Michael Okeke V. The State (2016)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A. 

This is an appeal against the judgment of His Lordship, Hon. Justice D. I. Kolawole of the Ondo State High Court, sitting at Akure, delivered on the 3rd day of December, 2013.

BACKGROUND FACTS
By a two-count charge of conspiracy to commit Robbery and Armed Robbery respectively, the Appellant was charged by Respondent to the Ondo State High Court of Justice, Akure. The charge was later amended to reflect a three-count charge of conspiracy to commit Robbery, Armed Robbery and Home Breaking/Burglary.

The lower Court found that the charge of conspiracy to commit armed and armed robbery preferred against the Appellant was not proved and therefore discharged and acquitted the Appellant but however found the offence of Attempted Burglary proved against the Appellant and thereby convicted him of same and sentenced him to 5 years and 6 months imprisonment.

The Appellant being dissatisfied with the lower Court’s decision appealed to this Court.
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At the hearing on the 8th day of March, 2016, counsel for the Appellant – M. O. Folorunsho (Esq.) adopted

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the Appellant’s Brief of Argument dated the 9th of October 2013 and filed on the 11th day of October 2013 and urged this Honourable Court to allow the appeal.

On the part of the Respondent, O. F. Akeredolu (PLO) of the Ondo State Ministry of Justice, Akure adopted the Respondent’s Brief of Argument and submissions therein and likewise urged this Honourable Court to dismiss the appeal in its entirety.
Two Issues were distilled by the Appellant for determination:
(1) Whether the charge/offence of attempted burglary could be sustained against the Appellant from the unsettled evidence of Exhibit A and the oral testimonies of PW1 adduced at the trial.
?(2) Whether the failure of the learned trial Judge to consider and evaluate the evidence of the Appellant at the trial on record is not a breach of Appellants constitutional right to fair hearing, entitling him to be discharged and acquitted.

Also on the part of the Respondent, two Issues were distilled for determination thus:
(1) Whether the charge/offence of attempted burglary could be sustained against the Appellant by the evidence adduced at the trial by the prosecution

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in all the circumstances of the case.
(2) Whether the learned trial Judge rightly evaluated the evidence placed before him at the trial.

This appeal will be decided on the two Issues as distilled by the Appellant.
(1) Whether the charge/offence of attempted burglary could be sustained against the Appellant from the unsettled evidence of Exhibit A and the oral testimonies of PW1 adduced at the trial.
(2) Whether the failure of the learned trial Judge to consider and evaluate the evidence of the Appellant at the trial on record is not a breach of Appellants constitutional right to fair hearing, entitling him to be discharged and acquitted.
These two Issues were argued conjointly by the Appellant.

The learned counsel for the Appellant while arguing these two Issues conjointly submitted that the learned trial Court’s verdict that the Appellant was guilty of attempted burglary was hinged on the adoption by the trial Judge’s dual approach in evaluation of the evidence on record, firstly by setting out to analyse the probative efficacy of Exhibit A which is the alleged confessional statement credited to the Appellant on one hand

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