IN THE SUPREME COURT
Holden at Abuja
Friday, 02 June 2017
Suit Number; SC. 301/2012
Between
BABATUNDE ADELANI . Appellant
And
THE STATE . Respondent
JUDGMENT
(Delivered by Olabode Rhodes-Vivour, JSC)
This is an appeal from the judgment of the Court of Appeal, Ibadan Division, in which the judgment of an Ilaro High Court on appeal was affirmed.
The appellant and two others were arraigned before an Ilaro High Court on the following counts.
COUNT 1
STATEMENT OF DEFENCE
CONSPIRACY to commit armed robbery contrary to section 6 (b) of the Robbery and Firearms (Special Provisions) Act (Cap.R11), laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OKIKI FAKEYE (M) IDOWU OLOJEDE (M) BABATUNDE ADELANI (M) and others now at large on or about 15 of April, 2003 at Agbonselu quarters Ayetoro in the Ilare Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY contrary to section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act (Cap.R11), laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OKIKI FAKEYE (M) IDOWU OLOJEDE (M) BABATUNDE ADELANI (M) and others now at large on or about 15 of April, 2003 at Agbonselu quarters Ayetoro in the Ilaro Judicial Division while armed with offensive weapons to wit: guns, cutlasses and axe robbed one Bamidele Ogunbiyi (M) of one video Cassette Recorder, Rechargeable lantern, video cassette, One Nokia Mobile Phone, one travel bag, wrist watches some clothes, a sum of N32,000 (thirty-two thousand Naira) and CEA 50,000 cash.
COUNT III
STATEMENT OF OFFENCE
ARMED ROBBERY contrary to section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act (CapR11), laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OKIKI FAKEYE (M) IDOWU OLOJEDE (M) BABATUNDE ADELANI (M) and others now at large on or about 15 of April, 2005 at Agbonselu quarters Ayetoro in the Ilaro Judicial Division while armed with offensive weapons to wit: guns, cutlasses and axe robbed one Rasidatu Ogunbiyi of Jewelry and Wrist Watches.
Trial Commenced on 11 October 2005 with the charge read and explained to the three accused persons. The appellant was the 3rd accused person. All of them pleaded not guilty. The respondent called eight witnesses to prove its case, and on 17 June 2008 the learned trial judge fed up with too many adjournments granted at the instance) of the respondent to produce witnesses in court, Closed the respondents case.
The appellant gave evidence on 17 June 2008. Twenty~ three documents were admitted as exhibits.
The learned trial judge found the three accused persons guilty of the offences of conspiracy and armed robbery and sentenced them to death by hanging.
Dissatisfied with the judgment of the trial court the appellant filed an appeal. Affirming the judgment of the trial court the Court of Appeal said:
..............from the evidence led at the trial, the respondent was able to prove beyond reasonable doubt the essential ingredients of the offence of armed robbery and conspiracy to commit armed robbery.
In the light of all I have said, I hold that this appeal is devoid of merit.
It is accordingly dismissed.
This appeal is against that judgment. In accordance with Rules of this court briefs were filed and exchanged by counsel.
Learned counsel for the appellant M. Adetubi Esq, filed an amended appellants brief and a Reply on points of law on 10 November 2016 and 28 February 2017 respectively.
Learned counsel for the respondent L.A.O. Nylander Esq filed an amended respondents brief on 5 December 2016.
Learned counsel for the appellant formulated two issues for determination from his eight grounds of appeal.
ISSUE 1
Whether the learned trial judge of the court of first instance was justified in law to have allowed exhibit N to be tendered and admitted through the appellant and were the Honourable courts below justifiable in law and equity to have acted and relied on exhibit N in the entire circumstances of this case and arrived at the conclusion that the appellant was guilty as charged for the two offences of conspiracy to commit armed robbery and armed robbery and if the answers are in the negative, would it not be proper for this Honourable court to expunge exhibit N from the record.
ISSUE 2
Taking into consideration the defence put up by the appellant could it be reasonably contended that the prosecution adduced sufficient evidence to fix the accused at the scene of the crime even if the doctrine of recent possession is invoked against the appellant such that his concurrent conviction and sentence ought not to be disturbed by this Honourable court.
On his part, learned counsel for the respondent formulated three issues for determination.
ISSUE 1
Whether exhibit N was properly tendered and admitted through the appellant, and rightly acted and relied upon by the trial court and the Court of
Appeal as one of the grounds for convicting the appellant of the offences charged:
ISSUE 2
Whether the prosecution adduced sufficient evidence to fix the accused at the scene of the crime, and
ISSUE 3
Whether the prosecution proved beyond reasonable doubt the offences as charged against the appellant to warrant his conviction.
After examining the issues formulated by counsel, I am satisfied that issue I formulated by both sides ask the same question. That is, whether the trial court was right to admit exhibit N and justified to act on it.
The issue as framed by the appellant is unnecessarily too long, winding and rather prolix.
A similar issue framed by the respondent is straight to the point. It is to be preferred.
Issues 2 and 3 of the respondent are easily subsumed in the appellants issue 9. So, for this appeal the respondents issue 1 and the appellants issue 2 shall be considered.
At the hearing of the appeal on 9 March 2017 learned counsel for the appellant, Mr. M. Adetubi adopted the appellants amended brief and reply brief filed on 10 October 2016, and 28 Februaru 2017 respeCtively and urged this court to allow the appeal.
Mr. L. A. O. Nylander, Learned counsel for the respondent adopted the amended respondents brief filed on 5 December 2010 and urged this court to dismiss the appeal.
The facts of this case are not the subject of serious argument. On 15 April, 2005 between the hours of 1 am. to 2am. the appellant and five others armed with guns, cutlasses, invaded the home of Bamidele Ogunbiyi, PW1 and Rasheedat Ogunbiyi PW2, the wife of PW1. Their home is at Agbonsele Quarters, Ayetoro in Ogun State. PW1 was able to convince the armed robbers that he did not have any money at home, but that he had some money with one Abiodun Otunde, PW5 who lived a few doors away. PW1 then led the armed robbers to the home of PW3. PW3 immediately handed over the sum of N32,000 and CPA 50,000 to the armed robbers after PW1 asked him to do so. The armed robbers took PW1 hack to his house, locked him up in his toilet, and ransacked his house and his wife apartment (i.e. PW2). They fled, taken with them, wrist watches, handsets, cloths, rechargeable lamps, video cassette player, and trinkets. After the armed robbers made their get away from the home of PW1 and PW2, PW1 PW3 and PW4, (PW3 is the man who lives a few doors away from PW1, while PW4 is a Police Sergent who lives in the same house with PW3) rushed to Ayetoro Motor Park. They reported the armed robbery to commercial drivers that were at the park and informed them to be on the lookout for armed robbers.
Thereafter they reported the armed robbery at Ayetoro Police Station. A Policeman was directed to accompany them to the Police check point at Ijale Papa on Abeokuta Road. The Policemen at the checkpoint were informed of the armed robbery. PW l, PW3 and PW4 and the Policemen were at the checkpoint between the hours of 4am-5am when a Toyota starlet car with six men inside was ordered to stop. All of them in the car disembarked and were ordered to lie down flat. Four of them took to their heels, but the 2nd and 3rd accused persons were not lucky. They were arrested and taken to the Police station. The 1st accused person was later arrested at lta Oshin garage in Abeokuta. PW1 and PW2s properties were found in the boot of the car. The appellant (i.e. the 3rd accused person) made two statements, exhibits M and N.
Within one month after the armed robbery the Police conducted an identification Parade, where the appellant was positively identified by PW1.
For the defence, the appellant Set up an alibi to the effect that on 14 April, 2003 he was at ljoun where he was working as an electrician for one Pastor Ashore, and that he slept on site. He further said that on 15 April, 2005 at 5.50 am the younger brother of Pastor Ashore dropped him at Ayetoro so that he could get a vehicle to return to Lagos. He claimed to have boarded the Toyota vehicle at the garage as one of the passengers. The vehicle was stopped at the Check point and he was arrested. He denied conspiring with anyone to commit armed robbery. He identified exhibit M as his statement after it was read to him. He denied making exhibit N.
On these facts the appellant and two others were charged with the offences of conspiracy and armed robbery before an Ilaro High Court. The three of them were found guilty and sentenced to death. The judgment of the trial court was affirmed an appeal. This is the 3rd accused persons appeal to this court.
ISSUE 1.
Whether exhibit N was properly tendered and admitted through the appellant, and rightly acted and relied upon by trial court and the Court of Appeal as one of grounds for convicting the appellant of the offence charged.
Learned counsel for the appellant observed that exhibit N is an English translated version of the statement of the appellant given in Yoruba. He further observed that the appellant denied making it, but the prosecution tendered the statement through him unchallenged. He submitted that exhibit N is inadmissible evidence since the interpreter was never called to give evidence. Reliance was placed on Ojo v Gharoro (2006) 1 NWLR (Pt. 987) p.173 Archibong v State (2006) 14 NWLR (Pt.1000) p.349 FRN V Usman (2012) 8 NWLR (Pt. 1310) p.141
Concluding, he submitted that the admission of exhibit N amount to wrongful admission of evidence and it ought to be reversed on appeal, contending that if left unreversed grave miscarriage of justice would have occurred.
Learned counsel for the respondent observed that exhibit N was tendered through the appellant during the appellants cross-examination, and there was no objection by the appellant, or his counsel. He argued that exhibit N is a voluntary confession made by the appellant and both courts below were right to accept it in evidence as valid evidence. Reliance was placed on FRN v Iweka (2013) 3 NWLR (Pt.1341) p. 285.
Learned counsel observed that the appellant did not contest the tendering of exhibit M through him without the interpreter being called to identify same, contending that this was because exhibit N was more damaging to his defence, it being a confessional statement.
In conclusion learned counsel submitted that exhibit N was properly tendered and admitted through the appellant and rightly acted and relied upon by the trial court and Court of Appeal as one of the grounds for convicting the appellant.
First of all it is the duty of this court at this stage to decide if the appellant understands the English language. Once this is resolved the issue as to whether exhibit N was properly tendered would easily be laid to rest.
The Charge was read and explained to the appellant (3rd accused person) in Yoruba language. See page 31 of the Record of Appeal.
It is the case for the prosecution that the appellant wrote two statements exhibits M and N, and according to the prosecution exhibit N is a confessional statement.
I shall examine exhibit M first.
Exhibit M is written in English and at the end of it, it reads:
Interpreted by PC Rasheed Ashimi:
The thumb impression of the appellant is visible on the document. Further down it reads:
This statement was taken in the English language and read over and translated to the accused in English language in my presence and hearing...Recorded by PC Rasheed Ashimi.
Exhibit N is also written in English and at the end it reads:
Interpreted - (the document is silent on who the Interpreter is). The appellant affixed his thumb impression. Finally at the end of the statement it reads:
This statement was taken in the English language and read over and translated to the accused in English language in the presence and hearing
.. Recorded by Detective Rasheed.
Both statements are dated 15 April 2013.
I now turn to the court proceedings of 20 March 2006. It was on that day that exhibit M was tendered and admitted in evidence. (see page 50 of the Record of Appeal). PW6 is Inspect Olusegun Olusade. On exhibit M, this is what he had to say:
.the accused was cautioned in English language, I interpreted it to him in Yoruba language. He volunteered a statement in Yoruba language which I interpreted to the IPO in English Language. The I.P.O. recorded same in English language. Read it over to the accused in English language and I interpreted it to the accused in Yoruba language. He agreed that it was correct before he thumb printed it, .
It becomes Clear after examining all that I have been saying that exhibit M and N were not written by the appellant but by Det. Rasheed in English and translated to the appellant. Furthermore the charge was read and explained to the appellant in the Yoruba language. It is conclusive to my mind that there is nothing in the Record of Appeal to dispute the fact that the appellant does not speak or write English. I am in the Circumstances satisfied that the appellant does not understand English language. I am now to decide if exhibit N was properly tendered. Extracts from the Record of Proceedings (see page 70 of the Record of Appeal) reveals how exhibit N was tendered. It reads:
Appellant I cannot identify the second statement unless it is read to me.
Court - counsel seeks to tender it as an exhibit; after it was read to witness. Witness denied making the statement saying at that time he has been shot.
Appellants counsel I have no objection.
Court Statement of the 3rd accused also dated 15 April 2003 is tendered and admitted as exhibit N.
Appellant I also made a statement at Eleweran. I cannot say if this statement is that which I made at Eleweran.
Court The statement was read to the accused person.
Appellant I did not volunteer the statement.
Rather, I was tortured.
When the statement of an accused person, usually a confessional statement is to be tendered, there is invariably always an objection by the defence. The usual grounds for objection are:
1. The statement was not voluntary in that it was beaten out of him. That is to say he was forced or induced to make it.
2. The accused person did not make the statement.
3. The accused person made his statement in vernacular, and neither is the statement produced or the interpreter in court.
It is well settled that where an accused person objects to the tendering of his confessional statement on the ground that it was not voluntary, the issue is the admissibility in evidence of the confession. In such a situation a mini trial must be held to determine whether or not the confession was voluntary. If at the end of the mini trial the court finds that the confession was voluntary it is admitted in evidence as an exhibit. It on the other hand it is found that the confession was not voluntary, it would not be admitted in evidence.
Where the accused person denies making the statement, the question whether he made the statement or not is answered by the learned trial Judge. Such a statement is admitted as voluntariness is not in issue.
It is not longer in doubt that the appellant made or dictated his statement in Yoruba and Detective Rasheed recorded the statement in English.
In FRN v Usman (2012) 8 NWLR (Pt. 1301) p.141
I explained a similar situation where the statement of an accused person is given vernacular and how such a statement is tendered as admissible evidence. I said that:
The Police Officer directed to obtain a statement from the accused person may not understand the language spoken by the accused person, and so the services of an interpreter is needed. The interpreter acts as an interpreter between the police officer and the accused person. The interpreter understands the language spoken by the accused person and the English language. He speaks to the accused person in the accused persons local dialect and tells the Police officer in English exactly what the accused person said. The Police Officer records it in English and that is the statement of the accused person. Usually the statement is recorded in the local dialect with English translation and both documents are admissible in evidence as the statement of the accused person. Before these documents are admissible in evidence the police officer who recorded the statement and the interpreter must testify in court. This is vital testimony. In the court the interpreter is expected to tell the court the questions he asked the accused person on behalf of the police officer and the response given by the accused person. It is only when this is properly done that it can be said that the truth of the statement has been established. The court would have no difficulty concluding that the statement is a correct reproduction of what the accused person told the interpreter. When the purpose for a statement is to establish the truth of its contents, and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in court. The statement is hearsay and inadmissible if the interpreter does not testify in court.
My lords, for exhibit N to be admissible under the provisions of section 91 l (a) and (b) of the Evidence Act the exhibit must be tendered through the interpreter and, or the person who recorded the statement. That is to say it must be tendered by a person who can give direct oral evidence of the contents of the document.
Detective Rasheed is the interpreter and recorder of exhibit N. It was he who wrote down what he claims the appellant told him. It is only he that can give direct oral evidence on exhibit N.
Since Detective Rasheed was not called to give evidence.
Exhibit N is documentary hearsay and inadmissible. No probative value can be attached to exhibit N.
It is the duty of counsel in the trial court to object to inadmissible evidence but where the court finds that inadmissible evidence has been admitted it is the duty of the court when it delivers judgment to treat such evidence as if it was not admitted. If inadmissible evidence escapes the scrutiny of the trial court the Court of Appeal must reject such evidence and decide the case on legal evidence.
Exhibit N is inadmissible evidence and it is hereby rejected. See Alhassan & anor v Ishaku & 2 ors (2016) 1-3 SC (Pt.II) p.21 Elemide V Obawunmi (1964) NSCC p.148
Finally, I must observe that in a criminal case such a statement would be treated as inadmissible as I have done if the officer to whom it was made was not called as a witness. Such a document/statement is inadmissible for non-compliance with the law. But in a civil case formal
proof of such a document/statement can be waived.
Exhibit N was not properly tendered and admitted in evidence, and so the courts below were wrong to rely on it as one of the grounds for convicting the appellant of the offences charged.
Taking into consideration the defence put up by the appellant could it be reasonably contended that the prosecution adduced sufficient evidence to fix the accused at the scene of the crime even if the doctrine of recent possession is invoked against the appellant such that his concurrent conviction and sentence ought not to be disturbed by this Honourable court.
It is now the duty of this court to determine if there was sufficient evidence to fix the appellant at the scene of the crime.
In that regard I shall examine the following.
1. Eye witness evidence.
2. The conduct of Identification Parade.
3. The Doctrine of Recent Possession.
4. The defence of alibi.
The appellant and two others were charged with conspiracy to commit armed robbery and armed robbery contrary to section 6 (b) and 1(2) (a) of the Robbery and Firearms (Special Provisions Act).
The prosecution would succeed in proving the offence/s of armed robbery if it establishes to the satisfaction of the court, that is if it is able to prove beyond reasonable doubt that:
(a) there was a robbery;
(b) it was carried out with the use of offensive weapons; and
(c) the accused person participated in the robbery.
See
Qgudo v State (2011) 12 SC (Pt.1) P.71
Eke v State (2011) 1-2 SC (Pt. II) p.219
John & anor v State (2011) 12 SC (Pt. I) p.130
Proof beyond reasonable doubt is the standard of proof required where commission of crime is in issue. See section 135 (l) of the Evidence Act.
Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See
Ochiba v State (2011) 12 SC (Pt. iv) p.79.
After examining the four points alluded to in this issue, this court would be in a better position to see if the charge/s were proved beyond reasonable doubt or whether the appellant was entitled to an acquittal.
Learned counsel for the appellant argued that the failure of the police to investigate the alibi and to call the driver of the Toyota Starlet car as a witness is fatal to the prosecutions case. He further argued that the appellant successfully shifted the onus of disproving his alibi on the prosecution and the prosecution failed woefully. Relying on Archibong v State (2006) 14 NWLR (Pt. 1000) p.349. He submitted that if the alibi of the appellant is tested against the doctrine of recent possession, the alibi creates a doubt which ought to be resolved in favour of the appellant. He argued further that the learned trial judge invoked the doctrine of recent possession in order to disbelieve the alibi of the appellant.
Learned counsel observed that it was after the stolen items were found in the boot of the Toyota Starlet car that PW1 recognized all the armed robbers including the driver. He reasoned that since his stolen items were found in the car, the people in the car are the people that robbed him. He submitted that the identification of the appellant was an aided identification and such an identification is not good. Reliance was placed on
Bozin v State (1985 2 NWLR (Pt.8) p.465.
Adisa v State (1991) 1 NWLR (Pt.168) p.490
He urged this court to reject all subsequent evidence of identification against the appellant because same was prompted by the finding of stolen items in the car.
On the doctrine of recent possession, learned counsel observed that it cannot be successfully invoked since the prosecution was unable to link each of the accused persons with the stolen items. Reference was made to
Lori & anor v State (1980) NSCC p.269
Ahmed v State (2001) 18 NWLR (Pt. 746) p.622.
Dismissing the identific