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FEDERAL SUPREME COURT OF NIGERIA
19TH JUNE, 1963.
BEFORE THEIR LORDSHIPS:
SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)
SIR LIONEL BRETT, F.J.
JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)
CRIMINAL LAW AND PROCEDURE – Confessional statement missing – Oral evidence of – Admissibility.
CRIMINAL LAW AND PROCEDURE – Police obtaining accused person’s statement – How done.
CRIMINAL LAW AND PROCEDURE – Statement of accused – Taking of in presence of other suspects – Undesirability of.
PRACTICE AND PROCEDURE – EVIDENCE – Evidence Act, S.96 (1)(c) – Oral evidence of missing confessional statement – Whether admissible to convict maker.
PRACTICE AND PROCEDURE – EVIDENCE – Giving of oral evidence of lost document in court’s custody – Proper person to do so.
PRACTICE AND PROCEDURE – EVIDENCE – Giving of oral evidence of the contents of a missing confessional statement – Admissibility of.
A.R.H. Thomas -for the Respondent.
TAYLOR, F.J. (Delivering the Judgment of the Court): The appellant was convicted of causing the death of one Samvo Kolenya with the intention of so doing contrary to s. 220 of the Penal Code of the Northern Region of Nigeria.
The facts as alleged against the appellant were that he was one of the men hired by one Bazum for the express purpose of killing the deceased. There was no direct evidence of the killing or the hiring and the conviction rested in the main on the alleged confession made by the appellant to P. W. 2, the latter being the interpreter in the Jalingo Prison yard in July, 1961. This alleged confession was said to have been made also in the presence of P.W. 6, Mavo Kolaya, and P.W. 9, Shunkwang Meka, two of the suspects detained in the same prison in connection with murder of Samvo Kolenya.
Mr. Cole, learned Counsel for the appellant, has urged that the prosecution failed at the trial to account satisfactorily for the absence of the written statement or confession before adducing oral evidence of its contents; that the evidence and memory of P.W.2 on this point were unreliable and that the 6th and 9th P. Ws were themselves suspects; that without the alleged confession conviction could not be sustained. Mr.. Thomas, Senior Crown Counsel, conceded that the failure of the prosecution to produce the written statement of the appellant was not satisfactorily explained, but went on to say that the conviction was well founded on the four points which on the findings of the trial Judge, tended to confirm the truth of the confession made by the appellant.
The facts leading to the admission of the oral evidence of P.W.2 as to the confession made by the appellant and reduced into writing are these:
On the 16th June, 1962 P.W. 1, P.C. Richard Nwabuza, deposed that:
“He (accused) then made a voluntary statement in Mumuye which was interpreted to me in Hausa by the P.C. I wrote it down in Hausa.”
At the close of his evidence the Court was adjourned after the prosecutor had intimated that the original Hausa statement could not “at the moment” be traced. On the 18th January, hearing was resumed. P.W. I was not recalled, but P.W. 2, P.C. Voro Koji gave evidence and, without any explanation or statement as to what steps had been taken to recover or find the statement, P. W. 2 was sworn and gave evidence. In the course of this evidence, he said as follows inter alia:
“P. W. 1 read back accused’s statement. I was translating all the time from Hausa to Mumuye and vice versa correctly. Accused said it was correct and put his thumbprint on it. I remember the story accused told me.”
Promptly, Learned Counsel for the accused objected and the record reads thus:
“Dass: I object. This is an attempt to give evidence of the contents of a document.
Court: Objection over-ruled. It is always admissible for a witness to relate what accused said to him. The fact that it was reduced into writing at the time is merely a strengthening of memories.”
The witness then continued his evidence of the contents of the statement or confession made by the appellant and reduced by P. W. 1 into writing. After six other witnesses had given evidence, one of whom was P.W. 6, the 1st P.W. was recalled and this is what he said inter alia:
“I wrote down in Hausa what P. W. 2 told me as accused’s statement. I read it back, and he said it was correct. I tendered it before the examining Magistrate. The Clerk of that Court still has it. I cannot trace it now.”
Now it is provided in s. 96(1)(c) of the Evidence Ordinance that :
”Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(c) when the original has been destroyed or lost and in the latter case all possible search has been made for it.”
In Archbold Criminal Pleading Evidence and Practice, the learned author states at page 470 that:
“Admissions or confessions to persons other than Magistrates, if in writing, are proved as any other written instrument.”
The evidence of P. W. 1 on his recall was in our view unsatisfactory as to the whereabouts of the written confession and the efforts made to find it, and if as deposed to by this witness the statement of the appellant was tendered before the examining Magistrate, it should have been in the custody of that Court, and the proper officer to give evidence of its destruction or loss and of the search made to recover it is the officer of that Court in charge of exhibits.
It must further be borne in mind that the confession or the statement made by the appellant was made on the 9th July, 1961, and P. W. 2, was giving evidence some six months later on the 18th January, 1962 not to mention the fact that on the 9th July, 1961, this witness was interpreting from Hausa to Mumuye and vice versa not only for the appellant but for four other suspects. The possibility of his making some errors which, in a confession that is to be read as a whole, might affect the whole tenor of the alleged confession, through lapse of memory cannot under the circumstances be overruled, for as he himself said:
“He (the accused) told me a lot more which I cannot now remember.”
and a little later on in his evidence he said that:
“I remember giving evidence before the examining Magistrate. I could not answer some of the questions as I could not understand them. I was confused.”
A little later still he said that:-
“Before the examining Magistrate I could not give evidence properly …………………I did not tell him the story I have told here.”
The danger in relying on the memory of these witnesses as to the alleged confession of the appellant made under the circumstances of this case on appeal becomes more apparent when one compares their evidence on the vital issue as to the part the alleged “killers” played at the scene of the crime.
According to P. W. 9 accused stated that:
”Madi held Samvo by the throat.” P.W. 6 however says that accused said:
“Zara held him by the throat …… Zara throttled him.”
P.W. 2 made no mention of the accused having said that anyone held the deceased by the throat. Again, P. W. 6 stated that accused said:
“Bazum held his (deceased’s) legs.”
but P. W. 9 said that it was Mashi who according to the accused held the legs of the deceased. The 2nd Prosecution Witness merely refers to the party who held the deceased’s legs as one of Bazum’s men.
Further, evidence was given that the tendon of the deceased’s heel was cut. P. W. 6 said that the accused said Bazum cut it, but P. W. 9 stated that the accused said it was Mashi, and P. W. 2 refers to a stab in the foot by Bazum. The witnesses were not even consistent in their story as to who cut the deceased in the face with the matchet. P. W. 9 says the accused said it was Mali, whereas P. W. 6 said it was Zara, and P. W. 2 refers again to the assailant as one of Bazum’s boys. One can go on pointing out contradictions in the evidence of these three witnesses as to the contents of the written confession of the appellant, but suffice it for me to make reference to only one more. Whilst P. W. 6 deposed that the appellant said that Madi hit the deceased “in the small of the back with a stick”, P. W. 9 stated that according to the appellant, Madi held the deceased by the throat and also cut him on the left side of the face.
In fairness to the learned trial Judge, he regarded the 6th and 9th P. Ws. as accomplices though he went on to hold that if corroboration were needed it is provided “in full measure by the evidence of P.W. 2.”
In Archbold Criminal Pleading Evidence and Practice, the learned author states at page 470 that:
“What the prisoner has been overheard to say to another, or to himself, is equally admissible; though it is evidence to be acted on with much caution, as being liable to be unintentionally misrepresented by the witnesses.”
In our view it would be most unsafe in the circumstances of this case on appeal to convict on the oral evidence such as it is and in the light it has been shown above. As we have said before, without the confession, the evidence falls far short of that required to sustain a conviction.
In passing, and for future guidance to Police officers entrusted with the investigation of crimes, it is most undesirable, as happened during the investigation of the crime the subject matter of the case on appeal, to take the statements of an accused person or suspect in the presence of other suspects or accused persons. One reason which comes readily to mind is the possibility of one accused or suspect making a statement in fear of another either involving himself or exculpating the other. Statement of accused persons or suspects should as far as is possible be taken out of the hearing and/or presence of each other.
For the reasons stated above, this appeal must be allowed and the verdict and sentence passed on the appellant are hereby set aside and a verdict of Not Guilty is hereby entered in their place. The appellant is therefore acquitted and discharged.
ADEMOLA, C.J.F.: I concur.
BRETT, F.J.: I concur.