Abdulahi Ibrahim Vs. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKAAHS, JSC

In charge No. KDH/KAD/12C/2005 the accused/appellant and three others namely Dan’asabe, Croni and Umar (who are at large) faced a two count charge of criminal conspiracy and armed robbery, contrary to sections 5(b) and l(2)(a) of the Armed Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria, 1990. Since the other accused persons were said to be at large, only the accused/appellant was arraigned before the court. The charge which was later amended read as follows:-

COUNT ONE

That you ABDULLAHI IBRAHIM and other (sic) at large, on or about the 19/3/2002 at about 3.00a.m. At No.3 Magaji Road Badarawa, Kaduna did an illegal act to wit: conspired to commit armed robbery and by so doing committed the offence of criminal conspiracy punishable under section 5(b) of the Armed Robbery and Fire Arms (Special Provisions) Act Cap 398 LFN 1990

COUNT TWO

That you ABDULLAHI IBRAHIM on or about 19/3/2002 at about 3.00a.m at No. 3 Magaji Road, Badarawa, Kaduna while armed with guns and other dangerous weapons attacked and robbed Aminu N. Mohammed and his family, and took away some valuable properties and N4,400.00 cash. You thereby committed the offence of Armed Robbery punishable under section 1 (2) (a) & (b) of the Armed Robbery and Fire Arms (Special Provisions) Act Cap 398 LFN 1990.

He pleaded not guilty to the charge. Thereafter the Prosecution called two witnesses namely the victim of the robbery and the Police Officer who investigated the case and recorded a statement from the accused which was tendered in evidence as Exhibit A. The victim of the robbery, Aminu Mohammed testified as PW1 while Cpl. Baba Nana who carried out the investigation gave evidence as PW2. Exhibit “A”, the statement the accused made was received in evidence without any objection. It turned out to be a confessional statement. The Prosecution closed its case after the witnesses had been cross-examined and the defence opened its case. The accused testified as DWI. He called one other witness, Dari Barau who said they were selling clothes together at Kasuwan Barchi. He said the accused informed him in 2002 that he was travelling to Kano. He demanded payment of a debt owed him by the accused. After leaving, he never saw the accused again. He later learnt that the accused was in police detention. The defence closed its case and learned counsel for the Prosecution and defence then addressed the court. The court thereafter adjourned for judgement. The trial court delivered its judgement on 26/6/2007 wherein it found the accused guilty of robbery contrary to section 1 (a) of the Robbery and Fire Arms (Special Provisions) Act Cap 398 LFN. He was sentenced to 21 years imprisonment. He was dissatisfied with the conviction and appealed against it to the Court of Appeal, Kaduna Division which dismissed the appeal and affirmed the conviction and sentence passed on the appellant. This is a further appeal from the judgement of the lower court delivered on 13/7/2010. The original Notice of Appeal containing two grounds dated 10/8/2010 was found to be incompetent and struck out. On 23/6/2011 this Court granted the appellant leave to appeal against the lower court’s judgement and to raise fresh issues in the appeal. The Court also allowed the appellant to use the record which was earlier compiled in SC.343/2010 for this appeal. The Notice contained five grounds of appeal from which two issues were formulated for determination namely:-

Whether the proceedings and the evidence suffice to ground the judgement of the court of first instance and the court below (Grounds 1 and 2)

Whether the court below was right to affirm the conviction of the appellant on the basis of the retracted confessional statement and whether this court should affirm the conviction on that same basis (Grounds 3, 4 and 5).

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The respondent adopted the issues as formulated in the appellant’s brief in its brief filed on 14/5/2013 pursuant to the order of court made on 9/5/2013. The respondent’s earlier brief filed on 26/1/2012 was withdrawn and struck out on 9/5/2013. Mr. Musa, learned counsel for the appellant submitted on the first issue that in criminal matters arraignment and trial in line with section 242 of the Criminal Procedure Code Cap 491 LFN 1990(CPC) is a sine qua non for assumption of jurisdiction and trial in criminal matters. He pointed out that the appellant spoke only Hausa language and since the language of the court was English, there was need for an interpreter. He drew a chart showing the dates when the appellant spoke Hausa or English or both. On 2/3/2005 when the initial charge was read, the appellant was said to speak both English and Hausa and on 19/5/2005, he was reported to speak English while on the remaining 14 appearances it was shown that he spoke Hausa. He submitted that failure to comply with section 242 CPC throughout the proceedings vitiated the entire trial since the interpretation of criminal proceedings to an accused in a language he understands is essential to justice. He argued that the conclusion which was reached by the lower court that the appellant spoke both English and Hausa was an erroneous appraisal of the evidence because there was no need for an interpreter if the appellant understood English. Learned counsel went on to attack the judgement of the lower court because of the numerous material contradictions in the evidence of the prosecution. He said the appellant raised a plea of alibi which was corroborated by his father who testified as DW2 but the prosecution did not investigate to disprove the alibi and since the appellant was not arrested at the scene of crime, identification ought to have been conducted.

Turning to the second issue, learned counsel drew this court’s attention to the fact that he could not proffer any argument on the alleged confessional statement which the appellant retracted but which was nevertheless admitted as Exhibit “A” and was nowhere to be found in the record. He however contended that there was nothing outside the confession to make it probable that the confession was true. Learned counsel maintained that the appellant did not make Exhibit “A” and submitted that the court below was wrong to affirm the conviction of the appellant on the basis of the retracted statement.

The respondent’s response to the two issues raised by the appellant is that the proceedings and the evidence before the trial court were sufficient to ground the judgement of that court which was affirmed by the court below. He said the appellant was validly arraigned and the inconsistences which the appellant pointed to in the evidence of the prosecution were not material. Since the appellant confessed to the commission of the crime which was recorded in Exhibit “A”, he was rightly convicted of the offence.

The starting point in the resolution of the issues raised in this appeal is whether the appellant was properly arraigned before the trial court. The requirements of a valid plea and hence proper arraignment are:-

(a) “The accused must be placed before the court unfettered unless the court shall see cause otherwise to order;

(b) The charge or information must be read over explained to the accused to the satisfaction of the court by the registrar or other officer of the court;

(c) It must be read and explained to him in the language he understands

(d) The accused must be called upon to plead thereto unless there exists any valid reasons to do otherwise as to objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith”

(See: Tobby VS State (2001) FWLR (Pt52) 2081; Ogunye Vs State (1999) 5 NWLR (Pt.604) 548; Solola VS State (2005) ALL FWLR (Pt.269) 1751; Dibie VS State (2007) ALL FWLR (Pt.363) 83 and Olayinka VS State (2007) ALL FWLR (Pt.373) 167.

The arraignment of an accused person touches on the jurisdiction of the court and any improper arraignment of the accused is a breach of a fundamental requirement in criminal proceedings which is capable of rendering the totality of the proceedings null and void. See: Section 36 (6) (a) of 1999 Constitution; also S.242 CPC. It was held in State VS Oladimeji (2003) FWLR (Pt.175) 395 at 406 that:

“Issue of arraignment is fundamental in a criminal trial because if not properly conducted it may vitiate the proceedings”

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Learned counsel for the appellant is complaining about the trial court’s conclusion that the appellant understood both Hausa and English despite the fact that throughout the duration of the trial, it was only once that it was recorded that the appellant understood both English and Hausa. I fail to see how this finding should vitiate the proceedings and consequently the conviction of the appellant:

On 11/2/2005 when the appellant first appeared in court, he was not represented. The record showed that he spoke Hausa and section 242 CPC was complied with. When he subsequently appeared on 2/3/2005, he was represented by counsel. The record showed he understood English and Hausa. The charge was read, to which he pleaded not guilty. He was also represented on 12/4/2005 when the amended charge was read, to which he pleaded not guilty. Learned counsel was present in court throughout the trial. On 27/7/2006 and 16/1/2007 when the appellant was to commence his defence he was represented by counsel but the court still recorded that section 242 CPC was complied it. After the defence had closed its case, learned counsel addressed the court on 12/7/2007 and nowhere in the address did he attack the arraignment of the appellant. Since the court recorded that the appellant spoke Hausa and also stated that section 242 CPC was complied with, it is presumed that the records are correct and that the arraignment and proceedings were translated to the appellant in Hausa; moreso since the learned counsel was present and never raised objection to the trial. It would have been different if the appellant was not represented by counsel. Then it would have been mandatory for the court to demonstrate that the appellant understood the proceedings leading to his eventual conviction. In Nwachukwu VS State (2007) ALL FWLR (Pt.390) 1380 this Court held that-

“Where an accused person does not understand the language used at his trial, it is the duty of his counsel to bring to the notice of the court at the earliest opportunity that he does not understand the language used at the trial”

It was also held in Uchegbu VS State (1993) 8 NWLR (Pt.309) 89 on providing an interpreter for an accused that-

“The provision of section 33 (6)(c) of the 1979 Constitution on an interpreter enures for the benefit of an accused person who does not understand the language of the proceedings. Therefore where the accused understands the language of the proceedings no miscarriage of justice is occasioned by the failure to provide an interpreter. It follows that failure to provide an interpreter is trivial and not a fundamental flaw. In the instant case failure to provide an interpreter for the translation of the Ibo version of the proceedings to English Language is not fundamental as the accused understands English and also speaks Ibo”

In the present appeal, the appellant is said to understand English and spoke Hausa; so it is of no moment that the proceedings were not translated from English to Hausa and vice-versa.

Learned counsel for the appellant wants this Court to allow the appeal because there was no proper identification carried out as the appellant was not apprehended at the scene of crime. He also argued that the appellant set up the defence of alibi and the appellant’s conviction was based solely on the retracted confessional statement which the trial court did not test to see if it was true and whether the confession was possible. In other words, no corroborative evidence was found to conclude that the appellant had an opportunity to commit the crime.

The appellant merely denied making Exhibit “A”. This does not amount to retracting the statement. A statement is retracted when the accused admits making the statement but denies making it voluntarily. When that scenario is presented before the court of trial, it becomes incumbent on that court to determine if the statement is voluntary before it is admitted See: Section 28, Evidence Act, 2011. Where such a statement is a confessional statement, the trial court can convict on the strength of the confession but there should be some corroboration. The lower court saw Exhibit “A” and noted that the column for the appellant’s signature was signed. Learned counsel for the appellant never objected to the fact that the appellant’s signature was on Exhibit “A”. It is therefore a belated argument that it was not the appellant’s signature that was on Exhibit “A”.

Mallam Aminu Mohammed, the victim of the robbery who testified as PW1 stated that the accused and Umar did not wear masks and it was the accused who pointed a gun on his head and ordered that he should be killed but the painter and the other robbers rejected the idea. He said the robbers spent over one hour in the house. On being cross-examined PW1 said:-

“There was light at that time. The only person I know amongst all of them was Umar the painter.”

Although no member of the vigilante group was called to testify, it is clear that the appellant attempted to run away but he was arrested and handed over to the Police. PW2 the I.P.O in his evidence said:

“On 19/3/2002 while in the office we received a case of Armed Robbery that happened at No. 3 Magaji close Badarawa Kaduna. On reaching there the vigilante group had arrested one Abdullahi Ibrahim with the robbed items. The vigilante group members took the said Abdullahi Ibrahim to Malali Police Station and I was detailed to investigate”.

The lower court reproduced Exhibit “A” and commented thus at pages 203 – 204 of the record of appeal:

“It is clear as crystal on the record that the learned trial Judge before acting on the said confessional statement tested the veracity of the same by using the long aged (sic) yardstick which had been entrenched in numerous cases to look outside for any corroborative evidence which made it probable that the confession is true.

There is no doubt that the learned trial Judge adequately considered the statement of the appellant along the guidelines prescribed by law and found it to be the Appellant’s free and voluntary statement. He was in no doubt that PW1 was a witness of truth and that the appellant and the said Umar and others at large conspired to rob PW1”.

The evidence of PW1 corroborated the confession made by the appellant in Exhibit “A”. There was no need for any identification parade since PW1 recognised the appellant as one of the gang who invaded his house on 19/3/2002 and was apprehended by the vigilante group while attempting to escape from the scene of crime. Although the incident happened at night time, the fact that there was light, coupled with the appellant not being masked and the length of time spent in PW1’s house are sufficient indices that PW1 told the truth about the appellant’s involvement in the robbery attack. The defence of alibi could not hold water since the appellant was arrested at the scene of crime.

There are minor discrepancies in the prosecution’s case. A member of the vigilante group who apprehended the appellant should have been called by the prosecution and the items recovered and handed over to PW1 should have been presented as further evidence. These minor discrepancies notwithstanding are not sufficient to overturn the conviction of the appellant. In the result, I find that the appeal lacks merit and it is hereby dismissed. The conviction and sentence imposed on the appellant by the trial court which was affirmed by the court below is further affirmed by this Court. Appeal is accordingly dismissed.

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SC. 93/2011