Umaru Sunday V. Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

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

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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”.

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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.

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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.

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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,

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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

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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.

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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.

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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

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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

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tendering the certified true copy or copies. He submitted that the appellant will be estopped at this point, to raise objection to the admissibility of the said exhibits because he had failed to do so at the earliest opportunity. He cited the case of ANAGBADO V FARUK. He therefore submitted that Exhibit “A” was properly admitted by the trial Court and he finally urged this Court to dismiss this appeal.

RESOLUTION OF ISSUES FOR DETERMINATION

It seems to me that the argument of learned counsel to the parties on this issue more or less revolves or pertains to the admissibility of the confessional statement made by the appellant (Exhibit A) which he volunteered to the officers of the National Drug Law Enforcement Agency (NDLEA). It is part of the appellant’s counsels submission that the conviction of the appellant by the trial Court was based or founded on Exhibit A. That could not be true, because the trial Court also relied on the voluntary admission of the offence in open Court when he pleaded guilty to the charge read and explained to him. The learned counsel for the appellant persistently argued that Exhibit A was inadmissible due to

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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 con 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:-

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“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 con 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

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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 con 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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

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SC.145/2013