SUNDAY v. FRN

CITATION: (2018) LPELR-46357(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 14TH DECEMBER, 2018Suit No: SC.145/2013

Before Their Lordships:

OLABODE RHODES-VIVOUR Justice of the Supreme CourtMARY UKAEGO PETER-ODILI Justice of the Supreme CourtAMIRU SANUSI Justice of the Supreme CourtEJEMBI EKO Justice of the Supreme CourtSIDI DAUDA BAGE Justice of the Supreme Court

BetweenUMARU SUNDAY - Appellant(s)

AndFEDERAL REPUBLIC OF NIGERIA - Respondent(s)

RATIO DECIDENDI1. CRIMINAL LAW AND PROCEDURE - PLEA OF GUILT: Effect of a plea of guilt by an accused

"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 isrepresented 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 acharge 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 witnessevidence. See Akpa v State (2008) 14 NWLR (Pt.1106) p.72."Per RHODES-VIVOUR, J.S.C. (P. 24, Paras. C-F) - read in context

(201

8) LP

ELR-46

357(

SC)

2. CRIMINAL LAW AND PROCEDURE - PLEA OF GUILT: Requirement of the law where an accused pleads guilty to a charge as stated by Section 218 of the Criminal Procedure Act"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 counseltherefore 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 the1999 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 andSection 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. Thatis 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 thelanguage 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 himin 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 218Criminal 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 Recordof 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 tostate 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 unnecessaryto 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 theomission to do so would not constitute non-compliance with the constitutional and procedural requirements. I am therefore, in agreement with the respondent that the appellantwas 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 alsotestified 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 to1021 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, themandatory 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 hiscounsel 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 ProcedureAct.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 Actare 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 anyfailure 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 prosecutionto 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 isconfession 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 thelower 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 ISSAHTORRI v UTE NAKONAT PART 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 fromSection 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 thediscretion 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 EvidenceAct 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 aperson 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 heldthat 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 ormark 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 theconfessional 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 ]CA (as he then was) didin 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 inthe 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 iswritten, 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 beingliterate 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'spurported 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 offact, 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 Courtstated 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 ofliteracy 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 thatthey 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 Section3 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 thedocument 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 complaintsnow 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 theplea 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 wasrepresented 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 interpreterwho 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 anilliterate 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 ofwhat 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 beforeits 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 therespondent 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 truecopies 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 situationherein. 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 perSanusi 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 anappeal 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 theconfessional 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 raisean 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 theSupreme 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 dismissthe appeal as I affirm the decision of the Court below which in turn affirmed the judgment, conviction and sentence of the trial High Court."Per PETER-ODILI, J.S.C. (Pp. 31-43, Paras.A-C) - read in context

(201

8) LP

ELR-46

357(

SC)

3. EVIDENCE - CONFESSIONAL STATEMENT: Position of the law as regards the recording of the statement of an illiterate accused person"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 theappellant (Exhibit A) which he volunteered to the officers of the National Drug Law Enforcement Agency (NDLEA). It is part of the appellant's counsel's submission that theconviction 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 theoffence 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 inadmissibledue 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 andcivil 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 anilliterate 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 injusticeagainst 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 factthat 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 theappellant 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 othercontractual 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 orPolice 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 aboveremarks, 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 statementof 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) providethat 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 ischarged 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 torecording of confessional statement of an accused person by police or other law enforcement agents in criminal matters renders the provisions of Illiterate Protection Act/Lawinapplicable 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 Sections215 and 281 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, beenapplicable 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 theappellant 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 ofthe 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 ofconfessional 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 ofpersons 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 theappellant 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 accusedperson 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 thecircumstance 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 relevantprovisions 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 sayingwhat it stated."Per SANUSI, J.S.C. (Pp. 11-16, Paras. C-A) - read in context

4. EVIDENCE - ILLITERATE JURAT: Who is an illiterate; effect of absence of illiterate jurat in a document"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 learnedcounsel 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 thesaid 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 wrongin 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 considerationnamely, (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 theCourt 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 thiscase, 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) AllFWLR (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 bywriting 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 themeaning 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 beproved 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 NtiashagwaV 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 thelanguage 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. Otitojuvs 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 hisconfessional 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 ofor 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 questionwas 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 ofthe 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 thatthroughout 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 suchdocument 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."Per SANUSI,J.S.C. (Pp. 16-19, Paras. B-D) - read in context

5. EVIDENCE - CONFESSIONAL STATEMENT: Whether it is necessary to call the recorder of a confessional statement when same is being tendered in evidence"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 thefact 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. Immediatelyafter 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 statedearlier. 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 wastherefore 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 factthat 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 saidstatement 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 beforethe 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). Thechallenges 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 nevertestified 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 renderedthe 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 Courtcan 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 satisfiedwith 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 confessionalstatement 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 heunhesitatingly 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 isnoteworthy 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 whenhe 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 tohim 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 ofthe 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, thetrial 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 allegedfailure 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 fromthe 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."PerSANUSI, J.S.C. (Pp. 19-23, Paras. D-E) - read in context

(201

8) LP

ELR-46

357(

SC)

6. EVIDENCE - CONFESSIONAL STATEMENT: Effect of failure of an accused person to object to the admission of his confessional statement"The National Drug Law Enforcement Agency (NDLEA) had, previous to arraigning the Appellant at the Federal High Court, had caused to be served on him the Proof of Evidenceand 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 recordedat 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 triallike the other exhibits tendered at the trial.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. HisCounsel 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 minuteof 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, isthat 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. TheCourt 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 didnot 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 inall), 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 attestedby 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 theconviction 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 rightto 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 consentjudgment 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 questionof fact. I therefore agree with the Respondent that illiteracy being a question of fact cannot be presumed. It must be proved. Sections 131 and 132 of the Evidence Act lay theburden 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 onthe 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 rebuttedwith 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. 53. 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 impressionthat 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 orability 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 sufficientnotice 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 wasrepresented 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 theAppellant, 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 tounderstand, 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 toraise 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 wherean 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 counselfailed 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, theextra-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 thisappeal, that Exhibit A was wrongly admitted in evidence: ALADE v. OLUKADE (1976) 2 SC 183; RAIMI v. AKINTOYO (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 itsubsequently; 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 matterconclusively 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, iswhat 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 offacts 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 madeso 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 wasraised 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 whatway 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 didnot utilise 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'sprocess."Per EKO, J.S.C. (Pp. 43-51, Paras. E-C) - read in context

(201

8) LP

ELR-46

357(

SC)

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

1

(201

8) LP

ELR-46

357(

SC)

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".

2

(201

8) LP

ELR-46

357(

SC)

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

Plea: Guilty

Igwubor: Tender

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.

3

(201

8) LP

ELR-46

357(

SC)

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.

4

(201

8) LP

ELR-46

357(

SC)

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,

5

(201

8) LP

ELR-46

357(

SC)

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

6

(201

8) LP

ELR-46

357(

SC)

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.

ISSUES NO.2

Issue no.2 deals with whether the Court below was right

when it held that the appellant was not an illiterate.

7

(201

8) LP

ELR-46

357(

SC)

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.

8

(201

8) LP

ELR-46

357(

SC)

ISSUE NO.3

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

9

(201

8) LP

ELR-46

357(

SC)

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

10

(201

8) LP

ELR-46

357(

SC)

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 counsel’s 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

11

(201

8) LP

ELR-46

357(

SC)

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:-

12

(201

8) LP

ELR-46

357(

SC)

"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

13

(201

8) LP

ELR-46

357(

SC)

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

14

(201

8) LP

ELR-46

357(

SC)

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

15

(201

8) LP

ELR-46

357(

SC)

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

16

(201

8) LP

ELR-46

357(

SC)

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

17

(201

8) LP

ELR-46

357(

SC)

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

18

(201

8) LP

ELR-46

357(

SC)

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

19

(201

8) LP

ELR-46

357(

SC)

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

20

(201

8) LP

ELR-46

357(

SC)

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

21

(201

8) LP

ELR-46

357(

SC)

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

22

(201

8) LP

ELR-46

357(

SC)

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.

23

(201

8) LP

ELR-46

357(

SC)

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.

24

(201

8) LP

ELR-46

357(

SC)

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

25

(201

8) LP

ELR-46

357(

SC)

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 appel lant was not an i l l i terate ,

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.

26

(201

8) LP

ELR-46

357(

SC)

ISSUES 1, 2 AND 3:

1. Whether the Court of Appeal was right in law when

it held that the illiterate’s 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 appel lant was not an i l l i terate ,

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.

27

(201

8) LP

ELR-46

357(

SC)

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

28

(201

8) LP

ELR-46

357(

SC)

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

(201

8) LP

ELR-46

357(

SC)

29

(201

8) LP

ELR-46

357(

SC)

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.

30

(201

8) LP

ELR-46

357(

SC)

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.

31

(201

8) LP

ELR-46

357(

SC)

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:

32

(201

8) LP

ELR-46

357(

SC)

"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".

33

(201

8) LP

ELR-46

357(

SC)

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

34

(201

8) LP

ELR-46

357(

SC)

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

35

(201

8) LP

ELR-46

357(

SC)

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.

36

(201

8) LP

ELR-46

357(

SC)

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

37

(201

8) LP

ELR-46

357(

SC)

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

38

(201

8) LP

ELR-46

357(

SC)

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

39

(201

8) LP

ELR-46

357(

SC)

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

40

(201

8) LP

ELR-46

357(

SC)

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.

41

(201

8) LP

ELR-46

357(

SC)

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-

42

(201

8) LP

ELR-46

357(

SC)

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.

Appeal dismissed.

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.

43

(201

8) LP

ELR-46

357(

SC)

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 trial.

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,

44

(201

8) LP

ELR-46

357(

SC)

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.

45

(201

8) LP

ELR-46

357(

SC)

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 131 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

46

(201

8) LP

ELR-46

357(

SC)

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. 53.

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.

47

(201

8) LP

ELR-46

357(

SC)

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.

48

(201

8) LP

ELR-46

357(

SC)

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.

49

(201

8) LP

ELR-46

357(

SC)

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

50

(201

8) LP

ELR-46

357(

SC)

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.

51

(201

8) LP

ELR-46

357(

SC)

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.

52

(201

8) LP

ELR-46

357(

SC)

Appearances:

Taiwo Kupolati with him, Taiwo Ajiboye ForAppellant(s)

F.A. Oloruntoba with him, Y.S. Mshellia and M.E.Faruna For Respondent(s)

(201

8) LP

ELR-46

357(

SC)