Propriety of Conviction of Accused on a Retracted Confessional Statement

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 13th day of June, 2025

Before Their Lordships

Muhammad Lawal Garba

Moore Aseimo Abraham Adumein

Obande Festus Ogbuinya

Jamilu Yammama Tukur

Abubakar Sadiq Umar

Justices, Supreme Court

SC/CR/810/2021

Between

SAUDE MUSA                                                                                    APPELLANT                                                

               And

THE STATE                                                                                            RESPONDENT

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The Appellant and two other persons were charged before the High Court of Gombe State for the offences of criminal conspiracy, trial by ordeal and culpable homicide punishable with death, contrary to Sections 214(b) and 221 of the Penal Code. The case of the Respondent was that on 28th February, 2014, one Musa Barde (deceased), Zainab Musa (PW4) and Idris Sambo (PW6) were invited by the Appellant who is a native doctor in collaboration with some other persons, to answer to an allegation of witchcraft against them. The Appellant and her accomplices were said to have subjected the deceased, PW4 and PW6 to an unlawful trial by ordeal which lasted for 2 days during which they were tied with ropes, tortured and denied food and water, to compel them to confess to the allegation of witchcraft against them. The deceased was said to have succumbed to the injuries he sustained from the unlawful trial by ordeal, while PW4 and PW6 sustained various degrees of injuries.

The Appellant pleaded not guilty to the charge. In proof of its case, the Respondent called nine witnesses which included PW 4 and PW6. At the conclusion of trial, the trial court found the Appellant and the second accused person guilty of all three counts, and sentenced them to death by hanging. The 3rd accused person was found guilty only on the 1st and 2nd counts, and sentenced to ten years and six months imprisonment respectively. Aggrieved by the decision of the trial court, the Appellant appealed to the Court of Appeal. However, the Court of Appeal affirmed the judgement of the trial court. Dissatisfied, the Appellant lodged a further appeal at the Supreme Court.

Issue for Determination

The Apex Court considered the following issue in its determination of the appeal:

Whether the lower court rightly affirmed the conviction and sentence of the Appellant by the trial court.

Arguments

Counsel for the Appellant submitted that there were material contradictions and inconsistencies in the Respondent’s case, which discredited its case. He argued that the testimony of the medical doctor called by the Respondent (PW9) contradicted the evidence of other material witnesses (PW1, PW4, PW5, and PW6) regarding the cause of death of the deceased, creating a substantial doubt as to whether it was the Appellant’s action that actually led to the deceased’s death.

 Counsel contended that that there was no evidence proving that the substances used on the deceased, PW4 and PW6 were the actual cause of the deceased’s death, particularly since PW4 and PW6 who underwent the same ordeal did not die. Counsel maintained that the prosecution failed to establish a causal link, between the Appellant’s acts and the deceased’s death. Counsel also argued that the Respondent failed to adduce any credible evidence of any prior agreement or common intention among the Appellant and the co-accused persons, to commit the offence of unlawful trial by ordeal and culpable homicide punishable by death.

Finally, Counsel submitted that the Court of Appeal was wrong to have upheld the trial court’s reliance on the Appellant’s retracted extra-judicial statements (Exhibits C and C1) to convict the Appellant, arguing that the statements lacked independent corroboration and that the procedure followed in recording them — where the same person acted as recorder, translator, and interpreter — lacked independence and violated the principles of fair hearing and natural justice. Counsel for the Appellant submitted that the Respondent failed to prove the offences against the Appellant beyond reasonable doubt, and urged the Apex Court to set aside the conviction and sentence of the Appellant.

In response, Counsel for the Respondent submitted that the death of the deceased as a result of the torture and trial by ordeal meted out to him by the Appellant was proved beyond reasonable doubt through the testimony of PW4 and PW6, alongside the Appellant’s own confessional statement. Counsel emphasised that the eyewitness accounts provided by PW4 and PW6 regarding their torture, ordeal and resultant death of the deceased were never cross-examined on material points, which, in law, meant the Appellant had accepted their testimony as true. It was further argued that medical evidence could be dispensed with, because the cause of death was obvious from the surrounding circumstances — specifically, the dastardly acts and torture inflicted on the deceased. Counsel highlighted that PW5 found the corpse covered in injuries behind the Appellant’s room, and that PW1 had witnessed the Appellant and the co-accused torturing the deceased. On the offence of conspiracy, the Respondent’s Counsel submitted that the joint participation of the Appellant and her co-accused in the torture and ordeal, established their common intention.

The Respondent’s Counsel submitted that, the Appellant had failed to show that the findings of the two lower courts were perverse; hence, there was no reason for the Apex Court to interfere with their concurrent findings. 

Court’s Judgement and Rationale

The Apex Court held that it is firmly established that the prosecution must prove beyond reasonable doubt, the commission of an offence by (a) direct evidence of eye-witness; (b) circumstantial evidence; (c) confessional statement of the accused person.

The Court held that although the term “trial by ordeal” is not specifically defined in the Penal Code; from the provision of Section 214 of the Penal Code by which punishment for it is prescribed, it can be described as an unlawful, wicked and barbaric practice by which people are subjected to physical and mental torture, on grounds of wild and outrageous beliefs and allegations of possession of supernatural powers of witchcraft. The Court held that by the said section, in order to secure punishment for the offence of trial by ordeal, punishable by death under Section 214(b), the prosecution is required to establish that (a) an unlawful trial by ordeal took place; (b) the accused presided over or was present at the trial by ordeal; and (c) the trial by ordeal resulted on the death of the accused.

The Court held further that, to succeed in a charge of culpable homicide punishable by death under Section 222 of the Penal Code, the prosecution is required to prove conjunctively that (a) the deceased died; (b) the death was caused by the act of the accused; and (c) the act of the deceased was done with the intention to cause death. The Court held that testimonies of the Respondent’s witnesses – PW4 and PW6 who suffered the trial by ordeal alongside the deceased, PW1 and PW5 who were eyewitnesses to the trial by ordeal, as well as the Appellant’s confessional statements and the photograph of the deceased tendered by the Respondent, proved the ingredients of these offences against the Appellant beyond reasonable doubt.

 The Apex Court referred to the direct accounts of PW4 and PW6, on how they were held captive alongside the deceased, persistently beaten and tortured, denied food and water for days by the Appellant and her accomplices on the allegation of witchcraft, and how the deceased who was a visibly old man, died as a result of the torture meted out to him. The Court also referred to the eyewitness testimonies of PW1 and PW5 on how they saw the deceased, PW4 and PW6 tied up and beaten by the Appellant, and how they subsequently saw the deceased’s corpse in a pool of blood with injuries on his body.

 The Court held that from the totality of this evidence which were credible, positive and unequivocal, it was proved beyond reasonable doubt that a trial by ordeal over which the Appellant presided took place, and the deceased died from injuries sustained from the barbaric treatment he was subjected to during the trial by ordeal.

The Court noted that the Appellant complained about contradictions between the evidence of PW9 (the medical doctor) and the testimonies of the Respondent’s other witnesses as to whether the Appellant caused the death of the deceased, and these contradictions were as to the testimony of PW1 and PW6 that they observed injuries on the deceased’s body and that the corpse was found in a pool of blood behind the Appellant’s house, and PW9’s testimony that that he examined the corpse and found that there were no external injuries, whereas, under cross-examination, he said that he did not conduct an autopsy on the body, but wrote his report based on the information he received from the Police officer that brought the corpse to him.

In addressing these contradictions, the Court held it was apparent that the Court of Appeal in affirming the conviction and sentence of the Appellant by the trial court, jettisoned the evidence of PW9 and Exhibit F (medical report) which it classified as worthless hearsay, but rather, relied strictly on the compelling and reliable eyewitness testimonies of PW1, PW4, PW5 and PW6, and the photographs of the corpse of the deceased which showed that there were extensive external injuries on the head and body of the deceased. The Supreme Court held that the issue of contradiction had therefore, clearly been overtaken by events, and was of no moment in the appeal.

The Supreme Court held that in any event, where there is direct evidence of an eye witness as to the cause of death, as in the instant case, or where the cause of death of the deceased has been proved beyond reasonable doubt by the prosecution, medical evidence may be dispensed with by the Court.

On the issue of conspiracy, the Apex Court held that where there is no direct evidence of a conspiracy hatched in secrecy to commit a crime, the offence is often proved by inference from the attitude of the accused persons, as well as from the surrounding facts and circumstances of the case. The Court held that the confessional statement of the Appellant that she and the co-accused persons tortured the deceased, PW4 and PW6, clearly showed that the Appellant and the co-accused persons acted in concert to commit the offences of trial by ordeal and culpable homicide.

On the argument of the Appellant that the court wrongly relied on the retracted extra-judicial statements of the Appellant to convict the Appellant, the Apex Court held that a court can convict on a confessional statement retracted at trial, if it is satisfied that the accused person made the statement in circumstances which give credibility to the content. The Court held that a court can safely convict on a confessional statement retracted during trial, if it is satisfied that it was made voluntarily, and it is supported by corroborative evidence which make it probable that the confession was true. The Apex Court found that, in this case, the Appellant’s confessional statements, though retracted at trial, were corroborated by the evidence of PW1, PW4, PW5 and PW6 on the trial by ordeal and the happenings that led to the death of the deceased, and the trial court rightly convicted the Appellant, even though she retracted her confessional statement. The Court relied on FRIDAY v STATE (2024) 14 NWLR (PT. 1957) 121.

Appeal Dismissed.

Representation

Adebayo Adesina with Victor Akpeji for the Appellant.

Sadiya Adamu Jauro for the Respondent.

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