OBARO v. STATE
(2021)LCN/5036(SC)
In The Supreme Court
On Friday, May 07, 2021
SC.505/2015
Before Our Lordships:
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Between
OLUSEGUN OBARO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
POSITION OF LAW ON THE ADMISSIBILITY OF THE STATEMENT OF AN ACCUSED PERSON, THROUGH AN INTERPRETER.
The issue of the admissibility of the statement of an accused person, through an interpreter, has generated a wholesome thread of case law. The cases are indeed legion. They date back to R v. Gidado (1940) 6 WACA 60, 62; R v. Ogbuewu (1949) 12 WACA 483; Queen v. Sapele and Ors (1957) SCNLR 307; R. v. Attard (1958) 48 Cr App R 90, R. v. Zakwakwa (1960) 5 F.S.C. 12, (1960) SCNLR 36; Shivero v. The State (1976) 10 NSCC 197; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1, 20; Ahmed v. State (1999) 7 NWLR (Pt. 612) 641; F.R.N. v. Usman (2012) 3 SC (Pt. 1) 128, (2012) 8 NWLR (Pt.1301) 141; Popoola v. State (2018) 10 NWLR (Pt. 1628) 485; Eyop v. State (2018) All FWLR (Pt. 962) 1698, 1715, (2018) 6 NWLR (Pt.1615) 273; Bello v. C.O.P. (2018) 2 NWLR (Pt. 1603) 267; Adelani v. State (2018) 5 NWLR (Pt. 1611) 18, 43; Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457 and so on. CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW ON THE ADMISSIBILITY OF THE STATEMENT OF AN ACCUSED PERSON, THROUGH AN INTERPRETER.
This should be the case where an accused person’s statement is recorded through an interpreter and the accused person makes his statement in his mother tongue which is recorded and later translated into English. In such a situation, before the translated version is accepted as authentic, the person who interpreted the statement from the mother tongue into the English language must be called to testify. Michael Oloye v. The State (2018) LPELR 44775 (SC), (2018) 14 NWLR (Pt.1640) 509; The Queen v. Zakwakwa of Yorro (1960) LCN/0877 (SC), (1960) SCNLR 36. CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW ON THE PROSECUTION’S FAILURE TO CALL THE INTERPRETER OF A WITNESS STATEMENT, AS WELL AS THE PERSON WHO RECORDED THE STATEMENT AS WITNESS
From the position of Hubbard, F.J in The Queen v. Zakwakwa of Yorro (supra) through the approach of Ogundare, JSC, in Olalekan vs The State (2004) 12 SCNJ 94 109 and 110 (2001) 18 NWLR (Pt 746) 195 to Kalgo, JSC in Ahmed v. State (1999) 7 NWLR (Pt 612) 641, 685; the disposition of Rhodes-Vivour, JSC, in F.R.N. v. Usman (2012) 3 SC (Pt. 1) 128, 152, 1652, (2012) 8 NWLR (Pt.1301) 141 and the posture of Nweze, JCA (as he then was) in Woru v. State (2011) All FWLR (Pt. 602) 1644, 1672 – which posture I adopt in this judgement – it is crystal clear that where an interpreter of an accused person’s statement, as well as the person who recorded the said statement are not called as witnesses and subjected to cross-examination, the two versions of the accused person’s statement, (the vernacular and the English versions) would be regarded as pieces of hearsay evidence, see also R. v. Gidado (1940) 6 WACA 60; R. v. Ogbuewu (1949) 12 WACA 483. CHIMA CENTUS NWEZE, J.S.C.
BURDEN OF PROVING WHAT WENT ON BETWEEN THE ACCUSED (PERSON) AND THE INTERPRETER WHILE GIVING EVIDENCE
The rationale for this attitude was summed up by Ogundare, JSC in Olalekan v. The State (supra) thus:
Without this evidence, the prosecution would not have proved that the statement sought to be tendered by the interviewing police officer was more than just hearsay. It is not for the defence to establish what went on between the accused (person) and the interpreter. The burden of proving that fact is on the prosecution and not on the defence. It is for this reason that, in my respectful view, the interpreter must be called to testify and to elicit from him, in evidence, what the accused (person) told him that he interpreted to the interviewing police officer. CHIMA CENTUS NWEZE, J.S.C.
PRINCIPLE OF LAW ON AN INTERPRETER INTERPRETING A WITNESS STATEMENT IN COURT
This was just two years after Kalgo, JSC, “outlined the best and acceptable way of recording a statement made in vernacular to the police,” S. T. Hon’s Law of Evidence in Nigeria (Third Edition) (Port Harcourt: Pearl Publishers International Ltd, 2019) 263. According to Kalgo, JSC.:
P.W.7. testified that the appellant volunteered a statement in Hausa, but he recorded the statement in English instead of taking it verbatim in Hausa and translating it later to English. Not only that if one examines the statement, one finds that he started writing what the appellant was saying (in) the first-person singular pronoun, then he changed to reported speech in the third person pronoun … This was improper and should not have been done in a criminal case of this magnitude. In my humble view, a caution statement to be reliable must be recorded in the language of the accused (person) and then translated into the language of the Court. If it becomes necessary to record it into English by automatic or direct translation from the language spoken by the accused (person), then it must be done in the first person singular and not in the form of a reported speech
(Ahmed v. State (1999) 7 NWLR (Pt. 612) 641, 685; italics supplied for emphasis); also, R v. Sapele and Ors (1957) 10 NSCC 197. CHIMA CENTUS NWEZE, J.S.C.
WHERE THE APPELLATE COURT WILL BE DUTY BOUND TO INTERFERE AND MAKE THE APPROPRIATE FINDINGS IN THE LOWER COURT DECISION
My Lords, an appeal succeeds if the judgment appealed against is shown not to have evolved from the evidence on record and/or where the Court has taken irrelevant matters into account or still, relevant matters are ignored in arriving at the decision appealed against. In any of these instances, the appellate Court will be duty bound to interfere and make the appropriate findings the lower Court should have otherwise made. See Atolagbe v. Shorun (1985) LPELR – 592 (SC), (1985) 1 NWLR (Pt. 2) 360 and Prof. Theophilus Adelodun Okin & Anor v. Mrs Agnes Iyeba Okin (2019) LPELR – 47620 (SC), (2019) 11 NWLR (Pt. 1682) 138. CHIMA CENTUS NWEZE, J.S.C.
THE POSITITON OF LAW ON EVIDENCE OUTSIDE THE RETRACTED CONFESSIONAL STATEMENT
In such an instance, it is the practice that evidence outside the retracted confessional statement be sought to justify a finding of guilt. See Azabada v. State (2014) LPELR – 23017 (SC), (2014) 12 NWLR (Pt.1420) 40 and State v. Gwangwan (2015) LPELR – 24837 (SC), (2015) 13 NWLR (Pt.1477) 600. MUSA DATTIJO MUHAMMAD, J.S.C.
POSITION OF LAW WHERE THE INTERPRETER WHO INTERPRETED, A CONFESSIONAL STATEMENT WAS NOT CALLED TO GIVE EVIDENCE
In the first instance, where the interpreter who interpreted, a confessional statement was not called to give evidence, the statement is documentary hearsay and is inadmissible. This is not a novel issue, and there are a number of authorities from the days of the West African Court of Appeal (WACA) to the present day by this Court, from which we can find answers. See Rex v. Gidado of Bororo (1940) 6 WACA 60, R. v. Ogbuewu (1949) 12 WACA 483; R. v. Zakwakwa (1960) FSC 12; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1; and F.R.N. v. Usman (2012) LPELR – 7818 (SC), (2012) 8 NWLR (Pt.1301) 141 HELEN MORONKEJI OGUNWUMIJU, J.S.C.
PRINCIPLE OF LAW ON AN INTERPRETER INTERPRETING A WITNESS STATEMENT IN COURT
In Ifaramoye v. State (2017) LPELR-42031 (SC), (2017) 8 NWLR (Pt.1568) 457 the Supreme Court Per Augie, J.S.C held as follows:
“… 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 that- The Court below was perfectly right in holding that the statement exhibit “A” was admissible as the interpreter of 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”. HELEN MORONKEJI OGUNWUMIJU, J.S.C.
POSITION OF LAW ON A RETRACTED EXTRA-JUDICIAL STATEMENT MADE BY AN ACCUSED PERSON.
In State v. Gwangwan (2015) LPELR 24837 (SC), (2015) 13 NWLR (Pt.1477) 600, this Court per Okoro JSC, had this to say:
“However, it is very usual for an accused person to retract, deny or resile during his trial in the Court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial judge who is to test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstances outside the statement or in order to see whether they support, confirm or correspond with the said statement which will then be regarded as correct. In other words, the statement will be subjected to scrutiny by the Court in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case.” ABDU ABOKI, J.S.C.
CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): At the High Court of Ondo State, Akure Judicial Division, (hereinafter simply referred to as “the trial Court”), the appellant, (as an accused person), was arraigned upon a two-count charge of kidnapping and murder contrary to and punishable under Sections 3 of the Ondo State Anti-Kidnapping and Anti-Abduction Law, 2010, and 319 of the Criminal Code, Cap. 30, Vol. 11, Laws of Ondo State of Nigeria, 1978, respectively.
On arraignment, he (the appellant), pleaded not guilty. The trial commenced with two other accused persons. The prosecution called only one witness, the investigating police officer as PW1. On his part, the appellant testified for himself and called no other witness. Exhibits A – A3; B; C – D and E – E2 were tendered and admitted in evidence.
It was the prosecution’s case that the appellant, with the two accused persons, left their village, Messe, and went to Ikoriho in the same Ilaje Local Government of Ondo State in the middle of the night. They allegedly kidnapped one Dada Akinboye who slept beside his mother on June 17, 2011. The victim was later discovered dead with his body mutilated.
In his extra judicial statement, which formed the basis of his conviction and sentence on the two offences, the appellant allegedly admitted going inside the house to carry the victim. He handed over the said deceased person’s body to the third accused person. He and the third accused person disposed of the body of the victim. On his part, the second accused person stood outside keeping watch.
During the trial, he, the first accused person, in his evidence vehemently denied any involvement in the crime. Under cross examination, he said inter alia, “it is not what I told the Police that they wrote down,” thereby retracting the extra judicial statement. Notwithstanding this retraction, the Court of Appeal (hereinafter simply referred to as “the lower Court”), affirmed the finding of the trial Court to the effect that:
Thus, the confessional statements of the first and second accused persons have satisfied this Court about the involvement of each of the accused persons.
The lower Court thus affirmed the guilt of the appellant on the two-count charge of kidnapping and murder. On further appeal to this Court, the appellant formulated a sole issue for determination:
Whether the prosecution proved beyond reasonable doubt the guilt of the appellant on the two-count charge of kidnapping and murder?
On his part, the respondent concreted a sole issue for the determination of the appeal:
Whether the prosecution proved beyond reasonable doubt the offence of kidnapping and murder to warrant the conviction of the appellant?
Arguments of counsel on the sole issue
At the hearing of the appeal on February 11, 2021, learned counsel for the appellant adopted the brief filed on July 30, 2015. Arguing the sole issue, he submitted that by virtue of the provision of Section 135 of the Evidence Act, 2011, the prosecution has the burden of proving the guilt of the appellant beyond reasonable doubt.
In his submission, proof beyond reasonable doubt does not mean proof to mathematical certainty, Anekwe v. State (2014) 5 SC (Pt. 11) 35, 71, (2014) 10 NWLR (Pt. 1415) 353; Ali v. State (2015) 10 NWLR (Pt.1466) 1, 42; A – C; Nwosu v. State (1986) 7 SC (Pt. 11) 1, (1986) 4 NWLR (Pt. 35) 348. He further submitted that the prosecution’s failure to call the interpreter who recorded the confessional statement which led to the appellant’s conviction, renders it (the confessional statement), inadmissible, Olalekan v. The State (2001) 18 NWLR (Pt. 746) 793, 810 – 811; B – G.
He canvassed the view that on the authority of Olalekan v. State (supra) 809, the question of the inadmissibility of the said confessional statement could be raised at any stage, even at the Supreme Court, as a ground of law that it is hearsay evidence since the prosecution failed to call the interpreter as witness. He maintained that apart from the extra judicial statement of the appellant, “exhibit B”, there was no other available evidence to sustain the guilt of the appellant on the two offences.
Although conceding that exhibit D was the co-accused person’s confessional statement which incriminated the appellant, he contended that it (the said exhibit D), cannot be used to sustain the appellant’s conviction since he (the appellant), did not in any way, adopt the said statement, Oyakhire v. State (2006) 15 NWLR (Pt. 1001) 157, 175 – 176; H – C. He prayed the Court to set aside the conviction and sentence of the appellant and discharge and acquit him on both charges.
On his part, the learned counsel of the respondent submitted that the appellant’s contention that the failure of the prosecution to call the interpreter renders “exhibit B,” (confessional statement), inadmissible and the further submission that the appellant could raise this for the first time in this Court were misconceived.
He explained that one Inspector Odebimtan Dickson was the person who recorded “exhibit B.” Inspector Isah Momoh only acted as an interpreter. He maintained that the said “exhibit B” was recorded by Inspector Odebimtan Dickson, who was the PW1 at the trial, without any interpreter whatsoever. He submitted that the appellant was under the mistaken illusion that the statement dated June 26, 2011, was recorded and was interpreted by the same person. He explained that this was not the case.
He pointed out that the case of Olalekan v. State (supra) was inapplicable to this instant appeal. This is because “exhibit B”, in the instant appeal, was recorded by one individual without the assistance of any interpreter whereas in Olalekan v. State (supra), “exhibit A” was recorded by Sgt Linus Patricks (P.W.6) who acted as interpreter. This, in his view, is distinguishable from the instant appeal. He prayed the Court to dismiss the appeal.
Resolution of the Sole Issue
My Lords, the crux of this appeal can be found in the submission of the appellant’s counsel that, since the prosecution failed to call the interpreter, who recorded the confessional statement which led to the appellant’s conviction, it (the confessional statement), was inadmissible.
The issue of the admissibility of the statement of an accused person, through an interpreter, has generated a wholesome thread of case law. The cases are indeed legion. They date back to R v. Gidado (1940) 6 WACA 60, 62; R v. Ogbuewu (1949) 12 WACA 483; Queen v. Sapele and Ors (1957) SCNLR 307; R. v. Attard (1958) 48 Cr App R 90, R. v. Zakwakwa (1960) 5 F.S.C. 12, (1960) SCNLR 36; Shivero v. The State (1976) 10 NSCC 197; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1, 20; Ahmed v. State (1999) 7 NWLR (Pt. 612) 641; F.R.N. v. Usman (2012) 3 SC (Pt. 1) 128, (2012) 8 NWLR (Pt.1301) 141; Popoola v. State (2018) 10 NWLR (Pt. 1628) 485; Eyop v. State (2018) All FWLR (Pt. 962) 1698, 1715, (2018) 6 NWLR (Pt.1615) 273; Bello v. C.O.P. (2018) 2 NWLR (Pt. 1603) 267; Adelani v. State (2018) 5 NWLR (Pt. 1611) 18, 43; Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457 and so on. As shown above, it was the contention of the appellant’s counsel that, since the prosecution failed to call the interpreter who recorded the confessional statement which led to the appellant’s conviction, it (the confessional statement), was inadmissible. He explained that one Inspector Odebimtan Dickson was the person who recorded “exhibit B.” Inspector Isah Momoh only acted as an interpreter. He maintained that the said “exhibit B” was recorded by Inspector Odebimtan Dickson, who was the PW1 at the trial without any interpreter whatsoever.
Although learned counsel for the appellant did not cite Nwaeze v. State (supra), his submission enjoys the cherished company of the eloquent position of the distinguished Justices of this Court.
In Nwaeze v. State (supra), Iguh, JSC had this to say: The point cannot be overemphasised that where an interpreter is used in the recording of the statement of an accused person, such a statement is in law inadmissible unless the person who was used in the interpretation of the statement is called as a witness in the proceedings as well as the person who recorded the same. Accordingly, failure on the part of a trial Court to appreciate the inadmissibility, as evidence, of an alleged statement by an accused person when such statement is not confirmed and established by the person who acted as interpreter when it was being recorded in a different language can be fatal to a conviction which is based on such a statement in that the Court would have misdirected itself in accepting the statement as having been proved…..
(at page 20; italics supplied for emphasis)
What is now clear is that, once an interpreter is provided for the accused person, especially in police custody, the prosecution has a duty to call him (the interpreter) who recorded the statement, as a witness and subject him to cross-examination in order to determine the correctness of the extra-judicial statement. This must be so for, whenever an interpreter is used in obtaining the statement of an accused person, such a statement would be inadmissible unless the interpreter is called as a witness in the tendering of the statement.
This should be the case where an accused person’s statement is recorded through an interpreter and the accused person makes his statement in his mother tongue which is recorded and later translated into English. In such a situation, before the translated version is accepted as authentic, the person who interpreted the statement from the mother tongue into the English language must be called to testify. Michael Oloye v. The State (2018) LPELR 44775 (SC), (2018) 14 NWLR (Pt.1640) 509; The Queen v. Zakwakwa of Yorro (1960) LCN/0877 (SC), (1960) SCNLR 36.
Learned counsel of the respondent had submitted that one Inspector Odebimtan Dickson was the person who recorded “exhibit B,” (confessional statement), and Inspector Isah Momoh only acted as an interpreter to him in the statement and furthermore, that “exhibit B” was recorded by only Inspector Odebimtan Dickson, who was the PW1 at the trial. This was without any interpreter whatsoever.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
With respect, it would seem that learned counsel lost sight of the evidence adduced at the trial. From page 23 of the record, it is crystal clear that “exhibit B,” attached to the record, dated June 22, 2011 was interpreted and signed by one Inspector Isah Momoh. He was not called as a witness at the trial Court. What is more, the learned respondent’s counsel’s notion that Inspector Isah Momoh only acted as an interpreter, while PW1 Inspector Odebimtan Dickson recorded the statement, is a total misreading of the evidence in Court.
Now, the question which both parties posed in their sole issue for determination, is whether the prosecution’s failure to call the interpreter of the statement, as well as the person who recorded the statement as witness, renders the confessional statement inadmissible in Court.
From the position of Hubbard, F.J in The Queen v. Zakwakwa of Yorro (supra) through the approach of Ogundare, JSC, in Olalekan vs The State (2004) 12 SCNJ 94 109 and 110 (2001) 18 NWLR (Pt 746) 195 to Kalgo, JSC in Ahmed v. State (1999) 7 NWLR (Pt 612) 641, 685; the disposition of Rhodes-Vivour, JSC, in F.R.N. v. Usman (2012) 3 SC (Pt. 1) 128, 152, 1652, (2012) 8 NWLR (Pt.1301) 141 and the posture of Nweze, JCA (as he then was) in Woru v. State (2011) All FWLR (Pt. 602) 1644, 1672 – which posture I adopt in this judgement – it is crystal clear that where an interpreter of an accused person’s statement, as well as the person who recorded the said statement are not called as witnesses and subjected to cross-examination, the two versions of the accused person’s statement, (the vernacular and the English versions) would be regarded as pieces of hearsay evidence, see also R. v. Gidado (1940) 6 WACA 60; R. v. Ogbuewu (1949) 12 WACA 483.
The rationale for this attitude was summed up by Ogundare, JSC in Olalekan v. The State (supra) thus:
Without this evidence, the prosecution would not have proved that the statement sought to be tendered by the interviewing police officer was more than just hearsay. It is not for the defence to establish what went on between the accused (person) and the interpreter. The burden of proving that fact is on the prosecution and not on the defence. It is for this reason that, in my respectful view, the interpreter must be called to testify and to elicit from him, in evidence, what the accused (person) told him that he interpreted to the interviewing police officer.
(page 109 of the report; italics supplied for emphasis)
That is not all. Before such a statement could be admitted in evidence, it is not just enough to call the interpreter. I most respectfully invite Ogundare JSC, to re-state the position of the law. According to His Lordship:
In the case at hand, P.W.3, the interpreter testified. But other than to say he acted as the interpreter between the appellant and P.W.6, he was silent on the questions he put to the appellant and in what language, and the latter’s answers… In my respectful view, more details are required to P.W.3’s evidence to make exhibit A admissible in law. The conclusion I reach is that the statement ought not to have been admitted in evidence. I reject it in evidence and expunge it from the record.
(Olalekan v. The State (supra); page 110 of the report; italics supplied for emphasis)
This was just two years after Kalgo, JSC, “outlined the best and acceptable way of recording a statement made in vernacular to the police,” S. T. Hon’s Law of Evidence in Nigeria (Third Edition) (Port Harcourt: Pearl Publishers International Ltd, 2019) 263. According to Kalgo, JSC.:
P.W.7. testified that the appellant volunteered a statement in Hausa, but he recorded the statement in English instead of taking it verbatim in Hausa and translating it later to English. Not only that if one examines the statement, one finds that he started writing what the appellant was saying (in) the first-person singular pronoun, then he changed to reported speech in the third person pronoun … This was improper and should not have been done in a criminal case of this magnitude. In my humble view, a caution statement to be reliable must be recorded in the language of the accused (person) and then translated into the language of the Court. If it becomes necessary to record it into English by automatic or direct translation from the language spoken by the accused (person), then it must be done in the first person singular and not in the form of a reported speech
(Ahmed v. State (1999) 7 NWLR (Pt. 612) 641, 685; italics supplied for emphasis); also, R v. Sapele and Ors (1957) 10 NSCC 197.
Applying the same principle in this appeal, the prosecution’s failure to call Inspector Isah Momoh as a witness and subject him to cross-examination, the Yoruba and the English versions are pieces of hearsay evidence, Ahmed v. State (supra); R v. Sapele and Ors (supra); Olalekan v. The State (supra); The Queen v. Zakwakwa of Yorro (supra); F.R.N. v. Usman (supra); Woru v. State (supra) – my Court of Appeal judgment which I adopt in this judgment.
My Lords, before I round off this judgment, permit me to make an observation about the attitude and disposition of A. A. Oladunmiye, Chief Legal Officer, Ministry of Justice, Ondo State, counsel for the respondent. His disgusting comportment in Court at the hearing of this appeal was thoroughly scandalous to say the least.
Oladunmiye, Esq., who announced himself as a Chief Legal Officer in the Ondo State Ministry of Justice, betrayed the trust of Ondo State which relied on his touted knowledge, expertise and experience to represent the interest of the taxpayers of the State in this appeal. He half-heartedly, approached his assignment, worse still, his cavalier proclivity for fripperies was most shocking.
Indeed, it was as if he didn’t know the weight of the issues at stake. I pity the Attorney General of Ondo State if that is the sort of legal services he gets from a “whole” Chief Legal Officer. I even wonder how he was promoted to the rank of Chief Legal Officer in the Ministry of Justice.
In all, having regard to all I have said above, I have no hesitation in setting aside the conviction of and sentence on the appellant. In lieu, thereof, I hereby enter an order for his acquittal and discharge.
Appeal allowed.
MUSA DATTIJO MUHAMMAD, J.S.C.: My Lord Chima Centus Nweze JSC had obliged me a preview of his lead judgment on the instant appeal just delivered. I entirely agree with the reasoning and conclusion expressed in the said judgment as to the merit of the appeal. By way of emphasis, I shall dwell on the crucial issue the appeal raises in support of his lordship’s position that the appeal be allowed.
Appellant was arraigned at and convicted by the Ondo State High Court sitting in Akure for kidnapping and murder punishable under Section 3 of the Ondo State Anti-Kidnapping Law 2010 and Section 319(1) of Criminal Code, Cap. 30, Laws of Ondo State 1978 respectively.
Further aggrieved by the lower Court’s affirmation of his conviction, he appealed to this Court distilling a lone issue thus:
“Whether the prosecution proved beyond reasonable doubt the guilt of the appellant on the two Court charge of kidnapping and murder.”
Respondent’s issue is similarly crafted.
Learned appellant counsel contends that his conviction by the trial Court for the two offences which does not rest on any evidence on record is wrongly affirmed by the lower Court. He submits that Section 135 of the Evidence Act 2011 requires that appellant’s guilt be proved beyond reasonable doubt. The respondent, it is argued, relied on a lone witness, PW1, who recorded appellant’s extra judicial statement to prove its case. PW1, it is further submitted, had to use an interpreter to record the statement that was proffered in a language the witness does not understand. In the absence of exhibit B, it is argued, the two Courts’ concurrent finding of appellant’s guilt rests on no other evidence.
The trial Court’s reliance on exhibit ‘D’, the extra judicial statement of appellant’s co-accused, which the lower Court affirmed in sustaining the conviction, learned appellant’s counsel further contends, is not supported by law. Inter alia relying on Olalekan v. State (2001) 18 NWLR (Pt. 746) 793 and Ali v. State (2015) 10 NWLR (Pt. 1466) 1 at 42 and Oyakhire v. State (2006) 15 NWLR (Pt.1001) 157, learned counsel concluded that appellant’s concurrent conviction and sentence by the two lower Courts be set-aside.
Learned respondent counsel’s response is evidently most feeble. His effort at distinguishing the facts of the instant case from those in the cases learned appellant’s counsel cited and relied upon to support his submissions does not carry him far.
My Lords, an appeal succeeds if the judgment appealed against is shown not to have evolved from the evidence on record and/on where the Court has taken irrelevant matters into account or still, relevant matters are ignored in arriving at the decision appealed against. In any of these instances, the appellate Court will be duty bound to interfere and make the appropriate findings the lower Court should have otherwise made. See Atolagbe v. Shorun (1985) LPELR – 592 (SC), (1985) 1 NWLR (Pt. 2) 360 and Prof. Theophilus Adelodun Okin & Anor v. Mrs Agnes Iyeba Okin (2019) LPELR – 47620 (SC), (2019) 11 NWLR (Pt. 1682) 138.
Learned appellant’s counsel rightly insists that in the case at hand concurrent as the decisions of both Courts are, there is no evidence to sustain appellant’s conviction. It is evident from the record of appeal that the case of the prosecution is built on the testimony of PW1, the police officer who recorded exhibit B, the appellant’s extra judicial statement alone. It is also evident that exhibit B is recorded in English language rather than the language the appellant spoke in and which PW1 appears not to understand.
On the authorities, PW1’s evidence on the content of exhibit B, without the testimony of the interpreter on same, being hearsay and inadmissible does not in any way prove any fact against the appellant. Learned appellant’s counsel is on very solid ground that exhibit B being appellant’s statement obtained through an interpreter whom the prosecution did not call to testify, cannot be relied upon by both Courts to convict the appellant. See Bashiru Popoola v. State (2018) LPELR – 43853 (SC), (2018) 10 NWLR (Pt. 1628) 485; Dajo v. State (2018) LPELR – 45299 (SC), (2019) 2 NWLR (Pt.1656) 281.
Besides, learned appellant’s counsel cannot also be faulted that were exhibit B to be admissible and availing to connect the appellant with the offences he is charged with, it is not open to the Courts, the appellant having retracted from the said confession, to base appellant’s conviction solely on the confessional statement he has resiled from. In such an instance, it is the practice that evidence outside the retracted confessional statement be sought to justify a finding of guilt. See Azabada v. State (2014) LPELR – 23017 (SC), (2014) 12 NWLR (Pt.1420) 40 and State v. Gwangwan (2015) LPELR – 24837 (SC), (2015) 13 NWLR (Pt.1477) 600.
Certainly exhibit D, the extra judicial statement of a co-accused which appears to implicate him cannot provide the corroboration exhibit B requires to ground a safe conviction of the appellant when the latter is not shown to have adopted the content of exhibit D. See Suberu v. State (2010) 8 NWLR (Pt. 1197) 586 SC, Dairo v. State (2017) LPELR – 43724 (SC), (2018) 7 NWLR (Pt.1619) 399 and Uche Nwodo v. The State (2018) LPELR – 46335 (SC), (2019) 3 NWLR ( Pt. 1659) 228.
In sum, there is completely no evidence on which both Courts made their concurrent findings of appellant’s guilt. There cannot be a more perverse finding than one that has so evolved.
It is for the foregoing and more so the fuller reasoning in the lead judgment that I find merit in the appeal and allow it.
I abide by the consequential orders made in the lead judgment.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege to read in draft the judgment just delivered by my learned brother Hon Justice Chima Centus Nweze, JSC. I agree that this appeal be allowed.
I have read the briefs and the records in this appeal. In this case there are concurrent findings of fact by the High Court and the Court of Appeal that indeed the appellant and two others were responsible for the death of the deceased, in sum the three defendants at trial were found guilty of murder and sentenced to death by hanging. The case of the prosecution is that the appellant and one Jonah Lase kidnapped one Dada Akinboye, who was sleeping with her mother at Ikoriho on 17th June, 2011, and handed her over to one Theophilus Friday, who subsequently murdered her by removing her body parts.
The sole issue raised by the appellant and respondent is whether the prosecution proved beyond reasonable doubt the guilt of the appellant on the two count charge of kidnapping and murder.
The appellant argued that a close perusal of the record of appeal clearly reveals that an interpreter, Inspector Isah Momoh took and recorded the statement of the appellant which was the confessional statement upon which the conviction of the appellant was based. However, the prosecution failed to call the interpreter, Inspector Isah Momoh as a witness, even though listed as one of the witnesses, and the statement tendered should be regarded as hearsay.
In the two and half page brief settled by Mrs Adeyemi Tuki DPP, Ondo State and then adopted as the respondent’s argument in this Court by Mr. Oladunmiye Chief Legal Officer who argued the appeal, it was submitted that it was Inspector Odebimtan Dickson who recorded exhibit B while Inspector Isah Momoh acted as an interpreter to him in respect of the same statement. The respondent’s counsel submitted that exhibit B was recorded by only Inspector Odebimtan Dickson who was the PW1 at the trial Court without any interpreter whatsoever. Counsel submitted that exhibit B was taken/recorded at the police station Igbokoda by the PW1 (Inspector Odebimtan Dickson) who was serving at Igbokoda Police Station at that time on the 20-6-2011 while the one referred to by the appellant in paragraph 4.4 of his brief is dated 22- 6-2011 and was recorded and interpreted by one and same person, Inspector Isah Momoh at the State CID Akure.
My Lords, permit me to take the liberty to go through the case law on the issue of the need for an interpreter of a confessional statement to be on hand to tender same.
In the first instance, where the interpreter who interpreted a confessional statement was not called to give evidence, the statement is documentary hearsay and is inadmissible. This is not a novel issue, and there are a number of authorities from the days of the West African Court of Appeal (WACA) to the present day by this Court, from which we can find answers. See Rex v. Gidado of Bororo (1940) 6 WACA 60, R. v. Ogbuewu (1949) 12 WACA 483; R. v. Zakwakwa (1960) FSC 12; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1; and F.R.N. v. Usman (2012) LPELR – 7818 (SC), (2012) 8 NWLR (Pt.1301) 141 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 Yorro (supra) the defendant 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 who was 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, both the Hausa and the English version were hearsay.
In Ifaramoye v. State (2017) LPELR-42031 (SC), (2017) 8 NWLR (Pt.1568) 457 the Supreme Court Per Augie, J.S.C held as follows:
“… 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 that- The Court below was perfectly right in holding that the statement exhibit “A” was admissible as the interpreter of 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 this appeal, the confessional statement exh. B is the only evidence against the appellant. Only the IPO gave evidence that after the child got missing the “Community swung into action” whatever that means. There is no actual evidence linking the appellant to the crime apart from the confessional statement. The Nigerian Police did nothing to investigate this heinous crime. The State made only a halfhearted and perfunctory attempt to defend the judgment of the lower Courts. It was a shameful outing by the office of the Attorney General of Ondo State whereby senior legal officers in the DPP came to defend a conviction of death sentence with a brief of two pages and a half containing no iota of substance.
My Lords, this case is very pathetic indeed. The life of a young child was wasted by unknown persons. The only thing the I.P.O who gave evidence said was that after the alarm over the missing child was raised, “the Community swung into action”. How and why and on what evidence the appellant and other convicts were arrested remains a mystery shielded from the Courts. It is very sad that the Police saddled with investigating serious crimes are most of the time unwilling or unable to carry out meaningful investigation that points conclusively to a culprit who can be successfully tried and prosecuted. In the circumstances, this appeal succeeds as the prosecution armed with nothing but an inadmissible confessional statement was unwilling or unable to do its job. In view of the fuller reasons given by my erudite brother in the lead judgment, I agree that the judgment of the Court of Appeal in CA/AK/98C/2014 delivered on 9/7/2015 should be set aside. The conviction and sentence of the appellant is hereby set aside and an order of discharge and acquittal is entered for the appellant.
Appeal allowed.
ABDU ABOKI, J.S.C.: My Lord Chima Centus Nweze, JSC had graciously obliged me with a draft of the lead judgment just delivered. I agree with the reasoning and conclusion marshalled out in the said judgment that this appeal is wholly meritorious and ought to be allowed.
This appeal is against the judgment of the Court of Appeal, holden at Akure Division, (hereafter called the Court below), delivered on the 9th of July 2015.
The appellant was arraigned before the High Court of Ondo State, Akure upon a two-count charge of kidnapping and murder, contrary to and punishable under Section 3 of the Ondo State Anti-kidnapping and Anti-Abduction Law 2010, and Section 319 of the Criminal Code, Cap. 30, Vol. II of the Laws of Ondo State of Nigeria 1978, respectively.
He pleaded not guilty to the charges and the matter proceeded to trial.
The case of the prosecution is that the appellant and one Jonah Lase kidnapped one Dada Akinboye, who was sleeping with her mother at Ikoriho on the 17th June 2011 and handed her over to one Theophilus Friday, who subsequently murdered her by removing her body parts. In proof of its case, the prosecution called a lone witness and tendered some exhibits.
The appellant testified in his defence, and called no other witness. He also retracted his extra judicial statement (exhibit B), made to the Police.
At the close of trial, the trial Judge found the appellant guilty as charged and sentenced him to death.
Dissatisfied with his conviction and sentence, the appellant filed a notice of appeal containing two grounds, at the Court below.
After hearing arguments on both sides, the Court below in its judgment dismissed the appeal of the appellant and affirmed the judgment of the trial Court.
Still aggrieved, the appellant appealed to this Court. His notice of appeal, which was filed on the 13th of June 2015, contains a lone ground of appeal, from which a lone issue was also formulated for determination by the appellant, and adopted by the respondent. The lone issue reads thus:
“Whether the prosecution proved beyond reasonable doubt, the guilt of the appellant on the two count charge of kidnapping and murder?”
My learned brother has dealt exhaustively with the issue raised in this appeal and I adopt his judgment as mine.
However, and just for the purpose of emphasis, I will put in one or two words of mine on the onerous duty on the Court to test the veracity or otherwise of a retracted extra-judicial statement made by an accused person.
In State v. Gwangwan (2015) LPELR 24837 (SC), (2015) 13 NWLR (Pt.1477) 600, this Court per Okoro JSC, had this to say:
“However, it is very usual for an accused person to retract, deny or resile during his trial in the Court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial judge who is to test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstances outside the statement or in order to see whether they support, confirm or correspond with the said statement which will then be regarded as correct. In other words, the statement will be subjected to scrutiny by the Court in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case.”
The extra judicial statement of the appellant, though retracted, was admitted in evidence as exhibit B; an excerpt of which states as follows:
“I knew one Bassey Akingboye and Yemisi Okunnwa the two parents of the deceased, one Dada Rachael Akingboye, age one and a half years old girl.
That, I knew one Friday Theophilus. We were playing together at seaside Awoye via Igbokoda. He was selling cloth, shoes and jewelries. On the 16/06/2011, the said Friday Theophilus called myself, and my second Lase Jona that we should followed him to a certain place without mentioning the place for me. But on that fateful day, he called us to met at Ikoriho. We did not followed him down, we use our wooden boat and waited for him at Express hotel Odonla seaside.
Later he met us in that hotel. That we should now went to his sister house … along the line, he used his hand cover with ring, hacken my chest. I could not get myself again. He commanded me to move forward which we did. We starten followen him behind. On getting to that place, he sent me to enter and bring small girl for her, which I did. I met her mother sleeping. Because Theophilus Friday firstly went to the house that house before we followed him down. When entered I carry the girl out and handover to Theophilus Friday and left. I did not know when he removed some of her body part away. He promises myself and my second N100,000.00 but up till this point of writing he did not given or pay that money for us. When I entered room and carried this small baby out, my friend Lase Jona was outside watching up and down as security or guard. The community people that arrested me and handed over to the policemen…”
There is no evidence on record which corroborated this statement. The testimony of PW1 upon which the prosecution built its case, was at best hearsay. I am therefore in agreement with learned counsel for the appellant that exhibit B, being the appellant’s statement obtained through an interpreter whom the prosecution did not call to testify, cannot be relied upon by the two Courts below to convict the appellant, more so, in the absence of any corroboration.
It is on account of this and the more detailed reasoning in the lead judgment of my learned brother, Chima Centus Nweze, JSC, that I find this appeal to be meritorious. It is hereby allowed by me.
I also abide by the consequential orders, if any, contained in the lead judgment.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, Nweze, JSC granted me the privilege of reading in draft the comprehensive leading judgment prepared and rendered in this appeal. I am in full agreement with the reasoning and conclusion and adopt the judgment as mine, I have nothing extra to add. I abide by all consequential orders.
Appeal allowed.
Appearances:
F. Omotosho, Esq. For Appellant(s)
A. A. Oladunmiye, Esq. Chief Legal Officer, Ministry of Justice, Ondo State For Respondent(s)