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 -Appellant(s)
And
THE STATE-Respondent(s)
Appearances:
CHUKWUDI MADUKA, ESQ.-For Appellant(s)
A.T. OLAWALE- For 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.
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.
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.
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.
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.
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.”
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.
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.
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.”
