Salisu Yahaya V. The State (2001)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

The appellant was arraigned before the High Court of Justice, Ogun State, holden at Abeokuta, on a charge of murder contrary to section 319(1) of Criminal Code Law Cap. 29 Laws of Ogun State of Nigeria, 1978. He was alleged to have stabbed to death, the deceased by name; Kayode Bereola and thereby, murdered him. The prosecution called six witnesses and tendered some exhibits. The appellant gave evidence in his defence, but did not call any witness to testify for him. At the conclusion of the trial, the learned trial Judge found the appellant guilty for the offence of murder, and convicted him. He was sentenced to death by hanging. Being dissatisfied with the judgment of the trial Court, the appellant lodged an appeal against it, to this Court. The original notice of appeal contained only one ground, but was amended to two (2) grounds with the leave of this Court granted on 14/9/2000.

The parties have in accordance with the rules of this Court, filed their respective briefs of argument, which they mutually adopted at the hearing of the appeal on 14/11/2000. In the appellant’s brief, which was filed on 21/9/2000 the two issues for determination are formulated as follows:-

“3.00 Issue for determination

3.01 The appellant submits that the issues that arise for determination are as follows:

Whether the learned trial Judge was right to have relied on Exhibit ‘D’ in convicting the appellant.

Whether the evidence of PW1, PW2 and PW3 were sufficient to support the conviction of the appellant without further corroboration.”

On its own part, the respondent has in its brief of argument filed on 2/11/2000, adopted the above issues as formulated by the appellant “with slight modification” as the issues arising for determination in the appeal. In view of this adoption of the appellant’s, two issues by the respondent, I will also adopt the said issues as formulated by the appellant in this judgment. It is also pertinent, to note that the appellant’s Counsel has, in the brief, well related the two issues to the two grounds of appeal as per the amended grounds of appeal filed on 21/9/2000 (filed with the leave of this Court).

In arguing the first issue, it is pointed out in the appellant’s brief, that the learned trial Judge heavily relied on Exhibit ‘D’ in convicting the appellant. The said Exhibit ‘D’ was the confessional statement purportedly, made by the appellant at the State Police Headquarters, Eleweran. Reference is made in the brief to page 45 (lines 6-8) of the record, in this regard where the learned trial Judge found as follows:

“From the evidence before me, I am satisfied that Exhibit ‘D’ was made voluntarily by the accused. I am also satisfied that same is true, and has been amply proved and corroborated.”

It is however, pointed out in the brief, that an earlier statement made to the Police by the appellant which was admitted as Exhibit ‘C’ and was also confessional in nature, was expunged by the trial Court on the grounds that, being a statement recorded in Hausa language and interpreted in English language, with the interpreter not being called as a witness it was regarded as a mere hearsay evidence, as observed by the learned trial Judge (at page 42 lines 1-5 of the record). It is argued in the brief, that since Exhibit ‘D’ (relied upon by the Court) was recorded in English, in contradiction with Exhibit ‘C’ recorded in Hausa and translated (or interpreted), and which was expunged by the said Court, the learned trial Judge should have inquired, as to the reason why one statement (Exhibit ‘D’) was made in Hausa, while the other (Exhibit D) was made in English and was thumb-printed, instead of being signed. It is submitted that the Court should have also held Exhibit ‘D’ to be made in Hausa and translated just like Exhibit ‘C’) and to have rejected if for the same reason. It is further submitted in the brief that, if Exhibit ‘D’ is expunged from the record, the judgment of the trial Court would have been different as reliance was expressly made by the said trial Court on the said Exhibit ‘D’, in arriving at its judgment and or in convicting the appellant. We are urged under the first issue to resolve it in favour of the appellant and to consequently, allow his appeal under the said issue.

In the respondent’s brief, reply to the above submissions of the appellant are contained at page 3-6 (paragraphs 4.2-4.12 thereof). The respondent conceded, that the appellant made two statements to the Police in the course of investigation – viz Exhibits ‘C’ and ‘D’. while both statements were confessional in nature, one (Exh. C) was made in Hausa and translated into English, while the other (Exh.D) was made in English. It is pointed out in the brief that Exhibit ‘C’, which was obtained through an interpreter was rightly expunged by the learned trial Judge, as hearsay evidence, since the interpreter was not called as a witness. In the case of Exhibit’ D’ however, the brief points out, it was volunteered in English by the appellant who was duly cautioned. The statement was read over to him and he agreed with its truth, before thumb printing it (see the evidence of PW5 at page 30 of the record). The appellant was also taken to PW6, for endorsement of the confessional statement and its truth and voluntariness, were duly confirmed and endorsed by the said witness. It is argued in the respondent’s brief that, when the confessional statement in Exhibit ‘D’ was tendered, the appellant and his counsel who were present at the trial did not object to its admission or voluntariness. They cannot therefore, be heard to object now at an appellate level. It is pointed out in the brief that if the appellant or his counsel had objected to the admission or voluntariness of the statement in Exibit ‘D’, there would have been a trial within trial by the trial Court to ascertain its voluntariness, It is contended further, that the confession in the said statement has been confirmed or corroborated by the evidence of the appellant himself (which was substantially the same as the contents of Exhibit ‘D), as well as the evidence of other witnesses in the case (i.e. PWs. 1-3).

Another ground showing that Exhibit ‘D’ was actually made by the appellant in English language, as stated in the respondent’s brief, is that his oral evidence before the Court (i.e. his testimony) was made in English language rather than in Hausa language. The learned trial Judge adverted his mind to this point when he stated (at page 42 lines 4 -9 of the record) as follows:-

“the same is not true of Exhibit ‘D’ which was taken down in English language, the accused understanding English. He even testified in English language before me. He understands English very well”