GOLLE & ANOR v. STATE (2020)

GOLLE & ANOR v. STATE

(2020)LCN/14463(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/196C/2017

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

BUBA GOLLE 2. ABDULLAHI ALH. MUHAMMADU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WAYS OF PROVING THE COMMISSION OF AN OFFENCE

It is settled law that the prosecution may prove the commission of the offence charged by one of a combination of the following; (1) By the direct and credible evidence of eye witnesses, (2) by the confession of the accused person which is positive and unequivocal that the accused committed the offence, (3) By circumstantial evidence which unmistakably point to the accused person as the person who committed the offence and no other. See: Ibrahim Isah vs. The State (2019) LPELR–49363 (CA) P.20 (P.20 paras B – G). Onuoha & Ors. vs. State (1989) 2 NWLR (Pt. 101) 23, Freeborn Okiemute vs. The State (2016) LPELR–40639 (SC), Abirifon vs. State (2013) 13 NWLR (Pt. 1372) 619, Amoosa Opoola Adio & Anor v. The State (1986) 4 SC 194 at pp 219 – 220. PER AGUNDAGA, J.C.A.

DEFINITION OF A CONFESSIONAL STATEMENT

“My Lords, the law is settled that a confession is by virtue of Section 28 of the Evidence Act, 2011 (as amended) (sic), an admission made at any time by aperson 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.” See Hassan vs. The State (2001) 8 MJSC 105 at 108: The law is settled that a voluntary confession of guilt by a prisoner is sufficient to warrant conviction without corroborative evidence if it is direct, positive, duly made and satisfactorily proved. See Yesufu vs. The State (1976) 6 SC 167 at 173.”
This submission, in my respectful view represents the current State of the law. In the case ofAdamu Saliu vs. The State (2014) LPELR-22998 (SC), the Apex Court held:
“It is settled law that an accused can be validly convicted on his confessional statement alone” per Onnoghen JSC (P. 19, paras C) see also KOPA vs. State (1971) LPELR-1702 (SC). See also the case of Adio & Anor vs. State (1986) LPELR-183 (SC) where the Apex Court held: “A free and voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction. And there cannot be such a conviction unless the trial Court is satisfied that the case has been proved beyond reasonable doubt.” PER Oputa JSC (P. 23 paras C – E). PER AGUNDAGA, J.C.A.

WHETHER OR NOT WHERE AN INTERPRETER IS USED IN TAKING DOWN THE STATEMENT OF AN ACCUSED PERSON, THE STATEMENT IS INADMISSIBLE UNLESS THE INTERPRETER IS CALLED AS A WITNESS

The law is settled that where an interpreter has had to be used in the taking down of the statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. The Supreme Court has held that such a statement will amount to hearsay and can only be confirmed by the interpreter who must testify as to the questions he put to the accused on behalf of the interviewer and the answers given to him by the accused person in the latter’s language which he interpreted to the interviewer in English language.
Nonetheless, where the person who complains that the interpreter of the statement of an accused person is different from the recorder and that the interpreter has not been called as a witness, he has the responsibility to give the name of the interpreter – Section 136(1) of the Evidence Act, 2011. PER SANKEY, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Yobe State, holden at Damaturu delivered by Hon. Justice Ali Garba on 23/6/2014 in Suit No. YBS/DT/HC/04C/2011, wherein the appellants who were then accused persons were convicted and sentenced to 21 years each for the offence of attempt to commit armed robbery punishable under Section 2(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria, 1990.

The conviction and sentence was predicated upon a single count charge which reads:
“That you Buba Golle, Abdullahi Alhaji Muhammadu and 5 others now at large on or about the 26/11/2010, at about 0400hrs at Jabo village via Kanamma in Yunuari Local Government Area of Yobe State, which is within the Judicial division of this Court, committed the offence of armed robbery in that while armed with offensive weapons to wit Dane guns, sticks, bows and arrows, you attacked and shot Alhaji Guru Zarmi on his abdomen and chest which led to his death and stabbed Goni Zarami with a cutlass on his head and neck and he later died at General

Hospital Geidam, beat and shot Adamu Goni Zarami on his hand and disposes (sic) him of his Nokia Hand set and the sum of N5, 000.00 and you thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398, LFN 1990.”
signed
Mohammed Blyamini
Principal State Counsel

The Appellants all pleaded not guilty. In its bid to establish the charge, the Respondent as prosecutor called four witnesses and tendered the extra Judicial Statements which were admitted in evidence. The statements of the appellants were admitted after trial within trial following the objection taken to their admissibility on the ground that they were not voluntarily made.

On the close of the prosecution’s case, the appellants made a no case submission and were overruled. Thereafter, they entered their defence, with each of them testifying for himself. Upon the close of the defence, both the appellants and Respondent’s counsel addressed the Court vide written addresses. The Court thereafter proceeded to Judgment herein on appeal as a result of the appellants’ dissatisfaction with the

Judgment.

The Appellants file their respective Notices of Appeal on 23/7/2014 which were with leave of Court amended. The amended Notices of Appeal were filed on 2/3/2018 and deemed properly filed and served on 30/2018.
The Appellants’ amended Notices of Appeal contain 6 grounds of Appeal including the omnibus ground of appeal made as the 1st ground of appeal.

The 2nd – 6th grounds of appeal shorn of their particulars are hereunder reproduced for case of reference:
2. The Lower Court erred in law when it convicted and sentenced the Appellant for imprisonment for life when the Prosecution had failed to prove the alleged commission of the offence of attempt to commit Robbery under S.2 (2) (b) of the Robbery and FireArms (Special Provisions Act) beyond reasonable doubt (sic) error has occasioned a miscarriage of justice.
3. The Lower Court erred in law when it admitted exhibit A in evidence in disregard of the evidence of the defence in the trial within trial which error has occasioned a miscarriage of justice.
4. The Lower Court erred in law when it admitted exhibit B in evidence in disregard of the evidence of the

defence in the trial within trial which error has occasioned a miscarriage of justice.
5. The Lower Court erred in law when it convicted and sentenced the Appellant to life imprisonment when the statement of the Appellant was made in a vernacular Language and not in English Language contrary to the Supreme Court decisions in Zakwakwa vs. Queen (1960) SCNLR 36 and Asuquo vs. The State (2016) 14 NWLR (Pt. 1532) 309 and the only statement that was brought to the Court EXHIBIT A was the one in English which error has occasioned a miscarriage of justice.
6. The Lower Court erred in law when it convicted and sentenced the Appellant to life imprisonment when the statement of the Appellant was made in a vernacular language and not in English language contrary to the Supreme Court decisions in Zakwakwa vs. Queen (1960) SCNLR 36 and Asuquo vs. The State (2016) 14 NWLR (Pt. 1532) 309 and the only statement that was brought to the Court EXHIBIT B was the one in English which error has occasioned a miscarriage of justice.

For the purpose of arguing the appeal the following briefs of argument were filed;
i. The Appellants’ joint brief of argument,

settled by A. A. Sangei, Esq. was filed on 21/3/2018.
ii. Responding to the Appellants’ brief of argument, the Respondent’s brief of argument settled by U. Ismaila Esq, Chief State counsel, MOJ, Yobe State was filed on 15/6/2020.
iii. The Appellants filed a reply brief of argument on 22/6/2020.

Two issues were formulated in the appellants’ brief of argument. The two issues are:
1. Whether or not the Appellants had fair hearing and fair trial having regard to the manner the documentary evidence was tendered and admitted and the entire circumstances of the trial, conviction and sentence of the Appellants to life imprisonment (Distilled from Additional Grounds 3, 4, 5 and 6).
2. Whether or not the Respondent had proved the case of the alleged offence against the Appellants beyond reasonable doubt (Distilled from Original Ground 1 and Additional Ground 2).

The Respondent adopted the Appellant’s two issues in its brief of argument.
ARGUMENT ON THE ISSUES
Issue one
Whether or not the Appellants had fair hearing and fair trial having regard to the manner the documentary evidence was tendered and

admitted and the entire circumstances of the trial, conviction and sentence of the Appellants to life imprisonment (Distilled from Additional Grounds 3, 4, 5 and 6).

APPELLANTS:
It is submitted for the Appellants’ that the lower Court erred in law in convicting and sentencing the Appellants to life imprisonment. It is submitted that the manner of the trial, conviction and sentence denied the Appellants their Constitutional right to fair hearing in that Exhibits A and B were taken in vernacular. That the language spoken and understood by the Appellants was not English language. It is further submitted that the difficulty and uncertainty as to interpretation when taking the “alleged confessional statements” of the Appellants by the police necessitated the lower Court to make provision at each session for two interpreters for the understanding and appreciation of the Appellants, that is, an interpreter from Fulfude to Hausa and vice versa and an interpreter from English to Hausa and vice versa to avoid what happened in the process of investigation by police. The Court is referred to page 21 lines 6 – 9, and page 27 lines 26

– 29 of the record.

It is further submitted that the Appellants were prejudiced in their defence by the refusal or failure of the Respondent to tender the statements of the Appellants taken in the two vernacular before the lower Court. Also, that the failure/refusal of the prosecution to call as witnesses the persons that interpreted the alleged confessional statements of the Appellants in vernacular occasioned the denial of the Constitutional rights of the Appellants to fair hearing. Counsel relies on Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)Zakwakwa vs. Queen (1960) SCNLR 36 at 37–38, Paras G – A, Asuquo vs. The State (2016) NWLR (Pt. 1532) 309 at 329, Paras D – F and Yahaya vs. Dankwanbo & Ors (2016) 7 NWLR (Pt. 1511) 284 at 317, Paras A – D. On further complaints of denial of the appellants’ Constitutional right by reason of the failure to call the several interpreters of the statements of the Appellants, this Court is referred to the proceedings of the Court conducted on 20/1/2014 at pages 31 lines 1 – 9 of the record and to page 30 lines 34 and 35 where one

Shehu Musa affirmed to interpret from English to Fulfulde, and the same page 30 lines 35 where Ahmed Bala affirmed and testified in Kanuri. The Court is further referred page 31 lines 6 – 7 of the record where the Court suo motu invited other interpreters from English to Hausa and vice versa and from Kanuri to Hausa and vice versa.

It is submitted that if the lower Court had this kind of difficulty in interpretation with trained interpreters, what more of the purported and most likely lay/untrained interpreters of the alleged confessional statements of the Appellants to the investigating police officers from one vernacular to another vernacular and to English language and vice versa. That in the circumstances the appellants were denied their right to fair hearing, which has the effect of tendering the entire proceedings and decision of the lower Court a nullity no matter how well conducted. In aid of this contention, Counsel relies on Section 36(1), (5) and (6) of the 1999 Constitution (as amended), Sabi vs. The State (2011) 14 NWLR (Pt. 1268) 421 at 437 – 438 paras B – B, and 49 paras E – G, Adebayo Ogundoyin & Ors vs. David Adeyemi

(2006)1 NHLR 39 at 52 – 54 paras B – B; (2001) 13 NWLR (Pt. 730) 403 at 419 – 420 paras D – E.

It is further submitted for the appellants that the lower Court erroneously refused to give credit and due consideration to the evidence of the Appellants in the trial within trial. That the appellants in their respective evidence in the trial within trial made statements of physical serious torture to their persons which were not specifically controverted/denied by the Respondent. That the failure of the lower Court to rely on this uncontroverted evidence has occasioned the appellants denial to fair hearing, and referred to earlier cases cited in support of the appellants’ complaint of denial to fair hearing.

We are urged to set aside the two rulings of the lower Court in which the Appellant’s alleged extra judicial confessional statements were admitted in evidence and to expunge those statements admitted as exhibits from the record.

RESPONDENT
Respondent’s Counsel commenced his submission on issue one by a definition of what connotes fair hearing by reference to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.

Counsel submits that the test of a fair hearing is the impression of a reasonable person who was present at the hearing, whether from his observation justice was done in the case. He refers to the case of Mohammadu vs. Kano N.A (1968) 1 All NLR 424, Otapo vs. Sunmonu (1987) 2 NWLR (Pt. 58) 587.

It is further submitted that parties are bound by the record of proceedings before it and cannot depart from it on the ipsidixit of counsel or speculation.

In specific reference to the attack launched by the appellants against the procedure adopted in the recording of the statements of the appellants (Exhibits “A” and “B”), it is submitted that the statements of accused persons, should wherever practicable be recorded in the language in which they are made. See Olanipekun vs. The State (2016) 13 NWLR (Pt. 1528) 100 at 118. That where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote down the statement. He relies on the case of Olalekan vs. The State (2001)

18 NWLR (Pt. 746) 293. Counsel went on to further submit that there may however be instances where the statement of the accused person is rendered orally in a language other than English language which is the language of the Court while the statement is recorded by the recorder who understands that language directly in English language. That in that situation there would be no recorded version of the statement in the language in which the accused made the statement except the English language version. The case of Jimoh vs. State (2014) 3 SCNJ at 27 is referred to and cited in support. Counsel submits that this case is on all fours with the case on appeal in which the Appellants and PW1 and PW2 speak Hausa language; the Appellants made the statement in Hausa language and PW1 and PW2 recorded it in English language and thereafter translated same into Hausa language. He refers the Court to page 18 lines 34 – 35 and page 25 lines 35 – 38. Counsel submits that Exhibits A and B did not amount to hearsay particularly that the statements was tendered through the interpreter/recorder and admitted in evidence after a trial within trial was conducted to

ascertain their voluntariness. Refers to pages 20 – 21 and 23 lines 1 – 16, pages 26 lines 17 – 18, pages 27 and 28 of the record. The procedure adopted in the recording of Exhibits “A” aid “B”, counsel submits is in order. He refers us to the case of Semaka vs. The State (2018) LPELR-44001 (CA) page 3 ratio 6.

In regard to the appellants’ complaints bordering on interpretation in the course of the proceedings, it is submitted for the Respondent that the lower Court discharged its duty by providing interpreters whenever necessary. It is further submitted that the appellants were professionally and competently represented throughout the proceedings at the lower Court. That the prosecution witnesses were meticulously cross-examined and a dogged defence was put up on behalf of the appellants. We are referred to pages in the record where interpretations were carried out and by whom. Specifically, pages 21 and 27 lines 26 – 29 were referred to. Also referred to is page 31 lines 8 – 9. Counsel relies on the case of Queen vs. Imadebhor (1962) 2 SCNLR-289 and Uwaekweghinya vs. The State (2005) 4 ACLR 1 at

5 ratio 2.

In the reply brief, appellants’ Counsel submits that the cases cited by Respondent’s Counsel, to wit, Mohammadu vs. Kano N.A (1968) 1 All NLR 424, and Otapo vs. Sunmonu (1987) 2 NWLR (Pt. 58) 587 do not support the Respondent’s case but the appellants’.

Issue two:
Whether or not the Respondent had proved the case of the alleged offence against the Appellants beyond reasonable doubt (Distilled from Original Ground 1 and Additional Ground 2).

APPELLANTS
It is submitted for the Appellants that the Conviction and sentence of the appellants is wrong because the evidence of the prosecution witnesses is materially and irreconcilably contradictory. So many cases inclusive Ekpoisong vs. The State (2009) 1 NWLR (Pt. 1122) 354 at 370 – 371 paras H – C, Onuoha vs. The State (2002)1 NWLR (Pt. 748) 406 at 422 paras G and 424 paras B – G and G – H are relied on. It is submitted on the other hand that the Appellants adduced cogent, credible, reliable and consistent evidence in their defence in the trial within trial, and the main trial. That the many contradictions and conflicts in the evidence

adduced by the prosecution creates serious doubt as to the guilt of the appellants. It is further submitted that it is settled law, that where there is some element of doubt in a criminal proceeding, the doubt inevitably should be resolved in favour of the accused person. Cited in support is the case of Bassey vs. The State (2012) 12 NWLR (Pt. 1314) 209 at 234 paras D., Ogueri vs. The State (2000) 2 CLRN 14 at 24 paras A – B, Federal Civil Service Commission & Ors vs. Laoye (1989) 4 SCNJ (Pt. II) 146 at 188 per Oputa, JSC.
The Court is urged to resolve this issue in favour of the appellant.

And in conclusion, the Court is urged to allow the appeal, set aside the conviction and sentence, and to discharge and acquit the appellants, or in the alternative to set aside the conviction and sentence and to order a retrial before another Judge of the lower Court.

RESPONDENT
It is submitted for the Respondent that a case can be proved beyond reasonable doubt in three ways;
i. Direct oral evidence of witnesses
ii. Circumstantial evidence and
iii. Confession of the accused person himself, which Counsel submits is the best

evidence. On this, reliance is placed on the case of Amoosa Opoola Adio & Anor vs. The State (1986) 4 SC 194 at pp. 219 – 220, and the case of Emeka vs. The State (2001) 14 NWLR (Pt. 734) p. 666 at 669 ratio 1.

It is submitted that the Respondent in this case called PW1 – PW4, and tendered four (sic) Exhibits marked as Exhibits “A” and “B”. We are referred to pages 23 and 28 of the record. Counsel debunks the submission of the appellants’ Counsel that the evidence of the appellants were taken through interpreters. That there is nothing in the record to attest to the fact that the statements of the appellants were taken through interpreters.

The Court is referred to the evidence of PW1 and PW2 on how they took the evidence of the appellants as accused persons. Specifically, pages 18, line 33 – 35 and 20, lines 9 – 11, and 25 lines 34 – 40 were referred to. Counsel submits that the Court is bound by its record as the record of proceedings is the only indication of what took place in a Court.

It is further submitted that a voluntary confession of guilt by a prisoner is sufficient to

warrant conviction without corroborative evidence if it is direct, positive, duly made and satisfactorily proved. Counsel cites in support the case of Yesufu vs. The State (1976) 6 SC 167 at 173. As to what a confession is, it submitted that it is settled law that a confession by virtue of Section 28 of the Evidence Act, 2011 is an admission made at anytime by a person charged with a crime stating that he committed the crime. That, 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. Counsel calls in aid of this submission the case of Hassan vs. The State (2001) 8 MJSC 105 at 108.

Indeed, Counsel further submits, a confession is the strongest evidence against an accused person as it determines his guilt in most cases. That a voluntary confession made by an accused person is relevant and admissible against him at trial. The case of Omoju vs. FRN (2008) 11 MJSC 156 at 159 is relied upon. Counsel points out that a trial within trial was conducted and the objections to the admissibility of the

confessional statements was overruled and the extra – Judicial statements admitted in evidence and marked as Exhibits “A” and “B”. The Court is referred to pages 20 – 21 and 23; and pages 26 – 28 of the record.

It is further submitted that notwithstanding, that the Court can convict on a confessional statement if it is direct, positive and is duly made and satisfactorily proved, without any corroborative evidence as long as the Court is satisfied of the truth of the confession, it is desirable to have outside the confession some evidence no matter how slight of the circumstances that make it probable that the confession was made. Counsel relies on the case of Uluebeka vs. The State (2000) 7 NWLR (Pt. 665) 404. In this appeal, Counsel submits that the evidence of PW3 and PW4 corroborates the confessional statements. Pages 30 – 31 of the record of appeal are referred to.

In response to the submission of the appellants that there are contradictions in the evidence of the prosecution, it is submitted for the Respondent that there is no contradiction whatsoever in the evidence of the prosecution witnesses.

That the appellants are required not only to show that such contradictions exist but must go further to show that such contradictions are material, substantial and has led to a miscarriage of Justice. This, the appellants have not shown, Counsel submits. He relies on the case of Agbo vs. The State (2007) 2 NCC at 158 – 163 ratio 11. Counsel went on to further submit that the evidence of the appellants did not disclose any defence which could have been considered by the Court.

Conclusively, Counsel submits that the Respondent proved its case beyond reasonable doubt. He reminds the Court that proof beyond reasonable doubt is not proof to the tilt or beyond any iota of doubt.

He relied on the case of Adebayo vs. The State (2002) 6 ACLR p. 372 at p. 376, ratio 8. In urging the Court to also resolve issue two in favour of the Respondent, the Court is urged to dismiss this appeal and to affirm the decision of the lower Court.

The issues formulated by the Appellants and adopted by the Respondent, except for the improper wording of issue one (1) are apt to determine this appeal. However, to properly capture the grounds of appeal, it is for me

more ideal to reframe the issues as hereunder stated:
1. Whether the lower Court was right in admitting the extra Judicial statements of the Appellants in evidence in view of the procedure by which the were recorded and the evidence adduced in the trial within trial.
2. Whether the appellants were rightly convicted and sentenced for the offence of attempt to commit armed robbery punishable under Section 2(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria; 1990.

Resolution of the Issues
Issue one
Whether or not the Appellants had fair hearing and fair trial having regard to the manner the documentary evidence was tendered and admitted and the entire circumstances of the trial, conviction and sentence of the Appellants to life imprisonment (Distilled from Additional Grounds 3, 4, 5 and 6).
In his submission in respect of issue one, it is contended for the appellants that the infractions complained therein constitute a denial of the appellants their right to fair hearing. I want to, with utmost respect to my Lords, take us to the grounds of appeal, especially grounds 3 – 6

from which issue one is distilled. Grounds 3 and 4 complains against the ruling of the lower Court in which Exhibits A and B were admitted in evidence. Specifically, the complaint is against the evaluation of evidence adduced in the trial within trial. Grounds 5 and 6 complain against the procedure adopted in recording the extra – Judicial statements of the Appellants which were admitted in evidence as Exhibit A for the 2nd Appellant and Exhibit B for the 1st Appellant. The question I really pose to be answered is whether the totality of these complaints deal with the Appellants’ right to fair hearing given the fact that the Appellants’ complaints is not that they were not given ample opportunity to be heard before the extra judicial statements of the Appellants were admitted in evidence. It is important to appreciate the circumstances in which a party in a case can competently complain that his right to fair hearing was infringed. I wish to refer to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). All the incidences in which a party could be said to have been denied his right to fair hearing are listed in

the subsections.
Now, what connotes a denial of fair hearing was brought to bear in the case of T.A.O. Wilson & Anor. v. A.B. Oshin & Ors. (2000) LPELR– 3497(SC) thus:
“…not considering one of the many contentions of a party in a case cannot by itself constitute a denial of fair hearing. A denial of fair hearing connotes a refusal to consider the pertinent and relevant issues in the case essential to its determination. In such a situation a fair minded objective observer will come to the conclusion that the hearing of the case has not been fair to the person affected. The principle of adjudication fundamental to the administration of justice is that the Court is bound to consider every material aspect of a party’s case validly put before it. Hence, where the issue placed before the judge is one not relevant or crucial to the determination of the case before the Court, non-reference to it is not a denial of fair hearing. This is because having heard the Appellant present his case, the consideration of the relevance velnon of the point will be determined by the judgment (sic) deciding the case on the issues and facts

before him.” Per Karibi – Whyte, JSC (Pp. 28 – 29 paras F – C).

It is therefore evident that the Appellants’ complaints in Grounds 3, 4, 5 and 6 from which issue one is distilled has nothing to do with denial of fair hearing. Therefore, the Appellants’ argument is either intended to mislead the Court or is borne out of misconception of what denial of fair hearing entails.

The crux of the issue is what I now intend to consider. I will take first, the argument in relation to the procedure in which the extra-judicial statements of the Appellants were recorded. In point of facts, the Appellants claimed that their statements were recorded in two native languages and that the statements recorded in the two languages (fulfude and Hausa) were not tendered in evidence, and that the defence of the Appellants was prejudiced thereby. Counsel in the brief of argument refers this Court to page 21 lines 6 – 9 and page 27 lines 26 – 29 of the record of appeal. The evidence of PW1 and PW2 who recorded Exhibits A and B are not in the pages referred to above. They are found at page 18 in respect of PW1 – CPL Dawap

Bistu, and page 25, in respect of the evidence of PW2 (Sgt Peter Mato). Their evidence is to the effect that the statements of the Appellants, though given in Hausa language were recorded by them in English language, and thereafter they read it to them in Hausa language, and having understood, they thumb printed. The Police decided to tender only the English versions of the extra judicial statements of the Appellants (Exhibit A and Exhibit B) in evidence, even though they subsequently translated the statements into Hausa language, which they did not tender. It is therefore crucial that I decide whether in these circumstances, Exhibit “A” and “B” are admissible. Cases cited against the admissibility of Exhibits “A” and “B” by the Appellants include Zakwakwa vs. Queen (1960) SCNLR–36 at 37 – 38 paras G – A, Asuquo vs. The State (2016) NWLR (Pt. 1532) 309 at 329 paras D – F and Yahaya & Anor. vs. Dankwanbo & Ors. (2016) 7 NWLR (Pt. 1511) 284 at 317 paras A – D.
In the case of Asuquo Okon Asuquo vs. The State (2016) LPELR-40597 (SC), the apex Court held inter alia:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…it is a constitutional requirement that if an accused person does not understand English at all and he makes a statement it must be recorded in the language he speaks or understands and later translated into English. See Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Whereas in the present appeal, the Appellant was cautioned in English and he signed the caution before making his statement which was recorded in English, he cannot thereafter be heard to complain that the statement was not translated into Efik. See Queen vs. Zakwakwa of Yaro (1960) 1 NCC8, Nwali vs. State (1991) 3 NWLR (Pt. 182) 663. In the latter case where the Appellants’ statement was recorded in Ibo and translated to English Language, the Supreme Court held that since both versions (Ibo and English) were tendered in evidence, the Court of Appeal could rely on the English translation since the Appellant did not disown the statement in English as not being the correct version of what he said and was recorded in Ibo…” PER Aka’ahs, JSC (Pp. 15 – 16 para E – D).
What is clear from the pronouncement

of the Apex Court is that, the statement of an accused person does not become inadmissible because it was not recorded in the language spoken and understood by the accused provided that the accused was cautioned in English, the cautionary words read to him in the language he speaks and understands, and he signs, and thereafter he volunteers the statement which is recorded in English language, read over to him in the language he speaks and understands and he signs it as reflecting what he had said. In such a situation, the statement is tendered in evidence by the recorder who obviously also doubled as the interpreter. In the appeal before us, it is not the Appellants’ case that the statements are not theirs. NOT at all. They have not disowned the statement. Their contention is that they did not voluntarily make it, and this prompted a trial within trial which the lower Court ruled on. Even though the statements were later translated into Hausa Language, which were not tendered, to my mind the translation was unnecessary since the recorders doubled as interpreters, and duly read the statements they recorded in English Language to the Appellants in Hausa

Language which they speak and understand and they accepted it as their statements before they thumb printed.
In my respectful view, against this background, Exhibits “A” and “B” were rightly admitted in evidence by the lower Court. See further on this the case of Roseline Orjiakor vs. The State (2017) LPELR–42739 (CA) per Ogunwumiju, JCA Pp. 15 – 18, paras F-C).

The second point argued in issue one is in relation to the finding of the lower Court in the trial within trial. It is contended for the Appellants that the lower Court erroneously refused to give credit and due consideration to the evidence of the Appellants in the trial within trial. It is submitted that the allegations of torture as narrated by the Appellants were not specifically controverted/denied by the Respondent.
This issue was not responded to by the Respondent in its brief of argument. The presumption in law would be that it is conceded. However, the duty of an appellate Court is to review the proceedings on appeal. Therefore, the failure of the Respondent to reply to that point is not a bar to the Court scrutinizing the record of the lower

Court to decide the issue on merit.

Hearing in the trial within trial commenced on 15/5/12 with the testimony of PW1 – CPL Dawap Bistu (see page 20 of the record). He gave his evidence in proof of the voluntariness of the statement of the 2nd Appellant (then 2nd accused person). He told the Court that he applied no duress on him to give his statement. According to him, he made the 2nd Appellant comfortable, chatted with him, bought food for him and gave him water to drink. Under cross-examination by the 2nd Appellant’s Counsel, PW1 denied giving the Appellant food to influence him, but because he complained that he was hungry. No question was put to the witness (PW1) to suggest that the 2nd Appellant gave the statement as a result of torture. In his defence, the 2nd Appellant told the Court that he was promised food if he would admit that he committed the offence, and would be denied food if he did not admit committing the offence. That out of fear of death he admitted committing the offence and was given food and water. Subsequently he told the Court that after eating food he was taken out to the sun and was beaten and tortured, and a broom

stick driven into his penis. Under cross examination by the prosecuting Counsel, he turned round to state that he did not make any statement to the police. The 2nd Appellant’s evidence leaves me confused as to what happened – did he give the statement in order to be given food and water, or because he was tortured, or that he did not make the statement at all? In my view his evidence is not worthy to be accorded any credit and probative value.

In regard to the 1st Appellant, hearing in the trial within trial commenced on 19/12/13 – see page 26 of the record. Sgt. Peter Mato testified as PW1. He told the Court that after reading the words of caution to the 1st Appellant (who was then 1st accused person) he gave his statement voluntarily without threat, duress or brutality of any sort. That because the statement was confessional, he took the accused person and the statement to superior police office, ASP. Habu for attestation and the attestation form was accordingly filled. Sgt. Dawap Bistu formerly CPL, testified as PW2. He told the Court that he was present, as he too was recording the statement of the 2nd Appellant at that same time,

when the 1st Appellant’s statement was recorded. He told the Court that the 1st Appellant’s statement was recorded by Sgt. Peter Mato under free and fear (sic) atmosphere. That he was given food and made comfortable when he volunteered his statement.

Testifying in his defence, the 1st Appellant told the Court that the police pumped tear gas into his eyes and beat him up. That he was not told why he was beaten and that he did not thumb print any document.

Just like in the case of the 2nd Appellant, I do not know what to believe. Is it that the 1st Appellant did not give a statement but was merely forced to thumb print what the police had written for him? But again, how could he have been forced to volunteer a statement when he himself stated that the police did not tell him the reason for the beating? This witness in my view was tutored to retract his statement and to allege that it was not voluntarily made.

In one breadth the Appellants attempted to simply retract their statements and in another, attempted to allege involuntariness. Such a confusion could be avoided if they were telling the truth.

The simple conclusion I reach

in the face of all these is that the Appellants’ extra-judicial statements were voluntarily made. The lower Court was therefore on the right track in overruling them on their objections and admitting the statements in evidence. I so hold.
Issue one is therefore resolved against the Appellants and in favour of the Respondent.

Issue Two
Whether or not the Respondent had proved the case of the alleged offence against the Appellants beyond reasonable doubt (Distilled from Original Ground 1 and Additional Ground 2).
It is submitted for the Appellants that the evidence led by the Respondent is materially contradictory to warrant conviction and sentence. That in the face of these contradictions and conflicts in the prosecution’s evidence serious doubt is created as to the guilt of the Appellants and that the doubt should be resolved in favour of the Appellants; reliance is placed on the case of Bassey vs. The State (2012) 12 NWLR (Pt. 1314) 209 at 237, para D.

The Respondent submits that there is no such contradiction and points out that it is the duty of the Appellants not only to show that such contradictions exists but that

they are material, substantial and has led to a miscarriage of justice. Counsel relies on the case of John Agbo V. State (2007) 2 NCCF at 158 – 163 ratio II. That the Appellants have failed to discharge that duty. It is further submitted that the Respondent has proved its case by evidence of the witnesses called and by the confessional statements of the Appellants. That the Appellants have not proffered any defence to be considered by the Court.

(1986) 4 SC 194 at pp 219 – 220.

The Respondent in this appeal employed direct evidence of eye witnesses, and confessional statements to prove its case. In regard to the evidence of direct eye witness, the respondent places reliance on the evidence of PW3 and PW4 which the Appellants contend is contradictory and in conflict.

What are the ingredients of the offence for attempted armed robbery? For the prosecution to prove a charge of attempted armed robbery, the following ingredients must be proved:
i. That there was an attempt to rob by the accused, but he was stopped in the process or that he attempted to abet the commission of the offence.
ii. That the accused was armed or was in the company of any person who was armed.
iii. That the accused in the attempt did some act not of an ambiguous kind, directly towards the commission of the offence charged. See the case of Haruna Jimoh Ayomitan vs. The State (2018) LPELR–45700 (CA) Pp. 25 – 27 paras D – E.

The evidence upon which the Respondent urges upon this Court to find that it supports the Appellants’ confession is that of PW3 and

PW4 which the Appellants contend is contrary and inconsistent. It is therefore imperative to consider the evidence of these two witnesses in the light of the contending positions of the Appellants and the Respondent. PW3, Adamu Goni Zarami is the victim of the attempted robbery in which he testified that he lost his elder brother and father who came to save him. He told the Court that the incident happened at around 1 am and that there was no electricity in the area. Under cross – examination he further told the Court that he did not identify or recognize the culprits until after their arrest at the CID office at Damaturu. It is therefore obvious that this piece of evidence is not helpful in the identification of the appellants as the culprits who attacked his family in the night of the incident. The evidence of PW4 is not better. After testifying in chief that they arrested the appellants after their footprints led them to them (the appellants), under cross-examination; he stated that it was the Bulama that told them that “this is your thief.” That they met the accused persons (now “appellants”) in the house of the Bulama who

handed the appellants to them. This evidence is no doubt riddled with contradiction and cannot be relied upon to find that the appellants were the culprits who attempted armed robbery in the house of the PW1 in the night of the incident.

My Lords, this Court is left with the confessional statements of the appellants which went through the crucible of trial within trial before they were admitted in evidence as Exhibits “A” and “B”. In my consideration of issue 1 which amongst others, puts the ruling of the lower Court which overruled the objection to the admissibility of Exhibits “A” and “B” on ground of involuntariness in the front burner, I found against the appellants, the consequence of which is that Exhibits “A” and “B” are the appellants’ confession to the charge against them.
In paragraphs 3.2.6 at page 8 of the Respondent’s brief of argument, the Respondent’s Counsel submitted; inter alia;
“My Lords, the law is settled that a confession is by virtue of Section 28 of the Evidence Act, 2011 (as amended) (sic), 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.” See Hassan vs. The State (2001) 8 MJSC 105 at 108: The law is settled that a voluntary confession of guilt by a prisoner is sufficient to warrant conviction without corroborative evidence if it is direct, positive, duly made and satisfactorily proved. See Yesufu vs. The State (1976) 6 SC 167 at 173.”
This submission, in my respectful view represents the current State of the law. In the case ofAdamu Saliu vs. The State (2014) LPELR-22998 (SC), the Apex Court held:
“It is settled law that an accused can be validly convicted on his confessional statement alone” per Onnoghen JSC (P. 19, paras C) see also KOPA vs. State (1971) LPELR-1702 (SC). See also the case of Adio & Anor vs. State (1986) LPELR-183 (SC) where the Apex Court held: “A free and voluntary confession of guilt by an accused person if it is direct and positive and

satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction. And there cannot be such a conviction unless the trial Court is satisfied that the case has been proved beyond reasonable doubt.” PER Oputa JSC (P. 23 paras C – E).

I should point out that a confessional statement which has been subjected to the rigours of a trial within trial, as in the instant case removes any doubt as to its voluntariness, as opposed to one retracted on the ground that the accused person denied making. It in the latter case, it is usually advised that the Court finds evidence outside the confession, however slight that points to the commission of the offence by the accused person.

The obvious conclusion I reach on issue two is that the confessional statements of the appellants in capsulate proof of all the elements of attempted robbery, hence the issue is hereby resolved against the appellants and in favour of the Respondent.

The end result is that this appeal is devoid of merit, and is

accordingly dismissed. In consequence, the Judgment of the lower Court delivered on 23/6/2014 convicting the appellants and sentencing them to imprisonment for life is hereby affirmed.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in advance the lead Judgment of my learned brother Abundaga, JCA dismissing the Appeal.

My lord, you may wish to give a second look to the issue of the admissibility of the confessional statements of the Appellants in Court in view of the following decisions of the Supreme Court and this Court on the issue. We can discuss afterwards.

The evidence of the PW1 and PW2 (at pages 18 and 25 of the Record respectively), is that the statements of the Appellants, though given in Hausa, were recorded by them in English and thereafter read over to them in English. The prosecutor however only tendered the English versions of the statements in Court (Exhibits A and B) in evidence even though the English statements had been translated into Hausa. The question that has arisen is whether the statements were admissible in evidence.

The law is settled that where an interpreter has had to be used in the taking

down of the statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. The Supreme Court has held that such a statement will amount to hearsay and can only be confirmed by the interpreter who must testify as to the questions he put to the accused on behalf of the interviewer and the answers given to him by the accused person in the latter’s language which he interpreted to the interviewer in English language.
Nonetheless, where the person who complains that the interpreter of the statement of an accused person is different from the recorder and that the interpreter has not been called as a witness, he has the responsibility to give the name of the interpreter – Section 136(1) of the Evidence Act, 2011.
In the instant case, from the evidence of the PW1 and PW2 (the Police officers) through whom the statements, Exhibits A and B, were tendered and admitted in Court. They testified that the statements were made in Hausa language to an interpreter who then interpreted the statements to them and they recorded the statements into English language. This interpreter was

not called to testify. Exhibits A and B were therefore hearsay and inadmissible in evidence, unless their recorder as well as their interpreter were called to attest to the veracity of their recording and interpretation. Where a conviction is based solely on a confessional statement and both the police officer who recorded the statement and the interpreter (or translator) who interpreted it when the statement was obtained did not testify, the confessional statement is hearsay evidence and the accused is entitled to an acquittal. See also Dajo V State (2018) LPELR-45299(SC) 15-19, C-E, per Galinje, JSC; Ifaramoye V State (2017) LPELR-42031(SC) 65-66, C-D per Eko, JSC; Yahaya V State (2014) LPELR-24083(CA)22-23, G-F, per Mustapha, JCA; Rabe V FRN (2013) LPELR-20163(CA) 23, D-G, per Ogbuinya, JCA; Eyop V State (2012) LPELR-20210(CA) 62, A-D, per Garba, JCA.
This case is on all fours with the facts in FRN V Mohammed (2012) LPELR-7818(SC) 18-19, C-E, where Rhodes-Vivour, JSC held:
“The issue in this Appeal simply put is whether it is hearsay when an interpreter who interprets an alleged confessional statement to the police does not testify…

The police officer detailed or directed to obtain a statement from the accused person may not understand the language spoken by the accused person, and so the services of an interpreter is needed. The interpreter acts as interpreter between the police officer and the accused person. The interpreter understands the language spoken by the accused person and the English language. He speaks to the accused person in the accused person’s local dialect and tells the police officer in English exactly what the accused person said. The police officer records it in English and that is the statement of the accused person. Usually the statement is recorded in the local dialect with English translation and both documents are admissible in evidence as the statement of the accused person. Before these documents are admissible in evidence the police officer who recorded the statement and the interpreter must testify in Court. This is vital testimony. In Court the interpreter is expected to tell the Court the questions he asked the accused person on behalf of the police officer and the response given by the accused person. It is only when this is properly done that it can

be said that the truth of the statement has been established. The Court would have no difficulty concluding that the statement is a correct reproduction of what the accused person told the interpreter. When the purpose for tendering a statement is to establish the truth of its contents, and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in Court. The statement is hearsay and inadmissible if the interpreter does not testify in Court. See R. V Ogbuewu (1949) 12 WACA p.483; R, V Gidado 6 WACA p.60; R. V Sakwakwa (1960) FSC p.12; Nwaeze V State (1996) 2 NWLR (Pt. 428) 1.”
His lordship continues at pages 19-20, F-E of the Report:
“The question to be answered is what constitutes hearsay evidence. A witness is supposed to testify in Court on oath on what he knows personally. If the witness testifies on what he heard some other person say, his evidence is hearsay. Such evidence is to inform the Court of what he heard the other person say e.g. in cases of slander. If on the other hand his testimony is to establish the truth of an event in question or as

in this case to establish the truth of the contents of the appellants statement, it is hearsay and inadmissible evidence. Hearsay evidence is secondary evidence of an oral statement best described as second-hand evidence. What a witness says he heard from another person is unreliable for many reasons. For example he may not have understood the informant/interpreters, or he may say things that were never said. Such evidence remain hearsay evidence because it cannot be subject to cross-examination in the absence of the informant/interpreters.”

Another question is whether the issue of the prosecution’s failure to call the person(s) who interpreted the statements of the Appellants was raised at the trial Court or it is just being raised at this Court and the effect. In criminal cases however, all defences or evidence apparent on the processes filed before an appellate Court in favour of an appellant can be properly looked into and considered by the Court, even when the Appellant did not canvass them in his submissions – Annabi V State (2008) 7 NWLR (Pt. 13 NWLR (Pt. 1103) 179, 201, B-C per Onnoghen JSC (as he then was).

It is therefore for this reason and for the more detailed reasons contained in the lead Judgment that I too dismiss the Appeal. I abide by the consequential Orders made therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the Judgment of my learned brother, JAMES GAMBO ABUNDAGA, JCA. and I endorse in totality the reasoning and conclusion reached therein.

For the more detailed consideration in the lead Judgment, I also find this appeal devoid of merit and dismiss same. The Judgment of the Court below delivered on 23rd June, 2014 is hereby affirmed.

Appearances:

A. Sangei, Esq. For Appellant(s)

Ismaila, Esq. Chief State Counsel, MOJ Yobe State For Respondent(s)