Abdul v. The State (2021) – CA

⦿ CASE SUMMARY OF:

Abdul v. The State (2021) – CA

by PipAr Chima

⦿ COURT:

Court of Appeal – CA/G/1C/2020

⦿ AREA(S) OF LAW

Rape.
Bias.
Confessional statement.

⦿ NOTABLE DICTA

* INTERPRETER OF AN ACCUSED STATEMENT MUST BE CALLED
It is indeed the law that an accused person’s statement should, as much as possible, be taken down in the exact words of the accused person. Where the statement is thereafter translated into English by another person, the interpreter must be called as a witness in order for the statement in English to be admissible in evidence. Where that interpreter is not called, the statement in English will be regarded as hearsay evidence and will therefore be inadmissible – Eyop v.  State (2018) 6 NWLR (Pt. 1615) 273 (SC) per Sanusi, J.S.C. – Sankey JCA. Abdul v. State (2021)

* CONFESSION IS RELEVANT WHEN IT PROVES FACT
The vital consideration that should engage the mind of a trial Judge is the relevancy of the confession.  A confession is relevant when it proves the fact that constitutes one of, or all, the elements of the crime to be proved, and/or identifies the person who committed the offence. If the confession is relevant and is free and voluntary, it is admissible in evidence and once admitted, the weight to be attached depends on its probative value and pure truth content. – Sankey JCA. Abdul v. State (2021)

* RETRACTION OF CONFESSIONAL STATEMENT
Additionally, on the retraction of the contents of Exhibit A at the trial by the Appellant as DW1, the law is settled that a retraction or denial of a confessional statement does not affect its admissibility. Thus, the mere fact that a confessional statement is challenged on the ground that the accused person did not make the statement, does not render it inadmissible in evidence. In such a situation, the application of the following principles should be considered in determining whether or not to believe and act on a confession which an accused person has resiled from: a) Whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; b) Whether its contents, if tested could be true; c) Whether the defendant had the opportunity of committing the alleged offence; or d) Whether the confession is possible and the consistency of the said confession with other facts that have been established. – Sankey JCA. Abdul v. State (2021)

* CONFESSION ALONE CAN GROUND CONVICTION
Furthermore, it is also the law that the confessional statement of an accused person alone is sufficient to ground a conviction. A confession alone, properly proved, is enough to ground a conviction, even without corroboration. Thus, an uncorroborated confessional statement of an accused person can be acted upon, without more. Nonetheless, it is advisable to look for some evidence outside the confessional statement which makes it probable that the confession is true. – Sankey JCA. Abdul v. State (2021)

* COUNSEL MUST SHOW HOW FAIR HEARING WAS BREACHED
A complaint founded on a denial of fair hearing is an invitation to the Court hearing the Appeal to consider whether or not the Court against which the complaint is made, has been generally fair on the basis of equality to all the parties before it. Counsel has not indicated or shown in what circumstances the Appellant was denied fair hearing. It is not enough for Counsel to say that the right to fair hearing was breached in a matter; he must show such by the evidence available and the circumstances of such breach. And the evidence must be that the party was not given an opportunity to state his case which he wanted to state in his own way. As was rightly submitted by learned Counsel for the Respondent, fair hearing is not a technical doctrine, but a rule of substance. – Sankey JCA. Abdul v. State (2021)

* JUDGE MIST EVALUATE THE EVIDENCE
The justice of a case and statutory requirements will not be met if the trial Court considers only one side of a case. Adequate consideration must be given to both sides. In discharging this duty, the Judge must evaluate all the evidence. It is not the justice of a case if the Judge, without evaluating the evidence, holds that he believes one side and disbelieves the other. Only an evaluation of the evidence will logically lead to his reasons for believing or disbelieving. However, Judges differ in style. Nevertheless, whichever style a Judge uses or adopts, the important thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding. – Sankey JCA. Abdul v. State (2021)

* OBITER DICTA CANNOT BE THE BASIS FOR AN APPEAL
It must be reiterated that it is not every pronouncement of a Court that should be the basis of an appeal. It is well settled that an opinion expressed by a Court cannot be a valid basis of an appeal. – Sankey JCA. Abdul v. State (2021)

* CONFESSIONAL STATEMENT TENDERED WITHOUT OBJECTION IS VALID
The law is well settled that when a confessional statement is tendered without objection by an accused or his counsel, they cannot cry foul on appeal as it is deemed they were in agreement with what was tendered at the trial Court, see the cases of Shurumo v. State (2010) LPELR-3069(SC) and FRN v. Kayode-Beckley (2020) LPELR-50549(CA), neither the appellant nor his counsel objected to PW4 tendering exhibit A at the trial Court. – EBIOWEI TOBI, J.C.A. Abdul v. State (2021)

* ABSENCE OF MEDICAL REPORT IN RAPE CASE NOT FACT
The absence of a medical report in a case of rape is not fatal to the case of the Prosecution if there are other factors to corroborate the commission of the offence. – EBIOWEI TOBI, J.C.A. Abdul v. State (2021)

* THE EFFECT OF BIAS ON A JUDGE
On the subject of bias, I make bold to say that the allegation once made is a serious one. This in my opinion is more serious because in this instance, the integrity of the Judge is being attacked. The language of bias is indicative of a deliberate action by the Judge to look outside the law and the facts to decide a matter. Accusing a judicial officer of bias is to say that the judicial officer is not fit to take over the responsibility of such great honour and a direct affront to the oath of office that he took on the day he was sworn in. In fact, a Judge is a representative of God on earth and therefore should imbibe the principle of justice and therefore jealously guide this divine calling. To be a judicial officer takes more than knowledge of the law and been intelligent but must more requires good character in both the strict and general sense of the word. An appeal on grounds of bias is a challenge on the character, the integrity of the judicial officer. It is a challenge that takes away from him the covering of decency as a judicial officer. I am going into all that to drive home the point that lawyers should be very careful in accusing a judicial officer of bias except when there is convincing evidence to buttress that. I make bold to say that the time has come for disciplinary action to be taken against lawyers who accuse a Court or Judge of bias which he can not establish. Once a Court has been accused of bias, unfortunately it cannot be taken back and no matter how clean the judicial officer is, there is a dent on his integrity even if it is by one person who earlier held him in high esteem. – EBIOWEI TOBI, J.C.A. Abdul v. State (2021)

⦿ PARTIES

APPELLANT
Abdul

v.

RESPONDENT
The State

⦿ LEAD JUDGEMENT DELIVERED BY:

Jummai Hannatu Sankey, J.C.A.

⦿ APPEARANCES

* FOR THE APPELLANT

– M.S. Umar Esq.

* FOR THE RESPONDENT

– K.S. Lawan Esq., Hon. Attorney-General of Borno State.

⦿ CASE HISTORY

On July 11, 2018 at about 7.45 pm, one Hauwa Adam Abdullahi reported to the Police at the Ibrahim Taiwo Estate (ITE) Police Station, Maiduguri that on the same date at about 7.30 pm, one Ba’a Goni Abdul raped her daughter, Halima Adam Abdullahi aged 10 years old, in an uncompleted building at the Federal Low Cost Junction while she was out hawking Native Caps. Upon arrest and investigation, the said Ba’a Goni Abdul, now Appellant, was arraigned before the Borno State High Court and charged with the offence of rape punishable under Section 283 of the Penal Code Law (supra). He pleaded not guilty to the charge.

In proof of the charge, the prosecution adduced evidence through four (4) witnesses and four (4) exhibits marked Exhibits A to D, which were:(i) the Appellant’s extra-judicial statement, (ii) Native Caps, (iii) skirts and (iv) a shirt, respectively. In his defence, the Appellant testified and called no other witness. At the close of evidence, both learned Counsel for the defence and the prosecution addressed the lower Court on the issues of facts and law arising in the case. Thereafter, the lower Court delivered its judgment on December 2, 2019 wherein it convicted the Appellant for the offence of rape as charged and sentenced him to a term of 15 years’ imprisonment, in addition to a fine of N20, 000.00. In default of payment of the fine, the Appellant was sentenced to serve an additional term of one-year imprisonment. The sentences are to run concurrently. Dissatisfied with this decision, the Appellant filed an Appeal to this Court on January 15, 2020 vide his Notice and Grounds of Appeal, wherein he complained on seven (7) Grounds.

⦿ ISSUE(S) & RESOLUTION

[APPEAL: DISMISSED]

1. Whether the trial Judge was right in convicting and sentencing the Appellant to 15 years’ imprisonment and to pay a fine of Twenty Thousand Naira (N20, 000.000), or go to jail for one year, while relying on the evidence of PW4 who failed to record the confessional statement of the Appellant, Exhibit A, in the language that he speaks or understands, as required by law.

RULING: IN RESPONDENT’S FAVOUR.
I. From the printed Record of Appeal, PW4, the Investigating Police Officer at the State CID Maiduguri, gave evidence of the way and manner she obtained Exhibit A, and how she also acted as both the interpreter and the translator of the statement. Further to this, when the statement was tendered in evidence at the trial Court, the Appellant through his Counsel, did not raise any objection on any ground. This is contrary to when the first confessional statement of the Appellant made to the Police at the Ibrahim Taiwo Estate (ITE) Police Station was tendered in evidence through PW3. At that time, Counsel for the Appellant vehemently opposed the application to admit the statement in evidence and objected vociferously on the ground that the statement was not voluntary. This led to a trial-within-trial being conducted by the learned trial Judge and the subsequent rejection of the document in evidence. In the case of Exhibit A however, there was no objection at all to the admission in evidence of the statement made to PW4. In addition, PW4 explicitly explained how, (given the less than ideal circumstances we have in our Police Stations in the country), she received the statement of the Appellant given in Hausa language, recorded it in English language and interpreted it to him in Hausa; after which he confirmed that it was his correct statement, he thumb-printed it. Clearly therefore, notwithstanding the fact that the statement was not recorded in the language in which it was given, the Appellant did not object to its admission in evidence on the ground that it was not his statement, or that he did not thumb-print it, or that it was not voluntary, or on any other ground at all. Therefore, PW4, who was both the interpreter and the recorder of the statement, expressly gave evidence on all that she did in the process, and Exhibit A was tendered and admitted in evidence through her. This is unlike in other cases where the interpreter of the statement given in a language other than English, was never called as a witness at the trial, which ipso facto would make such evidence hearsay. In the peculiar circumstances of this case, it would therefore be wrong to expunge Exhibit A. From decided authorities, the procedure followed in obtaining Exhibit A was sufficient in law to ensure that the Appellant understood what he thumb-printed.

II. The trial Court was therefore right to have acted on Exhibit A as it did not fall into the category of hearsay evidence as enunciated in Shivero v. State (1976) LPELR-3061(SC) 8-9, A-B, per Fatayi-Williams, J.S.C. Furthermore, given the opportunity, the Appellant’s Counsel did not object to the admissibility of the statement in evidence neither did he cross-examine PW4 as to the correctness and/or voluntariness or otherwise of Exhibit A. Hence the complaint cannot be entertained here on appeal.



2. Whether or not, in view of the entire circumstances of the case and the evidence before the lower Court, the Appellant was denied of his constitutional right to fair hearing and fair trial.

RULING: IN RESPONDENT’S FAVOUR.
I. The Black’s Law Dictionary, Ninth Edition at page 789, defines the phrase “fair hearing” as: “A judicial or administrative hearing conducted in accordance with due process”. In essence, fair hearing means giving equal opportunity to be heard. A party cannot complain of a breach of the fair hearing principles where he has been given an opportunity to advocate his case equal to that given to the opposing party.

II. In this case, there is no evidence before the trial Court that the Appellant was denied a fair hearing. From the Record, the Appellant was duly represented by Counsel at all times during the proceedings; his Counsel cross-examined all the prosecution witnesses unhindered; the Appellant testified in his defence and declined to call any other witness; and he was availed all the opportunity to defend himself from the charge against him. The evidence adduced by both sides was reviewed and considered by the learned trial Judge before he made findings and gave his verdict.

⦿ ENDING NOTE BY LEAD JUSTICE – Per

⦿ REFERENCED (STATUTE)

Section 209 Evidence Act 2011;

⦿ REFERENCED (CASE)

* STATEMENTS SHOULD BE RECORDED IN LANGUAGE MADE
Olanipekun v. State (2016) LPELR-40440(SC) 8, B-D, Aka’ahs, J.S.C. expressed the position of the case law as follows: “Statements should be, wherever practicable, recorded in the language in which they are made.  This is a practical wisdom directed to avoid technical arguments which could be raised.  It is not an invariable practice but one to ensure the correctness and accuracy of the statements made by the accused persons.”

* ADMISSIBILITY OF A CONFESSIONAL STATEMENT
Olalekan v. State (2001) LPELR-2561(SC) 4, 50-51, F-A, where Onu, J.S.C. held as follows: “This Court has held times without number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it. See Queen v. Baba Haske (1961) 1 All NLR 330 at 333.”  (Emphasis supplied).
At page 37, A-C of the same Report, Karibi-Whyte, J.S.C. also stated as follows: “The general proposition is well settled that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down.”
Again, at pages 55-57 of the same Report, Uwaifo, J.S.C. made his findings in extension as follows: “I have read the reasons given by my learned brother Ogundare, J.S.C. for dismissing this appeal on 20 September, 2001. I wish however, to express my views briefly on whether Exhibit A was properly admitted at the trial. Sgt Linus Patricks (PW6) was the officer who recorded the statement of the appellant. The appellant spoke in Yoruba language and PW6, acting through an interpreter, Aremu Adeosun (PE3), recorded the statement in English language. That was how Exhibit A, the said statement, came into existence. Now, PW3 testified that he interpreted between PW6 and the Appellant. Thereafter, he read the statement as written in English language by interpreting it to the Appellant who agreed that it was correctly recorded. He said the Appellant thumb-printed Exhibit A and he, the interpreter, signed it, as did PW6, the recorder of the statement…  At the trial Court, no objection was taken to the voluntariness of the statement, or any other objection at all… The objection now taken in this Court is that the statement (Exhibit A) is hearsay evidence… With the greatest respect, what I understand the authorities in this country to establish is that where an interpreter has been used in taking down a statement, both the person who wrote down the statement and the person who interpreted it must be called as witnesses. In the case of the person who recorded the statement, he would, of course, state in evidence the procedure he took in the process. That was done in the present case. As for the person who interpreted, he would need to be presented as a witness to testify that he interpreted.  It is then open to the defence to cross-examine them… I am therefore satisfied that the prosecution called the necessary witnesses who gave sufficient evidence in the present case to make Exhibit A admissible… The objection that it was hearsay is not well founded and I overrule it.”

* NATURE OF FAIR HEARING
Pam v. Mohammed (2008) LPELR-2895(SC), 26-27, per Oguntade, J.S.C., held as follows – “The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be Judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment … It is wrong and improper to approach the meaning of fair hearing by placing reliance on any a priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a Court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed prerequisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.”

* WHAT IS BIAS?
Egwumi v. State (2013) LPELR-20091(SC) 23, A-B per Rhodes-Vivour, J.S.C. defined ‘bias’ as follows: “Bias means anything which tends or may be regarded as tending to cause a Judge to decide a case otherwise than on the evidence.”

⦿ REFERENCED (OTHERS)