Is giving evidence in native dialect conclusive proof that a witness is illiterate?
SAHEED ADESINA v. THE STATE  CITATION: (2021) LPELR-54515(CA)  In the Court of Appeal  in the Ibadan Judicial Division  Holden at Ibadan  ON WEDNESDAY, JUNE 2, 2021  Suit No: CA/IB/228/2017  Before Their Lordships:  JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL  UGOCHUKWU ANTHONY OGAKWU JUSTICE, COURT OF APPEAL  FOLASADE AYODEJI OJOJUSTICE, COURT OF APPEAL  Between  SAHEED ADESINA  Appellant(s)  ADVERTISEMENT  And  THE STATE  Respondent(s)  LEADING JUDGMENT DELIVERED BY FOLASADE AYODEJI OJO, J.C.A. The Appellant and one Ridwan Ojekunle were charged before the trial Court 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. TheAppellant 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. The case went on to trial. At the end of the trial, the learned trial Judge found the Appellant and his co-accused guilty on both counts of the charge, convicted them, and sentenced them accordingly.Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal. Issues 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. Appellants submission  Appellants counsel submitted that a confessional statement will only be admissible if it is made freely and voluntarily and called in aid of his argument the case of ADEKOYA VS. STATE (2012) LPELR  7815 (SC);and the case of USUFU VS. THE STATE (2007) 1 NWLR (PT. 1020) 94; (2006) LPELR-11790(CA)on the list of essential ingredients to be proved to establish the offence of armed robbery. Appellants counsel contended that the Appellants confessional statement in this case, Exhibit C1, was not made voluntarily and that the contents of the statement was not interpreted to the Appellant in Yoruba language before he thumb-printed it. Appellants counsel submitted further that the arraignment of the Appellant was not in accordance with the law. His contention is that failure of the learned trial Judge to put on record that the Appellant clearly understood the charge read to him to the satisfaction of the Court falls short of the mandatory provision of Section 215 of the Criminal Procedure Act. He relied on the case of KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) 721; (1988) LPELR-1646(SC). Appellants counsel submitted also that the evidence of PW1 is hearsay evidence as it was not borne out of his personal knowledge but derived from other persons who were not called as witnesses. He relied on thecase of ODOGWU VS. STATE (2013) 14 NWLR (PT. 1373) 74; (2013) LPELR-42802(SC). It is further the submission of Appellants counsel that the Appellant was not properly identified and this was fatal to the case of the prosecution. He contended that the evidence of his identity was based on information from persons who were not called as witnesses. On the importance of proper identification of an accused person, he relied on the case of NDIDI VS. THE STATE (2007) 13 NWLR (PT. 1052) 638. Appellants counsel submitted further that the guns (Exhibit A1 and A2) allegedly used in the commission of the offence are toy guns which do not qualify as Firearms under the provision of the Robbery and Firearms Special Provisions Act; NWACHUKWU VS. THE STATE (1986) 2 NWLR (PT. 25) 765. He also argued that failure to tender the cutlass used in the commission of the offence was fatal to the case of the prosecution. Respondents submission  Respondents counsel itemised the three methods of proving crime and listed the ingredients which must be proved to establish the offence of armed robbery. Respondents counsel submitted that the voluntariness of Appellants confession was put to test in a trial within trial and 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 also contended that the identity of the Appellant was never in doubt as there was sufficient evidence before the trial Court to ascertain his identity. As regards the evidence of the prosecution witnesses (i.e., PW1 and PW2) being hearsay, Respondents counsel submitted that PW1 gave comprehensive evidence of what happened to her on the day of the incident; while PW2 who was an official witness who gave evidence of what transpired while he was investigating the case, and thus was not hearsay. He placed reliance on the case of OLAOYE VS. STATE (2018) LPELR  43601 (SC). Respondents counsel referred to the definition of offensive weapon in Section 11 of the Robbery and Firearms Special Provisions Act and the case of SOWEMIMO VS. THE STATE (2012) 2 NWLR (PT. 1284) to submit that the guns allegedly used in the robbery do not fall within the definition of offensive weapon under the Act but the cutlass does. Resolution of issues  The Court in resolving the sole issue held that proper arraignment is the bedrock of a criminal trial and where an accused is not properly arraigned, the entire proceedings thereon is a nullity. The Court held that an arraignment is about taking the plea of an accused person and it is only when an accused person pleads either guilty or not guilty to a charge as the case may be that issues are joined in a criminal trial. See FEDERAL REPUBLIC OF NIGERIA VS. ABUBAKAR (2019) 7 NWLR (PT. 1670) 113. The Court quoted the provisions of Section 215 of the Criminal Procedure Act as to what constitutes a valid arraignment and held that from the record, it is clear that the charge was read to the Appellant and explained to him and his co-accused in Yoruba language; and that 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. Citing OKORO VS. THE STATE (1998) 14 NWLR (PT. 584) 181 AT 214 PARAS D-G. The Court further held that the essential ingredients to be proved to secure a conviction for the offence of armed robbery are:there was indeed a robbery or series of robbery; the robbers were armed with dangerous weapons and the accused person was the robber or one of the robbers.See AYINDE VS. STATE (2019) 12 NWLR (PT. 1687) 410.The Court also held that to discharge the burden of proof placed on the prosecution in criminal cases, the prosecution may rely on any or a combination of the following methods to prove his case:confessional statement of the accused; circumstantial evidence; or direct evidence of eye witnesses. CitingADEYEMO VS. STATE (2014) 16 NWLR (PT. 1516) 110. The Court held that the duty of determining the credibility of witnesses at a trial is that of a trial Court who had the opportunity of seeing and hearing the witnesses testify and observe their demeanour in the witness box. Where a trial Court evaluates the evidence at trial and makes a proper appraisal thereof, it is not the business of an appellate Court to substitute its views for that of the trial Court. See OLAKUNLE VS. STATE (2018) 6 NWLR (PT. 1614) 91. The Court held that the learned trial Judge who saw the Appellant at the trial made the observation that the head of the 2nd Accused is fine., even though the Appellant in the trial within trial stated that when he got to the Special Anti-Robbery Squad (SARS), he was hung upside down and was beaten with a hammer and digger. Since the Appellant could not show that the above finding of the trial judge is perverse, the Court held that it is not in a position to disturb the above finding. Relying on SUNDAY VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 the Court held that the question whether a person is literate or illiterate is a matter to be proved by evidence.The Court held that though the Appellant was represented by counsel at the trial, the issue of the Appellant being an illiterate was not raised; and the fact that he gave his testimony at his trial in Yoruba language is not proof that he is illiterate. The Court held that a piece of evidence would be hearsay evidence where it is given by a person other than the one who witnessed the event narrated. See SAMAILA VS. STATE (2021) 4 NWLR (PT. 1767) 528. The Court found the trial Court did not rely on the evidence of PW1 in making his finding but relied on the evidence of PW2 in corroborating the confession of the Appellant and came to the conclusion that the Appellant participated in the armed robbery. The Court further held that the prosecution does not need to call a host of witnesses. Once it has presented sufficient credible evidence to establish all the ingredients of the offence charged, the decision to call witnesses in proof of its case is at the discretion of the prosecution. See UZIM VS. STATE (2019) 14 (PT. 1693) 419. The Court also held that the proper person through whom a document should be tendered is its maker. See LAMBERT VS NIGERIAN NAVY (2006) 7 NWLR (PT. 980) 514. However, where the maker is dead or the maker can only be procured by involving the party in so much expenses, then the document can be tendered by another person other the maker of it. See OMEGA BANK NIGERIA PLC VS. O.B.C. LIMITED (2005) 8 NWLR (PT. 928) 547.The Court found that the prosecution made reasonable efforts to secure the attendance of one Sergeant Balogun Olumide (the maker of Exhibit B)before the said Exhibit B was tendered through another witness. And Exhibit B was tendered and admitted in evidence without any objection from the Appellants counsel. Thus, Exhibit B was rightly admitted in evidence. The Court also held that where there is certainty or no dispute on the identity of the perpetrator of a crime, an identification parade to identify the offender is unnecessary. See AGBOOLA VS. STATE (2013) 11 NWLR (PT. 1366) 619. The Court also held that the best form of evidence of commission of a crime is the admission of the accused himself. See ALO VS. STATE (2015) 9 NWLR (PT. 1464) 238. The Court found that Exhibit C1 contains a direct, unequivocal and positive admission by the Appellant that he participated in the alleged robbery.Thus, his identity was not in doubt and there was no need for any identification parade. The Court held that the offence of robbery with firearms is committed where at the time of the commission of the offence the accused is proved to be armed with firearms or offensive weapon. See KEKONG VS. STATE (2017) 18 NWLR (PT. 1596) 108. The Court found that even though a toy gun is not an offensive weapon, the Appellant was armed with a cutlass as can be seen from the evidence of PW1. And that failure of the prosecution to tender the cutlass is not fatal to its case. Held  The Court held that the appeal was lacking in merit and accordingly dismissed same. APPEARANCES: TOYESE OWOADE, ESQ.  For Appellant(s)  T. OLAWALE (De p. Director, Public  Prosecution, Min. of Justice, Oyo State)  For Respondent(s)  Compiled by LawPavilion