WHETHER THE FACT THAT A WITNESS GAVE HIS EVIDENCE IN HIS NATIVE DIALECT IS CONCLUSIVE PROOF THAT HE IS ILLITERATE

CASE TITLE:                 SAHEED ADESINA v. THE STATE (2021) LPELR- 54515(CA)

JUDGMENT DATE:      2ND JUNE, 2021

JUSTICES:                    JIMI OLUKAYODE BADA, JCA

                                   UGOCHUKWU ANTHONY OGAKWU, JCA

                                    FOLASADE AYODEJI OJO, JCA

COURT DIVISION:       IBADAN

PRACTICE AREA:         Criminal Law and Procedure – Offence of Armed Robbery

FACTS:

The Appellant and one Ridwan Ojekunle were charged before the Oyo State High Court, Ibadan on a two-count charge of armed robbery and conspiracy to commit armed robbery.

The Appellant was accused of conspiring with his co-accused and others at large to rob one Taibat Adunni Orobiyi. The Appellant who was not physically present during the robbery was arrested during the investigation. At the time of his arrest, some of the items stolen were recovered from his house. The Appellant pleaded not guilty to both counts of the charge and the case went on to trial. The Prosecution relied on the Appellant’s confessional statement among other things as proof of its case.

The Appellant’s case was that he was on his way to work when he was picked up by the Police into a vehicle on the allegation that he committed a robbery. He stated that his house was searched that same day and nothing incriminating was found. He also alleged that his confessional statement was not voluntary as he was hung upside down and beaten with a digger and hammer when he was taken to the SARS office. A trial within trial was conducted after which the confessional statement was admitted as being voluntary.

At the end of the trial, the High Court found the Appellant and his co-accused guilty on both counts of the charge, convicted them, and sentenced them accordingly. The Appellant was dissatisfied with the judgment and appealed against same to the Court of Appeal Ibadan division

ISSUE(S) FOR DETERMINATION:

Whether the evidence adduced by the prosecution at the trial was sufficient to secure the conviction of the Appellant for the offence of Armed Robbery.

The Appellant’s Counsel contended that the trial court erred when it relied on the confessional statement allegedly made by the Appellant to convict him despite his objection to its admissibility. He submitted that a confessional statement will only be admissible if it is made freely and voluntarily. Counsel also argued that the contents of the statement were not interpreted to the Appellant in the Yoruba language before he thumb printed it and so was not admissible.

He further submitted that the arraignment of the Appellant was not in accordance with the law as the learned trial Judge did not put on record that the Appellant clearly understood the charge read to him to the satisfaction of the Court as mandated by the provision of Section 215 of the Criminal Procedure Act Cap C41 Laws of the Federation 2004.

He stated that the guns allegedly used in the commission of the offence are toy guns which do not qualify as firearms under the provisions of the Robbery and Firearms Special Provisions Act and that failure to tender the cutlass used in the commission of the offence was fatal to the case of the prosecution.

Finally, he urged the Court to hold that the prosecution failed to establish the guilt of the Appellant beyond reasonable doubt and set aside his conviction and sentence

Counsel to the Respondent, on the other hand, submitted that the voluntariness was put to test in a trial within the trial and that the learned trial Judge after evaluating the evidence presented at the trial within trial came to the conclusion that the statement was made voluntarily. He further contended that the identity of the Appellant was never in doubt as there was sufficient evidence before the trial Court to ascertain his identity.

He also submitted that the victim gave comprehensive evidence of what happened to her on the day of the incident and that her evidence was not hearsay but an account of what happened to her.

He finally submitted that following the definition of an offensive weapon in Section 11 of the Robbery and Firearms Special Provisions Act, the guns allegedly used in the robbery do not fall within the definition of an offensive weapon under the Act but the cutlass used by the Appellant and his cohorts do.

DECISION/HELD:

In conclusion, the Court found the appeal unmeritorious and thereby dismissed the same. Consequently, the conviction and sentence of the Appellant by the Oyo State High Court, Ibadan was affirmed.

RATIOS:

1. EVIDENCE – PROOF: Whether the fact that a witness gave his evidence in his native dialect is conclusive proof that he is illiterate; whether address of counsel can be relied on to prove illiteracy

“I have gone through the entire printed record and cannot find any evidence to prove or suggest that the Appellant is illiterate. The fact that he gave his testimony at his trial in Yoruba language is not proof that he is illiterate. In Nigeria, English language is a second language for many and when it comes to serious business such as giving evidence in Court they prefer to speak their native dialect in which they can better express themselves. The fact that a witness gave his evidence in his native dialect without more is not conclusive that he is illiterate or suggest that he is. There is no evidence on record to support the submission of counsel that the Appellant is illiterate. The law is trite that an address of counsel does not have the force of evidence and cannot be substituted for it.

See DAHIRU VS. THE STATE (2018) 14 NWLR (PT. 1640) 567; OBIDIKE VS. STATE (2014) 10 NWLR (PT. 1414) 53; CHIOKWE VS. STATE (2013) 5 NWLR (PT. 1347) 205 and AGUGUA VS. STATE (2017) 10 NWLR (PT. 1573) 254.

There is no pedestal on which submission of counsel that the Appellant is an illiterate can stand. There is no evidence to prove it. Moreover, it is a fresh issue for which he must seek leave to raise. See MOHAMMED VS. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (PT. 1636) 229; SALIU VS. STATE (2018) 10 NWLR (PT. 1627) 251; USMAN VS. THE STATE (2014) 12 NWLR (PT. 1421) 207 and OBIAKOR VS. STATE (2002) 10 NWLR (PT. 776) 612.

My conclusion on this point is that whichever way one looks at it, there is no merit in the submission that the confessional statement made by the Appellant should be expunged because the same was not read over to the Appellant who is illiterate in the Yoruba language. It must therefore fail and I so hold. ” Per OJO, J.C.A.

• EVIDENCE – PROOF: What a person who asserts that he is illiterate must prove

“The law is settled that the question whether a person is literate or illiterate is a matter to be proved by evidence. A person who asserts that he is illiterate has a duty to prove to the satisfaction of the Court the following:

i. The fact that he is illiterate and can only sign his name or make a thumbprint.

ii. That the document or documents he signed or thumb printed were not read to him and

iii. That he could not have signed if the document or documents was read to him.

See SUNDAY VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211; JOHN VS. STATE (2017) 16 NWLR (PT. 1591) 304; OTITOJU VS. GOVERNOR, ONDO STATE (1994) 4 NWLR (PT. 340) 518 and EDOKPAYI VS. OKE (1964) NMLR 53.” Per OJO, J.C.A.

• CRIMINAL LAW AND PROCEDURE – ARRAIGNMENT/TAKING OF PLEA: Whether the Judge must record that the charge was read to the accused to his satisfaction before taking the plea of the accused

“…The question now is whether the failure of the trial Court to record that the charge was read to the accused to the satisfaction of the Court constitutes a defect in his arraignment. It is my view that the failure to record that the charge was read and explained to the accused/Appellant to the satisfaction of the Court would not in the present circumstance affect the validity of the arraignment. It is on record that the charge was read and explained to the Appellant in the language he understood before his plea was taken. To my mind, it can be safely presumed that the learned trial Judge was satisfied that he understood the charge before he took his plea. To hold otherwise would be impugning the integrity of the trial Judge and I so hold.

In OKORO VS. THE STATE (1998) 14 NWLR (PT. 584) 181 AT 214 PARAS D-G, the Supreme Court per WALI JSC held as follows: “The provision is to intimate the accused with the contents of the charge he is to stand trial for. The Court’s proceeding of 26-5-86 clearly shows that the charge was read, interpreted and explained to the Appellant in Yoruba, the language he understood. It was after the learned trial Judge was satisfied that he fully understood the charge that he recorded his plea of not guilty.

The provision of the law should not be stretched to a point of absurdity by reading into it that the Judge must record that the charge was explained to the accused to his satisfaction before taking his plea. It will be impeaching the integrity of the Judge to do that as no Judge will take the plea of an accused if he is not satisfied that the charge was read and explained to the accused to his satisfaction. It is my view that the principles laid down in both KAJUBO VS. THE STATE and EREKANURE VS. THE STATE (supra) have been substantial, if not fully complied with resulting in no miscarriage of justice.

There was no contravention of or derogation from Section 33 (6)(a) of the Constitution of Nigeria 1979 as the charge was read, interpreted, and explained to the Appellant in Yoruba, the language he said he understood… ” Per OJO, J.C.A.