother, the deceased. He gave direct evidence of what happened on that fateful morning. In his evidence-in-chief he testified that:-

"The four accused persons were among the seven that stopped us on that day."

PW1 disclosed that:-

"The seven persons started to machete my junior brother with cutlasses. After having cut my brother with cutlasses until (sic) became helpless."

Under cross-examination this witness stated as follows:-

"I mentioned the first and third (sic) in my first statement that day (sic) participated in the commission of the crime . . . I told the police in my first statement that the first and third accused persons macheted my brother."

In the course of his judgment the learned Judge observed thus:-

"It will be recalled that the name of the third accused person was mentioned by first PW in his first statement by Exhibit 'A' which was made on 26 August, 1990 when the incident was still fresh in his memory. He stated further in Exhibit 'A' that third accused was one of the people beating him and the deceased on the day of the incident."

The learned Judge thereafter made a specific finding of fact on the involvement of the appellant. He held thus:-

"First PW was consistent in the mentioning of the third accused's name as one of the seven persons who participated in the beating of the deceased who later died as a result of the injuries sustained in the hands of their assailants. I accept the evidence of the first PW that the third accused participated in the commission of the crime on the day of the incident."

The Court of Appeal after a careful evaluation accepted this finding. It held as follows:-

"PW1, being an eye witness, gave credible evidence on what took place at the scene of the incident. He implicated the appellant."

More importantly the case against the appellant was his admission of the commission of the offence. Exhibits 'I' and 'II' are the Yoruba version and the English version respectively of the extra judicial statement made by the appellant to the police. At the trial the appellant denied ever making the statement. Nonetheless, the learned Judge rightly admitted it. The retraction notwithstanding the statement was bound to be considered along with the other available evidence by the trial Judge who at the end would decide whether or not the appellant did make the statement as alleged by the police. (See Ikpasa v A-G Bendel State (supra)). The trial Judge did just that. He meticulously considered Exhibits 'I' and 'II' along with Exhibits 'A', 'B', and 'C' made by PW1 and came to the conclusion that the appellant did make the statement and that it was a confessional statement voluntarily made. He held thus:-

"It is my finding that the confessional statement made by the third accused is corroborative of the evidence and the statements Exhibits 'A', 'B', and 'C' made by first PW as to the role played by third accused as to the commission of the offence of murder."

The Court of Appeal affirmed this finding. It held:-

"Also since the learned trial Judge after applying the recommended test as to the truthfulness of the statement and found it to be corroborative of other evidence in the case, he was right in admitting it and relying on it along with other pieces of evidence in convicting the appellant."

I completely agree. As I have earlier on stated an accused can be convicted on his confession alone when the conditions for this are met. These are fully laid down in several cases including R v Sykes (supra); Yesufu v The State (supra). Even where the accused has retracted the statement; see R v Itule (supra); Akinfe v The State (supra).

In the result, this appeal fails and I dismiss it. I affirm the conviction and sentence of the appellant.

Ogwuegbu, JSC:- I have read the judgment of my learned brother Katsina-Alu, JSC, with which I am in agreement.