CORAM

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PARTIES

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BA’A GONI ABDUL

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, FAIR HEARING, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES.

 

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SUMMARY OF FACTS

The Appellant was charge with the offence of rape upon a complaint made by one Hauwa Adam Abdullahi who accused the Appellant of raping her 10years old daughter. He was thereafter arraigned before the Borno State High Court, and charged with the Offence of Rape punishable under Section 283 of the Penal Code Law, Cap 102 Laws of Borno State, 1994. He pleaded not guilty to the charge and the case proceeded to trial. At the close of evidence and address of Counsel, the trial court delivered its judgment wherein it convicted the Appellant for the offence of rape as charged and sentenced him to a term of 15 years imprisonment, in addition to a fine of N20, 000.00. In default of payment of the fine, the Appellant was sentenced to serve an additional term of one-year imprisonment. The sentences are to run concurrently. Dissatisfied with the decision of the Trial court, the Appellant has appeal to the Court of Appeal.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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1.Whether the trial Judge was right in convicting and sentencing the Appellant to 15 years imprisonment and to pay a fine of Twenty Thousand Naira (N20, 000.000), or go to jail for one year, while relying on the evidence of PW4 who failed to record the confessional statement of the Appellant, Exhibit A, in the language that he speaks or understands, as required by law.

2. Whether or not, in view of the entire circumstances of the case and the evidence before the lower Court, the Appellant was denied of his constitutional right to fair hearing and fair trial.

 

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RATIONES DECIDENDI

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CONFESSIONAL STATEMENT- CONDITION FOR THE ADMISSIBILITY OF AN ACCUSED PERSON’S STATEMENT TRANSLATED TO ENGLISH BY ANOTHER PERSON

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“It is indeed the law that an accused person’s statement should, as much as possible, be taken down in the exact words of the accused person. Where the statement is thereafter translated into English by another person, the interpreter must be called as a witness in order for the statement in English to be admissible in evidence. Where that interpreter is not called, the statement in English will be regarded as hearsay evidence and will therefore be inadmissible – Eyop V State (2018) 6 NWLR (Pt. 1615) 273 (SC) per Sanusi, JSC.

In Olanipekun V State (2016) LPELR-40440(SC) 8, B-D, Aka’ahs, JSC expressed the position of the case law as follows:

“Statements should be, wherever practicable, recorded in the language in which they are made. This is a practical wisdom directed to avoid technical arguments, which could be raised. It is not an invariable practice but one to ensure the correctness and accuracy of the statements made by the accused persons. See Olalekan V State (2001) 18 NWLR (Pt. 746) 793.”

–PER J. H. SANKEY, J.C.A

 

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CONFESSIONAL STATEMENT- VITAL CONSIDERATION OF A JUDGE IN ADMITTING CONFESSIONAL STATEMENT

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“The vital consideration that should engage the mind of a trial Judge is the relevancy of the confession. A confession is relevant when it proves the fact that constitutes one of, or all, the elements of the crime to be proved, and/or identifies the person who committed the offence. If the confession is relevant and is free and voluntary, it is admissible in evidence and once admitted, the weight to be attached depends on its probative value and pure truth content. See Section 29 of the Evidence Act, 2011; Igbinovia V State (1981) LPELR-1446(SC) 17, B-D, per Obaseki, JSC.” PER. J. H. SANKEY, J.C.A

 

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CONFESSIONAL STATEMENT- POSITION OF THE LAW WHEN AN INTERPRETER RECORDS A CONFESSIONAL STATEMENT

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“I am fortified in this finding by the holding of the Supreme Court on similar facts in the case of Olalekan V State (2001) LPELR-2561(SC) 4, 50-51, F-A, where Onu, JSC held as follows:

“This Court has held times without number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it. See Queen V Baba Haske (1961) 1 All NLR 330 at 333.” (Emphasis supplied)

At page 37, A-C of the same Report, Karibi-Whyte, JSC also stated as follows:

“The general proposition is well settled that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down.”

Again, at pages 55-57 of the same Report, Uwaifo, JSC made his findings in extensio as follows:

“I have read the reasons given by my learned brother Ogundare, JSC for dismissing this appeal on 20 September, 2001. I wish however, to express my views briefly on whether Exhibit A was properly admitted at the trial. Sgt Linus Patricks (PW6) was the officer who recorded the statement of the appellant. The appellant spoke in Yoruba language and PW6, acting through an interpreter, Aremu Adeosun (PE3), recorded the statement in English language. That was how Exhibit A, the said statement, came into existence. Now, PW3 testified that he interpreted between PW6 and the Appellant. Thereafter, he read the statement as written in English language by interpreting it to the Appellant who agreed that it was correctly recorded. He said the Appellant thumb-printed Exhibit A and he, the interpreter, signed it, as did PW6, the recorder of the statement… At the trial Court, no objection was taken to the voluntariness of the statement, or any other objection at all…

The objection now taken in this Court is that the statement (Exhibit A) is hearsay evidence… With the greatest respect, what I understand the authorities in this country to establish is that where an interpreter has been used in taking down a statement, both the person who wrote down the statement and the person who interpreted it must be called as witnesses. In the case of the person who recorded the statement, he would, of course, state in evidence the procedure he took in the process. That was done in the present case. As for the person who interpreted, he would need to be presented as a witness to testify that he interpreted. It is then open to the defence to cross-examine them… I am therefore satisfied that the prosecution called the necessary witnesses who gave sufficient evidence in the present case to make Exhibit A admissible… The objection that it was hearsay is not well founded and I overrule it.”(Emphasis supplied)

See also Baba Haske V The Queen (1961) LPELR-25081(SC) 5-6, E-A, per Unsworth, JSC.

PER. J. H. SANKEY, J.C.A

 

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CONFESSIONAL STATEMENT- PRINCIPLES TO BE CONSIDERED IN DETERMINING WHETHER OR NOT TO BELIEVE AND ACT ON A RETRACTED CONFESSIONAL STATEMENT

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“Additionally, on the retraction of the contents of Exhibit A at the trial by the Appellant as DW1, the law is settled that a retraction or denial of a confessional statement does not affect its admissibility. Thus, the mere fact that a confessional statement is challenged on the ground that the accused person did not make the statement, does not render it inadmissible in evidence. In such a situation, the application of the following principles should be considered in determining whether or not to believe and act on a confession which an accused person has resiled from:

a).Whether there is anything outside the confession, which may vindicate its veracity; whether it is corroborated in any way;

b).Whether its contents, if tested could be true;

c).Whether the defendant had the opportunity of committing the alleged offence; or

d).Whether the confession is possible and the consistency of the said confession with other facts that have been established.

When a confession is subsequently retracted, the effect is that it throws the believability of the narration in the confession into doubt. This does not however make the retracted confession inadmissible. Instead, the six-way test is for the purpose of attaching weight or credibility to the retracted confession.

As stated by the Supreme Court in Yahaya V State (supra), the rationale for the test is that the case consists of two halves, and each half is insufficient to justify a conviction on its own. In other words, it would be unsatisfactory to convict on the available evidence if it wasn’t buttressed by the confession; and it would have probably been unsatisfactory if the conviction had rested on the confession alone without circumstances which make it probable that the confession was true.” PER J. H. SANKEY, J.C.A

 

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CONFESSIONAL STATEMENT – CONFESSIONAL STATEMENT IS THE BEST EVIDENCE

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“The law is settled that a confessional statement is often the best evidence of the commission of a crime for it states, in the accused person’s own words, the role he played and constitutes an acknowledgement of guilt.” PER. J. H. SANKEY, J.C.A

 

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CONFESSIONAL STATEMENT- WHETHER AN UNCORROBORATED CONFESSIONAL STATEMENT CAN GROUND A CONVICTION

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“Furthermore, it is also the law that the confessional statement of an accused person alone is sufficient to ground a conviction. A confession alone, properly proved, is enough to ground a conviction, even without corroboration. Thus, an uncorroborated confessional statement of an accused person can be acted upon, without more. Nonetheless, it is advisable to look for some evidence outside the confessional statement which makes it probable that the confession is true.” PER. J. H. SANKEY, J.C.A

 

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CONFESSIONAL STATEMENT – WHETHER A CONVICTION CAN BE BASED SOLELY ON CONFESSIONAL STATEMENT

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“In the instant case, firstly, the Appellant confessed in his confessional statement to raping the PW2 on the date in question. Secondly, PW2, the victim of the rape, gave explicit testimony of the way and manner the Appellant tricked her into going into an uncompleted building and raping her. She therefore gave credible evidence, which aligned with and affirmed the contents of Exhibit A, and vice versa. The trial Court was therefore right to have acted on the Appellant’s confessional statement to convict him – Isah V State (2012) 16 NWLR (Pt. 1327) 613”. PER J. H. SANKEY, J.C.A

 

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EVIDENCE OF AN UNSWORN CHILD – WHETHER THE EVIDENCE OF AN UNSWORN CHILD CAN GROUND A CONVICTION WITHOUT CORROBORATION

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“Before then however, the learned trial Judge, mindful of the fact that she was a child of 10 years old, conducted an investigation to see whether she could testify in compliance with Section 209 of the Evidence Act which provides as follows:

209. (1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such a child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.

(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.”

See Obi V State (2016) LPELR-40543(CA) 15-18, C-A. PER J. H. SANKEY, J.C.A

 

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FAIR HEARING- DEFINITION OF “FAIR HEARING”

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“The Black’s Law Dictionary, Ninth Edition at page 789, defines the phrase “fair hearing” as: “A judicial or administrative hearing conducted in accordance with due process”. In essence, fair hearing means giving equal opportunity to be heard. A party cannot complain of a breach of the fair hearing principles where he has been given an opportunity to advocate his case equal to that given to the opposing party.” PER J. H. SANKEY, J.C.A

 

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DENIAL OF FAIR HEARING – DUTY OF COURT IN THE DETERMINATION OF A DENIAL OF A PARTY’S RIGHT TO FAIR HEARING

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 “The Supreme Court in the case of Pam V Mohammed (2008) LPELR-2895(SC), 26-27, per Oguntade, JSC, held as follows –

“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its Judgment…

It is wrong and improper to approach the meaning of fair hearing by placing reliance on any a priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a Court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed prerequisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.”

See also Dangote Gen. Textile Products Ltd V Hascon Assocs. Nig. Ltd (2013) LPELR-20665(SC) 21, A-B; INEC V Musa (LPELR-24927(SC) 94, A-B, per Tobi, JSC.” PER. J. H. SANKEY, J.C.A

 

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ALLEGATION OF BIAS – MEANING OF THE WORD ‘BIAS’ IN RELATION TO A COURT OR TRIBUNAL

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“On the allegation of bias made against the learned trial Judge based on the statements highlighted and set out above when making his findings, the meaning of the word ‘bias’ in relation to a Court or Tribunal is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules. The likelihood of bias may be drawn or surmised from many factors such as: corruption, partisanship, personal hostility, friendship, group membership or association and so on, towards or involving a party in a case.” PER J. H. SANKEY, J.C.A

 

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BIAS – DEFINITION OF BIAS

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“The Supreme Court in Egwumi V State (2013) LPELR-20091(SC) 23, A-B per Rhodes-Vivour, JSC defined ‘bias’ as follows:

“Bias means anything which tends or may be regarded as tending to cause a Judge to decide a case otherwise than on the evidence.”

It is my respectful view that to allege that a Judge has taken sides in a case, by way of bias or interest is a very serious allegation” PER J. H. SANKEY, J.C.A

 

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FINDINGS OF COURT- DUTY OF COURT TO EVALUATE ALL EVIDENCE BEFORE IT BEFORE ARRIVING AT ITS FINDINGS.

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“What is important is that the trial Judge, in making his findings as an unbiased umpire, should not pick only evidence which vindicates the case of one party and dump the evidence that is favourable to the other party. Instead, a trial Judge has the duty to place all the evidence on an imaginary scale of justice and see where the pendulum tilts in the measuring process. By our evidential rules, the Judge must give Judgment in favour of the party where the evidence tilts favourably.

The justice of a case and statutory requirements will not be met if the trial Court considers only one side of a case. Adequate consideration must be given to both sides. In discharging this duty the Judge must evaluate all the evidence. It is not the justice of a case if the Judge, without evaluating the evidence, holds that he believes one side and disbelieves the other. Only an evaluation of the evidence will logically lead to his reasons for believing or disbelieving. However, Judges differ in style. Nevertheless, whichever style a Judge uses or adopts, the important thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding.

Daniel Tayar Ent. (Nig) Co. Ltd V Busari (2011) LPELR-923(SC) 49; Azuokwu V Nwokanma (2005) LPELR-690(SC) 13, C-E; Odi V Iyala (2004) LPELR-2213(SC) 22, D-F; Awopejo V State (2001) LPELR-656(SC).

However, even in the event that a trial Judge committed an error in the determination of a matter, is not prima facie evidence of bias. Rather, there must be clear hard evidence on the printed Record of Appeal to back up or prove the allegation of bias.” PER. J. H. SANKEY, J.C.A

 

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APPEAL- WHETHER AN OPINION OF THE COURT CAN BE THE BASIS OF AN APPEAL

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“It must be reiterated that it is not every pronouncement of a Court that should be the basis of an appeal. It is well settled that an opinion expressed by a Court cannot be a valid basis of an appeal. In Adedayo V PDP (2013) 17 NWLR (Pt. 1382) 1, 57, D-E, Onnoghen, JSC held thus:

“In the process of deciding a matter or resolving an issue, the Judge is at liberty to make comments which is usually harmless and made by the way. Such comments or view or opinions are considered in law as obiter dictum or dicta – things said by the way. They do not constitute the decision of the Court which is usually referred to as the ratio decidendi – the reason for the decision.”

See also Stanbic IBTC Plc V LTGC Ltd (2019) 3 NWLR (Pt. 1659) 374, 384, F-G, per Onnoghen, CJN.” PER J. H. SANKEY, J.C.A

 

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CONFESSIONAL STATEMENT – WHETHER A PARTY WHO FAILS TO OBJECT TO THE TENDERING OF A CONFESSIONAL STATEMENT CAN RAISE SAME ON APPEAL

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“The law is well settled that when a confessional statement is tendered without objection by an accused or his counsel, they cannot cry foul on appeal as it is deemed they were in agreement with what was tendered at the trial Court, see the cases of Shurumo v. State(2010) LPELR-3069(SC) and FRN v. Kayode-Beckley (2020)LPELR-50549(CA) neither the appellant nor his counsel objected to pw4 tendering exhibit A at the trial court. The Appellant is retracting the statement, which he did not object to. It has become tactics of accused persons to retract confessional statements when they are faced with the reality of a possible conviction. The law on how to treat a confessional statement and the retraction made has been settled beyond any dispute in our courts. A court can convict solely on a confessional statement even if it is retracted provided there is enough evidence that the statement was made voluntarily by the accused. Even after establishing this, the statement will be passed through a veracity test. See Karimu Sunday vs The State (2018) 1 NWLR (pt 1600) 251; Innocent Asa vs The State (2020) LPELR-49937 (CA)”. PER E. TOBI, J.C.A

 

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MEDICAL REPORT – WHETHER THE ABSENCE OF A MEDICAL REPORT IN A CASE OF RAPE IS FATAL TO THE PROSECUTION’S CASE

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“The absence of a medical report in a case of rape is not fatal to the case of the Prosecution if there are other factors to corroborate the commission of the offence see Usman v. State(2018) LPELR-46568(CA)”. PER E. TOBI, J.C.A

 

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ALLEGATION OF BIAS -IMPLICATION OF AN ALLEGATION OF BIAS BY A JUDICIAL OFFICER

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“The language of bias is indicative of a deliberate action by the judge to look outside the law and the facts to decide a matter. Accusing a judicial officer of bias is to say that the judicial officer is not fit to take over the responsibility of such great honour and a direct affront to the oath of office that he took on the day he was sworn in. In fact, a judge is a representative of God on earth and therefore should imbibe the principle of justice and therefore jealousy guide this divine calling. To be a judicial officer takes more than knowledge of the law and been intelligent but must more requires good character in both the strict and general sense of the word. An appeal on grounds of bias is a challenge on the character, the integrity of the judicial officer. It is a challenge that takes away from him the covering of decency as a judicial officer. I am going into all that to drive home the point that lawyers should be very careful in accusing a judicial officer of bias especially when there are convincing evidence to buttress that. I make bold to say that the time has come for disciplinary action to be taken against lawyers who accuse a court or judge of bias which he could not establish. Once a court has been accused of bias, unfortunately it cannot be taking back and no matter how clean the judicial officer is, there is a dent on his integrity even if it is by one person who earlier held him in high esteem”. PER E. TOBI, J.C.A

 

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BIAS – DEFINITION OF BIAS

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“Bias has been defined as “opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale”. It has been described as “anything which tends or may be regarded as tending to cause a Judge to decide a case otherwise than on evidence”, Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525 at 554, See Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 41 – 42, per Ayoola, JSC; Babarinde v. State (2014) 3 NWLR (Pt. 1395) 568. Thus, bias denotes a tendency of partiality in a judex/adjudicator which prevents him from objective consideration of a controversy before him.” PER E. TOBI, J.C.A

 

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CASES CITED

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Not Availablle

 

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STATUTES REFERRED TO

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1. Evidence Act, 2011

2. Penal Code Law, Cap 102 Laws of Borno State, 1994.

 

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