Effect of Accused Person’s Statement Made in Pidgin English

In the Supreme Court of Nigeria Holden at Abuja
On Friday the 20th Day of Mayr, 2016

Before Their Lordships
Walter Samuel Nkanu Onnoghen Clara Bata Ogunbiyi Kumai Bayang Aka’ahs Kudirat Olatokunbo Motonmori Kekere-Ekun Chima Centus Nweze Justices, Supreme Court SC.440/2011

Between
Isikilu Olanipekun……………… Appellant

And

The State ……Respondents
Lead Judgement delivered by Kumai Bayang Aka’ahs, JSC

“Statement should be, wherever practicable, recorded in the language in which they are made. This is practical wisdom directed to avoid technical arguments which could be raised. It is not an invariable practice but one to ensure the correctness and accuracy of the statements made by accused persons. … It is erroneous for anyone to assume that people who communicate in pidgin English do not understand proper or Queen’s English especially in Nigeria. …Consequently, a statement which was said to have been recorded in pidgin does not require translation into proper English and any statement made in pidgin can be recorded in proper English

Facts
On 18th August, 2002 around Oke-Efon area Abeokuta, Ogun State, at about 3:30am, the Appellant (4th accused) in company of three others armed with guns and cutlasses, broke into the apartment of a certain Evangelist Oluseye Ogunremi (PW2) and robbed him of his N800.00 cash and Nokia and Sagem Handsets, after hitting him with an iron on the head. On the following day, one of the accused persons tried to sell the handsets to PW1 who became suspicious of the accused person, when he failed to produce the purchase receipt of the handsets. He therefore, arranged for the arrest of the accused person, after receiving information of a recent robbery that took place a day before. At the police station, the statement of the 1st accused person implicated and led to the arrest of the other accused persons, including the Appellant, and the recovery of two locally made single barrel shot guns.

The Appellant, who made his statement in Pidgin English, was thereafter arraigned before the High Court of Ogun State with the other three accused persons, for the offence of conspiracy and armed robbery contrary to Sections 5(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 38 Vol. XXII, Laws of Federation 1990. During the trial, the Appellant’s confessional statement was tendered in evidence before the court without an objection, and was admitted as ‘Exhibit D’. The learned trial judge convicted and sentenced the Appellant and the other accused persons to death by hanging, for the offence of armed robbery while the court stayed the sentence on the 1st count of conspiracy. Aggrieved by the judgment, the Appellant filed an appeal at the Court of Appeal which was heard and dismissed. Still dissatisfied with the decision, he further appealed to the Supreme Court.

Issues for Determination
The issues before the Supreme Court were as follows: (i) Whether the Court of Appeal was right to have af- firmed the decision of the trial court which was based on extraneous evidence in finding that ‘Exhibit D’ was true, in total disregard of the Supreme Court’s decision in plethora of authorities to wit: OKOH v THE STATE (2014) LPELR 22589 (SC), (2014) 8 NWLR (Pt. 1410) 502; DEMO OSENI v THE STATE (2012) 5 NWLR (Pt. 1293) 351; (ii) Whether there was any reliable evidence in proof of the identity of the Appellant to support the Court’s decision that the Prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt?

Arguments
In arguing the first issue, counsel for the Appellant referred to the evidence in chief and cross-examination of PW4 and submitted that having established that ‘Exhibit D’ was made and recorded in pidgin English, the prosecution ought to have tendered the statement of the Appellant and not ‘Exhibit D’ which authorship was shrouded in doubt, as there was no evidence of its translation to proper English. He concluded that the failure of the Respondent to make available the Appellant’s statement denied him his right of fair hearing. The Respondent, on the other hand, submitted that both the trial and appellate courts had properly evaluated the evidence before arriving at their conclusion and that the veracity of ‘Exhibit D’ was never raised at the trial court or at the Court of Appeal. He submitted that the issue of the statement being recorded in Pidgin English was a mere fabrication and urged the Supreme Court not to disturb the concurrent finding of facts of the two lower courts. On the second issue, counsel for the Appellant had argued that PW2 did not have any relationship with the Appellant prior to the incident, since he did not give any description of the Appellant prior to his testimony in court. He also submitted that the recollection of the witness was likely to be fraught with mistakes in view of the fact that the robbery took place in August, 2002 and the identification parade did not take place until June, 2005. The counsel for the Respondent submitted that the burden of proving the accused person to be one of the robbers, was easily discharged when he was caught at the scene of the crime or shortly thereafter.

Court’s Rationale and Judgement
On the first issue for determination, the apex court considered the submissions of parties and relevant pages of the record of proceedings and held that the issue of fair hearing would have arisen, if the Appellant did not understand English and the statement had to be recorded in the language he speaks or understands and later translated to English. The Supreme Court relied on the cases of QUEEN v ZAKWAKWA OF YORO (1960) 1 NSCC 8 and NWALI v STATE (1991) 3 NWLR (Pt. 182) 663, which stressed the importance of getting the original statement, the translations and those who did the translations produced in court, for the purposes of comparison and testing the veracity of the translated versions. In QUEEN v ZAKWAKWA (supra), the statements of the accused person were not in English but in Mumuye to Hausa to English by different people, which led to the setting aside of the conviction because the people who translated the statements were not called for cross-examination. Also, in NWALI v STATE (supra), the statement of the accused person was recorded in Ibo language and then translated to English, and the Supreme Court in the case held that the Court of Appeal could rely on the statement, since the Appellant in the case did not disown the statement in English, as not being the correct version of what he recorded. In deciding the instant case, the Supreme Court held that, “Statement should be, wherever practicable, recorded in the language in which they are made. This is practical wisdom directed to avoid technical arguments which could be raised.

It is not an invariable practice but one to ensure the correctness and accuracy of the statements made by accused persons. … It is erroneous for anyone to assume that people who communicate in pidgin English do not understand proper or Queen’s English especially in Nigeria. …Consequently, a statement which was said to have been recorded in pidgin does not require translation into proper English and any statement made in pidgin can be recorded in proper English. ‘Exhibit D’ therefore cannot be treated as secondary evidence. It is primary evidence.” On the sub-issue of whether the court can convict on an uncorroborated confessional statement, the Court held that the Appellant who testified in his own defence under cross-examination denied ever seeing any of the accused persons. He alleged that he had been tortured to sign the statement, but no objection was raised when ‘Exhibit D’ was being tendered. Relying on the overwhelming evidence in support of the case, the Supreme Court found that there was corroboration of ‘Exhibit D’ where each of the accused persons, including the Appellant, had mentioned the names of members of the robbery gang.

The apex court further relied on the provision of Section 29 of the Evidence Act, 2011 to hold that, ‘Exhibit D’ was corroborated in all material particulars and the confession was true. The conviction of the Appellant was not only predicated on the confessional statements of the co-accused persons. It was a culmination of his adoption that he belonged to the gang of robbers which included the 1st, 2nd and 3rd accused and the corroboration of Exhibits ‘D’ by Exhibits A, C, and C1.” On the second issue, relying on the authority of BOZIN v THE STATE (1983) 3 NWLR (Pt. 8) 46; IKEMSON v THE STATE (1997) 1 NWLR (Pt. 481) 355, the apex court held that once an offence of armed robbery has been established, the requirement left is to prove that the accused was one of the robbers and that such identity is of paramount importance. This requirement is fulfilled by conducting an identification parade where the accused was not apprehended at the scene of the crime. The Supreme Court relied on the case of SADIKU v STATE (2013) 11 NWLR (Pt. 1364) 191 at 213 on the circumstance when an identification parade would be necessary and held that the identity of the Appellant was not in doubt. PW2 testified that the robbers were not masked, and that it was the Appellant who hit him with an iron and also ordered him to lie on the floor. Thus, it would be antithetical to require an identification parade to be conducted for PW2 to pick out the Appellant, after he had confessed to participating in the robbery. Based on the foregoing, the Supreme Court dismissed the appeal and affirmed the conviction of the Appellant for armed robbery for which he was sentenced to death by hanging. Appeal Dismissed.

Representation: A. Kazeem with O. Bolarinwa for the Appellant W.Y. Mamman with Hajara Halilu (Mrs), Hadiza U. A. Attah (Mrs), Blessing Anazodo (Miss), A.M. Usman and Olafunso Ogunniyi for the Respondent.

Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))