➥ CASE SUMMARY OF:
Sabiu Iliyasu v. Kano State (SC/CR/119/2021, Friday 26th April 2024)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Confessional statement;
Interpreters;
Culpable homicide punishable with death.
➥ CASE FACT/HISTORY
This is an appeal against the decision of the Court of Appeal, Kano Division Coram: Abubakar Datti Yahaya, Habeeb Adewale Abiru and Amina Audi Wambai JJCA delivered on the 2nd day of July,2020 which affirmed the judgment of the trial court delivered by Hon. Justice A. T. Badamasi on 25th January, 2016 which had convicted and sentenced the appellant for the offences of criminal conspiracy and culpable Homicide punishable with death.
The appellant being dissatisfied with the said judgment of the Court of Appeal lodged an appeal against same vide a notice of appeal dated 28th July, 2020 and filed on 29th July, 2020 against the whole decision of the Court of Appeal which affirmed the decision of the trial court.
➥ ISSUE(S)
I. Whether the Court of Appeal was right in law when it held that the Prosecution as the respondent had no duty to tender in evidence at the trial all extra-judicial statements made by the appellant in the course of investigation except on demand by the appellant?
II. Whether the Court of Appeal was right to have affirmed the conviction and sentence of the appellant by the trial court on the offences of criminal conspiracy and culpable homicide punishable with death, solely on the incredible, inadmissible and uncorroborated confessional statement of the appellant “Exhibit A”?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[IT IS NOT STATED BY THE APPELLANT COUNSEL WHAT EXTRA-JUDICIAL STATEMENT EXONERATED THE APPELLANT
‘There is a difference between “disclosure of all material evidence” and “tendering of evidence” for or against the defendants. The arguments of learned appellant’s counsel would be relevant where the defence is claiming that the prosecution has suppressed favourable evidence gathered during investigation which it did not disclose in the proof of evidence. I am of the view that the previous judgments of this court must relate to non-disclosure of evidence favourable to the defendant as part of the proof of evidence. Such an action by the prosecution would be against the letters and the spirit of section 36(6)(b) of the 1999 CFRN (as altered). That is not the case here. No where did learned appellant’s counsel say that the extra judicial statement of the defendant if it exists at all exonerated him or gave an alibi which the police were unable or unwilling to investigate. It was the duty of the appellant’s counsel to tender the statement favourable to the defendant in proof of evidence which was not tendered by the police during the trial. See Busari v. The State (2015) LPELR-2479(SC); (2015) 5 NWLR (Pt. 1452) 343.’]
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↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE INTERPRETERS OF THE CONFESSIONAL STATEMENT WAS WERE NOT CALLED TO TESTIFY
‘In this case, the appellant’s 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 exhibitB1, 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 court’s 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 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 respondent’s 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 appellant’s statement. Secondly and more importantly PW3 told the court that Sgt. Mogajihad recorded it in Yoruba: there is nothing wrong with that and the court will not reject the Statement merely 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 testifying court- See F.R.N. v. Usman (supra).’
HOWEVER, THE POLICE OFFICER WHO INTERPRETED THE STATEMENT GAVE EVIDENCE DURING TRIAL-WITHIN-TRIAL
‘In essence, the rationale behind ensuring that the interpreter and/or the recorder of a confessional statement gives evidence regarding what they heard from the accused while giving the extra judicial statement is not defeated where the Police Officer who heard, recorded in the defendant’s native language and interpreted the statement into English language and gave evidence during the trial-within-trial is not available to give evidence during the main trial. I cannot subscribe to the view of the learned appellant’s counsel that the calling of the officer in evidence during the trial-within-trial does not and cannot cure the defect of not calling the officer in the main trial, thus rendering the said extra judicial statement of the appellant (exhibit A) inadmissible in the main trial. The essence of the view that the interpreter or translator must be present in court to give evidence is that he must be available to answer questions arising from the circumstances under which the statement was taken. He must be in court to explain what transpired when the statement was being taken. If the interpreter or translator be he a layman or a police officer has explained these circumstances and the defendant has had the opportunity to cross examine him during the trial within trial convened specifically to try the issue of the circumstances under which the statement was taken, the defence of the defendant is not compromised if he does not give evidence of the same facts a second time during the main trial. I hold the view that exhibit A is not documentary hearsay in the circumstances of this case and is admissible and was properly admitted by the two lower courts.’
THE RESPONDENT DISCHARGED THE BURDEN OF PROOF; CONFESSIONAL STATEMENT SATISFIED THE CREDIBILITY TEST
‘The evidence of PW1 and PW2 amply corroborated the fact that the deceased died, the appellant and others had an earlier altercation with the deceased before he was found with stab wounds and in a pool of blood. The credibility tests set out above have been adopted by our jurisprudence. See Nwachukwu v. The State (supra), Sale v.The State (supra).
The English Version of exhibit A reads in part thus:
“I was born 1983 at laying… Dala Local Government Area, Kano State in the Family of Iliyasu and Halima.I didn’t attend any school but I am now study (sic)Arabic. I could remember on 22/5/2011 at about2100hrs, I came back from Dandushe quarters where I met many people on Gadar Layin Kan Kara located at Gwamaja Quarters Kano. Among them are Naziru, Hussaini, Abdullahi, Nasiru Boka, Mustapha Baba, Hudidi, Huzaru. All of them were armed with different types of weapons. I, myself, was in possession of a knife. I heard them saying that Mustapha had cut three persons with solution tube and that one going to retaliate it. I beg them to forgive him but they refused. I then went along together with them to find the Mustapha where we met him at Layin Kungu Gwamaja Ward. They started stabbing him. I then used my knife and stabbed on the shoulder and remove my knife. I then went and bought fish for my(ii)father and went home….”
There is no doubt that in this case, the confessional statement of the appellant is consistent with the fact that his group of friends had a previous quarrel with the deceased. The statement stated that details of the quarrel. The fact that he and others stabbed the deceased who died almost immediately all prove that exhibit A met the credibility test and was sufficient to ground the conviction of the appellant.
My Lords having scrupulously gone through the record of the appeal, the arguments of both counsel and the totality of the evidence adduced by the Prosecution, I am of the opinion that the two lower courts were right to have found the appellant guilty as charged for the offence of criminal conspiracy and culpable homicide. There was absolutely nothing perverse in the judgment and no miscarriage of justice has occurred that would warrant interference with the concurrent findings of the two lower courts. See Addo v. State (2020) LPELR-55521(SC) (Pp. 25-26 paras. F); (2021) 12 NWLR (Pt. 1791) 427; Okolie v. State (2023) LPELR-59975 (SC) (Pp. 29-30 paras. D), (2023) 11 NWLR (Pt. 1894) 1; Abdullahi v. State (2023) LPELR-60696 (SC) (Pp. 28-29 paras. D);(2023) 2 NWLR (Pt. 1869) 407.’]
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✓ DECISION:
‘The decision of the Court of Appeal in CA/KN/612B/C/2016delivered on the 2nd day of July, 2020 is hereby affirmed.
Appeal is hereby dismissed.’
➥ FURTHER DICTA:
⦿ CHARGE BY INFORMATION VERSUS SUMMARY TRIAL
The trial of a serious felony like culpable homicide punishable with death and conspiracy to commit same is initiated by information which is filed at the High Court. The information must contain all the details of police investigation including the extra judicial statements of the defendant and ALL the witnesses interviewed by the police. That information and accompanying bundle of disclosure materials filed in court along the charge MUST perforce also be served on the defendant – or his counsel. That is what is customarily called “proof of evidence”. It is only in summary trial that the prosecution is not obliged to serve proof of evidence on the defendant, however, where a defendant asks for it in a summary trial, the prosecution is obliged to avail the defendant or his Counsel with details of the investigation conducted. In either case, it is when no information is withheld by the prosecution from the defence that it can be said that part of the provisions of section 36 (6)(b) of the 1999 CFRN (as altered) to ensure that a defendant is given adequate facilities to prepare his defence has been fulfilled in the eyes of the law. — Ogunwumiju JSC.
⦿ WHERE WITNESS CANNOT EXPLAIN CONTRADICTION BETWEEN PRIOR EXTRA JUDICIAL STATEMENT AND EVIDENCE ON OATH AT TRIAL
The acceptable and settled procedure in criminal trials has been that where a defence counsel in a summary trial or on information suspects that the evidence of a witness on oath contradicts the extra judicial statement made prior to the hearing, the defence counsel during cross examination of the witness would apply to the court that the original copy of the prior statement be brought from the custody of the Police and given to the defence. The defence counsel would cause the witness to read in open court the portion of the prior extra judicial statement made by the witness which contradicts the evidence on oath of the witness. The witness is then called upon by the defence counsel to explain the contradiction. Where the witness cannot explain the contradiction between the prior extra judicial statement and the evidence on oath at trial, the court is obliged to discountenance both testimonies and treat the witness as an untruthful witness. See Agbov. State (2006) 6 NWLR (Pt. 977) 545, Popoola v. State (2018)10 NWLR (Pt. 1628) 485. — Ogunwumiju JSC.
⦿ WHERE INTERPRETER OF ACCUSED STATEMENT IS NOT CALLED TO BE SUBJECT TO CROSS-EXAMINATION THE STATEMENT WOULD BE HEARSAY
The legal position is that if the statement of an accused is made in a language other than English and it is interpreted into English by an interpreter to the recorder, the interpreter must be called to give evidence on the point, at the trial of the accused, otherwise the contents of the statement will be hearsay and the statement will be inadmissible. In F.R.N. 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 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-VivourJSC 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 person’s 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 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. — Ogunwumiju JSC.
⦿ THE RATIONALE FOR ENGLISH TRANSLATION IN OUR COURTS
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 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. Itis for this reason that when a statement is recorded in vernacular from an accused there is always an English translation. — Ogunwumiju JSC.
⦿ A JUDGE CANNOT BE AN INTERPRETER OF A STATEMENT
Where the party omits to have the document so 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 qua1ification, 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. — Ogunwumiju JSC.
⦿ ESSENTIAL INGREDIENTS IN A CHARGE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
In Junaidu v. State (2021) LPELR-55199(SC) (Pp.3-4 paras. C), (2022) 4 NWLR (Pt. 1820) 371 this court reiterated the settled law that in a charge of culpable homicide punishable with death, the essential ingredients which the prosecution must prove to secure a conviction are as follows: (a)That the deceased died; (b) That the death of the deceased person resulted from the acts of the defendant; (c) That the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was the probable consequence of his action. The prosecution must prove that the death of the deceased person resulted from the act of the defendant by direct eye witness account, circumstantial evidence from which the guilt of the defendant can be inferred or by free and voluntary confessional statement of guilt by the defendant which is direct and positive. — Ogunwumiju JSC.
⦿ CREDIBILITY TESTS OF A CONFESSIONAL STATEMENT
The tests are: 1. Whether there is anything outside the confession to show that it is true. 2. Whether the statement is corroborated. 3. Whether the statement of fact made in the confession so far as can be tested is true. 4. Whether the accused person had the opportunity of committing the offence. 5. Whether the confession of the accused is possible. 6.Whether the confession is consistent with the other facts which have been ascertained and proved at trial. — Ogunwumiju JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ogunwumiju, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A. S. Gadanya, Esq.
⦿ FOR THE RESPONDENT(S)
Sagir Suleiman Gezawa, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
