State V. Usman (2021)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C. 

This appeal is grounded on the findings of facts and the law as determined by the lower Court. The Court charged with the duty to review the facts and evidence on appeal also needs to make specific findings of fact in order to determine whether the lower Court’s findings were valid. Halilu Muhammed v I.G.P. (1970) NNLR 98, Stephen v. The State (1986) 5 NWLR Pt.46 Pg. 978.

The facts that led to this appeal are as follows. The Respondent along with five other co-defendants at trial were charged before the trial Court with the offence of Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990 as amended. The Respondent was alleged to have robbed one Alh. Ummaru Masanawa (the village head of Sabuwar Kasa) at Sabuwar Kasa village in Kafur Local Government Area of Katsina State of the sum of N30,000.00 (Thirty Thousand Naira only). The victim died of gunshot wounds inflicted during the robbery. The Respondent and the other five (5) defendants pleaded not guilty to the charge before the Hon. Justice Sanusi Tukur at the trial Court. At the trial, Eight (8) witnesses testified for the Appellant and some Exhibits were tendered and admitted in evidence. P.W.1, P.W.2 & P.W.6 were relatives of the victim who witnessed the robbery. None of them could identify the robbers. P.W.3, 4, 5, 6, 7 and 8 were Investigating Police Officers who investigated the crime and took statements from all the six defendants. The only evidence against the present Respondent is the statement of a non-witness that he was one of several robbers in the Kaduna Area. The Respondent as the 5th Defendant on the other hand, testified for himself and did not tender any exhibit at the trial Court.

The Respondent and five others were thereafter found guilty and subsequently convicted and sentenced to death accordingly. Dissatisfied with the judgment of the trial Court, the Respondent had appealed to the Court of Appeal (lower Court) sitting at Kaduna. He was discharged and acquitted by the lower Court on the 13th November, 2015, Coram Habeeb A.O. Abiru, JCA and Adefope-Okojie, JCA and Amina Wambai, JCA. Dissatisfied with the said decision, the Appellant- Katsina State Government, has now appealed to this Court.

In the Appellant’s brief, two issues were crystallised for determination by Abu Umar Esq. Senior State Counsel. Those same issues were adopted almost verbatim by the Respondent’s Counsel in the brief settled by Emmanuel Esene Esq. I will also adopt the same issues as set out below for the determination of this appeal.

ISSUES FOR DETERMINATION

A. Whether there are pieces of evidence outside the retracted Confessional statement of the Respondent (Exhibit 9A) warranting him to be convicted solely on it even though he did not sign Exhibit “9B” (Translation of Exhibit 9A) and whether exhibit (9B was preceded by another statement to the police and failure of the Appellant to tender same renders the trial of the Respondent unfair as held by the lower Court. Distilled from Grounds 2,3 and 4.

B. Whether Idris Abdullahi and Danbuzu said to be mentioned by PW3 and the Respondent are vital witnesses who ought to have been called by the Appellant and failure to call them is detrimental to the Appellant’s case, casting doubt in the mind of the Court. Distilled from Ground 1.

ISSUE ONE

This issue can be subdivided into three. The first leg is whether the absence of the signature of the Respondent on Exh 9B, the English translation of Exh 9A (the retracted) confessional statement makes it worthless. The argument of Learned Appellant’s Counsel on this point is that Ogudo v. The State (2011) 12 SC (PT.I) Pg 71; 12 SCNJ 1 relied on by the lower Court to discountenance the substance of both Exh 9A (the Hausa version) and Exh 9B (the English Translation) of the Confessional Statement is quite distinguishable from this case because in Ogudo v. The State (SUPRA), it was the statement recorded in the language spoken and understood by the Defendant that was unsigned, not the translated version as in this case. Counsel argued that it is the Respondent’s statement taken in the Respondent’s language that needs to be signed or thumb printed during Police investigation. On the other hand, the Respondent’s Counsel submitted that the issue at stake is the legal status of Exh 9A vis-a-vis Exh 9B, bearing in mind that an unsigned statement is a ‘worthless’ statement. Counsel posed the question whether Exh 9A and Exh 9B must operate or be considered together or they can be considered independently of each other. Respondent’s Counsel contended that the signing of the Hausa version of the confessional statement by the Defendant and the IPO who took the statement cannot dispense with the need to ensure that both the maker and interpreter must sign the interpreted version of the statement. Counsel submitted further that the document can only bind the respondent if he had signed same. That is to say that he cannot be said to be a maker of the document which he did not sign especially when the original had been retracted by him.

OPINION

My Lords, the position of the law as it stands today is that the signed retracted confessional statement, Exh. 9A, taken in vernacular is admissible in evidence. What matters is the probative value to be attached to it. See: GALADIMA v. THE STATE (2012) LPELR-15530 (SC). In the circumstances of this case, the Respondent’s statement made in the language he understood was signed by both himself and the I.P.O. The finding of the lower Court, which I agree with is that the translated version in English Language which is the language of the Court was unsigned by the Respondent. I am of the view that the Respondent’s Statement in Exh. 9A was prima facie admissible unless successfully impugned as involuntary by a trial within trial. Also, the English translation not signed is also admissible through the writer of the said translation- That is the interpreter. Thus, Exh. 9B, interpreted statement of the Respondent is admissible and was so properly admitted by the trial Court and the lower Court. In this case, the I.P.O who took the statement of the Respondent in Hausa Language, P.W.3 was also the officer who interpreted it into English and tendered it in Court. It is settled that the person or officer who interpreted a statement must tender it in Court so that if necessary, the interpreter can be cross-examined on whether the interpreted statement is the correct interpretation of the original words as spoken by the Defendant. Therefore, it was essential for P.W.3 to be present in Court to tender both the original statement in Hausa Language Exh.9A and the interpreted version Exh 9B. Exh. 9B would be documentary hearsay and inadmissible if it were not tendered in Court by P.W.3 See R v. Ogbuewu (1949) 12 WACA Pg. 483, Nwaeze v. The State (1996) 2 NWLR Pt. 428 Pg. 1., FRN v. Mohammed Usman Alias Yaro Yaro (2012) LPELR-7818 (SC). In fact in Baba Haske v The Queen (1961) LPELR-2508 (SC), this Court held that the failure of the interpreter of a statement to sign same does not render the statement inadmissible though it is desirable for the statement to be signed by the interpreter. The appropriate procedure was followed by the Prosecution in that regard as PW3 tendered Exh 9B.

​It is my view that the interpreted version of the statement need not be signed by the Defendant. After all, where the Defendant is the maker of the original statement in Hausa Language and he has duly signed same as had happened in this appeal, whether retracted or not, the interpreted version made by another person (the IPO) need not be signed by the Defendant who was not the maker. By the law of evidence, Exh. 9B was made by the IPO. In other words, it is only essential that the Defendant sign or thumb print the confessional statement in vernacular, to lend credence to its voluntariness, he/she need not sign or thumb print the interpreted version. In short, the two statements are not joined at the hips. They each stand alone. Exhibit 9A, the confessional statement made in the language of the Defendant and the interpreted version made by a Police officer or interpreter as being the correct version of the original. However, the maker of the interpreted version must tender it in Court, failing which it would be regarded as mere documentary hearsay and inadmissible, see Edward Nkwegu Okereke v Nweze David Umahi & Ors (2016) LPELR-40035(SC); Sylvester Utteh v The State (1992) LPELR-6239 (SC); Suleiman Olawale Arogundade v The State (2009) LPELR-559(SC) Thus, Exhibit 9B, the interpreted version of the statement of the Respondent was admissible and was so properly admitted by the trial Court and the lower Court.

With regard to the second leg of this issue, on Pg. 320 of the record, the lower Court referred to Exh. 9B as the confessional statement of the Respondent which was not signed by him and held same to be a worthless statement. The Court relied on Ogudo v The State (SUPRA). In fact, Exh 9B is the interpreted statement of the Respondent which did not contain his signature, not the actual statement he made and signed which is Exh 9A. The Court referred to Exh. 9B as the statement of the Respondent. Being in the language of the Court, the interpreted version is the version that the Court can quote or consider. I find no error and the complaints of the Appellant in this regard is misconceived. Even if there was an error in nomenclature of the Exhibits, it does not go to the root of the determination of the appeal. That error in the judgment of the lower Court is one in my view which has not led to a miscarriage of justice. It is not every minor error that would lead to an otherwise sound and just judgment to be set aside. See Corporal Livinus v The State (2013) LPELR-20177 (SC); Ali v State (2015) LPELR-24711 (SC).