This is an appeal against the judgement of the Court of Appeal sitting at Calabar Coram: Mohammed Lawal Garba, Uzo .I. Ndukwe Anvanwu, Joseph Tine Tur JJCA, delivered on the 6th day of December, 2012. The Court of Appeal or court below or lower court upheld the decision of the Akampa Division of the Cross-River State High Court of 28th November,2008 per B.T. Ebuta .J. convicting the appellant for the offence of murder contrary to Section 319(1), Laws of the Cross-River State of Nigeria,2004.
FACTS BRIEFLY STATED
The deceased who was appellant’s wife went to the farm in the morning at Mangor, Oban in Akampa Local Government Area of Cross River state on the 17th day of April, 2003 and did not come back. The appellant informed the village head of the development. The village head constituted a search party to look for the deceased in her farm.
On getting to the farm the corpse of the deceased was found, the head was almost completely severed from the neck with a sharp object most probably a sharp knife. When the matter was transferred from the Akampa Police station to Police headquarters Calabar, the appellant confessed and gave a vivid account of how and why he killed the deceased. The appellant’s appeal to the Court of Appeal Calabar was dismissed; he has now appeal to this apex court.
APPELLANT’S ISSUE FOR DETERMINATION
Chief F.0.0nyebueke of counsel for the appellant on the 26th October,20’l7 date of hearing adopted his brief of argument filed on 14th May,2013 and in it was distilled a sole issue, viz:
Whether the confessional statement that was made in Efik language and interpreted into English language by PW4 was qualified on a statement made in a different language and whether the prosecution was bound to tender the different versions of the statement before the trial court and whether the doubts surrounding the making of the statement have effected its validity.
Canvassing the position of the appellant, learned counsel contended that the court below relied solely on confessional statement of the appellant in affirming the decision of the court of first instance. That even though the court can convict on only the confessional statement that was voluntarily made which is true even though the court cannot convict upon a statement that is not admissible in evidence. He stated that the defence counsel objected to the admissibility of EXHIBIT “1” but the learned trial judge over-ruled the objection, that the statement interpreted into English version ought to have been tendered not withstanding that it was written by the investigating Police Officer. That the failure to tender that native version of the statement cast a doubt as to the authenticity of the admitted confessional statement and this doubt should be resolved in favour of the accused appellant. He cited AKPAN V STATE (1986) 4 C A (Pt.11) 105; NWOSU V STATE (2003) FWLR (Pt.153)271 at 282; KALU V STATE (1988) 4 NWLR (Pt.90) 503.
What follows thereafter is that the law has provided that in order to prove a charge of murder, the prosecution must successfully prove all the essential elements of the offence which are as follows;
(a). That the victim is dead; (b). That the death of the victim was caused by the unlawful act or omission of the accused; (c). That the act or omission of the accused that resulted in the death of the deceased was intentional, and such an act that will either result in death or grievous bodily harm.
In respect of the method of proving a criminal offence and in this instance, murder by the confession of the accused. Section 28 of the Evidence Act has provided that a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed crime. Once it is established that the confession was freely and voluntarily made it is admissible evidence and thereafter it is a piece of evidence that cannot be taken lightly since it has come from the accused himself.
The appellant had urged the court to reject the confessional statement as it did not meet the standard for admissibility at the trial court. Just as at the two courts below, the accused sought to retract his confession, Exhibit 1. The learned trial judge had found that the confession is true as it disclosed facts which pointed to its veracity. That the events discussed in that statement were in agreement with the evidence as adduced by the prosecution witnesses including the description of the injuries on the body of deceased as stated by the accused appellant under cross-examination. Also thrown up is that the accused had the opportunity to commit the said offence.
Also is in evidence as stated by PW1, PW2 and PW3 that they heard the appellant admitting the killing of his wife and this investigating police officer before he was taken before a senior police officer to make what is contained in Exhibit ‘1’. Again the matchet Exhibit 2 which is the weapon of offence was tendered without objection and the injuries as described by the appellant consistent with what would be inflicted by Exhibit 2 which caused the death of the deceased.
Getting back to the confessional statement, Exhibit ‘1’ which the appellant is resiling from on the ground that he made the statement in Efik and what is tendered is in English and so the conditions on which the statement in English would be admitted are absent. Indeed it is desirable that an accused person’s statement should be taken down in the exact words of the accused and if in a language from which an interpreter has interpreted to English without complaint, the statement is still admissible so long as it came out freely and voluntarily. See UDO V STATE (1964) 1 ALL NLR 21; IYUN V STATE (1965) 1 ALL NLR 203.
However where the statement was made in Efik Language and interpreted into English Language by another person, the law is firm on the point that the interpreter must be called as witness in order for the statement in English language to be admissible in evidence. Where that interpreter is not called the English Statement is regarded as hearsay evidence and therefore inadmissible. See R v Ogbuewu (1949) 12 WACA 483; FRN V Usman (2012) 5 MJSC (pt.1)25 at 43; Shivero V State (1976) 3 SC 63.
The situation on ground belies the scenario stated above as it was PW4 who heard the statement as told by the appellant in the presence of a Senior Police Officer, though appellant spoke in Efik, PWA recorded in English and the appellant signed after it was read over to him and he offered no protest. Again, there is a statement appellant made as complainant before his wife’s corpse was discovered and it was recorded in English and admitted as Exhibit 5. Then the clincher is the fact that appellant in testifying as DW1 in his defence did so in English language. All these lead to the conclusion that the appellant can speak and read in English and the confessional statement freely given and the issue of having the statement, Exhibit ’1’ jettisoned for reason of having been obtained in Efik and it is the translated version in English language that is tendered is not worthy of being taken seriously as clearly it is an afterthought.
The follow up is that Exhibit ‘1’, the confessional statement is unequivocal leaving no reasonable doubt in the circumstances of the death of the deceased and that the appellant was fully responsible. In fact the court below following in the path of the trial High Court, dealt with the matter effectively and I quote once again thus:
“The last of the essential elements of murder is that the acts of the appellant were done with the intention or at least knowledge that death or grievous bodily injuries were the probable consequence. The unassail evidence before the High Court was that the deceased‘s neck and head had cuts from a sharp weapon which the appellant had confessed to be a matchet used by him in the commission of the offence and which he produced to the police and was tendered in evidence. The head and neck of a human being are undoubtedly very delicate and sensitive parts of the body that any blow which causes injury to them would ordinarily be very serious and grievous. A deliberate blow to the head and neck of a human being by another with a matchet would reasonably result in grievous harm or injuries to the body instantly and is probable to cause death especially when delivered by a healthy middle aged (50 years old) man as the appellant. The evidence of the witnesses that the neck of the deceased was out “almost to completion” or completely leaves no doubt as to the amount of force with which the blow was delivered by the appellant. The law is settled that every person is presumed to intend the natural consequence of his acts and so where by unlawful act, he causes another person grievous bodily injuries which led to the death of that person, he is presumed to have intended to kill that person and would be guilty of the murder irrespective of his intention. See Ajidahun V State (1991) 9 NWLR (213) 55 at 44; Audu v State 7 NWLR (820) 516; Ahmed v State (1999) 7 NWLR (612) 641. By the use of a matchet to deal forceful blows to the neck and head of the deceased, the appellant undoubtedly knew and intended to inflict and cause her death or at least very grievous bodily injury or harm that were probable to cause such death. The facts and evidence of the witnesses and the appellant leave no reasonable doubt about the issue. l am, in the above circumstances, in agreement with the High Court that the acts of the appellant were done with the knowledge and/or intention of causing the death of the deceased or causing her such grievous bodily harm or injuries probable to cause her death”.
There is really nothing to add or subtract from what the Court below did in giving the concurrent findings and conclusion as the court of trial and there is no basis for any interference by this court. Therefore this appeal lacks merit and it is hereby dismissed. I uphold the decision of the Court of Appeal in its affirmation of the judgment and orders of the trial High Court.
Appeal is dismissed.
Mary Ukaego Peter-Odili Justice, Supreme Court
F. O. Onyebueke for Appellant.
Joseph Osnie Abang, A. G. Cross-River State; Greg Okem DPP, Eteh Olabode (Mrs.) State Counsel 1, Godwin Onah, state Counsel 1, Rlcharge Akpanke, State Counsel 1- for the Respondent.
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