ILIYA v. STATE (2022)

ILIYA v. STATE

(2022)LCN/16903(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, October 13, 2022

CA/ABJ/CR/231/2021

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

MANSUR ILIYA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE LANGUAGE TO BE USED WHEN RECORDING THE STATEMENT OF AN ACCUSED PERSON

Permit me to repeat what I said on that occasion at pages 13-14 of the E-Report at this stage:
“Now the law is indeed trite that the statement of an accused person should, as much as possible, be recorded in the language in which it was made. This is a practical wisdom that ensures the correctness and accuracy of the statement made by the accused person – Hamza V State (2019) LPELR-47858(SC) 28, A-D, per Ahaahs, JSC; Olanipekun V State (2016) LPELR-40440(SC) 8, B-D per Akaahs, JSC; Asuquo V State (2016) LPELR-40597(SC) 15-16, E-D, per Akaahs, JSC; Olalekan V State (2001) 18 NWLR (Pt. 746) 793. PER SANKEY, J.C.A.

THE POSITION OF LAW WHERE THE STATEMENT OF AN ACCUSED PERSON IS RECORDED IN THE ENGLISH LANGUAGE

To give more impetus to the requirement of law that the Court be availed of the statement of an accused in the language in which it was made, as well as its subsequent translation into English language, the law is also that where a statement is made in a language other than English language, and it is subsequently translated into English, both the statement made in the vernacular and its English translation, must be tendered in evidence. In addition, where the recorder of the original statement made in the vernacular is different from the person who subsequently translated the statement into English, both persons must testify for the statement to be validated and acted upon by the Court, otherwise it would be regarded as hearsay evidence. See Obaro V State (2021) LPELR-56860(SC) 6-9, D; Adamu V State (2019) LPELR-46902(SC) 38-49, C-A; Yahaya V Dankwanbo (2016) LPELR-48364(SC) 55-57, C-B; Asuquo V State (2016) LPELR-40597(SC) 15- 16, E-D; FRN V Usman (2012) LPELR-7818(SC) 18-19.
On the facts in the instant case, since from the onset of the process, PW1 failed to record the statement of the Appellant in the language in which it was made, that is, in Hausa language, he flagrantly but perhaps ignorantly and unwittingly, flouted an important constitutional provision touching on the right to fair hearing for the Appellant, thereby rendering the statement inadmissible. Where however it has already been admitted into evidence, no weight should be attached to it. Rather, the statement should be expunged from the record. See Dele V State (2011) 1 NWLR (Pt. 1229) 508. It is for these reasons that issue one is resolved in favour of the Appellant. PER SANKEY, J.C.A.

THE MEANING OF THE TERM “ALIBI”

In the recent decision of the Supreme Court in the case of Njoku V State (2021) LPELR-53076(SC) 12-15, D-F, Nweze, JSC eloquently summarized the law on the plea of alibi as follows:
“My Lords, as it is now well known, alibi is a Latin word, it is a combination of two words “alias” and “ibi” or “ubi” meaning “other” and “there” or “where” respectively. In English usage, according to Black’s Law Dictionary, the word alibi is defined as “elsewhere”. See Azeez V State (2008) All FWLR (Pt. 424) 1423 at 1447 and Mohammed V The State (2015) All FWLR (Pt. 782) 1658. Thus, where an appellant or accused person raises the defence of alibi, he is in turn saying that he was at another place when the offence was committed and could not possibly have committed the offence. It is the impossibility of a person being present at two different places at the same time that gives the defense its efficacy provided it is established. See Chukwuma Ezekwe V The State SCER (2018) SC.73/2013, (2018) LPELR-44392 SC, (2018) 3-4 SC (Pt. 1) P. 1442; ... PER SANKEY, J.C.A.

THE POSITION OF LAW ON THE RULES UPON WHICH A VALID PLEA OF ALIBI MUST STAND

Finally, on the rules upon which a valid plea of alibi must stand, in the case of State V Theophilus (1966-67) 10 ENLR 32 per Oputa, JSC held – “An accused who relies on the defence of alibi will endeavour to get his witnesses to Court to prove his alibi. If he wants the police to investigate his alibi, he has to provide tangible information relating to the place he was at the material time, the person with whom he was and their correct addresses and any information which will be of assistance to the police. In this case, I do not think anyone would expect the police merely on the assertion that the accused returned from Udi by 8p.m. to go on a wild guise chase to Udi in an effort to prove or disprove this vague alibi.”
Finally, in the case of Nwabueze V The State (1988) 4 NWLR (Pt. 86) 16, the Supreme Court held –
“The defence of alibi has ceased to be the type of cheap panacea that it used to be in the hands of criminals. In sum, in establishing the defence of alibi, it is not as if an accused person has no duty to discharge than the mere assertion of being elsewhere at the time the offence was committed. An accused person is duty bound to furnish the necessary information from which his whereabouts at the crucial time can be checked. Where he fails to discharge that basic duty, he cannot avail himself of the defence.”
See also Nsofor V State (2002) 10 NWLR (Pt.775) 274, 294-295, per Ba’aba, JCA. PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice of Niger State holden at Kontagora in Suit No. NSHC/KG/IC/2017 delivered on September 24 2020 by Bawa, J. Therein, the Appellant was convicted for culpable homicide not punishable with death and sentenced to ten (10) years imprisonment.

The facts leading to the Appeal are briefly that, due to apparent differences or a misunderstanding that arose between the Appellant and the deceased, Gadanga Alh. Majo, the deceased slapped the Appellant. The Appellant retaliated by stabbing the deceased on the neck with a knife which he had in his possession. The deceased collapsed, was taken to Goje Clinic Kontagora where he died shortly thereafter on the same day. The Appellant was subsequently arrested and charged to Court for the offence of culpable homicide not punishable with death under Section 224 of the Penal Code. For ease of reference, the Amended Charge (at page 14 of the Record of Appeal) stated thus:
“That you, Mansur Iliya ‘m’ Adult of Unguwan Makama village via Bangi Local Government Area of Niger State within Kontagora Judicial Division on or about 24th day of January 2014 at 1600hrs had misunderstanding between you and one Gadanga Alh. Majo (now deceased) who you alleged slapped you and now removed a knife in your possession within which you stabbed him on his neck as a result of which he bled to death which you know is likely to cause death and you thereby committed an offence of culpable homicide contrary to section 224 of the Penal Code.”

Upon his arraignment, the Appellant pleaded not guilty to the amended charge. Thereafter, in proof of its case, the Respondent adduced evidence through one sole witness, being the investigating police officer from the State Criminal Investigation and Intelligence Department (CIID) Minna, Niger State, through whom two documents were tendered, namely: a medical certificate of death and a confessional statement, each marked Exhibits A and B respectively. The Appellant in his defence before the trial Court denied the charge and raised a defence of alibi. He testified that he was at another location, specifically at Kamfanin Bobi, when he was invited to Mairiga Police Station and confronted with the allegation that he killed the deceased the previous day during a fight at Maunde village. In addition, he denied making the confessional statement and alleged that he was beaten up by the Police who forced him into thumbprinting the document.

At the close of trial, the learned trial Judge, after due consideration of the evidence and the respective submissions of Counsel in their final addresses, found the Appellant guilty as charged and sentenced him to ten (10) years imprisonment. Dissatisfied with the verdict, the Appellant filed a Notice of Appeal on December 17, 2020, which was subsequently amended on September 13, 2022. Therein, he complained on seven (7) grounds. He seeks the following reliefs from this Court:
“An Order allowing the Appeal by setting aside the decision, conviction and sentence of the Appellant by the trial Court.”

At the hearing of the Appeal on September 13, 2022, learned Counsel for the Appellant, P.L Oyewole, Esq., adopted his submissions in the Appellant’s Brief of argument filed on 01-11-21, but deemed filed on 13-09-22, in urging the Court to allow the Appeal, set aside the conviction and sentence of the trial Court and to discharge and acquit the Appellant. In response, learned Counsel for the Respondent, D.J. Kurah, Esq., also adopted the arguments in the Respondent’s Brief of argument filed on 28-01-22, but deemed duly filed on 13-09-22, in urging the Court to dismiss the Appeal and affirm the decision of the trial Court.

In the Appellant’s Brief of argument, the Appellant distilled the following issues for the determination of the Appeal:
1) “Whether the learned trial Judge was right when he convicted the Appellant for culpable homicide not punishable with death based on the confessional statement which was recorded in English language when the Appellant did not speak or understand any other language apart from Hausa language, and even when the Hausa version of the statement was not tendered in Court.
2) Was the learned trial Judge right in law when he neglected to consider the Appellant’s defence of self defence given the facts and circumstances of this case.
Alternative to issue no. 2:
3) Whether the learned trial Judge [was] right in law when he neglected to uphold the Appellant’s defence of alibi.” On his part, the Respondent in his Brief of argument, couched the following issues for determination:
(I) “Whether the learned trial Judge was right when he convicted the Appellant for culpable homicide based on his confessional statement made voluntarily to the Police. (Grounds 1 and 2)
(II) Whether the defence of alibi, not timeously raised by an accused person, can avail him. (Ground 3)
(III) Whether the defence of self defence can avail an accused person whose life was not endangered by the act of the deceased, that the only option that was open to him to save his own life was to kill the deceased. (Grounds 5 and 6)”

Perusing the two sets of issues for determination, it is glaring that the Appellant did not tie his issues for determination to his grounds of appeal. Notwithstanding this oversight, it is evident that the issues are garnered from Grounds one to six of the Grounds of Appeal. In addition, I note that the issues crafted by the Respondent are, to all intents and purposes, the same in content as those framed by the Appellant. The only difference is that while their respective issues No. 1 are virtually the same, issues two and three are reversed, i.e., the Appellant’s issues two and three are the Respondent’s issues three and two. The Appellant’s issues for determination are therefore adopted in the order framed in the determination of the Appeal. In this regard, issue one shall be addressed alone, while issues two and three shall be addressed together.

ARGUMENTS
Issue one – Whether the learned trial Judge was right when he convicted the Appellant for culpable homicide not punishable with death based on the confessional statement which was recorded in the English language when the Appellant did not speak or understand any other language apart from Hausa language, and even when the Hausa version of the statement was not tendered in Court.

In arguing this issue, learned Counsel for the Appellant relies on Section 36(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that where an accused person makes a confessional statement in a language other than English language, the prosecution is bound to tender the statement of the accused which was made in the language that he speaks, along with its English translation of the statement. This, he contends, affords the accused person an opportunity to challenge his statement as originally recorded or its translation, if the need arises. It also enables the Court to be satisfied that the statement credited to the accused person is actually his. Reliance is placed on a number of decisions including Adamu V State (2019) LPELR-46902(SC).

Counsel argues that in the instant case, the confessional statement, Exhibit B, which was recorded by PW1 in English language, was made to him in Hausa language by the Appellant who is an illiterate that does not understand or speak English. He argues that, for the English version of the statement to be useful to the Court, both the statement made in Hausa by the Appellant, and its English translation ought to have been tendered in evidence. This is so as to ensure the correctness and accuracy of the Appellant’s statement and also to protect the Appellant’s right to fair hearing guaranteed under Section 36(6) (a) of the Constitution (supra). It was the submission of learned Counsel for the Appellant that the learned trial Judge erred when he admitted the statement in evidence and also relied on it to convict the Appellant. Counsel therefore urged the Court to expunge Exhibit B from the record as it is inadmissible evidence.

In addition, in recognition of the state of the law as expressly set down in Section 251 of the Evidence Act, 2011 that the wrongful admission or rejection of evidence alone will not lead to the reversal of a Judgment unless it is material, learned Counsel submits that the confessional statement was heavily relied upon by the trial Court in convicting the Appellant. Reference is made to the trial Court’s findings at pages 58 and 60 of the Record of Appeal. Counsel therefore submits that the conviction of the Appellant based on Exhibits A and B, which were held as corroboration of the evidence of PW1, was in error.

In response, learned Counsel for the Respondent submits that when the confessional statement was tendered in evidence, the Appellant did not raise any objection to its admissibility in evidence. He also argues that a confession from an accused person is often the best evidence to rely upon, as no rational human being will say negative things against his own interest.

Counsel also submits that a person can be convicted solely on his own confession without any corroboration where the trial Court is satisfied of its truth and voluntariness. He argues that in the instant case, in addition to the confessional statement, the trial Court relied on the medical certificate of death, Exhibit A. He contends that the retraction of the confessional statement by the Appellant at the trial was an afterthought. Thus, that the trial Court was on a strong wicket when it convicted the Appellant based on his confessional statement, even in the absence of any eyewitness evidence.

On the contention of the Appellant that the Hausa version of the confessional statement ought to have been tendered in evidence along with the English version, Exhibit B, Counsel submits that this is not tenable in view of the evidence of PW1. He points to the evidence of PW1 where he testified that although the Appellant made the statement in Hausa language, he recorded it in English language and orally interpreted same into Hausa language to the Appellant, who confirmed its correctness. He submits therefore that there was no statement in Hausa language in existence to be placed be the lower Court. Both learned Counsel relied on a host of decided authorities which shall be considered in the course of my findings.

RESOLUTION OF ISSUE ONE:
From the Judgment and findings of the learned trial Judge, particularly at pages 57- 60 of the record of appeal, there is no doubt that the learned trial Judge placed heavy reliance on the confessional statement of the Appellant, Exhibit B, in convicting the Appellant for the offence of culpable homicide not punishable with death. PW1, the investigating police officer, was the sole witness for the prosecution. His evidence was that whereas the incident leading to the death of the deceased occurred on 24-01-14 at Maunde village, the Divisional Police Officer (DPO) in Bangi referred the case to the State CIIB Minna and it was assigned to him for investigation four days after the occurrence of the event, on 29-01-14. Thus, it is evident that he was not an eyewitness to the incident. Rather, the content of his evidence comprised mainly of the actions taken by him in investigating the complaint/report when it was transferred from the local Police station to the CIIB Headquarters in Minna. The summary of his investigation comprised only of taking the statement of the Appellant made in Hausa language, subsequently recording in English language and collecting the medical report on the death of the deceased form the hospital. Thus, his evidence cannot act as corroboration of the contents of the confessional statement, Exhibit B. Its usefulness lies only in the fact that the Appellant made a statement to him in Hausa which he recorded in English, upon being confronted with the allegation. However, by not complying with the law and procedure in recording the Appellant’s statement in the language it was made and as closely as possible in the Appellant’s own words, he compromised what could have been a crucial piece of evidence vital to the case.

The crux of this issue therefore is: whether the said confessional statement was admissible in evidence in the first place, and having been admitted in evidence, whether any weight should have been attached to it, as was done by the learned trial Judge in his Judgment?

The Appellant’s main complaint is that, whereas the statement he made to PW1 was in Hausa language, PW1 recorded it in English language. The record of proceedings of the lower Court vindicates this assertion as PW1 gave evidence in this vein. He clearly testified under cross-examination that the Appellant made a statement in Hausa language but that he recorded it in English language. Thereafter, he interpreted the statement to the Appellant in Hausa language (see pages 21-22 of the record of appeal). Based on this piece of evidence, the only record of the confessional statement that exists and that was tendered at the lower Court was the English language version of the statement which PW1 purports is a translation of what the Appellant told him in Hausa language. It is ultimately this English version of the oral statement made by the Appellant in Hausa language that was tendered in evidence and admitted as Exhibit B. The question is whether Exhibit B is reliable, in accordance with the principles of law and can be relied upon by the trial Court to convict the Appellant for the offence charged, given the circumstances and the law?
A similar scenario confronted this Court in the case of Hammadu Gaiya V State (2021) LPELR-56148(CA). Therein, although the Appellant’s statement was recorded in Hausa language, only the English translation of the statement was tendered in evidence. In my contributory opinion to the lead Judgment of the Court, I agreed that this was both unconstitutional and not permitted by law. Permit me to repeat what I said on that occasion at pages 13-14 of the E-Report at this stage:
“Now the law is indeed trite that the statement of an accused person should, as much as possible, be recorded in the language in which it was made. This is a practical wisdom that ensures the correctness and accuracy of the statement made by the accused person – Hamza V State (2019) LPELR-47858(SC) 28, A-D, per Ahaahs, JSC; Olanipekun V State (2016) LPELR-40440(SC) 8, B-D per Akaahs, JSC; Asuquo V State (2016) LPELR-40597(SC) 15-16, E-D, per Akaahs, JSC; Olalekan V State (2001) 18 NWLR (Pt. 746) 793. The rationale behind this requirement was well explained by Kekere-Ekun, JSC in Adamu V State (2019) LPELR-46902(SC) 12-13, A, as follows:
“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 under 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.”
In the instant case, the evidence of PW1 is that the Appellant made the confessional statement to him in Hausa language, but that he (PW1) recorded it in English language. It is a constitutional requirement that if an accused person does not understand English at all and he makes a statement, it must be recorded in the language he speaks or understands, and later translated into English language. Thus, in contravention of Section 36(6) of the Constitution, the statement of the Appellant was not recorded in the original language in which it was made, i.e., Hausa language, before it was translated into English language by PW1. There is therefore no guarantee that the statement made by the Appellant in Hausa language was accurately and correctly recorded by the police investigator into English language, and there is no way for the Appellant or the Court to cross-check this.
Thus, in view of the subsequent retraction and/or denial of the said confessional statement by the Appellant in Court, a doubt should have been created in the mind of the trial Court as to whether PW1 faithfully recorded and correctly translated the Appellant’s statement made in Hausa language into English language. As aforesaid, there was no way of cross-checking the veracity of Exhibit B by either the trial Court or the Appellant when it came under challenge. Therein lies the wisdom and rationale behind the requirement of the law that a statement volunteered by an accused person should, as much as possible, be recorded in the language in which it is made. This is practical wisdom which ensures the correctness and accuracy of the statement made by the accused person, because so much can be lost in translation.
The failure of PW1 to record the Appellant’s statement in the language in which it was made before he translated it into English language has no doubt raised a red flag as to whether this was exactly what the Appellant said to him in Hausa. It challenges the correctness and accuracy of the contents of the confessional statement, Exhibit B. This lapse on the part of PW1 is all the more grievous because the Appellant subsequently retracted the statement at the trial Court. There is therefore no way to test the accuracy of the English version of the statement allegedly made by the Appellant since the original oral statement made in Hausa language was not reduced into writing in the language in which it was made and therefore, was not placed before the lower Court. See Olanipekun V State (2016) 13 NWLR (Pt. 1528) 100, 117; Zubairu V State (2015) 16 NWLR (Pt. 1486) 504, 525; Olayinka V State (2007) 9 NWLR (Pt. 1040) 561, 577-578.
To give more impetus to the requirement of law that the Court be availed of the statement of an accused in the language in which it was made, as well as its subsequent translation into English language, the law is also that where a statement is made in a language other than English language, and it is subsequently translated into English, both the statement made in the vernacular and its English translation, must be tendered in evidence. In addition, where the recorder of the original statement made in the vernacular is different from the person who subsequently translated the statement into English, both persons must testify for the statement to be validated and acted upon by the Court, otherwise it would be regarded as hearsay evidence. See Obaro V State (2021) LPELR-56860(SC) 6-9, D; Adamu V State (2019) LPELR-46902(SC) 38-49, C-A; Yahaya V Dankwanbo (2016) LPELR-48364(SC) 55-57, C-B; Asuquo V State (2016) LPELR-40597(SC) 15- 16, E-D; FRN V Usman (2012) LPELR-7818(SC) 18-19.
On the facts in the instant case, since from the onset of the process, PW1 failed to record the statement of the Appellant in the language in which it was made, that is, in Hausa language, he flagrantly but perhaps ignorantly and unwittingly, flouted an important constitutional provision touching on the right to fair hearing for the Appellant, thereby rendering the statement inadmissible. Where however it has already been admitted into evidence, no weight should be attached to it. Rather, the statement should be expunged from the record. See Dele V State (2011) 1 NWLR (Pt. 1229) 508. It is for these reasons that issue one is resolved in favour of the Appellant.

Issue two – Was the learned trial Judge right in law when he neglected to consider the Appellant’s defence of self-defence, given the facts and circumstances of this case.
Issue three – Whether the learned trial Judge [was] right in law when he neglected to uphold the Appellant’s defence of alibi.

Under issue two, learned Counsel for the Appellant submits that the Appellant raised a defence of self-defence before the trial Court, but the trial Court neglected to consider it. Counsel contends that it was also raised in his confessional statement because he stabbed the deceased with a knife in the course of a fight, after the deceased had first slapped him. He argues that the Appellant had reason to be apprehensive for his life because the deceased was holding a machete when he slapped him. Learned Counsel therefore argues that the force applied by the Appellant in stabbing the deceased with a knife in response to the slap, was not excessive. He contends that it was incumbent on the Respondent to prove otherwise, and that this burden was not discharged by the evidence of PW1. In respect of the PW1’s evidence, learned Counsel urged the Court not to rely on same as it constitutes hearsay and is filled with exaggeration. He therefore urged the Court to disregard it completely. Counsel therefore submits that the trial Court erred in law when he failed to hold that the Appellant’s defence of self-defence availed him. He maintains that the lower Court, having found that the Appellant stabbed the deceased due to a misunderstanding that arose between them, the act was not unlawful since it was done in self-defence.

Under issue three, learned Counsel for the Appellant submits that for the defence of alibi to avail an accused person, it must be raised at the earliest opportunity with sufficient particulars to enable the Police investigate its veracity or otherwise, and to either dispute or confirm it. He contends that, having raised the defence of alibi, that he was elsewhere at the time of the commission of the offence, the Police failed to investigate his assertions. Instead, they beat him up with a view to extracting a confessional statement from him. Counsel submits that the Respondent failed to deny or controvert the Appellant’s story that he was elsewhere at the time of the commission of the offence. Thus, that the trial Court erred when it held that the conduct of the Appellant in disappearing from the scene of crime to Kamfanin Bobi, served as corroboration of Exhibit B, the confessional statement. This, Counsel contends, is not borne out by the evidence before the Court. He submits that the defence of alibi is a complete defence which exculpates an accused person from criminal liability. Counsel therefore urged the Court to resolve all three issues in favour of the Appellant, to allow the Appeal, set aside the decision, conviction and sentence of the Appellant by the trial Court, and discharge and acquit the Appellant.

In response to the arguments of the Appellant under issues two and three, learned Counsel for the Respondent submits that the defence of alibi was raised for the first time by the Appellant in his testimony as DW1 before the trial Court. He argues that for the defence to avail him, it must have been raised timeously at the time the Police were still conducting their investigations, and not in Court during the trial. Counsel therefore submits that the defence of alibi was late. In addition to this, that there was evidence which fixed the Appellant to the scene of crime.

In respect of the plea of self-defence made by the Appellant in his Brief of argument, Counsel submits that the defence cannot avail the Appellant whose life was not under any threat from the deceased. Rather, that the facts were that the Appellant stabbed the deceased in the neck after the deceased had slapped him. This, he argues, defeats the defence of self-defence canvassed. Counsel submits that the trial Court rightly convicted the Appellant of the offence of culpable homicide not punishable with death under Section 224 of the Penal Code as charged, as neither the defence of alibi nor the plea of self defence availed him. Counsel relied on a plethora of authorities which shall be considered in the findings under these issues.

RESOLUTION OF ISSUES ONE AND TWO:
I have given due consideration to the submissions of both learned Counsel for the respective parties under these issues. In respect of issue two wherein the Appellant questions whether the trial Court was wrong when it failed to consider the defence of self-defence made by the Appellant, I am of the view that it is both incongruous and contradictory for the Appellant to make this complaint in his grounds of appeal and also make it an issue before this Court in view of his strong and vehement contention that Exhibit B where it was purportedly first raised, was not his statement; and that even if it was his statement, it was inadmissible in law having not been recorded in the language in which it was made. Under this issue therefore, I adopt my findings under issue one wherein I found that the confessional statement recorded by PW1 in English language (Exhibit B), whereas it was made to him in Hausa language by the Appellant, is inadmissible in evidence. It is therefore expunged from the record. Consequently, its contents, wherein the Appellant is said to have admitted committing the offence in self defence, is no longer evidence to be relied upon and/or countenanced by this Court. To do so would amount to approbating and reprobating.

However, in respect of issue three wherein the Appellant questions whether the trial Court was right when it disregarded the defence of alibi raised by the Appellant in his evidence as DW1, the law is trite that where an accused contends that he was elsewhere at the time of the commission of the offence, he must inform the Police of this at the earliest opportunity, which is usually upon his arrest. The raison d’etre is that it would afford the Police the opportunity of investigating the alibi with a view to establishing it or disputing it.
In the recent decision of the Supreme Court in the case of Njoku V State (2021) LPELR-53076(SC) 12-15, D-F, Nweze, JSC eloquently summarized the law on the plea of alibi as follows:
“My Lords, as it is now well known, alibi is a Latin word, it is a combination of two words “alias” and “ibi” or “ubi” meaning “other” and “there” or “where” respectively. In English usage, according to Black’s Law Dictionary, the word alibi is defined as “elsewhere”. See Azeez V State (2008) All FWLR (Pt. 424) 1423 at 1447 and Mohammed V The State (2015) All FWLR (Pt. 782) 1658. Thus, where an appellant or accused person raises the defence of alibi, he is in turn saying that he was at another place when the offence was committed and could not possibly have committed the offence. It is the impossibility of a person being present at two different places at the same time that gives the defense its efficacy provided it is established. See Chukwuma Ezekwe V The State SCER (2018) SC.73/2013, (2018) LPELR-44392 SC, (2018) 3-4 SC (Pt. 1) P. 1442; …
In this instant case, the appellant indicated that he left the crime scene thirty minutes before the incident took place to drop his wife at home. He also maintained that he raised this issue at the earliest opportunity as stipulated by law and this was not investigated by the prosecution. It is a settled principle that the defence or plea of alibi must not only be raised but must be promptly and properly raised by the suspect to warrant any consideration, that is, it must be mentioned at the outset that the relevant time material to the defence of alibi is the exact time the offence was committed. See Emenegor V State (2010) All FWLR (Pt 511) 884. In the instant case, the record of appeal, pages 256, the appellant raised his defence of alibi at the dock. In fact, it must be part of his statement to the police if he were to make any statement; the reason is that, as soon as this plea is raised and reasonable particulars are given, the police or other law enforcement agent is under a duty to investigate the alibi to ascertain its truth or falsity. The duty of Court to consider the alibi depends on how properly it was raised. If it was raised properly, the Court is under a duty to consider it. It is noteworthy that the defence of alibi is not meant to be used as a ploy to send the police on a wild goose chase or divert the attention of the police. Although, it is the duty of the Prosecution to check on or investigate a statement of alibi by the accused person and disprove it, there is no inflexible or invariable way of doing this. If the Prosecution succeeds in fixing the appellant at the scene of the crime by adducing sufficient acceptable evidence, his evidence is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. See… Uche V State (2015) All FWLR (Pt. 796) 431. In other words, where the piece of evidence at the disposal of the Prosecution, either real or circumstantial or both, are so compelling that the accused person could not have been elsewhere than at the scene of the incident. In this circumstance, there is no need for the prosecution to carry on a goose chase investigation in order to discharge the burden of the plea of alibi. See Olaiya V State (2010) All FWLR (Pt. 514). Above all where the defence of alibi consists of vague accounts which are simply placed before the Courts as make- believe of plea of that defence which are completely devoid of material facts worthy of investigation, there would be no need for investigation. See Saka V The State (2006) All FWLR (Pt. 335) 148, 163.”
Again, in the case of Ukwunnenyi V State (1989) 4 NWLR (Pt. 114) 131, 144, the Supreme Court held:
“It is well settled that the defence of alibi where successful, results in an acquittal of the accused relying on the defence. It is a claim of absence of both actus; not only that it is not the reus, but also that there was in fact no act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission. There is no doubt that such a defence being a matter, particularly within his personal knowledge, the burden of leading evidence of the fact is on the accused. See Gachi V The State (1965) NMLR 33; Odidika V The State (1977) 2 SC 21… The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial.”
In his concurring judgment, Obaseki, JSC at page 149 of the Report, also stated thus: “Alibi is a powerful defence for the innocent if true but gives no protection to the guilty if untrue. When it is raised at the investigation stage, it is a bounding duty of the investigating police officer to investigate it in order to ascertain its truth (i.e., that the suspect was present at a place other than the scene of crime when the crime was committed). See Gachi V The State (1965) NMLR 333; Ntam V The State NMLR 89; Bozin V The State (1985) 2 NWLR Pt. 8) 465; Nwabueze V The State (1988) 4 NWLR (Pt. 86) 16… If however the suspect fails to put it forward to the police either deliberately or negligently and then spring the defence up as a surprise in Court, he has an uphill task of convincing the trial Judge that he was not present at the scene of crime participating in the crime when there is strong evidence of his identity as a participant present at the scene of crime.”

Finally, on the rules upon which a valid plea of alibi must stand, in the case of State V Theophilus (1966-67) 10 ENLR 32 per Oputa, JSC held –

“An accused who relies on the defence of alibi will endeavour to get his witnesses to Court to prove his alibi. If he wants the police to investigate his alibi, he has to provide tangible information relating to the place he was at the material time, the person with whom he was and their correct addresses and any information which will be of assistance to the police. In this case, I do not think anyone would expect the police merely on the assertion that the accused returned from Udi by 8p.m. to go on a wild guise chase to Udi in an effort to prove or disprove this vague alibi.”
Finally, in the case of Nwabueze V The State (1988) 4 NWLR (Pt. 86) 16, the Supreme Court held –
“The defence of alibi has ceased to be the type of cheap panacea that it used to be in the hands of criminals. In sum, in establishing the defence of alibi, it is not as if an accused person has no duty to discharge than the mere assertion of being elsewhere at the time the offence was committed. An accused person is duty bound to furnish the necessary information from which his whereabouts at the crucial time can be checked. Where he fails to discharge that basic duty, he cannot avail himself of the defence.”
See also Nsofor V State (2002) 10 NWLR (Pt.775) 274, 294-295, per Ba’aba, JCA.

Thus, it is not enough for an accused person to simply allege that he was elsewhere and not at the scene of crime at the time of the commission of the offence. Rather, the burden rests on him to give sufficient particulars that would establish that he was where he said he was, and therefore, it would have been physically impossible for him to have been at the scene of crime and committed the offence at the same time. The duty of the police to investigate the Appellant’s alibi could only have arisen if the Appellant disclosed full particulars of the exact place he was, the time he was there, the person(s) he was with or who saw him there. Since these are not contained in the Exhibit B, more so that it has been expunged from the evidence, these details were not made available ab initio. Instead, since the defence of alibi was first raised by the Appellant in Court during the course of his defence as DW1, the Police could not have gone on a wild goose chase to investigate it. Thus, the defence does not avail him and the learned trial Court rightfully discountenanced it. See Attah V State (2010) LPELR-597(SC) 33-36, F-C; Saka V State (1980) NWLR (Pt. 309) 322.

Thus, in summary, although from the facts contained in the amended charge, the incident leading to the death of the deceased occurred during a fight, no eyewitness evidence or circumstantial evidence was presented before the lower Court. Rather, only the investigating police officer from the State CIID Minna, who took over the investigation from the DPO of Bangi four days after the incident, testified in proof of the case as the sole witness for the Respondent. Hence, the evidence relied upon to convict the Appellant of the charge consisted of only the confessional statement (Exhibit B) and the medical report giving the cause of death of the deceased (Exhibit A). It is this confessional statement that has been impugned by the Appellant. While the law is that a confessional statement is sufficient to convict an accused person, and may even be the best evidence as it proceeds from the mouth of the accused, it must be properly proved to be his statement. From the facts in the instant case, due to careless lapses on the part of the investigating police officer, PW1, a doubt has been cast on the veracity confessional statement as the Appellant’s statement, or that what was recorded therein in English, is exactly what the Appellant stated to the PW1 in Hausa language.

It is rather disheartening that after the myriad of decisions rendered by the Apex Court and this Court over the decades, these lapses in the investigation of criminal cases are still being repeated and encountered. It is glaring that the police authorities need to consider embarking on continuing education to police investigators on the proper investigations into criminal cases so that justice would as much as possible be done and seen to be done. This will go a long way into enhancing public confidence in the police and the justice system as a whole.

This is also so that the proper administration of justice would not hang on the tenuous thread of poor police investigation. Therefore, based on all my above findings, I resolve issue three against the Appellant, while issue two has been overtaken by my findings under issue one. For the sake of emphasis, the defence of self defence is not available to the Appellant.

In the result, having resolved issue one in favour of the Appellant and expunged the confessional statement, Exhibit B, from the record, the conviction of the Appellant which was completely hinged on the said statement, cannot stand, notwithstanding the failure of the two defences raised. This appeal therefore succeeds and is allowed.

Accordingly, the Judgment of the Niger State High Court of Justice sitting in Kontagora, in Suit No. NSHC/KG/1C/2017, delivered on October 20, 2020 by B. Bawa, J., is set aside.

Consequently, the conviction of the Appellant for the offence of culpable homicide not punishable with death under Section 224 of the Penal Code is quashed; and the sentence of ten (10) years is set aside.

In its place, it is hereby ordered that the Appellant is discharged and acquitted.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read before now the leading judgment of my learned brother Jummai Hannatu Sankey JCA, where the facts and issues in contention have been well encapsulated. I am in absolute agreement with my learned brother’s reasoning and conclusions.

In discharging the burden of proving the guilt of an accused person, the prosecution may rely on any one or a combination of the following:
1. The confessional statement of the accused person;
2. Circumstantial evidence;
3. Evidence of an eye witness.
See Ajaegbo v State (2018) 11 NWLR Part 1631 Page 484 at 504 Para A -B per Kekere-Ekun JSC.
In discharging this burden, an accused person has no duty to prove his innocence. There is a presumption of innocence in his favour by virtue of Section 36 of the 1999 Constitution, as amended. What is required of the prosecution is to establish the guilt of the accused with compelling and conclusive evidence. It must prove its case with a degree of compulsion which is consistent with a high degree of probability. See Ajaegbo v State Supra at Page 483 Para H-G per Kekere-Ekun JSC.

In the instant case there was no circumstantial evidence or the evidence of an eye witness. The sole manner of proof of the guilt of the Appellant was his confessional statement, which has been impugned.

It would be unjust, I hold, to convict the Appellant solely on this statement. The prosecution, I further hold, has failed to prove its case against the Appellant. For this and the fuller reasons given by my learned brother, Jummai, Hannatu Sankey JCA, I also allow this appeal and set aside the conviction and sentence of the Appellant by the lower Court.

EBIOWEI TOBI, J.C.A.: My learned brother, Jummai Hannatu Sankey, JCA afforded me the privilege to read in draft the leading judgment just delivered. In the leading judgment, my learned brother quashed the conviction of the Appellant and the 10 year sentence passed on the Appellant. I agree and thereby allow the appeal because it has merit.

The lower Court convicted the Appellant for the offence of culpable homicide not punishable with death under Section 224 of the Penal Code. The conviction as rightly observed by my learned brother is based on Exhibit B, the confessional statement of the Appellant. The conviction will stand if I allow Exhibit B as an admissible evidence. I have looked at Exhibit B, the way and manner it was obtained by PW1, I cannot in good conscience allow it as an admissible statement. This is because by the showing of PW1 who took the statement, the statement was made in Hausa but recorded in English language. The law requires that the real statement which ought to be tendered is the Hausa version and then the English version so that it can be compared. It is only the English version that was tendered, there is nothing to show that it was properly recorded. In Afolabi vs State
” Exhibits M and N are English language translations of the statements said to have been volunteered by the Appellant at the State Criminal Investigation Department. The original language in which the statements were volunteered is Yoruba language. The Yoruba language versions of the statements were not tendered in evidence. It is trite law that where a statement is volunteered in a language other than English language and then translated into English language, the two statements must be tendered in evidence in order for the onus of proof beyond reasonable doubt to be discharged. Where, as in the instance case, only the English language translation of the statements made at the State Criminal Investigation Department was tendered, the same has no probative value. Accordingly, the said Exhibits M and N are inadmissible and they are hereby expunged from the evidence. See ADAMU vs. THE STATE (2019) LPELR (46902) 1 at 38-48, OLANIPEKUN vs. THE STATE (2016) 13 NWLR (PT 1528) 100 at 117 and ODERINDE vs. THE STATE (2018) LPELR (43661) 1 at 16-17. The Appellant further argued that it was the Yoruba language version of the statement which the PW1 sought to tender that led to the trial within trial, in the course of which the prosecution tendered the English language translation of the statement. I am unable to fathom the Appellant’s grouch in this regard. The law remains that where a statement has not been volunteered in English language, then the original language and the translation must be tendered in evidence. This is precisely what transpired in the trial within trial when Exhibits H and Hl were admitted in evidence. It was at the point in the main trial when the Prosecution sought to tender the Yoruba language version of the statement that the objection was raised, necessitating the trial within trial. Any reference to the English language translation of the statement could not have been reached at that stage of the main trial when the objection was raised. The said Exhibits H and Hl were therefore properly admitted in evidence.” Per OGAKWU, J.C.A).

That apart, the Respondent only called the PW1 the Investigation police officer whose evidence is based only on the investigation which most times gives no useful information apart from taking statement from people and recovering items from crime scene. This cannot serve as corroboration of the confessional statement. The Apex Court has on several occasions cautioned that a Court may need to pass confessional statement through the veracity test. See Kushimo vs State (2021) LPELR-54999 (SC); Asa vs State (2020) LPELR-49937 (CA). This becomes more necessary when the confessional statement is suspect like in this case.

For the above reason and much more for the fuller reason in the lead judgment of my learned brother, I also allow the appeal, setting aside the judgment of the lower Court. I abide by the consequential order of my learned brother quashing the conviction of the Appellant.