(2018) LPELR-43787(CA)

Transcription

1 NWEDE v. STATE CITATION: In the Court of Appeal In the Enugu Judicial Division Holden at Enugu ON THURSDAY, 22ND FEBRUARY, 2018 Suit No: CA/E/57C/2016 HELEN MORONKEJI OGUNWUMIJU TOM SHAIBU YAKUBU Before Their Lordships: MISITURA OMODERE BOLAJI-YUSUFF Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal MONDAY NWEDE - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI 1. CONSTITUTIONAL LAW - PRESUMPTION OF INNOCENCE: Whether an accused person is presumed innocent until proven guilty "An accused person is presumed innocent until he is proved guilty because there is no question of an accused person proving his innocence before a law Court in Nigeria."Per OGUNWUMIJU, J.C.A. (P. 9, Para. C) - read in context 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder "In our criminal jurisprudence, the ingredients required to be proved to sustain a charge of murder remain sacrosanct. The prosecution must prove: (a) The death of a person; (b) That the death of that person was caused by the accused person; (c) That the accused person's act which caused the person's death was done with the intention of causing death or grievous bodily harm. SeeAlo v. State (2015) 9 NWLR Pt Pg. 238, Amaremor v. State (2014) 10 NWLR Pt Pg. 1, Njoku v. State (2013) 2 SCNJ 147."Per OGUNWUMIJU, J.C.A. (P. 8, Paras. C-F) - read in context

2 3. CRIMINAL LAW AND PROCEDURE - DUTY OF PROSECUTION: Duty of the prosecution in a criminal trial "The duty of the prosecution is fixed and it is to prove the charge against an accused person beyond reasonable doubt. See Usman v. The State (2010) 6 NWLR Pt Pg. 454, Nkebisi v. The State (2010) 5 NWLR Pt Pg. 471."Per OGUNWUMIJU, J.C.A. (P. 9, Paras. C-D) - read in context 4. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "It is settled law that in the discharge of this burden of proof imposed upon it by law, the prosecution can utilize any or a combination of the following ways of proving the commission of a crime, namely: (i) By evidence of eyewitness otherwise known as direct evidence; (ii) By confessional statement(s); (iii) By circumstantial evidence. See Adeyemo v. State (2015) 4 SC (Pt. II) 112, Musa v. State (2017) 5 NWLR Pt Pg. 43."Per OGUNWUMIJU, J.C.A. (Pp. 9-10, Paras. E-A) - read in context 5. EVIDENCE - CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same "In Dawa v. The State (1980) 8-11 SC 236, the Supreme Court in relying on the English decision in R v Sykes (1913) 18 CR App. Reports and cited in Kanu v. R 14 WACA 30 highlighted six tests for the verification of confessional statements before any evidential weight can be attached to it. Over the years, these tests have been accepted by our superior Courts. The six tests to test the truth of the statement are: 1. Is there anything outside the confession to show that it is true? 2. Is it corroborated? 3. Are the relevant statements made in it of facts, true as far as they can be tested? 4. Was the prisoner one who had the opportunity of committing the offence? 5. Is his confession possible? 6. Is it consistent with other facts which have been ascertained and have been proved? See Musa v. State (2017) 5 NWLR Pt Pg. 43, Mbenu v. State (1988) 3 NWLR Pt. 84 Pg. 615 and Stephen V. State (1986) 5 NWLR Pt. 46 Pg. 978.?It is desirable to have outside the accused person's confession, some corroborative evidence no matter how slight, of 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."per OGUNWUMIJU, J.C.A. (Pp , Paras. A-A) - read in context 6. EVIDENCE - CONFESSIONAL STATEMENT: Meaning of confessional statement and when it is admissible "One of the ways to prove a crime is through the voluntary confessional statement of the accused. A confessional statement is defined in Section 28 of the Evidence Act, 2011 as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. In Akpan v State (1992) 6 NWLR Pt.248 Pg. 439, it was held per Karibi-Whyte JSC stated as follows:- "A confessional statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting that he committed the crime charged."per OGUNWUMIJU, J.C.A. (P. 10, Paras. A-D) - read in context 7. EVIDENCE - CONFESSIONAL STATEMENT: Whether a confessional statement becomes inadmissible because an accused person retracted or denied making it "In R. v John Agagariga Itule (1961) 1 ANLR 402 (FSC) Brett, Ag CJF held that: "A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R v. Sapele & Anor (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement."per OGUNWUMIJU, J.C.A. (Pp , Paras. D-A) - read in context

3 8. EVIDENCE - CONFESSIONAL STATEMENT: Whether a confessional statement recorded in a language different from that of the maker or made through an interpreter is inadmissible "Counsel for the Appellant submitted that the failure of the prosecution to call as witnesses, the interpreters of the extra judicial statements of the Appellant which were recorded at the police station occasioned injustice to the Appellant. From the evidence on record, there was no interpretation regarding Exhibit B as it was recorded in English Language and read over to the Appellant in English language. Exhibit C was expunged by the trial Court and Exhibit D was also recorded in English Language. There was no mention of another Igbo version of the statement made to the police by the Appellant as to warrant the presence of the interpreter.?let me briefly state the correct procedure when the police is engaged in obtaining a statement from an illiterate person suspected of a criminal offence. The judges have been in accord with the view that where the suspect is an illiterate, the cautionary statement is only reliable where recorded in the language of the accused and then translated into the Court's language. Any irregularity in this regard may mar the case of the prosecution. In Johnson Adeyemi v The State (2012) LPELR-7956(CA), it was held as follows: "It is desirable, as held in the case of Ajidahun v. State (1991) 9 NWLR Pt. 293 Pg. 33, that confessional statements should be recorded in the language in which it was made. If the confession was made in Yoruba, even when the accused is illiterate and cannot write, it is advisable that it first be recorded in Yoruba by a Police officer who is conversant with the language and able to record the confession in Yoruba... In other words, whether the statement is recorded personally by the accused in Yoruba or narrated to the police officer who does the recording, it is desirable that the recording be in the language the statement is made. Both the Yoruba statement and the translated version of it would then be tendered in evidence. The issue of tendering the Yoruba version and its translation does not however arise where there is only the English translation of the statement. The fact that the statement was not recorded in Yoruba language before being tendered does not ipso facto render the English translation inadmissible. The issue is one of accuracy and correctness of the statement and not an issue that will automatically render the statement inadmissible." In Olalekan V. State (2001) 18 NWLR (Pt. 746) 819H - 820B, Karibi-Whyte J.S.C held as follows:- "The observation of the Court in R. v. Ogbuewu (1941) 12 WACA 483 that statements should be whenever practicable, recorded in the language in which it was made is a practical wisdom directed to avoid the kind of technical arguments even if unreasonable, capable of being raised by learned counsel." The general attitude of the Courts has now been codified in the Administration of Criminal Justice Act Section 17 provides as follows: Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement. 2. Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner. 3. Where a suspect does not understand or speak or write in the English Language, an interpreter shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him and the interpreter shall attest to the making of the statement. 4. The interpreter shall endorse his name, address, occupation, designation or other particulars on the statement. 5. The suspect referred to in Subsection (1) of this section shall also endorse the statement with his full particulars. Thus where such a statement is the only evidence implicating the accused person, the Court should be wary of convicting solely on such evidence. It does not however render such evidence inadmissible."per OGUNWUMIJU, J.C.A. (Pp , Paras. A-F) - read in context

4 9. EVIDENCE - TRIAL WITHIN TRIAL: When a trial within trial will and will not be conducted "Counsel for the Appellant submitted that the trial Court ought to have conducted a trial within trial to determine the voluntariness of the confessional statements. Where a confessional statement is challenged on the ground that the accused person did not make the statement, the statement is admitted since its admissibility is not affected. Whether it was made voluntarily or otherwise does not arise for consideration in that instance. But where a confessional statement is objected to on the ground that it was not voluntary, i.e. the accused person says he made the statement but he was forced or induced to make it, then a trial within trial must be conducted. The trial within trial is only designed to determine if the confession was voluntary or not. In both instances, there is a retraction of the statement. However, the reaction of the Court must be different. Where voluntariness is in issue, a trial within trial is necessary by law and practice. Where the defendant denies the statement, there is no need to test voluntariness. The Appellant in this case has denied making the statements attributed to him by the Respondent." Per OGUNWUMIJU, J.C.A. (Pp , Paras. F-E) - read in context 10. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict on a retracted confessional statement "Where an accused person claims that he did not make the statement, it is still admissible but the Court must consider the weight to be attached to such evidence. It is settled law that the Court can still convict on a retracted confessional statement as long as it is satisfied of the truth of the statement. A confessional statement that is direct, positive and unequivocal will suffice to ground a finding of guilt irrespective of a retraction. See Bature v State (1994) 1 NWLR Pt.320 Pg A Court should however be careful in convicting an accused person based solely on a retracted statement. It is to be noted here that where the only evidence against an accused person is the confessional statement which has been retracted, that is to say, that the police have no other evidence except the statement, the Court must consider carefully the evidential value to place on such statements. In essence, where an accused person retracts the extra judicial statement which is confessional in nature, the trial Court owes it a duty to evaluate the whole circumstances of the case and decide what weight to attach to the said retracted statement. In Nwachukwu v State (2002) 12 NWLR Pt. 782 Pg. 543 the Supreme Court held as follows:- "The fact that the accused did subsequently retract his confession does not mean that the Court cannot act on it and convict him accordingly as the circumstances of the case justify it."per OGUNWUMIJU, J.C.A. (Pp , Paras. F-A) - read in context 11. EVIDENCE - CORROBORATION/CORROBORATIVE EVIDENCE: Whether corroboration is required for a confessional statement to sustain a conviction "...it is not a necessity that corroborative evidence outside the confessional statements must exist before a Court can convict a defendant on a confessional statement. It is only desirable for the Court to look at the entire circumstances of a case and some other evidence to see if the confessional statements are true. See Ogedengbe v State (2014) LPELR (SC), (2014) 12 NWLR Pt Pg. 338; Dibie v State (2007) LPELR-941(SC), (2007) 9 NWLR Pt Pg. 30."Per OGUNWUMIJU, J.C.A. (P. 30, Paras. C-E) - read in context 12. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict on a retracted confessional statement "I have read the confessional statements and they gave a vivid and clear description of how the Appellant laid in wait for the deceased woman and strangulated her. The confessional statements are detailed accounts that could only be recounted by an active participant in the crime. In Ubierho v. State (2005) 5 NWLR Pt. 919 Pg. 644, the Supreme Court held that the detailed account of events in the retracted confessional statements was enough to convict the accused person as they could only be within the knowledge of a person who participated in the commission of the crime. In a country where there are several undocumented unsolved crimes and murders, the specific particulars of other murders confessed to by the Appellant are not farfetched."per OGUNWUMIJU, J.C.A. (Pp , Paras. D-A) - read in context

5 13. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict on a retracted confessional statement "Let me just chip in a word with respect to the vexed question of retraction of confessional extra judicial statements, by accused persons, which has engaged the attention of our Courts over the years. Generally, it is settled law, that there is no evidence stronger than a person's own admission or confession of his complicity in the offence for which he is arraigned in Court for trial. Therefore, the Court can convict on such a confession by an accused person. Golden Dibie & Ors v. The State (2007) 3 SCNJ 160. And there is nothing esoteric or strange about resiling from or denying/retracting a confessional statement by an accused person. It is not unnatural that at the earliest phase of the commission of an offence, the sense or feeling of guilt weighs more on the mind of the offender, but with passage of time, his mind gets toughened again which invariably leads to an afterthought and eventual retraction of the earlier confessional statement that was made by him. Hence, soon after the offence, their consciences are more pricked and so they are goaded to be truthful in their extra-judicial statements. The important thing of consideration for the Court, is that if it is convinced that the confession of guilt was freely and voluntarily made and the Court is satisfied as to its truth, the accused person can be convicted on it. Akpan v. The State (2001) 15 NWLR (Pt.737) 745. The above notwithstanding, the Supreme Court had held in a plethora of authorities to the effect that it is expedient and desirable that where an accused person has denied making the confessional statement, the trial Court should look for some evidence, however slight, outside the confession to confirm that it was a true confession. Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt.343) 138; Effiong v. The State (1998) 8 NWLR (Pt.562) 362; Golden Dibie & 2 Ors v. The State (2007) 3 SCNJ 160 at ; Osetola v. The State (2012) ALL FWLR (Pt.649) 1020; Osuagwu v. The State (2013) 1 S.C.N.J. 33 at 57. The apex Court, in order to put the Courts on firma terra, before grounding a convicting on a retracted confessional statement, evolved a six parameter test in gauging the veracity and truthfulness of such confessional statements. His Lordship, Adekeye, J.S.C. in Haruna v. Attor. Gen. Federation (2012) LPELR (SC) at pages 28-29, succinctly stated that: "A Court can convict on the retracted confessional statement of an accused person but before this is properly done, the trial judge should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions - Is there anything outside the confession to show that it is true? a. Is it corroborated? b. Are the relevant statements made in it of facts true as far as they can be tested? C. Did the accused person have the opportunity of committing the offence charged? d. Is the confession possible? e. Is the confession consistent with other parts which have been ascertained and have been proved? R. v. Sykes (1913) CAR pg R. v. Omokaro (1941) 7 WACA pg.146. Achuba v. State (1976) NSCC pg. 74. Yesufu v. State (1976) 6 S.C. 167." Further see Afolabi v. The State (2013) 6 SCNJ (Pt.1) 159 at 192; Osetola v. The State (2012) LPELR (SC) at pp "per YAKUBU, J.C.A. (Pp , Paras. B-A) - read in context

6 HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice I. P.Chima of the Ebonyi State High Court, delivered on 30/09/2015 wherein the learned trial judge found the Appellant guilty of the offence of Murder and sentenced him to death by hanging. Below are the facts that led to this appeal:- The Appellant was arraigned before the Ebonyi State High Court on one count charge of the offence of Murder. The charge is reproduced below:- STATEMENT OF OFFENCE Murder, contrary to Section 319(1) of the Criminal Code Cap.33 Vol. I Laws of Ebonyi State of Nigeria, PARTICULARS OF OFFENCE Monday Nwede on the 14th day of June, 2009 at Obegu Amaeze, Ishiagu in Ivo Judicial Division murdered Ihudie Okorie. The case of the Respondent at the trial Court was that on 14/6/2009, the body of the deceased, Mrs. Ihudie Okorie was recovered from her room at Obegu Amaeze Ishiagu in Ivo Local Government Area of Ebonyi State. The Appellant did farm work for the deceased and used to convey the deceased to the farm on her Carter motorcycle. On 23/01/2010, at about 1

7 8pm, the Appellant called his parents and confessed that he had killed the deceased. His parents called other family members and the Appellant equally confessed before them that he went to the house of the deceased in search for money and went to the room of the deceased, gripped her on the neck and strangulated her and thereafter made away with the deceased s motorcycle. In proof of its case, the Respondent called two witnesses both of whom testified and were cross examined by the defence, and tendered several exhibits which were admitted and marked as Exhibits. The witnesses are: PW1- Chukwu Onu Stepson of the deceased PW2- Amaka Okorie Daughter of the deceased. The Appellant testified in his own defence At the end of trial, the Appellant was found guilty of the offence of Murder and sentenced to death by hanging. Aggrieved, the Appellant filed a Notice of Appeal which was deemed filed on 17/1/18. Record of Appeal was filed on 10/8/16. The Appellant s brief was filed on 21/9/16 and deemed filed on 17/1/18. The Respondent s brief was filed on 19/9/17 and deemed filed on 18/1/18. In the brief settled by 2

8 B.C. Uzuegbu Esq., the Appellant raised three issues for determination as follows: i. Whether the Court below considering the evidence before it was right when it held that the prosecution proved the offence of murder beyond reasonable doubt against the Appellant through cogent and credible evidence as required by law. ii. Whether the reliance on the contents of statements recorded by an interpreter to the illiterate Appellant without interpretation to him and the recorder eventually called as a witness in the proceedings did not occasion miscarriage of justice iii. Whether the trial Court did not deny fair hearing to the Appellant by its failure to order trial within trial to determine the voluntariness of the alleged confessional statements. The Respondent in the brief settled by I.I. Alobu Esq. (DPP, Ministry of Justice, Ebonyi State), P.I. Ogodo Esq., (ACSC, Ministry of Justice, Ebonyi State) formulated a sole issue for determination as follows:- Whether the trial judge was right given the facts and circumstances of this case in convicting the accused person and sentencing the accused person to death by hanging. In my view, 3

9 having read the Record and submissions of both counsel in this appeal, the complaints in the grounds of appeal can be crystalized into one issue for determination as follows: Whether the prosecution proved the case of murder beyond reasonable doubt against the Appellant to warrant his conviction. SOLE ISSUE Whether the prosecution proved the case of murder beyond reasonable doubt against the Appellant to warrant his conviction. Appellant s counsel argued that the prosecution failed to prove the offence of murder against the Appellant through cogent and credible evidence as required by law and the weight to be attached to any relevant document is determined by the credibility and cogency of that piece of evidence. Counsel cited Olaleye v. Adejumo (2005) 10 NWLR Pt. 933 Pg Appellant s counsel argued that it is dangerous to go by the scanty evidence of only two prosecution witnesses who were not eye witnesses to the commission of the crime as they both reeled out what they were told had transpired. Counsel submitted that there is no factual nexus between the Appellant and the death of the deceased. Learned 4

10 Appellant s counsel argued that the inconsistency in the evidence of the PW2 was enough for the trial Court to reject her evidence in its entirety. Counsel cited Nwokearu v. State (2010) 15 NWLR pt Pg. 1. Counsel argued that the failure of the prosecution to call one Chukwu Uhuo whom they claimed took the Appellant to Ishiagu from where he knew the deceased amounted to withholding a vital witness. Counsel relied on Ochiba v. State (2011) 17 NWLR Pt Pg Appellant s counsel submitted further that the evidence of the Appellant that he never committed any crime, that he did not know Ishiagu and did not kill anyone there and that he had only lived in Onitsha and Abakaliki was not contradicted by the prosecution at all and such evidence ought to have been accepted and acted upon by the Court. Counsel cited Ezeanah v. Atta (2004) 7 NWLR Pt. 873 Pg Counsel for the Appellant argued that the interpreters of the confessional statements were not called as witnesses in the matter and that the recorders of the statements were not called as witnesses so as to tender the documents relied upon by the prosecution and be cross 5

11 examined as to the content of the confessional statements recorded and translated by them. Counsel cited Olalekan v. State (2001) 18 NWLR Pt. 746 Pg. 793 and Olanipekun v State (2016) 13 NWLR Pt Pg. 100 and submitted the position of the law is that statements made by accused persons should be recorded in the language in which they are made. Appellant s counsel argued further that the Appellant was denied fair hearing by failure of the trial Court to conduct a trial within trial to determine the voluntariness of the statements alleged to have been made by the Appellant. Counsel cited Nsofor v. State (2004) 18 NWLR Pt. 905 Pg. 292 and submitted that the confessional statements failed the tests to be followed in determining the weight to be attached to a retracted statement which is determined by consistency, cogency and sound reasoning. On the other hand, the learned DPP argued on behalf of the Respondent that there are three methods of proving the guilt of an accused person in criminal jurisprudence namely; by direct evidence, by confession and by circumstantial evidence. Counsel cited Haruna v. Att. Gen. Fed. (2012) 9 NWLR Pt Pg. 6

12 419. Respondent s counsel submitted that where a confessional statement has been proved to be voluntary, it is sufficient to sustain conviction of an accused person. Counsel submitted that the Court is also at liberty to admit a retracted confessional statement and consider other evidence outside the confessional statement which would corroborate and show that the confession was true. Counsel submitted that the prosecution relied on the Appellant s confession in the instant case to establish the guilt of the Appellant and proved the essential ingredients of the offence of murder against the Appellant. Counsel cited Egboghonome v. State (1993) 7 NWLR Pt. 306 Pg. 383, Bature v. State (1994) 1 NWLR Pt. 320 Pg. 267, Yesufu v State (1976) 6 SC 167, Nigerian Navy v. Lambert (2007) 18 NWLR Pt Pg. 300, Idok v State (2008) 13 NWLR Pt Pg. 225, Adekoya v. State (2012) 9 NWLR Pt Pg Respondent s counsel argued that the trial Court rightly considered the issue of interpreter in its judgment and rightly expunged Exhibit C which was interpreted by another person to the Appellant whereas the interpreter was not called as a 7

13 witness and the trial Court was left with Exhibits B and D with which the Appellant was convicted based on the corroboration provided by the evidence of PW1 and PW2. Counsel maintained that the said Exhibits B and D were recorded by Maduabuchi Okpara in English language which required no interpretation and by the Appellant himself respectively, as such the issue of calling the interpreter as a witness does not arise regarding the two confessional statements. Counsel relied on Ogedengbe v. State (2014) 12 NWLR Pt Pg OPINION In our criminal jurisprudence, the ingredients required to be proved to sustain a charge of murder remain sacrosanct. The prosecution must prove: (a) The death of a person; (b) That the death of that person was caused by the accused person; (c) That the accused person s act which caused the person s death was done with the intention of causing death or grievous bodily harm. SeeAlo v. State (2015) 9 NWLR Pt Pg. 238, Amaremor v. State (2014) 10 NWLR Pt Pg. 1, Njoku v. State (2013) 2 SCNJ 147. The question on the first ingredient of the offence of murder in this case can safely be answered 8

14 in the affirmative by virtue of the evidence of the parties. There seems to be no contention between the parties as to the fact that Ihudie Okorie is dead. This is settled by the testimonies of all the witnesses of the prosecution and also the defence. The second and third ingredients, which are crucial to this appeal are whether it was the Appellant, who with intent, caused the death of the deceased. An accused person is presumed innocent until he is proved guilty because there is no question of an accused person proving his innocence before a law Court in Nigeria. The duty of the prosecution is fixed and it is to prove the charge against an accused person beyond reasonable doubt. See Usman v. The State (2010) 6 NWLR Pt Pg. 454, Nkebisi v. The State (2010) 5 NWLR Pt Pg It is settled law that in the discharge of this burden of proof imposed upon it by law, the prosecution can utilize any or a combination of the following ways of proving the commission of a crime, namely: (i) By evidence of eyewitness otherwise known as direct evidence; (ii) By confessional statement(s); (iii) By circumstantial evidence.

15 9

16 See Adeyemo v. State (2015) 4 SC (Pt. II) 112, Musa v. State (2017) 5 NWLR Pt Pg. 43. One of the ways to prove a crime is through the voluntary confessional statement of the accused. A confessional statement is defined in Section 28 of the Evidence Act, 2011 as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. In Akpan v State (1992) 6 NWLR Pt.248 Pg. 439, it was held per Karibi-Whyte JSC stated as follows:- A confessional statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting that he committed the crime charged. In R. v John Agagariga Itule (1961) 1 ANLR 402 (FSC) Brett, Ag CJF held that: A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his 10

17 denial. See R v. Sapele & Anor (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement. Counsel for the Appellant submitted that the failure of the prosecution to call as witnesses, the interpreters of the extra judicial statements of the Appellant which were recorded at the police station occasioned injustice to the Appellant. From the evidence on record, there was no interpretation regarding Exhibit B as it was recorded in English Language and read over to the Appellant in English language. Exhibit C was expunged by the trial Court and Exhibit D was also recorded in English Language. There was no mention of another Igbo version of the statement made to the police by the Appellant as to warrant the presence of the interpreter. Let me briefly state the correct procedure when the police is engaged in obtaining a statement from an illiterate person suspected of a criminal offence. The judges have been in accord with the view that where the suspect is an illiterate, the cautionary statement is only reliable where recorded in the language of the accused and then translated into the Court s language. Any irregularity 11

18 in this regard may mar the case of the prosecution. In Johnson Adeyemi v The State (2012) LPELR-7956(CA), it was held as follows: It is desirable, as held in the case of Ajidahun v. State (1991) 9 NWLR Pt. 293 Pg. 33, that confessional statements should be recorded in the language in which it was made. If the confession was made in Yoruba, even when the accused is illiterate and cannot write, it is advisable that it first be recorded in Yoruba by a Police officer who is conversant with the language and able to record the confession in Yoruba In other words, whether the statement is recorded personally by the accused in Yoruba or narrated to the police officer who does the recording, it is desirable that the recording be in the language the statement is made. Both the Yoruba statement and the translated version of it would then be tendered in evidence. The issue of tendering the Yoruba version and its translation does not however arise where there is only the English translation of the statement. The fact that the statement was not recorded in Yoruba language before being tendered does not ipso facto render the English translation 12

19 inadmissible. The issue is one of accuracy and correctness of the statement and not an issue that will automatically render the statement inadmissible. In Olalekan V. State (2001) 18 NWLR (Pt. 746) 819H - 820B, Karibi-Whyte J.S.C held as follows:- The observation of the Court in R. v. Ogbuewu (1941) 12 WACA 483 that statements should be whenever practicable, recorded in the language in which it was made is a practical wisdom directed to avoid the kind of technical arguments even if unreasonable, capable of being raised by learned counsel. The general attitude of the Courts has now been codified in the Administration of Criminal Justice Act Section 17 provides as follows: Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement. 2. Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organization or a Justice of the Peace or any other 13

20 person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner. 3. Where a suspect does not understand or speak or write in the English Language, an interpreter shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him and the interpreter shall attest to the making of the statement. 4. The interpreter shall endorse his name, address, occupation, designation or other particulars on the statement. 5. The suspect referred to in Subsection (1) of this section shall also endorse the statement with his full particulars. Thus where such a statement is the only evidence implicating the accused person, the Court should be wary of convicting solely on such evidence. It does not however render such evidence inadmissible. Counsel for the Appellant submitted that the trial Court ought to have conducted a trial within trial to determine the voluntariness of the confessional 14

21 statements. Where a confessional statement is challenged on the ground that the accused person did not make the statement, the statement is admitted since its admissibility is not affected. Whether it was made voluntarily or otherwise does not arise for consideration in that instance. But where a confessional statement is objected to on the ground that it was not voluntary, i.e. the accused person says he made the statement but he was forced or induced to make it, then a trial within trial must be conducted. The trial within trial is only designed to determine if the confession was voluntary or not. In both instances, there is a retraction of the statement. However, the reaction of the Court must be different. Where voluntariness is in issue, a trial within trial is necessary by law and practice. Where the defendant denies the statement, there is no need to test voluntariness. The Appellant in this case has denied making the statements attributed to him by the Respondent. Where an accused person claims that he did not make the statement, it is still admissible but the Court must consider the weight to be attached to such evidence. It is settled law 15

22 that the Court can still convict on a retracted confessional statement as long as it is satisfied of the truth of the statement. A confessional statement that is direct, positive and unequivocal will suffice to ground a finding of guilt irrespective of a retraction. See Bature v State (1994) 1 NWLR Pt.320 Pg A Court should however be careful in convicting an accused person based solely on a retracted statement. It is to be noted here that where the only evidence against an accused person is the confessional statement which has been retracted, that is to say, that the police have no other evidence except the statement, the Court must consider carefully the evidential value to place on such statements. In essence, where an accused person retracts the extra judicial statement which is confessional in nature, the trial Court owes it a duty to evaluate the whole circumstances of the case and decide what weight to attach to the said retracted statement. In Nwachukwu v State (2002) 12 NWLR Pt. 782 Pg. 543 the Supreme Court held as follows:- The fact that the accused did subsequently retract his confession does not mean that the Court cannot act 16

23 on it and convict him accordingly as the circumstances of the case justify it. In Dawa v. The State (1980) 8-11 SC 236, the Supreme Court in relying on the English decision in R v Sykes (1913) 18 CR App. Reports and cited in Kanu v. R 14 WACA 30 highlighted six tests for the verification of confessional statements before any evidential weight can be attached to it. Over the years, these tests have been accepted by our superior Courts. The six tests to test the truth of the statement are: 1. Is there anything outside the confession to show that it is true? 2. Is it corroborated? 3. Are the relevant statements made in it of facts, true as far as they can be tested? 4. Was the prisoner one who had the opportunity of committing the offence? 5. Is his confession possible? 6. Is it consistent with other facts which have been ascertained and have been proved? See Musa v. State (2017) 5 NWLR Pt Pg. 43, Mbenu v. State (1988) 3 NWLR Pt. 84 Pg. 615 and Stephen V. State (1986) 5 NWLR Pt. 46 Pg It is desirable to have outside the accused person s confession, some corroborative evidence no matter how slight, of 17

24 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. Let us take a look at the evidence adduced by the prosecution outside the confessional statements at the trial Court. The evidence of PW1 contained at pages of the record. PW1 - Chukwu Uhuo led in-chief. He was sworn on the Holy Bible and states in Igbo language. I am Chukwu Onu. I am from Obeagu Amaeze, Ishiagu in Ivo L.G.A of Ebonyi State. I also live at the aforementioned address. I know the Accused person. I also know one Uhudie Okorie. She was my father s wife. She was killed by this Accused person. The Accused person came to our village to make heaps or mounds. My Father's wife hired his labour. The Accused person was using the motorcycle that my late father's wife bought for her children to convey her to and back from the farm. One day the Accused person told my said father's wife to allow him take the motorcycle back alone and she refused stating that she bought the said motorcycle for her children. On another separate day at night time, the 18

25 Accused person killed my said father's wife in her house and hung the key of the said room at the door and when we got up the following morning, we thought that the woman had gone to the farm but on opening the said room, we discovered that she had been killed by the Accused person who after killing her took the motorcycle and went away. Because we searched for the receipt of the motorcycle without success, we contacted the seller of the motorcycle who gave us a duplicate of the said motorcycle receipt and we started looking for the motorcycle and the Accused person. It was the Accused person that reported himself to the Police saying that the spirit of my said father's wife was disturbing him. It was the Policemen from the Command of the Accused person at Abakaliki who called the Ivo Police Command and the Police at Ivo called on us and we went to the community of the Accused person where the Accused person was arrested and the motorcycle recovered. The matter was later transferred to the Police Headquarters at Abakaliki and we now went home. The evidence on oath of PW2 at pages basically repeated the evidence of PW1 to the effect that she was in 19

26 school and was called that her mother had been murdered. She was not an eyewitness to the murder and her evidence was largely discredited under cross examination by her insistence that the Appellant had confessed to her while in her earlier statement to the police in Exhibit A, she stated categorically that she did not speak to the Appellant when he was in police custody. I have painstakingly sieved through the entire evidence on oath of the prosecution witnesses. Apart from the evidence of PW1 and PW2 being mainly hearsay evidence, it does not contain any evidence independent of the confessional statements as to suggest or infer that the confession is true, nothing to prove that the Appellant had the opportunity of committing the offence for which he was charged. The only fact established by the evidence of PW1 and PW2 is the fact that indeed, the deceased died. I cannot put any credence to the evidence of PW2 who lied under cross examination that she had made no extra judicial statement to the police. In fact, on cross examination, PW2 stated on oath that the accused person told her how and why he murdered the deceased. When she was 20

27 asked when the accused person told her, she stated that he told her in December Whereas she was informed about the arrest of the Appellant in January, 2010 according to her statement to the police. She denied making a statement to the police but her statement made to the police in February 2010 where she stated that she did not ask the Appellant anything was tendered in evidence as Exhibit A. She stated as follows in Exhibit A: On 4th of June, 2009, I was at Niger Delta University, Bayelsa State. Then I received a phone call that my mother Grace Okorie is dead. Immediately, I returned from the school and saw her lying on the bed, I asked what happened to her my neighbours then told me that thieves came and stole her motorcycle, her money and as well killed her. There was nothing I can do rather to arrange how to bury her because the corpse has over stayed Then on 27th January 2010, I was at Abia State to visit my elder sister Josephine Battlemow then my relations my elder sister one Gloria Igwe called me on phone that the suspect who killed my mother has been arrested then I quickly came to the village and the suspect 21

28 one Monday Nwede m a native of Umuezekaohia Ezza North L.G.A. I did not ask him anything today been (sic) 2nd of Feb, 2010 then the police men told me that I should follow them to the State SCID Abakaliki. That is all my statement. The evidence of the Appellant who testified for himself is contained at pages DW1 - Monday Nwede led in chief. He was sworn on the Holy Bible and states in Igbo language. I am Monday Nwede. I am a native of Umuezeoka Ezza but now an inmate at the Federal Prisons Afikpo. I was a barrow pusher at Onitsha in Anambra State. I do not know one Ihudie Okorie. I did not commit the offence as charged. I do not know anything about this charge. What happened was that I returned home from Onitsha in Anambra State and while at home after two days some policemen came and asked who is Monday Nwede and I said I am and they told me that somebody was killed at Ishiagu and I told them that I do not know anything about the said killing and they started beating me and out me in the booth of their car and took me to the station I started asking them what I did when they wanted to put me in the cell, and they 22

29 started beating me once again and pushed me into the police cell. I was in the cell till the following day when they brought me out and asked me to sign a document and I refused and after torturing me, they now took me back to the cell and I still did not sign the said document. The next thing that happened was that I was brought out and arraigned before a Court. I do not know any Chukwu Uhuo. Thus it was when he was being led in evidence that he denied making Exhibits B & D, the confessional statements. At this point, I need to set out the confessional statements. Exhibit B is as follows: I voluntarily elect to state as follows:- I am Monday Nwede m, a native of Ameta Village Umuezeoka community Ezza North L.G.A. I attended Joint community primary school Achiagu from 1996 and ended 1996, the name of my teacher, I don t know, I am married the name of my wife is Ukamaka Monday, she is still with pregnancy. That it was during my primary school, when I was going to school on my way to school, I stole one boy s mango fruit and I was caught and I paid N120 for the mango fruit. Later on, I left school and went to Ondo 23

30 State (In Ishun village) where I was working for people for job) There, I killed one woman and search her but I could not found any money with her. I left home and related to my parents that that thing that use to disturb me has started again, but my parents did not do anything. Later on, I travelled to Ijebu-Ode and there, I worked for one man name unknown and he refused to pay me my money due to the fact that the work I did for him was not properly done. When I went the next day collect my money, the man still refuse to pay me, so I had to kill him and ran home to my village in Umuezeoka Ezza North L.G.A of Ebinyi State. Here at home, my brother name Chukwu Uhuo asked me to join him to Ameze Ishiagu in Ivo LGA of Ebonyi State to work for people and we were there for a month and one week. After then we returned back to our village. But later on, I left back to Ameze Ishiagu in Ivo LGA on my own without my brother Chukwu Uhuo. When I got there, I killed one woman name unknown and made away with her Carter motorcycle white in colour. The woman did not do anything to me. Now the motorcycle is at Ezza South Police division on the offence of not having registration 24

31 number. This is all that I did. In Exhibit D, the Appellant stated as follows: I wish to state as follows:- That I am a native of Umuezeoka village Ezza North LGA of Ebonyi State. I attended Achiagu primary school Umuezeoka Ezza North in the 1996 and dropped out after my primary one in I later travelled to Ondo State in that same 1997 with one Joseph Ajah m of same address. I stayed at Ondo State for three years and my major duty there was farming though I used to steal people s money if I see the opportunity. In the year 2010 particular date unknown, there was a Yoruba man who contracted me to do farm work for him and after doing the work for him, he told me that he had no money to pay me. I was very angry and I asked him why did he call me to do work for him whereas he knew he did not have money to pay me. I later left him and went to my house, after about two days, I went to his house and demanded for my money but he still said that he had no money then in annoyance, I gripped him on his neck and after some struggles he died. As he died, I quickly ran to my house and packed my clothes and ran 25

32 down to my State Ebonyi and stayed. As I was in Abakaliki here, I was living with one man at Ogoja road and I was pushing wheel barrow. After about two years I travelled to Ijebu-Ode in Ogun State and continued the same farm work. On 22nd December, 2002 I went to one Yoruba woman to steal money but the woman was not in the house and I could not gain entrance to her house then I waited for her until she came back then I met her and demanded for some money from her but she said that she had no money to give me then I gripped her on her neck until she was strangled I then packed my clothes and ran back to my home town and stayed. I have been in my village since that 2002 till During my stay at home, I was stealing people s money and other valuables, one day I called my parents and told them that I don t know what is wrong with me that makes me to steal people s belongings my parents later went and met one herbalist who prepared a charm for them to know whether I can stop stealing but as they kept the charm at home, the following day, the charm missed. Around ending of April, 2009, one Chukwu Nwede m of same address told me 26

33 that he was going to Ishiagu in Ivo Local Govt Area of Ebonyi State to do farm work for people so that he will get some money. I then begged him to follow him and he agreed and both of us went there for the farm work. We spent a month and a week at Ishiagu and during the period, we worked for many people. When we went back to our village in early June 2009, after two days, I went back to Ishiagu again without the consent of the said Chukwu Nwede. When I got to Ishiagu around 8:pm. I went to the house of one woman who was among the people we worked for that time but the woman was lying down at the corridor of her house sleeping then I entered into her house and searched for money but could not get any, then I stayed inside her house hiding at one corner of her room until around 10:pm, the woman came inside her room and lied down, then I woke her up and asked her to give me all the money she had but the woman became afraid and wanted to shout, then I quickly held her on her neck and she was strangulated then I removed her Carter Motorcycle parked inside her house and used a padlock and locked the corps of the woman inside her house and went away 27

34 with the motorcycle. When I got to my village, I started using the motocycle for Okada business, my parents asked me who is the owner of the motorcycle I told them that I bought it from some body. One day, police caught me with the motorcycle and I told them that I left the particulars of the motorcycle when I was running away from Ezillo during Ezza/Ezillo crises then they asked me to go. It was on the 23rd January 2010 at about 8:pm, I was returning from market where I went to buy soup ingredients on my way, somebody called me but I did not see the person and he asked me why am I doing all these bad things that I have been doing, I then told him that those my acts were not deliberate acts, he then warned me to tell my people all those things I have been doing when I got home. As I reached home, I called my parents including one girl that I impregnated and she is living in our house and told them everything that I did. My mother cried and in the following day, my parents called all our family people and asked me to repeat what I told them and I repeated it then they went and informed our traditional ruler H.R.H Eze Nwite Alegu who now instructed some people 28