Yeriba Mika V The Queen (1963)

LawGlobal-Hub Lead Judgment Report

TAYLOR JSC

 The appellant was convicted of causing the death of one Samvo Kolenya with the intention of so doing contrary to s. 220 of the Penal Code of the Northern Region of Nigeria.

The facts as alleged against the appellant were that he was one of the men hired by one Bazum for the express purpose of killing the deceased. There was no direct evidence of the killing or the hiring and the conviction rested in the main on the alleged confession made by the appellant to P.W.2, the latter being the interpreter in the Jalingo Prison yard in July, 1961. This alleged confession was said to have been made also in the presence of P.W.6, Mavo Kolaya, and P.W.9, Shunkwang Meka, two of the suspects detained in the same prison in connection with murder of Samvo Kolenya.

Mr. Cole, learned Counsel for the appellant, has urged that the prosecution failed at the trial to account satisfactorily for the absence of the written statement or confession before adducing oral evidence of its contents; that the evidence and memory of P.W.2 on this point were unreliable and that the 6th and 9th P. Ws were themselves suspects; that without the alleged confession conviction could not be sustained.

Mr.. Thomas, Senior Crown Counsel, conceded that the failure of the prosecution to produce the written statement of the appellant was not satisfactorily explained, but went on to say that the conviction was well founded on the four points which on the findings of the trial Judge, tended to confirm the truth of the confession made by the appellant.

The facts leading to the admission of the oral evidence of P.W.2 as to the confession made by the appellant and reduced into writing are these:- On the 16th June, 1962 P.W. 1, P.C. Richard Nwabuza, deposed that:

“He (accused) then made a voluntary statement in Mumuye which was interpreted to me in Hausa by the P.C. I wrote it down in Hausa.”

At the close of his evidence the Court was adjourned after the prosecutor had intimated that the original Hausa statement could not “at the moment” be traced. On the 18th January, hearing was resumed. P.W.1 was not recalled, but P.W. 2, P.C. Voro Koji gave evidence and, without any explanation or statement as to what steps had been taken to recover or find the statement, P. W. 2 was sworn and gave evidence. In the course of this evidence, he said as follows inter alia:

“P. W. 1 read back accused’s statement. I was translating all the time from Hausa to Mumuye and vice versa correctly. Accused said it was correct and put his thumbprint on it. I remember the story accused told me.”

Promptly, Learned Counsel for the accused objected and the record reads thus:

“Dass: I object. This is an attempt to give evidence of the contents of a document.

Court: Objection over-ruled. It is always admissible for a witness to relate what accused said to him. The fact that it was reduced into writing at the time is merely a strengthening of memories.”

The witness then continued his evidence of the contents of the statement or confession made by the appellant and reduced by P. W. 1 into writing. After six other witnesses had given evidence, one of whom was P.W. 6, the 1st P.W. was recalled and this is what he said inter alia:

“I wrote down in Hausa what P. W. 2 told me as accused’s statement. I read it back, and he said it was correct. I tendered it before the examining Magistrate. The Clerk of that Court still has it. I cannot trace it now.”