Whether The Fact That A Witness Gave His Evidence In His Native Dialect Is Conclusive Proof That He Is Illiterate

Be The First To Know By LawPavilion

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
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 in 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 contented 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 was not interpreted to
the Appellant in 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 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 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 offensive weapon under the Act but the cutlass used
by the Appellant and his cohorts does.

DECISION/HELD:

In conclusion, the Court found the appeal unmeritorious and
thereby dismissed 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 same was
not read over to the Appellant who is an illiterate in Yoruba
language. It must therefore fail and I so hold. ” Per OJO,
J.C.A.

2. 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:

1. The fact that he is illiterate and can only sign his name or
   make a thumbprint.
2. 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.

3. 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 constitute 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 substantially, 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.

Read more Latest Judgments on BE THE
FIRST TO KNOW here.^[1]

Be The First To Know By LawPavilion

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
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 in 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 contented 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 was not interpreted to
the Appellant in 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 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 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 offensive weapon under the Act but the cutlass used
by the Appellant and his cohorts does.

DECISION/HELD:

In conclusion, the Court found the appeal unmeritorious and
thereby dismissed 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 same was
not read over to the Appellant who is an illiterate in Yoruba
language. It must therefore fail and I so hold. ” Per OJO,
J.C.A.

2. 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:

1. The fact that he is illiterate and can only sign his name or
   make a thumbprint.
2. 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.

3. 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 constitute 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 substantially, 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.

Read more Latest Judgments on BE THE FIRST TO KNOW
here.^[1]