RIDWAN OJEKUNLE  v. THE STATE

This is an appeal against the decision of the Court of  Appeal, lbadan Judicial Division (Court below) delivered on The 02-06-2021 wherein the Court below, in a unanimous decision, affirmed the Judgment of the High Court of Oyo State (Trial Court) convicting the Appellant for the offences

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of Conspiracy to commit Armed Robbery and Armed Robbery and sentencing him to death by hanging.

The Appellant, alongside one Saheed Adesina, was Arraigned on a two-count charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 1(a), (b) and 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11 LFN, 2004.

The facts as presented by the prosecution before the trial Court is that on 02-02-2015 the Appellant, his co-accused and others at large, conspired to and did enter the residence of one Taibat Adunni Orobiyi (PW1) located at Adeyemo Layout, Odo-Oba lbadan to rob her. In her testimony, the PW1 painted a picture of how upon her return to her premises on that fateful night, just as she drove into her house, two assailants who had laid in wait for her gained entrance into the house, locked the gates behind them and dragged her into the house, all the while threatening her with a gun and a cutlass. They had tied her up and made

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Away with her phones, jewelleries and the sum of about N260,000.00 (Two hundred and Sixty Thousand Naira).

Thereafter, they escaped by jumping over the fence upon being alerted by their scout that some of the PW1’s neighbours were onto them.

The co-accused at the trial Court who had acted as the scout/look-out during the commission of crime, was arrested the next day and he led the Police to the house of the Appellant. It was at the house of the Appellant that some of the items stolen from the PW1 were recovered including her phones, jewelleries and cash. The Police also recovered the guns used during the operation, which turned out to be Toy guns (Exhibits A1 & A2). At this point, the Appellant was arrested and charged to Court.

Upon arraignment before the trial Court, the Appellant and the co-accused pleaded not guilty to the charges read against them. In proof of its case, the Respondent called in evidence two witnesses, the victim who testified as PW1 and

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The Investigating Police Officer (IPO) as the PW2. The respondent tendered five exhibits through PW2, to wit: the toy guns – Exhibits A & A1; the IPO’s Report – Exhibit B, and the confessional statements of the Appellant and the co- Accused – Exhibits C and C1 respectively. The Appellant in his defence, testified but called no other witness after which he closed his case. After considering the evidence before it,

The trial Court found the Appellant guilty, and thereafter convicted and sentenced him to death by hanging.

Aggrieved by the decision of the trial Court, the Appellant appealed to the Court below vide a Notice of Appeal filed on 11-03-2020 wherein he complained on eight grounds. He urged the Court below to allow the appeal and set aside the decision of the trial Court. Parties were heard on their respective Briefs of Argument filed and exchanged. Upon due consideration of the issues before it, the Court below unanimously dismissed the appeal and affirmed the decision of the trial Court in its judgment delivered on 02-06-2021.

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Dissatisfied with the decision of the Court below, the Appellant is now before this Court by a Notice of Appeal filed on 28-06-2021 complaining on two grounds. This Court is urged to allow the appeal and set aside the decisions of the two Courts below.

ISSUES FOR DETERMINATION

The Appellant in his Brief of Argument, settled by Seun A. Alao Esq. And filed on 10-11-2021, distilled a sole issue from the two grounds of appeal as follows:

Whether considering the circumstances of this appeal, the court of Appeal rightly affirmed the conviction and sentence of the Appellant despite the fact that the respondent failed to establish the offence of conspiracy and armed robbery as required in law?

The Respondent in turn, in its Brief of argument settled by Boonyanmeen Babajide Lawal, Esq., and filed on 15-11-2021 also distilled a sole issue for determination from the two grounds of appeal as follows:

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Whether the Court below rightly affirmed the conviction and sentence of the Appellant having regard to the facts leading up to the appeal?

Both issues submitted by the parties are similar in context and content. I shall therefore adopt the issue for determination as distilled by the Appellant’s Counsel, but paraphrased as follows:

Whether considering the circumstances of this appeal, the court of Appeal rightly affirmed the conviction and sentence of the Appellant?

SUBMISSIONS OF APPELLANT’S COUNSEL:

Counsel to the Appellant contended that the court below was wrong to affirm the conviction of the Appellant on the ‘supposed’ confessional statement of the Appellant alone without corroboration. He argued that the testimonies of the prosecution witnesses were not credible enough or compelling to corroborate the purported confessional statement of the Appellant which was admitted in evidence only after a trial within trial had been conducted and after

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The Appellant retracted the Statement and denied any involvement in the crime. Counsel thus submitted that the decision of the Court is perverse, relying on the case of Okhuarobo v Aigbe (2002)9 NSCQR 627.

To further buttress his point, learned counsel contended that the Court below did not consider his submission on the issue of the testimony of PW1 which, he argued, is unrealistic and unbelievable. He further argued that the fact that the incident occurred at night, without the prosecution providing any evidence of lighting condition at the scene of the crime, automatically discredits the testimony of the PW1 and shrouds the entire case of the Respondent in doubt, which doubt ought to have been resolved in favour of the appellant. He relied on the cases of Aighuoreghian v The State (2004) 3 NWLR (Part 860) 429; & Nsofor & Anor. V The State (2004) 18 NWLR (Part 1905) 299 at 317-318 in submitting that the materials upon which the Appellant was convicted on, were mere suspicions and speculations which can never ground a conviction in law.

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Counsel submitted that the court below failed to fully consider the retraction and involuntariness of the supposed confessional statement of the Appellant before affirming the Judgment of the trial court. He placed reliance on the cases of Yongo v Commissioner of Police (1990) 5 NWLR (Part 148) 103 at 116; Ahmed v Nigerian Army (2011) 1 NWLR (Part 1227) 118 -119; Ishola v The State (1979) 2 FCA 156 in urging the Court to hold that the said confessional statement, Exhibit C, is unreliable.

In conclusion, learned Counsel argued that assuming but not conceding that Exhibit C is confessional in nature, the Law is that before a Court can convict on a confessional statement, such statement must pass through the six age- long tests of whether there is anything outside the  statement to show that it is true; whether it is corroborated;

Whether the facts in the statement are true as far as can be tested; whether the accused person has the opportunity of committing the offence; whether the confession is possible and whether the confession is consistent with the other

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Facts as contained and proved at the trial. Counsel argued that none of the above listed tests were applied to the confessional statement and yet the trial Court convicted the appellant on the force of same and the conviction affirmed by the Court below. Reliance is placed on the cases of Kazeem v State (2009) ALL FWLR (Part 465) 1749; Odu v FRN (2002) 5 NWLR (Part 761) 61; A. G. Oyo State v Fair Lakes Hotels Ltd. (1989) 5 NWLR (Part 121) 255. He therefore urged on the Court to set aside the judgment of the Court below and in its stead, substitute a verdict of discharge and acquittal of the Appellant.

SUBMISSIONS OF RESPONDENT’S COUNSEL:

In response to the submissions of the Appellant, the respondent’s Counsel contended that the argument of the appellant relating to the bad lighting condition of the scene of crime is a fresh issue which requires the leave of this court before it can be raised. Therefore, that failure to first seek and obtain such leave renders the issue incompetent

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And liable to be struck out; relying on the case of Usman v State (2011) 18 NWLR (Part 1278) 387 at 228. Counsel further contended that the issue of the lighting condition of the crime scene only arises in a case of mistaken identity, which is not the case at hand. He relied on Lawali v State (2019) 4 NWLR (Part 1663) 457 at 478 and urged on this court to discountenance the entire submission of the appellant on this point in its entirety.

On the submission of Appellant’s Counsel that the lower court failed to consider the retraction and involuntariness of the confessional statement of the Appellant before affirming the judgment of the trial Court, the Respondent contended that the six-way test relied on by the Appellant comes into play where the denial and retraction of a confessional statement is in issue, citing Adebanjo v State (2019) 13 NWLR (Part 1688) 121 at 137. In analysing the six conditions, Counsel contended that the Appellant cannot be allowed to approbate and reprobate at the same time. He

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Relied on the case of B.B. Apugo Ltd. V O.H.M.B (2016) 13 NWLR (Part 1529) 206 at 333.

It was further argued by the learned Counsel for the Respondent that the Appellant failed to show how the Court below failed to consider the six-way test in assessing the veracity or otherwise of the confessional statement before affirming the judgment of the trial Court. He pointed out that the evidence of the Prosecution lends credence to and corroborates the confessional statement and as such, the court below was right to have affirmed the judgment of the trial Court. Thus, on the authority of Nwaebonyiv State (1994) 5 NWLR (Part 343) 138 at 157 Para F-G, he urged this Court to dismiss the appeal and affirm the decisions of the Courts below.

RESOLUTION OF SOLE ISSUE:

It is the contention of the Appellant’s Counsel that the Respondent had averred that the incident occurred at night, at about 7:30 p.m. However, he failed to provide any

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Evidence of what the lighting condition was at the scene of the crime. That this omission automatically discredits the testimony of PW1. The Respondent’s Counsel’s response is that this is the first time the Appellant is raising the issue of the lighting at the scene of the crime, thus rendering said issue incompetent.

It goes without saying that an Appellant is not foreclosed from raising a new issue before an appellate Court.

However, where he seeks to raise a fresh issue based on Facts in an appeal, he is obligated to first seek for and obtain the leave of the Court before he can do so. The reason for this is not farfetched. It is simply because an appeal is not a new case but a continuation or re-hearing of the case commenced before the trial Court. Thus, parties to an Appeal are expected to agitate the same issues that arose and were raised at the trial. Consequently, an appellant would thus not be allowed to raise in the appellate Court an issue that was not raised at the lower Court without first seeking and obtaining the leave of Court, as such would

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have the effect of jeopardizing the interest of the other party and could lead to a miscarriage of justice. See Adie v State (2023) 8 NWLR (Pt. 1887) 591, 613, D-E; Sanusi v State (2023) 10 NWLR (Pt. 1892) 253, 282, B-D.

Just recently, in the case of Mohammed v. State (2024) 16 NWLR (Pt. 1964) 199, 229, A-B, my learned brother, ldris JSC, when faced with a similar issue, held as follows:

“As a rule, an issue which has not been raised at the courts below will not be entertained on appeal. The rationale for this is that this is the apex court and an appellate court. It is not the duty of an appellate court to decide disputes by trying cases, but it is the duty of the appellate court to see whether the trial court has used correct procedure to arrive at the right decision. Therefore, since the appellate court does not inquire into disputes, it is desirable for the court to have the benefit of the opinion of the trial court on every point taken on appeal.”

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I have painstakingly gone through the Record of Appeal, scouring the proceedings and processes of the parties, both at the trial Court and at the Court below, and have discovered that actually, this issue was never raised prior to this appeal, just as contended by learned Respondent’s Counsel. What this means is that the issue of the absence of evidence of how the crime scene was lighted is a fresh issue which is being raised for the first time here before the apex Court. In addition, there is nothing on the face of the Record of appeal to show that the Appellant sought for and obtained the required leave of this Court to raise and argue the said issue. This lapse thus renders this issue incompetent and of no moment, and I so hold.

The Appellant’s Counsel also dwelt heavily on the issue of the retraction and involuntariness of the confessional statement of the Appellant, contending that the trial Court erred in its failure to apply the six-way test before convicting the Appellant on the strength of the confessional statement;

And that the Court below ought to have righted this wrong

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But that it failed to do so. He thus called on this Court to intervene.

I wish to at this stage point out the fact that a challenge to a confessional statement must be made timeously and that means at the point of its tendering. See Habibu v. State (2024) 6 NWLR (Pt. 1935) 483 at 525 Para C-E; Ebenezer v. State (2024) 15 NWLR (Pt. 1962) 519 at 542 Para A-C; Yeli v. State (2023) 2 NWLR (Pt. 1867) Page 39 at 69-70 Para E-A.

There are two possible scenarios and outcomes where an accused person objects to the tendering of ‘his’ confessional statement. Firstly, where the accused person denies or resiles from the confessional statement, that is, where the objection is that the accused never made that statement or contends that the signature therein was not his, etc., the Court is at liberty to admit such confessional statement. Nevertheless, it is obliged to conduct some tests to verify, ascertain and confirm the truthfulness and authenticity of the said confessional statement of the

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accused person in order to determine the weight to be attached to it. Accordingly, Courts are enjoined to scrutinize the confessional statement viz the following queries:

1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statement made in it of facts, true as far as can be tested?
4. Was the accused person one who has the opportunity of committing the crime?
5. Is the accused person’s confession possible?
6. Is the confessional statement consistent with other facts which have been ascertained and proved?

See Aliyu v. State (2023) 18 NWLR (Pt. 1915) 1, 7-8, H-C; Somefun v. State (2023) 17 NWLR (Pt. 1913) 273; State v. Ibrahim (2024) 1 NWLR (Pt. 1919) 213, 227-228, F-B.

This is what is referred to as the six-way test.

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Where however the accused person complains that he was forced or tortured to make a confession, then the outcome is different. In such a situation, a trial-within-trial must be conducted to determine if indeed the confessional statement was made under duress or undue influence or the like, contrary to Section 29(2) & (5) of the evidence Act, 2011. If the statement is found to be voluntary, then it is admitted in evidence and the trial court may proceed to convict the accused on the force of the voluntary confession. However, where the Confessional statement is found to have been made involuntarily by reason of acts of compulsion inflicted on the accused, then it must be discountenanced.

This Court has repeatedly made the distinction between these two scenarios. For instance, in the case of Ganiyu v. State (2023) 11 NWLR (Pt. 1895) 199, 225, A-F per Augie JSC, the Court held that:

“Where an accused person complains that he was forced or tortured to make a confession, what is

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Attacked is the admissibility of the confession in evidence, and a trial-within-trial must be held to determine its voluntariness. But where the accused person contends that he did not sign a confessional statement, the trial court is entitled to admit it in evidence. The question of whether the accused person made them or not and what weight to attach to the statement is decided at the end of the trial by the trial court. Therefore, a trial-within-trial is not required in such circumstances.”

Shedding more light on this issue, my learned brother Okoro, JSC in the case of Omoha v. State (2023) 13 NWLR (Pt. 1900) 57, 82-83, A-A opined as follows:

“There is a distinction between objecting to the admissibility of a confessional statement on the ground that the accused did not make the confession voluntarily, which would require such statement being tested in a trial-within-trial, and objecting on the ground that the accused did not make the statement at all. In the later scenario, the court would admit the statement and consider the weight to be attached to it. The court can rely on it

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To convict where it is satisfied that the statement is the truthful account of what transpired.

The court only determines the weight to be attached to a retracted confessional statement that is, where the accused person outrightly Denies making the statement at the slightest opportunity. The court in the circumstance is expected to test its truthfulness by examining the statement in the light of other credible evidence adduced. The court would subject the statement to six tests for verification as follows: –

• Whether there is anything outside the statement to show that it is true;
• Whether it is corroborated;
• Whether the accused person had the opportunity of committing the offence;
• Whether the facts stated in the statement are true as far as can be tested;
• Whether the accused person’s confession is possible;

(f) Whether the confession is consistent with the other facts ascertained and proved at the trial.”

In the instant case, when the Respondent had sought to tender the confessional statement, (at page 58 of the

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Record of Appeal), the Appellant raised an objection stating that he was tortured before the statement was obtained. This undoubtedly challenged the voluntariness of the confessional statement and thus its admissibility. In that case the appropriate action to be taken by the trial court would be to suspend the main trial and conduct a trial-within-trial in order to determine the voluntariness or otherwise of the statement.

I note that this was exactly what the trial Court did. The trial-within-trial commenced on 31 January, 2017 at the end of which the trial Court delivered its ruling on 14^th February, 2017, wherein the confessional statement of the Appellant was admitted in evidence as Exhibit C (pages 59-63 of the Record of Appeal). Thus, the Court below was right when it held that since the prosecution had proved that the statement was made voluntarily, the trial Court was right to have admitted it in evidence and also to have relied on it; contrary to the contention of the

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Appellant’s counsel that the said Exhibit C had no Evidential value.

Nonetheless, the trial Court still, abundanti cautela, noted that it is always desirable that before a trial Court convicts on the basis of a retracted confessional statement, it must ensure that there is corroborative evidence outside the confession which makes the content of the retracted confession probable. Thus, it held at pages 112-113 of the record of Appeal as follows:

“The position of the law is that an accused person may be convicted solely on his confession. However, the law requires that the confession should be corroborated by circumstances that make it probable that the confession was true.

The confessional statement of the 1^st accused is corroborated by the evidence of PW2, the IPO, who told the court that the toy guns used for the robbery and some of the properties belonging to PW were recovered by the Police in the house of the ft accused person.

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Apart from this the 1^st accused stated further in Exhibit C that he was known in the household of PWI and he was friendly with the daughter of PW1. PWI corroborated this when she told the Court that it was the 1^st accused that taught her daughter how to drive; Meaning that the 1^{st a}ccused was well known to her family.

I have also noted that the information the 1^st accused supplied to the police in his statement, Exhibit, C are details which can only be known to the 1^st accused or information which emanates from his personal knowledge. The Police, specifically PW2, could not have known these details. For instance, the information concerning the idol called Osanyin which the 1^{st a}ccused person worships and other antecedents of the 1^st accused are in the statement; details which were confirmed or corroborated by the 1^st accused person himself when he testified on oath before the court. This shows that the contents of the statement of the 1^st accused are true.

PW2 stated on oath that after the arrest of the 2rd accused, it was the 2^nd accused who took the police to the house of the 1^st accused where

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The 1^st accused was arrested. This is an Independent piece of evidence which further corroborates the confession of the 1^st accused.

From the foregoing I am of the view that the retraction by the 1^st accused of his confessional statement as contained in Exhibit C was an afterthought.”

In light of the foregoing, I do not see how the contention of the Appellant’s counsel that the trial Court failed to test the veracity of the confessional statement before convicting the appellant on same can hold water.

It bears repeating that the ingredients of the offence of armed robbery, which must be established beyond reasonable doubt in tandem, are:

(a) that there was a robbery or a series of robberies; and

(b) that each robbery was an armed robbery, that is that the robbers or any of  them was armed at the time of the robbery; and

(c) that the accused was one of those who participated in the robbery or series of robberies. See Ebenezer v. State (2023) 6 NWLR (Part 1879) 119, 139, C-E; Aliyu v. State (2023) 18 NWLR

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(Part 1915) 1, 10-11, G-A; Akalazu v. State (2022) 13 NWLR (Part 1848) 453, 475, C-E.

In the instant case, the confessional statement of the appellant, Exhibit C, coupled with the cogent and compelling evidence of PW1 and PW2, have amply checked all the boxes of the ingredients of the offence. There is a clear account of the robbery, as well as the fact that the said robbery was carried out while threatening the PW1 with a gun and a cutlass, thus making it an armed robbery, and unmistakably fixing the Appellant to the crime committed as an accomplice, as the items stolen from the PW1 and the guns used where recovered from his house. Evidently, the respondent proved its case beyond reasonable doubt and the trial Court was on firm footing in its conviction and sentencing of the Appellant, as was the Court below in its affirmation of the conviction and sentence of the Appellant.

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In conclusion, the sole issue for determination in this appeal is resolved against the Appellant and in favour of the Respondent.

Consequently, I see no reason to interfere with the concurrent findings of the Courts below. This appeal is wholly devoid of merit and is hereby dismissed.

Accordingly, I affirm the Judgment of the Court below delivered on 2^nd day of June, 2021 which affirmed the conviction and sentence of the Appellant for the offences of conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 1(a), (b) and 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11 LFN, 2004.

JUMMAI HANNATU SANKEY, JUSTICE, SUPREME COURT.

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