SUNDAY V. F.R.N.
In The Supreme Court of Nigeria
On Friday, the 14th day of December, 2018
Before Their Lordships
OLABODE RHODES-VIVOURJustice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILIJustice of The Supreme Court of Nigeria
AMIRU SANUSIJustice of The Supreme Court of Nigeria
EJEMBI EKOJustice of The Supreme Court of Nigeria
SIDI DAUDA BAGEJustice of The Supreme Court of Nigeria
FEDERAL REPUBLIC OF NIGERIARespondent(s)
AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Ilorin division (the Court below or lower court) delivered on 14th February in which the said lower court affirmed the judgment of the Federal High Court Ilorin, Kwara State (“the trial Court” for short) delivered on 5th day of July, 2011
FACTS GIVING RISE TO THE APPEALS
The facts giving rise to the appeal as could be gathered from the record are summarized below.
The appellant was on 6th June, 2011 arrested with 18 kilograms of cannabis sativa (otherwise known and called “Indian Hemp). Upon his arrest on 7th day of June, 2011 he made an extra judicial statement to the officers and men of National Drug Law Enforcement Agency on 7th June, 2011 which said confessional statement was tendered at the trial Court and marked Exhibit A, during his trial. In the said statement (Exhibit A), the thumb prints or thumb impressions of the accused, now appellant were contained in several pages as means of authentication or owning up of the said statement by the appellant. The appellant, as accused person, was first arraigned before the trial Court on 30th June, 2011, but hearing in the case could not commence on that day because the accused/appellant had no defence counsel, then hence it was adjourned to 5th July, 2011 to enable him obtain the services of a counsel of his choice to defend him.
On that 5th day of July, 2011, the appellant was formally arraigned before the trial Court on a single count charge of being found in unlawful possession of or dealing in 18kilograms of cannabis sativa (or India Hemp), contrary to and punishable under Section 11C of the NDLEA Act, Cap N30, Laws of Federation
of Nigeria 2004. The sole charge which the appellant stood trial on is reproduced below: –
“That you Sunday Umaru, male, Adult, on or about the 5th day of June, 2011 at Bankubo Village Baruteen Local Government Area of Kwara State within the jurisdiction of this Honourable Court, without lawful Authority dealt in 18kilograms of Cannabis Sativa (otherwise known as Indian Hemp) drug similar to Cocaine, Heroin, LSG etc and thereby committed an offence, contrary to and punishable under Section 11C of the National Drug Law Enforcement Agency Act, Cap N30 LFN 2004”.
For the avoidance of doubt and ease of reference, it will be apt to reproduce what had transpired at the trial Court proceedings on the 5th day of July 2011 when the appellant/accused was formally arraigned at the trial Court as borne out on pages 11 to 12 of the printed record. The proceedings of that day went on as below:-
Court: – charger called
Accused person in dock
I. J Igwubor for prosecution.
S.A. Haruna (Miss) for the accused person.
Igwubor: Applies for charge dated and 23/6/2011 filed to be read and plea given
Court: Please read and explain the charge to the accused person and take his plea.
Charge read and explained to the accused person in English language and he appeared perfectly to understand same
Statement of accused person – Sunday Umaru.
Statement of one Shehu Mallami.
Transfer letter from the police.
Packing of substance form.
Certificate of test analysis.
Request for Scientific aid form
Brown sealed envelope.
Applies to open.
Haruna: No objection
Court: Granted as prayed
Igwubor: Opens envelope.
– Evidence pouch with sample of analysed drug.
– Drug analysis report.
– Bulk of Exhibit.
Haruna: No objection.
Court: The items and documents are admitted in evidence and marked Exhibits A-J.
Igwubor: Urges Court to convict as charged
Haruna: No objection.
Court: The accused person is convicted as charged.
It is clear from the above proceedings, that the accused/appellant having admitted committing the offence charged and also having owned up the facts that the substance or exhibits tendered as having been found in his possession, the trial Court summarily convicted him and sentenced him to four years imprisonment. All these transpired in the presence of his defence counsel. The accused/appellant became dissatisfied with his conviction and sentence by the trial Court, hence he appealed to the Court below. In its considered judgment the Court below dismissed his appeal for want of merit.
Still aggrieved with the judgment of the Court below, the appellant has now appealed to this apex Court. Before this Court, parties as usual, filed and exchanged their briefs of argument. On 30th May, 2013 the learned counsel for the Appellant filed a brief of argument on behalf of the appellant, which he adopted and relied on when the appeal was argued on 11th October, 2011. Similarly, upon being served with the appellant’s brief of argument, the Respondent also filed its brief of argument on 3rd October, 2018 which was also deemed properly filed and served on 11th October, 2018 before adopting same.
In the appellant’s brief of argument, three issues were decoded by the appellant’s counsel for the determination of this appeal which I shall reproduce below, and the three issues read thus:-
1. Whether the Court of Appeal was right when it held that the Illiterates Protection Law does not apply to criminal Proceedings, notwithstanding that there was no law which expressly or impliedly render the Illiterates Protection Law in applicable to criminal proceedings.
2. Whether the Court of Appeal was right when it held that the appellant was NOT AN illiterate, notwithstanding that Exhibit A discloses sufficient evidence of the appellant’s illiterate status’
3. Whether the Court of Appeal was right when it held that in view of the plea by the appellant, the trial Court was right to have admitted and utilised the confessional statement, Exhibit A, without the prosecution calling the officer who recorded and interpreted the said Exhibit A to testify.
On the other part, the respondent in its brief of argument which was also adopted at the hearing of this appeal on 11th October, 2018, three issues adopted which were identified for the resolution of this
appeal as reproduced supra and which need not be reproduced here again.
SUBMISSIONS ON ISSUES FOR DETERMINATION RAISED BY COUNSEL
ISSUES NO. 1
This issue relates to whether the Court below was right when it held that Illiterate Protection Law does not apply to criminal proceedings. The learned counsel to the appellant argued that the Illiterate Protection Law applies to all letters and documents made or written at the request or in the name of any illiterate person. He referred to Sections 4 and 5 of the law and submitted that there is no express provision which suggest as limiting or restricting the operation of the law to business or commercial transaction only. He urged that the decision of the Court of Appeal was without any precise authoritative guidance on this point and that to affirm decision the Court below is to expose the vast population of illiterate to false conviction. He argued further, that nothing excuses the breach of Illiterate Protection law in respect of Exhibit A. He cited the case of ANAEZE V ANYASO (1993)5 NWLR (pt.291), where it was held that thumb impression on a document is prima facie evidence of illiteracy. He submitted further, that if Illiterate protection law is given a curtailed construction as propounded by the Court below and it will certainly lead to grave injustices and serious legal consequences. He then urged this Court to hold that illiterate Protection Law applies to both civil and criminal proceedings and that exhibit A ought not to have been admitted in evidence for non-compliance with the provisions of Illiterate Protection Law.
Issue no.2 deals with whether the Court below was right when it held that the appellant was not an illiterate.
The learned appellant’s counsel referred to the judgment of the Court of Appeal at page 145 of the record to the effect that the appellant is not an illiterate person. He urged that contrary to the findings of the Court below, the record of appeal particularly the confessional statement Exhibit “A”, contains several pieces of evidence to show that the appellant is an illiterate person who is unable to read, write or understand English Language. He submitted that the inability of the appellant to write Exhibit A by himself raises a presumption that the appellant is an illiterate person. He cited the case of EZEIGWE V AWUDU (1962) WRNLR 303, where it was held that a thumb print is a prima facie evidence of illiteracy which must be benefitted by the prosecution who alleges otherwise. He submitted that it was erroneous of the Court below to have presumed without evidence, that the appellant was literate merely because the appellant made a mark “Sunday” on the notice of appeal. He urged Court to hold that the appellant was an illiterate and was entitled to all protections offered by Illiterate Protection Law.
This third issue deals with whether the Court below was right to have admitted the confessional statement, Exhibit “A” without the prosecution calling the officer who recorded it in view of “plea of guilty” by the appellant? The learned counsel to the appellant submitted that the plea of guilty by the accused person is not a conclusive proof of his guilt and that the prosecution still had the burden to prove his guilt beyond reasonable doubt. He submitted also that it is unjust for the Court below to hold that once an accused person fails to challenge his right to an interpreter at the trial Court, he would in all circumstances be barred from raising the breach thereof on appeal. He urged the Court to allow the appeal and quash the conviction and sentence of the appellant.
SUBMISSION OF RESPONDENT’S COUNSEL
The learned counsel for the respondent, as I said earlier, adopted all the three issues formulated by the appellant’s counsel. The learned counsel to the respondent argued that it was not erroneous in law for the Court below to hold that the Illiterate Protection Act or Law does not apply in criminal proceedings as the extra judicial statement are covered by the provision of the Judges Rules and not the Illiterate Protection Act. He cited the case of AKPOMIE OGHENEOVU V FRN (2013)All FWLR (pt.607)704 at 707. He urged the Court to resolve the issue in favour of the respondent. He referred to the case of His Highness V.A. OTITOJU V GOV. OF ONDO STATE & ORS (1994)4 SCNJ (pt.I1)224 at 234. He argued that the issue of whether or not the appellant is an illiterate is a matter of fact which the appellant had onus to prove before the trial Court which he failed so to do. He cited the case of ANAEZE V ANYASO (1993)5 NWLR (pt.291)1 at 32.
On issue No.3, the learned counsel for the respondent submitted that in a summary trial where the accused is an illiterate, calling an interpreter is imperative but this is not the situation in this case. He submitted that as long as the recording was made in English, calling for interpreter of the statement was unnecessary. He cited the case of MICHEAL OLOYE V THE STATE (2018)LPELR-44775 SC.
On the issue of non-certification of exhibits including Exhibit “A, learned respondent’s counsel further submitted that public documents are proved in their secondary form by tendering the certified true copy or copies. He submitted that the appellant will be estopped at this
point, to raise objection to the admissibility of the said exhibits because he had failed to do so at the earliest opportunity. He cited the case of ANAGBADO V FARUK. He therefore submitted that Exhibit “A” was properly admitted by the trial Court and he finally urged this Court to dismiss this appeal.
RESOLUTION OF ISSUES FOR DETERMINATION
It seems to me that the argument of learned counsel to the parties on this issue more or less revolves or pertains to the admissibility of the confessional statement made by the appellant (Exhibit A) which he volunteered to the officers of the National Drug Law Enforcement Agency (NDLEA). It is part of the appellant’s counsels submission that the conviction of the appellant by the trial Court was based or founded on Exhibit A. That could not be true, because the trial Court also relied on the voluntary admission of the offence in open Court when he pleaded guilty to the charge read and explained to him. The learned counsel for the appellant persistently argued that Exhibit A was inadmissible due to non-compliance with the provisions of the Illiterate Protection Law/Act, arguing that such Law or Act (hereinafter referring to as “the Act/Law”) applies to both criminal and civil proceedings hence the Court below was wrong when it held that the law was not applicable to criminal proceedings. He further contended that it is aimed at protecting an illiterate against fraud hence it applies to all documents made on behalf of an illiterate. He argued that to hold otherwise as done by the Court below, had certainly worked injustice against the present appellant.
On the other hand the learned counsel for the respondent submits that the appellant’s counsel had misconceived the statement made by the Court below on the issue of non-applicability of the Illiterate Protection Law to criminal proceedings. He added that the context in which such statement was made by the Court below stemmed out from the fact that extra judicial statements made by illiterates are covered by the provisions of the JUDGES RULES and NOT Illiterates Protection Act.
The grouse of the learned counsel for the appellant which he chose to make a ground of appeal is where the Court below in its judgment stated thus:-
“I can say that from the authorities or cases cited above that a solemn or careful reading of Illiterates Protection Law discloses that it is applicable in Business transactions or other contractual relationships or obligations between an illiterate person and third parties and it has no bearing in criminal matters especially in the way and manner an investigation or Police Officer obtains or takes statements of offenders concerning commission of crimes which principally are offences against the state”(emphasis mine).
To my understanding the above quoted statement if closely considered, especially bearing in mind to context and the circumstance under which the Court below made the above remarks, the learned author of the judgment meant that there is/are specific provisions in relevant Law governing or covering the procedure or method of recording of statement of an accused person by a police officer or investigating officer other than the Illiterates Protection Law/Act.
This is moreso when the lower Court went further to state that Sections 215 and 218 of Criminal Procedure Code and Section 36 (6) of the 1999 Constitution (as amended) provide that where person charged with criminal offence does not understand the language of Court, he is entitled to an interpreter who can read and interpret the charge or offence he is charged of committing.
To my mind, the context of the statement by the lower Court quoted above, simply meant that the existence of relevant laws governing or relating to recording of confessional statement of an accused person by police or other law enforcement agents in criminal matters renders the provisions of Illiterate Protection Act/Law inapplicable in criminal matters.
I think I am in entire agreement with the position or stance of the Court below in that respect. It is my view also, that the provisions of Sections 215 and218 of CPC and the Criminal Procedure, (statement to police officers) Rules of 1960 made by the former Chief Justice of Northern Nigeria which had since then, been applicable throughout the Northern States of Nigeria, part of which the Kwara State of Nigeria where this case emanated from is also clearly governs the complaint or grudge of the appellant on the methods or manner Exhibit A was recorded. The said Rules originate from the old Judges Rules of England.
I must reiterate that some of if not all the grudges of the appellant on the alleged non-compliance with the provisions of the Illiterates Protection Act/Law have been well taken care of by other laws which directly relate to recording of confessional statement made by accused persons to the police or other law enforcement agents who are authorized by law to investigate crimes or to record statements of persons charged with or to be arraigned in Courts for commission of crimes. I therefore do not see how such remarks by the lower Court could work any injustice against the appellant since the lower Court clearly acknowledged that there are other provisions in other laws that govern or relate to the recording of confessional statement of an accused person which are more relevant than the Illiterates Protection Act/Law. Thus, in an answer to the question posed by the appellant on this issue, I must state that given the circumstance the lower Court made such remarks complained of by the appellant vis a vis the facts that the lower Court had simply acknowledged the existence of other relevant provisions in some laws directly governing the recording of confessional statements of an accused person (appellant), I hold the view that, the lower Court was not wrong in saying what it stated. I therefore hereby resolve this issue
against the appellant.
ISSUE NO.2 & 3
This second issue queries whether despite Exhibit A the lower Court was correct in holding that the appellant was not an illiterate. The complaints of the appellant’s learned counsel is that the trial Court had convicted the appellant based on a confessional statement, Exhibit A which had no illiterate jurat and no interpreter was called to interpret the said statement in the language he understood as well as in view of the fact that the recorder of the statement was not called to testify. He argued that the lower Court was wrong in holding that it was not true to say that the appellant is an illiterate person. From these complaints of the appellant, two issues have been brought to fore for consideration namely, (1) the effect of non inclusion of jurat in the confessional statement, Exhibit A and (2) whether there had been disclosed in the case, sufficient evidence to convince the Court that the appellant is really an illiterate.
It is clear and beyond any peradventure that the Exhibit A does not bear any signature of the accused/appellant but merely his thumb-impression. It is trite law that mere thumb-impression on a document tantamount to prima facie as in this instant case, is prima facie evidence that the person who appended his thumb-impression is/was an illiterate. In this case, the appellant has the burden to readily prove to the satisfaction of the Court that he is an illiterate. See Jiboso vs Obadina (1962) WRNLR 303; Ezeigwe v Awudu (2008) All FWLR (pt.434)1529. My understanding of who can be regarded as an illiterate is that such person must be a person who can not read, understand and express his opinion by writing in the language which is used in writing it on his behalf. In other words, a person who is unable to read and write in some other language is not an illiterate within the meaning of the Illiterate Protection Act. Therefore, the issue or question on who is actually an illiterate can not be presumed by Court but it is an issue or question which must be proved by evidence and as I stated supra, the
burden to prove such assertion of illiteracy lies squarely on the person who alleged such illiteracy. In fact, in the case of Ntiashagwa V Amodu (1509) WNLR 273 the word “illiterate” has been defined to mean “a person who is unable to read and understanding and to express his thoughts by writing in the language used in the document made or prepared on his behalf’. This definition was endorsed by Kutigi JSC, later CJN (of blessed memory), in the case of His Highness V.A. Otitoju vs Governor of Ondo State & Ors (1994)SCNJ (pt. II)224 at 234.
In this instant case, it is worthy of note, that the present appellant even though represented by a counsel when his confessional statement Exhibit A was tendered at the trial Court, never raised the issue of illiteracy. Similarly, he did not raise the issue that he did not understand the meaning of or the contents of Exhibit A when same was tendered by the prosecution. He also did not raise the issue of absence of jurat or more importantly, that the statement in question was made by him under duress or inducement or that he required the services of an interpreter to explain its contents to him or even that he did not understand the language of the Court. All these failures on the part of the appellant, clearly show that the appellant failed to establish that he is really an illiterate especially if one considers the fact that throughout the duration of the proceedings, he never pleaded illiteracy or that he did not understand the contents of Exhibit A.
On the complaint that Exhibit A did not contain a “jurat` I think that is of no moment, because absence of jurat in a document signed by an illiterate does not render such document null and void since a jurat is for the protection of the illiterate and can therefore not be used against his interest. See Wilson Vs Oshin (2000)6 SC (pt. III)1.
Again on the complaint on the failure on the part of the prosecution, now respondent, to call the
recorder of the statement I think it is only fair to bear in mind and appreciate the fact that the trial Court in this appeal conducted short summary trial since the appellant right from the outset admitted committing the offence he was charged with. Immediately after his arrest he confessed committing the crime and chose to make a voluntary confessional statement i.e Exhibit A. Moreso, the appellant never pleaded illiteracy as I stated earlier. Similarly, when arraigned before the trial Court, he still maintained his earlier stance by pleading guilty to the charge when same was read and explained to him. It was therefore not a full-blown trial in which host of witnesses need to be called. The appellant was represented by a counsel of his choice in this instant case.
It is pertinent to state, even at the peril of being repetitive, that the proceeding in this case at the trial Court was conducted under “Short Summary trial Procedure,” given the fact that the present appellant right from the outset, admitted committing the offence vide the voluntary confessional statement he made to the men and officers of NDLEA which said statement was subsequently tendered and admitted in evidence at the trial as Exhibit A in the presence of his defence counsel without any objection when he was arraigned before the trial Court. The appellant, as an accused thereat, admitted committing the offence he was charged with in tandem with his voluntary confessional statement (Exhibit A). The challenges or attacks on the confessional statement arose only at the Court below. It is therefore not an issue or case of “retracted confession” since the appellant had never testified in the case. All the challenges posed by the learned counsel for the appellant did not relate to want of voluntariness of this confession due to either duress, promise, torture or inducement applied
by the investigator(s)of the case or the non- calling of either any interpreter or the recorder of such statement which would have obviously rendered the statement inadmissible. It is trite law that where a person makes a free and voluntary confessional statement which is direct and positive and is properly proved, a trial Court can comfortably convict him even on such confessional statement alone, without necessarily looking for any corroborative evidence. See Kim v State (1992)4 NWLR (pt.233)17; Queen v Itule (1961)2 SC NLR 183; Ejinima vs State (1991)6 NWLR (pt.200)627; Smart v State (2016) EJSC Vol.36)145; Egbogbonome V The State (1993)7 NWLR (pt.306 383; Oseni Vs The State (2012)5 NWLR (pt.1293)351. It is in fact a well-settled law that a Court can convict an accused person based on his confession alone in as much as it is satisfied with the truth of such confession. See Yahaya V The State (1986)12 SC 282; Stephen vs The State (1986)5 NWLR (pt.46)978.
In other words, once a Court is fully convinced of the truth of a confession, such confession or extra-judicial statement alone can ground a conviction. See also Edhigere v State (1996) 8 NWLR (pt.464); Aremu v State (1991)7 NWLR (pt.201)1. It is apt to state here that in the case at hand, the trial Court did not only rely on the voluntary confessional statement of the appellant (Exhibit A), but also it relied on the unequivocal and clear admission by him of the commission of the offence he was charged with when he unhesitatingly and clearly admitted his guilt at the Court in the presence of counsel of his choice when the charge was duly and properly read and explained to him. It is noteworthy that when the appellant was first arraigned in Court, the trial Court declined to take his plea since he had no counsel then but it adjourned the proceedings until when he obtained the services of a counsel of his choice. Thus, the appellant herein, having clearly and unequivocally pleaded guilty to the
charge when same was read and explained to him in open Court before his counsel and also having earlier voluntarily made a confessional statement in the case and also having admitted having been found in possession of the substance in question which was confirmed to be Indian Hemp or cannabis sativa which the government chemist had also confirmed to be same after conducting analysis, the trial Court was right in convicting him as charged. The Court below was also correct in affirming the finding, conviction and sentence of the appellant by the trial Court. The alleged failure on the part of the prosecution/respondent, to call the recorder or interpreter of the statement to testify is not fatal to the prosecution’s case at all, as that is immaterial from the surrounding circumstance of this instant case since there was no evidence regarding his illiteracy and also in view of the appellant’s plea of guilty in Court to the charge. The second and third issues for determination are therefore resolved against the appellant.
Thus, considering the circumstance of the case at hand and having resolved all the three issues against the appellant, I hereby adjudge this appeal to be unmeritorious.
I accordingly dismiss the appeal and affirm the judgment of the Court below which had earlier affirmed the judgment of the trial Court. This appeal therefore fails and is accordingly dismissed. Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother Sanusi, JSC. I agree with it that there is no merit in this appeal.
The appeal as the accused person was represented by counsel, and on the day the one count charge was read to him he pleaded guilty to it.
Where an accused person is represented by counsel and he pleads guilty the plea of guilty brings the trial to an end and what is left to be done is for the judge to convict and sentence him. A plea of guilty to a charge is conclusive evidence that the accused/appellant committed the offence.
A plea of guilty is the best evidence against an accused person. It is even better than eye witness evidence. See Akpa v State (2008) 14 NWLR (Pt.1106)p.72. It is for these brief reasons that I agree that there is no merit in this appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the dismissal of the appeal as delivered by my learned brother, Amiru Sanusi JSC in the judgment just delivered. To register my support for the reasonings from which the decision came about, I shall make come comments.
This is an appeal from the Court of Appeal, Ilorin Division or Court below or Lower Court, Coram: Ita George Mbaba, Obande F. Ogbuinya and Peter Olabisi Ige JJCA, which judgment was delivered on the 14th day of February 2013 which affirmed the conviction and sentence passed on the appellant for the offence of dealing with illegal drugs contrary to Section 11 (c) of the National Drug Law Enforcement Agency Act, Cap N30, Laws of the Federation of Nigeria, 2004.
The full details of the background facts leading to this appeal are well set out in the lead judgment and no useful purpose would be attained in repeating them unless circumstances warrant a reference to any party thereof.
On the 11th day of October, 2018 date of hearing, learned counsel for the appellant, Taiwo Kupolati Esq. adopted the appellant’s brief of argument filed on 30/5/2013 in which were raised three issues for determination, viz:-
a) Whether the Court of Appeal was right in law when it held that the Illiterates’ Protection Law does not apply to criminal proceedings, notwithstanding that there is no law, which, expressly or impliedly, renders the Illiterates’ Protection Law inapplicable to criminal proceedings.
b) Whether the Court of Appeal was right when it held that the appellant was not an illiterate, notwithstanding that Exhibit A’ discloses sufficient evidence of the appellant’s illiterate status.
c) Whether the Court of Appeal was right when it held that, in view of the plea by the appellant, the trial Court was right to have admitted and utilized the confessional statement, Exhibit A’, without the prosecution calling the officer who recorded and interpreted the said Exhibit ‘A’ to testify’
For the respondent, learned counsel, F. A. Oloruntoba Esq. adopted the brief of argument filed on 3/10/2018 and deemed filed on the 11/10/2018 and also adopted the issues as formulated by the appellant which I shall make use of in the determination of this appeal and all together.
ISSUES 1, 2 AND 3:
1. Whether the Court of Appeal was right in law when it held that the illiterates protection Law does not apply to criminal proceedings, notwithstanding that there is no law, which, expressly or
impliedly, renders the Illiterates’ protection law inapplicable to criminal proceedings.
2. Whether the Court of Appeal was right when it held that the appellant was not an illiterate, notwithstanding that Exhibit ‘A’ discloses sufficient evidence of the appellant’s illiterate status.
3. Whether the Court of Appeal was right when it held that, in view of the plea by the appellant, the trial Court was right to have admitted and utilized the confessional statement, Exhibit ‘A’, without the prosecution calling the officer who recorded and interpreted the said Exhibit ‘A’ to testify.
Learned counsel for the appellant contended that unlike civil proceedings, the proof in criminal proceedings is proof beyond reasonable doubt and so a document such as Exhibit ‘A’ which should ordinarily fail the admissibility test in civil cases for absence of illiterate jurat thereon should much more be rejected by the Court in criminal proceedings which has a stricter burden of proof.
That the mere fact that the validity of documents which offend the Illiterates Protection Law is inapplicable in criminal proceedings. He cited Igbum v Nyarinyan (2001) 5 NWLR (Pt.707) 554; Anaeze v Anyaso (1993) 5 NWLR (Pt.291) 1.
He stated on that the mere recording of the confessional statement of a suspect by a police officer or an officer of NDLEA strongly suggests illiteracy in favour of the suspect, except the prosecution satisfactorily explains the circumstances, other than illiteracy which made it impossible or inconvenient for the suspect to record his own confession. He cited Jiboso v Obadina (1962) WRNLR 303; Ezeigwe v Awudu (2008) All FWLR (Pt.434) 1529.
That the Court below was wrong in law to hold that the failure of the appellant to complain or ask for interpreter at the trial is fatal to the appeal and forecloses the appellant from complaining of the
breach of his right to an interpreter on appeal, in view of the fact that the right to an interpreter is a constitutional right and the breach thereof has caused a miscarriage of justice against the appellant. He relied on Nwaeze v The State All FWLR (Pt.632) 1539.
That the implication is that the admission of the inadmissible confessional statement recorded and or translated by Oko A. Odey is that the Court of Appeal ought to expunge such inadmissible evidence from the record such as Exhibit ‘A-G” He cited JAMB v ORJI (2008) 2 NWLR (Pt 1072) 552 at 570.
Learned counsel for the respondent submitted that the distinction made by the Court below in the application of the Illiterate Protection Act in criminal and civil proceedings is correct in law. He cited Akpomie Ogheneovu v FGN (2013) All FWLR (Pt.607) 704 at 707; His Highness V.A Otitoju v Governor of Ondo State & Ors (1994) 4 SCNJ (Pt. 11) 224 at 234.
That the issue of whether or not the appellant is an illiterate is a matter of fact which the appellant had the onus to prove before the trial Court which he failed to do and so cannot introduce the issue surreptitiously on appeal. He cited Anaeze v Anyaso (1993) 5 NWLR (Pt.291) 1 at 323.
It was further contended by the respondent that in a summary trial where the accused is an illiterate, calling an interpreter in the proceedings is imperative but that is not the
case in this instance where the said statement was in English language, the lingua franca of the Court. He cited Michael Oloye v The State (2018) LPELR – 44775 (SC).
That all the exhibits tendered at the trial including Exhibit ‘A’ are public documents and are proved in their primary form by tendering the originals or in their secondary form and tendering the certified true copies. That when sought to be tendered by the maker or one of the makers of such a public document, it is tendered in their primary form or in their secondary form when tendered by any other person. He stated on that just as in the case at hand where no objection was raised to the admissibility of the said documents at the point of tendering them before the trial Court, the appellant is estopped at the stage of appeal from bringing up the issue. Also that Exhibit ‘A’ like all contents of a case file in a police investigation need no certification before tendering in its original form. He relied on, In the Master of MV. “Delso” & Ors v Ocean Steamship Nig. Ltd (2004) 17 NWLR (Pt.901) 88 at 103; Anagbado v Faruk (2018) LPELR – 44909 (SC) P.17-18 etc.
The findings of the Court below and conclusion, basis of this appeal are found at pages 158, 159, 162, 163 and 165 per Ige JCA who delivered the lead judgment thus:-
“In essence, that the record of the lower Court is bereft of those statutory requirements demanded by Section 218 of the Criminal Procedure Act. The learned appellant counsel therefore dobbed the procedure adopted by the learned trial Judge as being in substantial breach of the right of the appellant to fair hearing enshrined in Section 36 (6) (e) of the 1999 Constitution of the Federal Republic of Nigeria in that:
(a) No interpreter was employed for the appellant by the trial judge to explain the charge to him in the language he understood.
(b) The trial Judge failed to strictly comply with Section 36 (6) (a) (e) of the Constitution and he believed they have all occasioned miscarriage of justice to the appellant.
One can say straight away that all the observations and submissions of the learned counsel to the appellant concerning Section 36 (6) (e) of the 1999 Constitution as amended and Section 218 of the Criminal Procedure Act are not tenable.
The trial Court is not by Section 218 of the Criminal Procedure Act expected to begin to record verbatim et literatum the content of Section 218 of the Criminal Procedure Act. That is not the intendment of the Section. To my mind what the trial judge in this matter needed was only to be satisfied that the appellant understood the charge as read to him in the language of the Court. There is nothing from the printed record to suggest that the trial judge was not satisfied that the appellant understood the charge or the offence against him in the language in which it was read to him. The failure to record or quote the whole of Section 218 to show that he followed the procedure therein contained in Section 218 Criminal Procedure Act cannot vitiate and render the manner in which the plea of the appellant was taken or recorded invalid or make it a nullity as there is nothing in the Record of Appeal to show or indicate that the appellant did not understood the charge as read to him in English language”.
See Golden Dibie & Ors v The State (2007) 9 NWLR (Pt.1038) 30 at 47 C-G per Katsina-Alu JSC (as he then was) who said:
“In Adeniji v The State (supra) I had this to say on Section 215 of the Criminal Procedure Law:
“..Thirdly, the appellant understood English. This is evidence in the record. He made his plea and also gave his evidence in English. The omission by the learned trial Judge to state that he was satisfied that the appellant understood the charge is of no moment. Where the accused understands the language of the Court – English, it becomes unnecessary to record that fact. It is however, good practice to ask the accused the question whether he understood the charge so read and explained and to record the answer. But
the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. I am therefore, in agreement with the respondent that the appellant was properly arraigned”.
The appellants in the instant case clearly understood English. The record shows that they made their pleas in English, made statements to the police in English and they also testified in English. In my judgment, the arraignment of the appellants was in compliance with the law. I resolve this issue therefore against the appellants”.
The Court below stated further thus:-
“The position was also made clear recently by the Supreme Court in the case of JOHN TIMOTHY v THE FEDERAL REPUBLIC OF NIGERIA (2012) All FWLR (Pt.639) 1006 at 1020 G-H to 1021 A-B where Rhodes-Vivour JSC held thus:-
“Section 215 of the Criminal Procedure Act confers discretion on the judge on how to proceed when an accused person pleads guilty. If the accused person pleads guilty to murder, a plea of not guilty should be recorded on his behalf: R v K Mansu (1947) 12 WACA 113.
Evidence would then be led as if he entered a not guilty plea. If on the other hand, the accused person pleads guilty to an offence that does not carry the death sentence, the mandatory requirements of Section 215 of the Criminal Procedure Act no longer apply. What is required is that the accused person must plead himself. If he pleads through his counsel or through some other person, the trial is a nullity: R v Boyle (1954) 2 QB page 292; R v Ellis (1973) 57 Cr App R.571.
After a plea of guilty, the trial judge may proceed to convict and sentence the accused person based on the
plea of guilty and the evidence before the judge.
To my mind, the 2nd plea taken by the appellant, where he pleaded guilty after the charge was read to him was in strict compliance with Section 218 of the Criminal Procedure Act.
There was no need for the charge to be explained to him as this was done when he took his first plea. The mandatory requirements of Section 215 of the Criminal Procedure Act are no longer applicable after the 2nd plea of guilty was made”. (Underline mine).
The learned Justice of the Court below stated on as follows:-
“The appellant having pleaded guilty gives no option to the learned trial Judge than to convict and sentence him as he did, The appellant cannot turn round to complain of any failure to record plea of guilty as being suggested by the appellant before the invocation of Section 218 of the Criminal procedure.
See RAYMOND S. DONGTOE v CIVIL SERVICE COMMISSION. PLATEAU STATE & ORS (2001) 9 NWLR (Pat.717) 132 at 159 E-G per KARIBI-WHYTE. JSC.
The offence involved in this case is a non-capital offence. Therefore the plea of guilty by the accused amounted to throwing in the towel and there is no need for the prosecution to call the recorder of the statement of the appellant Exhibit ‘A’ as no issue was joined on the charge before the Court. Since it is an admission of guilt made in open Court, it is confession within the meaning of Section 28 of the Evidence Act 2011 and it became relevant under Section 29 (1) of the same Evidence Act. It is a judicial confession and the lower Court was justified in convicting him and was right in inflicting the sentence upon the appellant.
With or without Exhibit ‘A’ the confessional statement the confession of appellant in Court on 5th day of July, 2011 was sufficient to ground his conviction. See SUMMAYA ISSAH TORRI v UTE NAKONAT PARK SERVICE OF NIGERIA (2011) 8 SCM 217 at 227 H to 229 A where I. T. MOHAMMAD, JSC had this to say:-
“The position of the law, as is clear from Section 161 (2) of the Criminal Procedure Code set out above, is that where the offence for which an accused person is charged is not a capital offence, the trial Court has the discretion to convict the accused. The plea of guilty made by the appellant is as good as a Judicial confession or admission of commission of a crime.
Section 27 (1) of the Evidence Act Cap 112 of the Evidence Act (Cap. E14) ,27 (1) of the Evidence Act 112 of the Evidence Act (Cap. E14, LFN, 2004) defines confession to be an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Where there is that kind of admission of guilt, this Court, in a plethora of cases held that the legal burden of proof no longer arises, and no burden of proof rests on the accuser, it having been discharged by the admission of the accused. See – the dictum of Karibi-Whyte, JSC, in Dongtoe v Civil Service Commission, Plateau State & Ors. (2001) FWLR (pt.50) at page 1671 – B, (2001) 5 SCM, 59; Adetunji v The State (2001) 13 NWLR”.
The Court below stated in conclusion thus:-
“Furthermore a close perusal of the notice and grounds of appeal shows that the appellant signed his name on it on 2nd day of July, 2012 by writing Sunday as his signature or mark on the said Notice and Grounds of Appeal filed on 3rd July, 2012. This to me is a further confirmation that the Appellant is just feigning to be an illiterate”.
Clearly the judgment of the Court below was upon a thorough reasoning and grounded upon the legal principles of law operating when the issue of Illiteracy vis-a-vis the confessional statement of an accused rears its head. I would want to anchor on the
exploration of who an illiterate is by my learned brother, Adamu-Augie JCA (as he then was) did in the case of Emmanuel Omozeghian v Chief Adjurho & Anor (2006) 4 NWLR (Pt.696) 33 at 56 thus:-
“By the provisions of the Illiterate Protection Law, an illiterate is a person who is unable to read with understanding and to express his thoughts by writing in the language used in the document made or prepared on his behalf that is a person who is totally illiterate. A person who is unable to read or write the language in which a particular document is written, but who can read or write in some other language is not an illiterate within the meaning of the Illiterate Protection Act. It was also held that the question of anyone being literate or illiterate cannot be presumed by the Court, but it is a matter to be established by evidence. In the instant case, where there was no evidence to establish appellant’s purported illiteracy, the appeal filed by him challenging his confessional statement on grounds of was dismissed”. (Edokpayi v Oke (1964) NMLR 53 referred to) Pp.1127 – 1128, paras. H-D).
Again this Court had stated in no uncertain terms the guiding roadmap which the Court should follow when a party wants to seek refuge on the Illiterate Protection Act.
In the case of Anaeze v Anyaso (1993) 5 NWLR (Pt.291) 1 at 32 per Karibi – Whyte, JSC said:
“There is no doubt that the question of whether a person is an illiterate or not is one of fact, which can be determined on the evidence before the Court. It can also be determined from a presumption drawn upon the facts before the Court…”
Also, at page 35 the Court stated further thus:
I have held in this judgment that the Courts below were wrong to have held that respondent is an
illiterate and entitled to protection. Since presumption of literacy was not rebutted respondent is not entitled to protection. The Illiterates Protection Law applied to protect persons who have established that they are illiterate and that they did not understand the documents they are alleged to have signed, and that the documents were not read over to them. Thus in such circumstances the provisions of Section 3 of the Illiterates Protection Law have been complied with. The situation seems to me ought to be different where even if illiterate the signatory understood the contents of the document and acted with full knowledge of the contents. In such a case the protection of the law is unnecessary. The law is not designed to cover such a situation”.
The complaints now raised by the appellant are that the writer of the extra-judicial statement, Exhibit ‘A’ was not called as a witness at the trial even though it was a summary trial and that the plea of guilty of the appellant was not conclusive as the onus was still on the prosecution to lead evidence of guilt beyond reasonable doubt.
That posture of the appellant by a long shot cannot fly because as at the time that plea of the accused now appellant was taken when he admitted guilt by his plea, he was represented by legal counsel who raised no objection. The trial being therefore one known as a summary trial, there was no obligation on the prosecution to call the interpreter who participated at the time the accused appellant’s statement, Exhibit ‘A’ was recorded.
This is all the more in order since there was nothing to show that the appellant was an illiterate and anyway the said statement was recorded in English which fact underscored that the recording of the
statement was regularly effected and appellant not in doubt of what he was saying. Again to be said is that there being nothing showing that appellant was an illiterate, there was no need to produce the recorder of the said statement before its admissibility would be accepted. I rely on the dicta of my learned brothers Olukayode Ariwoola JSC and Akaahs JSC in the case of Michael Oloye v The State (2018) LPELR – 44775 (SC).
The appellant had also raised an issue that Exhibit ‘A’ being a public document ought to have been certified before admission. I would rather go along with the position of the respondent to be that public documents such as Exhibit ‘A’ are proved in their primary form by tendering the originals or in their secondary form by tendering the certified true copies and so when a statement sought to be tendered by its maker or one of its makers, that is in the original form and certification is dispensed with.
That was the situation herein. See In the Master of MV. “Delso” & Ors v Ocean Steamship Nig. Ltd (2004) 17 NWLR (Pt.901) 88 at 103; Anagbado v Faruk (2018) LPELR – 44909 (SC) pages 17-18 per Sanusi JSC.
Indeed, this is an open and shut case in that as the appellant as accused at the Court of trial made a plea of guilty and that was recorded, an appellate Court can entertain an appeal on what thereafter transpired such as the conviction of the appellant if it appears:
(a) That the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it or
(b) That upon the admitted facts, he could not in law, have been convicted of the offence charged.
See Essien v The King 13 WACA 6.
In the case at hand none of those two conditions exist as going through the records, at the point of arraignment the appellant or his counsel did not complain about the confessional statement, Exhibit ‘A’
and all the more damning is the fact that appellant was represented by counsel all through the proceedings and so he cannot now properly raise an objection on any impropriety in the admitted extra-judicial statement. See Michael Okaroh v The State(1990) NWLR (Pt.125) 136.
As I said earlier in this judgment, the Court below carried a thorough painstaking job taking along the relevant applicable law and the guiding principles well enunciated by the Supreme Court as well as the Court of Appeal.
Indeed, this appeal is a labour in vain and so in line with the well-articulated lead judgment, I too see no merit in it and so dismiss the appeal as I affirm the decision of the Court below which in turn affirmed the judgment, conviction and sentence of the trial High Court.
EJEMBI EKO, J.S.C.: The Appellant was convicted and sentenced to 4 years imprisonment by the Federal High Court, Ilorin for dealing in 18kg of Cannabis Sativa in contravention of Section 11 (c) of the National Drug Law Enforcement Agency Act, CAP 30, LFN 2004. The National Drug Law Enforcement Agency (NDLEA) had, previous to arraigning the Appellant at the Federal High Court, caused to be served on him the Proof of Evidence and had thereby frontloaded all the evidence they intended to lead against him.
The Proof of Evidence had included therein the extra-judicial statement of the Appellant recorded at his instance by one Oko Anthony Odey recorded in English Language. The Appellant thus had notice that this statement was going to be used against him at his subsequent trial like the other exhibits tendered at
The Appellant, upon his arraignment, pleaded guilty to the charge laid out in the proof of Evidence. The charge, before his plea, was read and explained to the Appellant. His Counsel was present when the charge was read and explained to him. The Counsel finding nothing amiss, raised no objection to the procedure the learned trial adopted the minute of the proceedings for that day of arraignment shows thus:
charge read and explained to the accused person in English Language and he appeared perfectly to understand same.
There was no protest from either the Appellant or his Counsel, S. A. Haruna (Miss) that the accused/Appellant did not understand English Language. The presumption, therefore, is that the Accused/Appellant understood English Language when he pleaded, in the presence of his Counsel, guilty to the charge read and explained to him in English Language. The Court will not know if he did not understand English Language unless told so by either the Accused/Appellant or by his Counsel. Until the accused person told the Court that he did not understand the lingua franca of the Court, Section 36 (6) (a) & (c) of the Constitution cannot be invoked by the Court to provide him an interpreter.
Upon the Appellant pleading guilty to the charge read and explained to him in English Language, the prosecutor proceeded to tendering from the Bar several documents (seven in all), including the extra-judicial statement the Accused/Appellant made on 7th June, 2011. The statement, recorded by Oko, A. Odey, DSN, confessional in nature, was duly attested by Inuwa Ibrahim as having made voluntarily made. The extra-Judicial Statement was admitted in evidence as Exhibit A, without objection from the defence: Miss S. A. Haruna, defence Counsel, having expressly told the trial Court that she had no objection. At this juncture the prosecutor urged the trial Court to convict the Accused/Appellant “as charged”. Again, the defence agreed.
She told the Court that she had “No Objection”. Thereupon, the Accused/Appellant was “convicted as charged”.
The Appellant’s appeal against the conviction that, through his Counsel, he had expressly submitted to by consent was dismissed by the Court of Appeal, Ilorin Division. The judgment Appellant appealed as of right to the Court of Appeal (hereinafter called the Lower Court”) was no doubt a consent judgment. Section 241 (2) (c) barred the Appellant from appealing against the consent judgment without leave of the trial Court or the Court of Appeal. Thus, from the onset the appeal at the Lower Court was incompetent and frivolous.
The Appellant through his present Counsel, Taiwo Kupolati, Esq., has made so much fuss, at the Lower Court and here too, about the Appellant being an illiterate. That is a question of fact. I therefore agree with the Respondent that illiteracy being a question of fact cannot be presumed. It must be proved. Sections 131Â and 132 of the Evidence Act lay the burden of proving this fact being asserted by the Appellant on the Appellant. He who asserts must prove the fact he asserts in order to be entitled to the judgment of the Court on the basis of that fact that he asserts.
This Court, per Karibi-Whyte, JSC has held in ANAEZE v. ANYASO (1993) 3 N.W.L.R. (Pt. 291) 1 that, generally, there is rebuttable presumption of literacy which must be rebutted with evidence by the party pleading illiteracy. This position of law was again re-affirmed by this Court in HH V.A.O. OTITOJU v. GOVERNOR, ONDO STATE & ORS (1994) 4 S.C.N.J. (Pt. 11) 224 wherein, at page 234, Kutigi, CJN restated the law, thus:-
The question – whether a person is literate or illiterate cannot be presumed by the Court. It is a matter of fact to be established by whoever who so asserts – EDOKAYI v. OKE (1964) N.N.L.R.
The Appellant did not assert nor prove at the trial Court the assertion that he was/is an illiterate. He seemed, by his conduct at the trial Court, to convey the impression that he is literate and/or that he understood English Language. He is therefore estopped, by dint of Section 169 of the Evidence Act, from denying the fact either of his literacy or ability to understand English Language. He was served the Proof of Evidence containing Exhibit A long before his arraignment.
He and his Counsel, in my firm view, had sufficient notice of the fact that Exhibit A was recorded in English Language, and was read over and interpreted to him by the recorder, Mr. Odey. At his arraignment, the Appellant was represented by Counsel. Neither himself nor his Counsel made an issue of the Appellant’s inability to speak or understand English Language.
The appropriate time for the Appellant, through his Counsel, to raise objection to the admissibility of Exhibit A, either on the ground of Illiterates (Protection) Law or on the ground of the Appellant’s inability to understand, speak or understand English Language was at the time the prosecutor sought to tender Exhibit A as evidence. The Appellant herein, having lost the vital moment to raise his preliminary objection to Exhibit A at the trial Court, is deemed not to have any objection, a fact made expressly by his counsel, to the admissibility of Exhibit A: REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA v. NIGERIA AIRSPACE MANAGEMENT AGENCY (2014) LPELR 22382 (SC); KALU v. ODILI & ORS (1992) 6 SCNJ 76; MARTINS v. FEDERAL ADMINISTRATOR – GENERAL (1962) 1 ALL NLR 120; (1962) 1 SCNLR 209.
The law is settled, and it is so restated in several decisions of this Court that where an accused is represented by a counsel, it is the duty of such counsel to object to the tendering of any statement made by the accused that is incriminating. Where such counsel failed to play his part as to objecting to admissibility of such statement or where the counsel, within his authority as counsel expressly consents to the tendering of the statement, and the statement is admitted in evidence; he cannot be heard to complain subsequently that the statement was not properly admitted in evidence:R v. IGWE (1960) SCNLR 158; DAWA v. STATE (1980) 8 – 11 SC 236; OBIDIOZO v. STATE (1987) 4 NWLR (pt. 67) 748; OKAROH v. STATE (1990) 1 NWLR (pt. 125) 128, at 136 137. In this case, Exhibit A, the extra-judicial statement of the Appellant, and other documents were tendered from the Bar without objection. The Appellant is estopped from complaining, as he does in this appeal, that Exhibit A was wrongly admitted in evidence: ALADE v. OLUKADE (1976) 2 SC 183; RAIMI v. AKINTOYE (1986) 3 NWLR (pt. 26) 97; NKIE v. F.R.N. (2014) ALL FWLR (pt. 754) 178.
Apart from the issue of the Appellant being deemed to have abandoned any objection to the admissibility of Exhibit A or his being estopped by conduct from raising it subsequently; the procedure adopted by the Appellant raising it for the first time at the Lower Court by way of Notice of Appeal is wrong and improper. A judicial matter conclusively decided between the parties is expected, on the established public policy that should be an end to dispute, to operate as estoppel per rem judicatam. And this, also, is what makes the appeal at the Lower Court a gross abuse of judicial process.
The issue of literacy or illiteracy being one of fact, the only way the Appellant could have raised it at the Lower Court was upon leave sought and granted to raise fresh issue of facts or for leave to adduce fresh evidence. The Record does not show that the Appellant took any such step to satisfy these procedural niceties.
The Appellant’s counsel has made so much hue and cry about Exhibit A, being inadmissible hearsay evidence without the interpreter called as a witness to affirm the correctness of its content. As no objection was
raised to the admissibility of Exhibit A when it was being tendered, the question is now purely academic. It has no utilitarian purpose. This apart, Appellant has not shown in what way the tendering and the admission of Exhibit A into the body of the evidence at the trial Court had occasioned any substantial miscarriage of justice to him. The trial Court did not utilize Exhibit A in the conviction of the Appellant. The appeal in the circumstance is frivolous and vexatious. It is accordingly dismissed, as it is a gross abuse of the Court’s process.
If I may ask: can the provisions of the Illiterates (Protection) Law of Kwara State be utilized procedurally, for the trial of the Appellant at the Federal High Court for a Federal offence under the NDLEA Act? Appellant’s counsel made so much fuss about Exhibit A not complying with the Illiterates (Protection) Law without for a moment impressing on this Court whether this State law can be invoked to render proceedings for a Federal offence at the Federal High Court invalid.
I join my learned brother, AMIRU SANUSI, JSC, as I endorse his judgment just delivered in this appeal, in dismissing this appeal in its entirety.
The decision of the Court of Appeal contained in its judgment delivered in the appeal No CA/lL/C.32/2012 delivered on 14th February, 2013 is hereby affirmed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment
of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal is devoid of merit. It is accordingly dismissed. The concurrent findings of the two Lower Courts are hereby affirmed.
Taiwo Kupolati with him, Taiwo AjiboyeFor Appellant
F.A. Oloruntoba with him, Y.S. Mshellia and M.E. FarunaFor Respondent