YOHANNA DAVOU v. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND
(2019)LCN/13866(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of March, 2019
CA/J/424B/C/2017
RATIO
APPEAL: PROCESS AND PERIOD WITHIN WHICH A PARTY CAN APPEAL AGAINST AN INTERLOCUTORY RULING UNDER SECTION 25 OF THE COURT OF APPEAL RULES
The party has to obtain leave to appeal against the interlocutory ruling because by Section 25 of the Court of Appeal Act, a party has 14 days within which to appeal against an interlocutory ruling. See: KAKIH V. PDP & ORS. (2014) LPELR 23277 (SC); OGIGIE V. OBIYAN (1997) 10 SCNJ 4; N.L.C. V. PACIFIC MERCHANT BANK LTD. (2012) ALL FWLR (PT. 640) 1211; CBN V. OKOJIE (2002) 8 NWLR (PT. 768) 48. PER UCHECHUKWU ONYEMENAM, J.C.A.
APPEAL: WHETHER A COMPLAINT AGAINST A RULING FOR WORNGFUL ADMISSION OF EVIDENCE OR WRONGFUL REJECTION OF EVIDENCE CAN BE MADE A GROUND OF FINAL APPEAL AND WHETHER LEAVE WILL BE REQUIRED
Therefore a complaint of an Appellant against a ruling for wrongful admission of evidence or wrongful rejection of evidence can be made a ground in the appeal against the final judgment and no leave shall be required. See: ONWE V. OKE (2001) 3 NWLR (PT. 700) 406 SC; OKOBIA V. AJANYA (1998) 6 NWLR (PT. 554) 348 SC; DUNALIN INV. LTD. V. BGL PLC. (2016) 18 NWLR (PT. 1544) 262. I therefore do not agree with the Respondent?s counsel that Ground 1 of the Grounds of Appeal and the ensuing issue is incompetent for failure to obtain leave. PER UCHECHUKWU ONYEMENAM, J.C.A.
APPEAL: THE APPELLATE COURT WILL NOT INTERFERE IN THE JUDGMENT OF THE LOWER COURT ONCE IT IS DETERMINED THAT THE ADMISSIBLE EVIDENCE COULD NOT REASONABLY HAVE AFFECTED THE DECISION
Once the appellate Court is of the opinion that the admissible evidence could not reasonably have affected the decision, it will not interfere. See: Section 251 (1) of the Evidence Act, 2011; ITU V. STATE (2016) LPELR ? 26063 (SC); ARCHIBONG V. STATE (2006) 14 NWLR (PT. 1000) 349; NWAEZE V. STATE (1996) LPELR ? 2091 (SC); EZEOKE V. NWAGBO (1988) 1 NWLR (PT.72) 616 AT 630: MONIER CONSTRUCTION CO. LTD. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 AT 88; AJAYI V. FISHER (1956) 1 F.S.C. 90: R. V. THOMAS (1958) 3 F.S.C. 8; LAYONU AND ORS V. THE STATE (1967) 1 ALL NLR 198. PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: WHEN AN INADMISSIBLE EVIDENCE IN LAW IS WRONGLY ADMITTES IN EVIDENCE IN COURT
Where a piece of evidence which is inadmissible in law is wrongly admitted in evidence the Court cannot use it at any stage of the proceedings; even where no objection was raised against it at trial. An inadmissible evidence, admitted in evidence with or without objection at the time it was admitted, remains irrelevant and inadmissible. See:IFARAMOYE V. STATE (2017) 8 NWLR (PT. 1568) SC 457; ILIYASU SUBERU V. THE STATE (2010) 3 SC. PT.2 105; BISICHI TIN CO. LTD. V. COMMISSIONER OF POLICE (1963) NNLR 71. PER UCHECHUKWU ONYEMENAM, J.C.A.
WHEN AN ACCUSED PERSON DOES NOT UNDERSTAND ENGLISH LANGUAGE
It is a constitutional requirement that if an accused person does not understand English at all and he makes a statement it must be recorded in the language he speaks or understands and later translated into English. See: Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).?
See: ASUQUO V. STATE (2016) 14 NWLR (PT. 1532) SC 309 AT 329, PARAS., D ? E. SEE ALSO: IFARAMOYE V. STATE (2017) 8 NWLR (PT.1568) SC 457; BELLO V. C.O.P. (2018) 2 NWLR (PT. 1603) SC 267. PER UCHECHUKWU ONYEMENAM, J.C.A.
Before Their Lordships
UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria
TANI YUSUF HASSANJustice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGIJustice of The Court of Appeal of Nigeria
Between
YOHANNA DAVOU Appellant(s)
AND
COMMISSIONER OF POLICE, PLATEAU STATE COMMAND Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The conviction and sentence of the Appellant to death by hanging for the offences of criminal conspiracy and culpable homicide punishable with death under Sections 97 and 221 of the Penal Code Law, CAP 89 Laws of Northern Nigeria as applicable to Plateau State 1963 respectively, is the reason for this appeal. The judgment was entered on 22nd May, 2017 by C.L. Dabup, J. of the High Court of Plateau State.
The Appellant who was the 1st accused at the trial Court, dissatisfied with his conviction and sentence, appealed to this Court by a Notice of Appeal dated 17th August, 2017, and filed 18th August, 2017. With the leave of this Court, on 26th March, 2018, the Appellant was granted leave to make use of and rely on the Record of Appeal compiled and transmitted in Appeal No. CA/J/424A/C/2017 in arguing his Notice of Appeal.
The necessary facts of the case leading to this appeal is that the Appellant was charged along with four others for the offences of criminal conspiracy and culpable homicide punishable with death under Sections 97 and 221 of the Penal Code Law, CAP 89 Laws of Northern Nigeria, 1963 as applicable to Plateau State respectively.
1
The case for the prosecution is that on 23rd December, 2012 at about 6:00pm the Appellant along with others went to the house of one Simon Badung, (PW1) where they accused his mother, one Lyop Badung, (herein after called ?the deceased?), of witchcraft. They alleged that the deceased inflicted one Rachael Yohana, 10 years old daughter of the 1st accused at the trial Court with witchcraft as a result of which she was critically ill. The deceased was confronted with the allegation based on the confession of one Victoria Bandag, a 13 year old girl who alleged that it was she and the deceased that inflicted the said Rachael Yohanna with the sickness.
While in the house of the said deceased, Victoria Badung requested that she be locked up in a room with the deceased and the sick Rachael Yohanna so they can loose her from the witchcraft. Shortly after they were locked up in a room, Victoria Badung requested that they should open the door so that she could ease herself. The Appellant escorted her but returned shortly thereafter to inform others that Rachael had escaped.
2
When the Appellant together with others entered the room where they were locked up, they discovered that Rachael Yohanna had died. There and then the Appellant and other people descended on the deceased and attacked her consequent upon which she died on the spot. The matter was reported at the Riyom Divisional Police Station whereupon the Appellant and other accused/convicts were arrested the following day. The photograph of the deceased was taken after which the corpse was conveyed to the hospital and thereafter released to the family for burial.
The prosecution called four (4) witnesses to proof its case at the trial. PW1 and PW2 are the children of the deceased that witnessed the attack and killing of their mother. PW3 and PW4 are the Investigating Police officers at the Divisional and State Criminal Investigation Department (CID) respectively. The prosecution tendered some documents/items which were admitted in evidence as follows:
?P1″, (The extra-judicial statement of the Appellant at Riyom Police Station admitted without objection.)
?P6A? (Printed copy of photograph taken of the deceased)<br< p=””
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3
?P6B? (Printed copy of photograph taken of the deceased),
?P7A? (a stick),
?P7B? (a stick),
?P8? (a cutlass) and
?P9? (The extra-judicial Statement of the Appellant at the State Criminal Investigation Department, Jos admitted after trial within trial.)
At the close of the Respondent?s case, the Appellant opened his case wherein he gave evidence for himself as DW1 and thereafter closed his case. After hearing, and in a considered judgment, the trial Court convicted the Appellant for the offences so charged and sentenced him to death by hanging.
With the Appellant?s appeal, after counsel for the parties had filed their respective briefs of argument the appeal was ripe for hearing and so was heard on 17th January, 2019, wherein E.E. Duniya Esq., appeared for the Appellant, and N. D. Shaseet Esq. Director Citizens Right/Law Reform Ministry Of Justice Plateau State with K. D. Kyentu Esq. Principal State Counsel (PSC), N. Mbap Esq. PSC, S. F. Dalyop Esq., I. M. Saleh Esq. PSC and J. I. Mantu Esq. appeared for the Respondent.
4
Thereafter Mr. Duniya argued the appeal. He referred to the Appellant?s brief filed 9th May, 2018 and also the reply brief filed 31st October, 2018 but deemed properly filed and served on 17th January, 2019. He adopted the processes in urging the Court to allow the appeal. Mr. Shaseet referred to and adopted the Respondent?s brief filed 25th June, 2018 but deemed properly filed and served on 17th January, 2019 in urging the Court to dismiss the appeal. He invited the Court to note that the reply brief of the Appellant is a re-argument of the issues and as such should be discountenanced.
In the Appellant?s brief settled by Mr. Eric E. Duniya 3 issues were raised for determination. The 3 issues are:
1.?Whether the learned trial Judge was wrong to have admitted Exhibits ?P6A?, ?P6B? and ?P9? at the trial before the lower Court.
2. Whether the learned trial Judge was wrong when she found and held that the Appellant failed to raise his alibi at the earliest opportune time.
3. Whether the learned trial Judge was wrong when she found the Appellant guilty of culpable homicide punishable with death, and sentenced him accordingly.?
5
For the Respondent, Mr. N.D. Shaseet who settled the brief formulated the following 4 issues for determination, which are:
?1. Whether Exhibits P6A and P6B admitted in evidence without same being relied upon to convict the Appellant has occasioned a miscarriage of justice.
2. Whether the statements of the Appellant recorded directly from Hausa language to English language without first recording same in Hausa language is admissible and can be relied upon.
3. Whether the Learned trial judge was wrong when she found and held that the Appellant failed to raise a defence of alibi at the earliest opportunity.
4. Whether the prosecution had proved the offences of criminal conspiracy and culpable homicide punishable with death under Section 97 & 221 of the Penal Code Law, CAP 89 Laws of Northern Nigeria (as applicable to Plateau State) ,1963 respectively.?
anguage versions of the original depositions were tendered without a jurat….? See: YAHAYA V. DANKWAMBO (2016) 7 NWLR (PT. 1511) SC 284 AT 292, RATIO 7 AND ALSO AT PAGES 317, PARAS., A-D AND 328 – 329, PARAS., D-C.
The Courts have always maintained that statements should, wherever practicable, be recorded in the language in which they are made not only to avoid technical arguments but also to ensure the correctness and accuracy of the statements made by the accused. May I now refer to the evidence contained at page 146 lines 6 to 9; page 149 lines 2 to 9 and page 151 of the record. From the referred record it is clear that the Appellant gave or made his statements to PW3 and PW4 in Hausa language, thus, the Appellant?s argument is that, there must be Hausa versions of the statements, from which PW3 and PW4 read over to the Appellant and from which Exhibits ?P1? and ?P9″ ought to have been made. I have carefully read the decisions of the apex Court heavily relied
22
upon by the Appellant?s counsel particularly the cases of ASUQUO V. STATE (supra) and IFARAMOYE V. STATE (supra). In ASUQUO V. STATE (supra), notwithstanding the principle of law stated above; the apex Court on whether the statement of an accused person must be recorded in the language he speaks or understands and later translated into English; His Lordship Akaahs JSC said that where as in that case the accused person was cautioned in English language and he signed his caution, his statement recorded in English language was admissible in evidence although he made his statement in Efik. Then in IFARAMOYE V. STATE (supra); the same Supreme Court while considering; whether an interpreter who interpreted a confessional statement to a police officer as well as the police officer must be called to testify before the statement will be admitted, came to the conclusion that where in a case an accused person does not speak English, and the police officer does not understand the language of the accused, then an interpreter or translator shall be required, in
