Altine V. State (2022)
LAWGLOBAL HUB Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Ilorin Division delivered on the 7th day of November, 2018. Coram: Ibrahim M. Saulawa JCA, Chidi Nwaoma Uwa JCA, and Hamma Akawu Barka JCA. The learned justices upheld the judgment of the trial Court that found the Appellant guilty of the two count charge of Criminal Conspiracy and Armed Robbery and sentenced him to death. The Appellant being dissatisfied with the judgment of the lower Court filed a Notice of Appeal on the 31st day of March, 2021.
The facts that led to this appeal are as follows:
The Appellant and a co-Defendant were arraigned before the High Court of Justice Kwara State sitting at Ilorin presided over by Honourable Justice A.S. Oyinloye on a two count charge of Criminal Conspiracy contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 and Armed Robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004. The Appellant pleaded not guilty to the charge and further told the Court that his statement was not voluntarily made by him. A trial-within-trial was conducted where the Appellant gave evidence that he was made to sign the said statement involuntarily. The Court however overruled his objection and admitted the statement in evidence.
The complainants in this case, i.e. one Saidu Ibrahim and one Hassan Ibrahim were robbed with the use of guns and cutlasses. The sum of N450,000.00 and 24,000 Cefas were stolen from them. One of the complainants was able to see the face of the Appellant and his co-defendant identified them because he knew them previously and their houses. They immediately reported the incident to the vigilantes who in turn arrested the culprits and handed them over to the police. Some of the money recovered from the Appellant and his co-defendants were part of the sum forcefully taken from the victims.
In the brief settled for the Appellant by Oluronke Adeyemi of counsel, three (3) issues were identified from the grounds of appeal, they are set out below:
- Whether the lower Court was right to have held that “from the manner in which the grounds 1 of the Notice of Appeal was couched, it did not question the admissibility of Exhibit P6, contained in the trial Court’s ruling of 4th March, 2015 following the trial within trial when the issue of voluntariness of the Appellant’s extra-judicial statement arose and was decided upon and therefore there is no appeal against the trial Court’s ruling that the extra-judicial statement made by the Appellant was voluntarily made and the decision admitting same as Exhibit P6” (Ground 1).
- Whether the lower Court was right when it held that there was no need to call the interpreter who gave evidence in the trial within trial back to give the same account of his interpretation in the main trial. (Ground 2)
- Whether from the totality of the admissible evidence, the learned Justices of the Court of Appeal were right to have upheld the conviction and sentence of the Appellant for the offences of Conspiracy and Armed Robbery. (Ground 3).
The same issues albeit in different wordings were identified by learned Respondent’s Counsel Abiodun Dada Esq. After reading the record, the germane issue for determination in this appeal in my view is to wit:
Whether the learned lower Court was right to affirm the judgment of the learned trial Court wherein the appellant was convicted.
The Appellant complained about the holding of the Court below that from the manner in which Ground 1 of the Notice of Appeal to the Court of Appeal was couched it did not question the admissibility of Exh P6, the confessional Statement of the Appellant admitted on 4/3/15 after a trial within trial conducted during the course of the main trial. The Appellant’s counsel complained that it was wrong of the Court below to decide that the grounds of appeal before the Court below did not suggest that the Appellant had a complaint against the ruling wherein the trial Court held that Exh P6 was voluntarily made and admitted same. Counsel argued that the first ground of appeal before the Court below including the particulars having mentioned the issue of involuntariness of the confessional statement as one of the complaints of the Appellant, it therefore becomes an issue that the Appeal Court was called upon to pronounce on. Counsel cited NYAKO v. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822 (SC)
In paragraph 4:10 on Page 7 of the Appellant’s brief, counsel insisted that a Conjunctive reading of the Appellant’s ground one and the particulars of error would have established before the appeal Court that the main issue complained of by the Appellant was the voluntariness or otherwise of the alleged confessional statement.
Learned Appellant’s Counsel further argued that the Appellant’s grouse with Exhibit P6 is that it was not in compliance with the provision of the law which requires the statement to the police to be made under caution in the language spoken by the Appellant and in the exact words used by him and then translated into the language of the Court (English) since the Appellant is an illiterate. Counsel cited GUNDIRI v. NYAKO (2013) ALL FWLR Pt.698 Pg.816 at 828 Pg.856. Counsel also cited ZAKARI AHMED v. THE STATE (1999) 5 SCNJ 223.
On this point, the learned Respondent’s counsel argued that from the way ground 1 of the grounds of appeal donated at the Court of Appeal was couched, there was no challenge to the admissibility of Exh P6 and that the ruling which admitted same is still extant and binding on the Appellant.
Respondent’s counsel cited TUNDE ASIMI v. THE STATE (2016) LPELR-40436 (SC); (2018) 12 NWLR Pt.1527 Pg. 431.
Counsel also argued that the confessional Statement Exh P6 was admitted after a trial within trial which was properly conducted to determine the admissibility of same once the Court was satisfied with its voluntariness. Counsel cited YUSUF v. THE STATE (1976) LPELR- 3527 Pg. 9 (SC). Counsel submitted that the authorities cited by the Appellant’s counsel are irrelevant in the circumstances of this case.
My Lords on this point in contention, there is a misconception by learned Appellant’s counsel of the state of the law. The question relating to the admissibility of a confessional statement is different from the issue of a trial Court misdirecting itself on the probative value to give the retracted confessional Statement. Ground 1 of the Notice of Appeal to the Court of Appeal reads thus:
“The trial Judge erred in law when he convicted the Appellant for criminal conspiracy and armed robbery relying largely on the alleged confessional statement (Exhibit P6) of the Appellant and the evidence of PW1 only and this has occasioned a miscarriage of justice against the Appellant.”
Paragraph A of the Particulars of Ground 1 is set out below:
“The appellant in the course of his trial stated before the Court that the said confessional statements were not made voluntarily by him and as such the trial judge ought to have been hesitant in basing his conviction upon same.”
Clearly, the ground of appeal and the particulars thereof relate to the probative value to be attached to the confessional statement rather than its intrinsic admissibility for being contrary to Section 29 of the Evidence Act. The point obviously made out by the ground of appeal is that the Appellant having retracted the statement even if it was admitted as evidence, should not have been used by the trial judge as one of the basis to convict him. The argument of the Appellant’s Counsel in paragraph 4:10 of the brief is completely misconceived. On this point, the Appellant based his argument solely on particular 1 A of the grounds of appeal. In the circumstance I agree with the opinion of the learned lead judgment of the Court of Appeal on page 194 of the record per UWA JCA as follows:
“The decision or order to admit the extra-judicial statement of the appellant is a decision or order that is appealable as in a judgment. It is an interlocutory decision and appeal against same may be safely included in the appeal against the trial Court’s decision in the matter but, there was none in this case.”
The Court went further on Pg. 195 to conclude as follows:
“I hold that there was no appeal against the ruling following the trial within trial, same remains valid until set aside. It is deemed correct in absence of an appeal and the confessional statement also deemed properly admitted in evidence as voluntarily made.”
I agree unreservedly with the above conclusions of law.
The 2nd complaint made by the Appellant against the judgment of the Court below is that it was wrong of the Court below to hold that there was no need to call back the interpreter who gave evidence at the trial within trial to give evidence at the main trial of the same account of how he interpreted the extra-judicial statement made in vernacular to English for the benefit of the Appellant. Learned Appellant’s counsel submitted that the interpreter TWTP3 should have been made available to give evidence at the main trial and failure to do so caused miscarriage of justice. See ALIU v. THE STATE (2015) ALL FWLR Pt.782 Pg 1706, at 1746, TAYO v. THE STATE (2016) ALL FWLR Pt.853 Pg 1729 at 1760, ASIMI v. STATE (2016) LPELR- 40436 (SC).
Counsel also cited MOHAMMED BELLO v. C.O.P. (2018) 2 NWLR Pt.1603 Pg.267 at 328-329. Counsel urged this Court to find that Exh P6 is inadmissible without calling the interpreter who interpreted it and this, being the basis of the Respondent’s case, the Respondent’s case cannot be sustained.
Learned Appellant’s counsel submitted that the trial within trial is a separate trial which ended with the Court’s ruling, thus the proceedings therein cannot be imported into the main proceedings.
Counsel cited IFARAMOYE v. STATE (2017) ALL FWLR Pt.917 Pg. 1551 at 1589, SA’IDU v. STATE (2016) ALL FWLR Pt. 849 pg. 926 at 904.
Learned Respondent’s Counsel on the other hand argued that the interpreter, one Inspector Salami M who testified as TWTP3 was called as a witness during trial within trial. The onus to interpret the content of Exhibit P6 has been discharged in trial within trial by the interpreter one Inspector Salami M who testified as TWTP3, hence no further clarification is required that will warrant the recall of the interpreter. The said Inspector Salami M had testified and given evidence of the steps he took in establishing the voluntariness of the said Exhibit P6 and the fact that he interpreted the statement made by the Appellant thereby removing any lacuna/doubt that may by occasioned in admitting as Exhibit and placing reliance on the said confessional statement.
My Lords, the Court below held on this point as follows on pg. 205 of the record:
“On the confessional statement still, the learned counsel to the appellant had also faulted same, arguing that the interpreter was not called to testify in Court which rendered the confessional statement inadmissible. Exhibit P6 was interpreted by one Inspector Salami M. in English Language read over and translated to the Appellant in Hausa Language and vice versa. He testified as TWTP3 (Inspector Salami Mathew) in the trial within trial at page 47 – 48 of the printed records while one Sgt. Opeoluwa Yakubu was the recorder who testified as TWTP1, page 44 – 46 of the printed records of appeal. The trial within trial is part of the proceedings of the trial Court. The TWTP3 gave a detailed account of where and how the statement of the Appellant was obtained, which was interpreted and understood before the appellant thumb printed on it. I am of the humble, but firm view that there was no need to call the interpreter back to give the same account of his interpretation.”
My Lords, there is no doubt that the law is that failure to call the interpreter of a confessional Statement as well as the person who recorded the statement as witnesses renders the confessional Statement inadmissible in Court. In the absence of the interpreter in Court, the document is regarded as documentary hearsay. See OLALEKAN v. THE STATE (2001) 12 SCNJ 94 Pg. 109 at 110, ODEKUNLE v. THE STATE (2015) LPELR-25766, IFARAMOYE v. THE STATE (2017) LPELR-42031 (SC). Where the prosecution’s case is basely solely on a confessional Statement and the police officer who recorded it in the native language and the person or officer who interpreted it into English or vice versa were not called to give evidence on oath during the trial, the conviction has been held erroneous and liable to be set aside.
In respect of the point whether the evidence during the trial within trial suffices and the interpreter need not be re-called to give evidence of how the statement was taken during the main trial, there is no doubt that the rationale behind the requirement that the interpreter must be called is that given the fact that it is the interpreter who understands both the language spoken by the Defendant and the language understood by the officer who recorded the statement, it is the interpreter who can know exactly the circumstances under which the statement was taken, the types of questions asked the Defendant etc. These questions and answers would determine whether the statement was voluntarily made, whether the Defendant was tricked into implicating himself etc. and reflected the exact contents of what the Defendant confessed to.
The evidence of TWTW3 at the trial within trial regarding the circumstances under which the statement was taken satisfies the requirement that the statement reflected what the Appellant intended to say. Therefore, there was no need for a further confirmation of the circumstance, in which the statement was taken. The legal implication of the statement being documentary hearsay has been removed by the testimony of the interpreter during trial within trial. The circumstances here are different from where no interpreter was called during the trial at any point to tell the Court the circumstances under which he did the interpretation and the questions put to the Defendant and the answers given which he put in the language of the Court or vice versa. I agree with the Court below on this point that the general rule of law is not set in stone particularly where at some point at the trial the interpreter was called and the defence had an opportunity to cross-examine the officer on how the statement was taken and translated.
The other complaint relates to whether the prosecution proved the guilt of the Appellant beyond reasonable doubt. The appellant’s counsel urged the view that there was no eyewitness to the crime who gave evidence before the trial Court. The only witness, an I.O.P. was not the initial police officer who investigated the crime, arrested the Defendants and recovered exhibits from them. The only thing the witness for the prosecution did was to tender the retracted confessional statement of the Appellant. Counsel argued that in criminal cases the onus of proof is fixed on the prosecution by Section 136(1) of the Evidence Act and that apart from the confessional statement Exh P6 there is absolutely no evidence on oath linking the Appellant with the crime. Any doubt about whether in fact the Appellant committed the crime should be resolved in favour of the Appellant. Counsel cited YONGO v. POLICE (1992) 8 NWLR Pt. 257 Pg. 36, BABUGA v. THE STATE (1996) 7 NWLR Pt. 460 Pg. 279, EDOHO v. STATE (2003) F.W.L.R. (Pt.173) 29 Pg. 48, Paras A-C, OYEBODE v. GABRIEL (2013) ALL F.W.L.R.(PT.669) 1043 @ 1052 particularly Pg.1079, Paras. F, holden 17 and ADEYEYE v. STATE (2013) ALL FWLR (Pt. 704) 108 @ 111.
Learned Respondent’s Counsel argued that there cannot be better evidence than a confessional statement made voluntarily by the Appellant though retracted to prove the offence against a defendant in a criminal trial. Counsel argued that the confessional statement of the Appellant was a direct and positive admission of guilt and even though it was retracted needed no further corroboration. Counsel cited AKOGWU v. STATE (2017) 4-5 SC Pg. 4, ADAMU v. THE STATE (2016) ALL FWLR Pt. 852 Pg. 1551, HASSAN v. THE STATE (2017) ALL FWLR Pt. 890 Pg. 738 at Pg.753.
My Lords, the retracted confessional statement of the Appellant in Exh P6 was a direct, positive admission of guilt and thus cogent enough to sustain a conviction. This is because the statement meets the probability or credibility tests. P.W.1, the I.P.O. tendered the exhibits recovered from the Appellant and the Co-defendant at trial. The items, dane gun and money, tendered in Court as Exhibits were the same things the Appellant had admitted that he used and stole respectively in Exh P6 which were recovered from him during police investigation and handed over to P.W.1. It is not wrong for a single police officer to tender in Court exhibits recovered from a Defendant and to give evidence of collective police investigation that led to the apprehension of the Defendant. The evidence of police investigation proved the guilt of the Appellant beyond reasonable doubt.
In the circumstances, the prosecution proved the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt. Having given thorough scrutiny to the judgments of the two lower Courts, I cannot find them perverse in their reasoning and conclusion. There is no reason to upset the concurrent findings of fact of the two lower Courts, I affirm the judgment of the lower Court which affirmed the judgment of the trial Court convicting the Appellant of conspiracy and armed robbery. Appeal dismissed.