‘Omission to pronounce sentence after conviction can’t affect validity of proceedings’

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 […]

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 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 bloodstained cloth for safe keeping; that the above evidence corroborated the confessional statement of appellant on which the trial court relied in convicting and sentencing the 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.

To be continued