Mustapha Umar V. The State (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED MUSTAPHA, J.C.A.
This is an appeal against the judgment of the High Court of Niger State sitting at Suleja; by a notice of appeal dated the 12th March 2014, and filed on the 16th of May 2014 same having been deemed properly filed on the 9th of September, 2014.
The appellant and three co-accused persons were charged with conspiracy, culpable homicide and robbery, contrary to Sections 97, 221 and 298 of the Penal Code respectively; the appellant was convicted on the 18th of April, 2013, and sentenced to death for the offences of conspiracy and culpable homicide, and to seven years imprisonment for robbery; the charges are as follows:
That you Mustapha Umaru, Shuibu Bawa, Awalu Yahaya and Bello Sani Danlami all ?M? of Bulasawa Filling Station Suleja on or about 2030 hrs, on the 21st Day of December 2010 conspired amongst yourselves to commit felony to wit, by given Battery acid to one Umaru to drink now deceased and later robbed the office of the manager of the station and took away the sum of N675,550.00 (Six Hundred and Seventy Five Thousand, Five Hundred and Fifty Naira) only, from the Safe in
1
the manager’s office and you thereby committed offences of Conspiracy Homicide, and Robbery Contrary to Sections 97,221 and 298 of the Penal Code.
This appeal is against that conviction and sentence on the following grounds, shorn of their particulars:
GROUND ONE:
The Learned Trial Judge erred in law in convicting the Appellant of the offence of culpable homicide contrary to Section 221(1) of Penal Code and conspiracy contrary to Section 97 of the Penal Code, and robbery in view of the totality of the evidence before the Court.
GROUND TWO:
The Learned Trial Judge erred in law in relying on Exhibit 1 as confessional statement of the Appellant to convict him of the offences he was charged.
GROUND THREE:
The Learned Trial Judge erred in fact in convicting the Appellant along with the other 2 co-accused persons of culpable homicide punishable with death, conspiracy and robbery on the ground that co-accused Bello San Danlami had the key to the office and Safe from where money was stolen without any sign of breakage into same.
GROUND FOUR:
?The Learned Trial Judge erred in law in convicting the Appellant of culpable
2
homicide punishable with death, conspiracy and armed robbery when the circumstances and cause of the death of the deceased was unknown.
GROUND FIVE:
That the whole decision is unwarranted and cannot be supported by having regards to the weight of evidence.
GROUND SIX:
The Learned Trial Judge erred in law in proceeding with the trial of the Appellant and other co-accused persons on the charge lump three distinct offences together contrary to Section 212 of the Criminal Procedure Code thereby occasioning miscarriage of justice.
GROUND SEVEN:
The Learned Trial Judge erred in law in admitting the evidence of the medical doctor summoned by the prosecution to testify contrary to Section 249 of the Criminal Procedure Code.
GROUND EIGHT:
The Learned Trial Judge erred in law in convicting the Appellant of robbery contrary to Section 298 of the Penal Code when the prosecution failed to prove the necessary ingredients of the offence.
From these grounds the following issues were formulated for the appellant, and adopted by the respondent:
1. Whether from the evidence before the Court, the prosecution has proved the
3
offences of conspiracy and culpable homicide punishable with death, for which the appellant was convicted, beyond reasonable doubt.
2. Whether the prosecution proved the offence of robbery beyond reasonable doubt, to warrant the conviction of the appellant.
It is submitted for the appellant on issue one that there was no eye witness to the commission of the alleged offense; the prosecution relied only on circumstantial evidence and a retracted confession of the appellant.
That PW2 who took the statement of the appellant in Hausa Language does not understand the language, but was translated to him by one Inspector Offikwu and it was admitted as Exhibit 1.
That also the appellant apart from retracting the confession, was not a staff of the filling station and so could not have known whether there was money in the safe or not, much less steal it; in view of which he contended the prosecution did not prove conspiracy beyond reasonable doubt.
That from the totality of evidence there was nothing linking the appellant with conspiracy except his retracted statement, which ought not to be used to convict him.
?Learned counsel further
4
submitted that even though there was evidence suggesting that the appellant was the last person seen with the deceased, there was evidence also that many motor cyclists sleep in the filling station where the deceased was found dead, and anyone of them could have killed the deceased; and that being so, the prosecution has failed to prove the charge of conspiracy beyond reasonable doubt.
That also Exhibit 1 cannot be relied on because the appellant stated he was tortured to make that statement, he referred the Court to DAWA V. STATE (1980) 8-11 SC 236 at 367, HARUNA V. A.G. FEDERATION (2012) 32 WRN 1 at 13 and OLUSEGUN OTAPALE BROS V. THE STATE (1968) MNLR 261.
That also while the death of the deceased cannot be denied even though the guard was said to have been fed acid in the confession the medical examiner was not sure of what caused the death.
That also the statement of the appellant that the deceased was dumped in a pit cannot be corroboration, because the corpse was discovered in the pit within the filling station even before the appellant was arrested, and also that the N20,000 alleged found from the appellant out of his share of
5
N100,000 was not before the Court, as well as the motor cycle he allegedly bought.
Learned counsel also submitted that there was no illiterate jurat at the end of the statement even though the appellant does not speak English but Hausa; and PW5, Inspector Gabriel Offikwu in his evidence did not state that he interpreted the statement, as a result he contended doubt is created as to the truthfulness of the confession.
In response it is submitted for the respondent that Exhibit 1 gave clear indication of the degree or involvement of the appellant, and that coupled with other acts of the co-accused persons in common intention led the trial Court to properly convict, learned counsel referred the Court to pages 219 to 221 of the record of proceedings.
While referring to DR. SEGUN ODUNEYE V. STATE & ANR (2001) 1 SC part 1 at 6 learned counsel further submitted that conspiracy entails a common design to do or omit to do an act criminally and compliance can be inferred from things done.
That evidence of common intention renders all accused persons culpable in the commission of crime regardless of the part they played, he referred the Court
6
to Section 79 of Penal Code and CHINUGO & ORS V. STATE (2001) FWLR part 74 part 242 at 251.
Learned counsel also submitted that culpable homicide was established by the evidence adduced against the appellant at the trial, and the conviction was therefore in order; he referred the Court to EBONG & ANR V. THE STATE (2012) ALL FWLR part 633 at 172 and the findings of the trial Court at page 223 of the record of proceedings.
That the confessional statement is voluntary admission of the crime by the appellant himself, and was not contended at the time it was sought to be tendered at the trial and so the commission of the crime was established beyond proof: he referred the Court to SHANDE V. STATE (2005) 6 SC part 11 at 6, ALH. PRINCE KAREEM v. FED REPUBLIC OF NIGERIA (2002) FWLR part at 811.
On issue two it is submitted for the appellant that the Ingredients of robbery and stealing are the same save for the use of weapons and the threat of use of violence, learned counsel referred the Court to RAFIU V. STATE (2012) 32 WRN 55.
?That the prosecution did not prove robbery in this case by evidence led through any of its witnesses, and the
7
confessional statement did not also establish robbery, especially as the guard was not trying to prevent the appellant or his co accused from entering or taking any money, learned counsel referred the Court to OTTI V. THE STATE (1993) 5 SCNJ 143 at 147.
It is submitted for the respondent in response that the prosecution established the offence charged; learned counsel referred the Court OJETOLA & ANR V. STATE (2010) LPELR-4803-CA and ARUNA V. STATE (1990) NWLR part 156 at 125.
That the evidence of PWS1, 5 and 7 were against all the accused persons including the appellant who confessed; that the deceased was actually killed to enable the appellant and the co-accused persons to commit robbery; learned counsel referred the Court to ISIBOR V. STATE (2005) ALL FWLR part 259 at 2017 and BALOGUN V A.G. OGUN STATE (2001) FWLR part 1 at 167.
The two issues will be taken together and resolved not only because they are intertwined but also for the purpose of brevity.
?There does not appear to be any dispute in this case on either side of the divide as to the death of the deceased guard, Umar Jibrin; what is in dispute is whether he died as a result of
8
the acid he was made to ingest or the slashing of his throat with a hack saw, and indeed whether the appellant had anything to do with that, and the allegations of conspiracy and robbery.
The finding of the trial Court is that the saw, found at the scene of the crime and tendered and admitted as Exhibit 5 before the trial Court was used to slash the deceased to death, see page 215 of the record.
Exhibit 1 is the confession of Mustapha Umar the appellant in this case, purportedly admitting the role he played in the death of the deceased Umar Jibrin as well as the conspiracy and robbery.
A confession in law is an admission, made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime. The law is that if the accused makes a free and voluntary confession which is direct and positive and it is properly proved, then the accused may be convicted on the confession; see Section 28 of the Evidence Act, 2011 and AFOLABI V. COMMISSIONER OF POLICE (1961) ALL NLR 654.
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to
9
have been caused by inducement threat or promise made to the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain advantage or avoid any evil of a temporal nature; see Section 29 of the Evidence Act, 2011.
It is very important to now determine whether Exhibit 1 qualifies as a confession in this case, to determine its attendant evidential worth; in doing so recourse ought to be had to the evidence of PW2, Sergeant John Ateni who while testifying at page 137 of the record stated that he ?…cautioned the 1st accused person in English Language which was interpreted to him in Hausa Language by Inspector Gabriel Offikwu, he accepted he understood and thumb printed.
He gave me his voluntary statement in Hausa Language and was interpreted to me in English by the same Inspector Offikwu…he confessed to the commission of the crime
Inspector Gabriel Offikwu on the other hand while testifying as PW5 at page 143 to 149 did not mention anywhere that he interpreted the statement
10
to PW2 from Hausa to English or to the appellant from English to Hausa, or if the statement was on the other hand made and written in Hausa Language, that version was neither tendered not admitted in evidence.
This procedural failure in the considered opinion of this Court is a fatal failing on the part of the prosecution; it is in this regard that the Supreme Court held in NWAEZE V. STATE (1996) NWLR Part 428 at 1 that:
“The point cannot be over-emphasized that where an interpreter is used in the recording of the statement of an accused person, such a statement is in law inadmissible unless the person who was used in the interpretation of the statement is called as a witness in the proceedings as well as the person who recorded the same, Accordingly, failure on the part of a trial Court to appreciate the inadmissibility, as evidence, of an alleged statement by an accused person when such statement is not confirmed and established by the person who acted as interpreter when it was being recorded in a different language can be fatal to a conviction which is based on such a statement in that the Court would have misdirected itself in accepting the
11
statement as having been proved”.
Where the Police Officer directed to obtain a statement from an accused person does not understand the language spoken by the accused person, and so requires the services of an interpreter, the interpreter is expected to interpret between the police officer and the accused person; he has to understand the language spoken by the accused person, and also the English Language, and then speaks to the accused person in the language he understands, and interprets that to the police officer in English, exactly what the accused person said.
The Police Officer then records it in English, what is now the statement of the accused person, usually also recorded in the language the accused understands, and both documents, i.e. the translation and the transliteration, are admissible in evidence as the statement of the accused person, see FRN V. USMAN & ANR (2012) LPELR-7818-SC.
Before these documents are admissible in evidence the police officer who recorded the statement and the interpreter must testify also in Court, this is vital testimony.
In Court the interpreter is expected to tell the Court the questions he
12
asked the accused person on behalf of the police officer and the response given by the accused person; it is only when this is properly done that it can be said with any degree of certainty that the truth of the statement has been established, and the Court would have no difficulty concluding that the statement is a correct reproduction of what the accused person told the interpreter.
When the purpose for tendering a statement is to establish the truth of its contents, and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in Court. The statement is hearsay and inadmissible if the interpreter does not testify in Court, see R. V. OGBUEWU 1949 12 WACA P.483; R. V. GIDADO 6 WACA p.60; R. V. SAKWAKWA 1960 5 FSC P.12; NWAEZE V. STATE 1996 2 NWLR PT.428 p.1.
A witness is expected to testify in Court on oath on what he knows personally, if the witness testifies on what he heard some other person say, then his evidence becomes hearsay.
If on the other hand his testimony is to establish the truth of an event in question or as in this case to establish the truth
13
of the contents of the appellant?s statements, it is hearsay and inadmissible evidence.
This requirement of the law is not meant to be perfunctory. It has to be met specifically, and strangely the prosecution in this case, knowing full well the gravity of the offense and the importance of the confession to the prosecution of this offence, woefully failed to make sure that these requirements were met with regard to what transpired between Mustapha Umar, the appellant and John Ateni and Gabriel Offikwu during the course of taking the alleged confession, Exhibit 1; this to say the least is not only very sad, but pathetic, because in view of these failings, Exhibit 1, the confession clearly inadmissible evidence admitted. This is more so as neither the Hausa version of the confession was tendered nor admitted at the trial, the consequence of which is grave to the conduct of the trial at the lower Court.
If the issue were simply the retraction of a confession the matter could have been straight forward and simple, as the retraction of a confession does not make it inadmissible per se; see AKPAN V. STATE (1992) NWLR part 248.
14
Inadmissible evidence on the other hand, where admitted ought to be rejected in toto, and the case decided on legal evidence, see OKONJI v. NJOKANMA (1991)7 NWLR part 202 at 131.
The confession Exhibit 1 clearly played a major role in the decision arrived at by the trial Court, without it, other evidence, including the principle of last seen, relied on by the trial Court could not have led to the conviction of the appellant in the circumstances of this case as it is.
If the trial Court had not relied on the confession or if the appellant could have been convicted by other evidence, this Court might not then interfere; ?…if an appellate Court is of the opinion, that the inadmissible evidence cannot or could not reasonably have affected the decision, it will not interfere, but if it is the opinion that without the inadmissible evidence the decision must have been different, it will interfere…? A.G LEVENTIS NIG. PLC V. AKPU (2007) 617 NWLR Part 1063 at 416; but alas, that is not the case the trial Court had this to say about the confession at page 216 of the record ?…the confession is positive, precise, voluntary and clear admission of the
15
commission of the crime…” at 217 “…the confession was contemporaneous and consistent…?; on page 223 in an answer to the hypothetical question ?was the death caused by the accused?”, the lower Court had this to say: ?… Exhibit 1 (i.e. the confession) the 1st accused said he bought the acid, the 4th accused gave the deceased the acid to drink on the pre that it was medicine…the 3rd accused and 4th accused…moved the deceased to behind the mosque and beat him up…”
Clearly Exhibit 1, the confession was the very basis of the conviction and sentence of the appellant in this case; yet as it is, in the eyes of the law it amounted to little or next to nothing in the circumstances of this case; it is indeed painful for this Court to declare Exhibit 1, the confession worthless, but a spade has to be called a spade.
It is the responsibility of the prosecution at the trial Court to establish conspiracy between the appellant and the other co accused persons, as well as culpable homicide and robbery, contrary to Sections 97, 221 and 298 of the Panel Code as charged respectively.
With regard to the charge of conspiracy it is
16
necessary to establish a meeting of the minds, a plan to carry out the offensive act and an act on the part of the conspirators which leads the trial Court to a conclusion that the appellant and others were engaged in accomplishing a common objective, bearing in mind that “…the offence of conspiracy is often hatched in utmost secrecy. So, in determining a case of conspiracy the circumstances of the case must be carefully considered.” OGEDENGBE V. STATE (2014) 12 NWLR PART 1421 AT 344.
Contrary to the findings of the trial Court, this Court fails to see how the appellant could be said to have participated in the conspiracy, homicide or robbery, to the satisfaction of this Court, i.e. beyond reasonable doubt.
Merely being at the scene of a crime is not enough to conclusively say the appellant conspired along with others, robbed and or murdered the helpless guard, especially as the confession, Exhibit 1, is knocked out by reason of its inadmissibility, and it is clear that inadmissible evidence is of no moment even where it is wrongly admitted, either by consent of the parties or without objection by the other party see OKORO V. THE STATE (1995) 12
17
SCNJ 84 AT 96; SADIKU OSHO V. MICHAEL APE (1995) 6 SCNJ 139 AT 152, such evidence is liable to be expunged by an appellate Court or otherwise discountenanced.
The prosecution did not establish the offences charged by any other means, especially not by circumstantial evidence, it simply is not enough; the Court is left in doubt as to the inconclusiveness of the degree of participation of the appellant in the alleged conspiracy, culpable homicide and the robbery.
Having said that it is no less significant that the trial Court relied on the doctrine of the last seen which holds that:
“…the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance.
In the absence of a satisfactory explanation, a trial Court and an appellate Court will be justified in drawing the inference that the accused person
18
killed the deceased.” HARUNA V. A.G. FEDERATION (2012) LPELR 7821 SC.
The record shows that the appellant was not the last person seen with the deceased person in any event; PW3 stated at page 141 of the record of proceedings that ?I went to park my vehicle at Bulasawa Filling Station in Suleja and saw Mustapha with late Mallam Umar, the guard of the filling station. The guard was vomiting and the 1st accused said he was standing by him…” during cross examination he said he “did not see the 3rd and 4th accused with the appellant and the deceased at the station on the fateful day and time…..”
PW2 Sergeant John Ateni, the Investigating Police Officer (I.P.O) stated during cross examination at page 139 that ?what shows conspiracy between the four accused persons was the admission by the first accused person…?
Clearly the doctrine of the last seen cannot be said to apply to the appellant strictu sensu, in view of the evidence available, because to be the last seen means exactly what it says, and that is not supported by the evidence before this Court. The evidence is just not enough in this regard to lead to that conclusion.
19
It is the considered opinion of this Court that it is very unsafe to convict on the evidence available granted a dastardly crime was committed, granted also that the appellant was suspected of being one of the conspirators, he may have played a part in any of the offences charged or not! But for conviction to be sustained, the evidence must prove the commission of the crime alleged beyond reasonable doubt; that is not the case here. This Court is left in doubt, which has to be resolved in favour of the appellant.
It is important to mention here again that this Court is satisfied that there was a robbery and a murder in the process but the prosecution failed to establish the guilt of the appellant in respect of either, beyond reasonable doubt:
“in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable state of affairs, other than that of the guilty of the Defendant shall be entitled lo acquittal of crime charged, if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible” – UBANI V. STATE (2003) 4 NWLR (PT.809) 51 @
20
64.
Sadly because the ultimate truth is not the prerogative of the human judge this Court has to rely on laws, and principles which require that for a conviction to be sustained the commission of the offense alleged must be proved beyond reasonable doubt it was not done so in this case.
The Court is left in so much doubt as to whether the appellant is guilty of any of the offenses charged, and in the circumstances it is very unsafe to convict; this Court had this in mind when it held in IBRAHIM V. STATE (1994) LPELR-14350-CA that:
“?Thus for evidence to warrant conviction, it must exclude beyond all reasonable doubt every other hypothesis than that of the accused’s guilt and an accused is entitled to acquittal if his guilt of the crime charged is not the only reasonable interpretation on which the facts adduced against him are susceptible and if the stated facts are compatible with either innocence or guilt, the Court must acquit since evidence which tends to prove either of the two propositions had succeeded in proving neither. The evidence of the prosecution must not be vague uncertain or improbable or even an affront to
21
intelligence. It must have the distinctive characters of clarity and precision. Indeed the term reasonable doubt conveys its own meaning. It cannot be accorded quantitative value other than a general rational definition. The primary and singular consequence of this term is a doubt founded on reason rather than a vain fanciful, whimsical, capricious imaginary, speculative doubt. It must not be one that presents hesitancy in the decision of the Court
Issues one and two are accordingly resolved n favour of the appellant and against the respondent; in the circumstances therefore, this Court finds this appeal meritorious, the judgment of the trial Court is hereby set aside, the appellant is discharged and acquitted.
Other Citations: (2016)LCN/8734(CA)
