UMARU SUNDAY v. FEDERAL REPUBLIC OF NIGERIA (2013)

UMARU SUNDAY v. FEDERAL REPUBLIC OF NIGERIA

(2013)LCN/5922(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of February, 2013

CA/IL/C.32/2012

RATIO

ON THE MEANING OF AN ILLITERATE

I believe the first port of call under issue one raised for determination by the Appellant is to find out who is an Illiterate person? This court in the case of EMMANUEL OMOZEGHIAN V. CHIEF J. J. ADJARHO & ANOR (2006) 4 NWLR (PART 969) 33 at 56 E – F per AMINA ADAMU AUGIE J.C.A said:- “An illiterate” within the meaning of the illiterate Protection Law 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 illiterates Protection Act.” In the case of HIS HIGHNESS V. A. OTITOJU V. GOVERNOR OF ONDO STATE & ORS (1994) 4 SCNJ (PART 11) 224 at 234 KUTIGI JSC later CJN (RTD) held:- “An “Illiterate Person” has been defines in the case of NTIASHAGWO V. AMODU (1959) WNLR 273 as 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” I endorse this definition. The question therefore of any one being literate or illiterate cannot be presumed by the court but is a matter to be established by evidence, Edokpayi V. Oke (1964) NNLR 53. The burden was on the appellants who objected to the document to prove that they as makers were Illiterates” See also VIHISHIMA IGBUM V. ALHAJI BABA NYARINYA & ANOR (2001) 5 NWLR (PART 707) 574 A – C. It is also here relevant to peruse Section 2 of the Illiterate Protection Act which is in pari material with Section 3 of the Illiterate Protection Laws Cap 11 Laws of Kwara State, 2007. It Provides: “A person who writes a letter or documents at the request; on behalf or in the name of an illiterate person shall also write on the letter or other document his own name as the writer thereof and his address, and his so doing shall be equivalent to a statement.” The law has been interpreted in numerous case by this court and the apex court. They are all speaking with one voice that the object of Illiterates protection law is to protect an illiterate person from possible fraud and exploitation by being made to sign or acknowledge writing or document which does not convey, or bear the real intention of the Illiterate maker of the document. Per. PETER OLABISI IGE J.C.A.

THE PURPOSE OF THE JURAT: THE PROVISION OF THE LAW FOR THE PROTECTION OF AN ILLITERATE

EVIDENCE: THE POSITION OF THE LAW ON THE OBJECTION TO A CONFESSIONAL STATEMENT

The law is settled that the appropriate time to object to a document or statement made by an accused person on ground of inadmissibility is at the time when the prosecutor, seeks to tender the statement in evidence and not at appellate court. See JOSEPH UBI IGRI V. THE STATE (2012) 16 NWLR (PART 1327) 522 AT 545 E per CHUKWUMA – ENEH JSC who held:- “The objection to a confessional statement is required to be raised at the tendering of the confessional statement. This is ordinarily so during presenting of the prosecution’s case at the main trial.” In this case a second chance and opportunity came the way of the Appellant at the trial on 5th July, 2011 to object to the admissibility of Exhibit A but he rather took the plunge which now dawn on him to be a specious gamble to make a blind plea of guilty to the charge or offence against him when the charge was read to him at the behest of the learned trial Judge. See page 21 of the Record. What the Appellant did by the plea of guilty must be taken to represent the truth about the charge or offence against him. After all a person will not lightly lie against himself. It must have come from the bottom of his heart. Out of abundance of heart the mouth speaks. In all of these the Appellant and his Learned Counsel must be taken to see nothing wrong with the proceedings at the trial court. They did not complain of lack of understanding of English Language by the Appellant or that an interpreter was needed. All these further confirmed that the Appellant understood the language of the court. The failure to complain or to ask for interpreter at the trial court is fatal to his appeal. He has lost his right to complain. See THE STATE V. GWONTO & ORS (1983) 3 SC 62 AT 96 – 97 where NNAMANI JSC of blessed memory said:- “Applying these principles to the instant case, the Respondents ought to have failed in the Court of Appeal in their contention that their rights under Section 33 (6) (e) of the 1979 Constitution were violated. The respondents were throughout the proceedings in the High Court represented by counsel Mr. Ahinche. There is, nothing in the records of the High Court (and no further evidence was led on the issue in the Court of Appeal). I think, with all respect, that the point which was missed here is that the importance of the issue of representation ties in the fact that if an accused person is represented by counsel such counsel ought to demand his client’s right to interpretation or object to any irregularity such as lack of interpretation. If neither he nor the accused objects, the right is lost for all time and certainly cannot be invoked in a Court of Appeal.” See also the recent cases of: 1. ANTHONY OKORO V. THE STATE SUPRA 351 at 368 E-F per RHODES VIVOUR JSC. 2. ELIJAH AMEH OKEWU V. THE FEDERAL REPUBLIC OF NIGERIA (2012) 9 NWLR (PART 1305) 327 at 352 D – F per ARIWOOLA JSC”. Per. PETER OLABISI IGE J.C.A.

CRIMINAL LAW: THE INGREDIENTS OR REQUIREMENTS OF A LAWFUL ARRAIGNMENT

The law is settled that a valid arraignment of an accused or offender must enure and guarantees to the accused a fair hearing and fair trial as enshrined in section 35 and 36 of the Constitution of Nigeria, 1999 as amended or altered. The ingredients or requirements of a lawful arraignment have been stated and restated in numerous cases. In the case of SABINA CHIKAOBI MADU V. THE STATE (2012) 15 NWLR (PART 1324) 405 AT 439 H to 440 A – C WHERE ATIWOOLA JSC had this to say:-
“In compliance with section 215 of the Criminal Procedure Law, for the arraignment of an accused person to be valid, the following three essential requirements must be met:
(a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order;
(b) The charge or information shall be read over and explained to the accused to the satisfaction of the court by the Registrar or other officer of the court; and
(c) The accused shall then be called upon to plead, thereto unless of course, there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith.
See: Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548 at 565; Idemudia V. The State (1999) 7 NWLR (pt. 610) 202 at 204.” In the very recent case of JOHN TIMOTHY V. THE FEDERAL REPUBLIC OF NIGERIA (2012) 7 SCM 214 at 229 E – I the Supreme Court per Bode Rhodes-Vivour JSC also said:-
“I must consider Section 215 and 218 of the Criminal Procedure Act and the correct procedure to be followed at the commencement of a criminal trial there must be strict compliance with the provisions of Section 215 of the Criminal Procedure. That is to say:-
(a) The accused person must be placed before the court unfettered unless the court otherwise directs, e.g. he may be fettered if the judge is satisfied that the accused shows signs of being violent.
(b) The charge must be read over and explained to the accused person in the language he understands by the Registrar of the court or other officer of the court.
(c) The accused person must be called upon to plead to the charge.
The above requirement is mandatory and must be strictly followed. If the charge is amended during trial the procedure must again be complied with. The procedure under Section 215 of the Criminal procedure guarantees of a fair trial of the accused person. Failure to satisfy any of the above (a) – (c) would render the trial defective and declared a nullity by an appeal court. See JOSIAH V. STATE (1985) 1 NWLR PT 1 P 125, EYOROKOROMO & ANOR V. STATE (1979) Vol. 12 NSCC P. 61; Kajubo V. State Vol. 19 NSCC P.475 and Effiom V. State (1995) 1 NWLR (PT. 373) P 507″ Per. PETER OLABISI IGE J.C.A.

CRIMINAL LAW: FUNDAMENTAL RIGHTS PROVISIONS IN THE CONSTITUTION FOR THE PROTECTION OF A PERSON CHARGED WITH THE COMMISSION OF A CRIMINAL OFFENCE.

Inherent in the requirement of a valid arraignment is Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria which makes it mandatory in all Criminal trials that an accused who is standing trial for an offence does not understand the language of the court shall be entitled to have, without payment, the assistance of an interpreter. See SEGUN OGUNSANYA Vs. THE STATE (2011) 12 NWLR (PART 1261) 401 at 416 E – H to 417 A – F per TABAI J.S.C who said:- “the issue is whether the proceedings culminating in the conviction and sentence of the appellant were conduced strictly in accordance with the principles of fair hearing entrenched in Section 36(4) and (6) of the 1999 Constitution. Section 36(4) of the Constitution says:-
4. Whenever any person is charged with a Criminal offence, he shall, unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a court or tribunal:
6. Every person who is charged with a criminal offence shall be entitled to
(a) Be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) Be given adequate time and facilities for the preparation of his defence;
(c) Defend himself in person or by, legal practitioners of his own choice;
(d) Examine in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution;
(e) Have, without payment, the assistance of any interpreter if he cannot understand the language used at the trial of the offence.
These are the fundamental rights provisions in the Constitution for the protection of a person charged with the commission of a criminal offence. What in legal parlance are the constituents of fair hearing? Fair hearing is not limited to ensuring compliance with the rules of natural justice, the twin pillars of which are audi alteram partem – meaning the other party must be heard and nemo judex in causa sua – meaning “never be a judge in your own case.” Fair hearing in our con also entails compliance with the provisions of Section 36 of the 1999 constitution. The true test of fair hearing is the impression of a reasonable person who was present in court of the trial, whether from his observations; justice was done in the case. See Ijeoma V. State (1990) 6 NWLR (part 158) 567 at 580-581; Baba V. N.C.A.T.C. (1991) 5 NWLR (Part 192) 388 at 420; Chungwom Kim V. State (1992) 6 NWLR (PART 200) 659 at 67; Mohammed V. Kano N.A. (1968) All NLR 424. Per. PETER OLABISI IGE J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

UMARU SUNDAY Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

PETER OLABISI IGE J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Honourable Justice A.O. Faji sitting at the Ilorin Judicial Division of the Federal High Court delivered on the 5th day of July, 2011, sentencing the Appellant to four (4) year imprisonment with hard labour with commencement date fixed at 5th day of July, 2011.
The Appellant was dissatisfied, with the verdict of the lower court and consequently appealed to this Court, vide his Notice of Appeal dated 2nd day of July, 2012 and filed on 3rd day of July, 2012 on two grounds. The reliefs bought by him are:-
(i) An order quashing or setting aside the conviction and sentence of the appellant by the Federal High Court, Ilorin.
(ii) An order discharging and acquitting the Appellant.
The facts leading to the imprisonment of the Appellant can be found in the one count charge against the appellant at the Lower Court as filed on 23rd June, 2011 by NDLEA. The charge reads:-
“That you Sunday Umaru, Adult, on or about the 6th day of June, 2011 at Bankubu Village in Baruten Local Government Area of Kwara State within, the jurisdiction of this Honourable Court, without lawful authority dealt in 18 kilogrammes of cannabis sativa (otherwise known as Indian Hemp) a drug similar to Cocaine LSD etc and thereby committed an offence contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004”.
When the matter came up before Faji – J on 30th June, 2011, it was observed that the Appellant had no Defence Counsel and the matter was adjourned till 5th July, 2011 for arraignment.
On 5th day of July when the matter came up he was represented by a counsel, Miss S. A. Haruna. Appellant was recorded as having pleaded guilty to the one count charge against him, The prosecutor I. J. Igwubor Esq., then tendered the following evidence Viz:
1. Statement of the accused – Sunday Umaru
2. Statement of one Shehu Mallam
3. Transfer letter from the police
4. Packing of substance form
5. Certificate of test analysis
6. Request for scientific and form
7. Brown sealed envelope
8. Evidence Pouch with sample of analysed drug
9. Drug analysis Report
10. Bulk of Exhibits.
All these were tendered and admitted in evidence before the learned trial Judge and were marked as Exhibits A-J without objection from the learned counsel to the Appellant.
Immediately thereafter the learned trial Judge convicted the accused/Appellant as charged. Allocutus was made on behalf of the Appellant.
In passing sentence on the Appellant the trial Judge said:-
“This case clearly has an international dimension and it involves a family elderly man who has been in the business for sometime but has been lucky not to have been arraigned in court considering the, circumstances therefore and in view of the fact that the accused person seems beyond redemption at his age.
You cannot teach an old dog new tricks – my duty will be to punish him to serve as a deterrent to other like-minded people particularly his daughter who assisted him in concealing 18kg of Indian Hemp. The accused person is therefore hereby sentenced to a term of 4 years imprisonment with hard labour starting from today”
The Appellant was dissatisfied with the trial, conviction and sentence hence he filed Notice of Appeal dated 2nd day of July, 2012 with the leave of this court. The said Notice of Appeal was filed on 3rd day of July 2012.
It is necessary to reproduce the two grounds of appeal filed and their particulars so as to bring to the fore the real import of the issues canvassed in the appeal. They are as follows:-
“2. Grounds of Appeal”
Ground One:
“The trial court erred in law when it convicted and sentenced the appellant for the offence under Section 11 (C) of the National Drugs Law Enforcement Agency (NDLEA) Cap N30 Laws of the Federation of Nigeria 2004 on the strength of the confessional statement made by the appellant, when the statement neither contains and illiterate jurat nor was interpreted to the appellant in a language which the appellant understood.
PARTICULARS OF ERROR
a. The conviction and sentencing of the appellant was solely premised on Exhibit A, the confessional statement purportedly made by the appellant.
b. The appellants thumb printing on the said statements shows that the appellant is an illiterate person who neither writes nor understands English language,
c. The statement (Exhibit A) was written by one Uko Anthony Odey DSN in English Language and there is no endorsement on the face of exhibit A to show that the content of Exhibit A was translated and interpreted to the appellant in a Language which he understood.
d. The facts that the Exhibit A was, written in English by the said Uko Anthony Odey DSP and thumb printed by the appellant were prima facie evidence that the appellant is an illiterate person and there ought to have been an illiterate jurat or endorsement indicating that the content of the said statement was translated and explained to the appellant in the Language that the appellant understood, other than English.
e. The endorsement at the foot of Exhibit A to the effect that:
“This statement was taken in English Language and read over and translated to the appellant in English Language in my presence and hearing”
is grossly deficient as the translation and interpretation ought to have been in a Language which the appellant understood being an illiterate person who neither writes nor understand English.
f. The name of the interpreter and the language in which the statement was translated and interpreted ought to have been expressly stated on the face of statement.
g. It is fundamental and obligatory that a document prepared for an illiterate person must carry a jurat to the effect that prior to its being thumb printed by the illiterate person, it was read over and explained to the illiterate person in a language the illiterate person speaks and understands, and that the illiterate person fully understood the contents thereof.
h. The failure of the NDLEA Security Officials to strictly comply with the mandatory requirements of the Illiterate Protection Law goes to the root of the trial and’ renders the trial, conviction, and sentencing of the appellant null and void.
i. The admission and reliance placed on exhibit A by the trial court was erroneous in law and led to miscarriage of justice against the appellant.
Ground Two.
The trial court erred in law when it entered a plea of “guilty” for the appellant, despite the fact that the appellant is an illiterate person who could not have “appeared perfectly to understand” the charge which was neither explained, translated nor interpreted to the appellant in a language that he understood.
PARTICULARS OF ERROR
a. The appellant is an illiterate person and the procedure adopted by the trial court contravened section 36(6)(a) and (e) of the Constitution of the Federal Republic of Nigeria, 1999.
b. The exhibit A which was tendered by the prosecution shows conclusively that the appellant is, an illiterate person who did not understand English Language which explained the reason he thumb printed on the said Exhibit A as he could not write or speak in English.
c. The trial court ought to have ensured that the content of the charge was interpreted and explained to the appellant in a language he understood, other than English Language.
d. There is nothing in the printed record of appeal to show that the charge was interpreted to the appellant in a language he understood the appellant being an illiterate person.
e. The arraignment procedure adopted by the trial court was legally faulty and led to substantial miscarriage of justice as it was not shown that the appellant understood the nature of the charge he was tried and convicted for.
f. The record of proceedings at the trail court did not show that the charge after being read to the appellant in English Language was interpreted and adequately explained to the appellant before the plea of “guilty” was entered for the appellant.
g. It was not shown that the appellant understood or was acquainted with the essential ingredients and nature of the offence for which he was charged, tried and convicted.
h. The learned trial judge did not comprehensively and conclusively satisfy himself that the explanation of the offence charged, if any, was adequate and that the appellant understood or sufficient understood what he was standing trial for”.
The appeal was heard on 22nd day of November, 2012. The Appellant and the Respondent filed their Respective brief of argument and the said briefs of arguments were adopted on 22nd day of November, 2012.
The Appellant restated the background facts to this appeal and formulated two issues for determination in paragraphs 3.1 and 3.2 of the Appellant’s brief thus:
“Was the conviction and sentence of the Appellant, an illiterate based on a purported alleged confessional statement (Exhibit A) without illiterate jurat or any interpretation to the appellant in the language he understood and when the recorder of the said confessional statement was not called as a witness, supportable and justifiable at law? (Ground 1 of the Notice Appeal)
3.2 Whether the arraignment, trial conviction and sentencing of the appellant by the trial court were not a nullity in view of the denial of fair hearing and miscarriage of justice arising from the fundamental failure by the trial Court to provide an interpreter to the appellant who was proven to be illiterate )Ground 2 of the Notice of Appeal”)
The Respondent believes that the two issues formulated by the Appellant are similar and amount to repetition. The Respondent therefore distilled one issue as arising for consideration in the appeal having regard to the two grounds of appeal filed by the Appellant.
The lone issue is:
“Whether the conviction and sentence of the Appellant was proper and justifiable in law having regards to what transpired at the trial and as reflected in the record of proceedings.”
ARGUMENT ON THE ISSUES:
On issue one raised by the Appellant, Taiwa Kupolati Esq., for the Appellant stated that it is the basic right of all illiterate persons who are suspects in criminal proceedings to be provided with interpreter during questioning or interview by the Police and that when they are to be cautioned when making statement to the Police they must be provided with interpreter before their statements would be recorded as a constitutional safeguard aimed at ensuring fair hearing and afforded an unbiased trial.
That this issue challenges the validity or legality of the conviction and sentence of the Appellant for the offence in Section 11(c) of the National Drug Law Enforcement Agency Act (NDLEA) Cap N30, Law of the Federation of Nigeria 2004 as according to Learned Counsel the conviction of the Appellant was based of founded on Exhibit A an alleged confessional statement which Learned counsel to the Appellant contended was neither interpreted to the Appellant in a language he understood nor was there any illiterate jurat on the face of the said Exhibit “A”. The Learned Counsel to the Appellant submitted that the content of Exhibit “A” cannot be rightly said to be the free and voluntary confession of the Appellant. It was the submission of the Appellant that his thumbprint on the said statement Exhibit “A” constitutes an apparent or prima facie proof that the Appellant is an illiterate person who neither writes nor understands English Language. That there was no indication on the face of the said Exhibit “A” to the effect that the content of the said confessional statement was interpreted or explained to the appellant in the language he understood.
The Appellant submitted that Exhibit “A” only shows that it was written or authored by one Oko A. Odey in English Language and that there was no endorsement on Exhibit “A” to show that the content was translated and interpreted to the Appellant in A, language he understood. He cited and relied on the case of Ezeigwe V. Awudu (2008) All FWLR (part 434) 1529 which Learned Counsel to the Appellant said relied on the case of Jiboso V. Obadina (1962) WRNLR 304 and that the Court held that:
“The fact that a person thumbed impressed a document is regarded as prima facie evidence that he was illiterate”
Kupolati Esq. stated that the only endorsement at the foot of Exhibit “A” reads thus:
“This statement was taken in English Language and read over and translated to the appellant in English Language in my presence and hearing”.
The Appellant saw this as grossly falling short of requirement of a comprehensive illiterate jurat. It is the appellant’s submission that the name of the interpreter or translator and the language in which the statement was translated ought to have been expressly stated on the face of Exhibit “A”. That the failure of the NDLEA officers to do that constitutes a structural defect on the creditability of the said Exhibit “A”. By implication, according to Kupolati Esq. for the Appellant, Exhibit “A” could not be said to have been made by the Appellant as according to him it could not be rightly and certainly be established that the content of Exhibit “A” was a free and voluntary admission of guilt. He relied on the cases of:
i. OTITOJU V. GOVERNOR OF ONDO STATE (1994) 4 NWLR (PART 340) 518 and
ii. ADETORO V. U.B.N. PLC (2007) ALL FWLR (PART 396) 590.
He submitted that a confession must be an admission made by the Accused person of the crime with which he is charged and must be proved to be voluntarily, free, positive and direct before it can sustain a conviction. He relied on:
(1) Section 27(2) of the Criminal Code (sic)
(2) Nwachukwu V. The State (2001) FWLR (Part 81) (1899) CA;
(3) Kareem V. FRN (2002) FWLR (Part 125) 796.
The Learned counsel to the Appellant stated that it is not the position of the Appellant that the said confession was obtained by torture, threat, coercion, duress or physical compulsion but that since the content of Exhibit “A” was not shown to have been interpreted to the Appellant in a language he speaks, writes or understands, he cannot be said to be the maker, originator or source of the confessional statement. That the lack of knowledge of what the statement contained is fatal to the potency of exhibit “A” and a breach of Illiterate Protection Act. He relied on the cases of:
(1) Ezeigwe V. Awudu (2008) All FWLR (Part 434) 1529 Supra
(2) U.A.C. of Nigeria Ltd V. Ajayi (1958) NNLR 33 and
(3) S.C.O.A Zaria v. Okon (1960) 4 FSC 220 on the object of Illiterate Protection Law.
He also cited section 2 of the Illiterate Protection Act to submit that the failure of NDLEA security official to strictly comply with the mandatory requirements of the Illiterate Protection Act provides two fatal consequences viz.
(a) Exhibit “A” Cannot be said to fully and correctly represent the appellant’s instruction to the writer of the said Exhibit “A”, Oko A Odey.
(b) Whatever incriminating statement contained therein cannot be assigned or ascribed to the appellant.
That the non-compliance goes to the root of the entire proceedings and renders the trial, conviction and sentencing of the Appellant null and void since according to Appellant Exhibit “A” was the fulcrum of the prosecution’s case relying on the case of Amizu v. Nzeribe (1989) 4 NWLR (Part 118) 755. The Appellant urged the court to hold that the failure of the NDLEA Security Officer to declare the requisite jurat to the effect that:
(i) he was instructed by the Appellant to so write and
(ii) that the content of Exhibit “A” represents the full and correct instruction of the appellant as very fatal to the prosecution’s case and that the same occasion a miscarriage of justice to the Appellant.
The Appellant also complained about the failure of the prosecution to call the interpreter who took, cautioned and obtained the statement of the Appellant as having substantially affected the admissibility of the received statement. The Appellant drew our attention to pages 5 – 6 of the Record of Appeal where one Oko A. Odey signed and recorded thus:
“Interpreted by me: B. A. MOH’D”
That the statement was staled to have been taken in English Language but according to learned counsel pages 5 and 7 stated the tribe of the Appellant to be Baruba. He submitted that Baruba was the Language Appellant was daily communicating and conducting his business transaction, That thumb printed marks of Appellant appear on pages 6, 7, 8 and 9 of the Record of Appeal and also that the marks on pages 7 and 9 were countersigned by the recorder – the write of Appellant’s Statement, Oko A. Odey.
The Learned Counsel to the Appellant submitted that the confessional statement of an Accused which was not written by him but by another person is neither tenderable nor admissible in evidence except by the writer or the recorder who the Learned Appellant’s counsel said must be to called tender the statement.
He stated that in this matter it was one I. J. Igwubor on page 21 of the Record of Appeal that tendered the confessional statement. That the confessional statement was not written in Baruba Language before it was interpreted to English Language. The Appellant submitted that the only person that could have tendered the statement was the Recorder.
Reliance was placed on the following authorities viz:
1. REX V. GADADO (1940) 6 WACA 60 AT 62 PER KINGDOM CJ, CAREY, BROOKE JJ.
2. REX V. OGBUEWU (1949) 12 WACA 483
3. ZAKWAKWA V. QUEEN (1960) SCNLR 36
4. NWAEZE V. THE STATE (1996) 2 NWLR (PART 428) 1.
5. F.R.N. V. USMAN (2012) ALL FWLR (PART 632) 1539 PER RHODES-VIVOUR JSC
He urged this court to expunge Exhibit “A” from the record as being inadmissible. He cited and relied on the case of J.A.M.B. V. ORJI (2008) 2 NWLR (PART 1072) 552, 570.
Kupolati Esq., for the Appellant opined that since the plea of guilt rested on Exhibit A and its contents, the conviction and the sentence cannot stand in as much as the Exhibit was inadmissible. That it makes no difference that the guilty plea was not objected to. He relied on JAMB V. Orji supra. That the evidence against Appellant remains hearsay since the recorder or interpreter Oko A. Odey was not called as a witness. He submitted that Exhibit “A” is a worthless piece of documentary evidence.
That the trial court failed to appreciate the inadmissibility of Exhibit “A”. He urged the court to allow the appeal and quash the conviction and the sentence.
ISSUE 2
This issue has to do with whether the trial was not a nullity according to the Appellant in view of denial of fair hearing for failure of the trial court to provide an interpreter to the Appellant who was proven to be illiterate. The second issue according to Taiwo Kupolati Esq., for the Appellant, challenges the legality of the arraignment, plea and the entire proceedings that led to the conviction of the Appellant pursuant to Section 11 (c) of the National Drugs, Law Enforcement Agency Act without affording the Appellant an interpreter as provided in section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria, 1999. The Learned Counsel submitted that all criminal Defendants who cannot understand English Language have constitutional right to be provided with an interpreter to assist them to understand the proceeding in every criminal trial. That the record of appeal of the trial court in this matter did not indicate that Appellant was provided with the aid of interpreter nor was it shown that the charge was interpreted to the Appellant and explained to him before he was asked to enter his plea. That the Appellant being illiterate could not have appeared perfectly to understand the charge which was not interpreted in the Language he understood. He submitted that the Learned Trial Judge was wrong to have convicted the Appellant.
The Appellant reproduced part of the record of proceedings of 5th July, 2011 showing what the trial Judge recorded pertaining to the plea of the Appellant. The Learned Counsel to the Appellant submitted that the proceedings of 5th July, 2011 was in breach of Section 36 (6) (e) of the 1999 Constitution as amended and Section 218 of the Criminal Procedure Act. That the trial court merely, recorded:
“Plea – Guilty.”
The Learned Counsel saw the trial court record as paraphrasing the Appellants plea as “Guilty” and failed to record the exact language or words said by the Appellant in his plea. He submitted that both Section 36 (6) (e) of the Constitution and Section 218 of the Criminal Procedure were breached. He relied on the case of Undosen V. State (2007) 4 NWLR (Part 1023) 725. That if the proceedings of 5th July, 2011 has been correctly interpreted to the Appellant he would have reneged on the plea of guilty. The Learned counsel is of the view that the conviction of the Appellant was based on the combined incriminating effect of his supposed confessional statement and the plea of guilty purportedly made by the Appellant. That both the confessional statement and the “Plea of guilty” were in crass violation of the Constitutional safeguard enshrined in Section 36 (6) (a) (e) of the Constitution.
He finally urged this Court to allow the appeal and to quash the conviction and sentence of the Appellant.
On its own part, the Respondent in its brief set out the background facts leading to the conviction and sentence of the Appellant by the Lower Court.
As stated hereinbefore the Respondent formulated one issue which is whether the conviction and sentence of the Appellant was proper and justifiable in law having regard to what transpired at the trial and as reflected in the record of proceedings:
In paragraph 4.0 (a) – (c) the Respondent summarized what it perceived to be entire argument of the Appellant. After reviewing the facts of the case and the proceedings of 5th, day of July, 2011 especially the recorded plea of the Appellant by the learned Trial Judge the Learned Counsel to the Respondent Femi Oloruntoba Esq., Director of prosecutions and Legal Services submitted that the procedure adopted by the Lower Court was in substantial compliance with the provisions of Section 218 of the Criminal Procedure Act as to what the court of trial should do when an Accused pleads guilty to offence against him. That it is clear from page 21 of the Record of Proceedings of 5th July, 2011 that the Appellant did not complain nor raised any objection that he did not understand English Language. It is the submission of the respondent that the Appellant cannot now complain that no interpreter was provided and that it was grossly unnecessary for an interpreter to have been called when the Appellant understood English Language. That he was also represented by a Counsel.
On the complaint of the Appellant that Exhibit “A” which the Respondent referred to as the confessional statement of the Appellant which the Appellant said was neither interpreted to him in the language he understood nor was there an illiterate jurat on the face of Exhibit “A”, the Respondent submitted that the Appellant having pleaded guilty to the charge in open court his plea made Exhibit “A” unnecessary document as the Appellant would still have been convicted in view of other evidence before the court.
The Learned Counsel to the Respondent submitted that after the plea of guilty of Learned Trial Judge acted in accordance with Section 218 of the Criminal procedure Act to convict the Appellant as charged. The Respondent stated in the brief of argument that page 21 of the Record of proceedings showed that after the plea of guilt, the prosecution presented the facts of the case and tendered Exhibits A to J without objection from the Learned Counsel to the Appellant. That the Learned Trial Judge considered all the Exhibits tendered in proof the charge including the recovered drug before he found the Appellant guilty as charged.
It was further submitted by the respondent that the trial court was not bound to call any witness to explain the contents of the documents tendered and admitted without objection from appellant and his Counsel in a summary trial. He relied on Section 33 (a) of the Federal High Court Act Cap F12 LFN 2004.
That the correct position of the law where an Accused pleads guilty to an offence has been settled by the Supreme Court in the case of SAMUEL AYO OMOJU V. FRN (2008) ALL FWLR (PART 415) 1656 at 1674 A – B per Niki Tobi JSC. The Learned Counsel to the Respondent is of the opinion that the plea of guilty entered by the Appellant was an admission of offence charged and that the Lower Court rightly convicted him relying on the cases of:-
1. DIM V. AFRICAN NEWSPAPERS LTD (1999) 3 NWLR (PART 139) 396 per Karibi Whyte JSC and
2. NWIZUK V. ENEYOK 14 WACA 354.
That in this case the Appellant confessed in open court to the Commission of the offence and that based on the authority of SAMUEL AYO-OMOJU V. FRN supra it was not necessary for the trial court to call any witness with respect to Exhibit “A”. It was also the submission of the Respondent that the whole argument of Appellant bordered on a situation of full trial but that was not the case in this Appeal. That it is not open to an Appellant, who did not understand the charge read to him, kept quiet and expect to upturn the trial on appeal.
He cited and relied on the case of SOLOLA V. THE STATE (2005) 2 NWLR (PART 937) 460 AT 497. That the Appellant though represented by counsel never-objected to the procedure adopted at the trial. That the submission of the Appellant alleging that the trial was a nullity is grossly misconceived. He cited, and relied on the case of DURWODE V. THE STATE (2004) 4 NSCQR 33 AT 37. That there is nothing on the record to show that the Appellant was not given fair hearing at the trial. It was also the submission of Learned Counsel to the Respondent that an Accused who had benefit of a Legal Practitioner representing him cannot claim the same right with an Accused defending himself in person. That there was no miscarriage of justice against the Appellant. He relied on the cases of:
1. ADAKA V. IKOT ABSI T.R.C (1991) 6 NWLR (PART 198) 440 AT 491 – 492.
2. FRANCIS DURWODE V. THE STATE (2001) 2 ACLR (PART 503) (no Page supplied)
It was further stated in the submission of the Respondent that on the day of his arraignment the Appellant was duly represented by counsel and there was no objection to his plea being taken. That it is now belated for the Appellant to contend that there was no interpreter. He relied on the case of PELE OGUNYE V. STATE (2001) 2 ACLR 66 at 83 and section 168 of the Evidence Act to contend that there is presumption of regularity in favour of the trial. The Respondent urged the court to dismiss the appeal as an after thought founded on mere technicalities.
RESOLUTION OF ISSUES
It is my view that this appeal can be determined on the two issues formulated by the Appellant.
ISSUE ONE
Now the zenith of the Appellant, complaints in issue one and the arguments of his learned counsel thereon are to the effect that:
(a) The content of Exhibit A the confessional statement allegedly made by the Appellant was not shown to have been interpreted to him in the language he speaks, writes or understands and therefore cannot be said to be the originator, maker or the source of the confessional statement.
(b) The illiterate jurat on Exhibit A fell short of requirement of a comprehensive illiterate jurat and that the name of the interpreter or translator and the language in which exhibit.
(c) The recorder of Exhibit A one Oko A. Udey was not called to tender Exhibit A but same was tendered through another person one I. J. Igwubor on page 21 of the record.
(d) The fact that the Appellant thumb printed Exhibit A established that he is prima facie an illiterate person who does not understand English Language.
I believe the first port of call under issue one raised for determination by the Appellant is to find out who is an Illiterate person? This court in the case of EMMANUEL OMOZEGHIAN V. CHIEF J. J. ADJARHO & ANOR (2006) 4 NWLR (PART 969) 33 at 56 E – F per AMINA ADAMU AUGIE J.C.A said:-
“An illiterate” within the meaning of the illiterate Protection Law 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 illiterates Protection Act.”
In the case of HIS HIGHNESS V. A. OTITOJU V. GOVERNOR OF ONDO STATE & ORS (1994) 4 SCNJ (PART 11) 224 at 234 KUTIGI JSC later CJN (RTD) held:-
“An “Illiterate Person” has been defines in the case of NTIASHAGWO V. AMODU (1959) WNLR 273 as 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” I endorse this definition. The question therefore of any one being literate or illiterate cannot be presumed by the court but is a matter to be established by evidence, Edokpayi V. Oke (1964) NNLR 53. The burden was on the appellants who objected to the document to prove that they as makers were Illiterates”
See also VIHISHIMA IGBUM V. ALHAJI BABA NYARINYA & ANOR (2001) 5 NWLR (PART 707) 574 A – C. It is also here relevant to peruse Section 2 of the Illiterate Protection Act which is in pari material with Section 3 of the Illiterate Protection Laws Cap 11 Laws of Kwara State, 2007. It Provides:
“A person who writes a letter or documents at the request; on behalf or in the name of an illiterate person shall also write on the letter or other document his own name as the writer thereof and his address, and his so doing shall be equivalent to a statement.”
The law has been interpreted in numerous case by this court and the apex court. They are all speaking with one voice that the object of Illiterates protection law is to protect an illiterate person from possible fraud and exploitation by being made to sign or acknowledge writing or document which does not convey, or bear the real intention of the Illiterate maker of the document.

The purpose of the jurat prescribed by Section 3 of the Illiterate protection Law of Kwara State is to ensure that if there is dispute on the veracity or possible intention contained in the document the preparer of the document could be traced so as to enable him give evidence or throw light on the real intention of the Illiterate person who engages the writer whose name and address must be written on the document. The failure to put jurat on the document only makes it unenforceable as between the illiterate, maker and the writer or preparer of the document if the document fails to comply with Section 3 aforesaid. The document is admissible as between the writer and a third party in any action or transaction between the illiterate and the third party.
See (1) FRANCIS ANAEZE V. UDE ANYASO (1993) 5 NWLR (PART 291) 1 at 96 B – G per KARIBI -WHYTE JSC who said:-
“The earlier decision of the High Court of U.A.C. of Nigeria Ltd. V. Edems & Ajayi (supra) approved in SCOA Zaria V. Okon (supra) has held that where the signature on the document was a thumb impression this is prima facie evidence of illiteracy of the defendant, and that since the illiterates Protection Law was not complied with the Bond was null and void against the 2nd defendant.
An important consideration of the effect of the illiterates Protection Law is that strict compliance with its provisions by the maker is obligatory. The section does not seem to envisage the rights of third parties derived from the document. But if the document creates legal rights and the writer benefits thereunder, those benefits are enforceable by the writer of the document only if he complied strictly with the provisions of the law. Where however, the document creates legal rights between the illiterate and a third party, such rights are enforceable by the third notwithstanding the non-compliance if there is evidence to show that the writer understood the contents and have derived benefits therefrom: See Ezera V. Ndukwe (1961) All NLR at p. 568. The provision of the law is for the protection of the illiterate on whose behalf the document is made. It is not for the prejudice of the rights of a third party in whose interest a right has been created. That is the situation in the instant case. Respondent understood the content of Exhibit C, and has been paid for the transaction. The fact that there is no endorsement as to the explanation of the content of the document should not affect the relationship between appellant and the respondent. In the recent decision of the Court of Appeal in Salami V. Savannah Bank Nig. Ltd. (1990) 2 NWLR (pt. 130) 109, Sulu-Gambari J.C.A. referring to the application of the Illiterates Protection Law said, and I agree.
“My conclusion from the review of the above cases, is that while the writer or preparer of a document signed by an illiterate cannot take advantage under it unless the provision of the Illiterates protection Law are strictly complied with, where the document creates legal rights between the illiterate and the third person other that the writer or the preparer of the document, not only is the document admissible but also other pieces of evidence may be adduced or introduced to prove what happened at the time the document was prepared and signed.”
(2) In OLUSOLA FATUNBI & ANOR V. EBENEZER OLANLOYE & ORS (2004) 12 NWLR (PART 887) 229 AT 250 E-H to 251 A-B PAT ACHOLONU JSC said:
“It needs be emphasized that the provision in section 3 (supra) is intended for the protection of the illiterate person. Essentially it is equally to trace the whereabouts of the maker of the statement. Care must be taken that we do not put in the intendment of that provision what is not intended to accomplish. It is to ensure that what is stated there reflects what the illiterate person has stated and intended to be correctly put in such a document, and he is the only person to complain if that is not the case. Thus 534, in Edokpolo & Co., Ltd V. Ohenhen (1994) 7 NWLR (Pt. 358) 511 at 534, the Supreme Court per Iguh J.S.C held;
“It ought also to be noted that section 3 of that law only raises or provides certain presumptions of law in respect of a document prepared at the request, on behalf, or in the name of an illiterate by any person who shall write on such document, his own name as the writer thereof and his address. The purpose of the said provision under section 3 of the law is also to ensure, in furtherance to the said protection of illiterates, that the writer of such document is identified or traced.”
Implicit in that section is that where there exists a doubt or a denial as to the correct statements that were made by the illiterate the writer will be traced to show whether the contents of the document represents the veracity of what the illiterate asserts. In other words, the protection singularly ensures only to the illiterate. See Djukan V. Orovuyoube (1967) 1 All NLR 134 at 140 and Anyabunsi V. Ugwunze (1995) 6 NWLR (Pt.401) 255 at 272.”
I can say that from the authorities or cases cited above that a solemn or careful reading of Illiterate protection Law discloses that it is only 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 Investigator or police officer obtains or takes statements of offenders concerning commission of crimes which principally are offences against the State. It is in that light that, section 215 and 218 of the Criminal procedure Act, Sections 241 and 242 of the Criminal Procedure Code and section 36 (6) e of the 1999 Constitution as amended or altered provide that where any person is charged with criminal offence and does not understand the language of the court he is entitled to an interpreter who can properly read, interpret the charge or offence with which he is charged and interpret proceedings to him in the language he understands. See the case of THE STATE v. SALIHU MOHAMMED GWONTO & ORS (1989) 3 SC 62 at 66 where Obaseki JSC said:-
“There can be no doubt about the value and importance of interpretation. Indeed, it is the only means of ensuring proper understanding by and participation of accused persons in the trial proceedings where the proceedings are being conducted in the language they do not understand and enabling justice to be done.
It is my opinion, that it is for these reasons that our laws and constitution made special provisions with respect to interpretation of evidence, statement and other proceedings in Section 241 Section 242 of the criminal procedure code and Section 33 (6) (e) of the Constitution.
The need for interpretation does not arise if the accused person understands the language. A fortiori, the court will not know that he does not understand the language unless he makes representation about it to the court or judge.”
The position was recently reiterated by the Supreme Court in the case of ANTHONY OKORO V. THE STATE (2012) 4 NWLR (PART 1290) 351 at 368 B – D per BODE RHODES-VIVOUR JSC, who read the lead Judgment thus:
“Section 33 (6) of the 1979 Constitution, and/or section 36(6)(e) of the 1999 Constitution ensures that anyone charged with a criminal offence is entitled to have as of right an interpreter in court if he does not understand the language of the court. That is to say, there must be proper interpretation to the accused person of the proceedings. See: State V. Gwonto (1983) 1 SCLR P. 142 and it is mandatory that the court supplies an interpreter in cases where one is needed.
The impression of a reasonable person who was present at the trial is the true test of fair hearing. Justice cannot be said to have been done if an accused person who does not understand the English language (the language of the court) is denied the services of an interpreter. The entire proceedings would be strange to him and a grave miscarriage of justice would have occurred amounting to a failure of justice.”
I have thoroughly gone through the Record of Appeal and have calmly ruminated over the Appellant Learned Counsel arguments in this matter and I find that the Appellant did not at any time before the trial court complain that his statement exhibit “A” tendered without objection had no Illiterate jurat or that it was not interpreted to him in the language he understood by the recorder. He did not tell the court that Exhibit “A” was not his statement or that he was forced to make the statement.
The law is settled that the appropriate time to object to a document or statement made by an accused person on ground of inadmissibility is at the time when the prosecutor, seeks to tender the statement in evidence and not at appellate court. See JOSEPH UBI IGRI V. THE STATE (2012) 16 NWLR (PART 1327) 522 AT 545 E per CHUKWUMA – ENEH JSC who held:-
“The objection to a confessional statement is required to be raised at the tendering of the confessional statement. This is ordinarily so during presenting of the prosecution’s case at the main trial.”
In this case a second chance and opportunity came the way of the Appellant at the trial on 5th July, 2011 to object to the admissibility of Exhibit A but he rather took the plunge which now dawn on him to be a specious gamble to make a blind plea of guilty to the charge or offence against him when the charge was read to him at the behest of the learned trial Judge. See page 21 of the Record. What the Appellant did by the plea of guilty must be taken to represent the truth about the charge or offence against him. After all a person will not lightly lie against himself. It must have come from the bottom of his heart. Out of abundance of heart the mouth speaks. In all of these the Appellant and his Learned Counsel must be taken to see nothing wrong with the proceedings at the trial court. They did not complain of lack of understanding of English Language by the Appellant or that an interpreter was needed. All these further confirmed that the Appellant understood the language of the court. The failure to complain or to ask for interpreter at the trial court is fatal to his appeal. He has lost his right to complain. See THE STATE V. GWONTO & ORS (1983) 3 SC 62 AT 96 – 97 where NNAMANI JSC of blessed memory said:-
“Applying these principles to the instant case, the Respondents ought to have failed in the Court of Appeal in their contention that their rights under Section 33 (6) (e) of the 1979 Constitution were violated. The respondents were throughout the proceedings in the High Court represented by counsel Mr. Ahinche. There is, nothing in the records of the High Court (and no further evidence was led on the issue in the Court of Appeal).
I think, with all respect, that the point which was missed here is that the importance of the issue of representation ties in the fact that if an accused person is represented by counsel such counsel ought to demand his client’s right to interpretation or object to any irregularity such as lack of interpretation. If neither he nor the accused objects, the right is lost for all time and certainly cannot be invoked in a Court of Appeal.”
See also the recent cases of:
1. ANTHONY OKORO V. THE STATE SUPRA 351 at 368 E-F per RHODES VIVOUR JSC.
2. ELIJAH AMEH OKEWU V. THE FEDERAL REPUBLIC OF NIGERIA (2012) 9 NWLR (PART 1305) 327 at 352 D – F per ARIWOOLA JSC.
There is therefore no truth whatsoever in the lengthy argument of Appellant that he is an illiterate or that Exhibit “A” made by him was not voluntary or that it was not explained to him in the language he understood.
The appellant also, harped on failure, according to him, of the prosecution to call the officer who recorded Appellant’s statement before the statement exhibit “A” could be admissible or acted upon by the trial Court. The argument of the Appellant holds no water. This is because he pleaded guilty to the offence charged. Having pleaded guilty the prosecution was not obliged again to call any witness. He has saved the prosecution of the trouble to prove or establish anything more that his admission of guilt which in this case is valid in law and established all the ingredients of the offence against him. More importantly where an accused pleads guilty in a non capital offence the court is duty bound to convict him there and then. More importantly where an accused pleads guilty to a non-capital offence or charge, the Court is duty bound to convict him there and then. Appellant pleaded guilty to a non capital offence. See Sumanya Issah Torri V. The National Park Service of Nigeria (2011) 13 NWLR (part 1264) 365 at 380 G-H to 381 A – E Per Mommad JSC who held:-
“The position of the law as is clear from Section 161(2) of the Criminal Procedure code set out above, is that where the offence for which an accused person is charged is not a capital offence, the trial court has the discretion to convict the accused. The plea of guilty made by the appellant is as good as a judicial confession, or admission of Commission of a Crime. Section 27(1) of the Evidence Act, Cap. 112, LFN, 1990 (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, JSS. In Dongtoe V. Civil Service Commission, Plateau State & Ors. (2001) FWLR (Pt. 50) at page 1671 – B (2001) 9 NWLR (pt. 717) 132; Adeniji V. The State (2001) 13 NWLR (Pt. 730) 375, See further Akibu Hassan V. The State (2001) 7 NSCQR 107, (2001) 15 NWLR (Pt. 735) 184; Gozie Okeke V. The State (2003) NSCQR 7541 (2001) 15 NWLR (Pt. 184) 25; Nwachukwu Vs. The State (2002) 11 NSCQR 663, (2002) 12 NWLR (Pt. 782) 543. This is what the trial court exactly did. In affirming that practice, the court below stated that the trial court duly discharged the legal burden placed on it in this regard. It went further to hold that, that was in complete compliance with the Constitutional and procedural requirements. The arraignment and trial of the appellant before the trial court was both a judicial and an official act, it was carried out in a manner which was substantially regular and the appellant has failed to rebut this presumption by showing that he did not comprehend the procedure employed at the trial or that he was denied legal representation or opportunity of present a defence.”
Exhibit A, his confessional statement is not hearsay on account of any failure to call Oko A. Odey NDLEA Officer who obtained the statement Exhibit “A” from the Appellant. The Appellant plea of guilty to the charge had subsumed arguments now being pushed forward in this court by the Appellant. In addition all the exhibits tendered without objection from the Appellant at the court below duly encapsulate all the ingredients or elements of the offence charged which the Appellant acknowledged by his plea of guilty.
Assuming for the purposes of argument that Exhibit A has no illiterate jurat or that the Appellant does not understand English language in which the Statement Exhibit “A” was written, a fact not conceded, the onus rested squarely on him at the lower court to prove by credible evidence and show that he actually was an illiterate when the statement was obtained. This he failed to do.
See: HIS HIGHNESS A. OTITOJU V. GOVERNOR OF ONDO STATE & ORS (1993) 4 NWLR (PART 340) 518 AT 529 – E PER KUTIGI JSC (later CJN Rtd) who held:-
“The question therefore of anyone being literate or illiterate cannot be presumed by the Court but it is a matter to be established by evidence. See Edokpaji V. Oke (1964) N.M.L.R 53). The burden was on the appellants who objected to the document to prove that they as the makers were illiterate. They did not do that; I am clearly of the view therefore that Exhibit H was properly admitted in evidence” (italics mine).
There is no scintilla of evidence before the Court below to show that the Appellant alerted the Court of his purported illiteracy. He did not lay any complain not make any supplication before the Court concerning how his statement was obtained or that he complained to the NDLEA Officer who obtained his statement that he did not understand English.
There is also no evidence before the trial court that he the Appellant was deceived or browbeaten to make a plea of guilty to the offence or charge against him. Having taken that path in solemnity he cannot now on appeal be allowed to renege on the plea of guilty.
It is apposite here to refer to similar situation in the case of Elijah Ameh Okewu Vs. The Federal Republic of Nigeria (2012) 9 NWLR (part 1305) 327 at 369 D – F where NGWUTA JSC has this to say:-
“There is nothing in the entire proceedings to suggest that the appellant was misled or that he suffered a miscarriage of justice. In making his plea, appellant spoke from that elite spark of celestial fire called conscience. Before the seat of justice, his conscience to him what is just. He has now set, out to suppress the voice of his conscience. The attempt must fail.”
The Appellant’s brief of argument cannot in the circumstances of this matter assist the Appellant though lucid and comprehensive. It cannot take the place of positive and pungent evidence necessary to rescue or extricate the Appellant from the conviction and sentence imposed on him. No matter how alluring or stimulating the address of learned counsel it cannot make up for lack of evidence to disprove the charge against an Appellant. See PADA CHABASAYA Vs. JOE ANANASI (2010) 10 NELT (PART 1201) 163 at 189 F – G per FARIYI, JSC.
Consequently issue one is hereby resolved against the Appellant.

ISSUE TWO
Now the 2nd issue raised in this Appeal is whether the arraignment, trial conviction and sentencing of the Appellant by the trial court were not a nullity based on what Appellant described as the denial of fair hearing and miscarriage of justice which he claimed arose from fundamental failure by the trial court to provide him, Appellant, an interpreter when according to him he was proved to be illiterate.
There is no doubt that by issue two the Appellant is querying and challenging the legality of his arraignment which included the taken of his plea at the trial court.
The law is settled that a valid arraignment of an accused or offender must enure and guarantees to the accused a fair hearing and fair trial as enshrined in section 35 and 36 of the Constitution of Nigeria, 1999 as amended or altered. The ingredients or requirements of a lawful arraignment have been stated and restated in numerous cases.
In the case of SABINA CHIKAOBI MADU V. THE STATE (2012) 15 NWLR (PART 1324) 405 AT 439 H to 440 A – C WHERE ATIWOOLA JSC had this to say:-
“In compliance with section 215 of the Criminal Procedure Law, for the arraignment of an accused person to be valid, the following three essential requirements must be met:
(a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order;
(b) The charge or information shall be read over and explained to the accused to the satisfaction of the court by the Registrar or other officer of the court; and
(c) The accused shall then be called upon to plead, thereto unless of course, there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith.
See: Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548 at 565; Idemudia V. The State (1999) 7 NWLR (pt. 610) 202 at 204.”
In the very recent case of JOHN TIMOTHY V. THE FEDERAL REPUBLIC OF NIGERIA (2012) 7 SCM 214 at 229 E – I the Supreme Court per Bode Rhodes-Vivour JSC also said:-
“I must consider Section 215 and 218 of the Criminal Procedure Act and the correct procedure to be followed at the commencement of a criminal trial there must be strict compliance with the provisions of Section 215 of the Criminal Procedure. That is to say:-
(a) The accused person must be placed before the court unfettered unless the court otherwise directs, e.g. he may be fettered if the judge is satisfied that the accused shows signs of being violent.
(b) The charge must be read over and explained to the accused person in the language he understands by the Registrar of the court or other officer of the court.
(c) The accused person must be called upon to plead to the charge.
The above requirement is mandatory and must be strictly followed. If the charge is amended during trial the procedure must again be complied with. The procedure under Section 215 of the Criminal procedure guarantees of a fair trial of the accused person. Failure to satisfy any of the above (a) – (c) would render the trial defective and declared a nullity by an appeal court. See JOSIAH V. STATE (1985) 1 NWLR PT 1 P 125, EYOROKOROMO & ANOR V. STATE (1979) Vol. 12 NSCC P. 61; Kajubo V. State Vol. 19 NSCC P.475 and Effiom V. State (1995) 1 NWLR (PT. 373) P 507”

Inherent in the requirement of a valid arraignment is Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria which makes it mandatory in all Criminal trials that an accused who is standing trial for an offence does not understand the language of the court shall be entitled to have, without payment, the assistance of an interpreter. See SEGUN OGUNSANYA Vs. THE STATE (2011) 12 NWLR (PART 1261) 401 at 416 E – H to 417 A – F per TABAI J.S.C who said:-
“the issue is whether the proceedings culminating in the conviction and sentence of the appellant were conduced strictly in accordance with the principles of fair hearing entrenched in Section 36(4) and (6) of the 1999 Constitution.
Section 36(4) of the Constitution says:-
4. Whenever any person is charged with a Criminal offence, he shall, unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a court or tribunal:
6. Every person who is charged with a criminal offence shall be entitled to
(a) Be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) Be given adequate time and facilities for the preparation of his defence;
(c) Defend himself in person or by, legal practitioners of his own choice;
(d) Examine in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution;
(e) Have, without payment, the assistance of any interpreter if he cannot understand the language used at the trial of the offence.
These are the fundamental rights provisions in the Constitution for the protection of a person charged with the commission of a criminal offence. What in legal parlance are the constituents of fair hearing? Fair hearing is not limited to ensuring compliance with the rules of natural justice, the twin pillars of which are audi alteram partem – meaning the other party must be heard and nemo judex in causa sua – meaning “never be a judge in your own case.” Fair hearing in our con also entails compliance with the provisions of Section 36 of the 1999 constitution. The true test of fair hearing is the impression of a reasonable person who was present in court of the trial, whether from his observations; justice was done in the case. See Ijeoma V. State (1990) 6 NWLR (part 158) 567 at 580-581; Baba V. N.C.A.T.C. (1991) 5 NWLR (Part 192) 388 at 420; Chungwom Kim V. State (1992) 6 NWLR (PART 200) 659 at 67; Mohammed V. Kano N.A. (1968) All NLR 424.
It is therefore apposite and even imperative for me in order to discern if section 36 of the 1999 Constitution as amended was breached to have recourse to the Record of Appeal in this matter especially the proceedings of 5th day of July, 2011 and to quote in extenso thus:-
“IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN
ON THURSDAY THE 5TH DAY OF JUNE, 2011
Suit no: FHC/ IL28C/2011
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA COMPLAINANT

AND

SUNDAY UMARU ACCUSED
Charge called.
Accused person in the dock
I. J. Igwubor for Prosecution
S. A. Haruna (Miss) for the Accused person.
Igwubor: Applied for charge dated and filed 23/6/2011 to be read and plea taken.
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: Tenders:
-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 envelop
Applies to open
Haruna: No objection
Court: Granted as Prayed
Igwubor: Opens envelope
-Evidence pouch with simple 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
Haruna: 51 years old. He is married with 4 children. He is a farmer by profession 1st time offender.
Igwubor: Accused has been arrested once.
Haruna: Urges court to temper justice with mercy
Court: The accused person is an old man who admittedly has been buying Indian hemp from Benin Republic which he brought in to Nigeria and sold at a profit. When he was to be arrested, he acted on a tip-off and hid the Indian hemp on the premises of his innocent neighbor, who knows nothing about the crime. That man Shehu Mallami – was arrested but released by the NDLEA.
In trying to conceal the substance he was assisted by his daughter – Juliana.
This case clearly has an international dimension and it involves a family elderly man who has been in the business for sometime but has been lucky not to have been arraigned in court considering the circumstances therefore and in view of the fact that the accused person seems beyond redemption at his age – you cannot teach an old dog new tricks – my duty will be to punish him to serve as a deterrent to other like-minded people particularly his daughter who assisted him in concealing 18 kg. of Indian Hemp.
The accused person is therefore, hereby sentenced to a term of 4 years imprisonment with hard labour starting from today.
Sgd.
A. O. Faji
Judge
5/7/2011”
The Appellant saw the proceedings of 5th July, 2011 quoted above as falling far short of requirements of Section 218 of the Criminal Procedure Act and section 36 (4) (6) (e) of the 1999 Constitution concerning the recording by the Judge of the Appellant’s plea to the one count charge. To the Appellant’s learned counsel the first thing the learned trial Judge ought to do was to have recorded the plea of the Appellant “… as nearly as possible in the words used by him”
Secondly the learned counsel to the Appellant opined that the learned trial Judge should have recorded that he was satisfied.
“…that the appellant intended to admit the essentials of the offence which he has pleaded guilty…”
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 dubbed the procedure adopted by the learned trial Judge as being in substantial breach of the right of the Appellant to fair hearing enshrined in section 36 (6) (e) of the 1999 Constitution of the Federal Republic of Nigeria in that:
(a) No interpreter was employed for the Appellant by the trial Judge to explain the charge to him in the language he understood.
(b) The trial Judge failed to strictly comply with Section 36 (6) (a) (e) of the Constitution and he believed they have all occasioned miscarriage of justice to the appellant.
One can say straight away that all the observations and submissions of the learned counsel to the Appellant concerning Section 36 (6) (e) of the 1999 Constitution as amended and section 218 of the Criminal Procedure Act are not tenable. The trial court is not by section 218 of the Criminal procedure Act expected to begin to record verbatim et literatum the content of Section 218 of the Criminal Procedure Act. That is not the intendment of the Section. To my mind what the trial Judge in this matter needed was only to be satisfied that the Appellant understood the charge as read to him in the language of the court. There is nothing from the printed record to suggest that the trial Judge was not satisfied that the Appellant understood the charge or the offence against him in the language in which it was read to him. The failure to record or quote the whole of Section 218 to show that he followed the procedure therein contained in Section 218 Criminal Procedure Act cannot vitiate and render the manner in which the plea of the Appellant was taken or recorded invalid or make it a nullity as there is nothing in the Record of Appeal to show or indicate that the Appellant did not understand the charge as read to him in English Language. See Golden Dible & ors V. The State (2007) 9 NWLR (part 1038) 30 at 47 C – G per Katsina – Alu JSC (Later CJU) who said:
“In Adeniji V. The State (supra) I had this to say on Section 215 of the Criminal Procedure Law:
“…Thirdly the appellant understood English. This is evidence in the record. He made his plea and also gave his evidence in English. The omission by the learned trial Judge to state that he was satisfied that the appellant understood the charge is of no moment. Where the accused understands the language of the court – English, it becomes unnecessary to record that fact. It is however, good practice to ask the accused the question whether he understood the charge so read and explained and to record the answer. But the omission to do so would not constitute non compliance with the constitutional and procedural requirements; I am therefore, in agreement with the respondent that the appellant was properly arraigned.”
The appellants in the instant case clearly understood English. The record shows that they made their pleas in English, made statements to the police in English and they also testified it English. In my judgment, the arraignment of the appellants was in compliance with the law. I resolve this issue therefore against the appellants.”
The position was also made clear recently by the Supreme Court in the case of JOHN UMOTHY V. THE FEDERAL REPUBLIC OF NIGERIA (2012) ALL F.W.L.R. (part 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. p.571. After a plea of guilty, the trial judge may proceed to convict and sentence the accused person based on the plea of guilty and the evidence before the judge. To my mind, the 2nd plea taken by the appellant, where he pleaded guilty after the charge was read to him was in strict compliance with Section 218 of the Criminal Procedure Act. There was no need for the charge to be explained to him as this was done when he took his first plea. The mandatory requirements of Section 215 of the Criminal Procedure Act are no longer applicable after the 2nd plea of guilty was made.” (Underlined mine)
See further:
1. OKORO V. THE STATE (1998) 14 NWLR (PT 584) 181 AT 214 E – F.
2. THE STATE V. SALIHU GWOMTO & ORS (1983) 3 SC 62 AT 94 – 95 per NNAMANI JSC.
3. AMEH OKEWU V. THE FEDERAL REPUBLIC OF NIGERIA (2012) 9 NWLR (PART 1305) 327 AT 352 E-F per ARIWOOIA JSC.
The appellant having pleaded guilty gives no option to the learned trial Judge than to convict and sentenced 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. (1) RAYMOND S. DANGOTE V. CIVIL SERVICE COMMISSION PLATEAU STATE & ORS (2001) 9 NWLR (PART 717) 132 at 159 E-G per KARIBI – WHYTE JSC who held:-
“I do not think the provision of the Law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrong doings. It is established law that after a plea of equity by the accused before the court exercising jurisdiction in respect of criminal offences, the court must formally proceed to conviction without calling upon the accuser to prove the commission of the offence by establishing the burden of proof as required by law – See Section 218 of the Criminal Procedure Act. See also R. V. Wilson (1959) SCNLR 462; (1959) 4 FSC 175. This is because the admission of guilt on the part of the accused satisfied the required burden of proof”
The offence involved in this case is a non-capital offence. Therefore the plea of guilty by the accused amounted to throwing the towel and there is no need for the prosecution to call the recorder of the statement of the Appellant Exhibit “A” as no issue was joined on the charge before the court. Since it is an admission of guilt made in open court it is a 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 NAKONAL PARK SERVICE OF NIGERIA (2011) 8 SCM 217 at 227 H to 229 A where I. T. MOHAMMAD JSC had this to say:-
“The position of the law, as is clear from section 161(2) of the criminal procedure code set out above, is that where the offence for which an accused person is charged is not a capital offence, the trial court has the discretion to convict the accused. The plea of guilty made by the Appellant is as good as a judicial confession or admission of commission of a crime. Section 27(1) of the Evidence Act Cap 112 of the Evidence Act (Cap. E14, 27(1) of the Evidence Act Cap 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 Dangote V. Civil Service Commission, Plateau State & Ors (2001) FWLR (part 50) at page 1671 – B, (2001) 5 SCM, 59; Adetunji V. The State (2001) 13 NWLR (part 730) 375. See further: Akibu Hanssan V. The State (2001) 7 NSCOR 107, (2001) 11 SCM, 100; Gonzie V. The State (2003) NSCQR 754; Nwachkwu V. The State (2002) 11 NSCQR 663, (2202) 12 SCM, 143. This is what the trial court exactly did. In affirming that practice, the court below stated that the trial court duly discharged the legal burden placed on it in this regard. It went further to hold that; that was in complete compliance with the constitutional and procedural requirements. The arraignment and trial of the appellant before the trial court was both a judicial and an official act, it was carried out in a manner which was substantially regular and the appellant has failed to rebut this presumption by showing that he did not comprehend the procedure employed at the trial or that he was denied legal representation or opportunity to present a defence.
Therefore, I too, align my view with that of the court below where it stated that it cannot see how any of the appellant’s constitutional rights was infracted upon. The right to fair hearing it should be noted is an extreme fundamental right in our constitution. It is indispensable in any fair trial. It is an inalienable right of the accused. It is however, not an abstract principle. It entails a trial conducted in accordance with the rules of natural justices Natural Justice in it broad sense, is justice done in circumstance which are just, equitable and impartial. It is one ingrained in that procedure followed in the determination of a case and not in the correctness of the decision. See: State V. Onagoruwa (1992) 2 NWLR (part 221) 33; Kim V. The State (1992) 4 NWLR (part 233) 17. It is satisfying to note in this case that the appellant did not object to non-compliance with (if any) or complained of any irregularity in the procedure adopted by the trial court which recording his plea in which he admitted all the offences for which he was arraigned. This presupposes that he was satisfied with the method adopted by the trial court in determining his case and no reasonable person who witnessed the proceedings conducted on that day would attribute any defect to the trial capable of denying the appellant a fair hearing which would occasion a miscarriage of justice, See: Nwaekweghinya V. NWLR (part 928) 521; Adeniyi V. The State (2001) 13 NWLR (part 730) 375, (2001) 7 SCM, 1. I am thus of the firm view, that the court below was quite right in affirming the conviction of the appellant as no constitutional right of the appellant was breached.”
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. The complaints inherent in the two grounds of Appeal were not made issues at the trial. They did not form any defence before the lower court. Therefore looked at from any radius, all arguments proffered on the two grounds of appeal cannot stand. They have no support in law.
In the end and for the reasons articulated by me in this Judgment the Appellant’s appeal is moribund. It is totally devoid of any merit. The two issues formulated by the appellant are accordingly resolved against him.
The appeal is hereby dismissed in its entirety and the Judgment of the learned trial Judge is affirmed.

ITA GEORGE MBABA, J.C.A.: I read before now the draft of the lead judgment just delivered by my learned brother PETER O. IGE, JCA. I agree that the appeal has no merit. I, too, dismiss it.

OBANDE F. OGBUINYA, J.C.A.: I have had the privilege of reading, in draft, the leading judgment delivered by my learned brother, Peter Olabisi Ige, JCA, and I endorse, intoto, his reasons and conclusions therein.
The appellant’s quarrel with the non-interpretation of exhibit A to him is, deeply, rooted in the realm of extra-judicial proceedings before the law enforcement officers of the National Drug Law Enforcement Agency. This is because, it centres on the actions and inactions of those officers during the time the appellant made his extra-judicial statement which metamorphosed into exhibit A during the trial in the lower court. In our criminal justice system, the procedure of procuring pre-trial statements from accused persons, such as exhibit A herein, fall, squarely, within the domain of the Judges’ Rules. Those Judges’ Rules trace their roots to the rules made by the English Judges in 1912, revised in 1964, for the guidance of English Police Officers at the behest of the Home Secretary. Those Judges’ Rules have been codified in some parts of Nigeria while in other parts, they are still procedural practice grounded on the ones of 1912 of England, see the Criminal Procedure (Statement to Police Officers) Rules of Kwara State, Orders 6 and 7 thereof, the Criminal Procedure (Statement to Police Officers) Rules, Cap. 30 Laws of Northern Nigeria 1963 and 1960 noted in the cases of Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383/(1993) 13 LRCN 761; Namsoh V. State (1993) 5 NWLR (Pt. 292) 129/(1993) 6 SCNJ (pt. 1) 55.
It is germane to place on record that an infraction of those rules, in the course of obtaining extra-judicial statements from accused person, is not in the least fatal to the admissibility of such pre-trial statements. Little wonder, in the case of Ojegele V. The State (1988) NSCC 276 at 284/ (1988) 1 NWLR (pt. 71) 414, Oputa, JSC, lucidly, said of the Judges’ Rules:
Nobody, however, disputes the wisdom behind those rules. But having said that, it is necessary to add that they are rules of administrative practice. They are rules made for the mere efficient and effective administration of justice and therefore should not be used to defeat Justice. Even in England, the Court of Appeal felt bound to observe that the Court must take care not to deprive themselves by new artificial rules of practice of the best enhances of learning the truth … The aim of the Judges rules is to ensure that confessions are voluntary. That practice should never be stretched too far, for the protection of guilt.
Also, see Nwigboke V. R. (1959) 4 FSC 101/(1959) 1 NSCC 81. Recently, in the case of Igago V. State (1999) 12 SCNJ 140/(1999)14 NWLR (pt 637) 1 at 17/(2001) 2 ACLR 104 at 120, the Supreme Court, per Karibi-Whyte, JSC, held that Judges Rules: “are rules of caution the non-observance of which is not, necessarily fatal to the admissibility of the statement.”
Flowing from these ex cathedra authorities, that a breach of the Judges’ Rules is a mere irregularity, it is clear, beyond any peradventure of doubt, that the alleged non-interpretation of exhibit A to the appellant is not potent enough to defeat its admissibility by the lower court. This is more so when the appellant’s grouse is not that exhibit A was obtained by torture, threat, coercion, duress or physical compulsion which would have rendered it inadmissible under the sacrosanct provision of section 28 of the Evidence Act, 2004 (now section 29(2) of the Evidence Act, 2011) as sanctified in the cases of Igago V. State (supra); Egboghonome V. State (supra); Ozarki V. State (1990) 1? SCNJ 76/ (1990) 1 NWLR (Pt. 124) 92; Eke V. State (2011) 3 NWLR (pt. 1235) 589. In all, I hold that the alleged non-interpretation of exhibit A to the appellant has not offended or ran foul of the law in any manner howsoever. The decisions in the above binding authorities castrate the appellant’s seemingly defensible argument on the point.
Another sub-issue revolves around the appellant’s vitriolic attack on the admissibility of exhibit A in that its recorder and interpreter to him was/were not called as witness (es).
Indisputably, it is settled law that where an accused person is an illiterate so that his extra-judicial statement is recorded by another person, usually law enforcement personnel, and interpreted to him by another person, both the recorder and the interpreter must be called to testify as witnesses in respect of the statement otherwise it will be inadmissible as a documentary hearsay. The cases of Rex V. Gidado (1940) 6 WACA 60; Rex V. Ogbuewu (1949) 12 WACA 483; Zakwakwa of Yorro V. Queen (1960) SCNLR 36; Nwaeze V. State (1996) 2 NWLR (Pt.428) 1; FRN V. Usman (2012) All FWLR (Pt. 632) 1539/ (2012) 8 NWLR (pt. 1301) 141, cited by the appellant, are apt as they establish this ageless principle of criminal law.
Be that as it may, in those cases, upon which the appellant pegged his colourful submissions, there were full-scale trials involving calling of witnesses. Those proceedings sharply contrast with the facts and circumstances of the case in hand. Simply put, the facts and circumstances of the two sets of cases are, highly, distinguishable, to borrow the daily legal axiom. Going by that wide factual dichotomy between them, it will be an affront to the law to employ the said hallowed rule, of law as enunciated in those authorities here. The ancient doctrine of stare decisis, which would have served as the barometer to deploy the revered principle of law, thrives in circumstances where facts of cases are on all fours, not where they are antithetical to the other as in this situation. On this score, I will decline the appellant’s tempting invitation to follow the decision in those authorities on account of facts differentials.
Moreover, exhibit A was not the only incriminating evidence against the appellant as postulated by his learned counsel. The appellant’s plea of guilty is akin to a criminal confession. Section 27 of the Evidence Act, 2004 (now section 28 of the Evidence Act, 2011) defines it thus:
27(1). A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committee that crime.
It follows that confessions must, not be in writing, such as in exhibit A, as pontificated by the appellant. In the eyes of the law, verbal confessions made by accused person, privately and in open court, are judicial confessions cognizable in law which are as potent as written ones, see Torri V. NPSN (2011) 13 NWLR (Pt.1264) 365; Arogundare V. State (2009) 6 NWLR (Pt. 1136) 165/(2009) All FWLR (pt. 469) 409/(2009) 13 WRN 1; Jua V. State (2010) 4 NWLR (pt. 1184) 217/(2010) 43 WRN 1. By law, confessions are the best evidence, stronger than evidence of an eye-witness, see Akpa V. State (2008) 14 NWLR (pt. 1106) 72/(2008) 39 WRN 27 /(2008) 34 NSCQR 1249; Oseni V. State (2012) 5 NWLR (Pt. 1293) 351.
Besides, the record of proceedings showcased that the appellant was, duly, represented by a counsel of his choice before the lower court who raised no objection to the illiterate status of the appellant. The appellant’s counsel having, either intentionally or inadvertently, failed / neglected to bring to the notice of the lower court that the appellant was an illiterate necessitating the provision of an interpreter, the law forecloses the appellant from raising that now an appeal. In the case of Onjia v. State (Supra, at page 170, Muhammad, JSC, intoned:
…Appellants counsel was at all material time present in Court…. I think it is too late for the appellant to raise the issue of lack of interpretation on appeal when he was represented at the trial court by a counsel who failed to raise such an issue promptly. The law has long been settled that the constitutional right granted to an accused to have an interpreter could not be invoked on appeal by an appellant who had been represented by a counsel at the trial as a ground for setting aside a conviction unless he claimed that right at the proper time and was denied it: see State v. Gwonto (1983) 1 FNR 132. An accused must therefore claim his right to an interpreter at the time of his trial, not after, for the first time on appeal. See: Eguabor v. The Queen (1962) 1 ALL NLR 28; (1962) 1 SCNLTR 409…. See, also, Durwode v. State (2001) 2 ACLR 503/(2004) 4 NSCQR 33; Udosen v. State (2007) 4 NWLR (Pt.1023) 125; Madu v. State (2012) 15 NWLR (Pt. 1324) 405. Indubitably, this pronouncement, binding on this court, puts paid to the appellant’s counsel’s ingenious and inviting arguments on this point. Put starkly, the appellant’s inviolable right as entrenched in section 36(6) (e) of the amended Constitution was not violated by the lower court in any manner that will compel me to tinker with its decision.
As already noted, the appellant’s plea of guilty is a paradigm of parole confession which is recognized by law to be as strong as written confession, see Arogundare V. State (supra): Jua V. State (Supra). The appellant was not coerced to plead guilty so that his present volteface or somersault is out of tune with the law. I dare say, by the appellant’s plea of guilty, a viva voce confession cognizable in law and made in bowel of the lower court, he not only surrendered himself to the waiting arms of the law, but became his own accuser. By his own volition, the appellant destroyed the presumption of innocence that enures to him by virtue of the inviolate provision of section 36 (5) of the amended Constitution and made himself the undoubted owner of the required mens rea and acteus reus vis-a-vis the charge preferred against him. The guilty plea made mincemeat of the usual proof beyond reasonable doubt required in criminal trials.
Against the backdrop of these reasons, added to the detailed ones encapsulated in the leading judgment, I, too, dismiss the appeal and affirm the decision of the lower court.