Rabbo Damina Vs The State (1995)

ONU, J.S.C. 

The appellant, Rabbo Damina, was arraigned before the High Court of Niger State sitting in Minna upon a charge transmitted thereto from a preliminary investigation held by a Chief Magistrate for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code in that on 18th May, 1983 at Ndazabo, he killed one Bargo. The trial High Court presided over by Umaru Isiyaku Agora, J. (of blessed memory) convicted the appellant who thereupon appealed to the Court of Appeal sitting in Kaduna (Coram: Uthman Mohammed, J.C.A., as he then was, Ogundere and Okunola, J.J.C.A) which affirmed the decision of the trial court and accordingly dismissed the appeal. Being dissatisfied with this decision, the appellant has further appealed to this court.

The facts of the case, briefly stated, are that on 18th May, 1983 at Ndazabo Village, the deceased called Bargo (he was also referred to as Audu but by no means were the two names either used interchangeably or reconciled as belonging to one and the same person) who and the appellant married two sisters, were shown to be in the bush together tending cattle where it was alleged the deceased tried unsuccessfully three times to kill the appellant as his (deceased’s) gun failed to fire. It is further stated that upon their return to the village (Ndazabo) and as the deceased sat on a mat listening to his radio, the appellant, after muttering some words as if engaged in some bickering, removed his cutlass from inside the gown he was then wearing, and dealt stab wounds to the deceased’s neck and chest, causing his instantaneous death with the attention of two persons who were nearby being drawn to the noise made but who could not be said to be eye-witnesses to the stabbing. These men arrived at the scene early enough to see the appellant’s escape from the scene of crime.

At the hearing of the case, five witnesses in all testified for the prosecution, the first of whom was Doctor Joy A. Thomas (PW1) who made out the report of the autopsy performed on the deceased and tendered as Exhibit 1 by Paul Ode (PW 3). Ironically, Exhibit 1 neither contained the name of the deceased nor that of the person who identified his corpse to PW1, PW 2, (Haruna Alhaji Attahiru) asserted that he is the son to the man who employed Mamman Ishaku, Baba Musa (both of whose depositions – Exhibits 3 and 4 were recorded at the Preliminary Investigation at the Chief Magistrate’s Court but were nowhere to be found to testify at the trial) as well as the deceased, as herdsmen. He added that on 18th May, 1983 when Mamman Ishaku informed him that the appellant had cut the deceased, he accompanied him and Baba Musa to the village where he saw Bargo’s corpse on the ground. He it was who then reported the matter at the Police Station, Bida where three policemen were detailed to accompany him to the scene and on their seeing the corpse, conveyed it to the Bida General Hospital.

The police witnesses, P.W. 4 (Samuel Maiwuya) and PW 5 (Sergeant Yesuka Dogo) each testified as to the role each played in the investigation of the case and through PW 5 were tendered the appellant’s statement in Hausa Language (Exhibit 2) as well as its English translation. At the trial, the appellant testified and denied ever making Exhibit 2, let alone its translation (Exhibit 2A). The appellant further denied the contents of the charge and knowledge of the said Bargo adding that on the date in question, he was at a place called Beji, not Ndazabo. He also denied quarrelling with the deceased. He gave an account of the beating he received at the hands of the police and denied that he was lying or gave evidence which amounted to an afterthought.

Written addresses were later filed on the invitation of the learned trial Judge by either side. In his judgment, however, the learned trial Judge suo motu motu made a re-translation of Exhibit 2A upon which he placed heavy reliance to convict the appellant.

With the Court of Appeal (hereinafter referred to as the court below) confirming the trial court’s decision on appeal, the appellant, as here-in-before pointed out, has further appealed to this court upon two original and with leave, six additional grounds of appeal, the latter re-numbered 3-8 respectively.

The appellant who later filed a brief of argument in accordance with the rules of this court, served the same upon the respondent. Six issues were formulated and submitted by him for our determination. They are:-

1. Whether the re-translation of the alleged confessional statement as contained in Exhibit 2A by the learned trial Judge suo motu, in the course of his judgment is tenable in law and whether this novel procedure did not violate the appellant’s right to fair hearing and render all the findings and conclusions of guilt to which the alleged confessional statement was put a nullity
2. If issue No. I is answered in the appellant’s favour, what is the appropriate order to be made in the circumstances. Is it a trial de novo or acquittal
3. If Exhibits 2 and 2A are adjudged as being properly before the court, whether the said statement is not more in consonance with a mixed statement i.e. on which contains both incriminating and exculpatory or self-serving statement than a wholly confessional statement and if so can it be said that the learned trial Judge dealt with the said statement in accordance with the prevailing law i.e. by according to the exculpatory aspects the same weight accorded to the incriminating parts
4. Whether the entire evidence led by the prosecution disclosed a guilt of the commission of the offence of culpable homicide as found by the High Court and affirmed by the Court of Appeal
5. Whether the conclusions of the Court of Appeal Kaduna on the issue of the identity of the corpse was correct in the face of fatal flaws in the evidence of the prosecution suggesting that the corpse allegedly examined was not identified as Bargo (Deceased) to the Medical Doctor by any of the prosecution witnesses
6. Whether, contrary to the conclusion of the Court of Appeal the defences of provocation, private defence and sudden fight are available to the appellant.

On 4th July, 1995, the date fixed for the hearing of this appeal, the learned Director of Public Prosecutions of Niger State, Mr. A Bello moved the application he had earlier brought seeking leave to file the respondent’s brief of argument out of time and to deem same as duly filed and served. The application not being opposed by Mr. Daudu, learned Senior Advocate, who had indicated that he had earlier been served a copy, was granted as prayed.

At the hearing of the appeal which proceeded the same day, learned Senior Advocate Mr. J.B. Daudu, after drawing our attention to the six issues set out above and as contained in the appellant’s brief at page 9 thereof, elaborated briefly on issues 1 and 2 only. He submitted that the learned trial Judge translated the appellant’s confessional statement while rejecting that of the investigating police officer. By so doing, he maintained, the appellant’s fundamental right to fair hearing was violated, citing in support thereof the case of Mohammed Duriminiya v. Commissioner of Police (1961) NRNLR 70 at pages 73-74. He urged us to allow the appeal and to discharge and acquit the appellant without ordering a retrial, as to do so, would be oppressive.

For his part, learned D.P.P. after also adopting the respondent’s brief, first submitted that the learned trial Judge was right to have translated the appellant’s confessional statement. He, however, changed gear by saying that it was wrong of the learned trial Judge to have undertaken the translation of the statement himself.

I will now proceed to consider the appellant’s six issues which the respondent has apparently adopted as follows:-

Issues 1 and 2:

The learned Senior Advocate in arguing these issues which overlap ground 4 raised what he termed as a fundamental complaint against the conduct of the learned trial Judge vis-a-vis the alleged appellant’s confessional statement admitted as Exhibits 2 and 2A. He pointed out how PW 5, Sergeant Yesuka Dogo, testified that he took the statement of the appellant by way of assistance to Sgt. Olude who spoke no Hausa but was assigned to investigate the matter. That in his (Sgt. Yesuka Dogo’s) attempt to tender both statements, an objection was raised by the appellant’s counsel that the statements were inadmissible on the ground of inducement. At that stage, it is asserted, the trial court ordered a trial within trial.

It is then pointed out that PW 5 did not, in his evidence-in-chief, reach the stage of tendering the interpreted copy, albeit that the interpretation of it done by him from Hausa into English was received as Exhibit ‘2A’. At the end of the trial within trial, it is stated that Agora, J. ruled as follows:-