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In The
Supreme Court of On Friday, the 13th
day of July 2007
Before Their Lordships
SC.4/2005
Between
And
Judgement of the Court
Delivered by
Ibrahim
Tanko Muhammad. JSC.
Facts
surrounding this case as contained in the printed Record of Appeal before
this court show that the appellant as an accused person, together with one
other, were charged before the High Court of Justice of Imo State holden at
Owerri (trial court), on an information of a single count of Murder,
contrary to section 319(1) of the
Criminal Code, Cap 30, vol. II, Laws of Eastern Nigeria, 1963, applicable to
Imo State. It was alleged that on the 20th day of January,
1983, the two accused persons murdered one Benjamin Iheama, at plot 454,
Ikenegbu Layout, Owerri. It was the case of the prosecution that the 1st
accused, a full blood brother to Timothy Iheama (who testified as "PW I" and
who shall hereinafter, be referred to as such in this judgment), was an
apprentice trader. He later established his own trading business with the
help of PW I. Thereafter, the deceased brought in the 1st accused
with three other relations of his: Chibuzor Nwachukwu, Uchenna Nwachukwu and
Christopher Ndulaka, in order to assist him in his business. The deceased
was by then living at plot 454 Ikenegbu Layout, Owerri together with these
people. Further, the 2nd accused was frequenting the house of the
deceased from
Because of
the suspicion PW I had, he went to the father of the 1st accused
and made a suggestion to him that the deceased and the 1st
accused should be brought together for a settlement in order that they might
not kill themselves. But the 1st accused rejected the suggestion.
The deceased
was in the habit of calling on PW 1 from time to time. But after sometime,
PW I could not see the deceased. It was the 1st accused that
informed PW I that the deceased went to
The 1st accused
was selling goods at below the selling price and even used the vehicle of PW
I to convey the goods to
The body of the deceased was
later exhumed and a post-mortem examination was carried out on the body by a
doctor after PW I identified the corpse.
Later, the
Police showed the PW I one Christopher Ndulaka who was shot by the 1st
accused. It was he who gave account of how the deceased was killed by
himself, the 1st accused, Christopher Nwachukwu, Chibuzo
Nwachukwu and Uchenna Nwachukwu. At that time nobody mentioned the name of
the 2nd accused person.
After the
incident, the 1st accused went into hiding and was even declared
a wanted person by the police. In January, 1997, one Chidi Unugu gave
information to PW I that the 1st accused was staying in
Police investigation was extended
to the Federal Prisons, Port-Harcourt,
where Chibuzo Nwachukwu and Uchenna Nwachukwu, brothers of the 1st
accused were detained after having been condemned for the murder of the
deceased.
At the end of taking evidence
from the prosecution and the defence, learned counsel for the respective
parties addressed the learned trial judge.
After
evaluating the evidence placed before him, along side the submissions made
by learned counsel as aforementioned, the learned trial judge, delivered his
considered judgment wherein he discharged and acquitted the 2nd
accused of the offence of murder charged. He however found the 1st
accused guilty of the offence charged and sentenced him to death by
hanging.
Dissatisfied with the trial court's decision, the 1st
accused appealed to the Court of Appeal, Port Harcourt Division. At the end
of its hearing, the Court of Appeal dismissed the appeal and affirmed the
judgment of the trial court.
Further
dissatisfied, the 1st accused appealed to this court on four
grounds of appeal as contained in the Notice of Appeal filed on 25th
May, 2005.
Briefs of argument were filed and
exchanged by the parties. Learned counsel for the appellant asked this court
to determine the
following three issues:
"Issue No 1
Whether the entire proceedings before the trial court
and the Court of Appeal were not illegal, unconstitutional, null and void
having been conducted in violation of:
(a)
Section 215 of the Criminal Procedure Law and
(b)
Section 33 (6) (a) and (e) of the 1979
Constitution
(Ground 1)
Issue No 2
Whether the Court of Appeal was right or justified in affirming the
conviction of the appellant by the trial court which suo motu undertook the
untenable function of an interpreter, and whether this procedure did not
violate the appellant's right to fair hearing and render thereby all the
findings and conclusions of quilt, nullities
(Ground 3)
Issue No 3
Whether the Court of Appeal was right or justified in its decision that
Exhibit A, the alleged confessional statement, was direct and positive and
that the same together with the surrounding circumstances was sufficient to
sustain the appellant's conviction for the offence of murder."
(Grounds 2 & 4)
The
learned Director, Public Prosecution for the respondent, who settled
the brief, distilled the
following issues for determination:-
“1.
whether or not there was substantial compliance
by the trial court with the requirements of section 215 of the Criminal
Procedure Law and section 33 (6) (a) and (e) of the
1979 Constitution of the Federal Republic of Nigeria
with respect to this case.
2.
whether
the court below, erred in affirming the decision of the trial court
convicting the appellant given the available evidence at the trial."
The appellant's issues appear
more comprehensive and cover adequately, in my view, the issues formulated
by the respondent. I shall rely in my consideration of the appeal on the
issues formulated by the appellant.
Citing the
provisions of section 33(6) (a)
and (e) of the 1979 Constitution
and section 215 of the
Criminal Procedure Law (CPL) of Imo State, the learned counsel for the
appellant submitted in the main; that the appellant did not understand the
English Language which was the language of the trial court, and that there
was an abiding need to ensure strict compliance with the above provisions in
order to ensure fair trial. He contended that there was failure by the trial
court to read the charge and explain to the appellant in Ibo Language which
he understood. That failure, argued the learned counsel, vitiated the entire
proceedings. He cited and relied on the cases of
Idemudia
v State (19991 5 SCNJ 47 at page 55: Effiom v the State (1995) 1 SCNJ 1 at
page 15.
Learned counsel for the appellant stressed the point
that Section 215 of the Criminal
Procedure Law is mandatory and was inserted for the protection of
accused persons and to ensure fair trial. Although the learned counsel cited
the case of
In his
submissions the learned counsel for the respondent stated that there was
substantial compliance with the requirements of
section 215 of the Criminal Procedure
Law and section 33 (6) (a) and (e) of the 1979 Constitution. He
submitted that from the commencement of trial, proceedings were conducted in
English Language and no mention of Ibo Language was made which suggested the
appellant was an educated or literate person which was also supported by
Exhibit 'A', the appellant's statement to the police. This, it is suggested,
shows that the appellant was literate in English Language. It was further
submitted that the appellant's interactions with PWs 1 and 2 who were non-lbo
speaking witnesses both during and after the period of taking of appellant's
confessional statement, shows that those interactions took place in no other
language than English. Learned counsel went on to argue that the mere fact
that the appellant, suddenly switched over to give evidence in Ibo after the
prosecution had closed its case does not in any way, suggest that he is an
illiterate who cannot hear or understand English Language and there is no
obligation under the law to interpret anything to him whether from English
to Ibo or vice-versa, as he understands both languages.
Learned
counsel for the respondent told this court that the absence of an
interpreter on the record or the explanation of the charge to the appellant
was needless and was mere irregularity since there was substantial
compliance with the demands of
section 215 of the Criminal Procedure Law and section 36 (6) (a) and (e) of
the 1979 Constitution with respect to the trial and conviction of the
appellant. He cited the case of Amala
v State (2004) 18 NSCQR 834 At Page 838 1
Appellant's
issue No 1 and all the arguments in respect thereof are a direct
challenge to the entire proceedings of the trial court as the proceedings
violated sections 215 of the Criminal
Procedure Law applicable in Imo State and section 33 (6) (a) and (e) of the
Constitution of the Federal Republic of Nigeria 1979. The provisions of
section 215 of the Criminal Procedure
Law are as follows:-
"The
person to be tried
upon a charge or information shall be placed before the Court unfettered
unless the court shall see cause
otherwise to
order and the Charge or information shall be read over and explained to
him to the satisfaction of the court by the registrar or other officer
of the Court, and such person shall be called upon to plead instantly
thereto, unless where the person is entitled to service of a copy of the
information he objects to the want of such service and the court finds that
he has not been duly served therewith."
(Underlining supplied for emphasis)
The
provisions of
section 33 (6) (a) and (e) of the 1979 Constitution of
the
"33
(6)
Every
person who is charged with a Criminal Offence shall be entitled -
(a)
To be
informed promptly in the language that he understands and in detail of the
nature of the offence
(e)
To have without payment the assistance of an
interpreter if he cannot understand the language used at the trial of the
offence."
(Underlining supplied for emphasis)
Section 33 (6) (a) and (e) of the
Constitution is very
clear on the requirement of affording a person accused of committing any
Criminal Offence with an interpreter, if he does not understand the language
of the trial court before his plea can be taken or before the entire trial
can proceed. This is a fundamental right which is inalienable and
non-negotiable. Section 215 of the Criminal Procedure Law requires that the
charge must be read over to the accused person in the language he
understands to the satisfaction of the court before he is called upon to
plead to the charge.
From the
Record of Appeal, it is clear that on the 4th day of November,
1997, the trial court sat. Both accused persons were present in court with
their respective counsel. J. C. Duru, Director, Public Prosecution appeared
for the state. The learned judge recorded the following:-
"Charge
on the information is read in English and
explained to the accused person
(sic) and each pleads
(sic) as follows:
1st
accused pleads not guilty.
2nd
accused pleads not
guilty."
(Underlining supplied for emphasis)
The trite position of the law is that when a charge is
read to the accused person and he makes his plea and the court records his
plea and thereafter proceeds to trial, the presumption is that the court is
satisfied that the charge was explained to the accused to its satisfaction
in compliance with the provisions of the Constitution and
Section 215 of the Criminal Procedure
Law as set out above. See:
Solola v. State (2005) Q. C. C. R. vol.3, page 160; Erekanure v State (1993)
5 NWLR (Pt.294) 385; Kajubo v. State (1988) 1 NWLR (Pt.73) 721.
The
proceedings of that day show that:
(a)
There was no interpreter engaged by the trial
court for the purposes of interpreting its proceedings from English to any
other language to any of the accused persons.
(b)
The information against each of the accused
persons was read and explained in the English Language which was the
official language of the trial court.
(c)
There was no suggestion at all that any of the
accused persons did not understand the language of the court.
(d)
There was no objection raised by any of the
counsel representing the various parties, especially the accused persons,
that any of them did not understand the language of the court.
These leave me to presume that the proceedings were
conducted in a perfect order and each of the accused persons understood the
language of the court in which the charge against him was read and explained
to his understanding and to the satisfaction of the trial court. This,
certainly, obviates the necessity of employing the services of an
interpreter for any of the accused persons. The trite position of the law is
that where the accused person understands the language of the proceedings,
no miscarriage of justice is occasioned by the failure to provide an
interpreter. See: Uchegbu v. State
(1993) 8 NWLR (Pt. 309) 89 at page 103-104 paragraphs A- H; 108, paragraph
A, which case is almost on all fours with this appeal. It was held in
that case that failure to provide an interpreter for the translation of the
Ibo version of the proceedings to English language is not fundamental as the
accused understood English and also spoke Ibo.
In the
appeal on hand, it is clear also that before the arraignment, the statements
of the accused persons were made. The 1st accused/appellant
stated as follows:
"The
above named person having been duly cautioned in English language
that I am not obliged to say anything ..."
(Underlining and italics supplied by me)
There is an endorsement on the
accused statement by one Sergent Moses Azubuike who was the Investigating
Police Officer. It reads as follows:
"Statement recorded in English Language read over to the maker in same
language, he signed it as true and correct. I counter-signed it under."
Again, one Mr. Livinus Torhim, a
DSP, made an endorsement that the accused person, Anthony Nwachukwu, was
brought before him by the Investigating Police Officer. His confessional
statement was read over to him in English Language and he confirmed it to be
quite correct. Further PW 1, Mr. Timothy O. Iheama, told the trial court in
his evidence in chief as follows:
"By then, 1st accused had left school and
was unemployed."
This
piece of evidence was not challenged. In our modern and Western educational
system, if it is alluded that one has attended a school, the general
presumption is that one was educated up to a certain level and training. In
Nigerian Institutions, training is mainly conducted in the English Language,
Where the
accused does not understand the language used at his trial, it is his duty
or his counsel's duty to bring to the notice of the court at the earliest
opportunity, that he does not understand the language used at the trial.
See: Madu .v. State (supra) pp 408 -
409 Paras E - D. where in a situation it is affirmatively established
that the interpreter (where there is one) was not present on one of the days
in which proceedings were taken, then,
prima-facie, an accused person
who was not represented by a counsel would have shown that his fundamental
right to fair hearing was breached or violated. The position would however
be different where the accused person was represented by counsel, as in the
appeal on hand, and there was no objection taken on the issue of any alleged
lack of interpretation, That will, of course, be too late in the day to do
so, having consented to the procedure employed by the trial court; See:
Lockman v State
(1972) All NLR.
498: State v Gwonto (1983) 1 SCNLR 142; Madu v State (supra).
In a general note, I think it is instructive to state that although the
absence of an interpreter in a criminal trial where the accused person does
not understand the proceedings of the trial court is a clear violation of
his Constitutional right, it does not render the whole trial "null and
void." It is only the testimony of witnesses whose evidence was established
not to have been interpreted as required by law that needs to be expunged
from the records. See: Ogba
v State (1992) 2 NWLR (Pt. 222) 164; Okaroh v state (1990) 1 NWLR (Pt.125)
128; Madu v State (supra). But where the
non-interpretation is initially at the arraignment stage, as seen earlier,
that can, abinitio invalidate the whole proceedings and render same null and
void as the substratum of the trial has collapsed from the start and as one
cannot put something on nothing and expect it to stand. It would certainly
collapse as Lord Denning said in the case of
Mackfoy
v UAC Ltd (1962) A. C. 152 or (1961) 3 All E. R. 1169.
Finally, on
this issue, unless it appears very clearly from the records that an
appellant did not understand the language used at the trial and that
interpretation for his benefit was refused, all acts are presumed to have
been legitimately done until the contrary is established. See:
Madu
v State (supra). It is to be emphasized that counsel for an accused
person has no right to waive the right to interpretation as that right is
not his but that of the accused person.
See:
Gwonto v State (Supra) or (1982) 3 NCLR 312. I resolve issue No. 1 in
favour of the respondent.
Appellants
issue No. 2 is on whether the court of Appeal was right or justified in
affirming the conviction of the appellant by the trial court which suo motu
undertook the function of an interpreter which violates the appellant's
right to fair hearing. In his submission, the learned counsel for the
appellant stated that nowhere in the record of appeal is it indicated that
anyone ever acted as an interpreter throughout the proceedings culminating
in the conviction of the appellant for murder. The act of the learned trial
judge in translating or interpreting suo motu the evidence of the appellant
rendered in Igbo language into English Language is an act he clearly lacked
the competence to embark upon and the Court of Appeal was wrong in affirming
the judgment resulting there from. The learned trial judge acted in breach
of section 33 (6) (e) of the 1979
Constitution and usurped, thereby, the role of an interpreter and/or a
translator. Learned counsel cited the case of
Damina v. the State (1995) 9 SCNJ 254
at page 267; Ojenabede
v Esan (2001) 12 SCNJ 401 at P. 421 to
support his submissions. He urged us to hold that the learned trial judge
was in error.
I have
studied the
brief of the respondent and it appears the respondent did not effectively
respond to this 2nd issue raised by the
appellant. Another point
is that although this issue was tied to ground 3 of the Notice of Appeal to
this court it appears it was not an issue before the Lower court. Two issues
were formulated by the appellant's counsel for the determination of the
lower court. They are:
"(1)
whether the learned trial judge was right in
relying on Exhibit A held to be the confessional statement and finding the
appellant guilt (sic) without investigation or inquiry or trial within
trial.
(2)
Whether the guilt of the appellant was proved
beyond reasonable doubt given that the prosecution relied on circumstantial
evidence which did not point irresistibly to the fact that it was the
appellant that perpetrated the crime."
In his submissions in his brief
of argument before the lower court, learned counsel for the appellant
related the issues to the grounds of appeal as follows: "issue Number 1 is
tied to Ground three, that is, the additional ground of appeal. Issue No. 2
is tied to ground 2 of the original notice and ground of appeal on page 102
of the Record.
The grounds
of appeal contained in the original Notice of Appeal before the lower court
are as follows:-
"1.
the verdict is unwarranted, unreasonable and
cannot be supported having regard to the evidence.
2.
the learned trial judge erred in law and on the
facts in holding that the prosecution proved its case beyond reasonable
doubt. The circumstantial evidence did not irresistibly point to the accused
as the perpetrator of the crime.
3.
further grounds will be filed on the receipt of
the records of proceedings."
By a motion on Notice, the appellant sought for and had leave to amend the
Notice and grounds of appeal filed by filing additional ground of appeal.
The additional ground reads:-
"Ground Three
the
learned trial judge erred in law in holding that the prosecution proved its
case beyond reasonable doubt when there was no trial within a trial to
determine the voluntariness of the confessional statement, Exhibit A, used
in convicting the appellant.
Particulars of Error
(a)
The learned trial judge ought to have directed
that Exhibit A, the confessional statement, be read aloud and in open Court
to the hearing of the appellant so as to avoid a situation of the appellant
stating, as in this case, during his defence that his statement was obtained
under duress or by coercion.
(b)
The learned trial judge ought to have taken
precaution in admitting Exhibit A, as a confessional statement because the
learned judge disbelieved the contents of Exhibit A in discharging the
2nd
accused person,
Victor Amadi, thereby fail in error of picking and choosing what to believe
and disbelieve in the purported confessional statement.
(c)
There was no corroborative evidence outside
Exhibit A, the confessional statement that makes it probable that the
contents are true."
In this court the appellant's 2nd issue for
determination was distilled from ground 3 of the Notice of Appeal filed in
this court. Ground 3 reads as follows:-
"Error in law
The Court of Appeal erred in law by affirming the
conviction of the appellant by the High Court which court undertook the
function of an interpreter, a function it clearly lacked the competence to
carry out when it recorded the evidence of the appellant in Ibo Language and
proceeded Suo Motu to translate the same into English Language, the language
of the court, and thereby violated the appellant's right to fair hearing
contrary to section 33 (6) (e) of the
constitution of the Federal Republic of Nigeria, 1979.
Particulars of Error
i.
The Court of Appeal was in error in affirming
the appellant's conviction by the trial High Court when the said trial Court
acted in breach of the clear and mandatory provisions of section 33 & (e) of
the Constitution of the Federal Republic of Nigeria, 1979.
ii.
The Court of Appeal ought to have held that the
evidence of the appellant should have been translated from Ibo to English
Language, the Language of the Court by a sworn interpreter.
iii.
There was no sworn interpreter or at all.
iv.
The Court below was in error in affirming the
appellant's conviction notwithstanding that the trial court usurped-the role
of an interpreter and/or a translator.
v.
The appellant's Constitutional right to an
interpreter cannot be waived.
vi.
The appellant was constitutionally entitled to
an interpreter/translator
vii.
The Court of Appeal ought not to have affirmed
the appellant's conviction when it is patently clear that the trial
court
abandoned
its constitutional and adjudicatory role to perform that of a witness."
It is very
clear to me from the Records that the above ground of appeal was never
raised in the court below. It is a new ground altogether, which was not
canvassed before the court below. I also failed to see where leave was
sought and obtained for the appellant to raise and argue that fresh ground.
The trite position of the law is that leave of either this court or the
court below must be sought and obtained before raising any fresh issue or
ground for the first time. A party cannot surreptitiously smuggle into his
issues or grounds without such leave first sought and obtained, any new
issue or ground. If that is done, such grounds or issues are incompetent and
will be struck out. See: Adio v.
State (1986) 2 NWLR (Pt.24) 581; Alhaji Latifu Ajuwoo & Ors .v. Madam
Alimotu Adeoti (1990) 2 NWLR (Pt.132) 271 at 283; Obioha v. Duru (1994) 9
NWLR (Pt. 365) 631 at page 646 - 647.
Perhaps that was why the learned
counsel for the respondent did not venture to waste his time in addressing
us on a non - issue. Therefore, as this court does not entertain an appeal
straight from a High Court, without the intermediary court, i.e. Court of
Appeal having the benefit of making its pronouncements on the issue, issue
two of the appellant's issues for determination, which is on the capacity of
the learned trial judge to embark upon translating the evidence given by the
appellant
as DW I in Ibo language to
English Language without the assistance of an interpreter, is incompetent
and is hereby struck out.
But, assuming even for the sake
of argument that the issue is competent, I will have dismissed it simply
because there is nothing to show, although it is procedurally wrong, that
the reducing of the evidence given by the appellant in Ibo language, into
the language of the court i.e. English by the learned trial judge himself,
has caused any miscarriage of justice. Although the absence of an
interpreter in a criminal trial where the accused person does not understand
the proceedings of the court as 1 stated earlier, is a clear violation of
his constitutional right, it does not render the whole trial null and void.
If the non interpretation relates to the testimony of a witness, it is only
that testimony that will be expunged from the records. In this appeal, it
was the appellant's testimony that was said to be conducted without an
interpreter to the court. The duty now lies squarely on the shoulders of the
appellant to show that the non -interpretation of his evidence to the trial
court which he gave in Ibo language caused him a miscarriage of justice.
Secondly, it has already been seen that the appellant was quite fluent and
understood English very well. This is the issue treated earlier. If there
was anything objectionable the appellant or his counsel ought to have raised
such objection. I think the duty of ensuring that the right thing is done is
not only on the trial judge. It is a duty as well on a party to a case or
his counsel. The counsel, where one is engaged, who, by the nature of his
call, is an officer of the court must insist that the right thing is done by
the court in accordance with the law. Thus, where a counsel observes that a
judge is deviating from the known principles of practice/law, he has a duty
to invite the attention of the judge to that omission. At least the records
will bear him testimony that he, as a counsel, for one of the parties before
that court, has not tacitly condoned an illegality. Appellants issue No. 2
is incompetent. It is accordingly struck out.
In his
submissions on issue No 3, learned counsel for the appellant made
some posers or critiques which question, in the main, the validity of
Exhibit A which was the confessional statement of the appellant. For
instance, he argued that Exhibit A did not mention the appellant as one of
those who killed the deceased or took part in his murder. Further, it was
alleged that the admissibility of Exhibit A was not challenged at all by
learned counsel in the trial court notwithstanding the complaint of torture
by the appellant. That the confessional statement was found to be untrue as
regards the naming of one Victor Amadi, 2nd accused in the trial
court and that Victor Amadi was nowhere connected with the murder of the
deceased. That the finding of the body of the deceased exactly where the
appellant allegedly stated in Exhibit A that the same was buried alone does
not constitute a corroborating element. The fact that an accused person has
told lies or escaped from the area of crime has never constituted proof
of guilt or
involvement in a crime; and does not
ipso facto relieve the prosecution of the burden of proving the guilt of
the accused beyond reasonable doubt as required by law.
Learned
counsel for the respondent submitted on this issue that the prosecution
sufficiently established the essential element or ingredients of murder
against the appellant as required by the authorities of
Aigbangbee v
State (1988) 1 ACLR 168 at 202; Akpan v the State (1994) 9 NWLR (Pt.368) 349
at 361. Nwachukwu v. state
(2002) 11 NSCOR P.663
at 667. He submitted further that
Exhibit A is a damming direct and positive account of the murder of the
deceased, which is so cogent, coherent and consistent as not to admit of
further corroboration. Exhibit A is enough to convict the appellant without
more.
Exhibit A
which was admitted in evidence and heavily relied upon by the learned trial
judge in sentencing and convicting the appellant was described as a
confessional statement by the accused/appellant. By virtue of
section 27(1) of
the Evidence Act, Cap 112, Laws of the Federation of
Looking at the findings of the
trial court on Exhibit A, one could not
but agree with the learned
trial judge that Exhibit A was a confessional statement made by the
accused/appellant. The trial court said:-
"Perhaps the crucial part of this trial is the
statement of the 1 accused, Exhibit A. As has already
been noted, Exhibit A was admitted in evidence without objection by counsel
for 1st accused.....There is the evidence of PW 2 -which shows
positively that Exhibit A was voluntarily made. The 1st accused
even signed the endorsement in red in Exhibit A to show that Exhibit A was
voluntarily made. If Sgt. Azubuike recorded what the 1st accused
did not say or threatened him with a gun unless he signed Exhibit A; he
should have told PW 2 all these. That he never did. In any event, he had
nothing against PW 2 who never tortured him nor forced him to sign the
endorsement on Exhibit A. Moreover, if Exhibit A was not voluntarily made,
that should have been raised at the time Exhibit A was being admitted in
evidence so that there could be a trial within trial. I do not believe the 1st
accused that Exhibit A was not voluntarily made. On the contrary, I
find as a fact that Exhibit A was voluntarily made by the 1st
accused and therein he showed the role he played in killing the deceased, a
gruesome murder indeed. It is of course settled law that an accused person
can be convicted on his confessional statement alone."
(Pages 93 - 94 of the Printed Record of Appeal).
The court below agreed with the
trial court in its finding as shown above. The court below went further to
establish corroboration of Exhibit A. This
is what it said:
"As
a
matter
of fact the whole case for the prosecution was hinged on Exhibit A, the
confessional statement made by the appellant from which he tried to retract
but failed to achieve that objective. The said statement gave a graphic
account of how the plot was hatched, the reason behind the plot the persons
involved in the plan and how it was finally executed. The statement was
admitted in evidence, without challenge. The PW 2 who gave evidence of the
reaction of the appellant said the appellant in fact went on to tell him
what he was doing in
(See
pages 145 - 146 of the printed Record of Appeal).
There is no
doubt in my mind that Exhibit A was a confession by the appellant of his
guilt. The lower court said it that Exhibit A was quite direct and positive
enough to warrant a conviction. I cannot agree more. In
Olalekan v. state (2001) 18 NWLR (Pt.746)
793 at page 824 - H, this court, per Onu, JSC held that where a
confessional statement is direct, positive and unequivocal as to the
admission of guilt by an accused person, the statement is enough to ground
the conviction of the deceased. See also:
Salawu v. State (1971) NMLR 735.
Thus, even without those corroborative acts, the appellant could perfectly
be convicted solely on his voluntary confessional statement. I am of the
opinion that a positive, direct and voluntary confession by an accused
person is the best evidence a criminal court can conveniently admit to
convict its maker. The admission of a confessional statement which has
satisfied all the requirements of the law to be "Confessional", properly so
called can satisfy the burden of proof required of the prosecution to
discharge in order to secure a conviction. I am satisfied that the two lower
courts have found that the prosecution discharged the onus of proof placed
on it by the law, I can hardly tamper with such concurrent decisions. I
resolve issue No. 3 in favour of the respondent.
Finally, I find no merit in this appeal. I hereby
dismiss it. 1 affirm the decision of the court below which affirmed the
sentence and conviction of the appellant as pronounced by the trial court.
Judgment delivered
by
Aloysius Iyorgyer
Katsina-Alu.
JSC.
I have read in draft the judgment
delivered by my learned brother Muhammad JSC in this appeal. The appeal is
clearly hopelessly unmeritorious. I would also dismiss it and affirm the
decision of the Court below which affirmed the Appellant's conviction and
sentence.
Judgment
delivered by
Ikechi
Francis Ogbuagu.
JSC
This is an
appeal against the decision of the Court of Appeal, Port-Harcourt Division
(hereinafter called "the court below") delivered on 26lh
February, 2004 affirming the conviction and sentence to death of the
Appellant by the
Dissatisfied with the said
decision, the Appellant has appealed to this Court on four (4) Grounds of
Appeal. Without their particulars, they read as follows:
Ground 1
Error
in Law
"The Court of Appeal erred in law when it affirmed the
conviction of the appellant by the trial High Court notwithstanding that
there was
nothing
before that court indicative of the fact that the
Appellant understood the charge read to him in English language devoid of
any technical misconceptions on his part.
Ground 2
Error
in Law
The
Court of Appeal erred in law in affirming the conviction and death sentence
passed on the Appellant by the trial High Court when Exhibit A, his alleged
confessional statement,
was
neither
direct
nor positive
to
warrant
his
said conviction.
Ground 3
Error in Law
The Court of Appeal erred in law by affirming the
conviction of the Appellant by the trial High Court which court
undertook
the function of an interpreter, a function it clearly
lacked the competence to carry out when
it recorded
the evidence of the Appellant in Ibo Language and
proceeded suo
motu to translate the same into English
language, the language of the court, and thereby
violated
the Appellant's right to fair hearing contrary to
Section 33(6)(e) of the Constitution of the
Federal Republic of Nigeria, 1979.
Ground 4
Error in Law
The Court of Appeal erred in law when it held that the
conduct of the Appellant in naming the 2nd accused as an
accomplice, his act of disappearing from the area of crime and that of lying
about the whereabouts of the deceased were corroborative of Exhibit A, the
confessional statement which according to it is direct and positive"
The facts of the case briefly stated, are that the
Appellant, together with one Victor Amadi, were arraigned at the High Court,
Owerri,
"As regards the 1st accused, there is
overwhelming evidence led by the prosecution as set out and considered in
this judgment. I disbelieve the denials of the 1st accused. I am
satisfied that himself along with others conspired and murdered the deceased
Benjamin Iheama".
He convicted the Appellant and
sentenced him to death. Aggrieved by the decision, he appealed to the court
below that dismissed the appeal hence the instant appeal.
Three (3) issues have been formulated in the Appellant's Brief for
determination, namely,
Issue
No. 1
"5.01.
Whether the entire proceedings before the trial court and the Court of
Appeal were not alleged unconstitutional, null and void having been
conducted in violation of:
(a)
Section 215
of the Criminal Procedure Law and
(b)
Section 33(6) (a) and (e) of the 1979
Constitution
(Ground 1)
Issue
No. 2
5.02.
Whether the Court of Appeal was right or justified in affirming the
conviction of the Appellant by the trial court which suo motu undertook the
untenable function of an interpreter, and whether this procedure did not
violate the Appellant's right to fair hearing and render thereby all the
findings and conclusions of guilt, nullities.
(Ground 3).
Issue
No. 3
5.03.
Whether the Court of Appeal was right or justified in its decision that
Exhibit A, the alleged confessional statement, was direct and positive and
that the same together with the surrounding circumstances was sufficient to
sustain the Appellant's conviction for the offence of murder.
(Grounds 2 & 4)".
When this
appeal came up for hearing on 3r May, 2007, the learned counsel
for the parties adopted their respective Briefs. Mr. Wabara learned counsel
for the Appellant, referred to their Issue 3 and submitted that the only
evidence presented by the prosecution, is the alleged confessional statement
of the Appellant - Exhibit "A" and submitted further that it is not direct.
I prefer, dealing with this last issue because, if it succeeds, that may be
the end of the appeal in favour of the Appellant. But before then, let me
also reproduce the two (2) issues of the Respondent for determination,
namely,
"i.
Whether or not there was substantial compliance
by the Trial Court with the requirements of Section
215 of the Criminal Procedure Law and
Section 33(6) (a) and (e) of the
1979 Constitution of the Federal
Republic of Nigeria
with respect to this
case.
ii.
Whether the Court below, erred in affirming the
decision of the Trial Court convicting the Appellant-given the available
Evidence at the Trial".
I wish to
state and this is settled, that a court, can convict an accused person on
the confessional statement made by him provided, it is direct, positive and
unequivocal about his committal of the crime. See the cases of
Yusufu v. The State (1976) 6 S.C. 163 (a),
173
Okegbu .v.
The State (1984) 8 S.C. 65: Ogugu & 4 ors.
v. The State (1990) 2 NWLR
(Pt.134) 539) C.A;
Kim .v. The State
(1992) 4 SCNJ, 81 (a), 110
just to mention but a few.
In other words, the law is clear that a free and voluntary confession of
guilt, whether judicial or extra-judicial, if it is direct and positive and
properly established, is sufficient proof of guilt and it is enough, to
sustain a conviction so long as the court, is satisfied with the truth of
such a confession. See the cases
of
lkpo & Anor v The State (1995) 12 SCNJ.
64 (a), 75 -
per Iguh, JSC, citing
several other cases therein, Igagu
v
The State (1999) 12 SCNJ.
140
and
Hassan v The State (2001} 7 SCNJ.
643; (2001) 7 NSCOR.
107 (5), 109
and many others.
It need be
stressed and this is also firmly established that the retraction of the
confessional statement by an accused person in his evidence on oath during
the trial, is of no moment as it does not adversely affect the situation
once the court is satisfied as to its truth and it can rely solely on the
confessional statement to ground a conviction. There are to many decided
authorities on this, but see the cases of
R .v.
Itule (1961) All NLR 462: Salawu v. The State (1971)
NMLR 249: Onyejekwe .v. The State (1992) 4 SCNJ. 1 @ 8: Bature .v. The State
(1994) 1 SCNJ. 19 (a), 29
citing some other
cases therein; Akpan v.
The State (2001) 7 SCNJ.
567
@
580
and recently,
Solola & anor.
v. The State
(2005) 5 SCNJ. 139(a).
154, (2005) 22 NSCQR 254 (a), 267; (2005) 5 S.C. (Pt1)
135. The weight to be attached to it will also
be considered by the trial court.
It need be
emphasized as this is also settled, that it is desirable, to have outside
the accused person's confession, some corroborative evidence no matter how
slight, if circumstances which make it probable that the confession is true
and correct, as the courts, are not generally disposed, to act on a
confession, without testing the truth thereof.
See Onochie
& Ors v The Republic (1966) NMLR 307 and
R v
Sykes (1913) 8 CAR 233 @
236.
The test would also include, the court considering the
issue of whether the accused person, had the opportunity of committing the
offence charged and whether the confession, was consistent with other facts
which have been ascertained and proved at the trial. See
R v.
Obiaso (1962) I ANLR 65; (1962) 2 SCNLR 402: Ikpase
v
Attorney-General of Bendel State (1981) 9 S.C. 7
and Akpan v The State
(1992) 6 NWLR (Pt. 248) 439 (a).
460: (1992) 7 SCNJ 22
and many others.
Afterwards and this is settled, a confession is an admission made at any
time by a person charged with a crime stating or suggesting, that he
committed the crime. See the case
of
Saidu v. The State (1982) 3 S.C. 41.
It has to be
borne in mind as this is also settled, that the present state of the law, is
that once a confessional statement is admitted in evidence, it becomes part
of the case for the prosecution which the trial Judge, is bound to consider
its probative value. See the cases of
Egboshoname v. The State
(1993) 7 NWLR fPt.306) 383 ;( 1993) 9 SCNJ.
1; Nwansbomu .v.
The State
(1994) 2 NWLR (Pt.327) 380; (1994) 2 SCNJ.
107; (1994)23 - 24 LRCN163
and
Ede Effwne Ekpe
v.
The State (1994) 9 NWLR (Pt.368) 263 (a), 270; (1994)
12 SCNJ. 131. Again, a confessional statement,
it is now firmly established, is the best evidence in our criminal
procedure. It is a statement of admission of guilt by the accused person and
the trial court, must admit it in evidence unless it is contested at the
trial. See the case of Solola & Anor v The
State (supra).
I have gone
this far, because of the insistence and submission of the learned counsel
for the Appellant both in the Brief and in his said oral submission, that
the confession, was not direct. Now, in the first place, as I noted earlier
in this Judgment, when Exhibit "A" was tendered, there was no objection by
the learned defence counsel that the same was not made by the Appellant. In
other words, Exhibit "A", was admitted in evidence, without objection. As I
stated hereinabove, on Exhibit "A" being admitted in evidence, it became
part of the case for the prosecution. The retraction or denial by the
Appellant of making it, was during his evidence in-chief. It is now firmly
settled as regards documentary evidence, that the proper time for taking an
objection, to its admission, is when it is sought to be tendered and not
later. See the case
of Lawson Jack v. The
Shell Petroleum Development Co, of Nig- Ltd, (2002) 7SCNJ. 121 (a), 134-135.
If there is an objection as to its
admissibility at the time it was tendered, then of course, there will be
trial within trial in order to determine its voluntariness.
Indeed, at
page 94 of the Records, the learned trial Judge, referred to the case
of Patrick Ikemson & 2 ors. v. The State (1989) 3 NWLR
(Pt.110) 455 (a), 467-468 (it is also reported
in (1989) 6 SCNJ. 54)
where this Court - per Belgore, JSC (as he then was now
CJN (Rtd.)) observed inter alia, as follows:
"Similarly, Ikechukwu Uzochukwu made a voluntary
statement admitted as Exhibit 5. It was only in the witness box that these
statements were being retracted by the accused persons. Once a statement
complies with the law and rules governing the method for taking it and it is
tendered and not objected to by the defence^ whereby it was admitted as
an exhibit, then it is a good evidence and no amount of Retraction will
vitiate its admission as a voluntary statement. It is a different matter
from a statement objected to ab initio during trial where voluntariness is
challenged; in such a case there will be trial within trial to decide its
voluntariness. Similarly, this is a different matter from where the accused
admits at the time a statement is sought to be tendered that though he
signed the statement, he did so not voluntary but under some undue influence
or duress, in which case the Court would weigh the credibility to be
attached to such
statement".
[the
underlining mine]
The learned
trial Judge, then stated inter alia, as follows:
"It
is my view
the case of Ikemson v. State settles this issue as far as admissibility of
Exhibit A is concerned. It has been shown that Exhibit A was obtained under
the rules for obtaining confessional statement. The 1 accused (i.e.
the Appellant) never raised any protest even
before the
[the
underlining mine]
After referring to the concurring
Judgment of Karibi-Whyte, JSC, at page 476 of the said NWLR, His Lordship,
stated as follows:
"On
the
whole Exhibit A was
property admitted
and cannot be retracted by the 1st
accused.
Exhibit A is a clear admission by the 1st
accused that he along with others murdered the deceased. As has been stated
earlier in this judgment, an accused person can even be convicted on his
confessional statement
alone.
I am also satisfied that the prosecution has proved the
case against the lst accused",
[the
underlining mine]
I agree. This is because, the conviction of the
Appellant, was/is backed by credible evidence proving beyond reasonable
doubt, that he committed the offence for which he is/was charged.
Secondly,
the P.W. 2 - the boss of the Investigating Police Officer - Moses Azubuike,
(who is said
to be now deceased), testified inter alia, as
follows:
"......
On
14/6/97, Sgt. Moses Azubike, LP.O brought before me a suspect, the 1st
accused with his confessional statement.
The statement
was read over to 1st accused by the
LP.O. in
English Language. After it had been read
over to 1s' accused, I
inquired from him
whether the statement was made by him. He confirmed that the statement was
correctly recorded.
He also agreed
before
me that he made the
statement voluntarily without duress threat or promise. I then signed the
statement. The 1st accused
also counter
signed
the statement before
me
.....".
[the
underlining mine]
See page 66 of the Records, at
page 68 thereof, the said statement, was tendered by the witness and the
Records show inter alia, as follows:
"......
The
statement is tendered, no objection by
Mr. Ewulum,
no
objection by Chief Udechukwu, admitted and marked Exhibit A ".
I note that
the said evidence of the P.W.2 was not challenged under cross-examination by
Mr. Ewulum - the learned counsel for the Appellant. The evidence in-chief of
the P.W.I - Timothy O. Iheama, appears at pages 54 to 56; 59 to 65. He was
cross-examined by Mr. Ewulum briefly at pages 63 and part of page 64. The
cross-examination of Udechukwu, Esq., was confined to the case of his client
the 2nd accused person.
The learned trial Judge at page
93 of the Records, stated inter alia, as
follows:
"There is the evidence of P. W.2 which shows positively
that Exhibit A was voluntarily made. The 1st accused (i.e.
Appellant) even signed the endorsement in red on Exhibit A to show that
Exhibit A was voluntarily made. _If Sgt. Azubuike recorded what the 1st
accused did not say or threatened him with a gun unless he signed Exhibit A,
he should have told P.W.2 all these. That he never did. In any event, he had
nothing against P.W.2 who never tortured him nor forced him to sign the
endorsement on Exhibit A moreover, if Exhibit A was not voluntarily made,
that should have been raised at the time Exhibit A was being admitted in
evidence so that there could be a trial within trial.
I did not believe the 1st accused that
Exhibit A was not voluntarily made. On the contrary I find as a fact that
Exhibit A was voluntarily made by the 1st accused and therein he
showed the role he played in killings the deceased, a gruesome murder
indeed".
[the underlining mine]
I agree. The above, is borne out
from the Records.
The court below - per Adeniji,
JCA at page 142 of the Records, stated inter alia, as follows:
"I
need say here that the details as given in the
statement could never have been imagined by anyone who was not an insider
and it contained a declaration that it was read to the Appellant by the
I.P.O. To now say he was forced at gun point to give such detail of a
terrible plot to kill is certainly not true. Apart from that the Appellant
had the opportunity of challenging that statement when he got to the P. W.2
and a golden opportunity of challenging it in court to make its admission in
evidence impossible. Nothing of the sort was done till the statement was
admitted in evidence. To my mind it is too late in the day to now deny the
statement. I tend to agree with the respondent's counsel on that score that
the belated denial of its voluntariness is a mere after thought.
Certainly where a statement has been tendered without objection its later
retraction cannot vitiate the proceedings. See the case of
Michael Okaroh .v. The State (1988) 3 NWLR (Pt.81)
(sic) it is
also reported in
(1990) 1 SCNJ. 124)
where it was pointed out in ratio 1 that:
"The appropriate point to raise the involuntariness of a confessional
statement is when it is about to be tendered in evidence especially where,
as in this case, the accused person is represented by counsel,
and it is assumed he ought to know what to do at each stage of the
proceeding. Obidiozo
v The State (1987) NWLR (Pt. 67) page 748
followed", (it
is also reported - (1987) 11-12 SCNJ. 103).
[the
underlining mine]
It held that the conviction of the Appellant based on Exhibit 'A', was
properly considered from whatever angle. I agree. In effect, apart from
Exhibit "A" the admission of which, was not challenged when it was tendered,
on the merits, there are also overwhelming evidence which sufficiently and
completely, corroborated Exhibit A.
Let me touch briefly on the said
test on the truth of the statement by the court before acting on it. The
court below at pages 145 to 146 of the Records had this to say, inter alia,
as follows:
"
As
a matter of fact the whole case for the prosecution was hinged on Exhibit A,
the confessional statement made by the Appellant from which he tried to
retract but failed to achieve that objective. The said statement gave a
graphic account of how the plot was hatched, the reason behind the plot, the
persons involved in the plan and how it was finally executed. That
statement was admitted in evidence without challenge. The P. W.2 who gave
evidence of the reaction of the Appellant said the Appellant in fact went on
to tell him what he was doing in
[the
underlining mine]
I cannot
fault the above. This is because, among other evidence or facts in the
Records, the said confession of the Appellant, was/is consistent with other
facts which had been ascertained and proved at the trial. See the cases of
R .v. Obiaso
(supra);
King
v.
King 14 WACA 30 and
Otufale v.
The State
(1968)
NMLR 261.
My answer to issue No. 3 of the Appellant is
definitely in the affirmative/positive. This indeed and in fact, takes
complete care of this appeal that my consideration of issues Nos. 1 and 2 of
the Appellant, will amount in my respectful view, to an academic exercise
and the courts, are not permitted to undertake or go into such exercise.
However, if I must, I adopt as mine, the discussions in respect thereof, in
the said lead Judgment.
Finally, I
note that there are
concurrent
findings of fact by the two lower courts and the
attitude of this Court, in such circumstances, is not to interfere since,
they are not erroneous or perverse. See the case
of Nwansbomu .v.
The State (supra) citing
the cases of
Chinwendu .v.
Mbamalu (1980) 3-4
S.C.
31 @
53:
Ezenwanti .v.
Onwordi
(1986) 4 NWLR
(Pt.33) 27: and
Alade .v.
Alemuloke & 2 ors.
(1988)
1 NWLR (Pt.69)
207:
(1988) 2 SCNJ, 1.
See also the case
of
Ibeh
v. The State
(1997)
1 SCNJ.
256
citing other cases therein.
It is from
the foregoing and the fuller lead Judgment of my learned brother, Muhammad,
JSC, which I had the advantage of reading before now, that I find this
appeal to be hopelessly unmeritorious. 1 too, dismiss it and affirm the
decision of the court below affirming the Judgment of the trial court. The
Appellant is overdue for hanging by the neck.
Judgment delivered by
Francis Fedode Tabai.
JSC
I had a
preview of the leading judgment prepared by my learned brother I. T.
Muhammad JSC and 1 agree that the appeal lacks merit. Exhibit A, the
confessional statement of the Appellant was admitted without objection. It
contains a graphic account of how the plot was hatched, the reasons behind
the plot, the persons involved in the plot and how it was implemented. The
statement, without more, was sufficient to convict the appellant for the
charge. Besides, it was materially corroborated
by other pieces of evidence. The body of the
victim of the offence was found where the appellant said it was buried. In the event, I entirely agree that there is no merit in the appeal which is accordingly also dismissed by me.
Judgment delivered by
Christopher
Mitchel Chukwuma-Eneh. JSC
I have before
now had a preview of the judgment prepared by my learned brother Muhammad
JSC in this matter.
He has treated all the issues raised for determination in the matter
satisfactorily. I have nothing to add but to agree with him that there is no
merit whatsoever in the appeal. It should be dismissed. I dismiss it and
affirm the judgment of the trial Court. I abide by the orders in the lead
judgment.
Counsel
|