ABATCHA v. STATE
(2022)LCN/15937(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/G/37C/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei TobiJustice of the Court of Appeal
Between
HASSAN ABATCHA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT OF APPEAL HAS THE POWER TO SUBSTITUTE THE VERDICT OF GUILTY PASSED FOR AN OFFENCE AND PASS SUCH SENTENCE IN SUBSTITUTON FOR THE SENTENCE PASSED AT TRIAL
I have read and examined the adjectival laws and the case law on the subject. Firstly, Section 20 of the Court of Appeal Act, 2004 sets out the powers of this Court in special cases. In particular, by subsections (1) and (2) thereof, the Court is vested with power to substitute the verdict of guilty passed for an offence and pass such sentence in substitution for the sentence passed at trial as may be warranted in law for that other offence.
Also, by Section 218 of the Criminal Procedure Code, it is provided thus –
“218. (1) When a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence.”
Again, Order 4 Rule 3 of the Court of Appeal Rules, 2021, provides:
“The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order(s) as the case may require, including order as to costs.” PER SANKEY, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN CONVICT AND IMPOSE A SENTENCE ON AN ACCUSED PERSON FOR A LESSER OFFENCE THAN THAT CONVICTED AT THE TRIAL COURT
This position of the law has long since been endorsed in several decisions of the Supreme Court and this Court that an appellate Court can convict and impose a sentence on an accused person for a lesser offence than that for which he was convicted at the lower Court. See for instance: Danjuma V. State (2019) LPELR-47037(SC) 27-29, A, per Muhammad, JSC; Amadi V. State (2019) LPELR-47041(SC) 7-18, E-A, per Muhammad, JSC; Oluwaseyi V. State (2018) LPELR-46359(SC) 23-25, B-A, per Bage, JSC; Odeh V. FRN (2008) LPELR-2205(SC) 16-17, E-F per Musdapher, JSC (later CJN); State V. Shontu (2014) LPELR-24206(ca) 27, A-B.
In Odeh V. FRN (supra), one of the issues considered by the Supreme Court was: Whether the learned Justices of the Court of Appeal were right in law when they convicted and sentenced the Appellant to 15 years imprisonment after setting aside his conviction by the trial Court in count one of the charge. The Supreme Court, per Musdapher, JSC (later CJN), said:
“It is the law that an appellate Court can convict and impose a sentence on an Appellant for a lesser offence than that for which he was convicted by the trial Court if from the circumstances of the case, the latter conviction should have been the proper one.”
Also, in Ezeja V. State (2008) 10 NWLR (Pt. 1096) 573, the Supreme Court, per Mahmud Mohammed, JSC (later CJN) held:
“It is important to point out here that the power to convict a person for a lesser offence that was proved in place of the original greater offence charged, is available not only to trial criminal Courts but also to appellate Courts, including the Court below and this Court.” PER SANKEY, J.C.A.
THE POSITION OF LAW ON THE MODE OF PROOF IN CRIMINAL CASES
The law as long established by case law is that there are three modes of proof in criminal cases, and they are as follows:
a) By direct evidence, to wit: by the testimonies of eyewitnesses, i.e., witnesses who watched, heard or witnessed the commission of a crime committed by the accused person(s);
b) By a confessional statement voluntarily made by the accused person wherein he unequivocally owned up to the commission of the offence; and
c) By indirect evidence, to wit: circumstantial evidence which points clearly to the fact that the accused person, and no other, committed the offence charged.
See Olaoye V. State (2018) LPELR-43601(SC) 13, C-F; Anyasodor V. State (2018) LPELR-43720(SC) 14-15, F-C. PER SANKEY, J.C.AS
WHETHER OR NOT A WITNESS STATEMENT TAKING DOWN BY AN INTERPRETER IS ADMISSIBLE IN COURT
The law is settled that where an interpreter is used in the taking down 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 it down. The apex Court has consistently 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.
For instance, in the case of Ifaramoye V. State (2017) LPELR-42031(SC) 50-52, F-C, the Supreme Court per Peter-Odili, JSC, had this to say:
“On what should happen where an accused person gave an extra-judicial confessional statement, recorded by a police officer or third party and translated. This Court in Olalekan V. State (2001) 18 NWLR (Pt. 746) 793, 818, held that the statement is inadmissible unless the person who interpreted it is called as a witness, as well as the person who wrote it down. Therefore, the trial Court in this instance had gone outside the prescription of what is required when it admitted the confessional statements without the recorder and translator testifying. The trial Court rather took the evidence of PW3, who had been a police officer working with the duo to identify their handwritings in the said statements as meeting the standard required to admit and utilize such confessional statements. The Court of Appeal upheld what the trial Court did and this is a clear departure of the settled principle on what should obtain. I refer to FRN V. Usman (2012) 8 NWLR (Pt. 1303) 141, 159 this:-
“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… Usually, the statement is recorded in the local dialect with English translation… Before these documents are admissible in evidence, the police officer who recorded the statement and the interpreter (translator) must testify in Court. This is vital testimony. It now becomes clear that where a conviction is based solely on a confessional statement, and the police officer who recorded it and the interpreter (translator) who acted as an interpreter (translator) when the said statement was obtained did not testify, the confessional statement is hearsay evidence and the accused person is entitled to an acquittal.” (Emphasis supplied)
Also, in the case of FRN V. Usman (2012) LPELR-7818(SC) 18-19, C-E, Rhodes-Vivour, JSC further explained the law thus: “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.” (Emphasis supplied)
See also Dajo V State (2018) LPELR-45299(SC) 15-19, C-E. PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Borno State in Suit No. BOHC/MG/CT10/2019 delivered on 11th December, 2019 by A.M. Ali, J.
The facts leading to the Appeal are briefly as follows: On 2nd April, 2019, five (5) armed men attacked one Mallam Modu Bulu in his home with a gun and killed him. In the course of the attack, a cattle rearer working with the deceased, one Zarami, was also shot in the leg and sustained injuries. Upon police investigations, the Appellant was arrested while four other persons were said to be at large. The Appellant was subsequently arraigned before the High Court of Borno State for the offence of abetment and culpable homicide not punishable with death under Sections 85 and 224 of the Penal Code. The Appellant pleaded not guilty.
In proof of the charge, the Respondent adduced evidence through seven (7) witnesses, documents being Exhibits ST1 and ST1A (extrajudicial statements of the Appellant), and Exhibits 1 and 2, being live ammunition recovered from the scene of crime. In his defence, the Appellant testified and called two witnesses. Learned Counsel for the respective parties thereafter addressed the lower Court on the facts and issues of law arising therein. At the close of trial, the lower Court delivered Judgment wherein it found the Appellant guilty as charged. It proceeded to convict the Appellant for the offence for the offence of culpable homicide punishable with death under Section 221 of the Penal Code Law, Cap 102, Laws of Borno State, 1994 and thereafter sentenced him to death.
Dissatisfied with the Judgment, the Appellant filed an Appeal on 10th March, 2020 wherein he complained on four Grounds. In his Notice of Appeal, the Appellant seeks the following reliefs from this Court:
a. “To allow the Appeal;
b. Quash the conviction; and Discharge and
c. Acquit the Appellant.”
At the hearing of the Appeal on 8th February 2022, learned Counsel for the Appellant, J.B. Rann Esq., adopted the Appellant’s Brief of argument filed on 24-01-22 and settled by him, in urging the Court to allow the Appeal. On his part, learned Counsel for the Respondent, A.S. Kaigama Esq., DDPP Ministry of Justice Borno State, also adopted his submissions in the Respondent’s Brief of argument filed on 03-02-22 and settled by K.S. Lawan Esq., Hon. Attorney General Borno State, in urging the Court to dismiss the Appeal. In oral submissions, Counsel conceded to the submissions of the Appellant in respect of issue one for determination. He submits that the Appellant should have been convicted under Section 224 of the Penal Code as charged, and not under Section 221 of the Penal Code. Counsel therefore urged the Court to substitute the sentence with that under Section 224 of the Penal Code Law.
In the Appellant’s Brief of argument, the following three (3) issues were framed for the determination of this Appeal:
1. “Whether the Court below was right to convict the Appellant for an offence that carries a higher punishment than Section 224 of the Penal Code under which he was charged by the Respondent? (Ground 1)
2. Whether the Prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of the offence of culpable homicide punishable with death under Section 221 of the Penal Code? (Grounds 2 and 4)
3. Whether the trial Court was right to rely on Exhibit ST1A without calling one Saleh Mohammed, the Kanuri interpreter as witness? (Ground 3)”
The Respondent adopted the issues formulated by the Appellant but with slight modifications as follows:
1) “Whether the Court below was right to convict the Appellant for an offence that carried a higher punishment than Section 224 of the Penal Code Law which he was charged for by the Respondent? (Ground 1)
2) Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of the offence of culpable homicide punishable with death under Section 221 of the Penal Code Law? (Grounds 2 and 4)
3) Whether the trial Court was right to rely on Exhibit ST1A without calling one Saleh Mohammed, the Kanuri interpreter as a witness. (Ground 3).”
It is apparent the two sets of issues are virtually identical. I will however use the issues submitted by the Appellant in the determination of the Appeal. Issue one will be considered first and issues two and three will be taken together.
ARGUMENTS:
Issue one: Whether the Court below was right to convict the Appellant for an offence that carries a higher punishment than Section 224 of the Penal Code under which he was charged by the Respondent?
Under issue one, learned Counsel for the Appellant submits that the Appellant’s defence has consistently been that some men abducted him and forced him to take them to the house of the deceased. They beat him up and forced him to lie down outside the victim’s house where one of the men remained guarding him while the others entered into the house. He later heard a gunshot from inside the house. He states that the Appellant insisted in his evidence before the lower Court that he was not part of the plan of the armed men who abducted him as he had been sent on an errand by his sick mother to fetch a chicken from their home in the village so that it could be sold to buy her medicines. Counsel refers to the testimony of the Appellant as DW3 and his extra-judicial statement, Exhibit ST1.
Counsel also refers to portions of the Judgment of the lower Court wherein, although the Appellant was charged for an offence under Section 224 of the Penal Code, he was subsequently convicted and sentenced for an offence under Section 221 of the Penal Code. He submits that the trial Court convicted the Appellant and wrongly increased his sentence without due regard for the provision of the law under which he was charged. He relies on Obi V COP Abia State (2014) LPELR-23157(CA).
In respect of the offence for which the Appellant was charged, i.e., culpable homicide not punishable with death under Section 224 of the Penal Code, Counsel submits that the Respondent did not prove all the ingredients of the offence. In particular, he contends that the Respondent did not prove that it was the Appellant’s act that led to the death of Mallam Modu Bulu, the deceased. Counsel submits that in evaluating the evidence before it, the trial Court did not ascribe probative value to Exhibit ST1 and the testimonies of DW1, DW2 and DW3. He also submits that consideration was not given to the Appellant’s defence that he was forced to act in the manner he described.
Counsel also submits that whereas the Appellant was charged under Section 224 of the Penal Code and pleaded not guilty to same, the decision of the lower Court convicting and sentencing him to death by hanging was under Section 221 of the Penal Code. This, he contends, has occasioned a miscarriage of justice and rendered the entire trial null, void and unconstitutional. He relies on Kajubo V. State (1988) 1 NWLR (Pt. 73) 721, 744 and urged the Court to resolve this issue in favour of the Appellant.
In response, learned Counsel for the Respondent submits that where the ends of justice will be met, this Court may reduce the sentence imposed by the trial Court. He relies on Oluwaseyi V. State (2018) LPELR-… (SC) 23-25, B-A (citation incomplete).
However, Counsel submits that the evidence adduced by the Respondent before the lower Court was enough to convict the Appellant under the provision charged. In disagreeing with the sentence passed by the lower Court under Section 221 of the Penal Code Law, he submits that this Court has the power to reduce the sentence imposed under Section 221 (b) of the Penal Code Law, and substitute it with the sentence provided under Section 224 of the Penal Code Law as charged. For this, Counsel relies on Section 20(1) & (2) of the Court of Appeal Act, 2010 (as amended).
RESOLUTION OF ISSUE ONE:
It is not in doubt that the Appellant herein was charged for the offence of culpable homicide not punishable with death under Section 224 of the Penal Code, Laws of Borno State, 1994. This is clear from the record and brooks no argument. However, for ease of reference, the charge at page 3 of the printed record is set out hereunder:
“That you, Hassan Abatch on or about the 2nd day of April, 2019 at Dunga Village in Gubio Local Government Area of Borno State which is within the jurisdiction of this Honourable Court abated (sic) the commission of culpable homicide in that you showed the house of one Mallam Mody Bulu to one Also and three others (now at large) so that the said Mallam Modu Bulu might be robbed and you thereby committed an offence contrary to Section 85 and Section 224 of the Penal Code Law of Borno State.”(Emphasis supplied)
This is the charge that was read and explained to the Appellant when he was arraigned before the lower Court on 24-06-19, and to which he entered a plea of not guilty (pages 11-12 of the record). Based on this plea, the Respondent adduced evidence through seven (7) witnesses and four (4) exhibits to prove the allegations in the charge; while the Appellant testified and called two witnesses in his defence. After the final address of Counsel for the Respondent, Counsel for the Appellant having declined to make a closing address, the lower Court evaluated the evidence on both sides and made its findings. It closed with the following words (at page 50 of the record):
“The 1st accused person is however convicted of the offence of abetting an armed robbery attack on the house of Malam Bulu during which attack Mallam Bulu was killed which is an offence punishable under Sections 85 and 221 of the Penal Code Law of Borno State… The convict is sentenced to death by hanging.”
Without much ado, and as conceded by Counsel for the Respondent, I agree with Counsel for the Appellant that whereas the Appellant was charged under Section 224 of the Penal Code, which provides for a maximum penalty of life imprisonment, he was convicted and sentenced for the aggravated offence of culpable homicide punishable with death under Section 221 of the Penal Code. The question now is: what is the effect of this slip or blunder, as the case may be?
I have read and examined the adjectival laws and the case law on the subject. Firstly, Section 20 of the Court of Appeal Act, 2004 sets out the powers of this Court in special cases. In particular, by subsections (1) and (2) thereof, the Court is vested with power to substitute the verdict of guilty passed for an offence and pass such sentence in substitution for the sentence passed at trial as may be warranted in law for that other offence.
Also, by Section 218 of the Criminal Procedure Code, it is provided thus –
“218. (1) When a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence.”
Again, Order 4 Rule 3 of the Court of Appeal Rules, 2021, provides:
“The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order(s) as the case may require, including order as to costs.”
Finally, Section 16 of the Court of Appeal Act provides –
“16. The Court of Appeal may, from time to time, make any Order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and …generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted by the Court of first instance and may rehear the case in whole or in part…”
From a combined reading of the foregoing provisions, it is apparent that this Court, in the exercise of its appellate jurisdiction, may invoke the powers conferred on the trial Court under Section 218 of the Criminal Procedure Code. The lower Court’s power under Section 218 (supra) to convict for a lesser offence that was proved in place of the aggravated charge is, by the operation of law, amenable to this Court by virtue of Order 4 Rule 3 of the Rules of this Court and Section 16 of the Court of Appeal Act.
Thus, by virtue of these provisions, on the basis of the evidence on record, if the Court, upon due consideration of the Appeal, finds that the Appellant has committed a lesser offence to the aggravated offence he was charged with, or convicted of as in the instant case, it is empowered to substitute the Appellant’s wrong conviction for the aggravated offence with the lesser offence. This position of the law has long since been endorsed in several decisions of the Supreme Court and this Court that an appellate Court can convict and impose a sentence on an accused person for a lesser offence than that for which he was convicted at the lower Court. See for instance: Danjuma V State (2019) LPELR-47037(SC) 27-29, A, per Muhammad, JSC; Amadi V State (2019) LPELR-47041(SC) 7-18, E-A, per Muhammad, JSC; Oluwaseyi V State (2018) LPELR-46359(SC) 23-25, B-A, per Bage, JSC; Odeh V FRN (2008) LPELR-2205(SC) 16-17, E-F per Musdapher, JSC (later CJN); State V Shontu (2014) LPELR-24206(ca) 27, A-B.
In Odeh V FRN (supra), one of the issues considered by the Supreme Court was: Whether the learned Justices of the Court of Appeal were right in law when they convicted and sentenced the Appellant to 15 years imprisonment after setting aside his conviction by the trial Court in count one of the charge. The Supreme Court, per Musdapher, JSC (later CJN), said:
“It is the law that an appellate Court can convict and impose a sentence on an Appellant for a lesser offence than that for which he was convicted by the trial Court if from the circumstances of the case, the latter conviction should have been the proper one.”
Also, in Ezeja V State (2008) 10 NWLR (Pt. 1096) 573, the Supreme Court, per Mahmud Mohammed, JSC (later CJN) held:
“It is important to point out here that the power to convict a person for a lesser offence that was proved in place of the original greater offence charged, is available not only to trial criminal Courts but also to appellate Courts, including the Court below and this Court.”
Therefore, the mere fact that an appellate Court exercises its statutory power to substitute a conviction of one offence for the other under Section 218 of the CPC, does not ipso facto breach the Appellant’s right to fair hearing nor does it occasion a miscarriage of justice. This is because both the trial Court and the Court of Appeal have power under Section 218 of the CPC to substitute a conviction for a lesser offence on a charge for an offence where such particulars as made up of the lesser offence were proved. Thus, it is trite that the power to convict for a lesser offence that is proved in place of a greater offence charged inures to both Courts by virtue of Section 218 of the Criminal Procedure Code.
In the instant case, I cannot close my eyes to the fact that the facts disclosed in this Appeal are slightly different from the run of the mill cases previously decided (and referred to above). This is because in the instant Appeal, whereas the Appellant was charged for the lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code, he was convicted for the aggravated offence of culpable homicide punishable with death under Section 221 of the Penal Code. Nonetheless, I believe that the same principle applies. This is because, where this Court finds that the lower Court was wrong to have convicted the Appellant for an offence for which he was not charged, yet finds that there is evidence upon which to convict him of the offence charged, or even for a lesser offence, then the Court can, under Section 218 of the CPC read with Section 16 of the Court of Appeal Act, step into the shoes of the trial Court and substitute the conviction and sentence of the Appellant for the offence disclosed and proved by credible evidence adduced at the trial.
Moreover, it is the law that a conviction under a wrong law is not necessarily fatal if there is a provision of another law under which the conviction can stand unless it can be shown that the accused was in fact misled by such error or that a miscarriage of justice has been occasioned by reason of such error – Yabugbe V COP (1992) LPELR-3505(SC) 30-31, F-A. Consequently, it is for these reasons that I find that even though the lower Court erred in convicting the Appellant for a greater offence than that under which he was charged and tried, such error has not breached his right to fair hearing as it is an error which this Court has the power to correct where the evidence on record so demands. Therefore, issue one succeeds to the extent that the lower Court was wrong when it convicted the Appellant for an offence under Section 221 of the Penal Code, which carries a higher punishment than Section 224 of the Penal Code under which he was charged.
ISSUES TWO AND THREE TOGETHER:
Issue two – Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of the offence of culpable homicide punishable with death under Section 221 of the Penal Code? (Grounds 2 and 4)
Issue three – Whether the trial Court was right to rely on Exhibit ST1A without calling one Saleh Mohammed, the Kanuri interpreter as witness?
Under issue two, learned Counsel for the Appellant submits that the Respondent did not prove all the ingredients of the offence under Section 221 of the Penal Code. He argues that the Respondent failed to establish that there was a link between the death of the deceased and the Appellant. Counsel also submits that the evidence adduced through PW1 to PW7 constitutes hearsay as none of them testified that it was the Appellant that shot and killed the deceased. He relies on Alao V State (2015) 5 MJSC (Pt. 1) 35, 57, A-B; & Umaru V State (2015) LPELR-40901(CA).
In respect of issue three, learned Counsel for the Appellant submits that Exhibit ST1A, the extra-judicial statement of the Appellant made at the State CIID Maiduguri, ought not to have been acted upon by the trial Court because the interpreter was not called as a witness by the Respondent. He refers to the evidence of PW7 at pages 21-22 of the Record and relies on Manu V State (2019) LPELR-47744(CA). Counsel contends that Cpl. Saleh Mohammed, who interpreted the statement of the Appellant from English to Kanuri, was not called as a witness by the Respondent throughout the trial. Counsel submits that as the interpreter of Exhibit ST1A, Cpl. Saleh Mohammed was a vital witness and so failure to call him as a witness was fatal to the case of the Respondent. Therefore, Exhibit ST1A was wrongly admitted in evidence as it is hearsay evidence which is inadmissible in law. He submits that by virtue of Section 251 of the Evidence Act, 2011 (as amended), this Court has power to expunge wrongly admitted evidence. Reliance is placed on Kajubo V State (1988) 1 NWLR (Pt. 73) 721; & Ogudo V State (2011) 12 MJSC (Pt. 1) 108. 129-130, G-B. Counsel therefore urged the Court to resolve issues two and three in favour of the Appellant, to allow the Appeal, set aside the findings of the trial Court and discharge and acquit the Appellant.
In response to the submissions under issue two, learned Counsel for the Respondent submits that the Respondent proved its case beyond reasonable doubt through the testimonies of PW1 to PW7 which linked the Appellant to the commission of the crime. He relies in particular on Exhibits ST1 and ST1A, the extra-judicial statements of the Appellant which, he contends were confessional statements; as well as Exhibits 1 and 2, live ammunition recovered from the scene of crime. Counsel relies on Yekinni V. State (2020) LPELR-49902(CA) 42, C-E to submit that an admission of guilt is the best form of evidence. He argues that it is therefore difficult, if not impossible for the Appellant to walk back from his own express testimony when he described the nefarious role that he played in killing the deceased.
Counsel further relies on the evidence of PW4 and PW5 whom, he contends, gave direct evidence to the effect that they tracked down the Appellant by following his footprints and arrested him. He submits that circumstantial evidence is evidence that flows from established facts and is as good, and sometimes even better than any other evidence. Reliance is placed on Grema V. State (2020) LPELR-51432(CA) 13-16, D-E; Odogwu V. State (2013) LPELR-42802(SC) B-D.
In response to the submissions under issue three, learned Counsel submits that, assuming but not conceding that Exhibit ST1A cannot be acted upon by the Court in convicting the Appellant, there are other pieces of evidence, in the form of the testimonies of PW1 to PW7, which the trial Court relied upon to convict the Appellant. Contending that Exhibit ST1 is also a confessional statement, he again submits that an accused person can be convicted solely on his confessional statement if the prosecution can show that it was made freely and voluntarily by the accused, to the satisfaction of the Court. He relies on Ifeanyi V. FRN (2018) 12 NWLR (Pt. 1632) 164, 170. In conclusion, Counsel urged the Court to resolve issues two and three against the Appellant, uphold the conviction of the Appellant and substitute the sentence of death passed on him under Section 221 of the Penal Code with that under Section 224 of the same Law.
RESOLUTION OF ISSUES TWO AND THREE:
The law as long established by case law is that there are three modes of proof in criminal cases, and they are as follows:
a) By direct evidence, to wit: by the testimonies of eyewitnesses, i.e., witnesses who watched, heard or witnessed the commission of a crime committed by the accused person(s);
b) By a confessional statement voluntarily made by the accused person wherein he unequivocally owned up to the commission of the offence; and
c) By indirect evidence, to wit: circumstantial evidence which points clearly to the fact that the accused person, and no other, committed the offence charged.
See Olaoye V. State (2018) LPELR-43601(SC) 13, C-F; Anyasodor V. State (2018) LPELR-43720(SC) 14-15, F-C.
In the instant case, the Respondent based its case both on the extra-judicial statements of the Appellant, Exhibits ST1 and ST1A, which it contends were confessional in nature, and on circumstantial evidence. In respect of the circumstantial evidence adduced, the facts as gleaned from the testimonies of the seven (7) prosecution witnesses is that some armed men went to the house of the deceased at about 1:30am, shot the deceased and his neighbour, as a result of which the deceased died from his injuries. PW3, PW4 and PW5 testified that after the attack, they tracked the footsteps of the culprits for hours throughout the night which led them to the Appellant who was found sitting outside Gubio Village. It was there that the Appellant was apprehended and handed over to the Civilian JTF who in turn, handed him over to the Police.
It is however significant that the evidence of these witnesses did not in any concrete fashion, link the Appellant to the killing of the deceased. Apart from his statement in Exhibit ST1 where the Appellant, by himself, gave an explanation of how he came to be in the company of the armed men, there is no other evidence linking the Appellant to the offence charged.
The Appellant, both in his statement to the Police, Exhibit ST1 and his evidence in Court as DW3, narrated how he was sent by his sick mother to fetch a chicken from the village to sell so as to get money to purchase medicines for her treatment. Along the way, he was abducted by some armed men who forced him to show them the house of Mallam Bulu, who was his uncle. On getting to the house, they left the Appellant outside while one of the armed men stood guard over him. Then they went into the house where they shot and killed Mallam Bulu, the deceased. DW1 and DW2, the Appellant’s mother and Aunt, corroborated his evidence to the extent that it was true that they had sent him to get some chickens to sell so that they could buy medicine for his sick mother’s treatment. Thus, contrary to the contention of the Respondent, Exhibit ST1 was in no way a confession because it only stated that while he took the armed men to the deceased’s home, he only did so because they abducted him and forced him to do so. That is as far as it went. It is therefore not an unequivocal confession of guilt that meets the conditions of a confessional statement which can be used to convict the Appellant.
However, Exhibit ST1A which was allegedly the Appellant’s second statement made at the CIID Maiduguri, went further than Exhibit ST1. Therein, the Appellant is said to have confessed that he was part of the group of armed marauders who went to the village and killed the deceased, and that he acted in concert with them. The question to be answered is: does Exhibit ST1A qualify as evidence that can be used against the Appellant? This is because, from the evidence placed before the lower Court through PW7, the Appellant made this second statement in Kanuri language to one Cpl. Saleh Mohammed, Cpl. Saleh Mohammed interpreted it to PW7 from Kanuri language to English language, and PW7 recorded the statement in English language; yet the interpreter, Cpl. Saleh Mohammed, did not testify.
Thus, the issue that arises is whether an interpreter who interprets an alleged confessional statement to a police officer, as well as the police officer, must be called to testify before the statement will be admitted?
The law is settled that where an interpreter is used in the taking down 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 it down. The apex Court has consistently 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.
For instance, in the case of Ifaramoye V State (2017) LPELR-42031(SC) 50-52, F-C, the Supreme Court per Peter-Odili, JSC, had this to say:
“On what should happen where an accused person gave an extra-judicial confessional statement, recorded by a police officer or third party and translated. This Court in Olalekan V State (2001) 18 NWLR (Pt. 746) 793, 818, held that the statement is inadmissible unless the person who interpreted it is called as a witness, as well as the person who wrote it down. Therefore, the trial Court in this instance had gone outside the prescription of what is required when it admitted the confessional statements without the recorder and translator testifying. The trial Court rather took the evidence of PW3, who had been a police officer working with the duo to identify their handwritings in the said statements as meeting the standard required to admit and utilize such confessional statements. The Court of Appeal upheld what the trial Court did and this is a clear departure of the settled principle on what should obtain. I refer to FRN V Usman (2012) 8 NWLR (Pt. 1303) 141, 159 this:-
“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… Usually, the statement is recorded in the local dialect with English translation… Before these documents are admissible in evidence, the police officer who recorded the statement and the interpreter (translator) must testify in Court. This is vital testimony. It now becomes clear that where a conviction is based solely on a confessional statement, and the police officer who recorded it and the interpreter (translator) who acted as an interpreter (translator) when the said statement was obtained did not testify, the confessional statement is hearsay evidence and the accused person is entitled to an acquittal.” (Emphasis supplied)
Also, in the case of FRN V Usman (2012) LPELR-7818(SC) 18-19, C-E, Rhodes-Vivour, JSC further explained the law thus: “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.” (Emphasis supplied)
See also Dajo V State (2018) LPELR-45299(SC) 15-19, C-E.
From the facts of the Appeal, PW7, the recorder of Exhibit ST1A, testified that he invited Cpl. Saleh Mohammed to interpret to him the statement of the Appellant from Kanuri language to English language because he did not understand Kanuri, the language of the Appellant. On the statement itself, Exhibit ST1A, it is clearly written that one Cpl. Saleh Mohammed interpreted the statement of the Appellant from Kanuri, the language in which it was made, to English language to PW7, who proceeded to record it in English language. Thus, both Cpl. Saleh Mohammed and PW7 were vital witnesses. Since Cpl. Saleh Mohammed did not testify, Exhibit ST1A constitutes hearsay evidence, rendering it inadmissible in law. It therefore cannot be used in evidence against the Appellant. In this, the lower Court erred. The upshot is that any conviction based on Exhibit ST1A cannot stand.
In conclusion, in the absence of cogent and credible circumstantial evidence to prove the charge, and since the alleged confessional statement amounts to hearsay evidence, there is no evidence upon which to convict the Appellant for the offence of culpable homicide punishable under Section 224 of the Penal Code, as charged. I therefore resolve issues two and three in favour of the Appellant. Thus, the question of whether this Court should proceed under Section 218 of the Criminal Procedure Code read along with Section 16 of the Court of Appeal Act, 2004 to substitute the conviction of the Appellant, from Section 221 to Section 224 of the Penal Code, does not arise. The circumstances do no warrant this.
In the result, in view of all these findings, I find merit in the Appeal. It succeeds and is allowed.
Consequently, the Judgment of the High Court of Borno State in Charge No. BOHC/MG/CR/50/2019 delivered on 11th December, 2019 by A.M. Ali, J., as well as the conviction for culpable homicide punishable with death, and the sentence of death, are hereby set aside.
Accordingly, the Appellant is discharged and acquitted.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft the lead judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.
I agree with the reasoning and conclusion of my learned brother that the appeal has merit. It is for the reasons therein contained in the lead judgment of the lower Court delivered in charge No. BOHC/MG/CR/60/2019 on the 11th of December, 2019, by A. M. ALI J, allowing the appeal as well as the conviction for committing culpable homicide Punishable with death under Section 22 (a) of the Penal Code, Borno State. Appeal is dismissed and acquitted accordingly.
EBIOWEI TOBI, J.C.A.: I read the lead judgment delivered by my learned brother, J. H. Sankey, JCA. The Appellant was sentenced to death by the lower Court. My Lord in the lead judgment set aside the judgment of the lower Court. I agree with the lead judgment, the reasoning and the conclusions reached therein. I wish to add a comment on Exhibit ST1 and ST1A. The decision of the lower Court is partly based on those exhibits which the lower Court views as confessional statements. Exhibit ST1 from all intent and purpose is not a confessional statement within the meaning of Section 28 of the Evidence Act 2011.
To amount to a confessional statement, the Appellant must admit to committing the offence. By this, the admission must admit to committing the offence satisfying all the ingredients of the offence. If the statement admits part of the ingredient of the offence, it is not a confessional statement within the meaning of the provision of the Evidence Act, 2011. Section 28 of the Evidence Act, 2011 provides for what will amount to a confessional statement. The section provides thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence.”
This definition has received a lot of judicial pronouncement. I will look at a few of them. In Akpan vs. State (2001) 7 SC (Pt.II) 29, the apex Court per Karibi-Whyte, JSC held:
“Section 27(1) of the Evidence Act has defined “confession”, as “an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime”. This definition is wide enough to cover both extra-judicial and judicial confessions. Extrajudicial confessions are those made otherwise than in the course of judicial proceedings.”
Similarly, in Nguma vs. AG Imo State(2014) 7 NWLR (pt 1405) 119; Okoro, JSC at pages 61-62 held:
“Section 27 (1) & (2) of the Evidence Act state as follows:-
“(1) Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that offence.
(2) Confessions if voluntary are deemed to be relevant facts as against the person who made them only.” Thus, a confessional statement, if it is true, positive and direct becomes proof of an act. Also, where it is voluntarily made stating or suggesting the inference that an accused committed an offence for which he is charged, it is relevant and admissible against him provided the statement was not made as a result of any threat, promise or inducement from a person in authority. It has to be noted that any voluntary information given by the accused at any time during investigation which leads to the discovery of any fact material to the charge against him is equally admissible. See PETER vs. STATE(1997) 12 NWLR (Pt. 531) 1 at 22, FATILEWA vs. THE STATE (2008) 12 NWLR (Pt. 1101) 518, (2008) 4 – 5 SC (Pt. 1) 191.”
See also Onyenye vs. State (2012) 15 NWLR (PT 1324)586; Lasisi vs. State (2013) 9 NWLR (Pt.1358) 745.
I have looked through Exhibit ST1 and I cannot hold that it is a confessional statement. Exhibit ST1A meets the requirement of a confessional statement. But it cannot be relied upon first because the recorder was not called to testify and secondly, the lower Court did not apply the veracity test before using it to convict the Appellant.
While a Court can convict on a confessional statement even if it is not retracted, the apex Court had advised that a veracity test be applied in authenticating the statement. For the confessional statement to be used to convict the Appellant the law required that the Court will look for evidence outside the statement that suggests that the statement is true, this in legal parlance means that the statement must pass the veracity test. . In Akinrinlola vs The State (2016) 16 NWLR (pt 1537) 73 the apex Court held:
“It is well settled that once a statement is in compliance with the law and rules governing the method for taking it and it is tendered and admitted as an exhibit, then, it is good evidence and even if later retracted, the retraction will not vitiate its admission as a voluntary statement… This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt.138) 150, the Supreme Court stated:-
That to test the veracity of a confessional statement, the following should be evident:-
1. Is there anything outside the confession which shows that it may be true?
2. Is it corroborated in anyway?
3. Are the relevant statement of facts made in it most likely true as far as they can be tested?
4. Did the accused have the opportunity of committing the offence?
5. Is the confession possible?
6. Is the alleged confession consistent with other facts which have been ascertained and established?
Along the same line of thought, this Court stated in Alarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.”
This is important more so that there are 2 statements which sing different songs. I have gone through the statement I do not see where the Court applied the test.
These days, the police most times do not carry out thorough investigation so they adopt the easy way of getting confessional statement. Courts should be weary in convicting people based on confessional statement without passing such through the veracity test especially when the sentence is death penalty. When the confessional statement is used as the grounds for the conviction or when it is admitted, the way and manner it is taken must comply with the law to show that is was made voluntarily.
If the statement is not made in the language of the Court but was interpreted to the Appellant as in Exhibit ST1A, the person who interpreted same to him is a vital and essential witness. The refusal to call a vital witness weakens the case of the Prosecution.
On this premise, I also allow the appeal. My learned brother has dealt on this issue in greater detail in the lead judgment. For the fuller reason in the lead judgment, I also allow this appeal.
Appearances:
J.B. Rann, Esq. For Appellant(s)
A.S. Kaigama, Esq., DDPP Ministry of Justice Borno State with him, L. Ibrahim, Esq., SC and U.M. Umar, Esq., SC. For Respondent(s)