Effect Of Retraction Of A Voluntary, Direct Confessional Statement

“The law is indeed, trite, that a confessional statement which is voluntary, properly proved, direct, equivocal, is sufficient to sustain a conviction, even where it is subsequently retracted at the trial

In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 7th day of May, 2021
Before Their Lordships
Kudirat Motonmori Olatunbo Kekere-Ekun
John Inyang Okoro
Ejembi Eko
Ibrahim Muhammad Musa Saulawa
Adamu Jauro
Justices, Supreme Court
SC. 948/2017
Between
Enajike Okeremute Appellant
And
The State Respondent
(Lead Judgement delivered by Honourable Kudirat Motonmori Olatokunbo KekereEkun, JSC)

Two meetings were held within the Evbuekpan Community, to resolve a pending dispute between two youth groups. One meeting was held in PW1’s compound (the deceased’s father), while the second meeting was held at the Appellant’s home. PW1 received an information that his son had gone missing. While searching for his son, two boys informed him that his son had been killed. He received the news in the evening, and a search at dawn led to the discovery of his son’s corpse. Thereafter, a report was made to the Police and a team accompanied PW1 to the scene. The body of the deceased was found covered in a plantain plantation, and PW1 identified the corpse as that of his son.

The following day, PW1 went to make a statement at the Police Station. While at the Police Station, the Appellant arrived with his Lawyer and allegedly informed the Police, in the presence of PW1, that he shot the deceased. Thereupon, the Appellant was arrested and was eventually charged to court. In proof of its case, the Prosecutor called four witnesses and tendered
exhibits, including Exhibit B -the Appellant’s extra-judicial statement which was confessional.

The Appellant challenged the voluntariness of the statement, and a trial-within-trial was conducted, after which the court ruled that the statement was voluntarily made and admitted it in evidence as Exhibit B. The trial court found the Appellant guilty of murder and sentenced him to death by hanging. The Appellant’s appeal to the Court of Appeal was unsuccessful; hence, the further and final appeal to the Supreme Court.

Issues for Determination
In its resolution of the appeal, the Supreme Court considered the following sole issue for determination:

“Whether the Court was right in affirming the judgement of the trial court, which held that the Prosecution proved the Appellant’s guilt beyond reasonable doubt?

Arguments
On the sole issue, counsel for the Appellant submitted that in criminal cases, and particularly in murder cases which carry death penalty, the onus is on the Prosecution to prove the guilt of the accused person beyond reasonable doubt. Counsel submitted that, the onus of proof remains on the Prosecution and does not shift. He relied on the decision in MORKA v THE STATE (1998) 2 NWLR (Pt. 539) 294 at 301 and Section 138 of the Evidence Act, 1990 in support of his position. Counsel noted that the trial court relied on the evidence of PW1, PW4 and the Appellant’s confessional statement (Exhibit B), in convicting the Appellant. He contended that the only aspect of PW1’s testimony linking the Appellant to the crime, was PW1’s evidence that he was at the State CID when the Appellant, in company of his Lawyer, told the Police that it was he who shot the deceased. He submitted that PW1’s evidence in court was at variance with the statement he made to the Police on 23rd August, 2021 (Exhibit A), where he named those he suspected to have killed his son. Counsel contended that PW1’s evidence, amounts to hearsay. He noted that during trial, the Appellant testified that the statement was obtained under duress, and that the statement was obtained on 30th August, 2010, five days after his arrest. Counsel submitted that PW4 was not an eyewitness to the crime, and could not, therefore, testify that he knew it was the Appellant who shot the deceased, having testified that he met him for the first time on 25th August, 2010. He posited further that the failure of the Prosecution to state the time the incident occurred in the Charge, was a vital omission.As regards Exhibit B, counsel reiterated the requirements for the admissibility of a confessional statement, as stated in PATRICK NJOVENS & ORS. v THE STATE (1973) 4 SC 17.

He submitted that the Appellant alleged that he was tortured, and that he was not permitted to write his statement himself even though he is literate. Counsel argued that the Prosecution failed to discharge the onus of proving that Exhibit B was made voluntarily, and argued that the lower courts were wrong to have relied on it in sustaining the conviction. Responding to the submissions above, counsel for the Respondent conceded that to prove the Charge against the Appellant, the standard of proof is beyond reasonable doubt; however, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt – MILLER v MINISTER OF PENSIONS (1947) 2 ALL ER 372; Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 and Section 35 of the Evidence Act, 2011. Counsel also set out the ingredients of the offence of murder, and submitted that the testimony of PW3 proved that the deceased died as a result of gunshot wounds to his right upper back which lacerated his heart and lungs, and caused severe bleeding or haemorrhage. Counsel also referred to the evidence of PW1 and PW4 who testified that the Appellant came to the Police Station in the company of his Lawyer, and confessed to the commission of the crime in their presence. He referred to Exhibit B, the Appellant’s confessional statement which was reproduced, and submitted that these pieces of evidence clearly established that the death of the deceased resulted from the act of the Appellant. He submitted further that the act of the Appellant was intentional, with knowledge that death or grievous bodily harm was its probable consequence.

In all, counsel submitted that the Prosecution proved its case beyond reasonable doubt, and the lower court was right to have affirmed the conviction and sentence. With regard to the submission that the testimonies of PW1 and PW4 amounted to hearsay, counsel argued that their evidence were not hearsay, relying on the provisions of Section 126 of the Evidence Act, 2011 on what amounts to hearsay. He submitted that PW1 and PW4 testified as to what they heard directly, and not information given to them. As regard Exhibit B, counsel submitted that once a confessional statement is admitted in evidence, it becomes part of the Prosecution’s case – KOLADE v THE STATE (2017) 8 NWLR (Pt. 1566) 89. . He urged the court that the procedure adopted by the learned trial judge at the trial-within-trial is in line with the decision of the court in HASSAN v THE STATE (2017) 5 NWLR (Pt. 1557) 28 and Section 29 of the Evidence Act. Counsel submitted further that the retraction of a confessional statement at the trial does not render it inadmissible, and the court can convict solely on the confessional statement of an accused person if it is voluntary, direct, positive, and properly proved.

Court’s Judgement and Rationale
Before delving into the determination of the sole issue, the court addressed the submission that the Prosecution failed to indicate the time the offence was committed in the charge. Their Lordships held that the appropriate time to complain or object to a Charge is at the time it is being read, and before the Accused makes his plea, and not later – OKEWU v F.R.N. (2012) 9 NWLR (Pt. 1305) 327. In deciding the sole issue, the court held that, both counsel stated correctly the position of the law on the onerous burden placed on the Prosecution in establishing the guilt of a person charged with a criminal offence, which is proof beyond reasonable doubt and not proof beyond the shadow of doubt. Proof beyond reasonable doubt means proof as satisfies the judgement and conscience of a Judge as a reasonable man, and applying his reason
to the evidence before him that the crime charged has been committed by the Defendant, and so satisfies him as to leave no other reasonable conclusion possible – AFOLALU v THE STATE (2010) 16 NWLR (Pt. 1220) 584.

The Supreme Court stated the ingredients of the offence which must be proved beyond reasonable doubt under Section 319(1) of the Criminal Code of Bendel State, applicable in Edo State, are that: (i) the deceased died; (ii) the death of the deceased resulted from the act of the accused; and (iii) the action of the accused was intentional, with knowledge that it might result in death or grievous bodily harm.

Pronouncing on each ingredient that must be proved, the Supreme Court held that as regard the fact that the deceased died, it is not in contention, and the Appellant did not challenge the finding of the lower court in that regard, and has not shown it to be perverse; it is supported by evidence on record. On the proof that the death of the deceased resulted from the act of the accused person, the court held that, the learned trial Judge relied on the evidence of PW1, PW4 and Exhibit B. PW1 testified as to what he heard directly from the Appellant, and his evidence was not hearsay. The court relied on Sections 37 and 38 of the Evidence Act and UTTEH v THE STATE (1992) 2 NWLR (Pt. 223) 257, for the definition of hearsay. The court further stated that there can be no better evidence of the commission of a crime, than the eyewitness account of the accused himself. Nonetheless, both courts examined the evidence of PW3 and PW4 and the testimony of these witnesses were not discredited. Though the Appellant retracted the statement made at trial, the court conducted a trial-withintrial and satisfied itself that the statement was made voluntarily. Having so found, the court was entitled to consider it along with other evidence before it, to determine the guilt or innocence of the Appellant. The law is indeed, trite, that a confessional statement which is voluntary, properly proved, direct, equivocal, is sufficient to sustain a conviction, even where it is subsequently retracted at the trial. The court also noted that, there was no appeal against the ruling of the trial court on the trial-within-trial. Therefore, it was too late in the day for learned counsel to raise the issue of voluntariness of the statement, at this stage.

On the final ingredient of the offence that the killing was intentional with the knowledge that death or grievous bodily harm would be the likely outcome, the court held that it is fathomable that in shooting the deceased in the back at close range, even as he was running away, death or grievous bodily harm was the natural consequence. Therefore, it can be inferred that the Appellant intended the natural consequences of his act. Relying on the authority of GARBA v THE STATE (2000) 4 SC (Pt. II) 157, their Lordships held that the third ingredient was also proved beyond reasonable doubt. The court concluded that the Appellant did not succeed in persuading the court to interfere with the concurrent findings of fact made by the two lower courts, same having not been shown to be perverse.

Appeal Dismissed.

Representation
J.N. Okongwu for the Appellants.
Andrew Malgwi, Esq. for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.