Admissibility of Translated Statement of an Accused Person Recorded in Vernacular
Facts
The Appellant and two others, were charged at the High Court of Ogun State, for the offences of conspiracy to commit armed robbery and armed robbery. It was the case of the Prosecution that on 15th April, 2003, the Appellant and five other persons armed with guns and cutlasses, robbed a certain Bamidele Ogunbiyi (PW1) and his wife (PW2) in their home, with one Abiodun Otunde (PW3). After the robbery, the victims reported the incident at the Ayetoro Police Station, and a Policeman was directed to accompany them to a Police Checkpoint along Abeokuta Road. While at the checkpoint, a Toyota starlet car with six men inside was ordered to stop, and all of the passengers disembarked. Some of them fled. However, the Appellant was arrested and taken to the Police Station, where he made two statements - Exhibit M and N. PW1 and PW2’s properties were found in the boot of the car. Within a month after the armed robbery incident, the Police conducted an identification parade where the Appellant was positively identified by PW1. In his defence, the Appellant set up an alibi to the effect that on 14th April, 2003, he was at the site of a certain Pastor Ashore, where he was working as an electrician and he slept on site. He further stated that he boarded a vehicle at Ayetoro Motor Park, after he was dropped off by the younger brother of Pastor Ashore, and that he was inside the vehicle when it was stopped and he was arrested. He denied conspiring with anyone to commit armed robbery. The Appellant identified exhibit M as his statement after it was read to him, but denied making exhibit N. At the end of the trial, the trial judge found the Appellant and the other accused persons, guilty of the offences as charged and sentenced them to death. Dissatisfied, the Appellant appealed to the Court of Appeal which dismissed his appeal. The Appellant further appealed to the Supreme Court.
Issues for Determination The Supreme Court adopted the following issues for determination:
1. Whether exhibit “N” was properly tendered and admitted through the Appellant, and rightly acted on by the trial Court and affirmed by the Court of Appeal, in convicting the Appellant of the offences charged.
2. Taking into consideration the defence put up by the Appellant, could it be reasonably contended that the Prosecution adduced sufficient evidence to fix the Accused person at the scene of the crime, even if the doctrine of recent possession was invoked against the Appellant such that his conviction and sentence ought not to be disturbed by the Honourable Court.
Arguments On the first issue, Counsel for the Appellant, observed that exhibit N is an English translated version of the statement of the Appellant given in Yoruba. He further observed that, the Appellant denied making it but the Prosecution tendered the statement through him unchallenged. He submitted that, the said exhibit is inadmissible since the interpreter was not called to give evidence. Therefore, it was wrongly admitted by the trial Court, and this ought to be reversed on appeal.
In response, Counsel for the Respondent submitted that, exhibit N was tendered through the Appellant during his cross-examination, and there was no objection by the Appellant or his counsel. He argued that, exhibit N was a voluntary confession made by the Appellant, and the Courts were right to have admitted it as valid evidence in convicting the Appellant.
On the 2nd issue, it was argued for the Appellant, that the failure of the Police to investigate the alibi and to call the driver of the Toyota Starlet car, was fatal to the Prosecution’s case. He argued that, if the alibi of the Appellant was tested against the doctrine of recent possession, the alibi would have created doubt, which ought to have been resolved in favour of the Appellant, and that the trial judge only invoked the doctrine of recent possession to disprove the alibi of the Appellant. Counsel observed that, it was after the stolen items were found in the boot of the Toyota Starlet car, that PW1 recognised all the armed robbers and that the subsequent evidence of identification against the Appellant, which was prompted and aided by the finding of the stolen items in the car, was improper, and ought not to be relied upon by the trial Court. He also contended that, the Respondent was unable to link each of the accused persons with the stolen items, and urged the Court to allow the appeal.
Conversely, Counsel for the Respondent argued that, the evidence of identification given by PW1, PW2 and PW3 was not challenged under cross-examination. He stated that, the robbers were not masked when they carried out the robbery, and they had spent sufficient time with PW1, PW2 and PW3, thereby making identification easy. On the doctrine of recent possession, Counsel submitted that it was correctly invoked by the Courts below, since the evidence that the Appellant was found to be in possession of the stolen goods shortly after the robbery, without the Appellant providing cogent reason for his possession of same, nailed him to the offences he was charged with.
Court's Judgement and Rationale In determining the first issue, the Apex Court relied on its decision in FRN v USMAN (2012) 8 NWLR (PT. 1301) PG. 141 to hold that before the statement of an accused person given in vernacular can be admissible in evidence, the Police Officer who recorded the statement and the interpreter, must testify in court. For Exhibit N to be admissible under Section 91(1)(a) and (b) of the Evidence Act, it must be tendered through the interpreter and/ or the person who recorded it. That is to say, it must be tendered by a person who can give direct oral evidence of its contents. In the absence of the person who interpreted and recorded Exhibit N to give evidence, it amounts to documentary hearsay and is inadmissible; no probative value can be attached to it. Although it is the duty of counsel in a trial Court to object to inadmissible evidence, however, where the Court finds that inadmissible evidence has been wrongly admitted, it has a duty to expunge it when delivering judgement, and where such inadmissible evidence escapes the scrutiny of the trial Court, the Appellate Court must reject such evidence.
On the 2nd issue, the Supreme Court held that, where an Accused person relies on the defence of alibi, the onus of establishing same lies on him since it is within his personal knowledge. The alibi must be comprehensive on when, where and with whom the accused person was on the day and time the offence was committed. Once there is stronger evidence to fix an accused person at the scene of the crime, investigation of an alibi would not be necessary. OKOSI v STATE (1989) 2 SC (PT. 1) P. 126. Further, on the issue of the identification parade conducted, once the witness/victim of a crime who says he saw the Accused person committing the crime identifies him in a properly conducted identification parade, the identity of the Accused person is no longer in dispute. Relying on the doctrine of recent possession as provided in Section 167(a) of the Evidence Act, it was held that the court may presume that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for it.
Relying on Section 251(1) of the Evidence Act, 2011, the Court held that the wrongful admission of evidence, shall not be sufficient ground for reversal of any decision on appeal, where there are other pieces of evidence that can sustain the decision of the trial Court. The rejection of the Appellant’s purported statement - exhibit N - in evidence notwithstanding, the evidence of PW1, PW2 and PW3 identified and fixed the Appellant at the scene of the crime. The Appellant was unable to put forward evidence of his alibi worth considering; therefore, the Prosecution was right by not investigating the alibi, particularly in view of the overwhelming evidence linking the Appellant to the armed robbery. The discovery of the materials carted away in the course of the robbery, in possession of the Appellant, among other evidence, was sufficient to establish the case of the Respondent against the Appellant.
Appeal Dismissed.
Representation: M. Adetunbi Esq. with B.T. Onwubiko and A.A. Abdulraheem for the Appellant
"BEFORE THE STATEMENT OF AN ACCUSED PERSON GIVEN IN VERNACULAR CAN BE ADMISSIBLE IN EVIDENCE, THE POLICE OFFICER WHO RECORDED THE STATEMENT AND THE INTERPRETER, MUST TESTIFY IN COURT. FOR EXHIBIT N TO BE ADMISSIBLE UNDER SECTION 91(1) (A) AND (B) OF THE EVIDENCE ACT, IT MUST BE TENDERED THROUGH THE INTERPRETER AND/OR THE PERSON WHO RECORDED IT. THAT IS TO SAY, IT MUST BE TENDERED BY A PERSON WHO CAN GIVE DIRECT ORAL EVIDENCE OF ITS CONTENTS"