OLUWATIMILEHIN IFARAMOYE vs THE STATE (2017)

OLUWATIMILEHIN IFARAMOYE v. THE STATE

In The Supreme Court of Nigeria

On Friday, the 10th day of February, 2017

SC.593/2013

 

JUSTICES

IBRAHIM TANKO MUHAMMAD    Justice of The Supreme Court of Nigeria

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

OLUKAYODE ARIWOOLA    Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE    Justice of The Supreme Court of Nigeria

EJEMBI EKO    Justice of The Supreme Court of Nigeria

Between

 

OLUWATIMILEHIN IFARAMOYE  Appellant(s)

AND

THE STATE  Respondent(s)

AMINA ADAMU AUGIE, J.S.C.(Delivering the Leading Judgment): The Appellant and three others were arraigned before the Ondo State High Court on a Charge of Murder. They were alleged to have murdered one Maria Joseph Erhiyore, a palm oil dealer who had left Okitipupa for Ode-Erinje to buy palm oil and was never seen again until her body was found in a pit at the back of the second Accused Persons house. The second Accused pleaded guilty and was convicted and sentenced accordingly.

The Appellant, who became the second Accused, pleaded not guilty The Prosecution called four witnesses, including inspector Omojeje John who was part of a team of Policemen that investigated the crime at SIIB, Akure. He testified as PW3.

The Appellants Statement to the Police was tendered in evidence through PW3, who explained that it was recorded in Yoruba language by Sgt Mogaji and translated into English by Inspector Rufus Ibitoye, and they were not called as witnesses.

The Appellants counsel objected to the admissibility of the Statements in evidence through PW3 on the ground that they “were not tendered by the makers and no proper

 

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foundation was laid as to the reasons why the makers are not called.
The trial Court in overruling the objection stated as follows -Since the defences of the Accused Persons are likely to be based on these Statements i-e. whether or not they are voluntarily made, it will be in the interest of justice that the Statements are admitted at this stage.
The Statements are admitted- – – [as] Exhibits B-B1

In his testimony as DW2, the Appellant denied the allegations and put up an alibi that on the day in question he was assisting his mother in her farm at Ugboran. He also alleged that he was tortured by the Police and forced lo “thumbprint the statement”.

In its Judgment delivered on 29/9/2006 the trial Court held that his defence of alibi and retraction of his Confessional Statements “were fabrications”. It found him guilty as charged and convicted and sentenced him to death by hanging.

The gravamen of his Appeal to the Court below centered on the said Exhibits B-B1. In dismissing the Appeal the Court below held that since PW3 was part of the team that obtained the Statements, he had put himself on the line as a competent witness to take

 

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questions arising from the documents if any.

Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal, which he amended. The Amended Notice of Appeal has six Grounds of Appeal. He distilled three issues for Determination in his Amended Brief settled by Fred Onuobia Esq., Fidelis Adewola Esq., and Chinedu Kema Esq. That is:-
1. Whether, having regard to the facts and circumstances of this case, the Court below was correct in affirming the trial Courts Judgment in admitting the extra judicial confessional statement of the Appellant [Exhibits B-B1] notwithstanding the fact that none of the persons who recorded and transmitted the said confessional statement was called as a witness.
2. Whether having regard to the facts and circumstances of this case, the Court below was correct at affirming the trial Courts Judgment convicting the Appellant based on his retracted extra judicial confessional statement of the Appellant [Exhibits B-B1] when there was no iota of evidence corroborating the said retracted confessional statement, and
3. Whether the proceedings conducted on 17/2/2004 as contained on pages 37-41 of the

 

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Record compiled with the provisions of Section 36(6) of the [1999] Constitution (as amended) and Section 215 of the Criminal Procedure Law of Ondo State or is valid in law at all

The Respondnet also formulated three issues in its Brief settled by Olanrewaju Osinaike, Esq and Muyiwa Alatise, Esq, i.e
(1) Whether the Court below was justified in upholding the decision of the trial Court admitting the confessional statement of the Appellant (Exhibit B-B1) in evidence.
(2) Whether, in the circumstances of this case, the Court below was right in upholding the decision of the trial Court which placed reliance on Exhibit B-B1 and acted on it in convicting and sentencing the Appellant to death.
(3) Whether the proceedings conducted by the trial Court on 17/2/2004 rotating to (his) arraignment were done in contravention of the provisions of Section 36(6) of the Constitution and Section 215 of the Criminal Procedure Law — as to render (his) conviction and sentence by the trial Court null and void.

Before I go into the issues proper, I must address a preliminary point raised by the Respondent under the ambit of its issue 1

Its grouse is in relation to the

 

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Appellants reference to the term the maker at the trial Court and Court below vis–vis the recorder and translator he used in this Court. The issue is founded on the observation of the Court below that the said Sgt Mogaji and Inspector Ibitoye merely assisted the Appellant to write and translate the said Statements, therefore ordinarily, these officers are not the makers of the statements [and] the substantive maker of the Statements remains the Appellant.

The Respondent argued that the Appellant is now saying that the Statements ought not to have been allowed in evidence since PW3 was not the recorder and translator thereof when his contention at the lower Courts was that PW3 is not the maker: that the ground on which he opposed their admission at the trial Court and the ground on which he requested the Court below to reverse the decision of the trial Court, was that the makers were Sgt Mogaji and Inspector Ibitoye, and it was on that basis that the Court below resolved the issue against him; and that a look at his brief shows he has acknowledged in this Court that the recorder and translator of

 

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the Exhibits were not the makers.

This Court was urged to discountenance his arguments as a party will not be allowed to set up a new case on appeal other than that which was ventilated at the trial Court PDP V. INEC [2015] 2 WRN 1, Osho V. Foreign Finance Corp. & Anor [1991] 4 NWLR (Pt. 184) 157 and American Cyanamid Co. V. Vitality Pharmaceuticals [1991] 2 NWLR (Pt 171)15 cited.

The Appellant, however, submitted in his Reply Brief that the Respondents argument is misconceived and misleading: that his objection has been consistent that the makers of the said Exhibits were not called and that no proper foundation was laid before they were admitted that by the ‘maker’ he meant the recorder and translator and not himself: that he was in Court and his Counsel could not have argued that no explanation was given as to whereabouts of the maker if he was referring to him and that the civil cases cited are inapplicable to this case.

What is the position Is the Respondent right to complain At the trial Court, defence counsel objected to the admission of the Statements through PW3 because they were “not tendered by the makers and no proper

 

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foundation was laid as to the reasons the makers are not called”. The Prosecution argued that the said Statements “are admissible since it is in evidence that this witness worked with the makers of the Statements and can recognize their handwritings and signatures.”

The trial Court was also of the view “that proper foundation should be laid as to reasons why the makers of this (sic) Statements are not called.” Evidently at that point in time there was no argument as to who the makers of the Exhibits were. The defence counsel, the Prosecution and the trial Court acted on the premise that the makers were the said Police Officers who had not been called as witnesses by the Prosecution and no reason was given as to why they were not present in Court.

The Appellant appealed and we must look at his Grounds of Appeal and Particulars of Error since the ground of appeal is the totality of the reasons why a decision that is complained of by a party is considered wrong, and the purpose of particulars is to advance reasons for the complaints in grounds of appeal – see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357 and Diamond Bank V. P.I.C. Ltd (2009) 78 NWLR (pt

 

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1172) 67.

In this case, the Appellant complained in Ground One of his Grounds of Appeal at the Court below that the trial Court erred when it convicted and sentenced him to death based solely on Exhibits B-B1. Particulars of Error No. C alleges-
Proper foundation was not laid before Exhibits B-B1 – – were tendered and admitted in evidence in a murder trial.

In resolving the issue arising therefrom, the Court below held-
This Court appreciates the fact that in the absence of the makers of a document that proper foundation ought to be laid as to why the maker is not available before such can be admissible – – The overall essence of having the maker – – present in Court is for purposes of answering questions arising from the document in issue PW3 being the witness though whom Exhibits B-B1 were tendered — made it clear that he was part of the investigating Police team that obtained statements, including Exhibits B-B1 from the Appellant and his co-accused. By that piece of evidence he had put himself on the line as a witness competent enough to take questions arising from the documents if the need arose. He also said that he had worked with Sgt.

 

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Mogaji, the recorder of the Yoruba version and inspected Rufus Ibitoye, the translator into English Language for three to four years and that he was in the position to identify and recognise the respective handwriting and signature. We indeed find that these pieces of evidence put forward by PW3 form sufficient and proper foundation for the said Exhibit B-B1 to be submitted in evidence through him. Be that as it may. PW3 ought to have gone a step further to tell the trial Court the whereabouts of the said Sgt. Mogaji Inspector Ibitoye.

To set the record straight I must point out that PW3 never said he was present when Sgt. Mogaji recorded the said Statement in Yoruba and when inspector Ibitoye translated it into English. Yes, he was one of the four Policemen led by Inspector Ibitoye, who were “assigned for the investigation”, however it was only the statement of the 4th Accused person, which he recorded in Yoruba language that was admitted in evidence through PW3. He merely stated that he worked together with the said Officers and identified their handwriting and signature, but he never said he was there with them when the Statements

 

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were obtained.

That said: the question is whether the Appellant is making a different case in this Court, as the Respondent has alleged. Ground One of his Grounds of Appeal complains as follows –
The learned Justices of the Court of Appeal erred in law when they found that Exhibits B-B1, which were admitted by the trial Court without proper foundation was not fatal to the admissibility of the Statements in evidence.
Particulars of Error
(i) The learned Justices of the Court below found — that the mere fact that PW3 stated that he was part of the team that investigated the case and recognized the handwriting of Sgt. Mogaji and inspector Rufus Ibitoye who recorded the Statements in Exhibits B-B1 to be sufficient and proper foundation needed to admit Exhibits B-B1 in evidence.
(ii) The only proper foundation required to admit Exhibits B-B1 are the reasons why Sgt. Mogaji and inspector Rufus Ibitoye who recorded the Statements in Exhibits B-B1 were absent in Court to tender the Exhibits directly and be cross-examined by the defence. The learned Justices of the Court below noted this at page 12 of the Judgment but held that

 

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the omissions is not fatal to the admissibility of the Exhibits.
(iii) In cases where an accused person resiled from the statement sought to be tendered like in this case, the defence must be afforded the opportunity to cross-examine the Investigating Police Officer(s) who recorded the statement.
(iv) The admission of Exhibits B-B1 without proper foundation and without affording the defence counsel an opportunity to cross-examine Sgt Mogaji and Inspector Rufus Ibitoye, who recorded the Statements occasioned a miscarriage of justice, particularly in this case where the Appellant resiled from the Statements.

Ground Three thereof complains that the Court below erred in law when it held that the Prosecution proved its case beyond reasonable doubt, and its Particulars of Error No (ii) alleges-
The Prosecution failed to call or lay proper foundation for not calling Sgt. Mogaji and Inspector Rufus Ibitoye, who recorded the statements in Exhibits B-B1 that linked the Apellant with the killing of the victim, which Appellant denied making, and which required independent evidence to show it was true.

The Appellants issue 1 is distilled

 

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from the two Grounds i.e-
Whether, having regard to the facts and circumstances of this case, the Court below was correct in affirming the trial judgment in admitting the extra-judicial confessional statement of the Appellant (Exhibit B-B1) notwithstanding the fact that none of the persons who recorded and translated the said confessional statement was called as a witness.

That is what we have, and I cannot see what the cry is all about. Firstly, there is no nexus between the trial Court and this Court whatever was said or done at the trial Court cannot climb the ladder to this Court. Infact there is no ladder that can go from a trial Court to this Court, whatever is decided at the trial Court is intercepted at the Court below, and it is what is said or done or decided at the Court below that gets to this Court on appeal. In other words this Court is only concerned with the decision of the Court below as it impacts on the findings of the trial Court

Secondly, and more importantly the issue that reared its head from the trial Court to the Court below and to this Court boils down to admissibility or otherwise of the said Statements. The trial

 

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Court admitted the said Statements as Exhibits B-B1 in the interest of justice notwithstanding the fact that no proper foundation was laid as to why the said Officers were not called.

The Court below held that the fact that PW3 was part of the team that obtained statements from the accused persons and was in a position to identity and recognize the handwriting and signature of the recorder and translator of the Statements form sufficient and proper foundation for the Exhibits B-B1 to be admitted in evidence through him. It also pointed out that PW3 ought to have gone a step further to tell the trial Court the whereabouts of the said Sgt. Mogaji and inspector Ibitoye.

The narrative is the same, and the Appellants complaint is that Exhibits B-B1 are inadmissible since those Officers were not called as witnesses and no proper foundation was laid as to why they were absent before being tendered through PW3. If Exhibits B-B1 are inadmissible in law the question of their inadmissibility can be raised even at this stage because a Court is enjoined to decide a case on legal evidence only  see Olalekan V. State (2001) 12 SC (Pt 1)

 

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  1. In other words even if no objection was taken at the trial Court an appellate Court has inherent jurisdiction to expunge evidence wrongly received – see Haruna V The Att-Gen, Fed (2012) LPELR-7821 (SC).

    As to whether Exhibits B-B1 tendered through PW3 are admissible in evidence the Appellants position is that the lapse rendered the confessional Statements inadmissible in evidence and occasioned a miscarriage as he was denied opportunity of cross examining the recorder and translator of the Statements especially with regard to his retraction of the said Statements. Olalekan V. State (supra) also (2001) 18 NWLR (Pt.746) 793 at 818 and Okeke V. Obidife et al. (1965) ALNR 51 cited.

    He argued that Interest of justice is not a ground or basis for admissibility of documents that the Court below erred when it upheld the decision of the trial Court since no foundation was laid anywhere in the Record to explain the absence of the said Sgt Mogaji and inspector Ibitoye, and it upheld the admission of the statements on the same reasoning as the trial Court and therefore committed the same error as the trial Court, which is a radical departure from the

 

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settled principle of law affirmed by this Court in FRN v. Usman (2012) 8 NWLR [1301] 141 at 159.

Furthermore that its reasoning that Exhibit B-B1 are ‘relevant facts and that the trial Court could convict on same is unsupportable in law as relevance is not the only basis for admitting a document in evidence and such a document must be admissible in law- Okonji V Njokanma [1991] 7 NWLR (Pt 202) 131, and that contrary to its reasoning, PW3 was not present when the Statement was recorded and translated, and so was not in any position to answer any questions thereon

The Respondent however urged this Court not to disturb the decision of the Court below. It argued that if a decision was jointly taken by a Police team to record and translate the said Statements, and these duties were done by only two members, as in this case, then it would not be out of order to infer that the recording and translation was done by each and every one of them and that it would be preposterous to take the position that every man on the team ought to have signed the said Exhibits.

It further submitted that the Appellant ought to show that the decision

 

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deprived him of something, thereby occasioning a miscarriage of justice, which he could have done by telling this Court that certain pertinent questions were asked PW3 that he could not answer; that the law is that he ought to show what he was deprived of when the Police Officers were not presented as witnesses. Sun Insurance Officer Ltd. V. Ojemuyiwa [1965] 1 All NLR 1, Mobil Producing Unlimited vs. Monokpo [2004] 2 MJSC 17, Adekeye V. Adesina [2011] 20 WRN 1.

Furthermore, that having failed to show what he suffered, the Appellants agitation is an academic exercise. Salik V. Idris [2015] 16 WRN 1, AG Plateau State V. AGF [2006] 3 NWLR (Pt. 967) 346, and that it was not the business of the defence to dictate to the Prosecution what number or kind of witnesses they ought to present in discharging the burden of proof placed on them – Ejiofor V. State [2006] 6 NSCCR (Pt 1) 2009 at 237 (sic), Akra V. State [2008] 4 SCNJ 250 at 265.

The Appellant submitted that the Respondents argument negates a rule that a statement is inadmissible unless a person, who translated it,  is called with the person who wrote it down – Olalekan v. State (supra), which is to

 

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forestall the admission of hearsay evidence and ensure that innocent accused persons are not convicted on a mere ipse dixit of a ruthless Policeman masquerading as the “confessional statement” of an accused.

He argued that miscarriage of justice is not a test/ground for the admission of such statements in criminal trials: that once the document is wrongfully admitted in violation of established rules of evidence a party is entitled ex debito justitae to have it expunged and the Court can suo motu expunge the document from evidence Ogudu V. State (2011) Vol. 202 LRCN 1. Olayinka V. State (2007) 9 NWLR (Pt. 1040) 561; and that the Prosecution is duty-bound to abide by the rues of evidence in proving its case, and to this end, failure to call the recorder and translator of Exhibit B-B1 renders it inadmissible in evidence.

What does the law say Whose argument would prevail This is not a novel issue, and there are a number of authorities from those days of the West Afrlcan Court of Appeal (WACA) to the present day by this Court, from which we can find answers. There is – Rex V. Gidado (1940) 6 WACA 60, R. V. Ogbuewu (1949) 12 WACA 483, R. V. Zakwakwa

 

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(1960) FSC 12 Nwaeze V. State (1996) 2 NWLR (Pt 428) 1, and the case of FRN V. Usman (supra), cited by the Appellant, to name a few.
In Gidado’s Case (supra), the interpreter was not called, and in allowing the appeal, WACA very aptly held as follows-
It seemed to us that this failure on the part of the trial judge to appreciate the inadmissibility in evidence of alleged statements by the Appellant, when such statements were not confirmed and established by the persons acting as interpreters was fatal to the conviction herein in that the learned trial judge misdirected himself in accepting such statements as having been proved.
In  R. V. Zakwakwa of Yorro (supra) the Accused person had made his Statement in Mumuye. Two police witnesses said it was L/CPL Umoru who translated it into Hausa, but the said Statement showed PC Musa as the interpreter into Hausa and he was not called. The Statement was the only direct evidence of the assault admitted by the Appellant charged with murder. In allowing the appeal the Federal Supreme Court held that if it was PC Musa, who did the interpretation and not Umaru then since Musa was not called as a witness and

 

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subject to cross-examination the Hausa and the English version are hearsay
In Nwaeze V. State (supra) the Statement was tendered and admitted in evidence through the interpreter, who could not testify at the trial because he was sick. This Court held 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 language other than English and it is interpreted into English by an interpreter to the recorder, the interpreter must be called to give evidence, on the point, at the trial of the accused otherwise the contents of the Statement will be hearsay and the Statement will be inadmissible.
In FRN V Usman (Supra) the Statements were recorded in English through two interpreters who interpreted from Hausa to English and vice versa but the two did not testify in Court. The Court below held that the conviction could not stand in the absence of their

 

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evidence and set aside the Judgment of the trial Court and then acquitted and discharged the Respondents.
In affirming that decision this Court per Rhodes Vivour JSC explained the rationale behind it in explicit details as follows
I must do some explanation. The Police Officer detailed or directed to obtain a statement from the Accused Person may not understand the language spoken by the Accused person and so the service of an interpreter is needed. The interpreter acts as interpreter between the Police officer and the Accused person. The interpreter understands the language spoken by the Accused Person and the English Language. He speaks to the Accused Person in the Accused Persons local dialect and tells the Police Officer in English exactly what the Accused Person said. The Police Officer records it in English and that is the statement of the Accused Person. Usually the statement is recorded in the local dialect with English translation and both documents are admissible in evidence as the statement of the Accused Person. Before these documents are admissible in evidence the Police Officer who recorded the Statement and the interpreter must testify in Court. This is vital testimony. In Court the interpreter is expected to tell the Court the questions he asked the Accused Person on behalf of the Police Officer and the

 

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response given by the Accused person. It is only when this is properly done that it can be said that the truth of the Statement has been established. The Court would have no difficulty concluding that the statement is a correct reproduction of what the Accused Person told the interpreter. When the purpose for tendering a statement is to establish the truth of its contents, and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in Court. The statement is hearsay and inadmissible if the interpreter does not testify in Court
In answering the question – what constitutes hearsay evidence this Court further stated as follows inFRN V. Usman (supra)-
If the witness testifies on what he heard some other person say, the evidence is hearsay. Such evidence is to inform the Court of what he heard the other person say e.g in case of slander. If on the other hand the testimony is to establish the truth of an event in question or as in the case, to establish the truth of the contents of Appellants statements, it is hearsay and inadmissible evidence. Hearsay

 

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evidence is secondary evidence of an oral statement best described as second-hand evidence. What a witness says he heard from another person is unreliable for many reasons. For example, he may not have understood the informant/interpreters or he may say things that were never said. Such evidence remains hearsay evidence because it cannot be subject to cross examination in the absence of the informant/interpreter.
See also Shivero v. State (1976) NSCC (Vol.10) 197, relied on by this Court in FRN V. Usman (supra) where the Appellant went to a local Police station to give himself up after he stabbed the deceased with a knife in the presence of two eyewitnesses. The Police Officer-in-charge could not understand or speak his language, so he asked another policeman to act as interpreter. As a result of what the interpreter told the said police Officer, the Appellant was asked to take the Police Officer to where he had hidden the knife with which he had stabbed the deceased. He took them to the place and the knife was recovered there.
At his trial, the Officer testified as to admission made to him by the Appellant through the Interpreter, who did not testify

 

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but the trial Court relied on the admission and other evidence in convicting him. This Court held that since the interpreter did not testify at the trial, the admission made in those circumstances is certainly hearsay and was therefore clearly inadmissible.
At the end of the day, Shiveros conviction stood based on the admissible evidence of the eye witnesses and in particular the testimony about his voluntary visit to the Police Station and as to how the knife used to attack the deceased was recovered. However, in relation to this case the point being made is that where a conviction is based solely on a confessional statement and the person, who acted as interpreter when it was obtained did not testify, the confessional statement is hearsay evidence and the accused person is, therefore, entitled to an acquittal.
The authorities refer to interpreters in particular and the question that comes to mind is whether they apply in this case, where the said Officers recorded and translated the Statement. First of all we must understand that the language of the Court is English which is why when such a statement is recorded in vernacular from an accused

 

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person, there always has to be an English translation – see Nwali V The State (1991) 3 NWLR (Pt 182) 663 where this Court per Olatawura, JSC explained-
Nigeria has no lingua franca. There are over 200 languages in this country. The medium of communication and expression in our Courts — is the English language. This has its roots in our colonial days when those who administered justice in our Courts— were expatriates. To allow them to follow the proceedings, interpreters were provided for the benefit of the accused persons and the Courts. Furthermore – the different languages spoken in the country make it imperative that notwithstanding the impressive record in our judicial system, and because Nigerians of different tribes now administer justice, the proceedings in the Courts- must of necessity be recorded in English language. The set-up of our Courts demands that the English language will still be used. It is for this reason that when a statement is recorded in vernacular form — an Accused there is always an English translation.
See also Damina V. The State (1995) 8 NWLR (Pt 415) 546 wherein the Statement in Hausa [Exhibit 2] was translated into

 

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English [Exhibit 2A] by the same Officer [PW5] who took down the Statement in Hausa. PW5 read out the Exhibit 2 in Court but in his judgment, the learned trial Judge stated as follows –
The English translation of the Hausa Statement – Exhibit 2 is very poor and does not convey the real meaning of the Hausa Statement. The proper translation of the Hausa Statement – Exhibit 2 is, therefore, as follows
This Court per Uwais, JSC (as he then was), held as follows –
‘Now it is a matter of common knowledge and indeed of judicial notice that the lingua franca of Nigeria and the official language of the superior Court in this country is English. Therefore, when a witness testifies in any proceedings before the superior Courts in any Nigerian language or “vernacular”, such testimony is simultaneously translated by a Court interpreter into English for the benefit of the Court and the parties. Similarly, if documents written in any other language other than English are to be put in evidence, they are caused by the party who needs them to prove his case to be translated into English. Where the party omits to have the document so

 

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translated, the Superior Court has a duty to cause the document to be translated by the official interpreter of the Court. If any, or by a person  that is fluent and competent to do so. Document properly tendered  cannot be rejected by the Court merely on the ground that the documents have been written in a language or vernacular other than English. If they are so admitted, the Court are expected and indeed obliged to look at them when they come to assess or evaluate the evidence adduced. But they cannot do so unless they have the documents translated into English, and the translated copies put in evidence in the normal way. Thus, the interpreter or translator must be called to give evidence, in the course of which he will be expected to state the qualification, which makes him a competent interpreter or translator and he will be examined, cross-examined and re-examined by the parties in order to ensure that he has done a good job of the translation. A judge cannot, therefore engage in the translation or interpretation of such documents since he cannot perform the role of a witness and a judge at the same time.
There it is – the interpreter and

 

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translator are interchangeable: same principles apply. To interpret means to translate orally and the interpreter provides oral translation between speakers who speak different languages. The translator is also a person who translates written messages from one language to another. So one translates orally and the other one translates in writing. There is no difference between them in the eyes of the law and the translator falls under the same hammer as the interpreter.
In this case, the Appellants position is that his conviction and sentence to death cannot stand because the Police officer who recorded Exhibit B, the Yoruba version of his Statement and the Officer, who translated Exhibit B1, the English version did not testify at his trial and the authorities are in his favour. There is no question whatsoever that the Appellant is right that the Court below erred when it affirmed the trial Courts decision.
It said the right things, for instance that proper foundation had to be laid as to why the Officers were not available before the Statement can be admissible: and that the overall essence of having them in Court is for purposes of

 

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answering questions arising from the Statement. However it based his finding of sufficient and proper foundation for the Exhibits to be admitted through PW3 on a very faulty premise. As I pointed out earlier PW3 never said he was present when the said Statement was recorded and translated into English by the said Police Officers and even if he said so, his testimony would have been hearsay.
The Appellant made the same point that PW3 who was not present when the Statement was recorded and translated was not in any position to answer questions arising therefrom. The Respondent says that if the said team took a joint decision to record and translate the Statement it would be preposterous to hold that each member ought to have signed the Statement. But the Respondents argument misses the point completely.To start with, there is no evidence on record that the Team of Investigators took a joint decision to record and translate the Appellants Statement. Secondly and more importantly pw3 told the Court that Sgt. Mogaji had recorded it in Yoruba: there is nothing wrong with that and the Court will not reject the Statement merely

 

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because it is recorded in Yoruba language Damina V. The State (supra) But the Court does not speak or understand Yoruba, and for the Statement to be admissible in evidence, there had to be an English translation and there was.
PW3 also told the Court that inspector Ibitoye translated the said Statement recorded in Yoruba into English, which is the language of the Court. The twist in the tale is that for the Statement recorded in Yoruba and its English translation to be admissible in evidence, the Sgt Mogaji who recorded it, and inspector Ibitoye, who translated it must testify in Court- See FRN V. Usman (supra). They both had to be present in Court to explain what transpired when they recorded and translated the said Appellants Statement, which includes both versions.
Not only did the two Officers have to be present to explain, they had to be cross-examined as to details of what transpired particularly in this case where the stakes were so high and the Appellants life depended on it, the only evidence on which he as convicted was the confessional Statement- Exhibits B-B1. The two Courts below made that clear. The trial Court said -<br< p=””

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There was no eye account evidence of how the deceased was killed – – The Prosecution tendered the statements of each of the Accused Person – – The statements of the 2nd Accused Person [Appellant] were also tendered in evidence  The Statements were confessional, the Police treated the Statements as confessional and the Court admitted the Statements in evidence as confessional statements.
Further on in its Judgment, the trial Court found as follows–
On the second ingredient, there was sufficient evidence from the confessional statements of each of the Accused persons in which each of them explained clearly and unequivocally the role each played in the death of the deceased – – -The trial Court relied on the confess oral Statement tendered through PW3 who played no part in recording or translating it to convict the Appellant. As I pointed out earlier, the law is that when the purpose for tendering a Statement is to establish the truth of its contents, the interpreter, which includes translator and the person, who recorded it in another language must give evidence at the trial. The Statement is hearsay and therefore inadmissible because

 

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it cannot be subject to cross examination in the absence of the recorder and translator of the Statement. See Damina V. State (supra), where this Court clearly said –
The interpreter or translator – – will be examined, cross-examined and re-examined – – in order to ensure (that) he has done a good job of the translation.
In Olanipekun V. The State (2016) 13 NWLR (Pt 1528) 100, the Statement was recorded in Pidgin English. This Court held that Pidgin English is English language – spoken or written and as regards this issue, Akaahs, JSC, aptly observed as follows-
The issue of fair hearing would have arisen if the Appellant did not understand English at all and the statement had to be recorded in the language he speaks or understands and later translated into English — I am not unaware of the decision in Queen v. Zakwakwa — and Nwali v. State — The two cases stress the importance of getting the original statement and the translations and those, who did the translations produced in Court for purposes of comparison and testing the veracity of the translated versions.
In this case, the two Officers, Sgt Mogaji and Inspector Ibitoye were very

 

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vital witnesses, who needed to be cross examined and failure to call them rendered the Statement inadmissible PW3 through whom the Statement was tendered in evidence, was not there and never claimed to have anything to do with it.
There was, therefore, no basis for the Court below to say that
He put himself on the line as a witness competent enough to take questions arising from the documents it the need arose.

But that is not all; the Court below further stated as follows-
By  Section 9(b) of the Evidence Act 2011, facts which otherwise are not relevant become relevant if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant facts probable or improbable. Thus Exhibits B-B1 if not by themselves alone will in connection with other facts make the issue of the murder of the deceased in this case probable or improbable. Aside from this, evidence obtained improperly or even in contravention of a law, shall be admissible pursuant to Section 14 of the Evidence Act, unless the Court is of the opinion that the desirability of admitting the evidence is outweighed by the

 

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undesirability of admitting the evidence that has been obtained in that manner We are satisfied that Exhibits B-B1 were found to be relevant and legally admissible pursuant to the forgoing statutory provisions hence the trial Court allowed same.

Another angle to the equation – relevancy vis-a-vis admissibility. The Evidence Act does not provide any definite meaning but relevant means connected with the matter at hand pertinent and relevant evidence is that which is applicable to the issue and which ought to be received Admissibility is the concept in law of evidence that determines whether or not evidence can be received by the Court. The evidence must first be relevant but even relevant evidence must be tested for its admissibility. When it is said that a piece of evidence is admissible, it means that the evidence is relevant and is one that can be admitted by the Court because it does not offend any exclusionary rule
A fact ordinarily admissible, may become inadmissible for some legal reason or the fact is too remote to be material. Thus that a suspect confessed is relevant but if the confession was obtained involuntarily, it will be

 

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excluded as inadmissible
In other words for the piece of evidence to be admissible, it must be relevant but this is not necessarily vice versa since a piece of evidence could be relevant without being admissible which is the case here. lf all things were equal the Exhibits will “in connection with other facts make the issue of the murder of the deceased probable or improbable” as the Court below said. But all things are NOT equal. Exhibits B-B1 are relevant but cannot be received by the Court because they are inadmissible. and standing inadmissible the window that would have allowed the Court to look into any relevant facts therein is sealed shut.

Even so Section 227 (1) of the Evidence Act, 1990, which is the same as Section 251 (1) of the 2011 Act provides that-
The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

With Exhibits B-B1 out of the way, is there any other

 

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evidence presented by the prosecution to justify a conviction for murder The Appellant argued that there is no other evidence and that the trial Court and Court below were wrong to have based his conviction on his retracted Statement. He also submitted that –
The confessional statement… was retracted … following which a trial within trial was conducted by the trial Court. Although the trial Court found that the … extra judicial confessional statement (Exhibit B-B1) was voluntarily made…
it is nonetheless desirable to have a modicum of evidence confirming that (it) was true especially in a murder case.

The Respondent on its part also argued as follows in its brief-
One curious development about the proceedings of the trial Court before the Exhibit was admitted in evidence was that the judgment showed that a trial within trial was conducted. An examination of the objection — and the subsequent oral evidence of the Appellant reveals that (he) did not allege that he did not voluntarily make the Exhibit. What both his objection and subsequent oral testimonies in Court boiled down to was that of outright denial of making the Exhibit –This

 

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being the case — the trial within trial conducted by the lower (sic) Court preceding the admission of the Exhibit was indeed a surplusage… It is, therefore our submission that the trial Court actually extended some benevolent act to the Appellant when the Court still went the whole hog of conducting a trial within trial before admitting Exhibits B-B1

They must be referring to another Record because the Record before this Court shows that the trial within a trial conducted by the trial Court had nothing whatsoever to do with the Appellant

Exhibit B-B1 had been admitted before the Prosecution sought to tender the confessional statement of first Accused who objected on the ground of voluntariness. and the trial Court then conducted a trial within a trial to determine its admissibility which is the right step to take. It is settled that trial within trial is only used to test the voluntariness of a confessional statement not what value or weight to attach to evidence I came across a South African case – S v De Vires 1989 (1) SA 228 (A) where Nicholas AJA summarised its purpose brilliantly as follows-
It is essential that the issue of voluntariness

 

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should be kept clearly distinct from the issue of guilt. This is achieved by insulating the enquiry into voluntariness in a compartment separate from the main trial- – Where, therefore, the question of admissibility of a confession is clearly raised: an accused person has the right to have that question tried as a separate and distinct issue. At such trial, the accused can go into the witness-box on the issue of voluntariness without being exposed to general cross-examination on the issue of his guilt.
See also Onyenye V. State (2012) 15 NWLR (Pt 1324) 586 where this Court per Adekeye JSC expounded as follows –
It has now become a matter of routine for an accused person to retract a confessional statement in the course of trial. The Court has adopted two reactions in circumstances as follows:
(a)Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any other non-recognizable legal ways, there would be need for a trial within trial.
(b) Where the accused retracted the confessional statement on the ground that it was

 

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not read to him before he signed it or that he never made it all, the requirement of the trial within trial is not applicable.
In Ogudu V. State (2011) LPELR-860 (SC) this Court held –
Where the accused person says that he did not voluntarily make the statement credited to him, such a stand by the accused person calls for the holding of a trial within trial. Where, on the other hand the accused person says he did not sign the statement, the statement should be admitted in evidence, thereafter, the question of what weight should be attached to such a statement becomes an issue for the Judge to decided at the end of the trial.
The bottom line is that a trial within trial is not applicable where the objection to admissibility is that a confessional statement was not read to the accused person before he signed it or that his signature is not affixed on it: or that it was written by the Prosecution and he only endorsed it: or that he is not the maker – See also Sule V. State (2009) 17 NWLR (Pt. 1169) 33. Also the appropriate time to object on the ground that a confessional statement was made involuntarily is when it s being tendered, not when the

 

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accused opens his defence or during that defence – see Ogudu V. State (supra). In this case, the Appellant did object at the right time but on the ground that the makers were not called which is not a ground for holding a trial within a trial.

He only raised the issue of being tortured to make the said Statement when he was testifying in his own defence as DW2 which was too late in the day, and not the proper stage to raise such an objection that would warrant a call for a trial within trial.

The said trial within trial did not concern the Appellant and I must also add that a trial within trial is a separate and distinct proceeding from the main trial, thus evidence adduced therein cannot be transplanted, injected or imported into the main trial.

Back to the question whether there is any other evidence apart from Exhibits B-B1 to bear out his conviction for murder. The Appellant contends that there is no corroborative evidence confirming. Exhibits B-B1 so the Prosecution failed to prove beyond reasonable doubt that he murdered the deceased and that such an act was intentional with knowledge that death or grievous bodily harm was its probable

 

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consequence. But the Respondent insists that the Court below was right to affirm the decision of the trial Court that based its conviction on the said Exhibits B-B1 corroborated PW1, PW2 and Exhibit A

The meaning of corroboration as stated by Lord Reading CJ in Rex v Baskerville [1916] 2 KB 658 adopted by this Court in Okabichi v. State (1975) 3 SC 96 is captured as follows-
We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime — It must be evidence which anticipates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it–Corroborative evidence is evidence, which shows or tends to show that the story … that the accused committed the crime is true, not merely that the crime has been committed but that it was committed by him.
In the said Okabichi V. State (supra), Coker, JSC added that-
Corroboration is evidence which may be direct or circumstantial but in any case, it is the duty of the Court to ascertain that whatever evidence is – used or regarded

 

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as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders the story more probable that it implicates the accused in some material particular –No stereotyped category of evidence is envisaged and a great deal depends on the circumstances of each case for what may in a given set of circumstances amount to corroboration may not be so in another set of circumstances.

In this case, the trial Court connected every ingredient of the offence of murder to Exhibits B-B1, in convicting the Appellant. In affirming that decision, the Court below held as follows-
Aside from the voluntary confession of the appellant, the Prosecution in order to establish the death of deceased tendered Exhibit A i.e. the Autopsy Report, which was admitted in evidence without any objection whatsoever. Either of Exhibits A and F-F5 is conclusive evidence that the deceased died. Exhibits B-B1 duly admitted in evidence contains the voluntary confession of the Appellant that he partook in the act that led to the death of the deceased.

 

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Having regard to the circumstances of the instant appeal, we have come to the conclusion that the Prosecution discharged the burden of proof place upon it beyond reasonable doubt.

Exhibit A is the Autopsy Report issued by PW1 and the said Exhibit F-F5 are pictures and negatives of the body of the deceased admitted in evidence through PW3. These Exhibits prove conclusively that the murder victim died: nothing more. There is nothing in the Exhibit that implicates the Appellant or connects him to her death. Her husband PW2, testified that-
On the 3rd day after the deceased went to Erinje, the Police led by the DPO and other people including myself left for Erinje in search of the deceased. During the search, we go to place where we saw her body stucked (sic) into a pit and covered with soil. The rains that fell thereafter eroded the soil and her legs came out

Under cross examination by counsel, PW2 stated as follows-
I know Sunday John, the 4th Accused and Ayodele Ikuomoniham, the 1st Accused well before the pendency of this case. I don’t know other Accused well before the pendency of this case.

PW2 did not even mention the Appellant. In

 

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what way did his testimony implicate him or connect him to the death of his wife The fourth Witness, [PW4] only testified as to the statement the third Accused and he had nothing to do with the Appellant.

If we scratch out Exhibits A & F- F5 and PW2s testimony from the picture without Exhibits B-B1 what is left in terms of evidence against the Appellant Nothing absolutely nothing there is no evidence outside Exhibits B-B1 to implicate him or connect him to the murder of the said Maria Joseph Erhiyore.

The Exhibits were the linchpin of the Prosecutions case but they are inadmissible, and with the said Exhibits pulled out the Prosecutions case collapses, there is nothing to hold up. There is nothing outside Exhibits B-B1 to show its story is true, and the Appellant is right that the conviction must be set aside. This issue is also resolved in his favour. In the circumstances, it will not be necessary to consider Issue 3, on his arraignment.

The Appeal succeeds and it is allowed. The Judgment of Court below affirming the decision of the trial Court is set aside. The verdict of guilt and conviction and sentence to

 

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death are thereby set aside. The Appellant is acquitted and discharged

IBRAHIM TANKO MUHAMMAD, J.S.C.: I was privileged to have read before now, the lead judgment of my learned brother Augie, JSC. I am in agreement with my Lords reasoning and conclusion which I adopt. I allow the appeal, I adopt the consequential orders made in the lead Judgment.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment and reasonings just delivered by my learned brother, Amina Adamu Augie JSC and to underscore my support, I shall make some comments.

This is an appeal from the Judgment of the Court of Appeal, Akure Division delivered on the 3rd day of May, 2013 in which the Court affirmed the appellant’s conviction and sentence to death for an offence of murder handed down by the High Court of Ondo State sitting at Okitipupa per P. I. Odunowu J, a judgment delivered on the 29th September, 2006.

FACTS:
The appellant and three others were charged before the Ondo State High Court, Okitipupa division on a one count charge of murder of one Maria Joseph Erhioyore on the 2nd June, 1995 at Ode Erinje Village

 

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near Okitipupa.

The case of the prosecution was that the deceased, a palm oil dealer, came to the village to buy palm oil from the 1st accused person who knew the deceased for a long time and had promised to supply her with kegs of palm oil. That when the deceased got to the village, the 1st accused took her to the house of the 2nd accused where the appellant and the 4th accused were already waiting. There the four accused Persons tied the neck and mouth of the deceased with a piece of cloth and raped her in turns and in the process she died of suffocation. That they stole her money with which she came to buy the palm oil, N13,500 00 in all and disposed off her body in a shallow pit latrine at the back of the house of 2nd accused. Following a search party, her corpse was found and the accused persons arrested and each made a confessional Statement

At the trial, 2nd accused pleaded guilty of the charge and was convicted and sentenced to death summarily while the other accused pleaded not guilty and in the end the three accused persons including the appellant were convicted and sentenced to death. Appellant appealed to the Court of Appeal which

 

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dismissed his appeal, hence the recourse of the Apex Court.

On the 17th day of November, 2016 date of hearing, learned counsel for the appellant, Fred Onuobia Esq. adopted the Amended Appellant’s Brief filed on 17/2/16 and deemed filed on the 10/13/16 and a Reply Brief on 16/5/16

Three issues for determination of the appeal were distilled from the Grounds of Appeal and they are thus:-
1. Whether, having regard to the facts and circumstances of this case, the Court below was correct in affirming the trial judgment in admitting the extra-judicial confessional statement of the appellant (Exhibits B- B1) notwithstanding the fact that none of the persons who recorded and translated the said confessional statement was called as a witness. (This issue is distilled from Ground One and Ground Three of the Amended Notice of Appeal).
2. Whether, having regard to the facts and circumstance of this case, the Court below was correct in affirming the trial judgment convicting the appellant based on his retracted extra-judicial confessional statement of the appellant (Exhibits B-B1) when there was no iota of evidence corroborating the said retracted

 

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confessional statement. (This issue is distilled from Ground Two and Ground Four of the Amended Notice of Appeal).
3. Whether the proceedings conducted on February 27, 2004 as contained on pages 37 – 41 of the record complied with the provisions of Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 215 of the Criminal Procedure Law of Ondo State or is valid in at all (This issue is distilled from Ground Five of the Amended Notice of Appeal).

Olarenwaju Osinaike of counsel for the respondent adopted the Brief of the respondent filed on the 4/5/16 and raised three issues for determination which are as follows:-
1. Whether, the Court below was justified in upholding the decision of the trial Court admitting the confessional statement of the appellant (Exhibits B-B1) in evidence.
2. Whether, in the circumstances of this case, the Court below was right in upholding the decision of the trial Court which placed reliance on Exhibit B – B1 and acted on it in convicting and sentencing the appellant to death.
3. Whether the proceedings conducted by the trial Court on 17th February, 2004 relating

 

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to the arraignment of the appellant, were done in contravention of the provisions of Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) and Section 215 of the Criminal Procedure Law of Ondo State as to render the conviction and sentence of the appellant by the trial Court null and void.

For ease of reference I shall utilise the issues as crafted by the Appellant
ISSUES 1 & 2:
1. Whether having regard to the facts and circumstances of this case, the Court below was correct in affirming the trial judgment in admitting the extra-judicial confessional statement of the appellant (Exhibits B-B1) notwithstanding the fact that none of the persons who recorded and translated the confessional statement was called as a witness.
2. Whether having regard to the facts and circumstances of this case, the Court below was correct in affirming the trial judgment convicting the appellant based on the extra-judicial confessional statement of the appellant (Exhibits B-B1) when there was no iota of evidence corroborating the said retracted confessional statement.

Learned counsel for the appellant, Mr. Onuobia

 

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submitted that it was mandatory that the recorder or translator of a confessional statement must be called as a witness to tender the confessional statement for such a confessional statement to be admissible in evidence and failure as in this case was fatal to the case of the prosecution. He cited Olalekan v State (2001) 18 NWLR (Pt.746) 818; Okeke v Obidife (1965) All NLR 51 at 54 etc.

That the statements having been wrongly admitted should be expunged. He referred to Ali v Audu (1996) 6 NWLR (Pt. 453) 148 at 167.

He stated that the conviction of the appellant cannot be sustained since there was no corroboration or something outside the statement to show that the confession was true. He relied on Akinye v. State (1988) 3 NWLR (Pt. 85) 72; Salawu v State (1971) NMLR 249 etc.

Mr. Osinaike of counsel for the respondent urged the Court not to disturb the concurrent findings of the two Courts below as there was no miscarriage of justice as appellant failed to show how he suffered on account of the recorder of the confessional statements and translator not having come forward to testify. He cited Sun Insurance Office Ltd. v. Ojemuyiwa (1965) 1

 

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All NLR 1; Adekeye v. Adesina (2011) 20 WRN 1 at 16; Ejiofor v The State (2006) 6 NSCCR (Pt.1) 2009 etc.

That nothing in the evidence contradicted the confessional statements, rather, the evidence of PW1, PW2 and Exhibit A, the medical report corroborated the confessional statements. He cited Ogedengbe v State (2015) 18 WRN 1, Ntaha v State (1972) 4 SC 1.

The summary of what the appellant sets out these issues is that since neither the recorder nor the translator of the appellant’s alleged confessional statement were called as witnesses by the respondent at the trial Court, the lapse rendered the confessional statement inadmissible in evidence. That a miscarriage of justice ensued on the use of such a confessional statement to sustain the conviction and sentence of the appellant. That there is no corroborative evidence direct or circumstantial confirming that statement, Exhibits B and B1 were true.

Respondent’s counsel stance is that Exhibits B – B1 having been identified by PW3 who had worked with the recorder and translator and could identify their handwriting, it was good enough.

On what should happen where an accused person gave an

 

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extra-judicial confessional statement, recorded by a police officer or third party and translated. This Court in Olalekan v. State (2001) 18 NWLR (Pt. 746) 793 at 818, held that the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. Therefore, the trial Court in this instance had gone outside the prescription of what is required when it admitted the confessional statements without the recorder and transistor testifying. The trial Court rather took the evidence of PW3, who had been a police officer working with the duo to identify their handwritings in the said statements as meeting the standard required to admit and utilise such confessional statements. The Court of Appeal upheld what the trial Court did and this is a clear departure of the settled principle on what should obtain. I refer to FRN v Usman (2012) 8 NWLR (Pt. 1303) 141 at 159 thus:-
“The Police Officer detailed or directed to obtain a statement from the accused person may not understand the language spoken by the accused person, and so the services of an interpreter is needed … Usually, the statement is recorded in

 

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the local dialet (sic) with English translation … Before these documents are admissible in evidence, the police officer who recorded the statement and the interpreter (translator) must testify in Court. This is vital testimony. It now becomes clear that where a conviction is based solely on a confessional statement, and the (police officer who recorded it) and the interpreter (translator) who acted as interpreter (translator) when the said statement was obtained did not testify, the confessional statement is hearsay evidence and the accused person is entitled to an acquittal.”

It is to be said that Exhibits B-B1 having been wrongly admitted ought to be expunged or at the worst ignored for the Court look elsewhere for a useful piece of evidence. See Ali v Audu (1996) 6 NWLR (Pt.453) 148 at 167.

Evident in this matter is that there was no independent evidence in some material particulars on which the offence charged could be properly linked with the appellant. Firstly, the co-accused retracted their statements and so even though such retraction may not affect the admissibility of such statements it would be difficult to use them in finding for the

 

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culpability of the appellant as a co-accused. This is as stipulated by Section 29 (3) of the Evidence Act, 2011 which provides thus:-
“Where more persons than one are charged jointly with an offence and confession made by one of such person in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”

In the light of the above and especially the absence of an independent evidence making the connection between the appellant and the offences charged, it is difficult for the appellant to be said to have caused the death of the deceased and that with the intention on the part of the appellant to have caused the death or grievous bodily harm with the consequence of the death of the deceased. See Salawu v State (1971) NMLR 249; Akinye v State (1988) 3 NWLR (Pt.85) 72.

From the foregoing and the better reasoning of my learned brother Adamu-Augie JSC, this appeal has merit and is allowed by me. I abide by the consequential orders

 

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made.

OLUKAYODE ARIWOOLA, J.S.C.: I have been obliged before now with a copy of the lead judgment of my learned brother, Amina Augie, JSC just delivered. I am in complete agreement with the reasoning and conclusion that this appeal has merit and should be allowed. I too allow the appeal.

Appeal is allowed.

I abide by the consequential orders in the said lead judgment. The appellant is acquitted and discharged.

EJEMBI EKO, J.S.C.: On 29th September, 2006 the Ondo State High Court, sitting at Okitipupa (Coram Odunwo, J.) convicted and sentenced the appellant herein to death for the offence of murder. The conviction and sentence were affirmed on appeal by the Court of Appeal, Akure Division on 3rd May, 2013. The appellant, not satisfied, has further appealed to this Court.

The appellant and 3 others were jointly tried on one count charge of the murder of one Mrs. Maria Joseph Erhioyoro (deceased), said to have been committed on 2nd June, 1995 at Odo Erinje Village near Okitipupa.

The deceased, a palm oil dealer, came to Odo Erinje village, on a market day to buy palm oil. She had with her

 

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N13,500.00. She had previously been dealing with the 1st accused. On the fateful day the deceased, acting allegedly on the undertaking of the 1st accused to supply kegs of palm oil, went straight to the house of the 1st accused, ostensibly to buy palm oil. The 1st accused, as alleged, took the deceased to the house of the 2nd accused, where the appellant and the 4th accused were already waiting. The prosecution further alleged that the four (4) accused persons (including the 3rd accused/appellant) in the house of the 2nd accused tied the neck and mouth of the deceased with a piece of cloth and raped her in turns. She died of suffocation in the process. The accused persons, allegedly, stole the N13,500.00 the deceased came with. They later dumped her corpse in a shallow pit latrine at the back of the 2nd accused’s house. A search party later found the corpse after a rainfall exposed it. The four accused persons, including the 3rd accused/appellant, were arrested and each of them made extra-judicial statements to the police.

Specifically, the statement of the 3rd accused/appellant, confessional in nature, was admitted in evidence as Exhibits ‘B and B1’. The

 

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appellant made his statement in Yoruba language. One Sgt. Mogaji, a police officer, recorded the statement in Yoruba language. Exhibit “B” is the Yoruba version of the statement. Inspector lbitoye, also a police officer, translated the statement from Yoruba language, it was recorded by Sgt. Mogaji into English. The English language version of the statement is Exhibit “B1”.

At trial, neither Sgt. Mogaji nor Inspector Ibitoye testified. Exhibits “B” (recorded by Sgt. Mogaji) and “B1”. (the English translated version of Exhibit “B” by Inspector lbitoye) were tendered and admitted in evidence through the PW.3, a Police officer, who claimed to be part of the police investigation team. The PW.3 never claimed that he was present when the appellant made his statement recorded by Sgt. Mogaji in Yoruba language. He also did not claim that inspector lbitoye translated the statement from Yoruba to English languages in his presence. Exhibits “B-B1” were admitted in evidence through PW.3 on the only ground that he had worked with Sgt. Mogaji and Inspector lbitoye for some time in the same station and was acquainted with their handwritings, and not that he vouched or

 

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could vouch for the veracity, correctness or authenticity of either Exhibit.

Chief Kuewumi, defence counsel, had objected to admitting the statements Exhibits “B-B1” through the PW.3 on the ground that “the statements are not tendered by the makers and no proper foundation laid as to the reasons why the makers are not called”. The learned trial Judge nonetheless admitted the statements in evidence, reasoning inter alia:
“While I agree that this witness may tender the statements in law, as stated by the Learned DDPP, I hold the view that proper foundation should be laid as to the reasons why the makers of the statements are not called. The learned DDPP argued further that this Court is a Court of Justice and technicalities to prevail over justice. I hold the view that since the defences of the accused persons are likely to be based on these statements i.e. whether or not they are voluntary made, it will be in the interest of justice that the statements are admitted at this stage. The statements of the 3rd accused person are admitted in evidence and marked Exhibit “B and B1”.

At the time of this proceeding at the trial Court the provisions of

 

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Section 137 (now Section 135 of the Evidence Act, 2011) were not only extant, they governed the proceedings on the burden of proof in any proceedings in which commission of a crime by a party is directly in issue. The law is now trite that in a criminal case it is essential that proof of material facts should necessarily be beyond reasonable doubt. See for instance, OBUE v. THE STATE (1976) 2 SC. 79; ELIZABETH OGUNDIYAN v. THE STATE (1991) 4 SCNJ 44; (1991) 4 SC. 100. Where the prosecution failed to prove a material fact in a criminal proceeding beyond reasonable doubt the law imposes on the Court to resolve the benefit of doubt on favour of the accused person. It does not lie in the office of the adjudicator to resort to speculation in order to fill in the gap for the prosecutor. Speculation, being an unfortunate and undesirable frolic, the familiar admonition is that a Court of law must refrain from indulging in it. As Uwaifo, JSC had put it in ACB PLC v EMOSTRADE LTD. (2002) 8 NWLR (Pt.770) 501: It is not part of judicial exercise but a mere curious guess work.

I notice, from the portion of the proceedings of the trial Court that I had earlier

 

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reproduced that the learned trial Judge had committed some judicial blunders in the bid to admit Exhibits B-B1. That is –
“i. Notwithstanding his holding that proper foundation should be laid as to the reasons why the markers of these statements are not called, he nonetheless admitted in evidence gratuitously without proper foundation. He ought to have resolved the benefit of doubt in favour of the accused/appellant;
ii. He undertook the frolic of speculating that the defences of the accused persons are likely to be based on these statements i.e. whether or not they are voluntarily made; and
iii. By dint of Section 27(2) Evidence Act then extant (now Section 29(2) of Evidence Act, 2011) it behooved the trial Court to admit in evidence upon proof beyond reasonable doubt that the confession was voluntarily made or “that the confession (notwithstanding that it may be true) that was not obtained in a manner contrary to the Provisions of” Section 27 of the Act. The law does not therefore permit the trial Court to admit in evidence, on a nebulous claim of interest of justice, a confessional statement that was obtained or made involuntarily.”

The

 

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trial court proceeded on these three basic or fundamental errors to admit Exhibits B-B1 in evidence. It made extensive use of Exhibits B-B1 to convict the 3rd accused/appellant for the alleged murder. The law is settled that if evidence is inadmissible, the Court can not use it at any stage; even where no objection has been raised against it at the trial. See ALADE v. OLUBADE (1976) 2 FNR 10 at 13.

In DELE v. THE STATE (2011)1 NWLR (Pt.1229) 508 the law was re-stated, emphatically, that a confessional statement that was not voluntarily made by the accused person is not admissible in evidence, and where it is wrongly admitted in evidence, without the Court conducting the necessary trial-within-trial to determine if it was voluntarily made, it ought to be expunged from the evidence before the Court.

The judgment of the trial Court is copied at pages 96-123 of the records of appeal. The learned trial Judge, in the Judgment, acknowledged that there was objection to the admissibility of the confessional statements, Exhibits B-B1, which he admitted in evidence upon overruling the objection.

The evidence on which the Learned trial Judge found that the

 

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prosecution had proved beyond reasonable doubt the guilt of the 3rd accused/appellant for the offence of murder alleged against him came largely from Exhibits B – B1. At pages 121 – 122 of the record he had found inter alia –
“even the confessional statements of each of the accused persons showed abundantly that the prosecution succeeded in establishing that the deceased i.e. Mrs. Maria Joseph Erhiyore died on 2/6/95.
On the second ingredient, there was sufficient evidence from the confessional statements of each of the accused persons in which each of them explained clearly and unequivocally the role each played in the death of the deceased. These confessional statements, as said earlier, were voluntarily obtained, properly tendered and admitted in evidence – — Each accused admitted that they tied up the deceased at the mouth and neck region, had sexual intercourse with her one after the other until the woman gave up the ghost, – and later in the night buried her in a pit latrine from where the corpse was later recovered. It is very clear that the acts of each of the accused persons as stated above caused the death of the deceased.
The learned

 

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trial judge found consequently that the act of the accused persons, admitted in their respective confessions, caused the deceased to die as a result of suffocation and that they, each, “knew that or grievous bodily harm would be the probable consequence.”

The Court of Appeal affirmed the conviction and sentence of the appellant for the murder of the deceased. The intermediate Court held that the procedure whereby Exhibits B-B1 were tendered and admitted in evidence through PW.3 was proper in law, and that Exhibits B-B1, pursuant to Section 15 of the Evidence Act were “found to be relevant and legally admissible” in evidence “hence the trial Court allowed same in evidence”. In affirming the conviction and sentence of the appellant for the alleged murder the Court of Appeal held at page 298 of the records of appeal that “Exhibits B-B1, duly admitted in evidence contains the voluntary confession of the appellant that he partook in the act that led to the death of the deceased”. It is this decision of the Court of Appeal that has prompted this further appeal by the appellant to this Court.

I have perused the briefs of argument filed and adopted for the

 

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determination of this appeal. l think issue 1 formulated and argued by the appellant will completely resolve this appeal. That is –
“Whether having regard to the facts and circumstances of this case the Court below was correct in affirming the trial Judgment in admitting the extra-judicial confessional statement of the appellant (Exhibits B-B1) notwithstanding the fact that none of the persons who recorded and translated the confessional statement was called as a witness.”

Mr. Omobia, of counsel for the appellant submits on this issue that failure to call the recorder and/or translator of the confessional cum self incriminating statement of the appellant, as in Exhibits B-B1 renders the statement inadmissible in evidence. He relies on OLALEKAN v. THE STATE (2001) 18 NWLR (Pt.746) 818; OKEKE v. OBIDIFE (1965) ALL NLR 51 at 54 etc. Counsel further submits, relying on ALI v. AUDU (1996) 6 NWLR (Pt. 453) 148 at 167, that Exhibits B-B1 having been wrongly admitted in evidence could be, and should be, expunged.

Mr. Osinaike for the respondent, on his part, submits that the appellant has not shown that he suffered any miscarriage of justice by the

 

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failure of the recorder and translator of the appellant’s confessional statement to come forward to testify; and that we should not disturb the concurrent findings of facts by the lower Courts. He cited inter aliaSUN INSURANCE OFFICE LTD. v. OJEMUYIWA (1965) 1 ALL NLR 1; EJOFOR v. THE STATE (2006) 6 NSCCR (Pt.1) 2009; ADEKEYE v. ADESINA (2011) 20 WRN 1 at 16.

A wrongful admission in evidence a fact or piece of evidence which in law, ought not to have been in the first place is a matter of law, and not a finding of fact as such. The principle on concurrent findings of fact by the Courts below does not apply. It is clear from ALADE v. OLUBADE (supra) and ILIYASU SUBERU v. THE STATE (2010) 3 SC. {pt.2) 105 that admitting in evidence a piece of evidence, which by law, is inadmissible is an illegality. It is for this reason that if a piece of evidence which is inadmissible in evidence is wrongly admitted in evidence the Court can not use it at any stage of the proceedings; even where no objection was raised against it at the trial. An inadmissible evidence, admitted in evidence with or without objection at the time it was admitted, remains nonetheless

 

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irrelevant and inadmissible. See BISICHI TIN CO. LTD. v. COMMISSIONER OF POLICE (1963) NNLR 71.

Exhibits B-B1 were admitted in evidence through PW.3, who neither claimed any role in the recording or translation, nor was he present when they were recorded and translated. The recording of the statement (Exhibit B) in Yoruba language by Sgt. Mogaji presupposes the appellant allegedly spoke to Sgt.Mogaji in Yoruba language. PW.3 did not claim that he spoke and or understood Yoruba. When an interpreted or translated version of an accused statement is sought to be tendered in evidence, unless the interpreter or translator is called as a witness the translated version is hearsay and therefore inadmissible in evidence. See QUEEN v. ZAKWAKWA 5 FSC 12 at 13; DOGO ADATU v. THE STATE (1980) 2 NCR 33; UTIE v. THE STATE (1980) 2 NCR 69; OLALEKAN v. THE STATE {supra); OKEKE v. OBIDIFE (supra).
Sgt. Mogaji who recorded the statement of the appellant in Yoruba Language did not testify. He was not called to testify as his whereabouts were unknown. Inspector Ibitoye who translated Exhibit B to English (Exhibit B1) also did not testify. Exhibits B and B1 are therefore hearsay and

 

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inadmissible in evidence, unless their recorder and interpreter were called to attest to the veracity of their recording and interpretation. This case in all fours with FRN v. USMAN (2012) 8 NWLR (pt. 1308) 141 at 159 where it was held –
“Before these documents are admissible in evidence, the police officer who recorded the statement and the interpreter (translator) must testify in Court — Where a conviction is based solely on a confessional statement, and the (police officer who recorded it) and the interpreter (or translator) who (interpreted it) when the statement was obtained did not testify, the confessional statement is hearsay evidence and the accused person is entitled to an acquittal.”

Exhibits B-B1, relied upon for the conviction of the 3rd accused/appellant for the murder of the deceased are inadmissible evidence, both of them being hearsay pieces of evidence produced and tendered by PW.3 who had no hand in their recording and interpretation. The conviction and sentence of the appellant upon a clearly inadmissible evidence is itself evidence of miscarriage of justice. Accordingly, I shall not subscribe to the contention of the

 

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respondent that the appellant has not shown that he suffered any miscarriage of justice by the admission in evidence of Exhibits B-B1 and their use in the conviction and sentence of the appellant. The law enuring in favour of every accused person is that he can only be convicted for an alleged offence if, and only if, the prosecution established his guilt beyond reasonable doubt by legal evidence lawfully admitted in evidence against him.
Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty. See Section 36(5) of the 1999 Constitution. Section 137 of the then extant Evidence Act (now Section 135 of the Evidence Act, 2011) imposes a strict burden on the prosecution to prove crime beyond reasonable doubt. lf they fail to discharge the burden, their allegation that an offence had been committed fails. See OGUNBANJO v. THE STATE (2002) 15 NWLR (Pt.789) 76; NWOBODO v. ONOH & ORS. (1984) NSCC 1; (1984) 1 SCNLR 1.

All I have been trying to demonstrate is that the conviction and sentence of the appellant on Exhibits B- B1, which are inadmissible hearsay evidence, by the trial Court were wrong in law. It

 

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follows also that the affirmation of the conviction and sentence of the appellant by the Court of Appeal was equally wrong in law. Coming, as I do, to this conclusion, I hereby join my learned brother, AMINA ADAMU AUGIE, JSC, in not only allowing the appeal but also setting aside the conviction and sentence of the appellant for the offence of murder charged. The conviction and sentence of the appellant are hereby set aside and in their place I hereby enter in favour of the 3rd accused/appellant, an order of discharge and acquittal.

 

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Appearances:

Fred Onuobia with him, Solomon Ezike For  Appellant(s)

Olanrewaju Osinaike with him, Adewaba Adeola For  Respondent(s)

 

Appearances

Fred Onuobia with him, Solomon Ezike For Appellant

 

AND

Olanrewaju Osinaike with him, Adewaba Adeola For Respondent

 

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