Abayomi Olalekan V. The State (2001) LLJR-SC

Abayomi Olalekan V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

This appeal carne before us for hearing on Thursday 20th September 2001 and after hearing learned counsel for the appellant arguing in favour of the appeal, I summarily dismissed it as lacking in merit and indicated then that I would give my reasons for so doing today. Here below are my reasons.

This is an appeal against the judgment of the Court of Appeal (Ibadan Division) affirming the conviction of the appellant for the murder of Rabiu Kassim and the sentence of death passed on him by the High Court of Ogun State silting at Ijebu-Igbo.

At the trial of the appellant the prosecution called 9 witnesses and tendered a number of exhibits including the appellant’s statements to the police. The appellant gave evidence in his own defence and rested his case. After addresses by learned counsel for the defence and the prosecution, the learned trial Judge, in a reserved judgment, found the charge of murder laid against the appellant proved and convicted him accordingly. He was sentenced to death.

The case for the prosecution was that on or about 1.00 a.m. on 31st August 1988 at ATIKORI Village, via ljebu-lgbo the appellant came to the residence of the deceased and knocked at the entrance door rather violently. The deceased Rabiu Kassim and his wife, Adebisi Rabiu (PW1) were in the house and asleep at the time. The knock aroused Adebisi Rabiu from sleep but the husband Rabiu Kassim was still sleeping. The appellant broke the entrance door and shot at Rabiu Kassim who was still sleeping at the time. Rabiu Kassim died instantaneously. The appellant following the shooting came into the house, held on to Adebisi, dragged her to the couple’s bed and raped her. He later inflicted some matchet cuts on her; she became unconscious. On regaining consciousness she discovered that the appellant had left taking along with him the deceased’s dane gun and hunter’s lamp, radio and other items belonging to the couple including the sum of N1,000.00. Adebisi went to a neighbouring village – Fowosere Village – and reported what happened to the villagers who took her to the police station at Ijebu-Igbo where a report was made. From the police station, she was taken to the Ijebu Ode General Hospital for treatment. The corpse of the deceased Rabiu Kassim was also taken to hospital morgue at Ijebu-Ode where Dr. Osiyemi performed an autopsy on the body.

Adebisi (PW1), while on admission in the hospital, made a statement to police Corporal Kester Ossai (PW5), then stationed at Ijebu-Igbo police station. In the statement Adebisi mentioned the appellant as her assailant and the murderer of her husband. The appellant who was arrested by the Fowosere villagers in the morning of the incident was again re-arrested by Cpl. Ossai and charged with the offence of murder. He volunteered a statement to Sgt. Ossai in Yoruba language which the latter recorded and read over to the appellant who affirmed that the statement was correctly recorded and thumb-printed it. Cpl. Ossai later translated the statement into English Language. The statement and its English version were tendered and admitted in evidence at the trial. In consequence of the contents of appellant’s statement, five others were arrested but later released as there was no evidence, apart from the appellant’s statement, against them.

The case was later transferred to the State Directorate of Investigation and Intelligence, Abeokuta for further investigation. Here the appellant made another statement to Sgt. Linus Patricks (PW6) through an interpreter, Inspector Alamu Adeosun (PW3). Being a confessional statement, the appellant was taken to DSP Samson Taverto before whom he affirmed the correctness of the statement. The statement was tendered and admitted in evidence at the trial. Sgt. Patricks executed a search warrant in the house of the appellant where a number of items including dane guns, were recovered. Some of the items were identified by Adebisi (PW1) as belonging to her and her husband and stolen from their house on the fateful night.

In his evidence at the trial, the appellant denied committing the offence. He admitted knowing the deceased and his wife Adebisi but denied killing the deceased.

It is on these facts that the learned trial Judge found the appellant guilty. His appeal to the Court of Appeal failed. He has further appealed to this court. Although in his brief of argument filed on his behalf by his learned counsel, only one issue is formulated as arising for determination in this appeal, to wit:

“Whether the learned Justices of Court of Appeal were right in affirming the conviction of the appellant by the learned trial Judge.”

Arguments are, however, proffered on four issues, that is to say, (1) identification of the appellant and (2) the confessional statement; (3) non-consideration of appellant’s defence and (4) 1st PW as a tainted witness. The first two issues come within the ambit of the grounds of appeal raised in the amended notice of appeal.

In resolving this appeal therefore, I shall first consider the two issues.

Issue (1) – Identification of the Appellant:

Both in his briefs and oral submissions, Mr. Fashanu learned counsel for the appellant laid emphasis on the time the incident leading to the death of the, deceased took place. He referred to the evidence of PW1 who put the time at 1.00 a.m. He argued that there was no evidence that there was any lighting in the room at the time, it would be difficult, if not impossible to come to the conclusion that PWI had opportunity to identify the appellant as the assailant that night. He urged the court to apply the test laid down by the Court of Appeal (England) in Raymond Turnbull v. The Queen (1976) 63 Cr. App. R132 at 137 and to hold that the appellant was not properly identified as the assailant.

With respect to learned counsel, I think he lost sight of the evidence adduced at the trial. PW 1 testified thus:

“I know the accused and Rabiu Kassim now deceased, he was my husband.

On 31.8.88 at about 3 years ago the accused knocked at the door of the house where I live forcibly, I woke up at the time, he finally broke the door, and shot my late husband who was fast asleep. The deceased died on the spot after shooting. The accused dragged me to the bed and raped me. He later took a matchet which he used to wound me on the left face and right shoulder (Witness demonstrates) and right palm which I raised in defence. I became conscious (sic), when I later recovered, the accused was not around and my wares and belongings were missing.”

She was not cross-examined on how she came to know it was the appellant who did those horrible things that night.

The appellant in his evidence, under cross-examination, said:

“I know the deceased as my father’s friend. I know deceased’s wife. I did not attend any school. PW1 and the deceased used to visit my (sic) day and (night). I know both of them sell pellets and I used to buy from her.”

Further cross-examined, he added:

‘I know PW1 who know (sic) me I told the police that the deceased was my father’s friend.”

And in his first statement (Exh. F – English version), he had said: “Rabiu was my father’s friend before he died and I have been going to their house since a long time ago. I have my personal dane gun which I use for hunting and the gun is in my house up till (now) the time I came to Ijebu Igbo. There is no time when the wife of Rabiu will see me that she will not recognise me whether during the day or night.

If the woman recovers and she happens to say that I was the person who did the havoc, they should kill me immediately because the woman knows me both day and night.”

The trial court had this to say on identification of the appellant:

“I hold from the evidence before me after careful consideration that there is no need for identification parade as PW1 and the accused person are well known to each other.”

The court below, in reacting to the appellant’s complaint that the trial Judge did not adequately consider the issue of his identification by PW1 as the person who shot and killed the deceased Rabiu, observed, per Adekeye, JCA:

”The 1st PW find ample opportunity to see and identify the accused who is well-known to her, as he shot the deceased, attempted to rape her and inflict matchet cuts on her,”

In the light of the evidence at the trial and which I have highlighted above, I think the observations of the two courts below are unassailable. The appellant, at the trial, did not contest that PW1 knew him very well and could identify him any time of the day. The question of identification is an issue of fact for the trial court to make a finding on. The learned trial Judge who saw and heard PW1 give evidence, did not hesitate to accept her evidence. I have no reason to interfere with his finding (which finding the court below affirmed) that it was the appellant who invaded the deceased’s house on the fateful night, shot and killed him. I think the evidence available in this case met the standard laid down in such cases as Turnbull v. The Queen (1976) 63 Criminal Appeal Reports 132 at p. 137 (cited by learned counsel for the appellant), State v. Aibangbee & Anor. (1988) 3 NWLR (pt.84) 548 (cited in the lead judgment of the court below) and Igbi v. The State (2000) FWLR 358, (2000) 3 NWLR (Pt.648)169. PW1 not only claimed she knew the appellant, the latter admitted this and went on to say that their relationship had been a close one over a period.

I find no substance in the complaint on identification.

Issue 2

Appellant’s confessional statement.

It is the argument of learned counsel for the appellant that as the appellant’s confessional statement Exhibit A was obtained by PW6 through an interpreter, PW3 who did not testify of the interview he conducted culminating into Exhibit A, the statement was inadmissible and should be expunged from the record even though objection was not taken to it at the trial.

PW6, Sgt. Linus Patricks testified thus:-

“On 6th day of November, 1988 I was on duty at the State Directorate of Investigation Bureau Abeokuta when a case of murder transferred from Ijebu-Igbo Police Station was referred to me along with the accused person for further investigation. On 7th September 1988 the accused person was re-arrested, cautioned and charged with the offence of murder through the medium of an interpreter. He volunteered his statement in Yoruba language. I recorded the statement in English through an interpreter, same was read over to him through the interpreter, he accepted it to be true and correct before affixing his thumb print. The interpreter and myself signed the statement.”

Inspector Aremu Adeosun who was referred to in the evidence of PW6 testified as PW3. He said:

“On 7.9.88 a case of murder was referred to Sgt. Patrick Linus for investigation. I acted as an interpreter between the said Sgt. and the accused. The Sgt. obtained the accused’s statement, read same to him and he admitted that it was true and correct. I read the accused confessional statement to him and he admitted that it was true. He thumb printed the said statement. I signed the statement as the interpreter along with the I.P.O.

On 8.9.88 the accused person was brought before my superior police officer named Stephen Tavero D.S.P. who read the accused’s statement to him (accused) and I interpreted same to the accused in Yoruba language. The accused agreed that the statement was true and correct; he agreed that it was made voluntarily. The superior officer filled admission confession form in the presence of the accused, I.P.O. and myself, the form was explained to the accused and he agreed that the contents were true. He affixed his thumb to the form which I signed along with the I.P.O. and Mr. Stephen Tavero.”

It is learned counsel’s submission that the statement, Exhibit A is hearsay evidence. And as no evidence was forthcoming from PW3 as to the nature and detail of the confession appellant made to him which he interpreted to PW6, Exhibit A was wrongly admitted in evidence.

In reply to the submissions of learned counsel for the appellant, the learned Attorney-General of Ogun State, Chief Oluseyi Oyebolu argued thus:

“It is submitted with respect that Ex. A was never taken in Yoruba Language which Yoruba version should have been tendered through P.W.3 together with Exh. A as espoused in judicial authorities. See Shivero v. The State(1976) All NLR 230; Ajidahun v. The State (1991) 9 NWLR (pt.213) 33 at 40-41. The procedure adopted in obtaining Exh. A. was sufficient in law to ensure that the appellant understood what he thumb-printed. See Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 467 paragraphs D-E. PW.3 gave evidence on the role he played in obtained (sic) Exh. ‘A’ and that he did not record any statement but merely acted as an interpreter. The appellant through his counsel at the trial court did not object to the appellant’s statement (Exh.A) being tendered.

It is submitted with respect that Exhibit A did not fall into the category of hearsay evidence rule as enunciated in Shivero v. The State (supra). Also, the appellant’s counsel did not cross-examine PW3 as to the truth, voluntariness or otherwise of Exhibit’ A’; hence this honorable court cannot entertain the complaint on appeal, It is further submitted that P.W.3 testified during trial when Exhibit “A” was tendered, unlike in decided cases where the interpreter was never called as a witness at the trial, which will make such evidence hearsay see R v. Zakwakwa (1960) 5 FSC 12. This honorable court is therefore, urged not to expunge Exhibit “A” and to hold that the trial court and the court below were right in considering Exhibit “A” as pan of the prosecution’s case.”

It would appear that the objection taken to Exhibit A in this court is different to the objection raised on it in the court below. In that court it was the question of its voluntariness that was contested as borne out by issue 3 raised in the appellant’s brief in that court. And this led to the observation of the court to the effect that

“When the voluntariness of a confession is being denied, a trial within trial will be held, but if the statement is voluntarily made then it is admissible by virtue of Section 27 of the Evidence Act Laws of the Federation of Nigeria 1990.

It is however noteworthy that when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have (sic) been admitted in evidence.”

Of course, this observation represents the law and to that extent, their lordships of the court below arrived at a correct decision,

In this court, however, a new ground of attack was opened. And this is that Exhibit A is hearsay evidence and, therefore, inadmissible. If Exhibit A is inadmissible in law, then the question of its inadmissibility can be raised even at this stage. This is so because a court is enjoined to decide a case on legal evidence only. The question I now have to determine is whether Exhibit A is inadmissible.

Exhibit A was taken down by PW6 in English language. The Appellant did not speak to him in that language but in Yoruba. PW6 does not understand Yoruba language. So he needed someone to interpret to him. PW3 was the interpreter. The appellant spoke to PW3 in Yoruba language and the latter interpreted this to PW6 in English language which the latter wrote down in that language as Exhibit A. Surely, what PW6 wrote down can only be hearsay evidence and therefore

inadmissible unless the interpreter is also called to testify – see: R v. Ogbuewu 12 WACA 483; where the West African Court of Appeal stated:

“It often happens that statements have to be made to the Police through an illiterate interpreter and so cannot be written down in the language in which made. What this court has said, as have other courts also on innumerable occasions, is that, where an interpreter has had to be used in the taking down 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. This necessity is frequently over-looked and it may be that rejections of statements for this reason have given rise to a belief that statements are inadmissible unless written in the language in which made. But this is not so; it is a matter of proof and not of admissibility. This is one of the reasons which make it better (as we have already said) that statements should be written down in the language used whenever it is practicable to do so.”

See also Zemba Shivera v. The State (1976) All NLR 230; (1976) 10 NSCC 197; The Queen v. Zakwakwa 5 FSC 12. The evidence of the interpreter must relate to the question or questions he put to the accused person on behalf of the interviewing police officer and the answers given to him by the accused person in the latter’s own language – R. v. Attard (1959) 43 Crim. App. Report 90. See also R v. Gidada 6 WACA 60 at 62 where the West African Court of Appeal observed:

“It seemed to us that this failure on the part of the trial Judge to appreciate the inadmissibility as 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. Attard, the prosecution proposed to call evidence by a police officer of an interview which he had conducted with the prisoner through an interpreter. The defence submitted that, since neither the police officer nor the prisoner could understand what the interpreter said to the other, the evidence of the police officer was inadmissible as being hearsay, and that only the interpreter could give evidence of the questions which he put to the prisoner on behalf of the police officer and of the answers given to him by the prisoner in the prisoner’s own language. It was held by Gorman, J sitting on the Central Criminal Court (England) that the submission was correct and that the evidence of the police officer in relation to the interview was inadmissible. The learned Judge summarised the submission of Mr. Edward Clarke, defence counsel, which he accepted, thus:

“It is said by Mr. Edward Clarke that, when there is an interview of that kind, the best person, or the nearest person to the prisoner, is the interpreter, and the interpreter, he does not dispute, can be called to say: ‘I heard the detective-superintendent put the question. I then translated that question. I said this to the prisoner and the prisoner said this to me’; the interpreter being asked as a sort of intermediary between the non-English-speaking prisoner and the English speaking detective superintendent.”

This point which was novel in English law in 1959 had been part of our law in Nigeria since 1940 when R v. Gidodo was decided by the old West African Court of Appeal. It is not enough, in my respectful view, that the interpreter is called to testify that he acted as interpreter between the accused and the police interviewer; he must testify as to the question or questions he put to the acussed on behalf of the interviewer and the answers given to him by the accused person in the latter’s own language and which he interpreted to the interviewer in English language. Without this evidence the prosecution would not have proved that the statement sought to be tendered by the interviewing Police officer was more than just hearsay. It is not for the defence to establish what went on between the accused and the interpreter. The burden of proving that fact is on the prosecution and not on the defence. It is for this reason that, in my respectful view, the interpreter must be called to testify and to elicit from him, in evidence, what the accused told him that he interpreted to the interviewing Police officer. In the wake of R v. Attard, the Home Office in England, at the suggestion of the Director of Public Prosecutions issued a circular to Chief Officers of Police stating that:

“it will be necessary in similar cases in the future to ensure that the interpreter is available to give evidence as to oral statements made by the accused, as is already done in the case of written statements.

It will be desirable that, whenever practicable, the interpreter should make his own notes of the interview for use in the event of his being called to give evidence. Failing this, the interpreter should be asked to initial the record of the interview made in the notebook of the police officer conducting the interview, so that it can be used by the interpreter to refresh his memory when giving evidence.”

I think the contents of this circular meet the requirements of R v. Gidado and other similar cases.

In the case on hand, PW3 the interpreter testified. But other than to say he acted as the interpreter between the appellant and PW6, he was silent on the questions he put to the appellant and in what language, and the latter’s answers. To make matters worse he was also the interpreter between the appellant and DSP. Tavero before whom the appellant confirmed Exhibit A. In my respectful view more details are required of PW3’s evidence to make Exhibit A admissible in law. The conclusion I reach is that the statement ought not to have been admitted in evidence. I reject it in evidence and expunge it from the record.

This, however, is not the end of the matter. Section 227(1) of the Evidence Act provides:

“227. (1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case, where it shall appear 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.”

The question arises: Is there any evidence apart from Exhibit A to sustain the verdict of guilt of the appellant There is the evidence of PW1 which the learned trial Judge accepted. There is also evidence that items stolen from the house of the deceased on that fateful night were subsequently found in the appellant’s house during a search conducted by the Police in his presence. These two taken together are adequate to sustain the verdict of guilt entered against the appellant. The conclusion I reach on the admissibility of Exh. A is, therefore, of little comfort to the appellant. The wrongful admission of the statement has not occasioned any miscarriage of justice.

Learned counsel for the appellant has also made submissions on two other issues, namely non-consideration of appellant’s defence and PW1 was a tainted witness. I have examined his submissions on these issues and I find no merit in them. The learned trial Judge disbelieved the evidence of the appellant. I have no reason to disagree with the court below when it affirmed the trial court. Both courts also found, and quite rightly, in my respectful view, that PW1 was not a tainted witness. In Ishola v. The State (1978) 9-10 SC 81 at p.100, this court, per Idigbe JSC, admonished –

“We think it is proper to confine this category of witness (i.e. ‘tainted’) to one who is either an ‘accomplice’ or, by the evidence he gives, (whether as witness for the prosecution or defence) may and could be regarded as having some purpose of his own to serve”.

See also Mailayi v. The State(1968) All NLR 116at 123 where this court, per Coker JSC observed:

“Recently there has been a tendency among criminal lawyers to create a category of ‘tainted’ witnesses but as counsel for the appellants did not dilate on this, we do not think that a close consideration of that issue arises in the present case. We however observe that the expression ‘tainted’ is very loose and if its application is not kept within proper bounds a great deal of confusion will be unleashed into an area of evidence which even now is fraught with difficulties.”

We have not been told what purpose of her own PW1 had to serve in the evidence she gave. It was eye witness account of an incident that took place in her presence and of which she was a victim. Would the facts that her husband was killed and she too sustained serious injuries make her a tainted witness when she gave an account of what happened I rather think not.

From all I have been saying above, I find no merit in this appeal which is accordingly dismissed. I affirm the conviction for murder and the sentence of death imposed on the appellant.

SC.204/1999