EYAKENO IMOH IMOH v. THE STATE
(2019)LCN/12531(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/C/222C/2013
RATIO
EVIDENCE: WHAT IS HEARSAY EVIDENCE
“Hearsay evidence is secondary evidence of an oral statement best described as secondhand evidence. What a witness says he heard from another person is unreliable for many reasons. For example he may not have understood the informant/interpreters, or he may say things that were never said. Such evidence remains hearsay evidence because it cannot be subject to cross-examination in the absence of the informant/interpreters.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: WHAT AMOUNTS TO HEARSAY EVIDENCE
“It now becomes clear that where a conviction is based solely on a confessional statement, and the interpreter who acted as interpreter when the said statement was obtained did not testify, the confessional statement is hearsay evidence and the accused person is entitled to an acquittal.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
EYAKENO IMOH IMOH 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 Akwa Ibom State High Court, Ikot Ekpene transferred on extended jurisdiction from Eket High Court in Charge No. HEK/10C/2001 delivered by Hon. Justice Enefiok Udoh on the 25th day of February, 2008.
The Appellant, Eyakeno Imoh Imoh was arraigned before the High Court of Justice, Eket, on a one count charge of murder contrary to Section 319 (1) of the Criminal Code, Cap. 31 Vol. II, Laws of Cross River State as applicable in Akwa Ibom State of Nigeria.
The prosecution’s case was/is that on the 9th day of March, 1999 at about 7.30 a.m, the deceased Sunday Imoh Imoh went to his father’s compound wherein the Appellant, his step brother and his mother lives. While still in the compound, there was a disagreement between the Appellant’s mother and the deceased over a disputed piece of land. The Appellant confronted the deceased with a matchete and inflicted matchete injury on his [deceased] neck which resulted to his instant death.
The Appellant made confessional statements which he later retracted during trial.
The prosecution called five (5) witnesses and tendered five exhibits including the Confessional Statements Exhibits 2 & 5.
At the close of the prosecution’s case, the Appellant defended himself and called no witness. The learned trial judge noted that there was no eye witness to the incident which led to the death of the deceased. He however relied on the Appellant’s confessional statements even though retracted, eliminated the defence of provocation on accounts of the contents of the confessional statements and convicted the Appellant for the offence of murder as charged.
Dissatisfied with this judgment, the Appellant at first filed a Notice of Appeal containing Four (4) grounds of appeal in this Court on 3/12/2013. However, by Amended Notice of Appeal filed on 26/5/2014 but deemed filed on 7/12/2016, the Appellant filed nine (9) grounds of appeal. Appellant’s brief of Argument dated 23/1/2017 was filed on the same day. It is settled by Edidiong Akpanuwa, Esq.
Respondent’s brief of Argument filed on 29/11/2017 was deemed filed on 18/1/2018. It was settled by Aniette Inyang, Esq., Ministry of Justice, Akwa Ibom State.
Appellant filed a Reply brief of Argument dated 30/1/2018 on 31/1/2018. It was settled by Edidiong Akpanuwa, Esq. Learned counsel for the Appellant nominated five (5) issues for determination. They are:
1. Whether the trial Court was right in relying on Exhibits 2 and 5, the purported confessional statements of the Appellant to convict the Appellant.
2. Whether the trial Court was right in law to rely and ascribe probative value to Exhibit 5 even when the said exhibit did not accompany the proof of evidence.
3. Whether the trial Court was right in relying on Exhibit 5 in convicting the Appellant when the maker of the said Exhibit, Inspector Godwin Ike was not available to be cross-examined on the veracity of the exhibit.
4. Whether failure on the part of the Respondent to call the interpreters of Exhibits 2 and 5 and to tender the Ibibio version of the statement is not fatal to the case of the Respondent.
5. Whether the purported confessional statements as recorded in Exhibits 2 and 5 does not amount to hearsay evidence.
Learned counsel for the Respondent on the other hand formulated two (2) issues for determination of the Appeal. They are:
1. Whether from the totality of the evidence adduced at the trial, the prosecution had proved its case against the Appellant beyond reasonable doubt?
2. Whether the trial Court was right to rely on Exhibit 2 and 5, the confessional statements of the Appellant in convicting him.
It seems to me that Appellant’s issue one encapsulates issues 2 – 5. I consider that there is only one issue for determination and it is this:
Whether the trial Court was right in relying on Exhibits 2 & 5, the purported confessional statements of the Appellant to convict the Appellant.
Learned counsel for the Appellant divided his submissions on the sole issue into two main parts. First, he submitted that Exhibit 5, the Purported Confessional Statement of the Appellant did not accompany the proof of evidence as frontloaded by the Respondent in the trial Court. He referred to pages 1 – 11 of the Record of Appeal and submitted that making available all documents to be relied upon by the State is a constitutional requirement which determines the validity of the arraignment of an accused person.
On this, counsel referred to the provision of Section 36 (6)(a) of the Constitution of the Federal Republic of Nigeria 1999 [as amended] Section 215 of the Criminal Procedure Law and the cases of OLOWOYO V STATE [2012] 17 NWLR [Pt. 1329] 346 @ 371 and OKOYE V C.O.P. [2015] 17 NWLR [Pt. 1488] 276 @ 296.
He further submitted that in the case of OLOWOYO V STATE [supra], the Court held that the mere fact that an accused person was represented by counsel at the trial but failed to raise the objection that the statement did not accompany the proof of evidence will not suffice as the sin of counsel will not be visited on a client. That in coming to this conclusion, the Court in OLOWOYO V STATE[supra] relied on the decisions in OKORIE V E.F.C.C. [2008] 5 NWLR [Pt. 1081] 508; E.F.P. CO. LTD. V N.D.I.C [2007] 9 NWLR [Pt. 1039] 216.
He submitted further that in the case of OKOYE V C.O.P. [supra] the Supreme Court defines ‘Facility’ that must be afforded an accused person by virtue of Section 36(6)(b) and (d) of the 1999 Constitution [as amended] as the resources or anything which would aid an accused person in preparing his defence to the crime with which he is charged.
On the second limb of the issue, Appellant’s counsel submitted that the purported confessional statements contained in Exhibits 2 and 5 as recorded by the Investigating Police Officers amounted to hearsay evidence and the trial Court was wrong in law to have relied on same in convicting the Appellant. That it is on record that the Appellant made statements to the Police first at the Police Station in Esit Eket on 19/2/1999 and also at the Police Headquarters in Ikot Akpan Abia on 3/3/99. He referred to pages 11, 55, 66 and 69 of the Record of Appeal, to say that both statements were recorded by one Late Inspector Godwin Ike and Inspector Mathew Uzor respectively. That it is also on record that the said Investigating Police Officers did not understand Ibibio Language.
The Appellant made both statements in Ibibio Language and same were interpreted to the Investigating Police Officers in English Language by certain interpreters. He submitted that it is also on record that the Respondent did not lead evidence to show that the statements as recorded by the Investigating Police Officers were read and interpreted to the Appellant by the Interpreter in Ibibio Language before the Appellant wrote his name on it. Still on this, Appellant’s counsel referred us to the Record of Appeal particularly the testimony of PW5 in pages 54 – 56, 64 – 65. He reiterated that the statement as recorded by the Investigating Police Officers amounted to hearsay evidence and failure to call the interpreters of Exhibits 2 and 5 to say if they in fact interpreted what was recorded by the Investigating Police Officers to the Appellant in Ibibio Language and what they interpreted is fatal to the case of the Respondent.
On this, Appellant’s counsel referred to the cases of THE STATE V ADOTU & 25 ORS. [1990] 2 NCR 33; ADEYEMI V STATE [2013] 3 NWLR [Pt. 1340] 78 @ 88 – 89; OJO V GHARORO [2006] 10 NWLR [Pt. 1000] 173 @ 198 – 199; JUDICIAL SERVICE COMMITTEE V OMO [1990] 6 NWLR [Pt. 157] 407; UTTEH V STATE [1992] 2 NWLR [Pt. 223] 257; OMONGA V STATE [2006] 14 NWLR [Pt. 1000] 532 @ 552; OLUDE V I.G.P. [1965] 1 ALL NLR 102.
Appellant’s counsel urged us to hold that failure to tender the Ibibio version of the statement and/or call interpreters of Exhibits 2 and 5 to testify is fatal to the case of the Respondent. That Exhibits 2 and 5 be expunged from the Records as failure to call the said interpreters amounted to insufficiency of evidence. He referred to the cases or ARCHIBONG V STATE [2006] 14 NWLR [Pt. 1000] 349 @ 374 – 375 and SHANDE V STATE [2005] 12 NWLR [Pt. 939] 301 and urged us to hold that doubt exists as to the authenticity of the contents in Exhibits 2 and 5 and proceed to discharge and acquit the Appellant.
Appellant’s counsel noted that the trial Court relied solely on Exhibits 2 and 5 to convict the Appellant and that if the exhibits are expunged as urged or the Court refused to attach any weight whatsoever to the exhibits, the consequence as it was in the case of ARCHIBONG V STATE [supra] is a discharge and acquittal of the Appellant. He submitted further that it is a trite principle of law that for a Court to convict on the confessional statement of an accused person, there has to be some corroboration or put differently, whether the statement is consistent with other facts which have been ascertained and proved before the Court. He referred on this to the case of AFOLABI V STATE [2013] 13 NWLR [Pt. 1371] 292 @ 309 – 310 and urged us to hold that Exhibits 2 and 5 have woefully failed the tests highlighted for admissibility of a confessional statements in AFOLABI V STATE [supra] and to hold that we cannot rely on the said exhibits.
Finally on the issue, Appellant’s counsel submitted that failure to include an illiterate jurat in Exhibits 2 and 5 is fatal to the case of the prosecution. He referred to Section 2(a) – (b) of the Illiterates Protection Act.
Learned counsel for the Respondent reacted to the sole issue in his consideration of his second issue. He submitted that the provision of Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 [as amended] was complied with by the trial Court when the information was read and interpreted in Ibibio to the understanding of the Appellant on 20/11/2001 and he pleaded not guilty to the charge [page 23 of the Record of Appeal].
He submitted that facts in the case of OLOWOYO V STATE [supra] cited by the Appellant’s counsel can be distinguished from the present case. That the Court in that case held that failure of the prosecution to attach the written statement of the prosecution witness to proof of evidence is fatal to the prosecution case and that will render the whole trial a nullity.
He submitted that in the instant case, the statement of the prosecution witnesses, i.e. PW1, PW2, PW3, PW4 and PW5 were attached to the proof of evidence. He submitted that the document in contention is the statement of the accused person. That the issue of the existence of the statement was raised by the Appellant as DW1 when he admitted in evidence in chief that he made such a statement. Under cross-examination, he identified the said statement thereby bringing it according to counsel within the purview of admissibility. He submitted that the statement, Exhibits 5 was rightly admitted by the lower Court in the circumstance. The Appellant was not taken by surprise when the document was introduced to him and he was not prejudiced when same was tendered and admitted in evidence being the document he admittedly made voluntarily.
He submitted that failure to tender the Ibibio version of Exhibit 2 and 5 is not fatal to the case of the prosecution. The issue of tendering the Ibibio and the English version of Exhibits 2 and 5 does not relate to the fact and circumstance of this case. Although the Appellant made his statement in Ibibio dialect, the statement was recorded in English language and same was tendered in evidence without any dispute as to their voluntariness. Respondent?s counsel referred to the case of ADEYEMI V STATE [2013] 3 NWLR [Pt. 1340] 81, equally cited by Appellant?s counsel and pointed out that the Court in that case went further to hold that the issue of tendering the Yoruba version and its translation does not however arise where there is only the English translation of the statement. The fact that the statement was not first recorded in Yoruba language before being translated into English will not ipso facto render the English translation inadmissible. And that the issue is one of accuracy and correctness of the statement and not an issue that will automatically render the statement inadmissible.
On the question of applying the six-way test on the admissibility of confessional statements as laid down in cases such as AFOLABI V STATE [2013] 13 NWLR [Pt. 1371] 292 @ 309 – 310; SAHALATU SHAZALI V THE STATE [1988] NWLR [Pt. 93] 164 [1988] 12 SC [Pt. 11] 58 otherwise known as the rule in R. V. SYKES [1913] Cr. App. R. Learned counsel for the Respondent submitted that it is trite that Courts can convict an Accused person solely on his confessional statement if the statement was given freely, voluntarily and without threat or force on the accused person. But that where the accused person retracted his statement as in the instant case, the six-way test of determining whether the confessional statement is true must be adopted and applied. He submitted that the trial Court satisfied the test as laid down in the above cases. There is sufficient evidence from all the prosecution witnesses corroborating the confessional statement of the Appellant. On the failure of the Respondent to include illiterate jurat in Exhibits 2 and 5, counsel submitted that there is nothing in the Record of Appeal showing that the Appellant was illiterate. That the Appellant under cross-examination had stated that he was in Primary three at the time of the incident. That he used to write his name in Primary Three.
The Appellant also identified his name he wrote on Exhibits 2 and 5 and wrote his name as the applicant on the Notice of Application for leave to Appeal [Criminal Form 4] showing that he is not an illiterate. In any event, said counsel, this is a fresh issue raised for the first time on appeal and needed the leave of Court. He referred to the case of CHIEF SUNDAY ORIORIO & 15 ORS. V CHIEF JOSEPH OSIAN & 2 ORS. [2012] MRSCJ Vol. 8. 109 @ 129. He urged us to dismiss the appeal.
In reaction to the submissions of the Respondent on the issue, Appellant’s counsel in his Reply brief contend in relation to Exhibits 2 and 5 that assuming but not conceding that the Appellant admitted via the said Exhibits to committing the crime, the prosecution still had the burden of proving the offence by admissible evidence. After referring on the above to the case of ADEKOYA V STATE [2012] 9 NWLR [Pt. 1306] 539 @ 565, Appellant’s counsel submitted that in the instant case, there is evidence on record that the Appellant gave his statement in Ibibio language and same was translated to the Investigating Police Officer in English Language by an interpreter. It is also not in issue that the Investigating Officer who obtained the statements from the Appellant did not understand Ibibio Language and so depended on what the interpreter told him.
In this circumstance, said counsel the Appellant’s confessional statement is hearsay, inadmissible and liable to be expunged or discountenanced even by an appellate Court. He relied on the cases of F.R.N. V. USMAN [2012] 8 NWLR [Pt. 1301] 141 @ 161; OKORO V THE STATE [1998] 12 SCNJ 84 @ 96 [1998] 14 NWLR [Pt. 584] 181.
Finally, in his Reply brief, Appellant?s counsel submitted that ‘Facilities’ as envisaged in Section 36(6)(a) of the Constitution is not limited to the statement of prosecution witnesses but also includes statement made by an accused. And, that in the instant case, Exhibit 5 is fatal to the case of the Respondent in the sense that the Court cannot rely on the said Exhibit 5. He urged us to allow the appeal and set aside the judgment of the lower Court.
RESOLUTION OF ISSUE
The first arm of Appellant’s issue one concerns the lack of inclusion of Exhibit 5 a purported statement of the Appellant as part of the frontloaded documents in the Respondent’s Information sheet. That the Appellant was thereby taken by surprise.
That it could not be said that there was ‘equal opportunities for both the prosecution and the defence’ and that this deprivation goes to the unreliability of the said Exhibit 5 in evidence. Learned counsel for the Respondent on the other hand argued that unlike the cases of OLOWOYO V STATE [supra] and OKOYE V C.O.P. [supra] relied upon by the Appellant’s counsel the document in contention here is the statement of the accused person and not ‘the written statement of the prosecution witness’. And, that the issue of the existence of the statement was raised by the Appellant as DW1 when he admitted in evidence in chief that he made the statement and identified the statement under cross-examination.
Let me try and make the picture clearer by referring to excerpts from the examination in chief of the Appellant as DW1 on page 66 of the Record of Appeal and his cross-examination on page 69 of the Records.
Page 66
DW1
I made a statement to the police in this case, twice – I made statement at Esit Eket Police Station and at State Police Headquarters, Ikot Akpan Abia. I made my statement in Ibibio Language. The Policemen to whom I made my statement did not understand Ibibio language. They called an interpreter and he interpreted my statement into English language. I do not know the interpreter…..
Page 69
Cross-Examination
I was in primary three at the time of the incident. I used to write my name at primary three. The statement I made to the Police was not interpreted to me from English to Ibibio language. I did not write my name in the English version of the statement.
I did not tell the Police at Esit Eket that I used my knife to kill my brother. I can identify the name I wrote in this document.
Undoubtedly, in the OKOYE case the Supreme Court gave a liberal and robust interpretation of the word ‘Facilities’ in Section 36 (6) (b) of the 1999 Constitution. First, as contained in Black?s Law Dictionary 5th ED. p. 531 [1975] as;
That which promotes the ease of any action, operation, transaction or course of conduct, the word ‘Facilities’ embraces anything which aids or makes easier the performances of the activities involved in the business of a person or corporation.
Akaahs, JSC who read the lead judgment further held at page 206 of the Report that the facilities that must be afforded the accused person are the resources ‘or anything which would aid’ the accused person in preparing his defence to the crimes for which he is charged. These no doubt, include the statements of witnesses interviewed by the police in the course of their investigation which might have absolved the accused of any blame or which may assist the accused to subpoena such favourable witnesses that the prosecuting counsel may not want to put forward to testify.
All the same, it cannot be said that the decision of the Supreme Court in OKOYE V C.O.P. [supra] is on all fours with the present case.
First, in OKOYE V. C.O.P. [supra], the Supreme Court was invited to pronounce on the inability of the Court below [the Court of Appeal] to pronounce and/or accept the decisions of the two lower Courts [Magistrate Court and High Court] on the application of the learned counsel for the Appellant for the prosecution in that case to furnish the defence with all documents [including statements of witnesses, and Police Investigation Reports relating to the case]. It would be recalled that rather than affirm the position as granted by the two lower Courts [Magistrate and High Court], the Court below, that is the Court of Appeal thought the application by Appellant’s counsel in that case was premature as there was not yet an election as to whether the trial was going to be summary trial or a trial by information- an issue raised suo motu by the Court of Appeal.
Indeed, the gravamen of the decision of the Supreme Court in OKOYE V C.O.P. [supra] is that the question of election as to form of trial has nothing to do with the constitutional requirement that ?Facilities? for defence must be provided to an accused person by the prosecution.
Another difference between the case of OKOYE V C.O.P [supra] and the instant case is in the fundamentality of the breach of the fair hearing provisions inherent in the facts and circumstances of the OKOYE case that are not present in the case at hand. For example, at page 297 of the Report in the OKOYE case still on the lead judgment of Akaahs, JSC, the learned Supreme Court Justice after quoting from the case of UDO V STATE [1988] 1 NSCC [Pt. 19] 1163 @ 1172 [1988] 3 NWLR [Pt. 82] 316 to make the point of ‘equal opportunities for both the prosecution and the defence’ which is the hallmark of the decision in OKOYE added thus:
Thus the prosecution will not be allowed to have sole access to evidence. In a situation where the accused person does not know the case he will meet, while the prosecution knows everything concerning the case against the accused ahead of time, amounts to nothing less than procedural inequality which is a gross violation of the principle of fair hearing.
From the above, it is obvious that the decision of the Supreme Court in OKOYE V C.O.P [supra] is not unoblivious of snippets of insignificant breaches of the fair hearing provision as the non-inclusion of Exhibit 5 in the Respondent’s proof of evidence but clearly frowns on holistically fundamental unequal opportunities in trial which invariable would occasion or amount to miscarriage of justice. For example, I am certain that not even the learned counsel for the Appellant in this case would wish to opt for an order of re-trial as it happened in the case of OKOYE V C.O.P [supra] on account of the non-inclusion of Exhibit 5 in the Respondent’s proof of evidence.
Therefore as with other situations on the application of the fair hearing provisions no one case can serve as authority for the other subject to the overriding principle that in all such cases, the Appellant must show that there was indeed miscarriage of justice.
The second arm of Appellant?s submission on the sole issue herein is that there is evidence on record that the Appellant gave his statement in Ibibio Language and same was translated to the Investigating Police Officer in English Language by an interpreter. And that the Investigating Police Officer who obtained the statements from the Appellant did not understand Ibibio Language and so depended on what the interpreter told him.
On these facts, learned counsel for the Appellant referred to the case of THE STATE V ADOTU & 25 ORS. [1990] 2 NCR 33, where the Court held thus:
The recorded version of the statement was not inadmissible simply because it was a translation… However, the translation on its own was hearsay evidence and would be inadmissible and disregarded in the consideration of the case unless the interpreter was called as a witness either before or after the recording of the statement.
Both counsel referred to the Court of Appeal decision [per Iyizoba, JCA] in ADEYEMI V STATE [2013] 3 NWLR [Pt. 1340] 81, to make different points. For the Respondent, it was held in ADEYEMI V STATE [supra] that the issue of tendering the Yoruba version and its translation does not however arise where there is only the English translation of the statement. The fact that the statement was not first recorded in Yoruba Language before being translated into English will not ipso facto render the English translation inadmissible. The issue is one of accuracy and correctness of the statement and not an issue that will automatically render the statement inadmissible.
To the learned counsel for the Appellant, in same ADEYEMI V STATE [2013] 3 NWLR [Pt. 1340] 78 @ 88 ? 89, the Court said:
It is desirable that confessional statements should be recorded in the language it was made. In other words, whether the statement is recorded personally by the accused or narrated to a Police Officer who does the recording. It is desirable that the recording be in the language the statement is made. Both the original statement and the translated version of it should then be tendered in evidence. [OLALEKAN V STATE [2001] 18 NWLR [Pt. 746] 793 @ 819 – 820, paras H – B].
First, it is necessary for me to point out that there is no conflict or inconsistencies whatsoever between the case of THE STATE V ADOTU & 25 ORS. [supra] and the case of ADEYEMI V STATE [supra] neither is there any intra inconsistencies in the pronouncements of Iyizoba, JCA in the Adeyemi’s case itself.
There are three or perhaps four possible scenarios that could be presented in the matter of the taking and/or interpretation of confessional statements by Investigating Police Officers.
First, and perhaps more commonly an Investigating Police Officer who understands the native language may record the statement of the accused in the native language and then translate the statement into English Language. Second, an Investigating Police Officer who understands the native language may record the oral narration by the accused directly into a statement in English Language.
Third, rather uncommonly, a Police Officer who understands the native language may take the accused statement in the native language and translate or interpret for the Investigating Police Officer to record in English language.
Fourth, as it happened in the instant case the Investigating Police Officer who does not understand the native language may record the translation of the native language by another officer into English language.
It would be seen that the common denominator in situation (1) and (2) is ‘the officer understanding the native language’ while the common denominator in situation (3) and (4) is ‘the intervention of an interpreter.’
In situation (1) and (2), by a realistic application of the Judges Rules for the guidance of Police Officers in the taking of confessional statements, the Courts have pronounced a rule of desirability that confessional statements should be recorded in the language it was made and that both the original statement and the translated version of it should be tendered in evidence. The issue, they say is one of accuracy and correctness of the statement and not an issue that will automatically render the statement inadmissible. See QUEEN V OMEREWURE SAPELE [1957] F.S.C. 24; OLALEKAN V STATE [2001] 8 NWLR [Pt. 746] 793 @ 819 – 820; JOHNSON ADEYEMI V STATE [2013] 3 NWLR [Pt. 1340] 78 @ 88 – 89.
In situation (3) as described above and (4) as it happened in this case, the failure to call the interpreter or translator has gone beyond the application of the Judges Rules into a consideration of the Rule of Hearsay Evidence.
In the instant case, the failure to call Eyefiok Udo Umuken who interpreted the statement of 3/3/1999 Exhibit 5 as a witness is fatal to the case of the Respondent.
The full statement of the position of the law in relation to the circumstances of this case would be found in the leading judgment of Bode Rhodes-Vivour, JSC in the case F.R.N. V MOHAMMED USMAN & ANOR. [2012] 8 NWLR [Pt. 1301] 141 @ 159 – 161.
First, at pages 159 – 160 that:
The issue in this appeal simply put is whether it is hearsay when an interpreter who interprets an alleged confessional statement to a police officer does not testify. In both cases relied on by the Appellants’ counsel the issue of interpreter was not discussed since it never arose.
I must do some explanation. The police officer detailed or directed to obtain a statement from the accused person may not understand the language spoken by the accused person, and so the services of an interpreter is needed. The interpreter acts as interpreter between the police officer and the accused person. The interpreter understands the language spoken by the accused person and the English language. He speaks to the accused person in the accused person local dialect and tells the police officer in English exactly what the accused person said. The police officer records it in English and that is the statement of the accused person. Usually the statement is recorded in the local dialect with English translation and both documents are admissible in evidence as the statement of the accused person. Before these documents are admissible in evidence the police officer who recorded the statement and the interpreter must testify in Court. This is vital testimony. In Court, the interpreter is expected to tell the Court the questions he asked the accused person on behalf of the police officer and the response given by the accused person. It is only when this is properly done that it can be said that the truth of the statement has been established. The Court would have no difficulty concluding that the statement is a correct reproduction of what the accused person told the interpreter.
When the purpose for tendering a statement is to establish the truth of its contents, and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in Court. The statement is hearsay and inadmissible if the interpreter does not testify in Court. See OGBUEWU V QUEEN [1949] 12 WACA p. 483: GIDADO V R. [1940] 6 WACA p. 60; NWAEZE V STATE [1996] 2 NWLR [Pt. 428] p.1
Second, at pages 160 – 161, that:
Hearsay evidence is secondary evidence of an oral statement best described as secondhand evidence. What a witness says he heard from another person is unreliable for many reasons. For example he may not have understood the informant/interpreters, or he may say things that were never said. Such evidence remains hearsay evidence because it cannot be subject to cross-examination in the absence of the informant/interpreters.
In Shivero v The State [1976] Vol. 10 NSCC p. 197. The appellant stabbed the deceased with a knife in the presence of two eyewitnesses. After the stabbing, the appellant ran away with the knife. The deceased died later. Thereafter, the appellant went to the local police station to give himself up. At the police station, the police officer-in-charge could not understand or speak the appellant?s language, so he asked another policeman to act as interpreter. As a result of what the interpreter told the police officer-in-charge about an admission made by the appellant, the appellant was asked to take the police officer to the place where he [the appellant] had hidden the knife with which the deceased was stabbed. The appellant duly took them to the place and the knife was recovered there.
At the trial of the appellant for the murder of the deceased, the police officer testified as to the admission made to him by the appellant through the interpreter. Although the interpreter did not give evidence at a trial the trial judge nevertheless relied on admission and other evidence in convicting the appellant. This Court held that:
1. as the interpreter who interpreted the alleged admission of the appellant to the police officer did not testify at the trial, the admission in those circumstances is certainly hearsay and was therefore clearly inadmissible
2. that notwithstanding this wrongful admission of evidence, however the appellant could still have been convicted on the admissible evidence of eye-witnesses and that of the doctor who performed the post-mortem which were rightly accepted by the learned trial judge together with the testimony about the voluntary visit of the appellant to the police station and as to how the knife used to attack the deceased was recovered.
The statement of Shivero was held to be hearsay evidence and so inadmissible. He was still convicted on the strength of evidence from eyewitnesses, and the doctor who performed the post-mortem.
Third and finally that:
It now becomes clear that where a conviction is based solely on a confessional statement, and the interpreter who acted as interpreter when the said statement was obtained did not testify, the confessional statement is hearsay evidence and the accused person is entitled to an acquittal.
Both statements Exhibits 1 and 2 of the respondents were obtained with the help of an interpreter. The 2nd respondent was cautioned by the PW1 Adewale Nwani [Police Sgt. 188427]. His statement was obtained in Hausa language by Sgt. Andrew Allison and interpreted to PW1, and thereafter explained to the 2nd respondent.
The same scenario repeated itself in the case of the 1st respondent. PW2 Cpl. Loves Otu [No. 208891] cautioned the 1st respondent. Insp. Likita Bello was the interpreter. The interpreters, Sgt. Andrew Allison and Insp. Likita Bello did not testify. The testimony of PW1 and PW2 was on what they were told by Sgt. Andrew Allison and Insp. Likita Bello [interpreters]. Their testimony was given to establish the truth of the contents of the statement of the appellants.
Both statements are hearsay evidence and clearly inadmissible. Since there is not a shred of evidence apart from the said statements the respondents ought to have been acquitted on both counts and discharged.
In the instant case as in the case of F.R.N. V. USMAN [supra] but unlike the case of SHIVERO V THE STATE [1976] Vol. 10 NSCC p. 197 there is no other evidence left to convict the Appellant outside of the Appellant’s confessional statements Exhibit 2 and 5. This is because the trial Court relied solely on Exhibits 2 and 5 to convict the Appellant. Thus, the failure of Exhibits 2 and 5 is the failure of the Respondent’s case.
In the circumstance, the only issue in this appeal is resolved in favour of the Appellant. The appeal is meritorious and it is allowed.
The judgment conviction and sentence of Hon. Justice Anefiok Udoh in suit No. HEK/10C/2001 delivered on 25th day of February 2008 are set aside.
The Appellant, Eyakeno Imoh Imoh is accordingly acquitted and discharged of the offence of murder.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA and I am in agreement with the resolution of the issues settled for determination. I have nothing more to add. I too allow the appeal and set aside the judgment of the trial Court. I abide by the others made therein.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in draft the judgment of my learned brother, Mojeed A. Owoade JCA, just delivered and I completely agree with the reasoning and conclusion therein that all the lingering doubts in the prosecution’s case must be resolved in favour of the accused person.
Onus of proof in criminal cases does not shift as the burden throughout lies on the prosecution in criminal trial, which must prove the guilt of the accused. Any doubt in the prosecution’s case must be resolved in favour of the accused person. See BELLO V STATE (2007)10 NWLR (pt 1043) 564 and IGABELE V STATE (2006)6 NWLR (pt 975)100.
In the instant case, there was no other evidence left to convict the appellant outside the retracted confessional statement.
Although, an accused person can be convicted solely on his retracted confessional statement but the Court must be satisfied that the accused made that statement and also the circumstances which gave credibility to the contents of the confession. The failure on the part of the prosecution in this case to call Eyefiok Udo Umoren who interpreted the appellant’s statement of 3/3/1999, Exhibit 5 is fatal to the prosecution’s case.
The appeal has accordingly succeeds and the judgment of the trial Court which convicted the appellant is liable to be set aside. Resultantly, the appellant is discharged and acquitted of the offence of murder charged.
Appearances:
EDIDIONG AKPANUWA, Esq.For Appellant(s)
ANIETIE INYANG, Esq., (Min. of Justice, Akwa Ibom State)For Respondent(s)
