CORAM

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ITA.G. MBABA (PJ), OFR, Justice Court of Appeal

PATRICIA A. MAHMOUD, Justice Court of Appeal

PETER O. AFFEN, Justice Court of Appeal

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PARTIES

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HASSAN ISA

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

At the lower court, the Appellant and one Ahmed Ibrahim were charged before the lower Court for kidnapping and criminal conspiracy to commit the illegal act of kidnapping, on or about 13th July, 2021 at Garin Alkali Village Ardo-Kola, LGA, Taraba State. They were said to have invaded the house of one Alh. Isa Buba at Garin Alkali Village via Ardo-Kola Local Government Area and kidnapped his two children, Manu Isa and Dare Isa to unknown destination after which they demanded a ransom of Fifty Million Naira, (N50,000,000) which was reduced to Thirty Million Naira (N30,000,000) before they later agreed to collect the sum of Five Hundred Thousand Naira (N500,000.00) only. They were accused of carrying out the said acts along with Jabbo Mohammadu (now deceased) and one Saidu who was at large.

There was contention as to where the statement of the accused was written. Members of the Vigilante made the arrest but none of them was called to give evidence. The accused further accused the police of brutalizing him to agree to the content of the confessional statement. PW1, the investigating Police Officer (IPO), was the sole witness for the Prosecution.

The trial Court discharged Appellant and his co-accused on the Count Two (kidnapping and Abduction), but convicted them, on the count one – Criminal Conspiracy, under Section 97 (1) of the Penal Code.

Aggrieved by the decision, the Appellant filed the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether the trial Court was right to hold that the Prosecution had proved the case beyond reasonable doubt to warrant the conviction and sentence of the Appellant for 6 years imprisonment without option of fine for offence of Criminal Conspiracy under Section 97 (1) of the Penal Code of Taraba State, 1997, which carries only six (6) Months imprisonment?

 

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RATIONES DECIDENDI

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REPLY BRIEF – WHETHER A REPLY BRIEF IS FOR REINFORCING ORIGINAL ARGUMENTS/ IMPROVING ORIGINAL ARGUMENTS

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The Appellant’s Reply Brief on the issue of the quality of evidence of PW1, whether the same was hearsay or not, in the absence of evidence by the alleged victims of the kidnapping, nor by the vigilante men that arrested Appellant, appear to be a reinforcement of the original arguments of the Appellant’s brief, or an improvement of the same. That is not what a Reply Brief is meant to achieve. See IHEKA VS. NJOKU (2017) LPELR – 42002 (CA); UGOCHUKWU VS. OGBONNA & ORS. (2023) LPELR – 60200 (CA); BASINCO MOTORS LTD VS. WOERMANIN-LINE & ANOR (2009) LPELR – 756 (SC); SULEIMAN VS. STATE (2022) LPELR – 57577 (SC). – Per I. G. Mbaba, JCA

 

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EVIDENCE – WHETHER AN EVIDENCE DISCREDITED IN REGARD TO AN OFFENCE CAN BECOME VALID AND RELEVANT IN RESPECT OF A CHARGE OF CRIMINAL CONSPIRACY TO COMMIT THE SAME OFFENCE

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I doubt whether the said discredited evidence of PW1 (in the absence of evidence of the victims of the kidnap or their father, or the men of the vigilante) can become valid and relevant in respect of the charge of Criminal Conspiracy, to commit the same offence, which Appellant had been absolved, especially as the trial Court had disbelieved the alleged confessional statement (Exhibit A), credited to Appellant, relating to the alleged kidnap of Manu Isa and Dare Isa.! The Court cannot disbelieve part of the alleged confessional statement, relating to the kidnap, but go ahead to believe the part that related to conspiracy to kidnap! – Per I. G. Mbaba, JCA

 

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CONFESSIONAL STATEMENTS – CONDUCT OF COURTS WHERE AN ACCUSED DISOWNS A CONFESSIONAL STATEMENT – WHERE THE ACCUSED DOES NOT UNDERSTAND THE ENGLISH LANGUAGE

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Appellant had given detailed account of the torture he was subjected to by PW1 to procure the alleged Exhibit B, and had promptly rejected the document, upon production in Court.  The trial Court was expected to conduct a trial-within-trial, to authenticate the veracity of the questionable Confessional statement.  It did not.  The trial Court was also expected to subject the purported confession to scrutiny, in the light of the obvious defects, thrown up by the evidence of the Appellant in Court (which evidence was not discredited under cross examination, in my view); and in the light of the fact that the evidence, relating to how the confessional statement was recorded/documented, was faulty, especially as it was recorded in English and read to the Appellant and translated, when Appellant spoke only in Hausa Language and took plea in Hausa!

Appellant’s statement could not have been validly recorded in English language, as PW1 claimed, when the Appellant was speaking Hausa Language to the PW1.  His statement should have been taken down in Hausa Language, before translation to English Language. And it should have been read in Hausa language to him!

We considered a similar scenario, like this case, in the case of MOHAMMED MOHAMMED MAGAJI VS. THE STATE: CA/YL/81C/2023, delivered, today, 20th February, 2024, when we, said:

“Apparently, PW1 merely induced or subjected the Appellant to make the alleged statement, which he said was:

“in Hausa Language, and he recorded in English Language (Exhibit A); read over to him… in English Language and translated same to him to his understanding, he understood and signed…

The evidence showed that the accused person spoke in Hausa in Court… one therefore wonders how Appellant came to understand the statement recorded by PW1 in English Language, read over to him (Appellant) in English Language and translated same to him, to his understanding… The Records of Appeal does not carry any Hausa Version of the alleged statement of Appellant!” (See Page 24 thereof) 

See the case of The State Vs Emmanuel (2023) LPELR – 60562 CA, where this Court held: It is the law that, where a defendant does not understand English, his statement must be recorded in the language he understands and later translated into English. See Section 36(6) of the Constitution of the Federal Republic of Nigeria (as amended). The original language in which the statement of the Respondent was volunteered is Hausa language. The Hausa language version of the statement was not tendered in evidence. It is trite law that where a statement is volunteered in a language other than English language and then translated into English language, the two statements must be tendered in evidence in order for the onus of proof beyond reasonable doubt to be discharged. Where, as in the instant case, only the English version of the statement was tendered, it attracts no probative value. See OLANIPEKUN VS. THE STATE (2016) 13 NWLR (PT 1528) 100 at 117 and ADAMU VS. THE STATE (2019) LPELR (46902) 1 at 38-48. In ADAMU VS. STATE (2019) LPELR-46902(SC), his lordship KEKERE-EKUN, JSC at PAGE 12 PARAS. A-F held as follows: “In the instant case, it is argued on behalf of the Appellant, that being illiterate in English Language, for his confessional statement to have been properly before the Court for consideration, both the English and Hausa versions ought to have been tendered. In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36 (6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the Court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in Court. It affords the accused person the opportunity to challenge in Court if the need arises, his statement as originally recorded or its translation. It enables the Court to be satisfied that it is his true statement.  (Per Uwa JCA). – Per I. G. Mbaba, JCA

 

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CONFESSIONAL STATEMENT – THE PROCEDURE TO BE ADOPTED TO ENSURE CREDIBLE RECORDING/PROCUREMENT OF CONFESSIONAL STATEMENTS OF SUSPECTS BY THE POLICE

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It is scandalous, that Appellant’s graphic evidence of how he was tortured by PW1 and his colleagues, to induce and procure a confession was never contested by the prosecution, and the Prosecution did not even consider it important to cross examine on the gory details, thereof.

The recourse of the security agencies, particularly, the Police, to resort to procure confessional statement, as a short cut to attaining conviction, at the expense of diligent investigation of cases, and presentation of facts thereof to Court, remains condemnable, at all times. See the case of Monday Christopher Vs The State (2023) LPELR 61563 CA.

Such flagrant abuse of the process, mischief and violation of the law and the fundamental rights of accused persons, were what informed the provisions of Sections 15(7) and 17(2)(3)(4) and (5) of the Administration of Criminal Justice Act, (ACJA) on the procedure to be adopted to ensure credible recording/procurement of confessional statements of suspects by the Police. And the effect of the said provisions is that, such confessional statements must be recorded in the presence of the Counsel to the suspect or accused person, by means of video/audio visuals. The Administration of Criminal Justice Act was adopted as ACJL of Taraba State in December, 2021, before case herein, but I think the principle still applies.

Of course, PW1’s Exhibit B did not comply with such requirements of the ACJA, to enjoy the respect of the law. See the case of Charles Vs The State of Lagos (2023) LPELR – 60632 SC, where the Supreme Court said:

“…Evidence of a video recording or the presence of a legal practitioner would have been conclusive proof that the confessional statement was obtained voluntarily. It makes it imperative in the circumstances, particularly in cases of armed robbery where a death sentence is the sanction on conviction, that confessional statements should be taken according to the provisions of the law. Even where the prosecution has ignored the provision of the law as sacrosanct as this, the trial judge should have brought it up suo motu. The judge cannot pick and choose which extant law to enforce. These provisions are clearly not outside the realm of what is achievable by the Police and other security agencies. Incidents of recording confessional statements in the absence of a legal practitioner and/or electronic recording is no longer legally permissible. The truthfulness of a confession should be corroborated by independent evidence. In the instant case, the better part of wisdom is to look for any other evidence apart from the confessional statement of the Appellant linking the Appellant to the offence. See NWEZE v. STATE (2017) LPELR-42344(SC) Pg. 32-33 paras. A. As judges, we cannot pretend to be ignorant of the operations of the defunct SARS and its notorious reputation for “extracting” confessional statements from victims in their custody.” Per OGUNWUMIJU, JSC (Pp. 28-29, paras. D-E) – Per I. G. Mbaba, JCA

 

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CONFESSIONAL STATEMENT – CONDITIONS TO BE SATISFIED BY CONFESSIONAL STATEMENTS – WHERE A CONFESSIONAL IS RETRACTED OR DISOWNED BY A PURPORTED MAKER

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Whereas, it is true that a confessional statement, alone, is sufficient to lie a conviction, the conditions to be satisfied by such confessional statements have been restated by this Court and the Apex Court, in multiple decisions. See the case of The State Vs Shonto (2019) LPELR – 4743 SC:

For a confession to form the basis of a conviction, it must be direct, positive and unequivocal as to the commission of the offence by the accused person. It must also contain some or all of the elements of the offence with which the accused person is charged. It must also have been voluntarily made. See: Adeyemi Vs The State (2014) 13 NWLR (Pt. 1423) 132; Gira Vs The State (1996) 4 NWLR (Pt. 443) 375; Bassey Vs The State (2012) 12 NWLR (Pt. 1314) 209.” Per KEKERE-EKUN, JSC (Pp. 41-42, paras. D-A)

See also Afolabi Vs The State (2016) LPELR – 40300 (SC):

“It is however not a general rule that a confession relieves the prosecution of its duty of proving its case beyond reasonable doubt. Therefore, for a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true. See Joseph Okoro Abasi v. The State (1992) NWLR (Pt. 260) 383.” Per OKORO, JSC (P. 11, paras. C-D)

Where a confessional is retracted or disowned by the purported maker, the Courts have identified some measures to test its veracity, whether or not the Court can find basis to use it. See the case of Ogudo Vs State (2011) 18 NWLR (Pt.1278), where the Apex Court said:

in determining the weight to be attached to a confessional statement, retracted or not, the Court must ask itself the following: Is there anything outside the confession which shows that it may be true? – Is it corroborated in anyway? – Are the relevant statements of fact made in it most likely true as far as they can be listed? – Did the accused have an opportunity to commit the offence? – Is the confession possible? – Is the confession consistent with other facts, which have been ascertained and established? In effect, although the Court can convict only on the extra-judicial confessional statement of the accused person, it is desirable to find independent evidence, that is to say, to have some evidence outside the confession, however slight, of circumstances which make it probable that the said confession was true.

See also Issabio Vs The State (2020) Vol. 306 RLCN 1 at 9; Amos Vs The State (2020) LPELR – 49663 CA. See also State Vs Sa’idu (2019) LPELR – 47397 SC, where the Supreme Court held:

Where an accused person resiles from a confessional statement made by him, the statement may still remain voluntary. His conviction upon the said statement will depend on the following conditions. 1. Whether there is anything outside the confession to show that the statement is true, 2. Whether it is corroborated, 3. Whether the statement made in it of fact are true as far as they can be tested. 4. Whether the accused had the opportunity to commit the offence. 5. Whether it is consistent with other facts which have been ascertained and have been proved. See Kareem v Federal Republic of Nigeria (2002) 8 NWLR (pt 770) 664 at 683. I made this point in Charles Kingsley Joe Isong v The State (2016) LPELR -40609 (SC) at page 32-33 paragraphs F – D when I held as follows:- “Let me state clearly that it is settled law that the fact that an accused has retracted a confessional statement does not mean that the Court cannot act upon it. More often than not, it is very usual for an accused person to retract, deny or resile during his trial in the Court from the extra judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him. In such a situation, it behoves the accused to impeach his earlier statement and the Court is to test the veracity of that statement with other facts and circumstance outside the statement in order to see whether they support, confirm or correspond with the said statement. See Hassan v State (2001) 15 NWLR (pt 735) 184, Onwumere v State (1991) 4 NWLR (pt 186) 428, Ubierho v State (2005) 5 NWLR (pt 919) 644.”  – Per I. G. Mbaba, JCA

 

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CONFESSIONAL STATEMENT – CONDUCT OF THE POLICE WHERE THE CONFESSIONAL STATEMENT OF AN ACCUSED IS RECORDED IN VERNACULAR

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By law, when statement of an accused is recorded in vernacular (like Hausa Language) and later translated to English language, the two versions have to be tendered in evidence as exhibits. See again The State Vs Emmanuel (2023) LPELR – 60562 (CA). – Per I. G. Mbaba, JCA

 

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PUNISHMENT – CONDUCT OF COURTS WHERE THE LAW FIXES MANDATORY PUNISHMENT FOR AN OFFENCE

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See The State Vs Wadari (2023) LPELR – 61564 (CA), where we held:

Where the statute fixes mandatory punishment for offence the trial Court has no discretion to reduce or increase the Sentence.

In the case of THE STATE VS WADARI (2023) LPELR 61564 CA, this Court held that, where a statute has fixed mandatory punishment for an offence, the trial Judge has no discretion to reduce or increase the punishment or sentence. – Per I. G. Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Penal Code Laws of Taraba State 1997

3. Taraba State Kidnapping and Abduction Prohibition (Amendment) Law. No.2 of 2019.

4. Evidence Act 2011

5. Administration of Criminal Justice Act, (ACJA)

6. ACJL of Taraba State in December, 2021

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