GIDADO ADAMU v. THE STATE (2019)

GIDADO ADAMU v. THE STATE

(2019) LCN/4833(SC)

In The Supreme Court of Nigeria

On Thursday, the 21st day of February, 2019

SC.72/2017

RATIO

THE ESSENTIAL ELEMENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH UNDER SECTION 221 (B) OF THE PENAL CODE THAT MUST BE PROVED BY THE PROSECUTION BEYOND REASONABLE DOUBT; METHODS BY WHICH A PROSECUTION MAY DISCHARGE THIS BURDEN PLACED ON IT BY THE LAW

As stated earlier, the appellant was charged with culpable homicide punishable with death under Section 221 (b) of the Penal Code. In order to secure a conviction, the prosecution must prove the following essential elements of the offence beyond reasonable doubt: (i) The death of a human being; (ii) That the death was caused by the accused; (iii)The act of the accused which resulted in the death of the human being was done with the intention of causing death or grievous bodily harm; or (iv)The accused knew that death would be a probable but not just likely consequence of his act. See: Maiyaki Vs The State (2008) 7 SC 128 @ 129; Usman Vs The State (2013) 12 NWLR (Pt. 1367) 76; Bright Vs The State (2012) 8 NWLR (Pt. 1302) 297 @ 302. In discharging this burden, the prosecution usually adopts one or a combination of the following methods: 1. By direct eye-witness evidence.2. By circumstantial evidence.3. By the confessional statement of the accused.See:Emeka Vs State (2001) 14 NWLR (Pt. 734) 666 @ 683; Abirifon Vs The State (2013) 13 NWLR (Pt. 1372) 587; Igabele Vs The State (2006) 6 NWLR (Pt. 976) 100 @ 120 – 121 H A. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

DEFINITION OF A CONFESSION; CIRCUMSTANCE UNDER WHICH A COURT MAY RELY SOLELY ON THE CONFESSION TO GROUND A CONVICTION

Section 28 of the Evidence Act, 2011 defines a confession as “an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.” Section 29 (1) and (2) of the Act provides that a confession is relevant and admissible in evidence, so long as it is voluntarily made and not as a result of threat or inducement. Where a Court is satisfied that a confession was freely and voluntarily made and that it is direct, positive and unequivocal as to the accused person’s participation in the crime alleged, it may rely solely on the confession to ground a conviction. See: Igbinovia Vs The State (1981) LPELR – 1446 (SC) @ 17 B -D, Onyejekwe Vs The State (1992) 4 SCNJ 1 @ 8; Omoju Vs FRN (2008) 2 SCN 164 @ 177; Adeyemi Vs The State (2014) 13 NWLR (Pt. 1423) 132. These authorities illustrate the substantial weight accorded to a confessional statement in the process of evaluating the evidence adduced by the prosecution. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

CONDITIONS THAT MUST BE SATISFIED IN ORDER TO ENSURE THE CORRECTNESS AND ACCURACY OF A STATEMENT MADE BY AN ACCUSED PERSON IN A LANGUAGE OTHER THAN THE ENGLISH LANGUAGE.

In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36(6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the Court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in Court. It affords the accused person the opportunity to challenge in Court if the need arises, his statement as originally recorded or its translation. It enables the Court to be satisfied that it is his true statement. For this reason, it was held by this Court that the recorder of the statement as well as the interpreter must be produced in Court as witnesses, otherwise the statement remains hearsay and inadmissible in evidence. See: F.R.N. Vs Usman (2012) 8 NWLR (Pt. 1301) 141 @ 159 – 160 D – B; 161 C – G; 163 C – H; Nwaeze Vs The State (1996)2 NWLR (Pt. 428) 1 @ 20; Queen Vs Zakwakwa (1960) Vol. 1 NSCC 8 @ 9. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

TESTS THAT A CONFESSIONAL STATEMENT MUST BE SUBJECTED TO, TO CONFIRM ITS TRUTHFULNESS AND VERACITY

It is also settled law that where a Court relies on a confessional statement in convicting an accused, it ought to subject the statement to some tests to satisfy itself that the alleged confession is true. This test requires the consideration of some other evidence outside the confession, no matter how slight. The Court is enjoined to consider the following: Whether there is anything outside the confession which shows that it may be true; 2. Whether the confessional statement is corroborated; 3. Whether the relevant statements of fact made in it are most likely true as far as they can be tested; 4. Whether the accused had the opportunity of committing the offence; 5. Whether the confession is possible; and 6. Whether the alleged confession is consistent with other facts that have been ascertained and established. See: R. v. Skykes (1913) Cr. App. Rep. 233; Ubierho Vs The State (2002) 5 NWLR (Pt. 819) 644 @ 655; Nwachukwu Vs The State (2007) 17 NWLR (Pt. 1062) 31. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHETHER THE PROSECUTION IS UNDER A DUTY TO CALL A PARTICULAR NUMBER OF WITNESSES TO DISCHARGE ITS BURDEN OF PROVING ITS CASE BEYOND REASONABLE DOUBT

It is correct, as submitted by learned counsel for the respondent that there is no particular number of witnesses required to discharge its burden of proving its case beyond reasonable doubt. What is important is the quality of the evidence adduced. It is for this reason that a conviction may be based on the evidence of a single witness if it is credible. See: Akalezi Vs The State (1993) 2 NWLR (Pt. 273) 1; Adisa Vs The State (2014); LPELR 24221 (SC) at 28 – 29 F-A; Afolalu Vs The State (2010) 16 NWLR (Pt. 1220) 584. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

EFFECT OF THE FAILURE TO CALL A VITAL AND MATERIAL WITNESS ON THE PROSECUTION’S CASE

WHO IS A VITAL OR MATERIAL WITNESS

A material or vital witness is one whose evidence may determine the case one way or another. See: Hassan Vs The State (2016) LPELR – 42554 (SC) @ 18 B – C; Smart Vs The State (Supra); Ochiba Vs The State (2011) 17 NWLR (Pt. 1277) 663. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

JUSTICES

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

Between

GIDADO ADAMU Appellant(s)

AND

THE STATE Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the Court of Appeal, Yola Division, delivered on 22/3/2016, which affirmed the judgment of the High Court of Taraba State, Jalingo Judicial Division, delivered on 20/5/2014 convicting the appellant of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code and sentencing him to death.

The appellant was alleged to have stabbed one Shuaibu Ahmed on the ribs with a knife on 30th September, 2011 at about 7pm at Namnai Village in Gassol Local Government Area within Jalingo Judicial Division, which act resulted in his death. The appellant pleaded not guilty to the charge. The prosecution called one witness, Sgt. Danjuma Manga, one of the Investigating police officers. The extra Judicial statement of the appellant was tendered through him and marked Exhibit GA1. The appellant testified on his own behalf and called no other witness.

As stated above, at the conclusion of the trial the appellant was found guilty as charged and sentenced to death. The learned trial Judge relied

heavily on the appellant’s statement in reaching the guilty verdict. He considered and rejected the defence of provocation allegedly raised in the said statement.

His appeal to the lower Court was unsuccessful, hence the further appeal to this Court. At the hearing of the appeal on 6/12/18, L.O. Fagbemi Esq., adopted and relied on the appellant’s brief, which was deemed filed on 21/6/18 and his reply brief also deemed filed on 21/6/18 in urging the Court to allow the appeal. Y.N. Akirikwen Esq., Hon. Attorney General for Taraba State adopted and relied on the respondent’s brief deemed filed on 21/6/18 in urging the Court to dismiss the appeal.

Learned counsel for the appellant formulated three issues for determination as follows:
1. Whether having regard to the facts and circumstances of the case, the Court of Appeal was right in affirming the trial Court’s judgment admitting and relying on the extra judicial confessional statement of the Appellant (Exhibit GA1) in the absence of an Hausa Language version of Exhibit GA and without the interpreter and recorder of Exhibit GA1 being called as a witness. (Ground 1)

Whether the respondent proved the case of culpable homicide against the appellant beyond reasonable doubt, as required by law to justify the conviction and sentence of the Appellant to death by hanging, considering the totality of the evidence at the trial (Grounds 2 and 3).
3. Whether the defence of alibi validly raised by the appellant does not avail him in the circumstances of this appeal (Ground 4).Learned counsel for the respondent identified two issues for determination thus:
a. Whether Exhibit GA1 qualifies as a confessional statement and if so, whether the Court below rightly relied on same in affirming the conviction and sentence of the appellant by the trial Court (Grounds 1, 2 and 3)
b. Whether the defence of alibi avails the appellant, regard being had to the evidence led during trial
I shall adopt the issues formulated by the appellant for the resolution of the appeal.Issue 1
In support of this issue, learned counsel for the appellant submitted that it is not in doubt, as can be gleaned from the printed record, that the appellant is illiterate and can neither read nor write in English Language. That the record shows that the only

language understood by him is Hausa Language and that for the proceedings, an interpreter was provided by the Court to interpret from English to Hausa and vice versa. He referred to the evidence of the sole witness for the prosecution who stated that as part of the investigation, he recorded the statement of the appellant, allegedly confessional, which was tendered and admitted in evidence as Exhibit GA1. He noted that on the face of Exhibit GA1, the recorder was indicated as one Corporal Daniel Gbohive and not PW1. He noted that although it was stated on Exhibit GA1 that the statement was taken in English Language and read over and translated to the appellant in Hausa Language, the transcribed version in Hausa Language was never produced before the Court. He submitted that the evidence of PW1, Danjuma Manga, that he recorded the appellant’s statement cannot be true.

Learned counsel also noted that from the endorsement on Exhibit GA1, it was recorded on 18/10/2011, which is contrary to the evidence of PW1 who said he recorded it on 14/10/2011. He submitted that the person who interpreted Exhibit GA1 was not called to testify.

He submitted that the position of the law is that when a statement is taken with the aid of an interpreter in any language other than English Language, the original statement and its interpretation must be tendered in evidence and that failure to tender both versions of the statement would render the said confessional statement inadmissible. He referred to the case of: FRN Vs. Usman (2012) 8 NWLR (Pt. 1301) 141 @ 159 D- F; Olanipekun Vs The State (2016) 13 NWLR (Pt. 1528) 100 @ 117 C – G and the much older case of Queen Vs Zakwakwa (1960) Vol. 1 NSCC 8 @ 9. He submitted that in the circumstances of the instant case, the failure to tender the Hausa Language version of Exhibit GA by the prosecution renders the statement inadmissible and that the reliance placed on it by the lower Court should not be allowed to stand. He urged the Court to expunge Exhibit GA1 relying on: Zubairu Vs The State (2015) 16 NWLR (Pt. 1486) 504 @ 525 B – D; Olayinka Vs The State (2007) 9 NWLR (Pt. 1040) 561 @ 577 – 578 H – A.

In support of the contention that Exhibit GA1 amounts to hearsay when the recorder and interpreter were not called to testify, he relied on some recent

decisions of this Court in Ifaramoye Vs The State (2017) 8 NWLR (Pt. 1568) 457 482- 484 G- G; FRN Vs Usman (Supra ) @ 159 – 160 E – B. He contended that doubt has been created by the contradiction in the evidence of PW1 as to who recorded Exhibit GA1 and the date on which it was recorded, which ought to have been resolved in the appellant’s favour. He referred to: State Vs Azeez & Ors (2008) 14 NWLR (Pt. 1108) 439 @ 482 – 483 H – Di Chukwu Vs The State (1996) 7 NWLR (Pt. 463) 686 @ 701 G H.

He submitted that notwithstanding the fact that Exhibit GA1 was admitted without objection, being hearsay, it is inadmissible and this Court has the power to expunge it, as the decision of a Court can only be based on legally admissible evidence. He referred to Ifaramoye Vs The State (Supra) and Zubairu Vs The State (Supra) at Page 525 B – D.

In response, learned counsel for the respondent submitted, relying on Hassan Vs the State (2001) 15 NWLR (Pt. 735) 184; Gira Vs The State (1996) 4 NWLR (Pt. 443) 375 and Hassan Vs The State (Supra), that where an accused person makes a statement under caution admitting the

charge or creating the impression that he committed the offence with which he is charged, it amounts to a confession and that a voluntary confession of guilt, which is direct, positive, duly made and satisfactorily proved, is sufficient to ground a conviction. He submitted that in Exhibit GA1, the appellant admitted that he stabbed the deceased in the ribs, which act ultimately led to his death.

On the failure to tender the Hausa version of Exhibit GA1, he submitted that the contention that PW1 was not the recorder of Exhibit GA1 is unfounded. He posited that the statement said to have been recorded by Corporal Daniel Gbohive could not be the same statement as the one recorded by PW1 on 14/10/2011 before he transferred the case file to the State C.I.D. He noted that from the supplementary record at pages 10 and 11, the statement recorded by Cpl. Gbohive was recorded on 18/10/2011. He submitted that, part of the statement recorded by PW1 was reproduced in the judgment of the trial Court at pages 54 and 55 of the record. He also referred to page 21 of the record, lines 17 and 18 thereof. He noted however that the statement from which the learned

trial Judge produced an extract, does not form part of the record of appeal in this matter.

Learned counsel argued that no attempt has been made to challenge any of the concurrent findings of the two lower Courts. He stated inter alia, at page 8 paragraph 4.17 of his brief:
“The only decipherable conclusion that can be drawn from this scenario, is that the appellant’s confessional statement, Exhibit GA1, was never transmitted to the Court below in which case, the record before the Court below would have been without the said exhibit, probably because the statement of the appellant was not a principal issue before the lower Court and nobody bothered about it.”

He submitted that since the extract of the appellant’s extra judicial statement which the trial Court admitted as Exhibit GA1 was not the statement upon which the appellant’s appeal to the Court below and to this Court were hinged, the implication is that there was no appeal against the judgment of the trial Court ab initio. He submitted further that the statement of the appellant which appears at pages 10 and 11 of the main record, differs in some material particulars from the statement at pages 7 and

8 of the same record, even though they are supposed to be copies of the same document. He noted that in the statement reproduced at pages 10 and 11 of the main record, is shown to have been taken in English Language and explained to the accused witness in English Language, while the statement at pages 7 and 8 of the additional record states that the statement was taken in English Language and explained to the accused/witness in Hausa Language.

He submitted that this Court cannot pick and choose between the two versions. He however submitted further that the statement admitted by the Court as Exhibit GA1 as shown in the proceedings at page 21 of the record and captured at pages 54 and 55 of the record is direct, positive and unequivocal in establishing all the elements of the offence of culpable homicide punishable with death. He submitted that both lower Courts so found and urged this Court not to disturb these findings.

(i) The death of a human being;
(ii) That the death was caused by the accused;
(iii)The act of the accused which resulted in the death of the human being was done with the intention of causing death or grievous bodily harm; or
(iv)The accused knew that death would be a probable but not just likely consequence of his act.
See: Maiyaki Vs The State (2008) 7 SC 128 @ 129; Usman Vs The State (2013) 12 NWLR (Pt. 1367) 76; Bright Vs The State (2012) 8 NWLR (Pt. 1302) 297 @ 302.
In discharging this burden, the prosecution usually adopts one or a combination of the following methods:
1. By direct eye-witness evidence.
2. By circumstantial evidence.
3. By the confessional statement of the accused.
See:Emeka Vs State (2001) 14 NWLR (Pt. 734) 666 @ 683; Abirifon Vs The State (2013) 13 NWLR (Pt. 1372) 587; Igabele Vs The State (2006) 6 NWLR (Pt. 976) 100 @ 120 – 121 H A.

In the instant case, the two lower Courts placed substantial reliance on the appellant’s alleged confessional statement.

The trial Court referred to the statement as Exhibit GA while the lower Court referred to it as Exhibit GA1.

In the instant case, it is argued on behalf of the appellant, that being illiterate in English Language, for his confessional statement to have been properly before the Court for consideration, both the English and Hausa versions ought to have been tendered.
In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36(6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the Court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in Court. It affords the accused person the opportunity to challenge in Court if the need arises, his statement as originally recorded or its translation. It enables the Court to be satisfied that it is his true statement. For this reason, it was held by this Court that the recorder of the statement as well as the interpreter must be produced in Court as witnesses, otherwise the statement remains hearsay and inadmissible in evidence. See: F.R.N. Vs Usman (2012) 8 NWLR (Pt. 1301) 141 @ 159 – 160 D – B; 161

C – G; 163 C – H; Nwaeze Vs The State (1996)2 NWLR (Pt. 428) 1 @ 20; Queen Vs Zakwakwa (1960) Vol. 1 NSCC 8 @ 9.

I have carefully examined the record of proceedings in this appeal. There is no indication that the statement of the appellant was recorded in any other language. In the course of his testimony, PW1, Sgt. Danjuma Manga stated inter-alla at page 20 of the record:
.The accused fled the village. But on 14/10/2011 the accused was arrested. I recorded his statement under words of caution. Later on my superior directed that I transfer the case to CID Jalingo. This is all I did in this case. I can identify the statement of the accused by my handwriting and signature.”

The only objection raised by learned counsel for the appellant was that there was nothing in the statement to show that it was recorded by PW1. The learned trial Judge overruled the objection on the ground that it was not contended that the statement was not voluntarily made. It was then admitted into evidence and marked Exhibit GA1. PW1 did not state that he employed the services of an interpreter or that he himself took the appellant’s statement

in Hausa language and recorded it in English Language. The typed statement of the appellant copied into the record at 10 was recorded on 18/10/2011 at CID Jalingo by one Cpl. Daniel Gbohive. It is stated to have been taken in English Language and read over and translated to the accused/witness in English Language. A copy of a handwritten statement recorded by the same Cpl. Daniel Gbohive on 18/10/2011 is also copied into the Additional Record of Appeal at pages 7 – 8. Therein, on page 8, it is stated that the statement was taken in English Language and read over and translated to the accused witness in Hausa Language. Neither of these two documents is the statement said to have been recorded by PW1 on 14/10/2011 at Mutum Biyu Divisional Police Headquarters.

Now it is pertinent to recall that the statement recorded by PW1 on 14/10/2011 was admitted in evidence and marked Exhibit GA1. The learned trial Judge however referred to the statement throughout the judgment as Exhibit GA.

Learned counsel for the respondent contended at page 8 paragraph 4.17 of his brief that the statement from which the extract relied upon by the learned trial Judge

emanated, did not form part of the record before the lower Court. It is also noteworthy that only one document was admitted in evidence. Although an additional record was transmitted to this Court on 12/9/2017, the statement recorded by PW1 on 14/10/2011 does not form part of it. Indeed, learned counsel for the respondent admitted as much in paragraph 4.17 of his brief where he stated:
“The only decipherable conclusion that can be drawn from this scenario is that the Appellant’s confessional statement, Exhibit GA1 was never transmitted to the Court below, in which case, the record before the Court below would have been without the said exhibit probably because the statement of the appellant was not a principal issue before the lower Court and nobody bothered about it.”

This is a very damning statement having regard to the fact that the appellant’s conviction was based on the alleged confessional statement. It is evident therefore that Exhibit GA relied upon by the learned trial Judge at pages 54 – 55 and 57 of the record did not form part of the record before him. There was no exhibit marked GA. It was also not shown to have formed part of the record

before the Court below. In the course of his submissions before the lower Court, learned counsel for the respondent stated at paragraph 4.06 of his brief (page 107 of the record) as follows:
“My Lords, the evidence clearly linked the appellant with the commission of the offence i.e. culpable homicide of which he was charged. The appellant was rightly convicted on the strength of this (sic) confessional statement… Pages 10 – 11 of the record of appeal.”

Although the lower Court in its judgment referred to Exhibit GA1 (as opposed to Exhibit GA admitted in evidence at page 20 and 21 of the record), there is nothing in the record to show that the statement being referred to by the two Courts is the same. At the risk of repetition, the statement at pages 10 -11 of the record is not the statement recorded by PW1. As the discrepancy was not resolved either at the trial Court or the Court below, there is some doubt as to which statement formed the basis of the decision of the trial Court which was affirmed by the Court below. The doubt must be resolved in favour of the appellant.
This issue is therefore resolved in the appellant’s favour.

Issue 2
In support of the second issue, learned counsel submitted that there were some discrepancies in the testimony of PW1, the sole witness for the prosecution. He submitted that while he stated during his evidence in chief that he received a report from one Benjamin James on 30/9/2011 regarding the stabbing of the deceased and that he visited the scene and recovered the knife used and also conveyed the deceased to the hospital where he eventually died, under cross examination, he stated that he visited the scene of crime on 15/10/2011. He noted that there was no medical evidence as to the cause of death and that Benjamin James, the only eye witness did not testify. He submitted that no reason was given for not calling him.

He submitted that there was no evidence outside Exhibit GA1 that established the guilt of the appellant. Relying on the case of: Adekoya Vs The State (2013) ALL FWLR (Pt. 662) 1632 @ 1651 – 1652 H – F, he submitted that the lower Court failed to subject the alleged confessional statement to the required test to determine if it was true. He also referred to: State Vs Azeez (2008) 14 NWLR (Pt. 1108) 439 @ 477 E – H.

He submitted that the prosecution has a duty to prove all the elements of the offence charged and that where even one element is missing, the charge is not proved. He referred to: Adava & Anor. Vs The State (2006) 9 NWLR (Pt. 984) 152 @ 167 F – H. He argued that though the prosecution is not bound to call a host of witnesses, it must call material witnesses. He contended that Benjamin James was a material witness and that failure to call him was fatal to the prosecution’s case. See: Ogudo Vs The State (2011) 18 NWLR (Pt. 1278) 1 @ 31 G – H; State Vs Azeez (Supra);, Zubairu Vs The State (2015) 16 NWLR (Pt. 1486) 504 @ 525 E – G. He urged the Court to invoke Section 167 (d) of the Evidence Act against the respondent.

He argued further that failure to tender the knife said to have been recovered from the scene was also fatal to the respondent’s case. He submitted that failure to tender the medical report to establish the cause of death is tantamount to withholding evidence and urged the Court to invoke Section 167(d) of the Evidence Act against the respondent.

On these two issues, he referred to The People of Lagos State Vs Umar (2014) LPELR – 224666 (SC) @ 56 – 59 G – A and Zubairu Vs The State (Supra) @ 525 526 H F.

In response, learned counsel for the respondent referred to page 51 lines 22 – 24 of the printed record where the learned trial Judge stated inter alia; “I have carefully scrutinized Exhibit GA and subjected same to the standard principles of law in testing a confession as enunciated in the case of Oladipo Vs The State (2013) 1 NWLR (Pt. 1334) 68 @ 72 R. 3,” and submitted that it was not correct to state that the trial Court did not subject the statement to the required test. He submitted that it was after the “fine tooth comb evaluation of the said confessional statement” that the learned trial Judge found that it had passed the test.

On the failure to call Benjamin James as a witness, he submitted that what is required is for the prosecution to adduce evidence credible enough to establish the ingredients of the offence using any of the established methods. He referred to Idiok Vs The State (2008) 13 NWLR (Pt. 1104) 225. He submitted that in the circumstances of this case, the appellant’s confessional statement was direct

and positive and therefore sufficiently established the guilt of the appellant. He submitted that an accused person may be convicted on his confessional statement alone without corroborative evidence. He cited the case of Edamine Vs The State (1996) 3 NWLR (Pt. 438) 530. He submitted that Section 167 (d) of the Evidence Act does not arise as the record shows that efforts were made to secure the attendance of other witnesses but the prosecution had to close its case after several adjournments yielded no fruit.

On the failure to tender the murder weapon and the medical report, he submitted that the omission is of no moment where there is cogent and reliable evidence which the Court believes, establishing the complicity of the accused in the commission of the offence and where there is other conclusive evidence showing beyond reasonable doubt that it was the act of the accused that caused the death of the deceased. He cited several authorities, including: Azu Vs The State (1993) 6 NWLR (Pt. 299) 303; Essien vs The State (1984) 3 SC 14 @ 18; Adama Vs Kano Native Authority (1956) F.S.C. 25. He submitted that the death of the deceased may be inferred from

surrounding circumstances. He maintained that the respondent established the guilt of the appellant beyond reasonable doubt.

In resolving issue 1, I held that the lower Court erred in affirming the appellant’s conviction based on Exhibit GA1 because of the discrepancy in the record as to which statement made by the appellant was before the Court. The statement relied upon by the trial Court did not form part of the record before the Court below. Furthermore, while the trial Court admitted in evidence a statement marked Exhibit GA1, said to have been recorded by PW1 on 14/10/2011, in the course of its judgment it referred to Exhibit GA, which has not been shown to be part of the record before this Court or the Court below.

Whether there is anything outside the confession which shows that it may be true;
2. Whether the confessional statement is corroborated;
3. Whether the relevant statements of fact made in it are most likely true as far as they can be tested;
4. Whether the accused had the opportunity of committing the offence;
5. Whether the confession is possible; and
6. Whether the alleged confession is consistent with other facts that have been ascertained and established.
See: R. v. Skykes (1913) Cr. App. Rep. 233; Ubierho Vs The State (2002) 5 NWLR (Pt. 819) 644 @ 655; Nwachukwu Vs The State (2007) 17 NWLR (Pt. 1062) 31.Now, the only witness who testified for the prosecution was PW1, Sgt. Danjuma Manga. He testified as follows from page 19 lines 25 – 26 to page 20 lines 1- 11:
“I know the accused in the dock. He was brought before me as a suspect. On the 30/9/2011 at about 1845hrs (6.45pm) one Benjamin James of Namnai Village in Gassol L.G.A. came to the police Hiqtrs Mutum Biyu and reported that Shuabu Ahmad (deceased) and himself went to Gidado Adamu (the accused) to discuss about the ploughing of a portion of land as a result a fight ensured (sic) between them. Gidado Adamu removed his knife from his waste

(sic) and stabbed Shuabu Ahmad with it. I went to the scene of crime and took the deceased to the Referral Hospital Mutum Biyu while he was receiving treatment, he died in hospital. I recovered a knife at the scene of the crime. The accused fled the village. But on 14/10/2011 the accused was arrested. I recorded his statement under words of caution. Later on my superior directed that I transfer the case to CID Jalingo. This is all I did in this case.”

There was no independent evidence before the Court as to the identity of the person taken to the hospital by PW1 or what caused his death. Benjamin James who supplied information to PW1 did not testify. He was the only eye witness to the incident.

28 – 29 F-A; Afolalu Vs The State (2010) 16 NWLR (Pt. 1220) 584.

However, where a vital and material witness is not called, the failure could be fatal to the prosecution’s case. See:Alake Vs The State (1992) LPELR – 403 (SC); Smart Vs The State (2016) LPELR – 40728(SC) @ 17 D – E; State Vs Nnolim (1994) 5 NWLR (Pt. 345) 394.
A material or vital witness is one whose evidence may determine the case one way or another. See: Hassan Vs The State (2016) LPELR – 42554 (SC) @ 18 B – C; Smart Vs The State (Supra); Ochiba Vs The State (2011) 17 NWLR (Pt. 1277) 663.

In the instant case, PW1 did not witness what transpired. He relied on information given to him by Benjamin James. His evidence as regards what transpired between the appellant and the deceased is therefore hearsay. The evidence of Benjamin James, an eye witness, was therefore vital. I am of the considered view that the failure to call him to testify in this case was fatal.

The learned trial Judge stated at page 51 of the record that he had subjected the appellant’s confessional statement to the relevant test.

Although he listed the factors to be taken into consideration before relying on a confessional statement, he did not demonstrate in the judgment that he had in fact done so. Indeed, immediately after citing relevant authorities, he stated thus:
“Having admitted Exhibit “GA” and scrutinized same as stated above, I find that it has passed the test enunciated above.”

The Court below affirmed the conviction of the appellant based on the contents of the alleged confessional statement without considering whether there was any other evidence outside the statement that made it probable or whether it was consistent with other facts ascertained and proved. There were no other facts before the Court beyond the testimony of PW1 that he took the deceased to the hospital where he later died.

There is no rule that the weapon used in the commission of an offence must be tendered or that a medical report is the only means by which the cause of death can be determined. Whether or not they are material depends on the facts and circumstances of each case. See: Olayinka Vs The State (2007) 9 NWLR (Pt. 1040) 561 @ 514; The State Vs Ajayi (2016) LPELR – 40663 (SC)@ 51- 52 B – G,

Babarinde Vs The State (2014) 3 NWLR (Pt. 1395) 568. A medical report may not be necessary where there is other evidence upon which the cause of death can be inferred to the satisfaction of the Court. See:Onitilo Vs The State (2017) LPELR – 42576 ISC) @ 19 B – F; Bille Vs The State (2016) LPELR – 40832 (SC); Alarape Vs The State (2001) 5 NWLR (Pt. 705) 79. The tendering of the medical report as to the cause of death of the deceased in this case would have been of immense assistance to the Court in the absence of any eye witness testimony. The alleged confessional statement of the appellant not having been subjected to the required test, the lower Court ought not to have affirmed the conviction based on it. There is some doubt in this case which ought to have been resolved in the appellant’s favour.

This issue is accordingly resolved in favour of the appellant. Having resolved issues 1 and 2 in favour of the appellant, I do not deem it necessary to consider issue 3.

In the final analysis, I find merit in this appeal and it is hereby allowed. The judgment of the lower Court affirming the conviction and sentence imposed on the appellant by the

trial Court is hereby set aside. I hold that the respondent failed to establish the guilt of the appellant beyond reasonable doubt. His conviction and sentence by the trial Court on 20/5/14 are hereby set aside. He is accordingly acquitted and discharged.
Appeal allowed.

IBRAHIM TANKO MUHAMMAD, Ag. C.J.N.: This is an appeal against the judgment of the Court of Appeal, Yola Judicial Division delivered on the 22nd day of March, 2016.

I have the privilege of reading in draft, the judgment of my learned brother, Kekere-Ekun, JSC. I agree with his reasoning and conclusion that the appeal has merit and should be allowed. I too allow the appeal.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Kudirat M. O. Kekere-Ekun JSC and to underscore the support in the reasonings from which the decision came, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal of Yola Division or Court below or Lower Court delivered on 22nd day of March 2016, Coram: Tijani Abdullahi, Saidu Tanko Hussaini and

Biobele Abraham Georgewill JJCA in which the Lower Court affirmed the decision of the learned trial judge, Ali I. Andeyangtso convicting and sentencing the appellant for the offence of culpable homicide punishable with death under Section 221 (a) of the Penal Code.

The detailed facts of this appeal are well set out in the leading judgement and so I shall not repeat them unless the occasion at any point warrants a reference to any part.

At the hearing on the 6/12/18, learned counsel for the appellant, L. O. Fagbemi Esq., adopted the brief of argument filed on 25/8/17 and deemed filed on 21/6/18 and a reply brief filed on 28/12/17 and deemed filed 21/6/2018. The appellant identified three issues for determination which are thus:-
1. Whether having regard to the facts and circumstances of this case, the Court of Appeal was right in affirming the trial Court’s Judgment admitting and relying on the extra judicial confessional statement of the appellant (Exhibit GA1), in the absence of an Hausa Language version of Exhibit ‘GA’ and without the interpreter and recorder of Exhibit ‘GAI’ being called as a witness. (Distilled from Ground 1 of the Notice of Appeal).

Whether the respondent proved the case of culpable homicide against the appellant beyond reasonable doubt, as required by law to justify the conviction and sentence of the appellant to death by handing, considering the totality of the evidence led at the trial. (Distilled from Grounds 2 and 3 of the Notice of Appeal).
3. Whether the defence of alibi validly raised by the appellant, does not avail him in the entire circumstances of this appeal. (Distilled from Ground 4 of the Notice of Appeal).Yusuf Nya Akirikwen Esq., the Attorney General of Taraba State for the respondent adopted the brief of argument filed on 16/11/17 and deemed filed on 21/6/18 and in it were crafted two issues for determination, viz:-
a) Whether Exhibit “GA1” qualifies as a confessional statement, and if so, whether the Court below rightly relied on same in affirming the conviction and sentence of the appellant by the trial Court. (Distilled from Grounds 1, 2 and 3 of the Grounds of Appeal).
b) Whether defence of alibi avails the appellant, regard being had to the evidence led during trial. (Distilled from Ground 4 of the Grounds of Appeal).

I shall use the issues as simply drafted by the respondent in the determination of this appeal.

ISSUES 1 & 2:
1. Whether Exhibits”GA1″ qualifies as a confessional statement and if so whether the Court below rightly relied on same in affirming the conviction and sentence of the appellant by the trial Court
2. Whether defence of alibi avails the appellant, regard being had to the evidence led during trial

Learned counsel for the appellant contended that the trial Court admitted in evidence Exhibit ‘GA1’ which is the English version of the confessional statement upon which the Court convicted and sentenced the appellant to death in the absence of the Hausa version and this infraction is fatal to the case of the respondent since the conviction was based upon an inadmissible confessional statement. He cited FRN v Usman (2012) 8 NWLR (Pt.1301) 141 at 159; Olanipekun v State (2016) 13 NWLR (Pt. 1528) 100 at 117; Queen v Zakwakwa (1960) Vol 1 NSCC 80; Zubairu v State (2015) 16 NWLR (Pt.1486) 504 at 525; Olayinka v State (2007) 9 NWLR (Pt.1040) 561 at 577-578; Ifaramoye v State (2017) 8 NWLR (Pt.1568) 457 at 482-484.

That the evidence of PW1 is hearsay which is inadmissible. He referred to Ifaramoye v State (supra); FRN v Usman (supra) page 160.

It was further contended that the trial Court did not subject the confessional statement to the veracity test as to the truth of the confessional statement and this not having been done the conviction based on that statement is not sustainable. He cited Adekoya v The State (2013) All FWLR (Pt. 662) 1632 at 1651- 1652; Alo v State (2015) 9 NWLR (Pt.1464) 238 at 270-271; Kolawole v State (2015) 9 NWLR (Pt.1460) 134 at 165.

It was contended for the appellant that there were missing links in the testimony rendered by PW1 in that the knife he claimed to have recovered was not tendered and the witness PW1 said was crucial was not brought forth. He cited Zubairu v State (2015) 16 NWLR 16 NWLR (Pt.1486) 504 at 525; People of Lagos State v Umar (2014) LPELR-2246 (SC) page 56-59; Section 167 (d) Evidence Act, 2011.

Also raised on behalf of the appellant is that the alibi he put forward timeously and with particulars was not investigated and so a reasonable doubt arises which should be favourably resolved in favour of the appellant. He relied onAugustine Onuchukwu & 2 Ors v The State (1998) 4 NWLR (Pt.547) 578; State v Azeez (supra) at 467; Idemudia v State (2015) 17 NWLR (Pt.1488) 375 at 396; Adebiyi v State (2016) 8 NWLR (Pt.1515) 459 at 479.

Learned counsel for the appellant concluded by saying that the case of the appellant was not proved beyond reasonable doubt and the appellant entitled to acquittal. He cited Abudu v State (1985) 1 NWLR (Pt. 1) 55 at 59; State v Ekanem (2017) 4 NWLR (Pt.1554) 85 at 96.

In response, learned counsel for the respondent submitted that it is trite law that an accused person can be convicted on his confession alone if the factors are right, when such a confession is direct, positive relating to the acts of the accused suggesting that he intend the act, which is the situation in this instance. He cited Gira v The State (1996) 4 NWLR (Pt.443) 375; Hassan v The State (supra); Akpan v State (1992) 7 SCNJ 22; Yesufu v State (1976) 6 SC 167; Ogoala v The State (1991) 2 NWLR (Pt.175) 509.

He stated that there is no basis for disturbing the concurrent findings of the two lower Courts as there is nothing perverse in what happened in those lower Courts. He referred to Akayipi v Akapiyi (2009) 11 NWLR (Pt. 11523) 217; Ogunjumo v Ademolu (1995) 4 NWLR (Pt. 389) 254.

That the non tendering of the murder weapon was inconsequential. He cited Garba v State (2000) 4 SC 157; Gbadamosi v The State (1991) 6 NWLR (Pt.196).

Also not fatal, learned counsel for the respondent stated is the failure to tender a medical evidence as there was sufficient evidence on which the conviction could be sustained. He relied on Oko Agwu Azu v The State (1993) 6 NWLR (Pt.299) 303; Akpuenya v The State (1976) 11 SC 269 at 278; Lori v The State (1980) 8-11 SC 81 at 97; Edim v The State (1972) 4 SC 160; Essien v The State (1984) 3 SC 14 at 18; Adekunle v The State (1989) 5 NWLR (Pt.123) 505 at 526; Kato Dan Adamu v Kano Native Authority (1956) FSC 25.

Learned counsel for the respondent submitted that the alibi raised by the appellant would not avail him as the evidence adduced by the prosecution pinned him at the scene of

crime at the material time. He cited Attah v State (2010) 10 NWLR (Pt.1201) 190; Anyanwu v State (2012) 16 NWLR (Pt.1326) 222; Nwabueze v State (1988) 4 NWLR (Pt.70) 274; Attah v State (Supra); Godsgift v The State (2006) 13 NWLR (Pt.1530) 444 at 470-471.

Certain legal principles need be set out in order to find the route to unravel the puzzle at play in this appeal. In that regard, I would restate what has become trite that the law is that once an accused person makes a statement under caution admitting the charge or creating the impression that he committed the offence with which he is charged. Again now settled in law that an accused person can be convicted on his confession once it is voluntarily made if it is direct, positive, duly made and satisfactorily proven and in this situation a conviction of guilty will be secured without corroborative evidence. See Hassan v The State (2001) 15 NWLR (Pt. 735) 184; Gira v The State (1996) 4 NWLR (Pt.443) 375.

The point above made, then a reference to the charge under Section 221 of the Penal Code upon which the appellant is arraigned, the trial concluded with him convicted for culpable

homicide punishable with death. The ingredients of the offence are hereunder stated thus:-
(a) That the death of a human being actually took place;
(b) That such death was caused by the accused;
(c) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death or grievous bodily harm would be the probable consequence of his act. See the cases of Okolo Ochemaje v The State (2008) 15 NWLR (Pt.1109) 57; Akpa v The State (2008) LPELR-368 (SC), Tajudeen Iliyasu v The State (2015) LPELR – 24403 (SC).

By virtue of Section 28 of the Evidence Act, a confessional Statement is one made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. Such a statement is admissible once it is direct and positive relating to the acts of the accused, with knowledge or intention, stating or suggesting the inference that he committed the offence. I place reliance on Akpan v State (1992) 7 SCNJ 22; Yesufu v State (1976) 6 SC 167; Ogoala v The State (1991) 2 NWLR (Pt.175) 509.

The above said then comes the statement admitted at the trial Court as Exhibit ‘GA1’, which on the face of it is confessional and therefore raise the questions, whether it falls in the category of a voluntarily made confessional statement that could on its own alone guarantee a conviction or one needing corroborative evidence to support that indeed that statement is true, representing what the accused appellant said in admission to the crime. The appellant answers in the negative while the respondent takes the contrary, opposite view.

The position of the Court would be taken in con with what transpired at the trial including the facts leading to the making of the statement, Exhibit GA1. From the printed record and not in dispute is that the appellant is an illiterate who can neither write nor read in English language, the language of the Court and that the only language he understood is Hausa and this is supported by the fact that at the trial Court, throughout the whole proceedings an interpreter to the appellant from English to Hausa.

Also not disputed is that after the plea of the appellant opened its case with the evidence of Sgt. Danjuma Manga (PW1) a Police Officer attached to

Mutum Biya Divisional Police Headquarters. He stated that on 30/9/2011, one Benjamin James of Namma Village in Gassol Local Government Area of Taraba State came to the Police Headquarters at Mutum Biya at 6.45 pm and reported that the appellant had killed one Shaibu Ahmad (the deceased) during a fight between them by stabbing him with a knife.

PW1 stated on that he visited the scene of crime and recovered the knife and arrested the appellant on 14/10/2011, a period of about 2 weeks from the commission of the alleged crime. PW1 claimed to have recorded the statement of the appellant under caution and later his superior directed that he should transfer the case to CID Jalingo. The statement was later tendered by pW1 as Exhibit GA1. The statement showed it was taken in English language and translated to the appellant in Hausa language but no Hausa version of the statement was produced before the Court. However, the statement GA1 showed that it was recorded in English by a Cpl. Daniel Gbohive contrary to the claim of PW1 that it was he (PW1) that recorded it and also that the statement was taken on 18/10/2011 after the transfer of the appellant, that date

different from the date of 14/10/2011 which PW1 said was when her took the statement.

Again, out of the unexpected is that neither the interpreter of the said Exhibit GA1 as endorsed on it were called to testify. This was the situation on which the learned trial judge proceeded to conviction of the appellant and the Court below affirmed same.

The facts borne out of the record situated with what the law has provided which is that the confessional statement of the accused such as the case in hand taken with the aid of an interpreter in a language different from English, two statements must be tendered, one in the language of the appellant and the other, the English translation in order that the requirement of the onus of proof beyond reasonable doubt can be taken to have been discharged. That not having been done, is fatal to the case of the respondent as the one version of English is rendered in admissible.
The Apex Court, in the case of Olanipekun v State (2016) 13 NWLR (Pt. 1528) 100 at 117 paras. C-G Per Akaahs, JSC, held as follows:-
“English is the official language of the Court and it does not matter that the statement was said to have been recorded in pidgin English.

The issue of fair hearing would have arisen if the appellant did not understand English at all and the statement had to be recorded in the language he speaks or understands and later translated into English. See Section 36 (6) of Constitution of the Federal Republic of Nigeria (as amended). I am not unaware of the decisions in Queen v Zakwakwa of Yoro (1960) 1 NSCC 8 reported as Zakwakwa v Queen (1960) SCNLR 36 and Nwali v State (1991) 3 NWLR (Pt. 182) 663, the two cases stress the importance of getting the original statement and in the translation and those who did the translations produced in Court for purpose of comparison and testing the veracity of the reinsulated versions. Thus in Queen v Zakwakwa of Yoro (supra) the conviction of the appellant was based on his statement recorded in Mumuye and later translated by different people into Hausa and English. His conviction was set aside because the person’s who translated the statement from Mumuye to Hausa and from Hausa to English was/were not called to be cross-examined.”

The situation reiterated by my learned brothers of this Court in these current times has been an age long principle which has remained almost cast in iron and nothing has happened to have the position reversed and so I refer to the case of Queen v Zakwakwa of Yoro (1960) Vol 1 NSCC page 8:-
“There is considerable doubt whether the statement of the appellant, which is the only direct evidence of his striking Zonvanya, was properly proved. The appellant made it in Mumuye. According to the evidence of L/Cpl. Umoru and L/Cpl. Sabana Jalingo, it was L/Cpl. Umoru who translated from Mumuye to Hausa. The Hausa version was recorded by L/Cpl Sabana. According to the English version (Exhibit 3A) of the statement, however, which is certified as a correct translation by Cpl. Adeyi Ajumbi, it was P. C. Musa Sansidang who translated from Mumuye to Hausa, and Exhibit 3A purports to show that P. C. Musa signed below the Hausa version and above the signature of L/Cpl. Sabana (at that time a police constable) who recorded the Hausa version. It seems extremely unlikely that L/Cpl. Sabana would have allowed anyone except the actual interpreter to sign under the words “Interpreted by me”.

If it was P. C. Musa who did the interpretation, and not L/Cpl. Umoru, then since P. C. Musa was not called as a witness and subject to cross-examination, the Hausa version and the English version are hearsay.
For these reasons, we yesterday allowed this appeal, set aside the conviction and discharged the Appellant.”
Following in the heels of the stated principle above and showcased in those cases cited, clearly the Exhibit GA1 which the respondent holds up as a confessional statement is neither admissible on its own nor can be used as a proper confessional statement on which a conviction can be secured. The situation is considered so dire that it does not matter that no objection was raised to its being tendered and admitted as the Court is obliged to reject it nonetheless in the interest of justice and where it has been admitted, it must be expunged from record. See Zubairu v State (2015) 16 NWLR (Pt. 1486) 504 at 525; Onochie v Odogwu (2006) 2 SC (Pt. 11) 153; Olayinka v State (2007) 9 NWLR (Pt.1040) 561 at 577-578.
For a fuller effect, my learned brother, Amina Augie JSC had set out an elaborate explanation of the position of the law on this matter which I

cannot resist as it lays bare what the going position is. See Ifaramoye v State (2017) 8 NWLR (Pt. 1568) 457 at 482-484 thus:
“The appellant submitted that the respondent’s argument negates a rule that a statement is inadmissible unless a person, who translated it, is called with the person, who wrote it down – Olalekan v State (supra) which is to forestall the admission of hearsay evidence and ensure that innocent accused persons are not convicted on a mere ipse dixit of a ruthless policemen masquerading as the “Confessional statement” of an accused.
He argued that miscarriage of justice is not a test/ground for the admission of such statements in criminal trials; that once the document is wrongfully admitted in violation of established rules of evidence, a party is entitled rex debitio justitia to have it expunged, and the Court can suo motu expunge the documents from evidence, Ogudo v State (2011) Vol. 202 LRCN 1, (2011) 18 NWLR (Pt. 1278) 1; Olayinka v State (2007) 9 NWLR (Pt.1040) 561; and that the prosecution is duty-bound to abide by the rules of evidence in proving its case, and to this end, failure to call the recorder

and translator of Exhibits B-B1 renders it inadmissible in evidence.
What does the law say Whose argument would prevail This is not a novel issue, and there are a number of authorities from those days of the West African Court of Appeal (WACA) to the present day of this Court, from which we can find answers. There is Rex v Gidado (1940) 6 FSC 12, (1960) SCNLR 36; Nwaeze v State (1996) 2 NWLR (Pt. 428) 1, and the case of FRN v Usman (supra), cited by the appellant, to name a few.
In Gidado’s case (supra), the interpreter was not called, and in allowing the appeal, WACA very aptly held as follows:-
It seemed to us that this failure on the part of the trial Judge to appreciate the inadmissibility in evidence of alleged statements by the appellant, when such statements were not confirmed and established by the persons acting as interpreters, was fatal to the conviction herein in that the learned trial judge misdirected himself in accepting such statements as having been proved.”
In R v. Zakwakwa of Yoro (supra), the accused person had made his statement in Mumuye. Two police witnesses said it was L/Cpl. Umoru, who translated it into Hausa, but

the said statement showed PC Musa as the interpreter into Hausa, and he was not called. The statement was the only direct evidence of the assault admitted by the appellant charged with murder. In allowing the appeal, the Federal Supreme Court held that if it was PC Musa, who did the interpretation and not Umaru, then since Musa was not called as a witness and subject to cross examination, the Hausa and the English version are hearsay.
In Nwaeze v State (supra) the statement was tendered and admitted in evidence through the interpreter, who could not testify at the trial because he was sick. This Court held at page 14 paras. C-D that:
“The Court below was perfectly right in holding that the statement, Exhibit “A”, was inadmissible as the interpreter for the statement made by the appellant from Igbo to English to the investigating Police officer who recorded it in English, was not called to testify on the point. The legal position is that if the statement of an accused is made in a language other than English and it is interpreted into English by an interpreter to the recorder, the interpreter must be called to give evidence on the

point at the trial of the accused otherwise the contents of the statement will be hearsay and the statement will be inadmissible.”
In FRN v Usman (supra), the statements were recorded in English through two interpreters, who interpreted from Hausa to English and vice versa, but the two did not testify in Court. The Court below held that the conviction could not stand in the absence of their evidence and set aside the judgment of the trial Court and then acquitted and discharged the respondents. In affirming that decision, this Court Per Rhodes-Vivour, JSC, at page 159-160 paras. D-A explained the rationale behind it in explicit details, as follows:-
“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 service of an interpreter is needed. The interpreter acts as interpreter between the Police Officer and the interpreter between the Police Officer and the accused person. The interpreter understands the language spoken by the accused person and the English language. He speaks to the accused person in the accused person’s

local dialect and tells the police officer in English exactly what the accused person said. The police officer records it in English and that is the statement of the accused person. Usually the statement is recorded in the local dialect with English translation and both documents are admissible in evidence as the statement of the accused person. Before these documents are admissible in evidence the police officer who recorded the statement and the interpreter must testify in Court. This is vital testimony. In Court, the interpreter is expected to tell the Court the questions he asked the accused person on behalf of the Police officer and the response given by the accused person. It is only when this is properly done that it can be said that the truth of the statement has been established. The Court would have no difficulty concluding that the statement is a correct reproduction of what the accused person told the interpreter. When the purpose for tendering a statement is to establish the truth of its contents, 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 also FRN v Usman (2012) 8 NWLR (Pt.1301) 141.
From the legal principle on what should obtain in respect to an extra-judicial statement of the accused and in this instance the appellant, procured in a language different from the language of the Court and in evidence is even a conflict as to who obtained the said statement as PW1 claimed he did which the statement Exhibit GA1 which he tendered showed otherwise including divergent dates. Again, the interpreter and the proper recorder were not called to testify and be cross-examined nor the two different languages versions rendered, Hausa and English respectively, it follows that the Exhibit GA1 is not admissible but having been admitted albeit inadvertently has to be expunged and cannot be categorized as a confessional statement for the purpose of sustaining the conviction of the appellant as the trial Court had done and the Court below fell into the same error. See State v Azeez & Ors. (2008) 14 NWLR (Pt.1108) 439-483; Chukwu v. The State (1996) 7 NWLR (Pt.463) 686 at

701; Ifaramoye v State (2017) 6 NWLR (Pt.1568) 457 at 484-485; FRN v Usman (supra) 160.

To tie up the situation, I would say that the erroneous findings of facts by the two Courts below classified as concurrent findings of fact are clearly perverse and therefore call for the interference of this Court as not doing so would lend the weight of this Court what has been a clear manifestation of a miscarriage of justice with the bounden duty of this Court to disturb those findings and the conclusion that resulted therefrom.
See Ifaramoye v State (supra), Zubairu v State (supra) 525; Alarape v The State (2001) 5 NWLR (Pt.705) 79; Adekoya v The State (2013) All FWLR (Pt.662) 1632 at 1651 – 1652.

It is clear that the touted confessional statement, Exhibit GA1 having fallen short of what an admissible statement obtained in the circumstances it was done in this case, being inadmissible but having been admitted suffers an automatic expurgation and therefore of no moment or use for the purpose of discharging the onus of proof on the respondent and the question that would naturally arise is if there is any independent evidence on which the prosecuting

respondent can hold onto bearing in mind the essential elements of the offence under Section 221 of the Penal Code and which three ingredients which are-
a. That the victim died;
b. That the death of the deceased resulted from the act of the accused person; and
c. That the act of the accused was intended with knowledge that death or grievous bodily harm was the probable consequence.
It has to be reiterated that all three elements stated above must co-exist with none missing or tainted with some doubt or uncertainty in proof of the guilt of the accused. See Tunde Adava & Anor. v The state (2006) 9 NWLR (Pt.984) 152 at 167; Rabi Isma’il v The State (2011) LPELR – 9352 (SC) pages 18-19.

From the record, three witnesses were listed including one Benjamin James, stated as only eye witness at the scene of crime according to the evidence of PW1 but only PW1 testified. It is true that prosecution is not obliged to call all listed witnesses nor the need for a host of witnesses to get a conviction but where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the

guilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced it would work against the prosecution and favour the accused. See Section 167 (d) of the Evidence Act, 2011.
Stated another way is that the vital witness is that witness whose evidence is fundamental as it determines the case one way or the other and failure to call that vital witness by the prosecution is fatal to its case. See Ogudo v State (2011) 18 NWLR (Pt.1278) 1 at 31; State v Azeez (2008) 14 NWLR (Pt.1108) 439 at 475; Zubairu v State (2015) 16 NWLR (Pt.1486) 504 at 525.

Another point that is to be brought out is that PW1 in evidence stated that he recovered the weapon used in the crime that is the knife but curiously it was not tendered in Court. This particular situation is on all fours in the matter considered by this Court in the People of Lagos State v Umar (2014) LPELR-2246 (SC) page 56 -59 Per I. T. Muhammad JSC wherein he stated thus:-

“As regards the PW2, Corporal Benjamin Dole, who was the investigating Police Officer (IPO), who in the discharge of his duty, obtained statements from the accused (now appellant), from the PW1, one Joseph Nnosiri the victim in whose the alleged robbery occurred and recovered a dagger, obtained for the accused (now appellant at the time of arrest, which was also identified as weapon used by the appellant to stab the PW1. The appellant counsel in their brief of argument filed on the 27/2/12 stated that at trial of the accused (appellant), the PW2 refused to tender the dagger in evidence, which was the alleged instrument used in proof of the commission of offence. By refusing or failing to tender the dagger in evidence, it meant that either it is not true that the dagger was indeed recovered from the appellant, or there is no dagger at all anywhere. In either case, the presumption in law under Section 149 (d) of the Evidence Act 2004 is that the respondent withheld such evidence such that it if had been produced it would have been against the case of the respondent. Again, in the same vein the prosecution or state (now respondent) in this Court refused or failed to tender in evidence the statement obtained from PW1

at the Panti Police Station on the 28th of May, 2006, and his earlier statement made at Ejigbo Police Station on the 11th of May, 2006. The learned counsel argued failing to put the statements in evidence had meant could go against respondent.
The respondent in their brief of argument filed on the 28th of March, 2012, did not take a reply to appellant on these facts.”
My learned brother, I. T. Muhammad JSC may have had the case in hand in mind when he went on in the case of People of Lagos v Umar (supra) when he stated in relation to the provisions of Section 149 (d) of the Evidence Act as follows:-
“In the instant appeal before this Court, the failure or the refusal of the prosecution (respondent in this Court) to tender both the statement of PW1 and the dagger alleged to have been recovered from the appellant meant if either was tendered in Court it would either be adverse to it, or go against it. Again, this no doubt had an adverse effect on the 2 ingredients of the offence of robbery under Section 1 (2) of the Robbery and Firearm (Special provisions) Act Cap. R11, 2004.”

I am in agreement with the Court below in its decision to apply the provision of Section 149 (d) of the Evidence Act. Perhaps it was because of fear of contradiction or rather, negation of what was alleged that was why the statements of PW1 and that of the respondent and other corroborating evidence were withheld by the prosecution. It is to be noted that Courts of Law are paragons of Justice. They rely on what is produced before them as evidence cannot be given in air. In the type of case on appeal, such evidence must be given through person and Section 149 (d) of the Evidence Act can be accomplished by calling a particular object or document which if not tendered will be fatal to the prosecution’s case. The objects alleged to have been recovered and the statements of both the PW1 and the respondent ought to have been tendered by the prosecution. They were not so tendered through the relevant witnesses who testified. This, certainly, devastated the quality of the oral evidence led before the trial Court thereby laying no foundation upon which the learned trial judge would rely on to convict. I cannot but decide this issue against the appellant. This issue is captured

by the appellant in his issue No.2 which corresponds to respondent’s issue No.1.” (Underlining for emphasis).

Another important aspect of this case is the absence of the medical report which the prosecution failed to produce and in such a situation this Court had stated in Zubairu v State(2015) 16 NWLR (Pt.1486) 504 at 525-526 thus:-
“Another important omission in the chain of evidence led by the prosecution is the evidence of the deceased’s medical record. There is evidence that he was taken, first to the Police Station and from that to the hospital. In fact, the proof of evidence has a list of exhibits in which item 2 is “Medical Report of Murtala Muhammed (the deceased)”. The report was not tendered in Court nor was the doctor who issued it and who must have attended to the deceased called to give evidence.
Without the evidence of the police investigation, it is a matter of conjecture to say that the person who was taken to the police station from the scene of crime was also the person who was taken to the hospital and was the person who died threat.
Medical evidence, if tendered would have established the identity of the person who

died, the date of death, the cause of death which is a medical question and the manner of death to be determined from the nature and location of injuries on the body of the deceased. These are issues the Court cannot assume. Specifically, what happened to the person taken to the Police station before he was taken to the hospital is a matter for speculation.
I will leave the matter here because a little digging may turn up a stone that does not belong in the soil. Suffice it to say that the evidence of police investigation as well as the evidence of what happened between the police station and the hospital, the medical report showing the identity of the deceased and the date of death and the cause and manner of death are pieces of evidence available but were deliberately withheld by the prosecution.
It is safe to presume that the said pieces of available evidence were deliberately withheld by the prosecution because if produced, they would have had adverse effect on its case. See Section 167 (d) of the Evidence Act which provides that the Court may Presume that: “(d) evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it.” (Underlining for emphasis).

The issue of these vital pieces of missing evidence and witness that would have created some linkage to the crime if produced is clearly a question that cannot go any other way than against the respondent and for which the intervention of this Court is called for in the mistaken concurrent findings of facts and conclusion by the two Courts below.

In respect of the alibi raised in defence by the appellant again, the PW1 chose not to believe him and did not bother to investigate in spite of the timeous putting across of the alibi and the details proffered. What transpired in this regard is that the appellant fulfilled his duty not only to say he was not at the scene of crime at the relevant period but gave particulars of where he was and with whom thereby discharging his responsibility and placing the ball in the Court of the prosecution who now had the bounden duty to investigate to confirm the appellant’s assertion or debunk same. Of course it is to be said that failure of the prosecution to investigate the alibi would have serious consequences which may be fatal unless the prosecution can adduce

strong evidence pinning the appellant to the scene in which case the alibi would be said to have been demolished. That I dare say is not the case here as there really has been nothing connecting the appellant to the crime and so the natural consequences of fatality of the case of the prosecution in the absence of the alibi being investigated. SeeAkindipe v State (2016) 15 NWLR (Pt.1536) 470 at 502; Idemudia v State (2015) 17 NWLR (Pt.1488) 375 at 396; State v Azeez & 2 Ors. (2008) 14 NWLR (Pt.1108) 439 at 465; Adebiyi v State (2016) 8 NWLR (Pt.1515) 459 at 479; Augustine Onuchukwu & 2 Ors v The State (1998) 4 NWLR (Pt.547) 578.
Clearly the findings of fact on this issue of the defence of alibi which the appellant raised and which the Courts below ignored are perverse and I do not hesitate in disturbing those findings as the prosecution failing to investigate the alibi raised by the appellant, at the earliest opportunity and with full particulars is fatal to prosecution’s case since there is nothing with which in that failure upon which the prosecution can fix the appellant at the scene of crime and at the material time.

In fact all the issues go against the Respondent and so the appeal is allow. I abide by the consequential orders already made.

MUSA DATTIJO MUHAMMAD, J.S.C.: My learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JSC had obliged me in draft his lead judgment just delivered. I entirely agree with the reasoning and conclusion expressed in the lead judgment that the appeal being meritorious succeeds. I take the privilege of restating why the appeal has to be dismissed, purely for the sake of emphasis, in my own words.

The appellant was convicted for culpable homicide under Section 221(b) of the Penal Code and sentenced to death by the Taraba High Court sitting at Jalingo. This decision was affirmed and appellant’s appeal dismissed by the Court of Appeal in a judgment delivered at Yola on 22/3/2016.
The appellant has further appealed to this Court.

In my firm and considered view the resolution of respondent’s 1st issue that subsumes appellant’s 1st and 2nd issues will justly determine the appeal. The issue reads:-
“a Whether Exhibit GA1 qualifies as a confessional statement and if so, whether the Court below

rightly relied on same in affirming the conviction and sentence of the appellant by the trial Court.”

It is long settled that the prosecution on whose shoulders the burden of proving the charge against an accused beyond reasonable doubt may do so in any of or a combination of the three ways, to wit:-
(i) By direct evidence from witnesses to the commission of the crime by the accused;
(ii) The direct, positive and unequivocal voluntary confessional statement of the accused satisfactorily established as having been made by the accused;
(iii) Circumstantial evidence which points to the accused alone as being the perpetrator of the offence. See EMEKA V. STATE (2001) 14 NWLR (PT 734) 666 at 683 and JULIUS ABIRIFON V. THE STATE (2013) LPELR – 20807 (SC).

In the case at hand, the respondent relied on DWI alone, the recorder of appellant’s supposed confessional statement, Exhibit GAI, through whom the exhibit was tendered and admitted without objection. It is evident from the record that whereas the trial Court relied on Exhibit GA as being the confessional statement as to convict the appellant, the lower Court, on the other hand,

purports to rely on Exhibit GAI as appellant’s confession in affirming the trial Court’s decision.

The pertinent question that has no answer here is which of the two, Exhibit GA and GAI, is the confessional statement of the appellant. Respondent’s admission that appellant’s confessional statement had not been transmitted to the lower Court is certainly most devastating to its cause. It, throws away respondent’s entire case. In the first place, the trial Court is without jurisdiction of convicting the appellant on Exhibit GA which, manifestly, was never the statement recorded by DWI from the appellant. Similarly, the lower Court is devoid of the jurisdiction of affirming a conviction by its reliance on a process totally different from the one appellant’s conviction hinges and which document is neither before the Court nor part of the record of appeal.

Having relied on such a non existing process, appellant’s supposed confessional statement, respondent cannot be said to have proved its case against the appellant beyond reasonable doubt at the trial Court which convicting of the appellant the lower Court, in turn, can affirmed.

It is for the foregoing and the fuller reasons outlined in the lead judgment that the perverse concurrent findings of the two lower Courts are hereby interfered with and set-aside.
BASHAYA V. STATE (1998) LPELR-755 (SC) and ADIO & ANOR V. THE STATE (1986) 2 NWLR (PT. 24) 581 at 589.

AMIRU SANUSI, J.S.C.: I read in draft form the judgment just rendered by my learned brother Kekere-Ekun, JSC in which she affirmed this appeal, acquitted and discharged the present appellant.

His Lordship in arriving at that conclusion had ably, adequately and painstakingly considered the issues/arguments canvassed by learned counsel to the parties. The reasoning and conclusion arrived at are in accord with mine. I therefore adopt them as mine and also allow the appeal. The judgments of the two Courts below are hereby set aside by me.

As a corollary, I also see merit in the present appeal and accordingly allow same. A verdict of acquittal and discharge is hereby entered in favour of the appellant herein.

Appearances:

L.O. Fagbemi, Esq.For Appellant(s)

Y.N. Akirikwen, Esq. (Hon. A.G. Taraba State) with him, Hamidu Audu, Esq. (D.P.P Ministry of Justice Tabara State), C.R. shaki, Esq. (SCI) and E.T. Anderifun, Esq. (SCI)For Respondent(s)

Appearances

L.O. Fagbemi, Esq.For Appellant

AND

Y.N. Akirikwen, Esq. (Hon. A.G. Taraba State) with him, Hamidu Audu, Esq. (D.P.P Ministry of Justice Tabara State), C.R. shaki, Esq. (SCI) and E.T. Anderifun, Esq. (SCI)For Respondent