Balogun V. Frn (2021)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos division delivered on the 30th January, 2018 wherein the Court below affirmed the Appellant’s conviction and sentence for the offence of dealing with 200 grammes of Cannabis Sativa (otherwise known as Indian hemp) contrary to and punishable under Section 11 (c) of the National Drug Law Enforcement Agency Act Cap N30 L.F.N 2004.

BRIEF STATEMENT OF FACTS

The brief facts giving rise to this appeal is that the Appellant was arraigned and tried on a one-count charge of dealing in Cannabis Sativa (otherwise known as Marijuana), a narcotic drug contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 L.F.N 2004. The charge at page 1 of the record of appeal reads thus:

“That you, Tunde Balogun, Male, 22 years old on or about the 15th day of September, 2014 at Guinness Area in Agege Local Government Area of Lagos State within the jurisdiction of this Honourable Court, without lawful authority dealt in 200 grammes of Cannabis Sativa (otherwise known as

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Marijuana), a narcotic drug similar to Cocaine, Heroin, LSD e.t.c 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.

The case of the Respondent as prosecution at trial was that on the 15th day of September, 2014, the Appellant was arrested in Agege area of Lagos State with 200 kilograms of cannabis sativa. That on the same day, the Appellant made an extrajudicial statement in Yoruba language which was interpreted into English language to officers of the NDLEA. The Appellant who was not represented by a legal practitioner pleaded guilty to the sole count and upon the close of trial, the Appellant was convicted and sentenced to 15 years imprisonment by Hon. Justice Ofili-Ajumogobia of the Federal High Court sitting in Lagos State.

​Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court below vide a notice of appeal filed on 13th March, 2017. The Appellant later filed an amended notice of appeal on 16th May, 2017 and same was deemed properly filed and served on 7th December, 2017.

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Upon hearing the appeal, the Court below in its unanimous decision delivered on the 30th January, 2018 dismissed the appeal and the judgment of the trial Court convicting and sentencing the Appellant to 15 years imprisonment with hard labour was affirmed. (See pages 85 – 118 of the record of appeal).

Miffed by the decision of the Court below, the Appellant invoked the appellate jurisdiction of this Court vide a notice of appeal dated February, 2018 and filed on the same date. (See pages 121 – 125 of the record of appeal).

In line with the Rules and Practice of this Court, parties filed and exchanged their respective briefs of argument. The Appellant’s brief of argument is dated 14th August, 2018 and filed on the same date. The said brief of argument was settled by CHIJIOKE O.P. EMEKA, ESQ. who at paragraph 5.1 of the brief distilled three issues for the determination of the instant appeal to wit:

“1. Whether the Court below was right to have upheld the Appellant’s conviction based on his purported confessional statement which failed to comply with the mandatory provision of Section 17 of the ACJA, 2015?

2. Whether the Court below was right

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to have affirmed the appellant’s conviction based on his plea of guilt when the mandatory provision of the ACJA, 2015 were not complied with?

3. Whether the prosecution discharged the burden of proof against the appellant beyond reasonable doubt notwithstanding his purported plea of guilt by the appellant?”

APPELLANT’S ARGUMENTS AND SUBMISSIONS

Under issue No. 1, counsel for the Appellant submitted that the trial Court and the Court below could not convict the appellant based on his confessional statement which failed to comply with Section 17 of the ACJA, 2015. Counsel reproduced the provisions of the section (supra) and submitted that the Court below ought to have found, in line with established precedents that the prosecution has a duty to comply with the mandatory statutory provision enacted to protect the accused persons from coerced confessions. Section 17 (1) (2) of ACJA provides that:

“1. Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.”

2. Such statement may be taken in the presence of a legal practitioner of his choice, or where

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he has no legal practitioner of his choice, in the presence of an officer of the legal Aid Council of Nigeria of an official of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the legal practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.”

It is the submission of counsel that it is the procedural law existing at the time of the hearing of a case, whether at the trial or on appeal, that applies to the prosecution and defence of a case. That it does not matter whether the procedural law came in force after the offence had been committed. He cited the case of ROSSEK V. A.C.B (1993) 8 NWLR (PART 312) 382 @ 475 A – B. Counsel submitted that the reasoning of the Court below to the effect that Section 17 (2) of the ACJA is inapplicable to the Appellant’s confessional statements because it was obtained in 2014 is misconceived. He submitted further that the confessional statements were tendered at trial on 22nd October, 2015 after the commencement of ACJA in May

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It is the submission of counsel that ACJA, being a procedural law, applies to criminal proceedings initiated before it came into force. That the Court below erred when it relied on the appellant’s confessional statements received under the CPA, demonstrably illegal under ACJA, the procedural law in force at the hearing and tendering of the said statement. It is the contention of counsel that the Court below failed to see that the weight placed on the Appellant’s confessional statements form the bedrock of the Appellant’s conviction.On issue No. 2, it is the submission of counsel that the Court below wrongly affirmed the Appellant’s conviction based on his plea of guilt when the learned trial Judge failed to comply with mandatory provisions of Section 356(2) of ACJA.

For ease of reference, I shall take the latitude to reproduce the section (supra). Section 356(2) of ACJA provides that:

“Where the defendant pleads guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why sentence should not be passed, the Court shall proceed to sentence.”

​It is the submission of counsel that

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there was no basis for the trial Court’s satisfaction as the appellant’s plea of guilt was invalid because there was no valid arraignment. He submitted further that there is nothing on record to show that the charge was read and explained to the Appellant in Yoruba language that he understood. He argued that the law is trite that where an accused does not understand the language of the Court, the Court has a duty to ensure that the accused is availed of the services of an interpreter ex gratia to facilitate communication between the Court and the accused. He cited the case of STATE V. GWONTO (1983) 1 SCNLR 142. He contended that the Court below in affirming the appellant’s conviction held that it was the duty of the appellant to inform the Court of his illiteracy. This decision according to counsel was not in accordance with the provision of Section 271 (3) of the ACJA which states that:

“The Court shall record the fact that it is satisfied that the defendant understands the charge or information read over and explained to him in the language that he understands and shall record the plea of the defendant to the charge or information as nearly as possible

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in the words used by him.”

​He submitted that the trial Judge failed to enquire from the Appellant whether his plea of guilt is to the facts as stated by the prosecution as provided under Section 274(1)(c) of the ACJA. He submitted further that the Court below failed to see that the trial Judge did not comply with the law and there was no basis upon which he was satisfied that the Appellant intended to plead guilty. It was the submission of counsel that there was no evidence that the Appellant, who was never represented by counsel, intended to admit the charge which he did not prima facie understand, not having been interpreted to him in Yoruba language. That the trial Court couldn’t have been satisfied with the appellant’s plea of guilt in the absence of a valid arraignment. It was the submission of counsel that if the trial Judge had made the requisite inquiry, he would have found that the appellant whose confession was written for him in Yoruba language was an illiterate. He submitted further that by the ACJA, it was the Court’s duty to protect the Appellant by providing him with an interpreter in order to show the requisite satisfaction, much so, when

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the appellant was not represented by counsel. He cited the case of ANYANWU V. STATE (2002) 13 NWLR (PART 783) 107 @ 137 – 138 G -B.

Counsel submitted that in this case, it did not appear anywhere in the record that the appellant was provided with an interpreter from arraignment to conviction. That the learned trial Judge failed to inquire from the appellant if he intended to admit the offence and that the appellant was also not informed of his constitutional rights which was more imperative he being an illiterate. He submitted further that the Court below wrongly placed the burden of compliance with all the mandatory provisions on the appellant contrary to the extant law. Counsel contended that non-compliance with these provisions amounted to denying the appellant of his statutory rights and led to a miscarriage of justice.

​On issue No.3, it was the submission of counsel that the prosecution failed to prove the legal ingredients of the offence. That the trial Judge erred when he assumed that the dumping of exhibits recovered from the appellant by the prosecution amounted to proof of commission of the offence as charged and ultimately discharged the

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burden placed on the prosecution. He submitted that the prosecution failed to prove that all the exhibits tendered were recovered from the appellant. That the confessional statements cannot ground the appellant’s conviction by reason of being Invalid and that same applies to all the exhibits tendered on the basis of the confession.

In the final analysis of the issues distilled by counsel, he urged the Court to allow the appeal, set aside the conviction and sentence of the Appellant and acquit the Appellant of the charge.

The Respondent’s brief on the other hand is dated 12th March, 2019 and filed on 14th March, 2019. The brief was settled by FEMI AMOS OLORUNTOBA, ESQ. Learned counsel for the Respondent at paragraph 4.2 of the Respondent’s brief of argument adopted issues 1 and 3 distilled by the appellant for the resolution of the instant appeal.

RESPONDENT’S ARGUMENTS AND SUBMISSIONS

Arguing issue No. 1, it was the submission of counsel for the Respondent that the Court below was right in affirming the conviction of the Appellant because the confessional statements were made in September, 2014, long before the commencement of the ACJA.

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He submitted further that the recording of the Appellant’s statement was a concluded exercise and there was no way the newly enacted ACJA could apply in retrospect to the statement. He contended that aside the appellant’s confessional statement, there were also exhibits tendered which were not objected to and upon which the trial Court relied on to find the appellant guilty coupled with his plea of guilt. That even where the confessional statements were expunged, the conviction and sentence of the appellant can be sustained on the other evidence adduced on record. He referred the Court to the cases of THE STATE V. OGBUBUNJO (2001) NWLR (698) 576 @ 606; IKUMONIHAN V. STATE (2018) LPELR – 44362 (SC).

​On issue No. 3, it was the submission of counsel that when the charge was read on the 12th March, 2015, the appellant did not object or complain that he did not understand the proceedings. That if indeed the appellant was an illiterate who could not speak English and required an interpreter, an opportunity was provided for the appellant to speak out when the case came up again on 22nd October, 2015. He contended that the appellant did not complain that he did

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not understand the proceedings and that he needed interpretation of the proceedings.

Counsel submitted that when the charge was read, the appellant could have raised the issue of illiteracy and the need for an interpreter. That the record states that the appellant said he understood and he pleaded guilty. He submitted that the contention of the appellant’s counsel that Exhibit PD2A (the confessional statement recorded in Yoruba language) lend credence to the fact that the Appellant is an illiterate is unfounded. That it was the duty of the Appellant to inform the Court that he does not understand the language in which the trial is being conducted. He cited the cases of MADU V. THE STATE (1997) 1 NWLR (PT 482) 386; (1997) LPELR – 1808 (SC) and UMUOLO V. THE STATE (2003) 3 NWLR (PT 808) 493; (2003) LPELR – 7145 (CA).

Counsel submitted that unless the appellant informs the Court that he does not understand the language of the Court and that he required an interpreter, failure to provide an interpreter may not be fatal.

​On the validity of the appellant’s arraignment, counsel submitted that the appellant, who was arraigned on 12th March, 2015

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before the commencement of the ACJA, was validly arraigned and he appreciated the nature of the charge against him, he admitted he was guilty and based on the admitted facts, the conviction and sentence of the appellant are sustainable in this Court as all the issues raised concerning Section 274(1) and 369 of the ACJA are irrelevant to the proceedings and this appeal. That the appellant elected summary trial under Section 33 of the Federal High Court Act by pleading guilty to the charge preferred against him and that in cases of this nature, the judge is entitled to convict summarily. On the burden placed on the prosecution in a summary trial where the accused pleads guilty to the charge, counsel referred the Court to the case of the SAMUEL AYO OMOJU V. FRN (2008) ALL FWLR pt. (415) 1656 at 1674. Counsel for the Respondent submitted that a plea of guilt by the appellant in open Court concluded his trial, and what is left to be done by the trial Court in the circumstance, is to convict and sentence him accordingly if the Court is satisfied with his plea.

​He submitted further that the appellant has not satisfied the conditions upon which he can appeal against

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his conviction and sentencing after taking a plea of guilt. The conditions which are:

1. That the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it or;
2. That upon the admitted facts, he could not in law, have been convicted of the offence charged.

Flowing from the hills of the above submissions and arguments, learned counsel for the Appellant urged the Court to dismiss the appeal for lacking in merits.

RESOLUTION

I have perused the record of appeal compiled and duly transmitted in this case; the briefs of argument filed by both parties as well as the issues distilled for determination across the divide. Thus, having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I am of the opinion that the understated issue would suffice in the determination of this appeal:

Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable doubt to warrant the affirmation of his conviction and sentence by the Court below?

The Appellant was arraigned and tried on a sole count charge of dealing with

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cannabis sativa (otherwise known as marijuana) contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30, L.F.N. 2004. (See page 1 of the record of appeal). The section provides:

“11 (1) any person who without lawful authority,

(c) sells, buys, exposes or offers for sale or otherwise deals in or with the drugs particularly known as cocaine, LSD, heroin or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life”

Section 11 (2) (b) further provides:

“The penalties for offences under Subsection (1) of this section shall:

(b) In respect of offences under paragraph (c), (f), (g) and (i) thereof, be imprisonment for a term not less than fifteen years and not exceeding twenty-five years.”

It is the law that in order to secure a conviction for unlawful possession of Indian hemp, otherwise known as cannabis sativa, the prosecution must establish the following beyond reasonable doubt as required by Section 135 of the Evidence Act, 2011:

1. That the substance was in the possession of the accused;

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That it was knowingly in his possession;

3. That the substance is proved to be Indian hemp (cannabis sativa); and
4. That the accused was in possession of the substance without lawful authority.

See also the cases of BLESSING V. FRN (2015) LPELR- 24689 (SC); OYEM V. FRN (2019) LPELR – 47392 (SC); CHUKWUMA V. FRN (2011) 13 NWLR (Pt. 1264) 391 at 412. Upon his arraignment, it is on record that the Appellant pleaded guilty to the sole count. His plea was recorded at page 3 of the record of appeal wherein he stated as follows:

“I understand the charge and I plead guilty”.

In the light of the Appellant’s plea of guilt, and in a bid to discharge the burden of proof imposed on it by law, the prosecution tendered the following as exhibits:

1. Packing substance form bearing the name of the Appellant and dated 15/09/14 – Exhibit PD1.
2. Statement of the Appellant in Yoruba language dated 15/09/14 – Exhibit PD2(a).
3. Translation of Exhibit PD2(a) into English language and thumb printed by the Appellant dated 15/09/14 – Exhibit PD2(b).
4. Bulk Exhibit in a white cellphone 6 gramme with dried weeds weighing about 200 gramme with

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some wrapped in white paper – Exhibit PD3.

5. Certificate of Scientific Aid dated 15/09/14 – Exhibit PD5.
6. Large Brown Envelope with Ref No. NDLEA/SD/2014/1865 – Exhibit PD6.

In the instant appeal, there are two issues that are crucial for determination i.e. firstly, the validity of the appellant’s plea of guilt and the consequences thereof and secondly, the validity of the appellant’s arraignment in the light of the absence of an interpreter during trial.

The Appellant at page 3 of the record of appeal pleaded guilty to the charge proffered against him. In my view, he elected the summary trial procedure under Section 33(2) of the Federal High Court Act. A summary trial is therefore a short proceeding that does away with the rigours of a full trial, hearing of witnesses or tendering of documents. It is a proceeding that settles a controversy or disposes of a case in a relatively prompt and simple manner. It entails immediate action without following the rigmarole in normal legal procedure. As a matter of procedure, summary trial allows for conviction of an accused person based on his or her admission of guilt to an

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indictable offence other than capital. See USAINI MOHAMMED V. COMMISSONER OF POLICE (2017) LPELR – 43837 (SC); MOHAMMED V. FRN (2018) LPELR – 43908 (SC); RALPH UWAZURUIKE V. A.G. FEDERATION (2013) LPELR – 20392; BAALO V. FRN (2016) LPELR – 40500 (SC).

In the instant appeal, after the Appellant pleaded guilty to the charge, the trial Court at page 3 of the record of appeal, upon being satisfied that the Appellant understood the charge, recorded his plea as nearly as possible in the words used by him in compliance with Section 218 of the CPA, being the extant law as of the date of arraignment. The said section provides that:

“If the accused pleads guilty to an offence with which he is charged, the Court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he pleaded guilty, the Court shall convict him of the offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”

​It is imperative to state that the appellant’s plea of guilt connotes a lot of things against him. That

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plea of guilt is personal to him and he is bound by it. By that plea, his fundamental right to presumption of innocence and defence to the charge as enshrined in the Constitution, became legitimately scuttled. I am of the view that the plea of guilt in open Court, amounts to a voluntary oral confession and this oral confession, has more evidential value than any other evidence that may be adduced against an accused person by the prosecution. In the case of OMOJU V. FRN (2008) LPELR – 2647(SC), Tobi JSC (of blessed memory), considered the effect of an accused person’s plea of guilt on the burden placed on the prosecution where my noble Lord held thus:

“The law is elementary that if an accused person pleads guilty, the burden of proof placed on the prosecution becomes light, like a feather of an ostrich. It no longer remains the superlative and compelling burden of proof beyond reasonable doubt. After all, the guilty plea has considerably shortened the distance and brought in some proximity the offence and mens rea or actus reus of the accused as the case may be. That makes it easier to locate causation or causa sine qua non.”

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In the case of F.R.N. v. KAYODE (2019) 6 SC (Pt.1) 165 at 188, this Court, per Galumje, JSC held as follows:

“The law is settled that an Accused person who pleads guilty to a criminal charge can be convicted summarily if the Court is satisfied that he intended to admit the truth of all the essentials of the offence.”

Without mincing words, I am of the view that in the light of the Appellant’s plea of guilt, all the submissions and arguments of counsel in respect of the admissibility of his confessional statements being recorded in breach of ACJA and the issue of interpretation, becomes impotent and devoid of any judicial substance. Logically, what argument can be offered challenging the admissibility of a confessional statement made ex facie curie that will take precedence over a plea of guilt made in facie curie? An extra judicial statement in accordance within the dictates of common sense cannot take credence over a judicial admission. Assuming the Appellant’s confessional statements in Exhibit PD2 and PD2a were expunged from the record, what difference does that make on the propriety of his conviction in view of his plea of guilt? None. In other words, the Appellant’s

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plea of guilt has superseded the issue of their admissibility and the consequences. This is better understood in the light of the fact that a plea of guilt is superior in evidential value to an extrajudicial statement like Exhibits PD2 and PD2a.

The Appellant’s plea of guilt is as good as judicial confession, his valid admission of the offence in the charge. A plea of guilt brings the trial to an end in non-capital offences, such in the instant appeal, and what is left to be done is for the judge to convict and sentence him. In the instant appeal, what more could be the best form of evidence against the Appellant if not his plea of guilt? This plea to my mind has more credence than his confessional statement or any eye witness testimony. See AKPA V. STATE (2008) 14 NWLR (PT. 1106) 72; SUNDAY V. FRN (2018) LPELR – 46357(SC).

Having pleaded guilty to the charge, the Appellant cannot be heard to be making a different case on appeal as this would only amount to approbating and reprobating, a conduct which the Court frowns at. See the case ofNKIE V. FRN (2014) ALL FWLR (PT. 754) 186.

​The Appellant’s counsel also made heavy weather on the failure

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of the trial Court to avail the Appellant with the services of an interpreter ex gratia to facilitate communication between the Court and the Appellant. There is no doubt that a person charged with a criminal offence before a Court of law is entitled to be provided with the service of an interpreter where he does not understand the language of the Court, which in the trial Court, is English Language. This is what is provided in Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria (as amended) as part of the safeguards of ensuring fair hearing to a person accused of an offence. The importance of interpreting the proceedings of the Court to the accused person in the language he understands and from the accused person to the Court in the language spoken by the Court, cannot be overemphasized. As a matter of fact, the right of an accused person in this regard goes beyond understanding the charge and the whole trial proceedings against him but for him to also be able to fully participate in the trial. On the principles relating to the right of an accused person to an interpreter, see the cases of THE STATE V. SALIHU MOHAMMED GWONTO (1983) LPELR

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– 3220 (SC); UMARU SUNDAY V. FRN (2013) LPELR – 21092 (CA); TANKO IKO V. THE STATE (2014) LPELR – 23488 (CA).

Appellant’s counsel is vehemently holding unto the position that it was the duty of the trial Court to make available to the Appellant the services of an interpreter because he is an illiterate. It must be pointed out that where the accused does not understand the language used at his trial, it is his duty or his counsel’s duty to bring to the notice of the Court at the earliest opportunity, that he does not understand the language used at trial. I think the duty of ensuring that the right thing is done is not only on the trial Judge. It is a duty as well on a party to a case or his counsel if represented by one.

In the instant appeal, there was nowhere in the record that the Appellant informed the trial Court that he does not understand the language of the Court and would be needing the services of an interpreter. The record of appeal at page 3, bears semblance of the fact that the Appellant understood the charge read to him and he pleaded guilty thereon. In the case of SAMSON NKEMJI UWAEKWEGHINYA V. THE STATE (2005) LPELR – 3442 (SC) also

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relied on by the Court below, this Court Per, Musdapher, JSC held that:

“If the accused does not ask for an interpreter, the failure to supply one would be treated as a matter of procedure and a conviction may only be set aside if the failure to supply an interpreter had led to a miscarriage of justice and that if the accused is represented by counsel, the objection must be taken at the trial in the first instance, and not on appeal.”

The fact that the accused does not understand the language in which the trial is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing it to the notice of the Court at the earliest opportunity. If he does not claim the right at the proper time before any damage is done, he may not be able to have a valid complaint afterwards, for example on appeal. Where the accused person refuses to inform the Court that he does not understand English Language, it will be too late for him to seek protection under Section 36(6)(e) of the Constitution to have his conviction set aside through the backdoor. See MALLAM MADU V. STATE (1997) 1 NWLR (Pt. 487) 386 at 401;

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STATE V. GWONTO (1983) 1 SCNLR 142, LOCKNAN & ANOR V. STATE (1972) ALL NLR 498; FRANCIS DURWODE V. STATE (2000) LPELR – 973(SC); IBRAHIM V. STATE (2013) LPELR – 21883(SC).

Flowing from the above, I am of the view that there is nothing on the record to support the contention of the Appellant’s counsel that the Appellant does not understand English Language and that the failure of the trial Court to provide him with an interpreter rendered his arraignment invalid. Contrary to the contention of the Appellant’s counsel, it is my opinion that the fact that the accused stated that he understood the charge puts it beyond peradventure that he understands English Language. In conclusion, I agree with the decision of the Court below where it held at page 111 of the record of appeal that:

“In addition, what transpired at the trial Court was a summary trial procedure, where upon a plea of guilt by the Appellant, the prosecution was called upon to review the facts and state the elements of the offence alleged against the Appellant, and he was convicted and sentenced accordingly. The situation would have been different where witnesses had been called and a full

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trial done.”

In view of the Appellant’s plea of guilt, the duty imposed on the Respondent to prove the guilt of the Appellant beyond reasonable doubt became lessened and I am left with no doubt that the Appellant committed the offence for which he is charged and pleaded guilty to.

The consequence of the above findings by this Court is that the appeal fails and same is hereby dismissed. The decision of the Court of Appeal, Lagos Division delivered on the 30th January, 2018 wherein the Court below affirmed the Appellant’s conviction and sentence for the offence of dealing with 200 grammes of Cannabis Sativa contrary and punishable under Section 11 (c) of the National Drug Law Enforcement Agency Act Cap N30 L.F.N 2004 is hereby affirmed together with the sentence of 15 years term of imprisonment.

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SC.526/2018