Msughter Gboko & Ors V. The State (2007)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The three appellants along with 3 others were alleged to have conspired and committed armed robbery at the Divine Love Catholic Girls Secondary School. Katsina-Ala and robbed both the school and its staff of about N182.000.00 on or about the 14th day of March, 1999.

The appellants were arrested for the offence arraigned before the High Court Benue State and charged with the offences of criminal conspiracy and armed robbery under section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provision) Act. Cap. 398. Laws of the Federation of Nigeria. 1990.

The appellants pleaded not guilty to the charges, and the matter proceeded to trial. The prosecution called five witnesses and tendered 4 exhibits, the supposed statements of the appellants. The appellants each testified in his defence but called no additional witness. The 1st appellant tendered one exhibit while testifying.

At the close of evidence and address by counsel the lower court delivered judgment on the 19/7/2002 finding the appellants guilty as charged and convicted and sentenced them to death.

The appellants being aggrieved by the judgment, have now appealed to this court based on separate notices and grounds of appeal. while the 1st and 2nd appellants being represented by one counsel filed a joint brief, the 3rd appellant filed a separate brief. In their joint brief of argument, the 1st and 2nd appellants identified these issues: for the determination of the appeal.

1. Whether or not the trial High Court was right when it admitted and convicted the appellants on the basis of exhibits 1, 1A and 2 when no trial within trial was conducted.
2. Whether or not the trial High Court was right when it tried the appellants under section 9(b) of the Robbery and Firearms (Special provisions) Act, Cap. 398, of the Laws of the Federation of Nigeria, 1990 but convicted them under an amended charge under section 5(b). of the same Act without taking their plea thereto.
3. Whether or not the trial High Court was right when it gave leave to the prosecution to prefer charges against the appellants when the statements of the PW5 and other investigating police officers were not attached to the proof of evidence.
4. Whether or not the trial High Court was right in convicting the appellants of the offences charged having regards to the totality of the evidence for the prosecution.
5. Was the trial court right in comparing the signatures in exhibits 1, 1A and 4 by invoking the provisions of section 108(1) of the Evidence Act without calling on the 1st appellant’s counsel to address it on the point
6. Were the appellants’ fundamental rights under section 36(6)(e) of the 1999 Constitution of the Federal Republic of Nigeria was violated by the trial High Court by its failure to have the proceedings interpreted to them in Tiv and Hausa languages, and whether the trial High Court had made up its mind to find the appellants guilty.

The 3rd appellant who originally was not a party to the appeal sought and obtained the leave of this court granted on 16/1/06 to be joined as a party and he thus became the 3rd appellant in the appeal.

In a separate brief settled by Aondoakaa, SAN. counsel for the 3rd appellant. the following issues were identified:

1. Whether or not the trial High Court was right when it admitted and convicted the appellant on the basis of exhibit 3 when no trial within a trial was conducted.
2. Whether or not the trial High Court was right when it tried the appellant under section 9(b) of the Robbery and Firearms (Special Provisions) Act, Cap. 398. LFN. 1990 but convicted him under an amended charge under section 5(b) of the same Act without taking his plea thereto.
3. Whether or not the trial High Court was right when it gave leave to the prosecution to prefer charges against the appellant when the statements of PW5 and other investigating police officers were not attached to the proof of evidence.
4. Whether or not the trial High Court was right in convicting the appellant of the offences charged having regards to the totality of the evidence for the prosecution.
5. Whether the appellant’s fundamental rights under section 36 of the 1999 Constitution of the Federal Republic of Nigeria, was violated by the trial High Court by failure to have the proceedings interpreted to him in Tiv language and failure to allow the appellant address the court on the issue of signatures on the exhibits raised suo motu by the court and whether the trial High Court had made up its mind to find the appellant guilty.

The respondent in its brief filed on 20th February, 2006 identified these issues for the determination of the appeal.

1. Whether the trial court was right in admitting the confessional statements of the appellants (exhibits 1, 1A, 2 and 3) in evidence without first conducting a trial-within-a trial and convicting them based on the same exhibits.
2. Whether the trial court was light when in its judgment it substituted section 9(b) in the charge with section 5(b) without taking another plea from the appellants.
3. Whether the appellants’ fundamental light under section 36(6)(e) of the 1999 Constitution of the Federal Republic of Nigeria were breached when the proceedings were not interpreted to the appellants from English language into the languages they understood.
4. Whether the trial court was right when it granted leave to the respondent to prefer charges against the appellants when the statement of the Police Officers were not attached to the proof of evidence.
5. Whether the court below was right in comparing the signatures of the 1st appellant in exhibit 1, 1A and 4 by invoking the provisions of section 108(1) of the Evidence Act without calling for addresses from counsel.
6. Whether the prosecution proved its case from the evidence adduced before the court as required by law.

The respondent raised a notice of preliminary objection and argued same in his brief of argument. This was replied to, in two separate replies by the 1st and 2nd appellants on one hand and the 3rd appellant on the other hand.

The preliminary objection is to the effect that the 1st and 2nd appellants grounds 5 and 6 and the 3rd appellant’s ground 6 in their respective notices and grounds of appeal and issue No.3 contained in paragraph 3.13 of the 1st and 2nd appellants’ brief of argument and issue NO.3 of the 3rd appellant’s brief of argument contained in paragraph 6.01 thereof are not competent before this court and should be struck out.

‘[he respondent maintained that the grounds of appeal and the issues raised under them were not pan of the judgment of the trial court which is the subject matter of this appeal. That the grounds being not an attack on the judgment of the lower court fall short of meeting the requirement of an appeal.

He points out that the grounds and issues relate to the leave granted to the respondent to prefer charges against the appellants on the 3/1/2002 which is a discretionary order on an interlocutory matter.

That to appeal against the said order/ruling, the appellants ought to have appealed within 14 days from the date leave was granted vide section 25(2)(a) of the court of Appeal Act 1976, That where there is failure by a party, as in the instant case, to appeal within the period stipulated by section 25(2)(a), to have a competent appeal, a party must first seek and obtain the leave of either the lower court or this court, Relying on Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179: (1997) 57 LRCB 2631: Onehi Okobia v. Ajanya (1998) 6 NWLR (Pt. 554) 348 the respondent submits that where the appellants adopt the procedure of including the appeal against the interlocutory order in the main appeal against the final decision of the court they must obtain leave of the court for their appeal against the interlocutory order to be valid.

He submits that the appellants having not appealed against the interlocutory order of the trial court of 3/1/2001 within 14 days, and having not obtained leave of the lower court or of this court the appellants’ grounds 5 and 6 respectively and issue No.3 in their respective briefs of argument and their submission thereto are incompetent and urged us to strike them out.

Replying for the 1st and 2nd appellants, Adaa of counsel submitted in the reply brief that the grounds under attack and their issue No.3 formulated from them are competent and should not be struck out, contending that though the trial High Court exercised its discretion to grant leave to the respondent to prefer charges against the appellants, their rights to appeal at the end of the trial was not precluded.

He points out that nowhere on the face of the records was it shown that the appellants were in court when leave was granted by the court to prefer the charges against them. Submitting that it is trite that an appellant cannot exercise the right to appeal until he is aware of the decision with which he could be aggrieved and against which he may desire to appeal Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129: (1988) 6 SCNJ 103: Oluka v. The State (No.1) (1988) 1 NWLR (Pt. 72) 539.

He submits that section 25(2)(a) of the Court of Appeal Act is not applicable to the facts of this case as the subsection relates to civil appeals and not criminal appeals. That the applicable subsection is section 25(2)(b) of the said Act. That by the said subsection, no leave is required to file an appeal against an interlocutory order of the High Court in criminal cases. He contends further that by the provisions of section 241(1) of the 1999 Constitution. appeals lie from the decision of a High Court of a State to the Court of Appeal as of right when the High Court is sitting as a court of first instance or where a ground of appeal involves questions of law alone or where a sentence of death is imposed. That in this appeal the grounds of appeal complained of, came within the purview of section 241 (1) of the 1999 Constitution.

He further submits that the cases cited and relied upon by the respondent, all relate to civil appeals, and therefore inapplicable to this appeal and urged us to overrule the preliminary objection. These were the same submissions in the 3rd appellant’s reply brief and a further submission that ground 6 of the 3rd appellant’s grounds of appeal is competent and properly brought and consequently issue No.3 covering the ground of appeal is equally competent and should not be struck out.

Section 25 of the Court of Appeal Act. Cap. 75, LFN, 1990 provides as follows:-

“25(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

(b) in an appeal in a Criminal cause or matter, ninety days from the date of the decision appealed against.

The above provisions clearly shows that subsection 2(a) applies to civil appeals only while subsection 2(b) applies to criminal appeals only.

The submission of learned counsel for the respondents that the applicable provision in the instant appeal is subsection 2(a) cannot be sustained.

In any case the relevant subsection i.e. 2(b) which pertains to criminal appeals makes no distinction between an interlocutory appeal and an appeal against a final decision, as done in subsection 2(a) the presumption is that the framers of the law did not contemplate an interlocutory appeal in a criminal matter, hence the distinction in the two subsections.

The instant appeal relates to a decision of the trial court which imposed death sentences on the appellants.

By the provisions of section 241(1)(e) of the 1999 Constitution, an appeal shall lie from the decision of the High Court of a Slate to this court as of right in a criminal proceedings where the High Court has imposed a sentence of death.

This is the situation in the instant appeal, the appellants are appealing against the decision of the lower court which imposed death sentence on them. By the combined effect of section 25 (2)(b) of the Court of Appeal Act and section 241(1)(e) of the 1999 Constitution, their appeal is as of light and they do not require the leave of either this court or of the court below to appeal against a final or interlocutory decision.

The preliminary objection is unsustainable, it is hereby overruled and dismissed.

As shown earlier each of the parties in their respective brief identified issues they felt were relevant for the determination of this appeal. The issues raised by the respondent covers all the grounds raised by the two sets of appellants. I will accordingly adopt them for the determination of this appeal.

Issue 1

Whether the trial court was right in admitting the confessional statements of the appellants (exhibits 1, 1A. 2 and 3) in evidence without first conducting a trial-within-trial and convicting them based on the said exhibits.

The 1st and 2nd appellants in their joint brief on this issue after referring to the way and manner exhibits 1, 1A and 2 were tendered and admitted by the learned trial Judge inspite of the objection raised by the appellants and their counsel submits that the manner the defence objected to the admissibility of exhibits 1. 1A and 2. ought to have convinced the lower court that their voluntaries was called to question and the lower court ought to have conducted a trial-within-a trial before coming to the conclusion on the admissibility of the statements. That failure to order a trial-within-a trial in such circumstance renders the statement inadmissible and all evidence received or admitted by virtue of the statement should be expunged – Emeka v. State (2001) 14 NWLR (Pt.734) 666; (2001) 7 NSCQLR 582; Obidiozo v. The State (1987) 4 NWLR (pt.67) 748); (1987) 11 -12 SCNJ 103; Ogunye v. The State (1999) 5 NWLR (pt.604) 548; (1999) 4 SCNJ 33.

He submits that the lower court ought to have considered the appellants, objection that they did not make the said statement or that if made, they were not made voluntarily before ascertaining whether or not they were admissible in evidence, That failure to consider the said defence or that arm of objection occasioned a grave miscarriage of justice as the said exhibits formed the basis upon which the appellants were convicted, having not been identified by PW1-PW4 or any other prosecution witness.

He further contends that exhibits 1, 1A and 2 were recorded in English language, That the appellants are not literate in English language but only in Tiv and Hausa languages, That there is nothing on the face of the said exhibits to show that they were read and explained to the appellants in Tiv and Hausa languages respectively as required by section 3 of the literates Protection Law. Cap. 51, Laws of Non hem Nigeria applicable to Benue State.

That there was no jurat on the face of the exhibits to show that they were duly explained to the appellants. That failure to comply with the above provisions rendered them inadmissible and their admission was wrongful in the circumstances – Saba Dan Kantoma v. Peterson Zochonis & Co, Ltd, (1964) NNLR 54. He submits that from the entire circumstances of this case, the appellants’ statements in exhibits 1. 1A and 2 could not have been made voluntarily and urged us to allow the appeal on that issue. In the 3rd appellant’s brief on this issue, it was his contention that though his counsel objected to the admission of exhibit 3 in that the statement was not voluntarily made, the lower court found and held that it was voluntarily made and based on it convicted the 3rd appellant. He submits that the manner the defence objected to the admissibility of exhibit 3. the question of its having been made voluntarily is raised and the lower court ought to have ordered a trial-within-a-trial to determine whether the statement was admissible or not. That failure to conduct or order a trial-within-a trial in such circumstances renders the statement inadmissible and all evidence admitted by virtue of the statement should be expunged.

He submits that the 3rd appellant is not Iliterate in English language but in Tiv and Hausa languages and that there is nothing on the face of exhibit 3. which was recorded in English language, to show that the provisions of section 3 of the Illiterate Protection Laws was complied with. i.e. a jurat to show that it was duly interpreted to the 3rd appellant particularly so as the recorder the PW5 did not understand Tiv language and that such renders it inadmissible, and its admission by the lower court renders it wrongful – Baba Dan Kantoma v. Pererson Zochonis & Co. Ltd. (supra).

He submits that the lower court was wrong to have convicted the 3rd appellant on the basis of exhibit 3 solely particularly so as he was not identified by PW1-PW4 or any of the prosecution witness and was arrested days after the commission of the offence and had consistently maintained in evidence that he was not at the scene of crime at the material time.

In reply, the respondent maintained that since the appellants’ objection was based on the fact that the said exhibits were not their statements, i.e. they did not make them, the issue of whether these statements were made voluntarily or not, did not arise and there was absolutely no need to conduct a trial-within-a trial to determine their voluntariness. That a trial-within-a trial would have been necessary if the appellants have admitted that the said exhibits were their statements or that these statements were not made voluntarily or were made under duress or threat. That in the circumstances the lower court was right to have admitted the statements in evidence without a trial-within- a trial-Akpan v. State (1990) 7 NWLR (Pt.160) 101; Onwumere v. State (1991)4 NWLR (Pt. 186) 428; (1991) LRCN 984; Edamine v. State (1996) 3 NWLR (Pt. 438) 530.

On the question raised by the appellants of non-compliance with the provisions of section 3 of the Illiterates Protection Law, and of a jurat on the admitted statements the respondent submits that the said provision is not applicable to the circumstances of this case. That PW5 through whom the exhibits were tendered gave unchallenged testimony before the court that he obtained the statements from the appellants in English language and that the said appellants understand English language and duly signed the statements. There was no room for illiterate jurat. That the said testimony having not been challenged the lower court was bound to accept it.

The respondent contends that the appellants while objecting to the admissibility of the statements never raised, canvassed or relied on the provisions of section 3 of the Illiterate Protection Law at the trial or in counsels’ addresses. That having not so raised it at the court below, and being a fresh issue, cannot raise it before this court now, without the leave of this court first being sought and obtained. Dweye v. Iyomaham (1983) 2 SCNLR 135; (1983) 8 SC 76; Kpishi Kuusa v. Vangor Udom (1990) 1 NWLR (pt.127) 421; (1990) 5 SCNJ 97. Submitting that leave not having been sought and obtained for this issue to be taken in this appeal, the issue is incompetent and urged us to discountenance it.

It is further submitted that the lower court was right in convicting the appellants solely on their statements even though they were not identified by the prosecution witnesses. The respondent contends that a confessional statement may be sufficient to ground a conviction so long as it is direct, positive and properly proved even if retracted by the accused – Bature v. State (1994) 1 NWLR (Pt. 320) 267; Edet Offiong Ekpe v. State (1994) 9 NWLR (Pt. 368) 263: (1994) 12 SCNJ 131: Idowu v. State (2000) 12 NWLR (Pt. 680) 48: (2000) 7 SC (Pt.11) 50; Kenneth Ogoala v. State (1991) 2 NWLR (Pt. 175) 509; (1991) 3 SCNJ 61.

That in the instant case, there is extrinsic evidence to the confession that corroborates the substance or some aspects of the statements and proved that the offences were committed by the appellants.

It is trite that a party will not be allowed to raise a new point at the appellate court which was not raised at the trial court unless leave of the Appeal Court had been sought and obtained to argue it.

Where no leave is obtained even if argued, the appellate court would be wrong to entertain arguments on the issues and where entertained should not pronounce on them. See Osinupebi v. Saibu (1982) 7 SC 104: Umar v. Bayero University, Kano (1988) 4 NWLR (Pt. 86) 85: Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563: Commissioner of Works, Benue State v. Devcon Development Consultants Ltd. (1988) 3 NWLR (Pt. 83) 407; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505: Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1.

In the instant appeal, the appellants had in their respective briefs raised the issue of non-compliance with the provisions of section 3 or the Illiterates Protection Law and the requirement or a jurat to the four statements of the appellants. As was pointed out by counsel to the respondent, this is a fresh point which was not raised at the lower court when the statements were tendered and at the addresses or counsel. It is now raised at this court. It becomes a fresh issue and to raise it the appellants must first seek and obtain the leave or this court. No such leave is obtained.

I uphold that submission and I am of the view that the appellants cannot raise it at this stage without first seeking and obtaining the leave o either the lower court or of this court to so raise it. All arguments on the issue of non-compliance with section 3 of the Illiterates Protection Law and jurat are hereby discountenanced and disregarded.

When exhibits 1, 1A, 2 and 3 were to be tendered by the prosecution before the lower court, the appellants objected on the grounds that as was put by their counsel:

“I have shown the statements to the accused persons and they have denied the statements. Firstly, that they all thumb printed the statements they made to PW5 and secondly. that the statements PW5 obtained from them were not voluntary. On the whole, what the accused persons say is that what has been put before the court if at all their statements were not obtained voluntarily.

In admitting the statements the lower court ruled as follows:

“The accused persons have contended that the statements they made to PW5 were thumb printed. And since the statements being sought to be tendered were not thumb printed but signed, they are clearly saying that the statements sought to be tendered were not those they made to PW5. Having taken this stand, they cannot turn round to submit that the statements sought to be tendered were not voluntarily made. The issues of voluntaries would have come in. if they had admitted making the said statements. Since the issue is that of outright denial of making the statements. I entirely agree with the learned DPP that it is the issue of weight and not admissibility that is called into question. Since the issue of voluntariness is not involved the question of a trial-within-trial does not arise. The objection raised does not affect the admissibility of the documents. It only goes to the weight to be attached to the said statements, consequently the statements are admitted in evidence:…”

The above finding in my view is unassailable it is the position of the law. See Obidiozo & Ors. v. The State (1987) 4 NWLR (Pt.67) 748: (1987) 9-12 SC 75 where the Supreme Court stated per Agbaje, JSC:

“So it can be confidently said on the authorities of R. v. Igwe and the Queen v. Eguabor (supra) that where an issue arises as to whether a confession was made voluntarily a trial within a trial must be adopted to determine the admissibility of the confession before it is ever admitted in evidence. On the other hand when the issue was whether the accused made the statement or not or that the statement was correctly or incorrectly recorded, the statement can be admitted in evidence without holding the exceptional procedure of a trial within a trial, there then being no issue as to whether the confession was made voluntarily.”

In the instant appeal, the appellants denied making the statements on one hand and as an alternative said the statements they made, under duress, were thumb printed and not signed as in the statements tendered. They were in effect denying making the statements. Such circumstances will not warrant the conducting of a trial-within-a trial which in essence is to determine whether a statement was voluntarily made or not.

A court is entitled, where a statement is retracted, to admit the statement in evidence as something which had occurred in the course of investigating the crime by the Police, at the end of the trial, the court can decide based on the circumstances whether or not the accused has committed the offence alleged by the Police.

The procedure adopted in admitting the statements by the trial judge was the correct procedure in the circumstances and I uphold same.

The other submission on this issue is as to whether the lower court was right in convicting the appellants based on the statements of the appellants alone when they were not identified by any of the prosecution witnesses.

It is trite that where a confessional statement is proved, it is positive, unequivocal and amounts to an admission of guilt, it is sufficient to ground a guilty finding. It is immaterial that the accused denied making it during his trial, such retraction does not affect its admissibility. See Mumuni v. State (1975) 6 SC 79; Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383; Bature v. State (1994) 1 NWLR (Pt. 320) 267; Itule v. Queen (1961) 2 SCNLR 183: Ejinima v State (1991) 6 NWLR (Pt. 200) 627; Akpan v. State (1992) 4 NWLR (Pt. 248) 439; R. v. Kanu (1952) 14 WACA 30.

For a court to uphold a confessional statement which has been reciled. it should be tested strictly as to its truth by examining it along other evidence to determine whether;

1. there is anything outside it to show that it is true:
2. it is corroborated:
3. the facts stated in it are true in so far as can be tested:
4. the accused’s confession is possible.
5. the confession is consistent with other facts which have been ascel1ained and proved. See Akpan v. State (1990) 7 NWLR (Pt. 160) 101: Obosi v. State (1965) NMLR 119: Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383: Bature v. State (1994) 1 NWLR (Pt. 320) 267: Obiasa v Queen (1962) 2 SCNLR 402.

The lower court at page 81 of the records subjected itself to the above test and relied on the following before relying on the statements: 1. a careful analysis of the evidence before the court against the statements of the appellants and came to the conclusion that these material facts were corroborated:

1. That there was robbery incident at the school on 14/3/99.

2 That more than 3 persons were involved. By the statements, 5 persons were involved.

3. That the principal of the school was first robbed in her house and forced to take the robbers to her office where they collected some money.
4. That money was also collected from the vice principal’s office.
5. That they were armed with pistols, iron rod and sticks.

The court found the above corroborated facts as true. The court also found that the appellants had the opportunity of committing the offence having all been arrested in Katsina-Ala where the robbery was committed.

The court relying on the provisions of section 108(1) of the Evidence Act and the admission by the 1st appellant that he made exhibit 4 and the facts that the statements were countersigned by a superior police officer found the said statements consistent with other facts proved by the prosecution witnesses and concluded that these statements were voluntarily made by the appellants and was of the view that the appellants could be convicted based on the said statements. I agree fully with the finding of the lower court which has subjected the statements to the tests and requirements of law necessary before accepting and relying on the statements to ground a conviction of the appellants.

I resolve this issue in favour of the respondent.

Issue 2

It is submitted for the 1st and 2nd appellants on this issue that the leave granted the prosecution to prefer charges against the appellants was in respect of section 9(b) of the Robbery and firearms (Special Provisions) Act. Cap. 398. LFN. 1990 that the court however, amended the charge to section 5(b) (supra) without taking the plea of the appellants thereto, that failure to take a fresh plea to the amended charge was fatal to the prosecutions case and rendered the conviction a nullity.

It is further submitted by the 3rd appellant that his trial under the section of a law that created neither an offence nor punishment was itself wrongful and his conviction under a substituted or amended charge or section of the law by the trial court suo motu vitiated the conviction on the 1st count.

For the respondent, it is submitted that the appellants and their counsel did not object to the substitution of section 9(b) with Section 5(b) (supra) which created the offence of criminal conspiracy under the Robbery and Firearms Act. That the appellants and their counsel are not in anyway misled and were at all times conscious and aware of the charges for which they were charged and tried in the lower court. That the defence then put up by the appellants was that they did not conspire to rob the prosecution witnesses, and did not commit the offences alleged in the charge.

The respondent contends that the substitution of section 9(b) with section 5(b) did not affect the defence of the appellants as they were not prejudiced by the said substitution neither did It occasion a miscarriage of justice.

I uphold the respondent’s submission in its entirety. As was pointed out, the appellants were represented by counsel throughout the trial, they were arraigned before the lower court for conspiracy to rob and for armed robbery and these were the charges they pleaded to. The citation of section 9(b) in the charge is a curable error and the lower court had the power under section 208(1) of the Criminal Procedure Code to so amend. The amendment did not in any way affect the original charge neither did it mislead the appellants on the charges they were standing trial and the most important the substitution did not occasion a miscarriage of Justice.

This Issue is also resolved against the appellants.

Issue 3

On this issue, which is the 1st and 2nd appellants’ issue 6 and 3rd appellant’s issue 5. the appellants relied on the proceedings of the lower court at page 25 thereof where the court asked the appellants’ counsel whether there was need to interpret the proceeding from English to Tiv and Hausa languages and counsel said that interpretation should be dispensed with and thereafter the proceedings were not interpreted to the appellants from English to Tiv and Hausa languages.

On that, they submitted that the lower court denied the appellants their constitutional right i.e. section 36(6)(b) of 1999 Constitution to interpretation of the proceedings in the languages understood by them despite the fact that the charges and offences involved are capital in nature.

That any person accused of a crime must be availed the services of an interpreter to the language that he understands and that if he chooses to waive that right he must do so personally and not through counsel. That where no translation is made the evidence adduced should be expunged as it does not matter if the court or counsel understands English language. That the lower court as well as counsel for the appellants had no right to deprive the applicants of their Constitutional rights more so when the offences charged were capital in nature.

It is also the contention of the appellants that at page 46 of the records, the trial court after consideration of the appellants application for bail refused to grant same on the grounds that in their statements accompanying the proof of evidence they admitted committing the offences charged pointing out that at that stage of the trial before the prosecution witnesses had testified the court had made up its mind to find the appellants guilty, That that was an infringement of their constitutional rights to fair hearing.

The respondent submits on the authority of Queen v. Eguabor (1962) 1 All NLR 28; (1962) 1 SCNLR 409 that where an accused is represented by a counsel failure to comply with the provisions of section 36(6)(e) of the 1999 Constitution and section 242 of the Criminal Procedure Code will not vitiate the proceeding in the lower court or be a ground to set aside the conviction unless it is shown that the failure to translate the proceeding has occasioned a miscarriage of justice.

For counsel to dispense with the use of an interpreter in court on behalf of his client is certainly a misnomer, however the supreme Court had laid down the principles in Queen v. Eguabor (supra) when it found as follows:-

The right of an accused person to have without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence (conferred by section 21(5)(e) of the Constitution of the Federation 1960 cannot be invoked on appeal by an appellant who was represented by counsel at the trial, as a ground for setting aside a conviction unless he claimed the right at the proper time and was denied it.

Where the accused person had not expressly asked for assistant of an interpreter, the correct practice with regard to the conduct of the proceedings in a language not understood by the accused had not been followed by the trial court, the Federal Supreme Court will on appeal treat the matter as a question of practice and will consider whether any substantial miscarriage of justice has resulted from the failure of the trial court to follow the correct proceedings.

This state of the law was approved and applied by the Supreme Court in Anyanwu v. The State (2002) 13 NWLR (Pt. 783) 107; (2002) 6 SC (Pt. 11) 173 and State v. Gwonto (1983) 1 SCNLR 142; (2000) FWLR (Pt. 30). The appellants being represented by counsel and having fully participated at the trial and having not raised any objection then, cannot now raise an objection to the procedure.

Furthermore, the appellants had not shown that the procedure had occasioned a miscarriage of justice which is sufficient to vitiate the proceedings and trial.

On the second leg of the submission, it suffices to state that at the stage, bail was applied for, all that the court had in its possession were the proofs, of evidence and the statements of the appellants. In considering the application, it has to look into the proof of evidence and the statements of the witnesses to come to a decision. The statements were confessional and at that stage the appellants had not even recited and denied making them, the lower court was thus right in its ruling to refer to the statements and make a finding on the contents. This issue must also fail and I so hold.

Issue 4

This issue was raised as the 1st and 2nd appellants’ 5th issue and as the 3rd appellant’s 5th issue. However, this issue relates in particular to the 1st appellant and in reference to page 91 of the records where the trial court made comparisons of the 1st appellant’s signature in exhibits 1, 1A and 4 and came to the conclusion that all the signatures were similar and found that the 1st appellant did make exhibits 1 and 1A, learned counsel submits that the lower court was not a signature expert and was thereby wrong when it suo motu compared the signatures on the said exhibits and decided the case on that basis, That failure of the lower court to call on parties to address it on the point before reaching a decision infringes on the appellants’ right to fair hearing and vitiates the proceedings.

The respondent submits that the 1st appellant having admitted to exhibit 4 by the provision of section 108(1) of the Evidence Act the lower court has the right to compare the signatures not admitted with the signatures admitted in order to discover, confirm and ascertain whether the signature is that of the person by whom it is purported to have been written or made, Exhibit 4, a statement said to have been made by the 1st appellant was tendered through him while he was testifying as DW1 at page 57 of the records.

The lower court at page 91 found as follows:-

“The 1st accused had admitted making exhibit 4. I note that his statement is not thumb printed but signed. Having admitted this statement, he has also admitted his signature thereto. He also admitted that the information concerning his name, address, age, religion and occupation on exhibits 1, 1A and 4 are correct. I have compared the admitted signature of the accused person on exhibit 4 with those found on exhibits 1 and 1A pursuant to the powers conferred on me by section 108(1) of the Evidence Act 1990 and found them to be similar. This further confirm that exhibits 1 and 1A were made by the 1st accused person.”

Now section 108(1) of the Evidence Act relied on by the learned trial Judge provides as follows:-

“108(1) In order to ascertain whether a signature. writing. Seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced for my other purpose.”

As was pointed out by the lower court, the above provisions gave the court the power to make the comparisons. There is no provision that before the court can invoke that power parties must first address it.

The court is entitled to examine all disputed writings and form its own opinion without the necessity of calling on parties to address it on that point. I have also looked at the statements in issue and came to the conclusion as was done by the lower Court that there were similarities therein.

The appellants’ right of being heard was in no way infringed upon.

The 1st and 2nd appellants’ brief and the 3rd appellant’s brief all raised an issue which was not answered in the respondent’s brief.

This is their issue 3 which reads;

Whether or not the trial High Court was right when it gave leave to the prosecution to prefer charges against the appellants when the statement of the PW5 and other investigating Police officers were not attached to the proof of evidence.

I will consider their submission on the above issue and make my findings accordingly.

The submission of the two sets of appellants are similar I will therefore for ease of reference refer to the submission made by the 3rd appellant.

The contention here is that the statement of results of investigating police officers namely Inspector Emmanuel Oigondo. Sgt. Andrew Paul and Cpl Oliver Ahirakpa were not attached to the records served on the 3rd appellant prior to the trial as required by section 7 of the Criminal Procedure (statement to police officers) Rules. Cap. 30. LFN. 1963 applicable in Benue State.

That the provision of the Criminal Procedure (application for leave to prefer a charge in the High Court) Rules. 1970 made pursuant to section 185 of the Criminal Procedure Code requires that the proof of evidence of witnesses who are proposed to be witnesses should be attached. That from the records the statement of the PW5 was not included in the proof of evidence, That by the authority of ohwovoriole v. F.G.N. (2003) 2 NWLR (Pt. 803) 176; (2003) FWLR (Pt. 141) 2019 the absence of the written statement of PW5 in the proof of evidence clearly makes his entire evidence inadmissible and any decision of the trial High Court based on it is a nullity.

The Supreme Court has stated the law on an application to prefer a charge against an accused person before the High Court in Ohwovoriole v. F.R.N. (2003) 3 NWLR (Pt. 803) 176 per Kalgo, JSC at 189 where he stated:-

“An application for such leave is made pursuant to the provisions of the Criminal Procedure Code (Application to prefer a charge in the High Court) Rules 1970. Under the said rules, the application must be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at the trial, and proof of evidence (written statements) which shall be relied upon at the trial.”

I have looked at the proof of evidence and found it to be a fact that the written statement of the PW5 was not contained in the proof of evidence. This is a mandatory requirement failure of which vitiates the testimony of the PW5, I uphold the appellants’ submission on this issue accordingly and hereby expunge the testimony of the PW5 from the records.

Issue five relates to the totality of evidence adduced at the lower court. I have on the assessment of other issues touched on all aspects of evidence as decided by the lower court notwithstanding the exclusion of the testimony of the PW5 and in all found the findings of the trial court unassailable. The court had applied the law to the circumstances of the case, the evidence adduced before it and arrived at the correct decision, it is not my duty at this stage to interfere with those findings. Issues as to facts, evaluation of evidence and credibility of witnesses are within the exclusive competence of a trial court and this court will not interfere unless such finding or decision was patently unreasonable, perverse or not supported by evidence. Kodilinye v. Odu (1935) 2 WACA 336: Bature v. State (1994) 1 NWLR (Pt. 320) 267: Ogundipe v. Awe (1988) 1 NWLR (Pt. 68) 118.

The evidence as adduced before the lower court was sufficient to ground a conviction based on the testimonies of the four prosecution witnesses, the exhibits tendered and the circumstantial evidence in the matter.

In the circumstances, I find no merit in this appeal and I hereby dismiss it. I affirm the conviction and sentences of the lower court on the appellants.

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Other Citations: (2007)LCN/2421(CA)