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IN THE SUPREME COURT OF NIGERIA
ON THURSDAY, THE 25TH DAY OF MARCH 1976
SC 404/75
BETWEEN
ZEMBA SHIVERO .................................................. APPELLANT
AND
THE STATE ........................................................ RESPONDENT
BEFORE: Alexander, C.J.N., Fatayi-williams and Bello, JJ.S.C.
After stabbing the deceased with a knife in the presence of two eye-witnesses, the defendant ran away with the knife but later gave himself up at the local police station.
At the trial of the defendant for murder, the police officer who had been in charge of the station at the time testified as to an admission made to him by the defendant through an interpreter, as a result of which the defendant showed them where he had hidden the knife and they recovered it from there. Although the interpreter did not give evidence at the trial, the trial Judge nevertheless relied on the admission made through him, as well as other evidence, in convicting the appellant.
HELD:
(1) As the interpreter who interpreted the alleged admission of the defendant to the police officer did not testify at the trial, the admission is hearsay and therefore clearly inadmissible.
R. v. Attard (1959) 43 Cr. App. R. 90.
(2) Notwithstanding this wrongful admission of evidence, however, the appellant could still have been convicted on the admissible evidence of the eye-witnesses and that of the doctor who performed the post mortem, together with the testimony about the voluntary visit of the appellant to the police station and about how the knife used to attack the deceased was recovered; consequently, no substantial miscarriage of justice had actually occurred as a result of the wrongful admission of the evidence complained of.
APPEAL dismissed.
G. Brown-Peterside for appellant.
I.K. Sulu-Gambari, Solicitor-General, Gongola State, for the respondent.
Fatayi-williams, J.S.C. (delivering the judgment of the Court):-At the hearing on 17th March, 1976, we dismissed this appeal by the accused against his conviction in the High Court of the North Eastern State, sitting at Yola, of culpable homicide punishable with death. We now give our reasons for doing so.
The facts on which the conviction is based are as follows. Around night time on 28th March, 1972, Gamvo Jegam (3rd P/W) and his friend Yacha Damvisi (4th P/W) were drinking in Jegam's house in Jegam Village in Jalingo District. Not long after, the accused turned up at the house and asked for a drink. Jegam asked his wife to take the drink to the accused. As Jegam's wife was carrying the drink to the accused where he was sitting in the house, the accused got up, went to meet Volle Ndojidde (the deceased) who was then coming into the house, and stabbed him with a knife (Exhibit 1) on the ribs. The knife entered Volle's ribs on one side and came out on the other side. The accused also stabbed the deceased on the neck. After the stabbing, the accused ran away with the knife. Yacha Damvisi (4th P/W) also saw the stabbing of the deceased by the accused.
The following day, around 10.30p.m., the accused went to Jalingo Police Station where he was seen by Police Corporal Bature Dogo (1st P/W) who described what transpired at the Police Station as follows:-
"I know the accused. He came to the police station. I saw him sitting outside the police station. I saw him sitting there for quite a long time. I asked him as to what had brought him to the police station. He replied in Mumunye language. As I did not understand Mumunye language, I called P.C. Hamman Jumba who as also on duty with me and who knew Mumunye language so that he could interpret to me what the accused wanted to say. On the strength of what the accused told me through P.C. Hamman Jumba, I asked the accused with what instrument he had stabbed Volle. Accused indicated that he had stabbed with a knife. I asked the accused through the interpreter as to where he had kept the knife. He replied that he had left the knife in the bush in Jalingo town. He told me that he had stabbed Volle at Jegam Village in Jalingo District. He said that the incident took place on 28th March, 1972, at Jegam Village. I asked the accused to show the place where he had left the knife."
(Italics are ours).
The 1st P/W then described how he recovered the knife as follows:-
"Then the accused, P.C. Hamman Jumba, and myself went that very evening to recover the knife. On our way going it became dark. Accused informed me that he could not trace the place where he had left the knife because it was by then nightfall. I returned to the police station with the accused. On the following morning we went again with the accused to recover the knife. The accused took us to the bush near Jalingo town. He took us to a distance of one mile from the town. When we reached the spot accused showed us several trees and stated that he had hidden the knife near one of the trees. Accused started searching for the knife. He then traced the knife from under one tree. He handed the knife to P.C. Hamman Jumba who took charge of it in my presence. Then P.C. Hamman Jumba handed over the knife to me. We then returned to the Police Station. The knife was about 12 inches long. It had a wooden handle with the scabbard."
(Italics are ours).
Meanwhile, a report of the stabbing had been made at Kunini Police Station by one Ahmadu Ardido Jegam. Ahmadu Jegam also reported that Volle had died of the stab wounds. P.C. Apuwa Uba (2nd P/W) to whom the report was made, left immediately for Jegam Village where he saw the dead body of Volle Ndojiddo on the ground outside the house of Gambo Jegam (3rd P/W). P.C. Uba noticed two stab wounds on both sides of Volle's ribs and a third one on the neck. He also saw Jegam (3rd P/W) and Yacha Damvisi (4th P/W) at the scene but there was no sign of the accused. P.C. Uba then sent a report of the incident to the Jalingo Police Station. Bature Dogo (1st P/W) received the report on his return to the Station with the accused. In consequence of the report, the 1st P/W proceeded to Jegam Village where he also saw the dead body of the deceased with two stab wounds on both sides of his ribs and another stab wound on his neck. He then conveyed the body to the Jalingo General Hospital where Dr N.A. Hanna, the Medical Superintendent-in-Charge, performed the post-mortem examination. The doctor's report reads:-
"On examination, I found a deep cut wound 8" (centimetre) in length on the right side of the chest penetrating the right lung, another deep cut wound 2 inches in length on the left side of the chest penetrating into the left lung. Such wound on the deceased could be caused by a sharp instrument. The cause of death was due to bleeding caused by the wound. The injuries on the deceased could not be self-inflicted."
For some inexplicable reason, P.C. Hamman Jumba, who knew the Mumunye language spoken by the accused and who interpreted what the accused said at the Jalingo Police Station to P.C. Bature Dogo (1st P/W), was not called to testify for the prosecution. It must be recalled that the 1st P/W testified that the accused admitted to him through P.C. Hamman Jumba that he had stabbed Volle Ndojidde at Jegam Village and that the incident took place on 28th March, 1972.
Be that as it may, the accused, in his defence, denied the admission he was said to have made to the 1st P/W. He testified instead that he had a wife by name Sido who has seduced by Volle Ndojidde. After she had been seduced, he (the accused) asked the father of Volle to refund the dowry which he had paid for Sido but his father refused. Since then Sido and Volle had been living together in Jegam Village but he (the accused) never went to the village. He then testified specifically about the offence with which he was charged as follows:-
"I did not see the deceased and my wife again after she left me. I do not know what happened in Gamvo Jegam's house. I do not know Gamvo Jegam. Neither do I know the name of the village he came from...................... Perhaps the deceased Volle inflicted upon himself the fatal wounds. It is not true that I stabbed Volle."
He also denied that the knife (Ex. 1) with which Volle was stabbed belonged to him although he admitted knowing Bature Dogo (P/W 1) and P.C. Hamman Jumba. He explained how he came to know them as follows:-
"It was alleged that I had committed murder. Because of this I went and reported to them. I did not kill Volle. If I had killed him why should I have gone to report to them? I did not hand over the knife (Ex. 1) to the policemen. I was far away from these policemen when they traced this knife. I do not know where the knife was found. I have never handled a knife in my life. I did make a statement to the police. I did not change anything. I mean it is not true that I gave a statement to the police at all. It is not true that I killed Volle Ndojidde."
In a reserved judgment, the learned trial Judge, after accepting the eye-witness account of the incident given by the 3rd and 4th prosecution witnesses and rejecting the denial of the accused, expressed the view that the accused's motive was to kill the seducer of his wife. The learned trial Judge then found further as follows:-
"I have no hesitation to accept the evidence of P.W.5-Gamvo Jegam and P.W.4-Yacha Damivisi and find that it was the accused who fatally stabbed the deceased with a knife. The contradictions noted in their evidence and referred to earlier in this judgment do not appear to be very material in the light of the confessional statement which the accused made to the police Corporal Bature Dogo (P.W.1) confessing that he stabbed Volle and the discovery of the knife which was found in consequence of his statement he made about it.
I have no hesitation to accept the evidence of police corporal Bature Dogo P.W.1 and find that the accused confessed to him that he had stabbed the deceased and in consequence of the statement made by him the knife (Exhibit 1) was traced.
I find the confession which the accused made to police corporal Bature Dogo was actually made by him voluntarily free from any threat, inducement or promise. Police corporal Bature Dogo was not investigating the offence charged. In fact, he knew nothing about it. It was the accused who voluntarily went to the police station at Jalingo and gave himself up after confessing that he had stabbed the deceased."
He thereupon convicted the accused of the offence of culpable homicide punishable with death as charged.
At the hearing of the appeal against the conviction, the learned Solicitor-General of Gongola State who appeared for the respondent, with commendable forthrightness, expressed his doubts about the use made by the learned trial Judge of the admission made by the appellant to the 1st P/W through an interpreter who did not testify at the hearing. He then submitted that the evidence being heresay, its use was clearly improper and referred us to the decision in R v. Attard (1959) 43 Cr. App. R. 90 in support.
We also shared the apprehensions of the learned Solicitor-General about the extensive use made by the learned trial Judge of this piece of evidence. Since Hamman Jumba who interpreted the alleged admission to the 1st P/W did not testify, the admission, in those circumstances, is certainly hearsay and was therefore clearly in admissible. In this connection, we refer to the decision of Gorman J. in R v. Attard (supra) where the accused, a Maltese who neither spoke nor understood English, was charged with murder. During the course of the case for the prosecution, the Crown proposed to call evidence by a police officer of an interview which he (the police officer) had conducted with the accused through an interpreter. The defence objected on the ground that since neither the police officer nor the accused could understand what the interpreter said to the other, the evidence of the police officer was inadmissible as being hearsay, and that only the interpreter could give evidence of the questions which he put to the accused on behalf of the police officer and of the answers given to him by the accused in the accused's own language. The court, quite rightly in our view, upheld the objection for the reasons given by the defence in their submission and held that the evidence of the police in relation to the interview was hearsay and was therefore inadmissible.
While we were of the view that the evidence of the admission made by the appellant in Mumunye language to P.C. Hamman Jumba could only be given by Jumba and that the evidence given by Corporal Bature Dogo in relation to it was clearly inadmissible and should have been excluded or discarded, we were, nevertheless, of the view that the appellant could still have been convicted on the admissible evidence which the learned trial Judge rightly accepted. Firstly, there is the eye-witness account of the incident given by the 3rd and 4th prosecution witnesses. Secondly, there is the confirmation by Dr Hanna (who performed the post-mortem examination on the body) of the injuries sustained by the deceased as a result of the attack. Thirdly, there is the voluntary visit of the appellant to the Jalingo Police Station the day after the attack. There is also the discovery of the knife (Ex. 1) by corporal Bature Dogo who testified as to how the knife was found as follows:-
"When we reached the spot accused showed us several trees... Accused started searching for the knife. He then traced the knife from under one tree. He handed the knife to P.C. Hamman Jumba who took charge of it in my presence. Then P.C. Hamman Jumba handed over the knife to me."
Added to all these is the evidence of the appellant himself who said that the deceased seduced his wife and that all his efforts to get a refund of the dowry which he had paid for her from the father of the deceased were abortive, thus indicating, from his own admission, which was believed by the learned trial Judge, the possible motive for the cold-blooded murder of the deceased.
For all these reasons, we were of the view that no substantial miscarriage of justice had actually occurred as a result of the wrongful admission of the evidence complained of. We, therefore, saw no reason to interfere with the verdict and so we dismissed the appeal.