YUSUF AKEEM v. THE STATE
(2014)LCN/7258(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of June, 2014
CA/AK/111C/2013
RATIO
WHETHER AN OBJECTION ON THE ISSUE OF LANGUAGE CAN BE RAISED ON APPEAL
As the language of the Court is English language there is also a presumption that the charge was read and explained to the appellant in English language and if the appellant did not understand, learned counsel representing him would have as well objected if the appellant himself did not object. But neither the appellant nor the counsel representing him objected. Where an accused person is represented by counsel and there was no objection on the issue of the language of the Court it would amount to a futile exercise to raise the issue on appeal. See Egwumi v. State (2013) 2 SCNJ 875. per MES SHEHU ABIRIYI, J.C.A.
WHEN THE DEFENCE OF ALIBI CAN BE RAISED
When an accused person raises the defence of alibi what he is saying is that when the offence of which he is charged was committed, he was somewhere else. The defence of alibi must be raised at the earliest opportunity by the accused person and this would be when he has an opportunity to make a statement to the police. It must be detailed on where he was on the date of the incident and who he was with. See Egwumi & State (Supra) per JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
YUSUF AKEEM Appellant(s)
AND
THE STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State delivered by D. I. Kolawole J. on 21/1/2013.
The Appellant was charged in an information that contains a lone count of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (special provisions) Act, cap. R. 11, Vol. 14 Laws of the Federation 2004. The particulars of the offence charged were that on the 2nd January, 2011 at Orita Obele Estate, Akure the Appellant robbed Oguntoyinbo Yemi of her jewelries and monies while armed with dangerous weapons.
The case for the prosecution is that apart from the jewelries and money the Appellant also robbed Mrs. Oguntoyinbo (PW2) and her daughter their hand sets. He (the appellant) also caused the daughter of PW2 to lead him and knocked on the door of their neighbor PW3 as a ploy to also rob PW3. The hand set of the PW2’s daughter was an ITEL brand. Some days after the robbery someone called a friend of PW2 which call gave the clue that the person who called had the hand set that was robbed from PW2’s daughter. The person who called was traced and the person turned out to be Odunola Motunrayo PW4. PW4 was arrested and she told the Police that it was the Appellant that gave her the phone.
The case of the Appellant was that he was at Abuja on the 2nd January, 2011 and he did not come back to Akure until the 13th January 2011, the day he was arrested. He was drinking in a drinking parlour when the police came to arrest those that were drinking there. Five people were arrested and taken to SARS Akure. The police told the five to bail themselves but the accused told the police that he had no money or anyone who can bail him. A young girl was brought to identify someone and the five arrested were put on line. When the four others had been bailed, the young girl was again brought and she now identified him.
Appellant conceded that PW4 was the young girl that was brought to identify him.
Learned trial judge relied essentially on the evidence of PW4 and the confessional statement of the Appellant Exhibit B even though retracted to convict the Appellant of the lesser offence of Robbery and sentenced him to 21 years imprisonment.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing seven (7) grounds of appeal before this court on 21/3/2013.
Appellant’s brief of argument dated 31/7/2013 was filed on 6/8/2013. Respondent’s brief of argument dated 17/2/2014 and filed on the same day was deemed filed on 17/2/2014.
Learned Counsel for the Appellant nominated three (3) issues for determination as follows:
1. Having regards to the circumstances of this case, whether the Appellant was validly arraigned before the lower court (Ground 1).
2. Whether the Appellant was given a fair trial having regards to the failure of the lower court to consider the defences available to the Appellant including the defence of alibi (Ground 4).
3. Whether there was credible evidence to link the Appellant to the commission of the crime (Grounds 2, 3 and 5).
Learned Counsel for the Respondent on the other hand formulated two (2) issues for determination as follows:
1. Whether the prosecution had discharged its burden of proof beyond reasonable doubt in respect of this matter to warrant the conviction of the Appellant by the trial court (Grounds 2, 3, 4, 5 and 6).
2. Whether there are procedural lapses in the trial and if so whether they could be resolved in favour of the (Appellant) (Grounds 1, 4 and 7).
On issue 1, Learned Counsel for the Appellant submitted that from the onset, the arraignment of the Appellant before the lower court on 13th June 2012 is flawed with procedural error and therefore no proceedings or judgment could stand on it. The plea of the Appellant, he said, was taken in contravention of the procedure laid down in Section 215 of the Criminal Procedure Law.
Counsel reproduced the provision of Section 215 of the CPL and submitted that the provision should be invoked in conjunction with Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He argued that in the proceeding of 13th June 2012, the learned trial judge recorded the arraignment of the Appellant in the following words:
“The charge was read to the accused and then explained to him by the court clerk and he pleaded not guilty to the lone charge” (page 12 of the Record).
Learned Counsel submitted that the procedure adopted by the trial judge in taking the plea of the Appellant falls short of the requirements of the law as spelt out in Section 215 of the CPL and 36 (6) (a) of the 1999 Constitution.
Learned Counsel referred to the cases of Adeniyi v. State (2001) 13 NWLR (Pt. 730) 375 and the decision of the Court of Appeal in Ayodele v. State (2011) 6 NWLR (Pt. 1243) 309 at 322.
He submitted that the Record in the instant case does not indicate the language with which the charge was read and explained to the Appellant. That, to worsen the situation, there is nothing in the Record which shows that the reading and explanation of the charge was done to the satisfaction of the court. Non-compliance with the said procedure is a fundamental vice which vitiates the entire proceedings of the lower court and renders its judgment null and void.
Learned Counsel submitted that the Supreme Court in Erekanure v. State (1993) 5 NWLR (Pt. 294) 385 at 392 – 393 while interpreting Section 215 of the Criminal Procedure Law and 33 (6) (a) of the 1979 Constitution, outlined the essential requirements of a valid arraignment thus:
“These requirements although familiar were not followed by the trial court. These requirements which have been spelt out in Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721/731 and 737 are:
1. The accused must be present in court unfettered, unless there is compelling reason to the contrary.
2. The charge must be read over to the accused in the language he understands.
3. The charge should be explained to the accused ‘to the satisfaction of the court’.
4. In the course of the explanation technical language must be avoided.
5. After requirements 1 to 4 have been satisfied the accused will then be called upon to ‘plead instantly’ to the charge.”
Counsel submitted that having adopted the above 5 requirements of a valid arraignment as previously laid down in Kajubo v. State, the Supreme Court in Erekanure v. State (Supra), held as follows:
“_______ there is nothing to show that the court fully complied with these requirements. The five requirements must be satisfied. They are mandatory. The best that could be seen to have been done was that the charge was read to the accused, but in what language? If as it has been shown that it was read, was it explained to him? No. there is nothing on record to show also that it was even read by the registrar or an officer of the court.”
Learned Counsel argued that even though the lower court in the instant appeal recorded that the court registrar read and explained the charge to the Appellant, there is nothing to show that the charge was understood by the Appellant to the satisfaction of the court.
He submitted that in the case of Erekanure v. State, the Supreme Court held that the arraignment was null, unconstitutional and a violation of fair trial when the trial court recorded the arraignment in the following words:
“Charge read to the accused. He pleads not guilty to the Law Court. Prosecution opens its case.”
He submitted that the incident in the Erekanure v. State case is not materially different from the instant appeal and urged us to nullify the Appellant’s arraignment before the trial court.
Learned Counsel for the Appellant submitted further that unlike Erekanure’s case, the Supreme Court in Dibie v. State (2007) 9 NWLR (Pt. 1038) page 30 declined to nullify the conviction of the Appellants in spite of the court’s own findings that Sections 215 of the Criminal Prosecution Law and 33 (6)(a) of the 1979 Constitution were not strictly complied with. He submitted that the facts of Dibie’s case do not apply to the facts of the present appeal for the following reasons.
1. The Appellant here is a trader who is not conversant with the acceptable use of the English language as customary with our courts.
2. The Appellant merely completed secondary education and did not advance further;
3. The Appellants in Dibie’s case were Polytechnic students.
4. The charge was read and explained in English to the Appellants in Dibie’s case but this is not the case in the instant appeal, at least there is nothing on the Record to establish that;
5. The Appellant here left secondary school more than 20 years ago.
6. The purported confessional statement heavily relied on by the trial court to convict the Appellant was not written by the Appellant unlike Dibie’s case the Appellants wrote their statements in English. In the instant appeal, the Appellant’s statement was written for him by PW1 who thereafter interpreted it to the Appellant (see the Statement admitted as Exhibit B on pages 10 – 11 of the Record).
Learned Counsel submitted further that the ratio in Dibie v. State (Supra) is inapplicable to this appeal and as such urged us to follow the decision of the Supreme Court in Erekanure v. State (supra). This is more so, said Counsel, when the Record of the trial court in Dibie’s case showed that there was substantial compliance with the requirements for a valid arraignment. That, unlike the instant appeal, in Dibie’s v. State (supra), the lower court recorded the arraignment in these words:
Court: Each of the 2 counts is read out in English language to the accused persons to the satisfaction of the court_____”.
He submitted that the Appellant in the instant appeal is not a person who engages in daily or frequent use of English language as the case in Dibie’s case and the only way to safeguard his constitutional right to fair trial in the circumstance is to invalidate his arraignment before the lower court. Based on the foregoing, Appellant’s Counsel urged us to nullify the arraignment of the Appellant.
The response of the Learned Counsel to the Respondent on Appellant’s issue 1 is contained in the treatment of the Respondent’s issue 2 from para. 7.8 thereof. He submitted that the lower court strictly complied with the mandatory requirements of Section 215 of the Criminal Procedure Law and 36 (6) of the 1999 Constitution. That, the cases of Erekanure v. State (1993) 5 NWLR (Pt. 284) 385 at 392 – 393 and Kajubo v. State (1988) 1 NWLR (Pt. 73) 721/731 and 737 are completely distinguishable from the case at hand, that the Appellant’s argument is of no moment as there was no miscarriage of justice.
He argued that the subsequent decision of the Supreme Court in the case of Dibie v. State (2008) 6 ACLR 307 – 335 is apt and completely applies to the facts of this case for the following reasons:
1. The Appellant completed his secondary education and therefore understands the English language. While it is conceded that the Appellants in DIBIE’S case were polytechnic students, the appellant made his extrajudicial statement in English Language, and also gave evidence for himself in English Language.
2. The Appellant never referred to himself as a trader. In his evidence before the lower court rather as a construction worker. He only stated he was a trader in his extra-judicial statement.
The simple question to be asked, according to Counsel is why would the Appellant in one breath admit he is a trader who is not conversant with the acceptable use of the English Language as customary with our courts and in another breath deny that the same statement was not written by the Appellant?
Learned Counsel quoted copiously from the judgments of the various justices of the Supreme Court in the case of Dibie v. State (supra) and further relied on the case of Effiom v. State (2003) 3 ACLR 192 at 132 and concluded that there are no procedural lapses that could be resolved in favour of the Appellant.
It seems to me as a convenient starting point on issue 1 to compare the recorded words of arraignment that were in issue in the cases of Erekanure v. State (supra) and Dibie v. State with the words of arraignment in the instant appeal.
In Erekanure v. State (Supra) the recorded arraignments were in these words:
“Charge read to the accused. He pleads not guilty to the law court. Prosecution opens its case”.
In the case of Dibie v. State (Supra) the court recorded in these words:
“Court: Each of the 2 counts is read out in English language to the accused persons to the satisfaction of the court”.
In the instant appeal, the words of arraignment now been contested are as follows:
“The charge was read to the accused and then explained to him by the court clerk and he pleaded not guilty to the lone charge”.
Obviously in the Erekanure’s case as in the instant case the ‘language’ used was not recorded. However in both the Erekanure’s case and the Dibie’s case the explanation of the charge was missing. In addition, in Erekanure’s case the accused was said to have “pleaded not guilty to the Law court” rather than “not guilty to the charge”.
Learned Counsel for the Appellant has argued that in the instant case, the ‘language’ used was omitted in the recording and that the statutory ritual of “to the satisfaction of the court” was equally omitted. None of the parties to this appeal would dispute the fact that English language is the language of the court. Neither would any deny the fact that the Appellant in fact gave evidence in defence in English Language when in fact he had the option of giving evidence in his local language or the Yoruba Language.
In this circumstance I am inclined to believe that there was strict compliance with the requirements laid down by the Supreme Court in the cases of Sunday Kajubo v. State (supra) and the case of Dibie v. State (supra). In the instant case, it would be recalled that the rule in relation to language as stated in the cases of Kajubo v. State (supra) and Erekanure v. State (supra) is that “2. The charge must be read over to the accused in the language he understands”.
This view is further supported by the various opinions expressed by the Supreme Court in the case of Golden Dibie & 2 Ors v. The State (2007) 9 NWLR (Pt. 1038) 30 which is later in time to their previous decisions in Erekanure v. State (supra) and Kajubo v. State (supra).
For example at page 47 of the Law Report, Katsina-Alu, JSC who delivered the lead judgment in the case of Dibie & 2 Ors v. The State referred to his earlier decision in Adeniyi v. The State (2001) 13 NWLR (Pt. 730) 375 and re-stated as follows:
“_____ Thirdly, the appellant understood English. This is evident in the record. He made his plea and also gave his evidence in English. The omission by the learned trial judge to state that he was satisfied that the Appellant understood the charge is of no moment. Where the accused understands the language of the court – English, it becomes unnecessary to record that fact. It is however, good practice to ask the accused the question whether he understood the charge so read and explained and to record the answer. But the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. I am therefore, in agreement with the respondent that the Appellant was properly arraigned”.
Tobi, JSC was more emphatic and rendered a radical view so to say of the provision of Section 215 of the CPA (CPL) in the Dibie’s case at page 54 of the Law Report inter alia as follows:
“If he does not (understand English) it will not be wrong to presume that he understood what was said to him. I have not the slightest doubt in my mind that the Appellants, Polytechnic students, perfectly understood the charge and that was why they pleaded not guilty. I would like to think that Section 215 is more for accused persons who are not literate in the language of the court. I am not saying that Section 215 will not apply to persons who are literate in the language of the court. I expect such a person not to plead if he does not understand the charge and ask for an explanation”.
Both Akintan and Ogbuagu J.J.S.C. in their different contributions to the lead judgment of Katsina-Alu, JSC in the Dibie’s case recognized that the language of the court is English language and that the arraignment could not be vitiated knowing fully well that the accused persons understood English language merely because in that case it was not recorded that each of the Appellants understood the charge before the plea was recorded. The learned jurist had this to say at page 58 of the Report:
“The charge read out is in English language in which it was written. Each of the accused persons spoke English language throughout the trial and their statements tendered at the trial were written in English language. It must be mentioned that the court notes are not expected to be a verbatim report of all that was said or took place at a trial. It is meant to be an account of what transpired at the hearing. While it is necessary that it should not leave out the essential matters in the particular case, a trial will definitely not be set aside only on account of the form a particular account is recorded as in the instant case._____”
In the instant case, I do not think that the Learned Counsel for the Appellant could claim that the arraignment of the Appellant was not in conformity with the provision of Section 36 (6) (a) of the 1999 Constitution and Section 215 of the CPL when in fact the Appellant spoke English language throughout his defence at the trial. In any event, the Appellant and his Learned Counsel have not shown what prejudice, embarrassment or miscarriage of justice the Appellant suffered because of the alleged non-compliance.
Issue 1 is resolved against the Appellant.
On issue 2, Learned Counsel for the Appellant submitted that it is trite that the trial court has a duty to consider all the defences open to an accused person in the course of his trial. That, in the instant case, the Appellant stated in his defence that he was in Abuja as at 2nd January 2011 when the incident of the armed robbery allegedly took place at Orita Obele Estate, Akure.
He submitted that other than recounting the evidence of the Appellant in the manner in which the trial court did at page 46 of the Record, the trial court failed to evaluate this piece of evidence in its judgment.
Counsel referred to the cases of Oguntolu v. State (1996) 2 NWLR (Pt. 432) 503 at 509, Attah v. State (2010) 10 NWLR (Pt. 1201) 190 at 221, Udofia v. State (1984) 12 SC 139 and Ojo v. State (1972) 12 SC. 47 and submitted that the failure of the lower court to consider the merit or otherwise of the defence of alibi raised at the trial by the Appellant constitutes a denial of fair trial to him.
On issue 2, Learned Counsel for the Respondent submitted that there are no procedural lapses in the conduct of the trial of the Appellant. That the issue of alibi raised by the Appellant is an after-thought or fanciful story contrived by the Appellant in a desperate bid to save himself from the clutches of justice.
He submitted that the defence of alibi was raised by the accused person in his oral evidence for the first time in court and that the defence is filled with contradictions shown to amount to a substantial disparagement of what was said making it unsafe to rely on. He referred to the case of Uwaekweghinya v. State (2005) 4 ACLR page 4.
Learned counsel submitted that the oral evidence of the Appellant contradicts Exhibit B, his extra judicial statement, which has been corroborated by PW1 and PW4. That in his evidence in court, the Appellant testified that he was arrested at the old garage where passengers board buses going to Abuja as he just returned from a trip where he was found drinking till about 10 – 11 am. PW1 and PW4 however testified that the Appellant was arrested at a drinking parlour at Araromi owned by the Appellant’s sister. That this piece of evidence is also corroborated by Exhibit B.
Respondent Counsel submitted further that where an accused person leaves unchallenged and uncontroverted cogent, compelling and damaging evidence placed before the court, the trial court may have no option except to exercise its liberty to accept and treat the evidence as credible. He referred to Okeke v. State (2001) 2 NWLR (Pt. 697) page 397. The defence, Counsel said, failed to challenge the testimony of PW1 and PW4 as to the where about of the Appellant during cross examinations and where there is failure to challenge a testimony under cross examination, the court is not only entitled to act on or accept such evidence but is in fact bound to do so provided that such evidence by its very nature is not incredible.
Counsel added that where an adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence.
Learned Counsel referred to the case of Ofolette v. State (2009) 8 ACLR page 369 and urged us to hold that the Appellant’s where about was sufficiently proved to be at the scene of crime and the defence of alibi is a mere after thought. Respondent’s Counsel further submitted that the principle of law is that the mere raising of such a defence, the facts which are exclusively within the knowledge of the accused and perhaps his witness(es) without adducing evidence in support thereof would not be tantamount to a proper defence of alibi. That, on the other hand, where the prosecution adduces cogent evidence of the physical presence of the accused at the locus criminis, it is relieved of the burden of calling any further evidence to destroy the alibi raised.
He referred to the cases of Omotola & Ors v. State (2009) 8 ACLR page 78, Adedeji v. State (1971) 1 ALL NLR page 75.
He submitted that the Appellant in this case did not call any witness to prove his alibi since the facts of his alibi are exclusively within his knowledge and thus do not amount to a proper alibi. Learned Counsel for the Respondent submitted finally on this score that Exhibit B which is the Appellant’s extra judicial statement has no iota of the defence of alibi but rather corroborates the oral evidence of PW1 and PW4 as to the locus criminis and urged us to so hold.
In the instant case, the only defence available and or raised by the Appellant is the defence of alibi.
Unfortunately, it could not be said that the Appellant who raised the defence of alibi for the first time during his trial properly raised the defence of alibi.
In the case of Abubakar Ibrahim v. The State (1991) 4 NWLR (Pt. 186) 399 at 416 Belgore, JSC (as he then was) who read the lead judgment of the Supreme Court said inter alia
“______ it is not enough to boldly allege the accused was somewhere else without specifically giving the address of that place, the person or persons he was with at that other place and the time he was at that place. If these particulars as to the whereabouts of the accused are not given the prosecution would not have a lead as to what to investigate in the alibi. What this connotes is that the alibi to be unequivocal must be complete as to the time, the place and possibly those persons at the place who could help the investigation by the prosecution as to the authenticity of the alibi. Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Salami v. State (1988) 3 NWLR (Pt. 85) 670, Nwabueze v. State (1988) 4 NWLR (Pt. 86), Udo Akpan v. State (1986) 3 NWLR (Pt. 27) 258”.
The Learned jurist continued:
“It may be regarded as the duty of the accused, but it is the only burden on him to give his alibi and give it clearly so as to help the investigation. It is possible in some cases for the accused to refuse giving voluntary statement to the police before trial, in which case he will not then raise the alibi. But if at the trial, an accused person who never raised an alibi when making his statement to the police, on oath in his defence raised the issue of his not being at locus criminis at the time the offence he is alleged to have committed took place raises a new issue entirely from alibi. For alibi is a defence raised before trial for police to investigate so as to decide its veracity; but once before the court on trial, the accused person who raises a defence of his being elsewhere at the time the offence was being committed, has made an assertion he must prove”.
In other words, for the defence of alibi to be property raised, it must be raised at the earliest opportunity, when an accused person is confronted by the police with the commission of an offence so that the police will be in a position to check the alibi, otherwise such a plea of alibi could be disregarded.
In the instant case, the Appellant raised the defence of alibi for the first time in his evidence at the trial court. He did not raise it at the earliest opportunity to the police. There was therefore no proper plea of the alibi by the Appellant to require any consideration by the trial court.
See Gachi v. State (1965) NMLR 333, Ntam v. State (1988) NMLR 86 and Sampson Ebenechi & 1 Or v. The State (2009) 6 NWLR (Pt. 1138) 431 at 444.
I also do agree with the Learned Counsel for the Respondent in the instant case that Exhibit B the Appellant’s extra judicial statement has no iota of evidence of alibi but rather corroborates the oral evidence of PW1 and PW4 to fix the Appellant at the locus criminis.
The law is that once it is found as a fact by the court that the evidence of the prosecution positively, unequivocally and irresistibly points to the guilt of an accused as in the instant case, the defence of alibi becomes of no moment.
See Ebenechi & 1 Or v. The State (supra) at page 448 (Ogbuagu, JSC)
In Omotola & Ors v. State (2009) 8 ACLR at 78 the court held that
“_______ if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence”.
In the instant case, it is not only the case that the Appellant did not properly raise a defence of alibi as he raised it for the first time at trial but it is also the case that Exhibit B and the evidence of PW1 and PW4 overwhelmingly contradicts, dispels and disposes of any possible defence of alibi by the Appellant.
Issue 2 is resolved against the Appellant.
On issue 3, Learned Counsel for the Appellant submitted that the prosecution failed to adduce credible evidence to link the Appellant with the commission of the said armed robbery which took place on January 2nd, 2011 at Orita Obele Estate, Akure. That, none of the victims of the said armed robbery incident who were called by the prosecution as PW2 and PW3 gave credible evidence connecting the Appellant with the crime. That the only evidence which the trial judge relied on to come to the conclusion that it was the Appellant that committed the alleged crime was the testimony of PW4 and the extra-judicial statement (Exhibit B) purportedly made by the Appellant.
Learned Counsel contended that the said Exhibit B is a document that the lower court ought not to have admitted in the first place and he urged us to expunge Exhibit B.
He submitted that a critical examination of the said Exhibit B as found on pages 10-11 of the Record would reveal that the document was signed by the PW1 as the interpreter of the said statement of the Appellant when he took same at the police station. Counsel noted that PW1 gave evidence to the effect that he took the statement (Exhibit B) from the Appellant but without more. Whereas it was the interpreted version that was tendered in court without evidence as to the questions he put to the Appellant and the latter’s answers. He referred to the case of R. v. Gidado 6 WACA 60.
He submitted that PW1 has a duty to prove before the lower court that it was the same statement which he took either in English or in a language other than English that he tendered in court. But, that PW1 in his evidence in Chief merely said:
“At our office we cautioned and charged the accused in English language and he made his statement to me in English without him been forced or even motivated. I recorded the statement, I read it over to him after it was recorded. He agreed that it was correct. He signed and I counter signed as the recorder”.
Learned Counsel submitted that this is not enough as he has to read over and interpret the same document, (that is Exhibit B) as he claimed to have done on the face of Exhibit B at the police station, in open court to the Appellant in order to make the document admissible. The failure of the PW1 to do this at the lower court robs the document of its character as legal evidence and therefore made it inadmissible.
On this point, Learned Counsel referred to the case of Olalekan v. State (2002) FWLR (Pt. 91) 1605 where the Supreme Court per Ogundare, JSC of blessed memory) at page 1623 remarked as follows:
“It is not enough, in my respectful view that the interpreter is called to testify that he acted as interpreter between the accused and the police interviewer, he 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 own language and which he interpreted to the interviewer in English Language”.
Counsel submitted that the point being canvassed here is that even though, in the instant appeal, PW1 was the same person who acted as the recorder and interpreter to the Appellant, he has a duty to demonstrate this dual capacity openly in court as well.
He submitted that PW1 failed to supply in his evidence in court the language in which he took the statement (Exhibit B) from the Appellant and as such he has left a huge gap in his evidence which this Honourable court is not in a position to fill. He urged us to expunge Exhibit B from the record.
Learned Counsel further relied on the cases of Alimi v. Obawole (1998) 6 NWLR (Pt. 555) 591 at 607, Olukade v. Alade (1976) 2 SC 183, Kale v. Coker (1982) 12 SC 252 at 257 and Peter Onwumelu v. Ezeani Duru & Ors (1997) 10 NWLR (Pt. 525) 377 for the proposition that when inadmissible evidence is inadvertently admitted, the appeal court will not hesitate to expunge the evidence (documentary or otherwise) from the record of the court.
Learned Counsel submitted further that the trial court, in relying on the said Exhibit B, to determine whether it was the Appellant who committed the alleged crime or not, held thus:
“In view of this, I have no doubt in my (sic) that it was the accused who attacked PW2 and her daughter in her house in the morning hours of the 2nd January, 2011 at the Orita-Obele Estate, Akure. Exhibit B, the confessional statement of the accused is very positive as to this fact” (pages 48 – 49 of the Record).
He contended that if the said Exhibit B is expunged, being a piece of evidence that ought not to have been admitted, the only seeming evidence connecting the Appellant to the crime will be the testimony of PW4. He submitted that the testimony of PW4 without more, is grossly deficient to prove that it was the Appellant that perpetrated the crime, given the fact that the said PW4 was not present at the scene of crime.
Learned Counsel submitted that the portion of the PW4’s testimony heavily relied upon by the lower court to decide that it was the Appellant that committed the crime is captured in the words of the trial judge as follow:
“The evidence of PW4 is very strong and it decisively linked the accused to the robbery as the ITEL handset robbed during the robbery was found with PW4 some few days after the robbery and she told the court that it was the accused that gave it to her some days earlier. The accused has not shown how he got the ITEL hand set. He merely set up the defence that he knew nothing about the hand set and that he was a victim of the evil design of PW4 and the police. I am unable to buy this” (page 49 of the Record).
Learned Counsel argued that this piece of evidence automatically raises a number of questions: did the PW4 claim that the Appellant told her that he stole the ITEL handset, even if it is conceded that it was the Appellant that gave it to her? Is the lower court right to expect the Appellant to explain how he got the ITEL handset having denied knowing anything about it? Is it safe in the circumstance to uphold the conviction and sentence of the Appellant where Exhibit B is found to be inadmissible and expungeable?.
He answered that it is unsafe and unjust to rely on the evidence of PW4 to conclude that it was the Appellant that committed the alleged offence.
Finally, Learned Counsel submitted that the provision of Section 251 (1) of the Evidence Act dealing with the effect of wrongful admission of evidence does not apply in the circumstance and urged us to nullify and set aside the conviction and sentence of the Appellant.
Learned Counsel for the Respondent reacted to Appellant’s issue 3 in the treatment of the Respondent’s issue 2.
He submitted that enough evidence was led at the trial court to show that there was a robbery incident which took place at 27, Orita Obele Estate Akure in the house of PW2. That PW2 who was a victim of the robbery incident sequentially and graphically narrated in the trial court how the accused person came to her house and dispossessed her of her money and customer chins. Equally worthy of note, said Counsel is that the robbery incident was reported at the Okuta Elerinla Police Station Akure and later at the special Anti Robbery Section, Akure. Thus, it was not in dispute that there was a robbery and especially as PW1 the IPO at SARS also corroborated this fact in his evidence in Chief.
On Exhibit B, Counsel submitted that the voluntary confessional statement of the Appellant was sufficiently corroborated by the oral evidence of PW2.
That, the said Exhibit B was tendered and admitted not withstanding its retraction. That, it thus became part of the evidence for the evidence for the prosecution.
On this, Counsel referred to the cases of State v. Itule (1961) 1 All NLR 402, Ntaba v. State (1972) 4 SC 1 and Princewill v. State (1994) 7-8 SC (Pt. 11) 226 at 240.
Learned Counsel submitted that the evidence of PW3 that the robber was holding a sword and that he could see this because the robber attempted entering his house while he was at his window exchanging words with the robber was corroborated by Exhibit B where the Appellant stated thus:
“_____ I carried one of her daughter to the next neighbor room and her to knock the owner said I should enter that he have saw me, that he is strong more than me, that was the reason I left the place____”.
Counsel submitted first, that since this statement does not affirm the opposite of PW3’s oral evidence, it is neither contradictory nor prejudicial to the prosecution’s case. Secondly, that since the offence of armed robbery does not legally require corroboration a court can act on the evidence of PW2 – PW3 to the effect that this robbery was armed robbery as established by Exhibit B, and PW3’s oral evidence before the trial court.
He referred to the cases of Ugwumba v. The State (1993) 5 NWLR (Pt. 296) 660 at 674, Akalezi v. The State (1993) 3 NWLR (Pt. 273) 1 at 13.
Learned Counsel submitted further that Exhibit B is a damning exposition of the active participation of the Appellant in the commission of the crime as sufficiently corroborated by the oral evidence of PW1, PW2, PW3 and PW4 as well as Exhibit A. Counsel referred to the excerpt of Exhibit B, the extra judicial statement of the Appellant on pages 21 – 22 of the Record of Appeal thus:
“More so, the 2nd of January 2011 in the midnight, I went to Orita-Obele Estate, on getting there ______ I left to another distance house to robbed a woman, I threaten her that my gang have surround the house she fear and opened door I demanded for her money she said she is a window she didn’t have money she gave me N2,000 I requested for her had set she gave me one L.G. handset and her daughter own one airtel handset, I carried one of her daughter to the next neighbor room and ask her to knock”.
He submitted that the above is an extract of the Appellant’s confessional statement. And, that since Exhibit B above has been sufficiently corroborated by Exhibit A and the oral evidence of PW2, PW3 and PW4, it is admissible against the Appellant to establish active participation in the commission of the crime. He referred to the case of Sule v. State (2009) 85 CM 177 at page 1849 and urged us to so hold.
Learned Counsel submitted that the oral evidence of PW4 again corroborated Exhibit B. That PW4 identified the Appellant as the man who gave her the airtel phone which had some numbers on it and which she dialed out of swimsuit thus leading to her arrest by PW3 and the police and subsequently to the arrest of the Appellant. That Exhibit B reproduced on page 11 Lines 12-25 of the Record of appeal reads thus:
“Truly I gave airtel handset to a girl who was arrested by the police I robbed somebody to collect the handset which link my secret, after the third day I returned from the operation, I met the girl at the market where she was purchasing brazier, I ask her to help me select some for my wife which she did when I paid and I also bought some for her at that process, I work her and she agree and took me to their shop also a took her to my Aunty shop at Araromi Street Akure to introduce her to my Aunty Joy, _________”.
Also, said Counsel, the oral evidence of PW2 also corroborated Exhibit B that PW2 in her oral evidence in the trial court testified that the robber demanded to know where the PW2’s late husband was from and when she told him that he was from Oba-Akoko, he exclaimed “Oluwa o” meaning “O my God” apparently because the Appellant knew him. That corroboratively, an excerpt of Exhibit B reproduced on page 10 reads as follows:
“That I am a native of Oba-Akoko in Ondo State”.
He submitted that the positive and non-contradictory evidence of PW1, PW2, PW3 and PW4 is adequate to establish the active involvement of the Appellant in the commission of the crime. He referred us to the case of Usufu v. The State (2007) 3 NLR (Pt. 1020) page 94 and urged us to so hold.
The main point raised by the Learned Counsel for the Appellant in his issue 3 is that the Appellant’s confessional statement Exhibit B was inadmissible and if expunged by this Honourable court, what would be left in substance of the prosecution’s case is the evidence of PW4 which he (Counsel) regards as unreliable.
I think the two related points made by the Learned Counsel for the Appellant are misconceived. In the first place, Appellant’s Counsel based his supposed inadmissibility of Exhibit B on the premise that PW1 who took the statement Exhibit B, signed a portion of Exhibit B as “interpreter” but failed to give evidence on the questions he put to the Appellant and in what language, and the latter’s answers.
By the above, Learned Counsel for the Appellant argued relying on the decision of the Supreme Court in Olayinka v. State (2002) FWLR (Pt. 91) 1605 that more details of the interpretation are required of PW1 to make the Appellant’s statement Exhibit B admissible.
With due respect to the Learned Counsel for the Appellant, the facts and circumstances of the present case are different and widely distinguishable from the facts in the case of Olayinka v. State (supra).
First, it must be recalled that it was not Exhibit B that brought in the oral evidence of PW1 rather it was the oral evidence of PW1 that brought in the admissibility of Exhibit B. Therefore, though PW1 signed a portion of Exhibit B as interpreter there was nothing either on the face of Exhibit B or in the oral evidence of PW1 that ushered in Exhibit B to suggest that the PW1 ever interpreted the content of Exhibit B from one language to the other language.
In his oral evidence contained at page 13 of the Record PW1 witnessed inter alia as follows:
“At our office we cautioned and charged the accused in English language and he made his statement to me in English without him been forced or been motivated. I recorded the statement, I read it over to him after it was recorded. He agreed that it was correct. He signed and I counter signed as the recorder. The statement was confessional and because of this, I took the accused and the statement before my superior, Assistant Superintendent of Police Godwin Agbegbe 2 1/c at SARS, Akure for the attestation of the statement. The attestation was done. The A. S. P. Agbegbe read over the statement I got from the accused to him and the accused admitted his correctness by signing it. I signed as a witness and A.S.P. Agbegbe also signed ______”.
A fundamental difference between the case of Olayinka v. State (supra) relied upon by the Learned Counsel for the Appellant on this score is that the IPO (the PW3) in the case of Olayinka v. State (supra) testified as interpreter; the PW1 in the instant case testified only as a recorder of the statement made by the Appellant.
Meanwhile, Exhibit B was tendered and admitted without objection by the defence.
It is my considered opinion that the learned trial judge was perfectly right to have admitted and acted on Exhibit B as legal evidence.
Furthermore, and as pointed out by the Learned Counsel for the Respondent the Oral evidence of PW2, PW3 and PW4 were corroborated by Exhibit B. Therefore, the learned trial judge was right when he held at pages 48 – 49 of the Record first that:
“The evidence of PW2 that the robber exclaimed when he saw the picture of her late husband who was from Oba-Akoko apparently because he knew him was confirmed in Exhibit B when the accused claimed to have come from Oba-Akoko. His evidence in court that he came from Ikare-Akoko is another ruse to confuse the court. There is evidence from PW1 and PW2 that the accused took the police to some Hausa men he sold the robbed properties to but the Hausa men denied having any dealings with the accused.
In Exhibit B the accused conceded that he sold some of the robbed items to some Hausa men. After a thorough appreciation of the case for the prosecution, I have no doubt in my mind that Exhibit B was truly made by the accused and it was fully corroborated by other evidence led in this case”.
Secondly that:
“In view of this, I have no doubt in my (sic) that it was the accused who attacked PW2 and her daughter in her house in the morning hours of the 2nd January, 2011 at the Orita Obele Estate Akure. Exhibit B, the confessional statement of the accused is very positive as to this fact. The evidence of PW4 is very strong and it decisively linked the accused to the robbery as the ITEL handset robbed during the robbery was found with PW4 some few days after the robbery and she told the court that it was the accused that gave it to her some days earlier. The accused has not shown how he got the ITEL hand set. He merely set up the defence that he knew nothing about the hand set and that he was a victim of the evil design of PW4 and the police. I am unable to buy this.”
Still on this third issue, I agree with the Learned Counsel for the Respondent as a matter of law that Exhibit B as the voluntary confessional statement of the Appellant notwithstanding its retraction became part of the evidence for the prosecution.
See: State v. Agarigaga Itule (1961) 1 All NLR 402, Ntaba v. State (1972) 4 SC 1 and Princewill v. State (1994) 7 – 8 SC (Pt. 11) 226 at 240.
From the foregoing, I hold in relation to Appellant’s issue 3 that there was credible evidence to link the Appellant to the commission of the crime.
Issue 3 is also resolved against the Appellant.
The three (3) issues in this appeal are resolved against the Appellant. The appeal lacks merit and it is accordingly dismissed.
The conviction and sentence of the Appellant for the offence of Robbery by D. I. Kolawole J. in charge No. AK/22C/2011 on 21/1/2013 is hereby affirmed.
MOHAMMED A. DANJUMA, J.C.A.: I have before now been availed the benefit of the lead Judgment in this appeal.
My Lord, Owoade, J.C.A. has succinctly set out the respective cases of both sides in this appeal, thus making the repetition thereof, unnecessary. The crucial and determinant issues in this appeal starting from the question of the propriety of the arraignment of the Appellant at the trial court to the question whether his guilt had been proved beyond reasonable doubt had been adequately treated by My Lord Mojeed Adekunle Owoade in his Lead Judgment.
I agree with the conclusion reached on all the issues. The provisions of Section 36 (6) (a) of the 1999 Constitution and in particular S. 215 of the Criminal Procedure Law applicable to Ondo State, are not intended to create an escape route to an accused who has been proved to understand clearly the substance of the charge against him and to have accordingly elected to plead thereto.
The Appellant, herein spoke in English Language and to a Police investigator who understood English language and so recorded the statement made in English in that same language.
I, therefore, do not see the necessity for a reading and explanation to the accused/Appellant as sought.
The Appellant’s confessional statement (Exhibit B) was clear and unambiguous and more so that it was corroborated by the evidence of PW4 which effectively rebutted the evidence of alibi thrown up at the trial unsatisfactorily as it was not raised at the earliest opportunity at the time of making his statement. It was an afterthought and was rightly not considered at the trial court.
The evidence of PW2, PW3 and PW4 clearly corroborated the confessional statement in Exhibit ‘B’ that was tendered without objection. The law is settled that a conviction may be based on a confession once proved to have been made voluntarily.
The graphic narration of the role and acts of the Appellant in a robbery operation, the victims of which testified to in the like manner and the recovery of Exhibit ‘A’. An Itel phone from PW4 who confirmed what the Appellant testified to in Exhibit ‘B’ no doubt is such that the trial court rightly convicted upon the said confessional statement.
In BRIGHT v. THE STATE (2012) 1 SC (Pt. II), 47 @ 71 Ngwuta, JSC made it clear that a graphic narration of the acts in the pursuit of the crime charged can only be given by a participant in the act of horror and was a truthful account or disclosure of a participant in the crime charged.
This is what I see in Exhibit ‘B’.
Even without more, a conviction could be based on Exhibit ‘B’, as long as the court is satisfied of its truth and veracity. See Joseph Idowu v. The State (2000) 12 NWLR (Pt. 680) @ page 48. The retraction of the said statement was immaterial. See NWADALA EDAMINE v. THE STATE (1996) 3 NWLR (Pt. 438) 530 @ 537; GANIYU GBADAMOSI v. THE STATE (1991) 6 NWLR (Pt. 196) 182 and 202.
It was too late in the day to recoil and resile. Justice can only be done if the substance of a matter is examined as reliance on technicalities leads to injustice. See The State v. Gwonto and others CAC 354 @ 375 per Eso, JSC.
In Stephen v. The State; Igabele v. The State; Oyakhire v. The State. 3 criminal Appeal cases 295 the courts have been enjoined not to rack up a defence, where non exists on the evidence led or from the record.
The Appellant, who in his evidence said “this is not the statement I made to the police”, did not lead evidence as to the statement he made.
It is for these and the more detailed reasoning of His Lordship, My Lord, Owoade, JCA that I, concur that this appeal should fail and the lower Court’s Judgment be confirmed. Appeal dismissed.
I must observe, however, that the Appellant no doubt, was lucky to have escaped a conviction for Armed robbery punishable with death as, the possession of a sword and assault by torch flashing on the face were grave acts of possession of offensive weapon and assault. There been, no Cross-Appeal, so be it.
JAMES SHEHU ABIRIYI, J.C.A.: It is trite law that where the accused does not understand the language used in the trial, it is his duty or the counsel’s duty to notify the Court at the earliest opportunity that he does not understand the language used at the trial. The Supreme Court has held time and time again that once an accused person pleads to a charge before the Court without any objection it presupposes that he understands the charge preferred and read against him. Otherwise he would have been ordinarily expected to object and say that he does not understand the technical details of the charge or the language of the Court which is English. See Okewu v. State (2012) 2 SCNJ 126 at 144 and 145. Madu v. State (1997) 1 NWLR (Pt. 482) 386, Ogunye v. State (1999) 5 FWLR (Pt. 604) 545, Adeniji v. State (2001) 13 NWLR (Pt. 730) 375, Okeke v. State (2003) 5 SCM 131 and Solola & Anor. v. State (2005) 6 SCM 137.
If the charge was not read to the satisfaction of the appellant as contended by learned counsel for the appellant learned counsel who represented him at the lower Court would have objected. But he did not. As the language of the Court is English language there is also a presumption that the charge was read and explained to the appellant in English language and if the appellant did not understand, learned counsel representing him would have as well objected if the appellant himself did not object. But neither the appellant nor the counsel representing him objected. Where an accused person is represented by counsel and there was no objection on the issue of the language of the Court it would amount to a futile exercise to raise the issue on appeal. See Egwumi v. State (2013) 2 SCNJ 875.
When an accused person raises the defence of alibi what he is saying is that when the offence of which he is charged was committed, he was somewhere else. The defence of alibi must be raised at the earliest opportunity by the accused person and this would be when he has an opportunity to make a statement to the police. It must be detailed on where he was on the date of the incident and who he was with. See Egwumi & State (Supra)
In the instant case, it was during cross-examination of the appellant that he claimed that he was in Abuja on the 2/1/2011 and only returned to Akure on 13/1/2011. It is therefore not surprising that the lower court made the passing remark on the defence of alibi which learned counsel for the appellant said was not considered. There was no defence of alibi worth considering by the lower Court.
At page 13 of the record of appeal, the PW1 stated in part as follows:
“At our office we cautioned and charged the accused in English language and he made his statement to me in English without him been (sic) forced or being motivated. I recorded the statement, I read it over to him after it was recorded. He agreed that it was correct. He signed and I counter signed as the recorder.”
When it was to be tendered in evidence learned counsel for the appellant objected to the statement being admitted on the ground that it was not made by the appellant. It was then admitted and marked Exhibit B. I do not agree with learned counsel for the appellant that Exhibit B should be expunged by this Court from the record.
I have read the lead judgment of my learned brother Mojeed Adekunle Owoade, JCA just delivered. He has exhaustively dealt with the issues in the appeal. For the reasons ably stated by him, I too dismiss this appeal. There is no merit in it.
The conviction and sentence of the appellant for the offence of robbery is hereby affirmed.
Appearances
Abiola Olagunju with Suraj Ali MusaFor Appellant
AND
Taiwo Olubodun DDCL Ondo State with Elaemi Kolade (Mr.) Senior Legal OfficerFor Respondent
