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ADEYEMI v. STATE (2022)

ADEYEMI v. STATE

(2022)LCN/16056(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, April 07, 2022

CA/IB/276C/2018

Before Our Lordships:

Folasade Ayodeji Ojo Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

OLUWAMBE ADEYEMI APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

Fair hearing is one of the twin pillars of natural justice, expressed in Latin as audi alteram partem, the other pillar being nemo judex in causa sua , that one should not be a Judge in his own case. The principle of fair hearing has found constitutional expression in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).

It has been described as a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause. See Ariori & Ors vs. Elemo (1983) LPELR-552 (SC), Nwokocha vs. A.G. Imo State (2016) LPELR-40077 (SC). Fair hearing entails that parties are given equal opportunity to present their respective cases before their legal rights are determined by the Court. In INEC vs. Musa (2003) LPELR-24927 (SC), the Supreme Court, per Tobi, JSC, stated that:
“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principle.”
Fair hearing lies in the procedure followed by the Court in the determination of the case not in the correctness of the decision. In other words, in deciding whether a complaining party has been afforded fair hearing in a matter or not, the determining factor shall be the procedure adopted by the Court in arriving at its decision. Where the Court followed procedural due process during the trial and determination of a case, the kite of fair hearing against the decision will not fly, even if the decision is found to be wrong by the Appellate Court.
PER SIRAJO, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

Armed robbery is defined as the illegal taking of property from the person of another by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See Agboola vs. The State (2013) LPELR-20652 (SC). Simply put, Armed Robbery is stealing with violence or threat of violence, or stealing while armed. See Mohammed vs. The State (2020) LPELR-52451 (SC) and Smart vs The State (2016) LPELR-40728 (SC). The offence of armed robbery is committed when at the time of commission of the robbery the accused is proved to be armed with offensive weapon. The requirements for establishing the offence of Armed Robbery beyond reasonable doubt as settled in a long line of decided authorities are: 1. That there was a robbery or series of robberies. 2. That the robbery or each robbery was an armed robbery. 3. That the accused person or defendant was the armed robber or one of the armed robbers who took part in the robbery. These requirements or ingredients must be established conjunctively by the prosecution beyond reasonable doubt. See Emeka vs. The State (2014) LPELR-23020 (SC), Sanmi vs. The State (2019) LPELR-47418 (SC); Eze vs. FRN (2017) LPELR-42097 (SC), Adekoya vs. The State (2017) LPELR- 41564 and Aleke vs. C.O.P. (2020) LPELR-52447(SC). PER SIRAJO, J.C.A.

WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

The law is settled that there are various ways of proving the guilt of an accused person standing trial for an offence. It can be proved by: (a) Confessional statement; (b) Evidence of eye witness(es) of the crime; (c) Circumstantial evidence. See Agboola vs The State (supra), Igbikis vs. The State (2017) LPELR-41667, Chukwu vs. The State (2021) LPELR-55201 (SC), Segun vs. The State (2021) LPELR-56603 (SC) and Aliyu vs The State (2021) LPELR-55002 (SC). PER SIRAJO, J.C.A.

THE POSITION OF LAW ON THE WEIGHT TO BE ATTACHED TO A RETRACTED CONFESSIONAL STATEMENT

The law on the weight to be attached to a retracted confession has been well settled. Where a statement is subsequently retracted, after it had been admitted in evidence and forming part of the prosecution’s case, the Court is bound to consider its probative value viz-a-viz the retraction. The retraction only affects the weight to be attached to the confessional statement and not its admissibility, which in this case was not opposed in the first place. See Aliyu vs The State (2021) LPELR-55002 (SC), Mohammed vs The State (2019) LPELR-46420 (SC) and Adekoya vs. The State (2012) LPELR-7815 (SC). In order to determine the weight to be attached to retracted confessional statement, a trial Court must test the truthfulness and veracity of the confessional statement by subjecting the statement to the six-way test which was outlined by the Apex Court in a number of cases. The Court would consider whether: a. There is anything outside that confessional statement to show that it is true; b. It is corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence; e. The accused person’s confession is possible; f. The confession is consistent with the other facts ascertained and proved at the trial. See Alao vs. The State (2019) LPELR-47856 (SC), per Okoro, JSC.  PER SIRAJO, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS RETRACTED CONFESSIONAL STATEMENT

The law is settled that an accused person can be convicted solely on his retracted confessional statement if the Court is satisfied that the accused person made the statement and there are circumstances which give credibility to the contents of the confession, as found by the lower Court in the instant case on appeal. Speaking about the strength and weight of confessional statement in a criminal trial in the case of Azabada vs. The State (2014) LPELR-23017 (SC), Onnoghen, JSC (as he then was, now CJN Rtd) postulated thus:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts which have been proved. Confession in criminal procedure is the strongest evidence of guilt on the act of an accused person. It is stronger than the evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof.”
PER SIRAJO, J.C.A.

MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Ogun State, Ota Judicial Division (the lower Court) on a four-count Information dated 24th March, 2014. The information is reproduced here below:
“COUNT I:
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, (Cap R.11), Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLUWAMBE ADEYEMI (M) and others now at large on or about the 23rd day of October, 2011 at Atan Ota in the Ota Judicial Division conspired with others now at large to commit an offence to wit: Armed Robbery.
COUNT II:
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLUWAMBE ADEYEMI (M) and others now at large on or about the 23rd day of October, 2011 at Atan Ota in the Ota Judicial Division robbed Olayinka Ogunyale of the sum of twenty thousand Naira (N20,000), a gold wristwatch worth fifty thousand Naira (N50,000) and a Samsung mobile phone with GLO line valued at Fifteen thousand, five hundred Naira (N15,500).
COUNT III:
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLUWAMBE ADEYEMI (M) and others now at large on or about the 23rd day of October, 2011 at Atan Ota in the Ota Judicial Division robbed Adesola Aderemi of the sum of Two thousand Naira (N2,000), a Sagem mobile phone worth Eighteen thousand Naira (N18,000) and gold chain worth Twenty-two thousand Naira (N22,000).
COUNT IV:
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLUWAMBE ADEYEMI (M) and others now at large on or about the 23rd day of October, 2011 at Atan Ota in the Ota Judicial Division robbed Adesina Lawal of one Nokia 6070 phone with Zain line.” The Appellant pleaded not guilty to all the four counts. At the conclusion of trial, the prosecuting Principal State withdrew counts 3 and 4 in his final written address and the said counts were struck out. The lower Court found the Appellant guilty on the remaining counts 1 and 2, convicted him and sentenced him to death.

Naturally peeved by that verdict, the Appellant filed his Notice of Appeal containing a sole ground of appeal on 9th April, 2018. With the leave of Court, the Appellant filed an Amended Notice of Appeal on 14/01/2019 predicated on three grounds of appeal and same was deemed properly filed and served on 16/01/2019.

The gist of the prosecution’s case at the lower Court is that on 23/10/2011 around 7.00pm, the Appellant and another person entered the shop of one Alhaja Olayinka Ogunyale who runs a supermarket at Idiroko Road, Paplo Area, Atan, Ota, and requested to buy table water. As she opened the refrigerator to give them water, they both pulled out guns. While one of them was searching the drawers, the other one asked her son, Ayomide, to kneel down. They collected her gold neck chain valued N50,000.00, packed all the proceeds of the day’s sales from the drawer, the sum of N20,000.00 that was wrapped and her Samsung mobile phone with GLO line. While the person with Alhaja Olayinka Ogunyale ran away with the items, her son summoned courage, grabbed the gun with the Appellant and that gives her the opportunity to hold onto the Appellant and squeezed his testicles, which led to his falling down. The Appellant was then arrested and taken to Atan Police Station.

The Appellant’s case, on the other hand, is two-fold. The first, as stated in his extra-judicial statement to the Police is that he committed the offences charged together with Taofeek and Gbenga whom he carried on his Motorcycle to the shop of the nominal complainant. He stated that each of the three of them had a gun and that the three guns were brought by Gbenga. While Gbenga fired his own gun and exhausted his cartridges, the Appellant’s gun failed him. Taofeek and Gbenga ran away while the Appellant was caught. The second leg of the Appellant’s case is as stated in his evidence before the lower Court as follows: He is a commercial Motorcyclist. He carried two people to Atan Ota on Sunday, 03/10/2011. On getting to Atan, near the road, the two passengers robbed him of his motorcycle at gun point and he started shouting ‘thief, thief’. He was accused of being one of those who robbed the nominal complainant. He denied being one of the robbers, asserting that he was also a victim of robbery.

Parties filed and exchanged Briefs of Argument in compliance with the Rules of this Court. The Appellant’s Brief of Argument, settled by J.D. Oloyede Esq., with Temitope Laolu-Kolawole, was filed on 05/03/2019 but deemed properly filed and served on 24/01/2022. The Respondent’s Brief of Argument settled by Dr. Olumide Ayeni, the Attorney General of Ogun State, was filed on 12/03/2019 but deemed on 24/01/2022. The Appellant’s Reply Brief filed on 12/04/2019 was consequentially deemed as properly filed and served on 24/01/2022.

The Appellant distilled three issues for determination in his Brief of Argument, couched thus:
A. Whether there was a breach of right of fair hearing of the Appellant at the hearing in the lower Court. (Distilled from Ground 1).
B. Whether from the weight of the evidence adduced, the prosecution can establish the essential elements of the offence for which the Appellant was charged. (Distilled from Ground 3).
C. Whether having regard to the evidence adduced by the Respondent before the trial Court, their case was proved beyond reasonable doubt. (Distilled from Ground 2).

The Respondent formulated a single issue for the resolution of the appeal, quoted below:
“Whether from the entirety of material and evidence available on the record, the conviction of the Appellant on the offences of conspiracy to commit Armed Robbery and Robbery in consequence of counts I and II of the Criminal Information Indictment in Charge No. HCT/26R/2015 at the High Court of Ogun State sitting at Ota is justified in the circumstances of the case.”

Argument
Presenting argument on the first issue formulated by him, learned counsel for the Appellant submitted that the right to fair hearing is at the root of a just and fair administration of criminal justice and the absence of it always amounts to grave injustice where the liberty of a citizen is very much in issue. Citing the cases of Kim vs. State (1992) 4 NWLR (Pt.233) 17, Onagoruwa vs State (1992) 2 NWLR (Pt.221) 33, Mohammed vs. Kano N.A. (1968) 1 ALL NLR424, A.G. Rivers State vs. Ude (2006) 17 NWLR (Pt.1008) 435 and First Bank Plc vs. Udeozo & Ors (2017) LPELR-43263 (CA), learned counsel submitted that a breach of the principles of fair hearing is a breach of the Constitution, thereby rendering any decision reached in such a breach, a complete nullity. He argued that the lower Court did not give the parties equal opportunity as the evidence of the Appellant was not considered by the Court, especially as to the circumstances of making the confessional statement, and that this failure amounts to denial of fair hearing to the Appellant. He listed the failure of the Respondent to conduct forensic test on Exhibits D, C and D and non-consideration of the Appellant’s evidence that he did not sign exhibit A and that he was not involved in the robbery, as evidence of denial of fair hearing to the Appellant. The Court was urged to resolve the first issue formulated by the Appellant in his favour.

On the second issue, it was argued that there were several doubts raised in the prosecution’s case such that it was dangerously improper for the lower Court to have relied on the prosecution’s evidence to convict the Appellant. Learned counsel contended that the ingredients of the offences charged as stated in Uche vs. State (2015) 11 NWLR (Pt.1470) 380 at 393 have not been proved beyond reasonable doubt in the absence of admissible evidence that that the Appellant committed the offence or that he signed Exhibit A. Learned counsel submitted that the alleged confessional statement denied by the Appellant did not scale the hurdle and test proffered by the Supreme Court in that same was not subjected to the rigours of trial within trial in order to ascertain its voluntariness, relying on Mberi vs. State (2016) LPELR-40075 (CA) at 35-36. With reference to the formal requirements of extra-judicial statement enumerated in the case of Adeyinka vs. F.R.N. (2014) LPELR-24325 (CA), that: (a) it must carry the usual form for caution; (b) each of the words of caution must be in the language understood by the maker; (c) it must be followed by the maker’s thumbprint or signature as the case may be; (d) it must be recorded in the language understood by the maker; and (e) it must be read over and interpreted to the maker in a language in which it is made, counsel submitted that the lower Court did not advert its mind to the said requirements before placing heavy reliance on Exhibit A. Learned counsel questioned the propriety of the correctness of the interpretation of the confessional statement by a Police Officer (PW3), who is Igbo by tribe, to the Appellant in Yoruba language. He submitted that the conviction of the Appellant on the evidence of PW3 resulted in a miscarriage of justice as there is no evidence on record to show that PW3 is an expert in the language in Yoruba language. Learned counsel argued that the confessional statement did not satisfy the formal requirements of extra-judicial statement and should not have been accorded any weight by the lower Court. It was further argued that the Appellant could not have volunteered the statement since he does not understand the language the prosecution claimed the statement was volunteered in. This Court was urged to hold that the lower Court did not properly assess the evidence before it, allow the appeal and set aside the judgment of the lower Court. 

On the 3rd issue, Appellant’s counsel contended that there is no direct evidence linking the Appellant to the offence for which he was convicted as both the evidence of PW1 and PW2 were not rich enough to place the offence on the shoulder of the Appellant, just as the confessional statement was not direct as required by Section 27 (1) of the Evidence Act. Most of the arguments on the second issue with respect to the confessional statement were repeated under the 3rd issue. It is needless and tautological to further summarize them here.

It is the further submission of the Appellant’s counsel, relying on State vs. Rabiu (2013) ALL FWLR (Pt.684) 36 at 59-62, that a confessional statement that is a product of question and answer is not admissible and that such a scenario could reasonably be presumed from Exhibit A. Again, counsel maintained that prosecution has failed to establish nexus between the Appellant and the gun and the cartridges recovered from him. Counsel was of the view that the trial Court did not evaluate the evidence of all the prosecution witnesses to link the Appellant with the alleged offence save the confessional statement. He submitted that the prosecution having failed to prove the ingredient of the substantive offence of Armed Robbery, there was no way that the offence of conspiracy can be inferred. It was argued that there is no provision for the offence of Conspiracy in the Robbery and Firearms Act under which the Appellant was tried and convicted as only the substantive offence of Armed Robbery was provided for under Sections 1 (1) and 1 (2) (a) and (b) of the Act. He submitted that the requirement of proof beyond reasonable doubt has not been established by the prosecution and that the lower Court was in error in convicting the Appellant in the face of the numerous doubts in the prosecution’s case. The Court was urged to allow the appeal, quash the decision of the lower Court and discharge and acquit the Appellant.

On behalf of the Respondent, the learned Attorney General of Ogun State noted with the aid of Otti vs. The State (1991) 8 NWLR (Pt.207) 103 at 118, that for the prosecution to secure conviction for the offence of robbery he must prove (a) that the accused stole something; (b) that the thing stolen is in law capable of being stolen; (b) that the accused threatened to use violence immediately before or immediately after the time of stealing the thing; (d)… Learned Attorney General submitted that in finding the Appellant guilty, the learned trial Judge proceeded on correct principles of law and evaluated correctly the evidence led. He quoted long passages from the judgment of the lower Court to buttress how the lower Court evaluated Exhibit A and considered the defences available to the Appellant before finding the Appellant guilty as charged in the remaining two-count Information. He argued that there is no justification to interfere with or disturb the finding of the trial High Court as same is based on material evidence before it, citing and relying on Aremu & Anor vs. The State (1991) 7 NWLR (Pt.201) 1, at 16, Okonkwo & 4 Ors vs. Okonkwo & 5 Ors (2010) 4 NWLR (Pt.1213) 228 at 246. The Court was urged to dismiss the appeal as unmeritorious and affirm the decision of the lower Court.

By way of reply brief, learned counsel for the Appellant submitted that the lower Court’s decision was perverse as it shuts its eyes to many obvious inconsistencies and errors in the prosecution’s case. It was argued that the case of Aremu & Anor vs The State (supra) cited by the Respondent’s counsel has no bearing on the instant case. The other points raised in the reply brief amounts to rearguing the appeal, and I cannot review them here.

Resolution
In the resolution of this appeal, I will adopt the three issues formulated in the Appellant’s brief since he is the aggrieved party in the appeal. I will treat the first issue separately while the second and third issues, which appears to be repetition of one another, would be treated together.

Issue A
The complaint under this issue is the breach of the Appellant’s right to fair hearing, which is constitutional. The complaint basically is that the lower Court did not accord the parties equal treatment as the evidence led by the Appellant before the lower Court was not properly evaluated and considered, an omission which renders the judgment a nullity.

Fair hearing is one of the twin pillars of natural justice, expressed in Latin as audi alteram partem, the other pillar being nemo judex in causa sua , that one should not be a Judge in his own case. The principle of fair hearing has found constitutional expression in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).

It has been described as a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause. See Ariori & Ors vs. Elemo (1983) LPELR-552 (SC), Nwokocha vs. A.G. Imo State (2016) LPELR-40077 (SC). Fair hearing entails that parties are given equal opportunity to present their respective cases before their legal rights are determined by the Court. In INEC vs. Musa (2003) LPELR-24927 (SC), the Supreme Court, per Tobi, JSC, stated that:
“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principle.”
Fair hearing lies in the procedure followed by the Court in the determination of the case not in the correctness of the decision. In other words, in deciding whether a complaining party has been afforded fair hearing in a matter or not, the determining factor shall be the procedure adopted by the Court in arriving at its decision. Where the Court followed procedural due process during the trial and determination of a case, the kite of fair hearing against the decision will not fly, even if the decision is found to be wrong by the Appellate Court.

The grouse of the Appellant is that his evidence was not considered by the lower Court, especially as to the circumstances of making the confessional statement. He also cited the lower Court’s reliance on Exhibits B, C and D without forensic examination, as constituting denial of fair hearing to the Appellant. A perusal of the Record of Appeal reveals the following:
(1) Upon arraignment before the lower Court, the four-count charge on the Information preferred against the Appellant were read and explained to him in Yoruba language. He pleaded not guilty to all the charges in the presence of counsel representing him.
(2) When all the four prosecution witnesses testified, the Respondent was in Court and was represented by counsel.
(3) Counsel to the Appellant was given ample opportunity to cross-examine all the prosecution witnesses and he did so extensively.
(4) When the Respondent applied to tender the confessional statement of the Appellant in evidence through PW3, who explained how the statement was obtained counsel representing the Appellant did not object. Exhibit A was therefore tendered and admitted without objection. In view of this, the necessity for trial within trial has been obviated.
(5) Counsel for the Appellant never cross-examined PW3 on how the confessional statement (Exhibit A) was obtained.
(6) The double barrel gun, live ammunition and the expended ammunition found on the Appellant were all tendered, admitted and marked as Exhibits B, C and D without objection. Again, PW3 was never cross-examined on Exhibits B, C and D when Appellant’s counsel was afforded the opportunity to do so. See page 34 of the Record.
(7) At the close of the prosecution’s case, the Appellant was given the opportunity to defend himself. He testified alone for himself and was cross-examined.
(8) Learned counsel for the Appellant was given adequate opportunity to address the Court before the lower Court wrote and delivered its judgment.

It is glaring that the above revelations from the Record of Appeal point to the fact that the Appellant was given the opportunity to be heard at all stages of the trial without any hindrance; from arraignment to delivery of judgment, the same opportunity that was accorded the Respondent. All the legal rules formulated to ensure that justice is done has been duly followed in the trial of the Appellant. The Appellant was never denied any right due to him throughout the trial. The confessional statement (Exhibit A) and the viva voce evidence of the Appellant were duly considered by the lower Court alongside the other evidence adduced by the Respondent before the Appellant was found guilty and convicted. The fact that the lower Court attached weight to the confessional statement and refused to believe the evidence of the Appellant cannot amount to denial of fair hearing, even if the lower Court is later found to be wrong in its assessment of the evidence. Learned counsel for the Appellant seems to have further extended the frontiers of the misconception and abuse of the fair hearing principle, a browbeaten concept by many a litigant with bad cases, when he equated assessment and evaluation of evidence or the lack of it, with denial of fair hearing. It appears the abuse of the fair hearing principle by litigants has continued unabated despite the admonition of the Supreme Court over the use of such lame and lazy excuses. In Orugbo & Anor vs. Bulara Una & Ors (2002) 9-10 S.C. 61; (2002) LPELR-2778 (SC), Tobi, JSC, said:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court.”
Six years later, the same cerebral law lord, Niki Tobi, JSC (of blessed memory), continued his admonitions to litigants on their wrong use of the fair hearing principle, in the case of Adebayo vs. Attorney General, Ogun State (2008) LPELR-80 (SC), thus:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
The two concepts of fair hearing on one hand, and assessment and evaluation of evidence, on the other, which were confused by the Appellant’s counsel, are two distinct concepts and deal with different factual and legal situations. Against the backdrop of my legal analysis supra, I resolve the first issue against the Appellant by holding that the Appellant’s right to fair hearing has not been breached in any way by the lower Court.

Issues B and C
These two issues jointly pertain to the question of proof of the charge against the Appellant beyond reasonable doubt and the weight attached to the evidence adduced before the lower Court. It was argued for the Appellant that there was no admissible evidence before the lower Court upon which the Court would rely to convict the Appellant as there were several doubts in the prosecution’s evidence. In short, the two issues interrogate the quality of the prosecution’s evidence and the lower Court’s reliance on exhibit A to convict the Appellant.

Armed robbery is defined as the illegal taking of property from the person of another by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See Agboola vs. The State (2013) LPELR-20652 (SC). Simply put, Armed Robbery is stealing with violence or threat of violence, or stealing while armed. See Mohammed vs. The State (2020) LPELR-52451 (SC) and Smart vs The State (2016) LPELR-40728 (SC). The offence of armed robbery is committed when at the time of commission of the robbery the accused is proved to be armed with offensive weapon. The requirements for establishing the offence of Armed Robbery beyond reasonable doubt as settled in a long line of decided authorities are: 1. That there was a robbery or series of robberies. 2. That the robbery or each robbery was an armed robbery. 3. That the accused person or defendant was the armed robber or one of the armed robbers who took part in the robbery. These requirements or ingredients must be established conjunctively by the prosecution beyond reasonable doubt. See Emeka vs. The State (2014) LPELR-23020 (SC), Sanmi vs. The State (2019) LPELR-47418 (SC); Eze vs. FRN (2017) LPELR-42097 (SC), Adekoya vs. The State (2017) LPELR- 41564 and Aleke vs. C.O.P. (2020) LPELR-52447(SC).

The law is settled that there are various ways of proving the guilt of an accused person standing trial for an offence. It can be proved by: (a) Confessional statement; (b) Evidence of eye witness(es) of the crime; (c) Circumstantial evidence. See Agboola vs The State (supra), Igbikis vs. The State (2017) LPELR-41667, Chukwu vs. The State (2021) LPELR-55201 (SC), Segun vs. The State (2021) LPELR-56603 (SC) and Aliyu vs The State (2021) LPELR-55002 (SC).

Under our criminal law jurisprudence, this duty rest squarely on the prosecution as the accused person enjoys the presumption of innocence and is therefore not required to prove his innocence. 

There is no doubt that the lower Court relied on the confessional statement of the Appellant and the eye witness account of PW1 and PW2 to find the Appellant guilty. PW1 and PW2 both testified that while they were in the shop of PW1 as she was preparing to close around 7.00pm on 23/10/2011, the Appellant and another person now at large entered the shop and requested to buy table water. As PW1 was opening the refrigerator to give them the water, one of them pulled out a gun and forcefully tried to remove her gold neck chain. She begged him to allow her remove the chain and handed over to him. He opened the drawers and carted the proceeds of the days sales and her mobile phone. The Appellant also pulled out a gun and ordered her son, PW2, to kneel down. At a point, PW2 summoned courage and attempted to collect the gun from the Appellant when he realized that the gun failed to fire. A struggle ensued and PW1 joined by holding the Appellant by his blue jeans trousers and grabbed his testicles and squeezed them. The other person ran out and escaped while the Appellant was demobilized and arrested. These pieces of evidence were not shaken under cross-examination and they remained as solid as rock. It is therefore wrong for the Appellant’s counsel to submit, in the face of this uncontroverted and solid evidence, that the prosecution has not led admissible evidence in proof of the charge. 

The evidence of PW1 and PW2 who are not only eye witnesses, but victims of the robbery, has clearly established beyond reasonable doubt that a robbery occurred in the shop of PW1 located at Idiroko Road, Paplo Area, Atan, Ota, Ogun State around 7.00pm on 23/10/2011. Their evidence also established beyond reasonable doubt that the robbery was armed robbery as the robbers were armed with guns and ammunitions as evidenced by Exhibits B, C and D, tendered and admitted without objection. PW1 and PW2 not only identified the Appellant as one of the armed robbers but they were the very persons who engaged him and arrested him when his gun ‘disappointed’ him. The issue of identification of the Appellant does not arise at all in this case as the Appellant was arrested at the time of the commission of the offence, right there at the locus criminis. 

Learned counsel for the Appellant also argued that the testimonies of PW1 and PW2 were not rich enough to place the offence on the shoulders of the Appellant. Our criminal law did not provide that prosecution’s evidence must be rich enough before it can prove the guilt of a person accused of the commission of crime, rather, it only requires that the quality of the evidence must establish the guilt of the defendant beyond reasonable doubt.

Aside the evidence of PW1 and PW2, the lower Court also relied on Exhibit A in finding the Appellant guilty. Exhibit A is the confessional statement of the defendant/accused person made at the State Criminal Investigation Department, Elewaran, Abeokuta on 24/10/2011, the day following the night of the robbery and the arrest of the Appellant. Before tendering the said Exhibit A in evidence, PW3, Inspector Joseph Uzuegbo, told the Court that he obtained the statement of the Appellant under words of caution and upon realizing that the statement was confessional in nature, took the Appellant to a Superior Police Officer, ASP Ndu Demian, before whom the Appellant confirmed the statement and signed while ASP Demian endorsed same. In that Exhibit A, the Appellant gave his name, address, the name of the Primary School he attended, the name of his father, the fact that he was sent to learn motorcycle repairs at Agege, Lagos by his father and the fact that his father bought him a motorcycle after he concluded his four years apprenticeship in motorcycle repairs, which he used for commercial purpose. He admitted committing the offences with which he was charged and gave the names of his accomplices with whom they conspired to rob at Atan Ota as Taofeek and Gbenga, whose surnames he does not know, neither does he know what they do for a living, but they reside in Ota. He stated that it was Gbenga that brought the three double barrel guns and the live cartridges. On getting to the shop of PW1, they ordered the people there to lie down but as they were charging them the people engaged the Appellant and his accomplices in a fight. While Gbenga fired his gun and escaped, the Appellant’s gun failed to function. The Appellant confirmed in Exhibit A that Exhibits B, C and D were found on him. In his evidence in defence of the charges against him, the Appellant retracted the extra-judicial statement he earlier made in Exhibit A. He told the lower Court that as a commercial motorcyclist he carried two passengers on the day in question to Atan from Ota. On getting to Atan, the passengers robbed him of his motorcycle at gun point and ran away. Neighbours around however thought that he was one of the robbers that robbed at the shop of PW1, so they arrested him. He denied knowledge of Exhibits B, C and D. Testifying under cross-examination, the Appellant admitted making statement to the Police but that he only stated his name, his address and his occupation in the statement and thumb printed, and that in the course of giving his statement, three other Policemen were beating him. He denied knowing Taofeek and Gbenga. Appellant’s counsel urged the Court to hold that the confessional statement did not scale the hurdle of admissibility. Let me reiterate that Exhibit A was admitted without objection on any ground whatsoever and so there was no hurdle on the way to its admissibility which needs be crossed. To retract simply means to deny, to withdraw, to take or draw back, to recant or disavow. Retraction means to say that something you have said earlier is not true or correct or that you did not mean it. See the Online Free Dictionary by Farlex. Exhibit A was made on 24/10/2011. It was tendered in evidence on 25/10/2017. No objection was taken to its admissibility on the ground either that it was not made by the Appellant or that it was obtained under duress. The law on the weight to be attached to a retracted confession has been well settled. Where a statement is subsequently retracted, after it had been admitted in evidence and forming part of the prosecution’s case, the Court is bound to consider its probative value viz-a-viz the retraction. The retraction only affects the weight to be attached to the confessional statement and not its admissibility, which in this case was not opposed in the first place. See Aliyu vs The State (2021) LPELR-55002 (SC), Mohammed vs The State (2019) LPELR-46420 (SC) and Adekoya vs. The State (2012) LPELR-7815 (SC). In order to determine the weight to be attached to retracted confessional statement, a trial Court must test the truthfulness and veracity of the confessional statement by subjecting the statement to the six-way test which was outlined by the Apex Court in a number of cases. The Court would consider whether: a. There is anything outside that confessional statement to show that it is true; b. It is corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence; e. The accused person’s confession is possible; f. The confession is consistent with the other facts ascertained and proved at the trial. See Alao vs. The State (2019) LPELR-47856 (SC), per Okoro, JSC. 

The lower Court was conscious of the need for the six-way test and expressly quoted and applied it before acting on Exhibit A. At pages 15-17 of his judgment contained at pages 58-60 of the Record of Appeal, the learned trial Judge considered the contents of Exhibit A along with the evidence of PW1, PW2 and PW4 before concluding, rightly in my view, that the prosecution had established its case beyond reasonable doubt. In stating how he was arrested, the Appellant stated in Exhibit A as follows:

“When we were searching the people, they suddenly engaged us in a fight. Gbenga fired his own gun but my gun failed me. Gbenga finished his cartridges and ran away. Taofeek also ran away and I was caught. When I wanted to run the two men, who were in the shop at the time we came, were the ones who held me and took away my gun… On Sunday, 23/10/11 at about 4pm, myself, Oluwambe Adeyemi, Taofeek and Gbenga left Ota for Atan Ota to rob. On getting to Atan Ota, we waited at the junction. I was the one who carried them on a motorcycle. When we got to Atan it was not yet dark, therefore, we waited at the junction till it was about 7.45pm. When it was dark, myself, Oluwambe Adeyemi, Taofeek and Gbenga went into one woman’s shop to rob her. I was having a double barrel gun with me and Taofeek and Gbenga had their own too. It was Gbenga who brought the three guns and the live cartridges. On getting to the woman’s shop, we pretended as if we wanted to buy bottled water and we brought out our guns which we concealed under our trousers.”

The evidence of PW1 and PW2 was that the Appellant and one other person accosted them in their shop pretending to be customers. Suddenly they both pulled out guns, robbed them of money and other valuables before PW2 summoned courage and attacked the Appellant and was joined by PW1. They overpowered him and arrested him. PW4, a member of Special Anti-Robbery Squad told the lower Court that upon receiving a call that some hoodlums were attacking a Supermarket, they went there and saw two of the hoodlums escaping into the bush while the Appellant had been arrested.

Putting these pieces of evidence together vis-à-vis the confessional statement of the Appellant, the lower Court came to the conclusion that the evidence of PW1 and PW2 corroborated the contents of the confessional statement as to the arrest of the Appellant at the locus criminis, the possession of the double barrel gun recovered from him, the fact that his accomplices who escaped also have guns with them. The lower Court summed up that the confession is direct and positive and that the Appellant had the opportunity to commit the offences. This finding, having been supported by the evidence on record, is unassailable.

The law is settled that an accused person can be convicted solely on his retracted confessional statement if the Court is satisfied that the accused person made the statement and there are circumstances which give credibility to the contents of the confession, as found by the lower Court in the instant case on appeal. Speaking about the strength and weight of confessional statement in a criminal trial in the case of Azabada vs. The State (2014) LPELR-23017 (SC), Onnoghen, JSC (as he then was, now CJN Rtd) postulated thus:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts which have been proved. Confession in criminal procedure is the strongest evidence of guilt on the act of an accused person. It is stronger than the evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof.”

In the same case, Rhodes-Vivour, JSC, stated:
“The well laid down position of the law is that once there is no objection to the tendering of a confessional statement, such a statement can be relied on solely to convict the maker, since a confessional statement is the best evidence that the accused person committed the offence for which he is charged.”
Therefore, the conviction of the Appellant on his retracted confessional statement, which was tendered and admitted in evidence without objection, and has been properly considered by the lower Court alongside other ascertained facts, is properly grounded in law.

That apart, outside of Exhibit A, the Appellant’s confessional statement, the evidence of PW1 and PW2, who are eye witnesses to the commission of the crime, is cogent and credible enough to have established, and did in fact establish beyond reasonable doubt the offences for which the Appellant was charged. In the result, I resolve issues B and C against the Appellant and in favour of the Respondent.

Having resolved the three issues formulated by the Appellant against him, I hereby dismiss this appeal for lacking in merit. I affirm the judgment of the lower Court in charge no. HCT/26R/2015 in which the Appellant was convicted and sentenced to death.

FOLASADE AYODEJI OJO, J.C.A.: I was opportuned to read in draft, the judgment just delivered by my learned brother, MUHAMMAD IBRAHIM SIRAJO, JCA and I agree with him that the appeal lacks merit and should be dismissed.

The constitutional provision on the presumption of innocence of an Accused Person provided for under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is sacrosanct. The law is settled that it is not the duty of an accused to prove his innocence. The burden is always on the Prosecution to prove the guilt of the accused, it does not shift. The Prosecution must proof the guilt of the Accused Person beyond reasonable doubt. The moment the Prosecution discharges this burden, the presumption of innocence on the part of the accused is rendered useless and pins him down as the owner of the mens rea or the actus reus or both. See STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727) 484, COMMISSIONER OF POLICE VS. AMUTA (2017) 4 NWLR (PT. 1556)379, ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306)539 AND DIBIE VS. STATE (2007) 9 NWLR (PT. 1038) 30. In the instant appeal, the Prosecution (now Respondent) proved the guilt of the Appellant beyond reasonable doubt relying on evidence of eye witnesses and the confession contained in his extra-judicial statement tendered and admitted in evidence as Exhibit A. At that point, the presumption of innocence which enured in his favour was rebutted. However, while testifying in his defence, the Appellant retracted the confession contained in Exhibit A. He testified that he was a motorcyclist. That he carried two passengers who in turn robbed him of his motorcycle and ran away. In other words, his defence at trial is that he was also a victim of armed robbery and not an armed robber.

It is trite that if an Accused Person retracts or resiles from his confessional statement, the law casts an onerous duty on him to explain to the Court as part of his defence, the reason for the inconsistency. In such circumstances, if he is to be believed, the Accused Person has to lead evidence to establish that the confession contained in his extra-judicial statement could not be correct. The explanation should come from him without prompting from the prosecution. In other words, an Accused Person who wishes to impeach his earlier extra-judicial statement must establish that the earlier statement cannot be true by showing any of the following four events or instances:
(a) that he was not correctly recorded: or
(b) that he, in fact did not make the statement; or
(c) that he was unsettled in mind at the time he made the statement; or
(d) that he was induced to make the statement.
See MUSA VS. STATE (2018) 13 NWLR (PT. 1636) 307, STATE VS. GWANGWAN (2015) 13 NWLR (PT. 1477) 600, ADISA VS. STATE (2015) 4 NWLR (PT. 1450) 475, OKOH VS. STATE (2014) 8 NWLR (PTO 1410) 502, NGUMA VS. ATTORNEY-GENERAL, IMO STATE (2014) 7 NWLR (PT. 1405) 119, HASSAN VS. STATE (2001) 15 NWLR (PT. 735) 184 AND ONWUMERE VS STATE (1991) 4 NWLR (PT. 1450) 475.
The Appellant did not explain the inconsistency in the confession contained in Exhibit A and his oral evidence at his trial. It was therefore wrong for him to complain on appeal as he has done that his right to fair hearing was breached by the trial Court as it is clear that he did not discharge the duty cast on him by law. The trial Court rightly refused to attach weight to his oral evidence.

For the above reason and the fuller ones ably adumbrated in the lead judgment, I too affirm the judgment of the trial Court.

ABBA BELLO MOHAMMED, J.C.A.: In this appeal, the Appellant made two essential contentions against his conviction by the trial Court for the offences of conspiracy to commit armed robbery and armed robbery. The first is that he was not granted fair hearing by the trial Court because his evidence was not considered by the trial Court, especially the circumstance under which his confessional statement was taken. 

It has been long settled that the principle of fair hearing as encapsulated in the natural justice principles of audi alteram partem and nemo judex in causa sua, and enshrined in Section 36 of the 1999 Constitution only requires that parties be given equal opportunities to be heard. As rightly and elaborately observed in the lead judgment and as borne by the record of this appeal, the Appellant was granted opportunity to be heard at every stage of the proceedings by the trial Court. A party, like the Appellant, who had been duly granted the opportunity to be heard and had failed to utilize or had improperly utilized same, cannot be heard to complain of lack of fair hearing. 

As for the Appellant’s complaint over the circumstance in which his confessional statement was taken, the printed record shows that the Appellant neither raised objection when his confessional statement was tendered and admitted by the trial Court nor cross-examined PW3 through whom the confessional statement was tendered as to how the said statement was taken. Thus, the Appellant who failed to object to the confessional statement and to cross-examine PW3 as to how it was taken cannot complain as to lack of fair hearing when the Court evaluates the said statement and relies upon same in taking its decision.
It is settled law that an objection to a confessional statement must be timeously raised at the point when the statement is sought to be tendered in evidence and not after it has been admitted in evidence. See TOPE v STATE (2019) LPELR-47837(SC), per Okoro, JSC at pages 19 – 20, paras. C – A, BASSEY v STATE (2019) LPELR-46910(SC) per Peter-Odili, JSC at pages 28 – 31, paras. F – A and OSENI v STATE (2012) LPELR-7833(SC), per Muhammad, JSC at pages 37 – 38t paras. B – E. Indeed, in TOPE v STATE (supra), the Supreme Court restated the legal effect of failure to timeously raise objection to the voluntariness of confessional statement when His Lordship Okoro, JSC held:
“It is trite law that in a criminal trial, where an accused person wishes to attack the voluntariness of a confessional statement, he must raise an objection to the admission of that statement at the point where it is sought to be tendered. Where he fails to object to the admissibility of the statement when it is sought to be tendered, it would be taken that he conceded that he made the statement voluntarily and the content thereof represents what he told the recorder of the statement.”

An attempt to retract a confessional statement whether before or after it was tendered does not affect its admissibility. It only prompts the trial Court to test its truth against other evidence adduced at trial using the now trite 6 way test for determining the weight to be attached to confessional statements. See TOBI v STATE (2019) LPELR-46537(SC), per Sanusi, JSC at pages 17 – 20, paras. F – A, SHODIYA v STATE (2013) LPELR-20717(SC), per Muhammad, JSC at pages 26 – 27, paras. B – C; and LASISI v STATE (2013) LPELR-20183(SC), per Ariwoola, JSC at pages 51 – 52, paras. F – C.
In the instant appeal, the printed record shows that the learned trial judge had duly evaluated the confessional statement of the Appellant and found that the evidence of PW1 and PW2, who are the victims and eye witnesses to the robbery was consistent with the contents of the confessional statement. The trial court was therefore entitled to rely on those confessional statements in convicting the Appellant even if retracted, since the trial court was satisfied as to its truth. See OKOH v STATE (2008) LPELR-8352(CA), per Lokulo-Sodipe, JCA at pages 29 – 30, para. E and UMAR v STATE (2015) LPELR-25960(CA), per Wambai, JCA at pages 17 – 18, para. B.

On the Appellant’s second contention relating to the proof of the charge against him, the law squarely places the burden of proof on the prosecution: Section 135(1) and (2) of the Evidence Act, 2011 and FRN v UMEH & ANOR (2019) LPELR-46801(SC), per Muhammad, JSC at pages 7 – 8, paras. E – B, EZEANI v FRN (2019) LPELR-46800(SC), per Okoro, JSC at pages 20 – 21, para. A AND ABOKOKUYANRO v STATE (2016) LPELR-40107(SC), per Ogunbiyi, JSC at pages 8 -9, paras. E – D. This burden, the prosecution can discharge through any, or combination of, or all of the three ways of establishing the guilt of a defendant, namely – (i) by reliance on a voluntary confessional statement of the Defendant; (ii) by direct evidence of eye witnesses to the crime; or (iii) through circumstantial evidence. See SAMINU v STATE (2019) LPELR-47622(SC), per Ariwoola, JSC at page 14, paras. A – E, BASSEY v STATE (2019) LPELR-46910 (SC), per Sanusi, JSC at pages 9 – 10, para. C AND ONITILO v THE STATE (2017) LPELR-42576(SC), per Kekere-Ekun, JSC at pages 16 – 17, paras. B – C.

The record of this appeal shows that the Prosecution had relied on the Appellant’s confessional statement and on the evidence of PW1 and PW2, who are victims and eye witnesses to the robbery all of which the trial Court had evaluated in taking its decision. It is trite that the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses.

See EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C and OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6 – 7, para. E. An appellate Court will therefore, not interfere with findings of fact by a trial Court unless it is shown that the trial Court failed to properly evaluate the evidence before it or its finding thereon is perverse. See BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13 – 17, para. A and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14 – 15, para. E. It is therefore the Appellant herein, who had the burden of establishing the impropriety or perverseness of the trial Court’s decision. See KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page 30, para. D and AMADI v A.G. IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B. The Appellant has failed to establish that the decision of the trial Court is perverse to the evidence led before it or has occasioned any miscarriage of justice.

As rightly observed in the lead judgment of my learned brother MUHAMMAD IBRAHIM SIRAJO, JCA, the evidence of PW1 and PW2, the victims and eye witnesses to the robbery incident was enough to sustain the Appellant’s conviction for the offences for which he was charged, independent of the Appellant’s confession. With the evidence of those victims/eye witnesses which the trial Court also found to have supported the Appellant’s confessional statement, the Prosecution’s case against the Appellant was evidently well established on those two modes of proof.

It is in consequence of this and the more detailed reasons ably stated in the lead judgment of my learned brother SIRAJO, JCA that I concur in finding this appeal devoid of merit. Accordingly, I dismiss same and affirm the judgment of the trial Court.

Appearances:

J.D. Oloyede For Appellant(s)

B.A. Adebayo, DPP, Ogun State, with him, O.A. Sonoiki, ADPP and A.O. Akapo, PSC For Respondent(s)