Obaro V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Ondo State, Akure Judicial Division, (hereinafter simply referred to as “the trial Court”), the appellant, (as an accused person), was arraigned upon a two-count charge of kidnapping and murder contrary to and punishable under Sections 3 of the Ondo State Anti-Kidnapping and Anti-Abduction Law, 2010, and 319 of the Criminal Code, Cap. 30, Vol. 11, Laws of Ondo State of Nigeria, 1978, respectively.

On arraignment, he (the appellant), pleaded not guilty. The trial commenced with two other accused persons. The prosecution called only one witness, the investigating police officer as PW1. On his part, the appellant testified for himself and called no other witness. Exhibits A – A3; B; C – D and E – E2 were tendered and admitted in evidence.

​It was the prosecution’s case that the appellant, with the two accused persons, left their village, Messe, and went to Ikoriho in the same Ilaje Local Government of Ondo State in the middle of the night. They allegedly kidnapped one Dada Akinboye who slept beside his mother on June 17, 2011. The victim was later discovered dead with his body mutilated.

In his extra judicial statement, which formed the basis of his conviction and sentence on the two offences, the appellant allegedly admitted going inside the house to carry the victim. He handed over the said deceased person’s body to the third accused person. He and the third accused person disposed of the body of the victim. On his part, the second accused person stood outside keeping watch.

During the trial, he, the first accused person, in his evidence vehemently denied any involvement in the crime. Under cross examination, he said inter alia, “it is not what I told the Police that they wrote down,” thereby retracting the extra judicial statement. Notwithstanding this retraction, the Court of Appeal (hereinafter simply referred to as “the lower Court”), affirmed the finding of the trial Court to the effect that:

Thus, the confessional statements of the first and second accused persons have satisfied this Court about the involvement of each of the accused persons.

The lower Court thus affirmed the guilt of the appellant on the two-count charge of kidnapping and murder. On further appeal to this Court, the appellant formulated a sole issue for determination:

Whether the prosecution proved beyond reasonable doubt the guilt of the appellant on the two-count charge of kidnapping and murder?

On his part, the respondent concreted a sole issue for the determination of the appeal:

Whether the prosecution proved beyond reasonable doubt the offence of kidnapping and murder to warrant the conviction of the appellant?

Arguments of counsel on the sole issue

At the hearing of the appeal on February 11, 2021, learned counsel for the appellant adopted the brief filed on July 30, 2015. Arguing the sole issue, he submitted that by virtue of the provision of Section 135 of the Evidence Act, 2011, the prosecution has the burden of proving the guilt of the appellant beyond reasonable doubt.

In his submission, proof beyond reasonable doubt does not mean proof to mathematical certainty, Anekwe v. State (2014) 5 SC (Pt. 11) 35, 71, (2014) 10 NWLR (Pt. 1415) 353; Ali v. State (2015) 10 NWLR (Pt.1466) 1, 42; A – C; Nwosu v. State (1986) 7 SC (Pt. 11) 1, (1986) 4 NWLR (Pt. 35) 348. He further submitted that the prosecution’s failure to call the interpreter who recorded the confessional statement which led to the appellant’s conviction, renders it (the confessional statement), inadmissible, Olalekan v. The State (2001) 18 NWLR (Pt. 746) 793, 810 – 811; B – G.

He canvassed the view that on the authority of Olalekan v. State (supra) 809, the question of the inadmissibility of the said confessional statement could be raised at any stage, even at the Supreme Court, as a ground of law that it is hearsay evidence since the prosecution failed to call the interpreter as witness. He maintained that apart from the extra judicial statement of the appellant, “exhibit B”, there was no other available evidence to sustain the guilt of the appellant on the two offences.

Although conceding that exhibit D was the co-accused person’s confessional statement which incriminated the appellant, he contended that it (the said exhibit D), cannot be used to sustain the appellant’s conviction since he (the appellant), did not in any way, adopt the said statement, Oyakhire v. State (2006) 15 NWLR (Pt. 1001) 157, 175 – 176; H – C. He prayed the Court to set aside the conviction and sentence of the appellant and discharge and acquit him on both charges.

On his part, the learned counsel of the respondent submitted that the appellant’s contention that the failure of the prosecution to call the interpreter renders “exhibit B,” (confessional statement), inadmissible and the further submission that the appellant could raise this for the first time in this Court were misconceived.

He explained that one Inspector Odebimtan Dickson was the person who recorded “exhibit B.” Inspector Isah Momoh only acted as an interpreter. He maintained that the said “exhibit B” was recorded by Inspector Odebimtan Dickson, who was the PW1 at the trial, without any interpreter whatsoever. He submitted that the appellant was under the mistaken illusion that the statement dated June 26, 2011, was recorded and was interpreted by the same person. He explained that this was not the case.

He pointed out that the case of Olalekan v. State (supra) was inapplicable to this instant appeal. This is because “exhibit B”, in the instant appeal, was recorded by one individual without the assistance of any interpreter whereas in Olalekan v. State (supra), “exhibit A” was recorded by Sgt Linus Patricks (P.W.6) who acted as interpreter. This, in his view, is distinguishable from the instant appeal. He prayed the Court to dismiss the appeal.

Resolution of the Sole Issue

My Lords, the crux of this appeal can be found in the submission of the appellant’s counsel that, since the prosecution failed to call the interpreter, who recorded the confessional statement which led to the appellant’s conviction, it (the confessional statement), was inadmissible.

The issue of the admissibility of the statement of an accused person, through an interpreter, has generated a wholesome thread of case law. The cases are indeed legion. They date back to R v. Gidado (1940) 6 WACA 60, 62; R v. Ogbuewu (1949) 12 WACA 483; Queen v. Sapele and Ors (1957) SCNLR 307; R. v. Attard (1958) 48 Cr App R 90, R. v. Zakwakwa (1960) 5 F.S.C. 12, (1960) SCNLR 36; Shivero v. The State (1976) 10 NSCC 197; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1, 20; Ahmed v. State (1999) 7 NWLR (Pt. 612) 641; F.R.N. v. Usman (2012) 3 SC (Pt. 1) 128, (2012) 8 NWLR (Pt.1301) 141; Popoola v. State (2018) 10 NWLR (Pt. 1628) 485; Eyop v. State (2018) All FWLR (Pt. 962) 1698, 1715, (2018) 6 NWLR (Pt.1615) 273; Bello v. C.O.P. (2018) 2 NWLR (Pt. 1603) 267; Adelani v. State (2018) 5 NWLR (Pt. 1611) 18, 43; Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457 and so on. As shown above, it was the contention of the appellant’s counsel that, since the prosecution failed to call the interpreter who recorded the confessional statement which led to the appellant’s conviction, it (the confessional statement), was inadmissible. He explained that one Inspector Odebimtan Dickson was the person who recorded “exhibit B.” Inspector Isah Momoh only acted as an interpreter. He maintained that the said “exhibit B” was recorded by Inspector Odebimtan Dickson, who was the PW1 at the trial without any interpreter whatsoever.

Although learned counsel for the appellant did not cite Nwaeze v. State (supra), his submission enjoys the cherished company of the eloquent position of the distinguished Justices of this Court.

In Nwaeze v. State (supra), Iguh, JSC had this to say: The point cannot be overemphasised that where an interpreter is used in the recording of the statement of an accused person, such a statement is in law inadmissible unless the person who was used in the interpretation of the statement is called as a witness in the proceedings as well as the person who recorded the same. Accordingly, failure on the part of a trial Court to appreciate the inadmissibility, as evidence, of an alleged statement by an accused person when such statement is not confirmed and established by the person who acted as interpreter when it was being recorded in a different language can be fatal to a conviction which is based on such a statement in that the Court would have misdirected itself in accepting the statement as having been proved…..

(at page 20; italics supplied for emphasis)

What is now clear is that, once an interpreter is provided for the accused person, especially in police custody, the prosecution has a duty to call him (the interpreter) who recorded the statement, as a witness and subject him to cross-examination in order to determine the correctness of the extra-judicial statement. This must be so for, whenever an interpreter is used in obtaining the statement of an accused person, such a statement would be inadmissible unless the interpreter is called as a witness in the tendering of the statement.

This should be the case where an accused person’s statement is recorded through an interpreter and the accused person makes his statement in his mother tongue which is recorded and later translated into English. In such a situation, before the translated version is accepted as authentic, the person who interpreted the statement from the mother tongue into the English language must be called to testify. Michael Oloye v. The State (2018) LPELR 44775 (SC), (2018) 14 NWLR (Pt.1640) 509; The Queen v. Zakwakwa of Yorro (1960) LCN/0877 (SC), (1960) SCNLR 36.

Learned counsel of the respondent had submitted that one Inspector Odebimtan Dickson was the person who recorded “exhibit B,” (confessional statement), and Inspector Isah Momoh only acted as an interpreter to him in the statement and furthermore, that “exhibit B” was recorded by only Inspector Odebimtan Dickson, who was the PW1 at the trial. This was without any interpreter whatsoever.

With respect, it would seem that learned counsel lost sight of the evidence adduced at the trial. From page 23 of the record, it is crystal clear that “exhibit B,” attached to the record, dated June 22, 2011 was interpreted and signed by one Inspector Isah Momoh. He was not called as a witness at the trial Court. What is more, the learned respondent’s counsel’s notion that Inspector Isah Momoh only acted as an interpreter, while PW1 Inspector Odebimtan Dickson recorded the statement, is a total misreading of the evidence in Court.

Now, the question which both parties posed in their sole issue for determination, is whether the prosecution’s failure to call the interpreter of the statement, as well as the person who recorded the statement as witness, renders the confessional statement inadmissible in Court.

From the position of Hubbard, F.J in The Queen v. Zakwakwa of Yorro (supra) through the approach of Ogundare, JSC, in Olalekan vs The State (2004) 12 SCNJ 94 109 and 110 (2001) 18 NWLR (Pt 746) 195 to Kalgo, JSC in Ahmed v. State (1999) 7 NWLR (Pt 612) 641, 685; the disposition of Rhodes-Vivour, JSC, in F.R.N. v. Usman (2012) 3 SC (Pt. 1) 128, 152, 1652, (2012) 8 NWLR (Pt.1301) 141 and the posture of Nweze, JCA (as he then was) in Woru v. State (2011) All FWLR (Pt. 602) 1644, 1672 – which posture I adopt in this judgement – it is crystal clear that where an interpreter of an accused person’s statement, as well as the person who recorded the said statement are not called as witnesses and subjected to cross-examination, the two versions of the accused person’s statement, (the vernacular and the English versions) would be regarded as pieces of hearsay evidence, see also R. v. Gidado (1940) 6 WACA 60; R. v. Ogbuewu (1949) 12 WACA 483.

The rationale for this attitude was summed up by Ogundare, JSC in Olalekan v. The State (supra) thus:

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 (person) 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 (person) told him that he interpreted to the interviewing police officer.

(page 109 of the report; italics supplied for emphasis)

That is not all. Before such a statement could be admitted in evidence, it is not just enough to call the interpreter. I most respectfully invite Ogundare JSC, to re-state the position of the law. According to His Lordship:

In the case at hand, P.W.3, the interpreter testified. But other than to say he acted as the interpreter between the appellant and P.W.6, he was silent on the questions he put to the appellant and in what language, and the latter’s answers… In my respectful view, more details are required to P.W.3’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.

(Olalekan v. The State (supra); page 110 of the report; italics supplied for emphasis)

​This was just two years after Kalgo, JSC, “outlined the best and acceptable way of recording a statement made in vernacular to the police,” S. T. Hon’s Law of Evidence in Nigeria (Third Edition) (Port Harcourt: Pearl Publishers International Ltd, 2019) 263. According to Kalgo, JSC.:

P.W.7. testified that the appellant volunteered a statement in Hausa, but he recorded the statement in English instead of taking it verbatim in Hausa and translating it later to English. Not only that if one examines the statement, one finds that he started writing what the appellant was saying (in) the first-person singular pronoun, then he changed to reported speech in the third person pronoun … This was improper and should not have been done in a criminal case of this magnitude. In my humble view, a caution statement to be reliable must be recorded in the language of the accused (person) and then translated into the language of the Court. If it becomes necessary to record it into English by automatic or direct translation from the language spoken by the accused (person), then it must be done in the first person singular and not in the form of a reported speech

(Ahmed v. State (1999) 7 NWLR (Pt. 612) 641, 685; italics supplied for emphasis); also, R v. Sapele and Ors (1957) 10 NSCC 197.

Applying the same principle in this appeal, the prosecution’s failure to call Inspector Isah Momoh as a witness and subject him to cross-examination, the Yoruba and the English versions are pieces of hearsay evidence, Ahmed v. State (supra); R v. Sapele and Ors (supra); Olalekan v. The State (supra); The Queen v. Zakwakwa of Yorro (supra); F.R.N. v. Usman (supra); Woru v. State (supra) – my Court of Appeal judgment which I adopt in this judgment.

My Lords, before I round off this judgment, permit me to make an observation about the attitude and disposition of A. A. Oladunmiye, Chief Legal Officer, Ministry of Justice, Ondo State, counsel for the respondent. His disgusting comportment in Court at the hearing of this appeal was thoroughly scandalous to say the least.

Oladunmiye, Esq., who announced himself as a Chief Legal Officer in the Ondo State Ministry of Justice, betrayed the trust of Ondo State which relied on his touted knowledge, expertise and experience to represent the interest of the taxpayers of the State in this appeal. He half-heartedly, approached his assignment, worse still, his cavalier proclivity for fripperies was most shocking.

Indeed, it was as if he didn’t know the weight of the issues at stake. I pity the Attorney General of Ondo State if that is the sort of legal services he gets from a “whole” Chief Legal Officer. I even wonder how he was promoted to the rank of Chief Legal Officer in the Ministry of Justice.

In all, having regard to all I have said above, I have no hesitation in setting aside the conviction of and sentence on the appellant. In lieu, thereof, I hereby enter an order for his acquittal and discharge.

Appeal allowed.

SC.505/2015