OJEKUNLE v. STATE (2021)

OJEKUNLE v. STATE

(2021)LCN/15534(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, June 02, 2021

CA/IB/229C/2017

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

RIDWAN OJEKUNLE APPELANT(S)

And

THE STATE RESPONDENT(S)

 

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court, Ibadan Judicial Division in SUIT NO. I/81C/2015 BETWEEN THE STATE AND (1) RIDWAN OJEKUNLE (2) SAHEED ADESINA delivered on the 24th of March, 2017.

The Appellant and one Saheed Adesina stood trial before the lower Court on a two count charge which read as follows:
COUNT I
That you Ridwan Ojekunle, Saheed Adesina and others now at large on 2nd February, 2015 at Adeyemo Layout Odo-Oba, Ibadan within the Ibadan Judicial Division did conspire to commit felony to wit: armed robbery contrary to and punishable under Section 6 (b) of Robbery and Firearms Special Provisions Act, Cap R11, Laws of the Federation of Nigeria, 2004.
COUNT II
​That you, RIDWAN OJEKUNLE, SAHEED ADESINA and others now at large on 2nd February, 2015 at Adeyemo Layout, Odo-Oba, Ibadan within the Ibadan Judicial Division while armed with gun and cutlasses did rob one Taibat Adunni Orobiyi of her belongings, Itel Phone valued at N4,500.00, Infinix Android valued at N45,000.00, two Nokia Phones valued at N15,000.00, 3 Wrist watches valued at N15,000.00 and the sum of N260,000.00 and thereby committed an offence contrary to and punishable under Section 2 (a) and (b) of Robbery and Firearms Special Provisions Act Cap R11 Laws of the Federation of Nigeria, 2004.

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 filed a notice of Appeal on 4th of May 2017. See pages 119 to 120 of the record. The Notice of Appeal was amended pursuant to an order of this Court. The Amended Notice of Appeal filed on 1st March, 2020 was deemed as properly filed on the 29th of April, 2020. The record of appeal was transmitted to this Court on the 15th of June, 2017. Parties filed and exchanged briefs of Argument in accordance with the extant Rules of this Court.

The Appellant’s brief of Argument settled by Chukwudi Maduka filed on 11th March, 2020, was deemed properly filed on 29th of April, 2020. The Respondent’s Brief of Argument settled by A.T. Olawale, Deputy Director, Public Prosecution, Oyo State Ministry of Justice filed on 5th June, 2020 was deemed properly filed on 15th September, 2020.

Briefly, the facts of the case presented by the prosecution at the trial is that the Appellant conspired with his co-accused and others at large to rob one Taibat Adunni Orobiyi. The Appellant who was not physically present during the robbery was arrested during investigation. At the time of his arrest some of the items stolen were recovered from his house.

​At the hearing of this appeal, counsel on both sides adopted and relied on their respective briefs of argument. Learned counsel to the Appellant in his brief of argument distilled a sole issue for determination to wit:
“Whether the evidence adduced before the trial Court was not insufficient to secure the conviction of the Appellant for the offence of armed robbery; particular regard being led to the involuntary confessional statement attributed to the Appellant, documentary hearsay in Exhibit B, the hearsay evidence of PW1 and PW2 as well as the toy guns used in carrying out the alleged robbery.”

Learned counsel to the Respondent distilled the following six issues for determination:
1) Whether the learned trial Judge was right to have relied on the Appellant’s confessional statement, evidence led and exhibits tendered in convicting the Appellant (Grounds 1, 2, 4, 5 and 6 of the Grounds of Appeal).
2) Whether the learned trial Judge was right to have found that identification parade on the Appellant was not necessary in this case (Ground 7 of the Grounds of Appeal).
3) Whether evidence of PW1 and PW2 amounts to hearsay (Ground 4 and 5 of the Grounds of Appeal).
4) Whether the learned trial Judge was right to have found the alleged robbery was an armed robbery with particular reference to Exhibit A1 and A2 (Ground 8 of the Grounds of Appeal).
5) Whether the Appellant was properly arraigned before the lower Court. (Ground 3 of the Grounds of Appeal).
6) Whether the learned trial Judge was right to have concluded that the prosecution had established the case against the Appellant beyond reasonable doubt.
(Grounds 1 – 9 as contained in the Amended Notice of Appeal).

​I have carefully considered the issues formulated on behalf of parties and I am of the view that the sole issue distilled on behalf of the Appellant with some amendment will suffice. It is “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.”

It is the contention of learned counsel to the Appellant that the trial Judge erred when he relied on the confessional statement allegedly made by the Appellant to convict him despite his objection to its admissibility. He submitted a confessional statement will only be admissible if it is made freely and voluntarily and called in aid of his argument the cases of ADEKOYA VS. STATE (2012) LPELR – 7815 (SC) and RABIU VS. THE STATE (2010) LPELR – 4888 (CA).

He further relied on the cases of USUFU VS. THE STATE (2007) 1 NWLR (PT. 1020) 94; BELLO VS. STATE (2007) 10 NWLR (PT. 1043) 564 and BOZIN VS. STATE (1985) 2 NWLR (PT. 8) 465 on the list of essential ingredients to be proved to establish the offence of armed robbery.

On the confessional statement of the Appellant which was admitted in evidence at the trial as Exhibit C, learned counsel argued same was not made voluntarily and that the finding of the trial Judge that it was voluntarily made was perverse. He urged us to hold that the admission of the statement in evidence was wrongful and expunge it from the record.

Still on why Exhibit C should be expunged from the record, counsel argued that the contents of the statement was not interpreted to the Appellant in Yoruba language before he thumb printed it.

He 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 Cap C41 Laws of the Federation, 2004. He called in aid of his argument the cases of KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) 721 and UMUOLO VS. STATE (2003) 3 NWLR (PT. 808) 493 and urged us to hold that the arraignment of the Appellant was wrongful and set aside his conviction.

​Counsel argued further 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 the case of ODOGWU VS. STATE (2013) 14 NWLR (PT. 1373) 74 in support and urged us to disregard the evidence of PW1.

It is further the argument of counsel that the Appellant was not properly identified. He submitted 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 cases of NDIDI VS. THE STATE (2007) 13 NWLR (PT. 1052) 638 and EGBUJI VS. THE STATE (2014) LPELR – 24092 (CA) and urged us to hold that failure to properly identify the Appellant as one of those who participated in the crime is fatal to the case of the prosecution.

​He argued 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. He craved in aid of his submission the case of 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. He urged us to hold that the prosecution failed to prove that the robbery (if any) was armed robbery. He further urged us to hold that the prosecution failed to establish the guilt of the Appellant beyond reasonable doubt and set aside his conviction and sentence.

Learned counsel to the Respondent in the Respondent’s brief of Argument itemized the three methods of proving crime and listed the ingredients which must be proved to establish the offence of armed robbery. He placed reliance on the cases of NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) 170; ONYENYE VS. STATE (2012) 15 NWLR (PT. 1324) 586; OLATINWO VS. STATE (2013) 4 SCM 178; ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539; MARTINS VS. STATE (1992) 1 NWLR (PT. 481) 355 and OSUAGWU VS. STATE (2012) ISMP 170.

​On the confessional statement of the Appellant, learned counsel submitted its voluntariness was put to test in a trial within trial and after evaluating the evidence presented at the trial within trial, the trial Judge came to the conclusion that the statement was made voluntarily. He further urged us to hold that the identity of the Appellant was never in doubt as there was sufficient evidence before the trial Court to identify him.

On the submission of Appellant’s counsel that the evidence of PW1 and PW2 is hearsay evidence, counsel to the Respondent submitted and urged us to hold that PW1 gave comprehensive evidence of what happened to her on the day of the incident and that her evidence was not hearsay but an account of what happened to her.

He further submitted that PW2 who was an official witness gave evidence of what transpired while he was investigating the case. He urged us to also hold that the evidence of PW2 was not hearsay evidence. He placed reliance on the cases of OLAOYE VS. STATE (2018) LPELR – 43601 (SC); KAMILA VS. STATE (2018) LPELR – 43603 (SC) and ANYASODOR VS. THE STATE (2018) LPELR – 43720 (SC).

​He further referred us to the definition of “offensive weapon” in Section 11 of the Robbery and Firearms Special Provisions Act and the cases of SOWEMIMO VS. THE STATE (2012) 2 NWLR (PT. 1284); AMOSHIMA VS. THE STATE (2008) LPELR – 4369 (CA) 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.

He finally urged us to hold that the prosecution proved its case against the Appellant beyond reasonable doubt and dismiss the instant appeal.

The law is settled that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt. This burden never shifts. See FULANI VS. STATE (2019) 1 NWLR (PT 1658) 237; OKOH VS. STATE (2014) 8 NWLR (PT. 1410) 502; AJAYI VS. THE STATE (2013) 9 NWLR (PT. 1360) 589 and ALO VS. STATE (2015) 9 NWLR (PT. 1464) 238. See also Section 135 (1) of the Evidence Act 2011.

It must also be borne in mind that, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It also does not mean proof with mathematical certainty. A charge is proved beyond reasonable doubt when the prosecution has established all essential ingredients of the offence by adducing cogent, credible and compelling evidence that point irresistibly to the guilt of the accused. See STATE VS. BALOGUN (2018) 10 NWLR (PT. 1627) 201; HARUNA VS. THE STATE (2018) 11 NWLR (PT. 1631) 559; STATE VS. BUHARI (2019) 10 NWLR (PT. 1681) 583 and KOLADE VS. STATE (2017) 8 NWLR (PT. 1566) 60.

The law is settled that the essential ingredients to be proved to secure a conviction for the offence of armed robbery are as follows:
1. That there was indeed a robbery or series of robbery.
2. That the robbers were armed with dangerous weapons and
3. That the accused person was the robber or one of the robbers.
See AYINDE VS. STATE (2019) 12 NWLR (PT. 1687) 410; STATE VS. GBAHABO (2019) 14 NWLR (PT. 1693) 522; DONDOS VS. STATE (2021) LPELR – 53380 (SC) and DAWAI VS. STATE (2018) 5 NWLR (PT. 1613) 499.

In the instant appeal, the Appellant did not dispute the fact that there was a robbery. In other words, the fact that PW1 was robbed on 2nd of February, 2015, is not in dispute. What is contested is whether the robbers were armed and whether the Appellant participated in the robbery.

The law is that, to discharge the burden of proof placed on her in criminal cases, the prosecution may rely on any or a combination of the following:
a) Direct evidence of eye witness(es)
b) Circumstantial evidence.
c) The voluntary confessional statement of the accused.
See SIMEON VS. STATE (2018) 13 NWLR (PT. 1635) 128; TAIYE VS. STATE (2018) 17 NWLR (PT. 1647) 115; AKPAN VS. STATE (2016) 9 NWLR (PT. 1516) 110; MOHAMMED VS. STATE (2007)11 NWLT (PT. 1045) 303 and OGOGOVIE VS. STATE (2016) 12 NWLR (PT. 1527) 468.

The trial Court relied on the Appellant’s confessional statement which was admitted in evidence as Exhibit C to convict him. It is the contention of appellant’s counsel that Exhibit C has no evidential value and that the learned trial Judge erred when he relied on it to convict the Appellant. He submitted that a confessional statement is admissible only if it is made freely and voluntarily.

From the record transmitted to this Court, it is apparent that the confessional statement of the Appellant was admitted in evidence after the conduct of a trial within trial. The complaint of the Appellant in Grounds 1 and 2 of the Notice of Appeal centers on the Appellant’s confessional statement. The learned trial Judge ordered and conducted a trial within trial after the Appellant objected to its admissibility.

Section 29 (2) and (5) of the Evidence Act, 2011 provides as follows:
“29 (2)
If in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant it is represented to the Court that the confession was or have been obtained
a) By oppression of the person who made it; or
b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in the consequence.
The Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provision of this Section.
5) In this Section “oppression” includes torture, inhuman or degrading treatment and the use or threat of violence whether or not amount to torture”.
By the above, a Court is empowered to reject a confessional statement where the prosecution fails to prove to the Court beyond reasonable doubt that such confession was made in compliance with the provision of Section 29 (supra).

​At the trial within trial, one Sgt. Audu Lasisi testified as a sole witness for the prosecution. His evidence is that the Appellant’s statement was voluntarily made. He said the statement was recorded in an open statement room without intimidation, torture or threat. He mentioned the names of officers with him when the statement was recorded.

In answer to questions put to him under cross examination he insisted the Appellant made the statement freely and that no injury was inflicted on him in the course of making the statement.

In his testimony, at the trial within trial, the Appellant stated he was beaten with a pipe and hit with the butt of a gun. He said he was threatened that his teeth would be removed. He said he was forced to thumb print the statement.

​The burden is on the prosecution to prove beyond reasonable doubt that the Appellant made his confessional statement voluntarily. The sole witness for the prosecution who recorded the statement gave evidence of how the statement was recorded. He said no injury was inflicted on the Appellant in the course of the recording. He mentioned the names of other police officers who were present when the statement was made and that the recording was done in an open room.

The witness who was cross examined by the Appellant’s counsel was consistent on the point that the statement was made voluntarily. He was not cross examined on the state of the room where the statement was recorded and that the recording was done in the presence of named witnesses.

The Appellant who gave evidence that he was beaten with a pipe and the butt of a gun did not say who did. He said “they used pipe to beat me. They threatened to remove my teeth. Who the “they” are is unknown. To my mind, the prosecution proved that the statement was made voluntarily. The trial Court was right when it admitted it in evidence and I so hold.

Still on the statement, Exhibit C, learned counsel to the Appellant alleged that the statement which was recorded in English language was not interpreted to the Appellant in Yoruba language. He submitted that failure to interprete to the Appellant who is an illiterate was fatal and urged us to hold that the statement lacked evidential value.

​The law is settled that the question; whether a person is literate or illiterate is a matter to be proved by evidence. A person who asserts that he is illiterate has a duty to prove to the satisfaction of the Court the following:
i. The fact that he is illiterate and can only sign his name or make a thumbprint.
ii. That the document or documents he signed or thumb printed were not read to him and
iii. That he could not have signed if the document or documents was read to him.
See SUNDAY VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211; JOHN VS. STATE (2017) 16 NWLR (PT. 1591) 304; OTITOJU VS. GOVERNOR, ONDO STATE (1994) 4 NWLR (PT. 340) 518 and EDOKPAYI VS. OKE (1964) NMLR 53.

It is significant to note that the Appellant was represented by counsel at the trial. The issue of the Appellant being an illiterate was not raised at the trial Court. The Appellant testified as DW1 at the trial and his evidence is at pages 64 – 65 of the record. I shall for ease of reference reproduce same. It is as follows:
“Ridwan Ojekunle sworn on the Holy Koran and states in Yoruba. I live at Academy in Ibadan. I am before the Court. I know nothing about this incident. I was brushing my teeth when policemen came and arrested me and put me in a vehicle. At the station they asked for my accomplices. I denied committing any robbery. They beat me with different things. They threatened to kill me.
We were taken to SARS. We were six that were arrested. Four were released. I did not conspire with him to commit any offence. The police searched my house on the 2nd day after my arrest. They took away my speakers, DVD, phone, chairs. My people could not get money to bail me. My TV, phone, chairs were returned to my people.
I used to consult Baba Osanyin for people. It is people that have problems that come to me. Baba Osanyin speaks to me. I don’t know about conspiracy.”

​I have gone through the entire printed record and cannot find any evidence to prove or suggest that the Appellant is illiterate. The fact that he gave his testimony at his trial in Yoruba language is not proof that he is illiterate. In Nigeria, English language is a second language for many and when it comes to serious business such as giving evidence in Court they prefer to speak their native dialect in which they can better express themselves. The fact that a witness gave his evidence in his native dialect without more is not conclusive that he is illiterate or suggest that he is. There is no evidence on record to support the submission of counsel that the Appellant is illiterate. The law is trite that an address of counsel does not have the force of evidence and cannot be substituted for it.
See DAHIRU VS. THE STATE (2018) 14 NWLR (PT. 1640) 567; OBIDIKE VS. STATE (2014) 10 NWLR (PT. 1414) 53; CHIOKWE VS. STATE (2013) 5 NWLR (PT. 1347) 205 and AGUGUA VS. STATE (2017) 10 NWLR (PT. 1573) 254.
There is no pedestal on which submission of counsel that the Appellant is an illiterate can stand. There is no evidence to prove it. Moreover, it is a fresh issue for which he must seek leave to raise. See MOHAMMED VS. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (PT. 1636) 229; SALIU VS. STATE (2018) 10 NWLR (PT. 1627) 251; USMAN VS. THE STATE (2014) 12 NWLR (PT. 1421) 207 and OBIAKOR VS. STATE (2002) 10 NWLR (PT. 776) 612.

My conclusion on this point is that, whichever way one looks at it, there is no merit in the complaint that the confessional statement made by the Appellant should be expunged because, same was not read over to the Appellant who is an illiterate in Yoruba language. It must therefore fail and I so hold.

If it is further the complaint of the Appellant that, the arraignment of the Appellant was not proper. It is trite that a proper arraignment is a fundamental requirement of a valid trial. 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; FEDERAL REPUBLIC OF NIGERIA VS. OGUNROMBI (2019) 8 NWLR (PT. 1675) 538; OLANREWAJU VS. STATE (2020) 11 NWLR (PT. 1734) 1 and IMAM VS. FEDERAL REPUBLIC OF NIGERIA (2019) 8 NWLR (PT. 1673) 197.

​What constitutes a valid arraignment is provided for in Section 215 of the Criminal Procedure Act which provides as follows:
“The person to be tried therewith upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the Court by the Registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto unless where the person is entitled to service of a copy of the information he objects to and the Court finds that he has not been duly served therewith.”
The following have been held to be the essential requirements of a valid arraignment pursuant to Section 215 of the Criminal Procedure Act.
1) The accused person shall be placed before the Court unfettered unless the Court is satisfied that for safety concerns he should be fettered.
2) The charge shall be read and explained to the accused person in the language he understands to the satisfaction of the Court by the registrar or any other officer of the Court.
3) The accused person shall then be called upon to plead to each charge.
4) The plea of the accused person shall be instantly recorded.
See AKINLOLU VS. THE STATE (2019) 5 NWLR (PT. 1665) 343; ADEWUNMI VS. STATE (2016) 10 NWLR (PT. 1521) 614 and DAUDA VS. FEDERAL REPUBLIC OF NIGERIA (2017) 4 NWLR (PT. 1555) 187.

​The Appellant and his co-accused were arraigned before the lower Court on 14th of December, 2015. The proceedings for that day is at page 21 of the record and it is as follows:
“The two accused persons are present.
A.T. Olawale for the State
Lanre Raji for the two accused persons.
Note: The charge is read over and explained to each accused person in Yoruba language. Each accused pleads as follows:
Count 1:- 1st accused – I am not guilty.
2nd accused – I am not guilty.
Count 2:- 1st accused – I am not guilty.
2nd accused – I am not guilty.
Case adjourned to 16/2/2016 for hearing
SIGNED
E. ESAN
JUDGE
14/12/2015”

It is clear from the above that the charge was read to the Appellant and explained to him and his co-accused in Yoruba language. The complaint of the Appellant however is that, the trial Court failed to satisfy the requirement “that the charge was read to the Accused person to the satisfaction of the Court”.

Learned counsel to the Appellant in paragraph 4.26 of the appellant’s brief of Argument submitted thus:
“4.26 – In the instant case, the trial Court only complied with 2 out of the 3 requirements, thus, reading of the charge to the accused and explaining the charges to the accused in Yoruba language. Respectfully, the trial Court failed to satisfy the third requirement which was that, the charge was explained to him to the satisfaction of the Court.”

The question now is whether the failure of the trial Court to record that the charge was read to the accused to the satisfaction of the Court constitute a defect in his arraignment. It is my view that, the failure to record that the charge was read and explained to the accused/Appellant to the satisfaction of the Court would not in the present circumstance affect the validity of the arraignment. It is on record that the charge was read and explained to the Appellant in the language he understood before his plea was taken.
To my mind, it can be safely presumed that the learned trial Judge was satisfied that he understood the charge before he took his plea. To hold otherwise would be impugning the integrity of the trial Judge and I so hold.
In OKORO VS. THE STATE (1998) 14 NWLR (PT. 584) 181 AT 214 PARAS D-G, the Supreme Court per WALI JSC held as follows:
“The provision is to intimate the accused with the contents of the charge he is to stand trial for. The Court’s proceeding of 26-5-86 clearly shows that the charge was read, interpreted and explained to the Appellant in Yoruba, the language he understood. It was after the learned trial Judge was satisfied that he fully understood the charge that he recorded his plea of not guilty.
The provision of the law should not be stretched to a point of absurdity by reading into it that the Judge must record that the charge was explained to the accused to his satisfaction before taking his plea.
It will be impeaching the integrity of the Judge to do that, as no Judge will take the plea of an accused if he is not satisfied that the charge was read and explained to the accused to his satisfaction. It is my view that the principles laid down in both KAJUBO VS. THE STATE and EREKANURE VS. THE STATE (supra) have been substantially, if not fully, complied with resulting in no miscarriage of justice.
There was no contravention of or derogation from Section 33 (6)(a) of the Constitution of Nigeria, 1979 as the charge was read, interpreted and explained to the Appellant in Yoruba, the language he said he understood.”
The circumstances of the above case are the same as the instant appeal. His lordship WALI, JSC has said it all. The complaint of Appellant’s counsel who conceded that the charge was read and explained to the Appellant in the language he understood is of no moment. The provisions of Section 36 (6)(a) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), and Section 215 of the Criminal Procedure Act, have been substantially complied with by the trial Judge. The complaint of the Appellant that the trial Judge failed to record that the charge was read to the satisfaction of the Court is grossly misconceived and unmeritorious and I so hold.

​The Appellant raised a further complaint that the evidence of PW1 and PW2 constitute hearsay evidence. Section 37 of the Evidence Act 2011 provides as follows:
“Hearsay means a statement –
(a) Oral or written made otherwise than by a witness in a proceeding; or
(b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
A piece of evidence would be hearsay evidence where it is given by a person other than the one who witnessed the event narrated. The hearsay rule is to protect an accused person from being convicted upon a testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. See SAMAILA VS. STATE (2021) 4 NWLR (PT. 1767) 528; SIMEON VS. STATE (2018) 13 NWLR (PT. 1635) 128; UTTEH VS. STATE (1992) 2 NWLR (PT. 223) 257; FEDERAL REPUBLIC OF NIGERIA VS. USMAN (2012) 8 NWLR (PT. 1301) 141 and AROGUNDADE VS. STATE (2009) 6 NWLR (PT. 1136) 165.
It is further the law that the purpose for which a statement is made to the witness determines its admissibility. The evidence of the witness would be hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. The evidence is however, not hearsay and admissible when it is not made to establish the truth of the statement but the fact that it was said.

​The part of the evidence of PW1 complained about and which Appellant’s counsel say is hearsay evidence is that, on how the Appellant was arrested. Appellant’s counsel submitted at paragraph 4.33 of the Appellant’s brief as follows:
“From the above, PW1 did not witness the arrest of the Appellant in his home but was able to testify as to the items allegedly recovered from the Appellant’s home. PW1 apparently derived this information from other sources. Interestingly, the information could not have been derived from PW2 who was not even part of the team that arrested the Appellant. The information was derived from other sources who were not called as witnesses.”

​I have gone through the judgment of the learned trial Judge at pages 96 to 118 of the record. His lordship did not rely on the evidence of PW1 in making his finding and coming to the conclusion that the Appellant was part of the robbery and that the stolen items were recovered from his residence. PW2, the investigating police officer gave evidence that the gun used and the stolen items were recovered from the residence of the Appellant. The trial Judge found that the evidence of PW2 corroborated the confession of the Appellant and came to the conclusion that the Appellant participated in the armed robbery. The point, whether or not the evidence of PW1 on how the Appellant was arrested is hearsay evidence is of no moment and I so hold. The argument of Appellant’s counsel in this regard is discountenanced by me.

Learned counsel to the Appellant also made a heavy weather of the failure of the prosecution to call one Sergent Balogun Olumide as a witness at the trial. He argued that Sergent Balogun Olumide was a vital witness and that failure to call him as a witness was fatal to the case of the prosecution.

It is trite that a vital witness is one whose evidence is fundamental and essential in the determination of the case one way or the other. It is however the law 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. It is for the prosecution to determine the direction of its case and which witnesses to call to prove it. Once it discharges the burden to prove its case beyond reasonable doubt, it does not matter that a particular witness was not called to give evidence. See UZIM VS. STATE (2019) 14 (PT. 1693) 419; ADAMU VS. STATE (2019) 8 NWLR (PT. 1675) 478; AMADI VS. ATTORNEY GENERAL, IMO STATE (2017) 11 NWLR (PT. 1575) 92; OGUDO VS. STATE (2011) 18 NWLR (PT. 1278) 1 and SMART VS. STATE (2016) 9 NWLR (PT 1517) 447.
In the instant appeal the prosecution called the witnesses it considered necessary to prove its case. The Appellant who felt the need to call Sergent Balogun Olumide to testify was at liberty to call him. He did not. He cannot compel the Respondent to call a particular witness and cannot complain about the failure of the prosecution to call a particular witness. The absence of Sergent Balogun Olumide did not affect the case of the prosecution and I so hold. I find no merit in the argument of Appellant’s counsel on this point.

​Learned counsel to the Appellant also complained about Exhibit B tendered and admitted at the trial. Exhibit B is the statement of one Sergent Balogun Olumide dated 10th February, 2015. It was tendered and admitted in evidence through PW2, one Sgt. Audu Lasisi the Investigating Police Officer. It is the contention of Appellant’s counsel that Exhibit B has no evidential value because, it was not tendered by its maker.

The general rule is that, the proper person through whom a document should be tendered is its maker. See LAMBERT VS NIGERIAN ARMY (2006) 7 NWLR (PT. 980) 514; AWUSE VS. ODILI (2005)16 NWLR (PT. 952) 416 and FLASH FIXED ODDS LIMITED VS. AKATUGBA (2001) 9 NWLR (PT. 717) 46.
There are however, some exceptions to this general rule. They are:
i. When the maker is dead.
ii. When the maker can only be procured by involving the party in so much expenses that could be outrageous in the circumstances of the case.
See OMEGA BANK NIGERIA PLC VS. O.B.C. LIMITED (2005) 8 NWLR (PT. 928) 547 and the provision of Section 39 (d) and 83 (1) (b) of the Evidence Act.

​At the point of tendering Exhibit B, PW2 stated that the maker had been transferred from the division. The document was tendered and admitted in evidence without any objection from the Appellant’s counsel. The record of proceedings at the lower Court reveal that several adjournments were granted at the instance of the prosecution to enable them secure the attendance of Sgt. Balogun Olumide at the trial. See pages 47-49 of the record.
There is also evidence that the Prosecuting counsel did a letter to the Commissioner of Police, Oyo State to secure the attendance of the witness. See page 51 of the record.
There is therefore ample evidence that the prosecution made reasonable effort to secure the attendance of Sgt. Balogun Olumide and I so hold. This is an appropriate case to invoke the provision of Section 83 (1) (b) of the Evidence Act. The provision of Section 49 of the Evidence Act also enures in favour of the admission of Exhibit B, through another person other than the maker. Section 49 (supra) provides as follows:
“49. Notwithstanding, anything contained in this Act or any other law but subject to this Section, where in the course of any criminal trial, the Court is satisfied that for any sufficient reason, the attendance of the investigating police officer cannot be procured, the written and signed statement of such officer may be admitted in evidence by the Court if –
(a) The defence does not object to the statement being admitted, and
(b) The Court consents to the admission of the statement.”

I am satisfied that Exhibit B was rightly admitted in evidence and I so hold.

Learned counsel to the Appellant also raised the issue of identification of the Appellant. He submitted the Appellant who was not arrested at the scene of crime was not properly identified. He submitted there was the need to properly identify those seen at the scene of crime.

The law is settled that identification parade is only necessary where there is a doubt in recognizing the suspect who carried out or participated in the alleged crime. 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; OKANLAWON VS. STATE (2015) 17 NWLR (PT. 1489) 445 and DAIRO VS. STATE (2018) 7 NWLR (PT. 1617) 399.

​There is credible evidence at the trial that the goods stolen from the residence of PW1 on 2nd of February, 2015 were found at the residence of the Appellant the very next day. The Appellant in his confessional statement (Exhibit C) admitted the robbers left his house to the scene of crime at about 8.00pm on the 2nd of February, 2015 and that the stolen goods were brought to his house at about 8.00pm on that day. He admitted that the goods were found in his house the next day. What further evidence is required to identify the Appellant as a participant in the robbery? None is required. The identity of the Appellant as a participant in the crime is not in doubt. It is trite that a confession is an admission made at any time by a person charged with a criminal offence stating or suggesting that he committed the crime. The law is further settled 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; JOHN VS. STATE (2016) 11 NWLR (PT. 1523) 191; NKIE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 13 NWLR (PT. 1424) 305 and CHIOKWE VS. STATE (2013) 5 NWLR (PT. 1347) 205 as well as the Provision of Section 28 of the Evidence Act.

Exhibit C contains a direct, unequivocal and positive admission by the Appellant that he participated in the alleged robbery.
​The Appellant who has admitted his participation in the crime needs no further identification and I so hold. His identity is not in doubt and there was no need for any identification parade.

It is further the contention of learned counsel to the Appellant that the prosecution failed to prove that the robbery was armed robbery. He argued that the toy guns (Exhibit A1 and A2) used in the robbery are not “fire Arms” within the provision of Section 11 of the Robbery and Firearms (Special Provisions) Act.

I agree with Appellant’s counsel that Exhibits A1 and A2 which are toy guns are not firearms within the provision of Section 11 of the Robbery and Firearms Act.

The offence of robbery with fire arms is however committed, where at, the time of the commission of the offence the accused is proved to be armed with firearms or offensive weapon.
There is armed robbery where stealing is done using actual or threatened violence on any person or property. See KEKONG VS. STATE (2017) 18 NWLR (PT. 1596) 108, FEDERAL REPUBLIC OF NIGERIA VS. USMAN (2012) 8 NWLR (PT. 1301) 141 and PIUS VS. STATE (2015) 7 NWLR (PT. 1459) 628.
​The evidence of PW1, the victim of the offence is that the persons who robbed her were armed with gun. The only logical inference that can be drawn from this piece of evidence is that the robbers instilled fear in her and that any resistance from her would result in dire consequences.

It is further her testimony that the robbers were armed with guns and cutlass. A cutlass is an offensive weapon within the provision of Section 11 of the Robbery and Firearms (Special Provisions) Act.

Appellant’s counsel made a heavy weather of the failure of the prosecution to tender the cutlass in evidence. There is no evidence that the cutlass was recovered. It is trite that failure of the prosecution to tender the weapon used in the commission of the offence is not fatal to its case. It is possible that the assailants have disposed of the weapon or hidden it from the police to avoid arrest. See STATE VS. FADEYI (2018) 18 NWLR (PT. 1650) 11; OLAYINKA VS. STATE (2007) 9 NWLR (PT. 1040) 561 and WADA VS. STATE (2020) LPELR – 50008 (CA).

From the available evidence at the trial, I have no hesitation in coming to the conclusion that the robbers who robbed PW1 on 2nd of February, 2015, were armed. The prosecution proved the ingredient of the offence that the robbery was armed robbery. The learned trial Judge at page 116 of record held as follows:
“In the instant case, PW1 gave a graphic and vivid account of how the robbers attacked her. They threatened to kill her, tied her up and covered her face at gun point.
PW1 further told the Court that the robbers were armed with gun and cutlass.
PW1 could not have known that the robbers used toy guns but I am satisfied that the attackers created fear and apprehension in her mind, that they would kill her as they threatened if she did not succumb to their demands.”

The Appellant has not demonstrated that the above finding made by the learned trial Judge is perverse. I do not find it to be too. It was based on the evidence before him. There is no reason to interfere with it.

After a consideration of all the points raised by the Appellant as challenge to the judgment of the trial Court, it is my firm view that there is no merit in all of them. The sole issue formulated for the determination of this appeal is thus, resolved in favour of the Respondent and against the Appellant.

​In conclusion, I find this appeal completely devoid of merit and it is accordingly dismissed. I affirm the judgment of the Oyo State High Court in Charge No. I/81/C/2015 delivered on 24th of March 2017.
Appeal is dismissed.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead judgment of my lord FOLASADE AYODEJI OJO JCA, just delivered.

I agree with my lord’s analysis and conclusion on the issue in the Appeal.

Having also read the Record of Appeal as well as the briefs of Argument filed on behalf of the parties, it is my view that this Appeal lacks merit and it is dismissed by me.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Folasade Ayodeji Ojo, JCA made available to me, the draft of the leading judgment which has just been delivered. The manner of resolution of the issues thrust up for resolution in the appeal are in accord with my views. In accentuation of my concordance, I wish to say a few words on the Appellant’s contention as it relates to the admission of his confessional statement in evidence and his identification as one of the robbers.

​The confessional statement volunteered by the Appellant was admitted in evidence as Exhibit C after a voir dire. The disceptation in a voir dire is on the voluntariness of a confessional statement; the lower Court having admitted the statement in evidence was satisfied that the prosecution established that the statement was made voluntarily. Once a confessional statement is admitted in evidence, following a voir dire, it is difficult for an appellate Court to intervene on an appeal against its admissibility in evidence as the evaluation of the evidence adduced at the voir dire is based on the credibility of witnesses, which is the primary duty of the Court of trial where the Judge has the unparalleled advantage of having, seen the witnesses testify and watching their demeanour: LASISI vs. THE STATE (2013) LPELR (20183) 1 at 28 and MUSA vs. THE STATE (2019) 4 NWLR (PT 1662) 335 at 345. Accordingly, there is no basis on which this Court can fault the lower Court admitting the confessional statement of the Appellant in evidence.

​More often than not in criminal trials, the question is not whether or not the offence was committed, but, rather, the identity of the person or persons alleged to be the perpetrators of the offence charged: NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651. This case is not an exception, as the Appellant has contended that there was no proper identification evidence adduced, establishing beyond reasonable doubt that he was one of the robbers. In THE STATE vs. OLASHEHU SALAWU (2011) LPELR (8252) 1 at 49-50, Adekeye JSC stated inter ala thus:
“Where there is good and cogent evidence linking the accused person to the crime on the day of the incident a formal identification may be unnecessary. Furthermore, where an accused person by his confession identified himself, there would be no need for any further identification parade. Identification is the means of establishing whether a person charged with an offence is the same person who committed the offence. …Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged.”
The Appellant, in his confessional statement, admitted committing the offence and stated the role he played: LASISI vs. THE STATE (supra) at 26. There can therefore be no issue as to identification. See also ATTAH vs. THE STATE (2010) 10 NWLR (PT 1201) 190 at 225-226, OSUAGWU vs. THE STATE (2013) 1 SCM 170 at 182 and ADEBAYO vs. THE STATE (2014) ALL FWLR (PT 743) 1994.

It is trite law that, a confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387.

The Appellant’s confessional statement being direct, positive and cogent, suffices for the lower Court to convict. An insightful consideration of the totality of the evidence on record establishes that the lower Court properly evaluated the evidence, ascribed probative value thereto and correctly arrived at a conviction. There is no basis for an appellate Court to intervene: THE STATE vs. AJIE (2000) 7 SC (PT 1) 24, SHODIYA vs. THE STATE (2013) LPELR (20717) 1 at 17-18 and EWUGBA vs. THE STATE (2017) LPELR (43833) 1 at 43-45.

​It is in the light of the foregoing and the more elaborate reasoning and conclusion adroitly marshalled in the leading judgment, that I agree that the appeal is devoid of any merit. I therefore join in dismissing the appeal and affirm the judgment of the High Court of Oyo State in CHARGE NO. I/81C/2015 delivered on 24th March, 2017.

Appearances:

CHUKWUDI MADUKA, ESQ. For Appellant(s)

A.T. OLAWALE For Respondent(s)