AZABADA v. THE STATE (2014)

In The Supreme Court of Nigeria

On Friday, the 6th day of June, 2014

SC.367/2011

Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria

BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

Between

PETER ILIYA AZABADA –Appellant

AND

THE STATE- Respondent

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WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: (Delivering the Leading Judgment): 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 the Judgment of the High Court of Kogi State in charge No. HCL/31C/2005 delivered on 20th June, 2008 convicting appellant of the offence of criminal conspiracy, armed robbery and culpable homicide punishable with death and for which he was sentenced accordingly.

Appellant, together with one Adamu Saliu, were charged on a three count charge with the following offences before the High Court of Kogi State holden at Kotonkarfe:

“COUNT 1:
That you Adamu Saliu and Peter Iliya Azabada on or about the 9th day of August, 2003 at Akpogu-Ozugbe Road, Koton-Karfi in Kogi Local Government Area within the Kogi State Judicial Division agreed to do an illegal act to wit: you agreed to commit armed robbery and culpable homicide punishable with death on Mohammed Abubakar, deceased, and the same acts were done in pursuance of the agreement, and you thereby committed the offence of criminal conspiracy punishable under section 97(1) of the Penal Code.

COUNT 2.
That you Adamu Saliu and Peter Iliya Azabada on or about the 9th day of August, 2003 along Akpogu-Ozugbe Road, Koton-karfi in Kogi Local Government Area within the Kogi State Judicial Division committed the offence of armed robbery by doing an act to wit: you both armed yourselves with guns which are dangerous or offensive weapons and robbed Mohammed Abubakar (deceased) of his Nissan Sunny model saloon Car with Registration NO. KOGI AA 967 KKF and thereby committed an offence punishable under section 298(C) of the Penal Code.

COUNT 3.
That you Adamu Saliu and Peter Iliya Azabada on or about the 9th day of August, 2003 along Akpogu-Ozugbe Road, Koton-Karfi in Kogi Local Government Area within the Kogi State Judicial Division in furtherance of your common intention committed the offence of culpable homicide punishable with death by doing an act to wit: you shot Mohammed Abubakar (deceased) to death with a gun with the intention of causing his death and you thereby committed an offence under section 79 of the same code.”

Appellant is the second accused mentioned in the above charge. Though appellant made a confessional statement he denied/retracted it in the course of trial.

The issues that have been identified by learned counsel for appellant, SYLVA OGWEMOH ESQ, in the appellant’s brief deemed filed on 27/3/14 for the determination of the appeal are as follows:-
“1. Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the appellant merely on the strength of the confessional statement of the appellant and which confessional statement was retracted by the appellant in his oral testimony before the trial High Court of Kogi State.

2. Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the appellant for conspiracy to commit armed robbery and culpable homicide when there were materials (sic) contradictions in the evidence of the prosecution before the trial court.

3. Whether the Court of Appeal Abuja Division was right, in law, in refusing to set aside the conviction and sentence of the appellant having found that it was wrong in law for the trial Judge to pass sentence on only one of the counts as charged after convicting the appellant on the counts of offences contained in the charge sheet before the trial court.”

The above issues are very similar to the three issues formulated by learned counsel for the respondent, P.H. OGBOLE ESQ in the respondent’s brief also deemed filed and served on 27/3/14. I therefore need not reproduce them herein as to do so will serve no useful purpose.

In arguing issue 1, learned counsel for appellant referred the court to exhibit “F” which was retracted by appellant and stated that the learned trial Judge convicted appellant solely on the strength of exhibit “F”. It is the contention of counsel that with the retraction of exhibit “F”, the court was faced with two contradictory statements, exhibit “F” and the oral testimony of appellant and that the effect in law on that situation is that the testimony is to be treated as unreliable while the statement, exhibit “F”, is not regarded as evidence on which the court can act, relying on Sule Vs The State, (2009) 17 NWLR (Pt.1169) 33 at 66; that under the inconsistency rule the court ought to reject both exhibit “F” and the oral testimony in the court and that the trial Judge was wrong when he relied on exhibit ‘F’ in convicting and sentencing appellant and that the lower court was also wrong in affirming the said conviction and sentence.

It is the further submission of counsel that the court being faced with the retraction of exhibit “F”, vis-a-vis the oral version of events as testified to by appellant should have resorted to corroborating evidence in convicting appellant; that there was no eye witness account of an independent witness on record on the matter of corroboration, counsel cited and relied on Bassey Vs State (2012) 12 NWLR (Pt.1314) 209 at 227.

Learned counsel then urged the court “to reject the finding by the lower courts that exhibit ‘F’ was a confessional statement freely and voluntarily made by the Appellant to ground a conviction for the offences as charged and discharge and

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acquit the Appellant on all the counts….” as no other evidence was produced by the prosecution linking appellant with the crime.

Referring to the provisions of sections 28 and 29 of the Evidence Act, 2011, learned counsel for the respondent submitted that a confessional statement is admissible in evidence to prove the charge once it is established that it was made voluntarily and is positive etc, as in the instant case: that an accused person can be convicted based on his confessional statement without more, relying on Akpan Vs State (1992) 6 NWLR (Pt.248) 439 at 468. Ntaha Vs State (972) 4 S.C.1. Yusuf Vs State (1976) 6 S.C. 167; that appellant confessed in exhibit ‘F’ to how he and the co-accused purchased a gun and cartridges and how, on 9-8-2003 they went to Akpogu Ozugbe road and waited for the deceased to return from his transport business and shot and killed him and stole his Nisan car with registration No. AA 969 KKF, Kogi the particulars of which were found in the house of the co-accused person; that there is evidence as to how appellant went to the radio repair shop of Friday Kaura – PW2 and gave him a polythene bag containing the two locally made pistols and blood stained cloth for safe keeping; that the above evidence corroborated the confessional statement of appellant on which the trial court relied in convicting and sentencing appellant; that it is therefore not correct that the court relied solely on the retracted confessional statement to convict appellant.

Learned counsel urged the court to resolve the issue against appellant, the issue under consideration is not as complicated as learned counsel for appellant has made it to seem; it is very simple and straight forward in view of the following admitted facts:

(a) Exhibit “F”, the confessional statement of appellant was admitted in evidence without objection. Initially counsel for appellant objected to its admissibility on grounds of duress etc etc resulting in a trial within a trial procedure being invoked but was aborted almost at the tail end when learned counsel for appellant withdrew the objection. At that stage it is clear that appellant is deemed to have admitted making exhibit “F” and voluntarily too. At that stage, the law is that the confessional statement of an accused, where it is direct, positive, unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for the conviction of the accused person. This Court in Akpan Vs State (1992) 6 NWLR (Pt.248) 439 at 468 thus stated that:
“it is an established principle of our law that an accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts which have been proved.”

There is therefore no doubt in law that appellant can, in the circumstances of the case, be convicted on exhibit “F” alone.
However, where an accused person later retracts his confession at trial, the practice has evolved whereby the court (trial) must look for some evidence outside the confession which would make the confession probable – seeKopa Vs State (1971) 1 All NLR 151: Onochie Vs The Republic (1966) NWLR 307. The above rule is a rule of practice. The practice is designed to determine which of the two versions of events relating to the commission of the crime given by the accused concerned is likely to be the correct one – the version in the confessional statement and the new version presented by him at the trial proper. Where, in examining the surrounding facts and circumstances revealed in evidence by the witnesses, the court finds relevant facts and circumstance supporting or verifying the facts confessed to by the accused in the retracted statement, it means the confessional statement is reliable and can be so relied upon in convicting the accused person, his retraction notwithstanding

The question, however is whether there is evidence on record to corroborate the confessional statement of appellant in exhibit ‘F’? The answer as concurrently found by the lower courts is yes.

There is evidence on record and which the trial Judge believed, that appellant went to the radio repair shop of PW2 and deposited with him for safe keeping, a polythene bag which contained two locally made pistols and blood stained cloth. In exhibit ‘F’ appellant admitted purchasing the pistols together with the co-accused and cartridges with which they shot and killed the deceased and robbed him of his vehicle, the particulars of which were later recovered from the house of the co-accused.

There is also the testimony of PW3 as regards the polythene bag and its contents and how he took it to the bush and gave them to appellant where they were engaged in sawing timber. Exhibit ‘F’ also contains details of the events of that day and after, which only a participant in the crime would have known and recounted.

Finally on this issue, it is settled law that the Supreme Court does not make a practice of interfering with concurrent finding of facts by the lower courts except in special circumstances such as where the finding is not supported by evidence on record or is otherwise perverse, etc, etc, etc. see Hausa Vs State (1994) 6 NWLR (Pt.350) 281 at 309, etc, etc.

In the instant case learned counsel for appellant has not satisfied the court that the instant case is one in which the special circumstances exist to necessitate interference with the concurrent findings of fact by the lower court. In the circumstance and having regards to the facts of the case relevant to the issue under consideration, I resolve issue 1 against appellant.

On issue 2, learned counsel for appellant submitted that the lower courts were in error in holding that appellant was guilty of the offence of criminal conspiracy when the ingredients of the offence were not established; that there is no evidence linking appellant with the commission of the offence(s) charged; that the evidence of PW2 about the bag containing two pistols does not amount to much particularly as PW2 admitted that the said bag was recovered from him (PW2) and not

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appellant , that there was conflict between the evidence of PW2 and PW3 concerning the polythene bag which creates doubt, the nature of which was not identified by counsel but that the doubt ought to have been resolved in favour of appellant; that there is no evidence of who was present when the said bag was handed over by appellant to PW2 and why PW2 did not enquire of the contents of the bag from appellant at the time of handing over.

It is the further submission of learned counsel that the evidence of PW6 at page 88 of the record to the effect that appellant was arrested on 2/9/03 “and brought to State C.I.D, Lokoja along with a bag containing two locally made pistols and a blood stained cloth and handed over to me” is in conflict with evidence of PW1, another police officer; that the prosecution failed to discharge the burden of proof to prove that appellant committed the offence of culpable homicide as required by section 135(1) of the Evidence Act, 2011 and as a result the appellant is entitled to a verdict of discharge and acquittal; that there is no medical evidence to prove the cause of death neither has it been proved that appellant was present at the scene of crime etc, etc. Learned counsel then urged the court to resolve the issue in favour of appellant.

On his part, learned counsel for the respondent submitted that the lower court was right in affirming the conviction and sentence of appellant by the trial court for the offences charged as there is evidence on record linking appellant with the commission of the offence; that the court can, where there is no direct evidence, rely on circumstantial evidence to convict an accused person; that no reason has been offered by appellant as to why PW2 would want to frame up appellant for the offence he did not allegedly commit; that PW2 and appellant are well known to each other as they also came from the same community; that there is no conflict or contradiction in the evidence of PW1 and PW6 as to from who the bag was recovered. On proof of cause of death by medical evidence, learned counsel submitted that where the cause of death is known, as in the instant case, there will be no need for a medical evidence to prove same and that in any event, there was a medical report in the instant case which served as surplusage, relying on Akpan Vs. State supra. Finally counsel urged the court to resolve the issue against appellant.

I have carefully gone through the submissions of both counsel and the record of proceedings as it relates to the evidence before the court. It must be remembered that while considering issue 1, I had come to the conclusion that exhibit ‘F’ is a confessional statement known to law particularly having regard to the fact that same was admitted without objection. I have also held that in accordance with the principles of law established by a long line of cases decided by this Court, a court is empowered to convict and sentence an accused person on his confessional statement alone.

In the instant case, however, there is the attempt by appellant to retract the confessional statement though he admitted giving the police the personal details contained in exhibit “F”. The question then is what is the effect of that retraction on the confessional statement, exhibit “F”? which question was also answered in the consideration of issue 1 to the effect that the court finding itself in that situation must look for evidence outside the confessional statement to determine the truth of the said confession, which I found from the record as haven been duly done by the lower courts.

I therefore hold the considered view that having regard to the resolution of issue 1, issue 2 becomes a no issue. Exhibit “F” and the surrounding circumstances including the evidence of PW2 and PW3 proved the ingredients of the offences charged Exhibit ‘F’ clearly shows that appellant and his co-accused willfully and intentionally prepared and plotted the murder/killing of the deceased and stealing of the deceased’s vehicle after procuring two locally made pistols and cartridges; that they actually carried out that intention by killing the deceased.

The killing was by gun shot as admitted in exhibit ‘F’. In that circumstance there is no need for a medical report or evidence to further establish the cause of death of the deceased. In any event, there is no doubt at all that the deceased is no longer alive after the events of that day neither has appellant suggested that he is alive and living somewhere. It is also my considered view that the best evidence of the death and cause of death of the deceased was stated vividly by appellant in his confessional statement, exhibit ‘F’: that he and his co-accused shot and killed the deceased once on the chest and later on the stomach. The act of killing was not permitted by law and therefore unlawful.

Finally on this issue it is important to note that the version of events of the day of incident as given in oral testimony by appellant was disbelieved by the learned trial Judge whose province it is to hear the witness(es) testify, ascribe probative value to their testimony, watch their demeanour and either believe or disbelieve their evidence. On the other hand, the learned trial Judge believed the testimony of the prosecution witnesses which gave credence to the contents of the confessional statement of appellant, exhibit “F”.

In the circumstances, I resolve issue 2 against appellant.
On issue 3 it is the contention of learned counsel for appellant that the trial Judge violated the provisions of section 269 of the Criminal Procedure Code by sentencing appellant on only one of the three counts it convicted appellant on and that the violation is fatal to the case of the prosecution particularly as the word “shall” is used in that section to indicate that compliance thereto is mandatory. Learned counsel urged the court to be persuaded by the decision of the Court of Appeal in the case of Garba Vs C.O.P. (2007) 16 NWLR (Pt. 1060) 378 at 407 in which the court held that where a trial court fails in sentencing an accused on all the counts in a charge, the entire proceedings is liable to be set aside on appeal and that the lower court was in error when, after finding that the trial court’s failure to sentence appellant on two of the counts was in error, failed to set aside the proceedings; and urged the court to resolve the issue in favour of appellant and allow the appeal.

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On his part, learned counsel for the respondent submitted that though it is correct that the learned trial Judge did not fully comply with the provisions of section 269 of the Criminal Procedure Code, appellant has not shown how the failure has led to a miscarriage of justice to appellant, relying on Ejelikwu Vs State (1993) 7 NWLR (Pt.307) 554 at 570; that the absence of a sentence on the other two counts is of no moment as the sentence of death for culpable homicide punishable with death is enough to secure the death of appellant and urged the court to resolve the issue against appellant and dismiss the appeal.

There is no doubt that the trial Judge in sentencing appellant did so only in relation to the count of homicide punishable with death; that the court omitted to sentence appellant for the offences of criminal conspiracy and armed robbery for which the Judge had earlier convicted appellant.
In the case of Ejelikwu Vs State (1993) 7 NWLR (Pt.307) 554 at 583 this Court held that:
“The omission to pronounce the sentence after conviction per se which comes after the pronouncement of a valid verdict, cannot retrospectively affect the validity of a properly conducted proceedings. The verdict has been made so be it”
The above notwithstanding, appellant has not shown how the failure to pronounce sentence on the two convicted counts has adversely affected the rights of appellant thereby leading to a miscarriage of justice.

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 appellate court. For an error to qualify as one that will inevitably lead to the setting aside of the decision/Judgment, it must be substantial in nature and must have resulted in a miscarriage of justice to the appellant. It must be remembered always that the purpose of appeals is to correct errors of a lower court with the intention/desire of ensuring substantial justice to the parties and even the court. Where the error complained of is substantial and is likely to lead to a miscarriage of justice or has resulted in injustice, an appellate court will be eager to set aside the decision. However where the error is not substantial or has in no way resulted in a miscarriage of justice to the appellant, as in the instant case, the court will not set aside the decision because to do so will rather result in injustice to the respondent representing the society at large. I therefore find no substance in the issue under consideration and consequently resolve same against appellant.
In conclusion I find no merit whatsoever in the same.
Appeal dismissed.

SULEIMAN GALADIMA, J.S.C.: I have been privileged to read in draft the lead judgment of my learned brother ONNOGHEN JSC, just delivered. I am in complete agreement that this appeal is lacking in merit and should be dismissed.

The facts of this case have been carefully set out in the lead judgment. I have decided to summarize same, as this will enable me chip in a few words of my own:

The appellant, together with one Adamu Saliu, were charged on a three count charge of criminal conspiracy, armed robbery and culpable homicide, punishable with death, contrary to section 97(1) 298(d) and 221, read together with section 79 respectively, of the Penal Code.

Evidence led at the trial was that the appellant and his co-accused (1st accused), on or about the 9th day of August, 2003 at Akpogu-Ozugbe Road, Koton-karfi in Kogi Local Government Area, conspired to commit the offence of armed robbery and culpable homicide by killing one Mohammed Abubakar. The appellant herein made a confessional statement Exhibit ‘F’ to the Police but later retracted same during the trial and testified that the confessional statement was obtained from him under duress. However, in his well considered judgment the learned trial judge convicted and sentenced the appellant to death in respect of the offence of culpable homicide only. An appeal to the court of Court of Appeal was dismissed without much ado.

I have observed that Exhibit ‘F’ the confessional statement of the appellant was first admitted in evidence without objection, Initially counsel for the appellant objected to its admissibility on grounds of duress resulting in a trial within trial being invoked but was aborted almost at the tail end when the learned counsel for the appellant withdrew the objection what is clear at this stage, is that the appellant is deemed to have admitted making Exhibit ‘F’ and voluntarily too.

It is trite law that confessional statement of an accused, where it is direct positive, and unequivocal as to the commission of the crime charged is the best evidence and can be relied upon solely for the conviction of the accused person.
Therefore on the established principle of our law, no doubt, the appellant can, in the circumstances ofthe case, be convicted on Exhibit ‘F’ solely. See AKPAN v. THE STATE (1992) 6 NWLR (Pt 248) 4399, 468; SULE v. STATE (2009) 17 NWLR (Pt 1169) 33 at 60.

In the instant case the appellant desperately retracted his confessional statement, as an afterthought. That notwithstanding, the trial court is in a better position to look into some evidence outside the confession which would make it probable. This rule of practice is meant to determine which of the two versions of events relating to the commission of the crime stated by the accused concerned is likely to be the credible version. See KOPA v. STATE (1971) 1 ALL NLR 151. EJINIMA v. STATE (1991) 6 NWLR (Pt 200) 627.

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In the instant case, the court concurrently found that there is evidence on record to corroborate the confessional statement of appellant in Exhibit ‘F’: There is evidence that the appellant went to the radio repair shop of PW2 and deposited with him a polythene bag containing two locally made pistols and cloth blood-stained, for safe keeping. In exhibit ‘F’ appellant admitted purchasing the pistols together with the co-accused (Adamu Saliu) and cartridges with which they shot and killed the deceased and robbed him of his vehicle, the particulars of which were later recovered from the house of the co-accused.

Also PW3 gave testimony as regards the polythene bag and the contents and how he took same to the saw-mill where they were engaged in sawing timber.

The foregoing pieces of evidence outside the confessional statement corroborated the contents of the confessional statement of the appellant and I so hold. In this case there are concurrent finding of fact and holding by the two lower courts which are not perverse. This court would not disturb or interfere with same.

For these reasons and more detailed ones contained in the lead judgment of my learned brother ONNOGHEN JSC, I too uphold the conviction and sentence of the appellant for the murder of the deceased. The appeal lacks any substance and I hereby dismiss it.

BODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother Onnoghen, JSC. I agree with his lordships conclusions that there is no merit in this appeal.

On the 9th day of August 2003 at about 9.30 p.m. along the Akpogu-Ozugbe Road in Kogi State, the appellant and his friend and co-accused, Adamu Saliu shot and killed the deceased, and in the process of that despicable act stole his car with Reg. No. AA 969 KAF. Both of them were sentenced to death for conspiracy, Armed Robbery and culpable homicide. The Court of Appeal affirmed the decision of the trial court. Exhibit F. is the confessional statement made to the Police by the appellant. Exhibit F was admitted in evidence after the appellant initially objected to it being tendered as an exhibit. The well laid down position of the law is that once there is no objection to the tendering of a confessional statement, such a statement can be relied on solely to convict the maker, since a confessional statement is the best evidence that the accused person committed the offence for which he is charged. See
Akpan v. State (1962) 6 NWLR (Pt.248) P.439
Adekoya v. State (2012) 3 SC (Pt.iii) P.36

It is desirable in some cases to have some independent evidence, be it corroboration that would make it probable that the confession was true. See
Bright v. State (2012) 1 SC (Pt ii) P.47
State v. Isah & 2 Ors (2012) 7 SC (Pt.iii) P.93

The confession to killing the deceased and stealing his Nissan car was free and voluntary. It was consistent and corroborated by exhibits to wit: the keys and particulars of the stolen car, and the testimony on oath of the prosecution witnesses, PW2, PW3. In the end the evidence established was that the appellant in company of his friend Adamu Saliu (who had his appeal dismissed, See SC.366/2011 judgment delivered on 30/5/2014) shot and killed the deceased, stole his car and tried to sell it in Kaduna before it was retrieved by the Police. C6ncurrent findings of the two courts below are that the appellant and his friend and co-accused shot and killed the deceased, and stole his car. This finding made by the trial court was affirmed by the Court of Appeal. This court rarely upsets findings of fact made by the trial court and affirmed by the Court of Appeal, but would readily disturb such findings if found to be perverse, or cannot be supported by evidence, or there is a miscarriage of justice. See
R-Benkay Nig Ltd v. Cadbury Nig. Plc (2012) 3 SC (Pt.iii) P.169
ACN v. Lamido & 4 Ors. (2012) 2 SC (Pt.ii) P.163

Learned counsel for the appellant failed to show to this court why concurrent findings of the two courts below should not be affirmed by this court.

For these brief reasons as well as the detailed reasoning in the leading judgment I would dismiss the appeal. Appeal dismissed.

KUMAI BAYANG AKA’AHS, J.S.C.: I had the privilege of reading before now the judgment of my learned brother, Onnoghen, JSC with which I agree.

The appellant who was the 2nd accused, was arraigned alongside Adamu Saliu (1st accused) on an amended three count charge of criminal conspiracy, armed robbery and culpable homicide punishable with death contrary to sections 97(i), 298(d) and 221 read along with section 79 respectively of the Penal Code. After the Prosecution and defence had called evidence, the learned trial Judge evaluated the evidence and found each of the two accused persons guilty of all the offences charged but sentenced them to death by hanging. Each of them appealed against his conviction to the Court of Appeal, Abuja. The lower court consolidated the appeals and dismissed the appeals in appeal No. CA/A/16C/2009 on 12th May, 2011. This is a further appeal by the appellant from that judgment.

My learned brother, Onnoghen, JSC resolved all the three issues canvassed in the appeal against the appellant. I

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entirely agree with his reasoning and conclusion reached.

It is not true as learned counsel for the appellant has argued that the conviction of the appellant was based solely on the confessional statement Exhibit “F” which the appellant retracted. Apart from Exhibit “F”, the evidence of PW2 corroborated in every material particular what the appellant stated in Exhibit “F”, PW2, Friday Kaura stated that on 22/8/2003 in the evening he was in his workshop at Apogu repairing radios where Peter Azabada handed a polythene bag to him which was meant for his (PW2’s) senior brother Gbaji Kaura (also known as Paul). He took the polythene bag to his room. The next day he learnt about the robbery in which the appellant had taken part and so he went and brought out the polythene bag containing two pistols and a blood stained dress which he showed to the people who were residing in the same compound with the appellant before depositing the bag in the appellant’s room. There was enough circumstantial evidence which linked the appellant and the 1st accused from whom the keys and particulars of the car the deceased was driving prior to the robbery were recovered and from which the trial Judge reached the conclusion that the appellant and 1st accused conspired to carry out the robbery and in the process fired the gun shots that killed the deceased. In the statement, the appellant said he shot the deceased in the stomach.

Turning to the failure by the learned trial Judge to pronounce sentence on each of the other two offences for which the appellant was found guilty, the lower court relying on the authority of Oyediran & Others vs. The Republic (1967) NMLR 122 held it could not rectify the error. I do not think the lower court was helpless in the situation.
The position as postulated by Uche Omo, JSC in Onyejekwe vs The State (1992) 3 NWLR (Pt.230) 444; (1992) 4 SCR (Pt.1) at 29 and applied in Ejelikwu vs State (1993) 7 NWLR (Pt.307) 554 at 569 is that-
Once it is clear from the evidence led and/or findings of the trial Judge, that the appellant has been found to have committed the offence charged, the failure to record the conviction should not prevent the appellate court from so holding. It should be regarded as an irregularity/slip and not an illegality

The Court of Appeal should have invoked its powers under section 24 of the Court of Appeal Act 1976 to correct the accidental slip which it rightly did in Ejelikwu vs State supra by inserting the following after the last sentence of the judgment of the learned trial Chief Judge:-
The accused is sentenced to death and shall be hanged by the neck until he is dead”

Since the learned trial Judge had found the appellant guilty as charged and the matter was no longer in the State High Court to enable him remedy the accidental omission of pronouncing the sentence, the lower court should have applied section 24 of the Court of Appeal Act to remedy the omission. But in view of the fact that the trial court had imposed the ultimate sentence of death which this court has affirmed, no miscarriage of justice has been occasioned by the failure to pronounce the appropriate sentences provided in the Penal Code. It is needless to over flog an already dead horse.

It is for this reason and the more detailed reasons contained in the judgment of my learned brother, Onnoghen, JSC that I too find no merit in the appeal and I accordingly dismiss. The judgment of the lower court is further affirmed by me.

JOHN INYANG OKORO, J.S.C.: I was obliged a copy of the judgment of my learned brother, Onnoghen, JSC, just delivered with which I am in total agreement that this appeal is devoid of merit and ought to be dismissed. The three issues distilled for the determination of this appeal have been meticulously and quite efficiently resolved in the lead judgment. I, however wish to make some comments on the first issue in support of the judgment. The said issue states:-
Whether the Court of Appeal Abuja division was right when it affirmed the conviction and sentence of the appellant merely on the strength of the confessional statement of the appellant and which confessional statement was retracted by the appellant in his oral testimony before the trial High Court of Kogi State.”

The appellant was charged with conspiracy, culpable homicide and armed robbery. Evidence led at the trial discloses that the appellant and his co – accused, on or about 9th August, 2003, at Akpogu – Ozugbe road, Kotokarfi, Kogi Local Government Area, conspired to commit the offence of armed robbery and culpable homicide by killing one Mohammed Abubakar in the process. The appellant, though he had made a confessional statement to the police, later denied the statement in the course of trial. At the trial, the prosecution called six witnesses and tendered five exhibits. The appellant denied the charges and testified that the confessional statement obtained from him was done under duress.

The learned trial judge convicted the appellant on the three counts but sentenced him in respect of the offence of culpable homicide only. An appeal to the Court of Appeal was dismissed.
By section 28 of the Evidence Act, a confessional statement is a statement made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Such a statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan v State (1992) 7 SCNJ 22, Yesufu v State (1976) 6 SC 167, Obasi v State (1965) NWLR 129, Ogoala v The State (1991) 2 NWLR (Pt 175) 509.

The law is also settled that an accused person can be convicted based on his confession or admission alone if it is direct, positive and unequivocal as to the commission of the offence charged. See Akpan v State (supra).

In the instant appeal, the appellant made a confessional statement in exhibit F that he and his co-accused purchased a gun and cartridges and on the 9th of August, 2003, they went to Akpogu Ozugbe road and waited for the deceased who was returning from his normal transport business. He also stated that they hid in a nearby bush and when the deceased arrived that point, they killed him and stole his Nissan car with registration No. AA 969 KKF which particulars were found in the co – accused person’s house.

At the trial, the appellant resiled from the admission in Exhibit F. The learned trial judge conducted a trial within trial but was aborted when counsel for the appellant withdrew his objection to the tendering of the statement. It is a good criminal jurisprudential practice that where an accused Person who had made a confessional statement, thereafter retracts or resiles from it, before he can be convicted on the said confessional statement, the court must look for some evidence outside the confession which would make the confession probable. See Bassey v State (2012) 12 NWLR (Pt 1314) 209, Akpan v State (Supra).

Apart from the statement of the appellant contained in Exhibit F, the PW2 gave evidence as to how the appellant came to his radio workshop and gave him a polythene bag containing two pistols and a blood stained cloth to keep for him. Again the particulars of the stolen car were recovered from the co – accused in his house as well as the car which was recovered in Kaduna which linked them to the crime. Thus, there were pieces of evidence outside the confessional statement which corroborated the contents of the said admission. I have no doubt whatsoever, that the appellant, with his co-accused, killed the deceased as narrated by him in his confessional statement. That is why I strongly agree with my learned brother, Onnoghen; JSC that the court below was right to uphold the conviction and sentence of the appellant for the gruesome murder of Mohammed Abubakar. This appeal is completely unmeritorious and is hereby dismissed by me.

Appearances

Sylva Ogwemoh Esq For Appellant (with him) are Messrs J.O. Okosun and Alex Ikhane For Appellant

AND

P. H. Ogbole Esq. with him Ogwuche; Boniface Bassey, P.C. Ashuikeka; Omoadoni Imobighe (Miss) Nwofor, Chidubem, and Victoria U Maynya (Mrs) For Respondent

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