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.
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.
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).
In Ogudo v The State, it was the retracted, unsigned statement of the Appellant which also did not meet the test of credibility as set out originally in R v. Sykes (1913) CARP 113 that was given no probative value by this Court. Granted that the lower Court’s erroneous assumption that Exh 9B was the actual statement of the Respondent which was not signed by him, that erroneous assumption did not detract from the incisive consideration given to the impact and weight to be attached to the Respondent’s statement Exh 9A and the interpreted version Exh- 9B. This Court had held that an Appellate Court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is contained therein. Both are forbidden areas for an appellate Court. An appellate Court must read the record in its exact content and interpret it. See Orugbo vs. Una (2002) 16 NWLR (Pt.792) 178 R PP.206-207 Paras H-B. Egbe v Adefarasin (1987) LPELR- 1032(SC); Usman v Garke (2003) LPELR- 3431(SC).
The lower Court held that even if the statement were admissible, they failed to meet the criteria set down in a long line of authorities to test the veracity of a confessional statement where it was retracted by the maker. There is no doubt that a confessional statement is the best evidence to prove a crime. It is the evidence of the perpetrator describing why and how the crime was committed. It proves both the mens rea and the actus reus. However, such admission to be solely used to convict a defendant must be voluntarily made and must be a positive and direct admission of guilt. See Adebayo v A.G Ogun State (2008) 7 NWLR (PT 1055) Pg. 201; Ijoma v. The Queen (1962) LPELR-25041 (SC); Adekoya v. State (2012) LPELR-7815 (SC).
Where a statement is retracted, the Court must look for evidence outside the statement with which to evaluate the contents of the statement in order to arrive at the conclusion that the confession was both credible and probable. See R v. Sykes (1913) CA RP 113, Queen v. Itule (1961) 2 SCNLR 183, Busari v. The State (2015) ALL FWLR Pt. 777 Pg. 715 at 732-733. Okoh v. The State (2016) LPELR-40656 (SC). In other words, the retracted confession must pass the six credibility tests forming part of our criminal jurisprudence which have been established in a long line of cases referred to above. These are:
i. Is there anything outside the confession to show that it is true?
ii. Is it corroborated?
iii. Are the relevant statements made in it of facts true as far as they can be tested?
iv. Was the accused one who had the opportunity of committing murder?
v. Is his confession possible?
vi. Is it consistent with other facts which have been ascertained and have been proved?
There is no doubt from the evidence of P.W.1, P.W.2 & P.W.6 that the deceased died. They gave eye witness evidence regarding the robbery and the shooting of the deceased. All of them stated categorically that they could not recognise any of the robbers. They did not link the Respondent to the crime or scene of crime. P.W,3 the I.P.O who took the statement of the Respondent gave evidence that the case was referred to him for investigation with two vehicles (one red Golf Saloon Reg No. AG822MKA and a Ford Bus Reg No. AE53KAR). The latter vehicle had escaped with some people inside. He led a team to Kaduna to trace the owner of the vehicle and the vehicle was traced to one Idris Abdullahi at Rigasa who introduced the buyer of the vehicle. According to P.W.3, the vehicle (it is not clear in his evidence whether the Golf or Ford) was bought by one Ado Danbuzu. Both men were arrested. P.W.3 stated that:
“It was the same Idris Abdullahi who confirmed to us and gave us the names of about 16 armed robbers who were operating in Katsina and Kaduna State including the names of the accused persons.”
It was the said Idris Abdullahi that assisted the Police in tracing and arresting all those who were investigated and some of whom including the Respondent were later charged. Both P.W. 4, P.W.5 and P.W.7 who were all investigating officers in this case admitted that the two vehicles were abandoned and were not in any way connected to the armed robbery. It is clear from the evidence on record that no eye witness placed the Respondent at the scene of the robbery, the Respondent was not arrested at the scene nor arrested with a vehicle identified as one used by the perpetrators of the crime. The Police conceded under cross-examination that they did not search the vehicles when they saw them nor did they suspect the vehicles were used in the commission of the offence. The Respondent was not found to have anything to do with the vehicle or any of the firearms contained therein. P.W.4 and P.W.5 stated that they recovered the vehicle on 24/08/2001 while the Respondent was arrested on 25/12/2001 and his statement was taken the same day. Therefore, there is absolutely no scintilla of evidence linking the Respondent to the commission of any crime except the retracted confessional statement. The prosecutorial style of the Nigeria Police, in seeking conviction for serious offences armed with nothing but so called “confessional” statement of the defendant will continue to be deprecated. In this case, the prosecution cannot fall back on any compelling piece of circumstantial evidence which is not cogent and irresistible enough to prove that the Respondent participated in the commission of the offence with which he was charged and convicted. See Omotola v. The State (2009) 2-3 SC Pg.7; Ubani v. The State (2003) 18 NWLR PT 851 Pg. 22; Sule Ahmed (Alias Eza) v. The State (2001) LPELR-262 (SC); Corporal Isah Ahmed v. The Nigerian Army (2016) LPELR-40826 (SC).
On the question of the suppression of a previous statement of the Respondent by the prosecution which is the third leg of this issue, it is clear from the testimony of the Respondent during the trial within trial and his evidence at Pg. 147-149 of the Record for himself as D.W.5 during the main trial, that neither he nor his Counsel made an issue of the suppression by the Appellant of a previous statement to the police. However, clearly Exh. 9A &9B in its opening sentence shows that he was making an additional statement to one or more statements already made by him. His evidence was that he was interrogated several times by the police. His counsel at trial did not question him on it, nor did he cross-examine the prosecution on it nor address the trial Court on it.
The question here is whether there was any evidence or whether an issue was made by the defence of the exculpating contents of a previous statement to make the conclusion of the lower Court on Pg. 321 of the record that the deliberate exclusion of the prior statement of the Respondent amounted to lack of fair trial be founded in fact or law. I am of the view that the conclusion of the lower Court is both unfounded in fact and law. The main question here however is, whether that particular conclusion of the lower Court has led to a miscarriage of justice. I cannot so conclude given the overall circumstances and the facts of this appeal. It is not every error of law or fact, that would lead to the setting aside of an otherwise just judgment. The error must be one that has led to a gross miscarriage of justice. See Mufutau Aremu & ANOR v. The State (1991) LPELR-545 (SC) following Yaro v. The State (1972) NSCC 160 at 165; Nguma v. A.G. Imo (2014) LPELR-22252 (SC); Alhaji Muazu Ali v. The State (2015) LPELR-24711 (SC); Tsokwa Motors (Nig) Limited v. United Bank for Africa PLC (2008) LPELR-3266 (SC).
I cannot find miscarriage of justice in the determination of the germane facts and law in this case by the lower Court. This issue is resolved against the Appellant.
On this issue, learned Appellant’s counsel argued that the issue which the lower Court was called upon to resolve was whether the Respondent was involved in the Armed Robbery. Counsel argued that the lower Court’s finding that the Respondent’s oral testimony was not challenged under cross-examination was erroneous. Counsel submitted that a Defendant who resiles from his confessional statement has the duty to explain the inconsistency between the statement and his evidence in Court to the satisfaction of the Court. Counsel cited Iliyasu v. The State (2015) 1 NWLR Pt.1469 Pg. 76 Edoko v. The State (2015) 9 NWLR Pt. 1465 at Pg. 488.
Counsel further submitted that the law does not impose on the part of the prosecution, the number of witnesses it should call to prove its case, as the prosecution is only obliged to call material corroborative evidence where the need arises. Counsel cited Babuga v. The State (1996) 7 NWLR Pt. 460 Pg. 279 at Pg. 300, Oguonzee v. The State (1998) 4 SC 110 at Pg. 128. Counsel further cited the provisions of S. 237 (1) (b) of the Criminal Procedure Code Cap 37 Laws of Katsina State, 1991 to emphasise the point that a Defendant is entitled to call additional or a particular witness, vital to his/her defence not called by the prosecution. He cited Aliyu v. The State (2013) 12 NWLR Pt. 1368 Pg. 403 at 420, Counsel submitted that it was wrong of the lower Court to conclude that failure to call Idris Abdullahi and Danbuzu was fatal to the case of the prosecution. Counsel insisted that the doubt created in the mind of the lower Court which was resolved in favour of the Respondent should have been a germane and reasonable one arising from some evidence before the Court and not merely speculative. Counsel cited State v. Aibangbee 7 SC Pt.1) Pg. 96 Udosen v. The State (2007) 4 NWLR Pt. 1023 Pg. 125.
Learned Respondent’s Counsel argued that the issue of the degree of participation of the Respondent could have been easily determined by calling Idris Abdullahi who gave the name of the Respondent as one of the armed robbers operating within their vicinity, as well as who was driving the vehicle on the night of the incident by the testimony of Ado Dambuzu. Therefore, the evidence of PW3 with respect to Ado Dambazu is hearsay and ought not to have been admitted by the trial Court.
Counsel submitted that while the prosecution need not call a host of witnesses, it is the duty of the prosecution to call any witness whose evidence would settle one way or another any issue of fact that would enhance the case of the prosecution. Since there is a presumption of innocence in favour of the Respondent. Counsel urged the Court to hold that the prosecution did not make out any case against the Respondent. He cited Mohammed vs State (2014) 10 NWLR Pt.1414 Pg. 179, Williams vs State (1992) 8 NWLR Pt.261 (Pg. 515). Afolalu v. The State (2010) LPELR-197 (SC);
Counsel further urged us to hold that the testimony of the two witnesses would have helped the trial Court to ascertain the truth of the retracted confessional statement, dispel some doubts already raised and arrive at a different decision if possible, especially on the face of the allegation raised by the Respondent against Idris Abdullahi. Learned Respondent’s Counsel submitted that, since there is a presumption of innocence in favour of the Respondent, the Court must hold that the prosecution has not made out any case against the Respondent. See — Mohammed vs State (2014) 10 NWLR (PT.1414) 179, Williams vs State (1992) 8 NWLR (Pt.261) 515.)
My Lords, let me first of all, address the misbegotten argument of the Appellant’s counsel on paragraph 5.7 on page 21 of the brief that it is the duty of the Defendant to explain the inconsistency between his statement to the Police and his evidence on oath. For this proposition Learned Counsel cited Iliyasu v. The State supra.
My Lords, it is trite that the onus of proof in a criminal case if fixed on the prosecution and does not shift until the prosecution adduces cogent, credible and compelling evidence against the Defendant. The Respondent does not have any obligation to prove his innocence. To discharge the onus, the prosecution must prove all the ingredients of the offence charged. See -Yongo vs. C.O.P (1992) 8 NWLR (Pt.257) 36, Alor v. The State (1997) 4 NWLR (Pt.501) 511. Idi v. State (2017) LPELR-42587 (SC); State v. Gwangwan (2015) LPELR-24837 (SC).
To secure a conviction under Sec. 1(2) (b) of the Robbery & Firearms Act, the following essential ingredients must be proved by the prosecution:
i) That there was indeed a robbery or series of robbery.
ii) That the robbers were armed with dangerous weapons and
iii) That the accused Defendant was the robber or one of the robbers.
See: Osetola vs State (2012) 17 NWLR (pt. 1329) 251, Osuagwu vs State; (2013) 5 NWLR (Pt. 1347) 360, Abiodun vs State (2013) 9 NWLR (Pt.1358) 138, Ajayi vs State (2013) 9 NWLR (Pt.1360) 589;
From the records in this appeal, it was the evidence of P.W. 3 to the effect that it was one Idris Abdullahi who gave the Police the names of 16 armed robbers operating in Kaduna and Katsina States, which included the name of the Respondent. It was on the basis of that information that the Respondent and other co-defendants at trial were arrested. No doubt, the prosecution is only obliged to call witnesses whose evidence is vital to the determination of the case for the prosecution and whose evidence would settle vital points of facts one way or the other to remove any element of doubt in respect of the guilt of the Defendant from the case of the prosecution. See The State V. Nnolim (1994) 5 NWLR Pt.345 Pg. 384 at 406, Onah v. The State (1985) 3 NWLR Pt.21 Pg. 236; Emmanuel Ochiba v. The State (2011) LPELR- 8245(SC); Omogodo v. State (1981)LPELR-24879 (SC).
The Respondent was arrested on the word of one Idris Abdullahi who was not charged or called to give evidence on oath. Lord Horwart, C J. in the course of argument in the case Rex v. Dora Harris (1927) 2 KBD 587, at Pg. 590 observed:- “In civil cases, the dispute is between the parties and the Judge merely keeps the ring, and the parties need not call hostile witnesses, but in criminal cases, the prosecution is bound to call all the material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury.”
In Rex v. Thompson Udo Essien (1938) 4 WACA 112, the West African Court of Appeal (Kingdom, C.J. Nigeria, Carey and Grabam Paul JJ.) allowed the Appellant’s appeal because relevant witnesses had not been called and the evidence available was not enough to support the conviction. In that case, the prosecution failed to call the 3 survivors of the accused’s alleged assault. The Court held that: “it is the duty of the crown to call all known material witnesses, whether in favour of the crown case or not, and where, as in this case, the crown had notice of the accused’s most material allegations against those three named people it was the clear duty of those responsible for the prosecution to call these three people if the accused’s allegation against them was to be contested” see also Commissioner of Police v. Fred Addae (1945)11 WACA 42 at 44: Rex v. George Kurec (1941) 7 WACA 175 at 177.”
A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness. In Onah v. State (1985) 3 NWLR Pt. 12 Pg.236 a vital witness described as a witness whose evidence may determine the case one way or the other and it is settled that the failure to call such a witness is fatal to the prosecution’s case. See: Lase v. The State (2017) LPELR-42468.
It is true that the prosecution is not obliged to call all listed witnesses nor is there need for a host of witnesses to get a conviction but where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the guilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced it would work against the prosecution and favour the accused, See: Sec 167 (d) of the Evidence Act, 2011. Stated another way, is that the vital witness is that witness whose evidence is fundamental as it determines the case one way or the other and failure to call that vital witness by the prosecution is fatal to this case. See: Ogudo v. State (2011) 18 NWLR (Pt.1278) 1 at 31; State v. Azeez (2008) 14 NWLR Pt.1108 P9.439 at 475: Zubairu v. State (2008) 14 NWLR Pt.1108 Pg.439 at 475: Zubairu v. State (2015) 16 NWLR Pt. 1486 Pg. 504 at 525: Adamu v. State (2019) LPELR-46902 SC.
Even if Idris Abdullahi to whom the vehicle was traced had been merely an informant of the Police, where he witnessed a scene of crime and told the police, the prosecution would have been obliged to call him to give evidence. Where he gave general information as in this case, the Police would be obliged to investigate the veracity of the information before arresting the Respondent. The Respondent was arrested on the word of one Idris Abdullahi who was not charged or called to give evidence on oath. No evidence linked the particular Ford owned by the Respondent to the Ford vehicle owned by Danbuzu (also arrested but not charged). I agree with the lower Court that Idris Abdullahi and Danbuzu should have been called to supply the missing link between the Respondent, the Ford vehicle which appeared from nowhere and was supposedly used to commit the offence and the commission of the offence. Idris Abdullahi might have been able to supply the evidence linking the Respondent with the particular offence with which he could have been successfully charged and convicted. Afterall, the charge of armed robbery is not at large, it must be related to a specific incident and date. I must commend the erudite and thorough lead judgment of Wambai, JCA.
I agree with the lower Court that the Prosecution could not prove the offence of armed robbery against the Appellant beyond reasonable doubt. There is no merit in this appeal.
The judgment of the lower Court delivered on 13/11/15 Coram H.A.O. Abiru, O.A. Adefope-Okojie, Amina A. Wambai JJCA is hereby affirmed.