Mohammed Mahmud V. The State (2016)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST J.C.A. 

This appeal is against the judgment of Osun State High Court sitting at Ikirun Judicial Division delivered on 29th day of March, 2012. The Appellant was arraigned before the Court on a 3 count charge of conspiracy and armed robbery under the Robbery and Firearms (Special Provision) Act, CAP R.11, Laws of Federation of Nigeria 2004.

Upon arraignment, the Appellant pleaded not guilty to the 3 count charge. To prove the guilt of the Appellant, the prosecution called two witnesses and tendered a number of exhibits. The Appellant gave evidence for himself in defence and called no witness.

The case of the prosecution was that the Appellant with others at large invaded Student’s Hostel Accommodation of the Osun State Polytechnic, Iree, armed with knife and turning stick and robbed the students of their valuables like handset and money. It was the case of the Appellant that he is a Fulani man and that he did not steal anything from anybody. He maintained that with the permission of the security on campus, he was allowed to sell books, biro and stationeries on campus. He

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further stated that he thumb-printed his extrajudicial statement but that same was not read to him before he was made to thumb-print.

At the end of trial, the trial Court found the Appellant guilty of the three counts and sentenced him to death by hanging.

The Appellant dissatisfied with his conviction and sentence appealed to this Court vide a Notice of Appeal dated 13/4/2012 but filed on 16/4/2012, containing 5 Grounds of Appeal.

In compliance with the Rules of this Court, Mr. T. S. Adegboyega Esq. filed a Brief of Argument on behalf of the Appellant. The Brief is dated and filed on 14th August, 2013. Adewale Afolabi Esq. also filed the Respondent’s Brief of Argument dated 2/5/2014 and filed 5/5/2014.

From the 5 Grounds of Appeal, learned counsel for the Appellant formulated and argued three issues for determination of this appeal, thus:
1. Whether there was conspiracy to commit armed robbery by the Appellant (Ground 4)
2. Whether the prosecutor’s case was proved beyond reasonable doubt against the Appellant (Grounds 1,2,3)
3. Whether the trial of the Appellant conducted by the (sic) learned Trial Judge was a nullity for

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failure to conform with Section 215 of the Criminal Procedure Law of Osun State CAP 35, Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria 1999 (sic) (as amended) governing valid arraignment. (Ground 5)

Learned counsel for the Respondent also distilled 2 issues for determination of this appeal thus:
1. Whether the case of the prosecution was not proved beyond reasonable doubt to ground conviction.
2. Whether the arraignment was not proper in the circumstance.

At the hearing of this appeal on 9/3/2016, Mr. T. S. Adegboyega, identified the filed and exchanged Brief of Argument for the Appellant and thereafter adopted and relied on same urging us to allow the appeal and set aside the judgment of the lower Court and enter a verdict of discharge and acquittal for the Appellant. Also Mr. Dapo Ademiniji (DPP, Osun State) identified and adopted the Respondent’s Brief of Argument relying on same to urge us to dismiss the appeal and uphold the lower Court’s judgment.

?In resolving this appeal, I shall adopt the three issues as raised by the Appellant for being all encompassing. It is obvious that the Respondent responded

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to Appellant’s Issues 1 and 2 vide his Issue No. 1 and same shall be summarized along that line.

ARGUMENT OF APPELLANT’S ISSUE 1
Whether there was conspiracy to commit armed robbery by the Appellant (Ground 4).
Arguing this issue, counsel for the Appellant referred to the learned trial Judge’s finding of fact at page 80 of the record that the Confessional Statement of the accused person glaringly showed that the accused person conspired with some other persons to rob their victims. He is therefore not guilty on the 1st count of conspiracy too; to submit that there were no evidence to have led the trial judge to such finding of fact and conclusion. Counsel relied on the case ofHarb vs. F.R.N. (2008) ALL FWLR (pt. 430) 705 @ 724 -725 Para F – B where conspiracy was defined as an agreement of two or more persons to do an act which is unlawful, to submit that the facts relied upon by the trial Judge at pages 56 to 59 of the record, to found that there was conspiracy by the Appellant to commit armed robbery are not evidence of conspiracy and that the Court cannot infer conspiracy where there is no evidence. Learned counsel referred to the evidence of

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PW1 (the Security Officer of the Osun State Polytechnic, Iree) who testified that he brought the accused person with “a report” and the “statement” was freely taken from the complainant, and which report and the statement obtained at that stage were not tendered. He submitted that by so doing, the prosecution thereby created a gap by withholding the evidence which were contained in the report and the complaint made thereof. He referred to Section 167(d) Evidence Act, 2011 for the above submission. Counsel submitted that the finding of fact by the learned trial Judge at page 79 of the record in respect of Exhibit ‘B’ to the effect that the Appellant testified that Exhibit B was read to him before he thumb-printed was perverse since the testimony of the Appellant in that respect at page 63 of the record was “…yes, I thumb printed the statement but it was not read to me.”

Learned counsel referred to page 94 of the record to argue strongly that Exhibit F is inconsistent with Exhibit B and there is no nexus between Exhibits B and C since Exhibit B did not state anyway that the Appellant kept Exhibit C – the stainless knife in any block at the scene of the

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crime, which, said counsel, cannot be anywhere other than Jekajose Hall, Estate Area and Wuraola Hall, Iree. Counsel further submitted that Exhibit ‘A’, ‘B’ and ‘F’ also did not state that the Appellant kept any knife somewhere in Jekajose Hall, Estate Area or Wuraola Hall, lree.

Learned counsel relied on Section 135 Evidence Act, 2011 to submit that in criminal cases, the burden of proof rest squarely on the prosecution to prove the guilt of the accused person beyond reasonable doubt and which burden does not shift to the accused to prove his innocence at all material time. He reiterated his earlier submission that the learned trial Judge merely inferred conspiracy where there are no evidence to bear that out against the Appellant. Finally, counsel relied on Oseni vs. State (2012) NWLR (pt. 1293) 3S1 @ 391 Para G – H to argue that where one person unilaterally commit a crime, such a person cannot be held liable for offence of conspiracy. He urged us to resolve this issue for the Appellant.

ARGUMENT OF ISSUE TWO
Whether the prosecution’s case was proved beyond reasonable doubt against the Appellant (Ground 1, 2, and 3).
Arguing this issue,

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learned counsel for the Appellant relied on Section 135 of the Evidence Act, 2011 and the case of Oseni vs. State (2012) 5 NWLR (pt. 1293) 351 @ 385 Paras C – F to submit that to secure a conviction on charge of armed robbery, our law placed a duty on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Counsel submitted that the guilt of an accused can be proved by
(a) The confessional statement of the accused.
(b) Circumstantial evidence
(c) Evidence of an eye witness of the crime.

Furthering, counsel submitted that in any of the above ways, the evidence must cogently establish the essential elements of the offence charged.
Counsel relied on the Supreme Court’s definition of armed robbery in the case of Tanko vs. State (2009) 4 NWLR (pt. 1131) 430 @ 459 Para G, per Aderemi, JSC as “simply stealing plus violence, used or threatened” to submit that the essential ingredients of armed robbery are
1. That there was an armed robbery
2. That the accused was armed; and
3. That the accused while with the arm or arms, participated in the robbery.

?At this juncture, counsel called in aid the case

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of Oseni vs. State (supra) to argue that the law is that these three ingredients of armed robbery must coexist and must be proved one by one before an accused person can be found guilty.

On this premise, learned counsel submitted that from the record of proceedings at pages 56 to 59, the evidence adduced by the prosecution has failed to disclose the fact that there was an armed robbery. Learned counsel submitted that the evidence of PW1 that on the 25th May, 2007, at about 17.00hrs, the Deputy Chief Security Officer to Osun State Polytechnic, Iree, Mr. Lawrence Adegbite accompanied by some students of the same institution brought the accused person with a report that he went to Jekajose Hall, Estate Area and Wuraola Hall, lree with others at large to collect student’s goods, items like handset and money through the use of weapon like knife, can only amount to hearsay evidence since the object is to establish the truth of what is contained in the statement and not proposed to establish by evidence, not the truth of the statement but the fact that it was made. He relied on Section 38 of the Evidence Act, 2011 to submit that such statement made by Mr.

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Lawrence Adegbite, who was not called as a witness is hearsay evidence and therefore inadmissible. Learned counsel called in aid the provisions of Section 167 (d) of the Evidence Act, 2011 and the case of Ogudo vs. State (2011) 18 NWLR (pt. 1278) 1 @ 33 Para E ? F to argue that the failure of the prosecution to tender the Report and Statement of Complaint submitted to PW1 by the Deputy Chief Security Officer to Osun State Polytechnic, lree created a doubt as to whether or not there was an armed robbery. Furthering, counsel relied on Manshep Namsoh vs. The State (1993) 5 NWLR (pt.292) 132 to submit that the law is that in criminal trials, once a doubt exist, it must be resolved for the accused person. Counsel submitted that he raised objection to the admissibility of Exhibit F at the lower Court which was overruled by the learned trial Judge. Counsel therefore complained that the full of his objection was not recorded by the trial Judge and that same amounts to grave error, sufficient to vitiate the trial since it contravened the provision of Section 36(7)(e) of the 1999 Constitution of Nigeria (as amended) which requires a Court trying any criminal

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offence to keep a record of proceedings.
Counsel submitted that all the documents contained at pages 102 – 105 of the Record of Appeal were not admitted in evidence and therefore must be discountenanced while reviewing facts in this appeal. He referred to the case of Dele vs. State (2011) 1 NWLR (pt. 1229) 508 @ 534 Para E – G.

Counsel further submitted, relying on Ogidi vs. State (2005) 5 NWLR (pt. 918) 2g6 @ 330, that Exhibit ‘F’ ought to be discountenanced having not been written in the language of the Court which is English language.
Learned counsel contended that the learned trial Judge failed to consider Exhibits A, B, and F along with other evidence as well as the circumstances of the case in ascribing probative value to Exhibit A, B and F; since there is no evidence before the Court establishing directly or indirectly the ingredients of armed robbery against the Appellant. Learned counsel submitted that there is no direct oral evidence by any of the prosecution witnesses that the accused robbed him or her, nor that the accused person was armed with any firearm or offensive weapon. Furthering, counsel submitted that none of the two

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witnesses has testified that anything incriminating was found on the person of the accused person, that even the said stainless knife was not found with the accused person but was recovered in the blocks where he kept it in the scene of the crime and not at Jekajose Hail or Wuraola Hall, Iree. Counsel quarreled with the finding of fact by the learned trial Judge at page 79 of the record on the ground that the Court failed to apply correctly the test for determining the veracity of confessional statement as enunciated by the Supreme Court in the case of Afolabi vs. C.O.P. (1961) 2 SCNLR 307 and that that failure amounts to misdirection rendering the entire confessional statement unbelievable since the confessional statement cannot be said to have successfully met the veracity test as set down by the authorities. Counsel argued that the failure of the prosecution to call the alleged victims of armed robbery in evidence is fatal to the case of the prosecution since they were listed as witnesses and their evidence would have been fundamental in determining this case one way or the other.

?Counsel submitted that the learned trial Judge shifted the burden of

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proof to the Appellant when the Court at page 80 of the record cited the case of Ayeni vs.State (2012) WRN 37-83 to hold that where an accused person discovers that the evidence of a witness is very vital to his defence, it is for the accused to call him. He called in aid the case of Almu vs. State (2009) 10 NWLR (pt. 1148) 31 @ 58 Para E – F to submit that the burden of proof in criminal cases does not shift to the accused person. Learned counsel argued that it cannot be said that the alleged confessional statement is direct, positive, unequivocal and conclusive of all the ingredients of the offence of conspiracy and armed robbery since it is not apparent from the confessional statement that any of the victims of the alleged robbery was threatened or attacked with the said knife which the Appellant was armed.

Counsel cited the case of Ogudo vs. State (supra) @ 36 – 37 Paras H – D to submit that the trial Court was wrong to have relied on the said confessional statement since a vital witness in the person of the Deputy chief security officer, Mr. Lawrence Adegbite and the victims of the crime were not called as witnesses who would have provided the necessary

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evidence in the alleged confessional statement. Counsel finally on this issue submitted that the prosecution has not proved its case against the Appellant and urged us to so hold.

Reacting to this Appellant’s Issues 1 and 2, the counsel for the Respondent vide his Issue No. 1 reiterated the elementary position of law that the onus placed on the prosecution in criminal cases, like the instant one is proof beyond reasonable doubt and not proof beyond all shadow of doubt. He relied on Shurumo vs. The State (2010)19 NWLR (pt. 1218)73 @ 109 Paras F-G. Counsel stated that the evidence of PW1 as the Investigating police officer was not based on the report submitted to him by the Deputy chief security officer, but on the investigation carried out by himself thereafter. Counsel argued that it is a misconception of the law to say that the report of the outcome of investigation of a criminal allegation carried out by a police Investigating officer is hearsay. It is, said counsel, an admissible piece of evidence upon which a Court of law can rely and base its judgment on. Counsel relied on Section 200 of the Evidence Act, 2011 (as amended) to submit that the law is

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that the prosecution is not bound to call a particular witness or all the witnesses listed unless they are material ones.

Learned counsel conceded the fact that the particulars of the objection raised was not stated even though it was overruled, but submitted that page 63 of the record shows that the objection was not to the voluntariness of the statement wherein the Appellant stated in his evidence that though he did not write himself but he volunteered his statement in Yoruba. Learned counsel noted that throughout the cross-examination of PW2 at page 59 and evidence of the Appellant at pages 61- 63 of the record, no particulars or features of involuntariness was elicited from PW2 under cross-examination as to the circumstances under which the Confessional Statement was obtained. Counsel then submitted that the only issue raised by the Appellant as can be seen at page 63 of the record was that the Confessional statement volunteered was not read to the accused, which has nothing to do with the issue of admissibility of same.

Counsel submitted that the Appellant’s arguments on documents at page 102 – 105 of the record is an attempt to mislead this Court

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because at page 58 of the record the PW2 testified thus:
“I recorded his statement in Yoruba language which he understood best. He thumbed printed the statement and I read it to him and I translated it to English language.”

Learned counsel therefore submitted that both the Yoruba version and the English translation of the confessional statement were marked Exhibit ?F” since the two were tendered and none was rejected by the Court.
Counsel submitted that Pw1’s evidence that during a visit to the scene of the crime, a stainless knife was recovered from the blocks where the accused person kept it corroborated Exhibits A and B at pages 86 to 97 of the Record of Appeal. Learned counsel submitted further that the difference in date as stated on the particulars of offence is immaterial where the accused confessed to the commission of the alleged offence like in this case, at page 95 of the Record of Appeal, the Appellant confessed to have robbed some ladies of Osun State Polytechnic at Estate Area, Iree and also to have sold one Nokia and My XS to Wasiu at lragbiji. Counsel cited the case of Ike vs. State (2010) 5 NWLR (pt. 186) 41 @ 54 Paragraphs

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E – F to submit that Exhibit 1 is the endorsement of the superior police officer confirming that the accused was brought before him and the accused confirmed the statement so volunteered.

ARGUMENT OF ISSUE THREE
Whether the trial of the Appellant conducted by he (sic) learned trial Judge was a nullity for failure to conform with Section 215 of the Criminal Procedure Law of Osun State, CAP 35, Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) governing valid arraignment. (Ground 5).
Arguing this issue, learned counsel for the Appellant referred to page 56 of the record to show that the arraignment of the Appellant started de novo before Hon. Justice l. O. Adeleke.

Counsel then referred to Black’s Law Dictionary 17th edition) at page 1512 where “trial de novo” was defined as “a new trial on the entire case – that is, on both questions of fact and issues of law – conducted as if there had been no trial in the first instance.” He further relied on the case of Babatunde vs. P.A.S. & T.A. Ltd. (2007) 13 NWLR (pt. 1050) 113 @ 147 to submit that the effect of trial “de novo” is an order that the whole

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case should be retried or tried anew as if no trial whatsoever has been had in the first instance.

On the above premise, learned counsel submit that the arraignment of the Appellant before Hon. Justice Aderibigbe as contained at page 43 of the Records of Appeal cannot form part of the records before this Court for review. He referred to the arraignment process before Hon. Justice I. O. Adeleke at page 56 of the record to submit that arraignment is fundamental to criminal proceedings which consisted of the charging of the accused person and taking of his pleas in accordance with the law and procedure.
He cited the case ofLufadeju vs. Johnson (2007) I NWLR (pt. 1037) 535 @ 555 to state the requirements of a valid arraignment and thereafter submitted that the arraignment of the Appellant before Hon. Justice I. O. Adeleke at page 56 of the record disclosed procedural irregularities which ought to vitiate the entire proceedings, having violated Section 36(6)(a) of 1999 Constitution (as amended) and Section 215 of the Criminal Procedure Law of Osun State, CAP 35.

Learned counsel cited in aid the Supreme Court’s case of Olayinka vs. State (2007) 9

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NWLR (pt. 1040) 561 @ 586 which according to learned counsel, is very similar to the instant case on improper arraignment which was condemned by the apex Court, to submit that the arraignment of the Appellant was a mockery of what the law provided that a plea should be and as such rendered the entire trial defective. He urged us to resolve this issue for the Appellant.

Reacting on this issue vide their Issue No. 2, the learned counsel for the Respondent conceded while relying on Section 215 of the Criminal Procedure Law of Osun State that without a valid arraignment of an accused person, trial have not commenced in a criminal case. Counsel submitted that a critical look at page 56 of the Record clearly show that the requirements of valid arraignment was complied with since the accused was placed before the Court unfettered, the charge read over to him before he was called upon to plead to it and the plea was taken. However, learned counsel submitted that the absence of a record of proceedings stating that the charge or information was read and explained to the accused person in the language he understands and to the satisfaction of the Court will not

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render the arraignment invalid and the trial null and void. Furthering, counsel submitted that Section 215 of the Criminal Procedure Law does not stipulate that the language in which a charge is read and explained to an accused person must be expressly recorded before a plea may be valid; that, however it is only a good practice to do so.

Counsel commended the case of Okeke vs. State (2003) 15 NWLR (pt. 842) 25 @76 Para C, @ 79 Para D – F to submit that the requirement that the Judge should be satisfied that the charge has been read and explained to the accused is not one which needs to appear on record. He therefore urged us to hold that the requirements of valid arraignment were complied with in this case.

The fulcrum of the case of the prosecution in this case is on Exhibits A, B and F which are the Confessional Statements of the Appellant. That being the case, I shall resolve Issues 2 and 3 as raised by the Appellant’s counsel before resolving the Issue No. 1.

RESOLUTION OF ISSUE TWO (2)
As I have just hinted above, to determine whether the prosecution has proved this case beyond reasonable doubt against the Appellant, a re-examination

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of Exhibit “A”, “B” and “F” becomes very necessary. It is quite elementary in our criminal jurisprudence that Confessional Statement of the accused person is one of the established ways that the guilt of an accused person can be proved. According to Section … of the Evidence Act 2011, “a Confessional Statement is an admission made at anytime by a person charged with a crime tending to show or suggesting the inference that he committed the crime.”
It is the position of the law that a Confessional Statement can sustain a finding of guilt irrespective of the fact that the maker resiled from it or retracted it altogether during trial. See the case of Egboghonome vs. State (1993) 7 NWLR (pt. 306) 383 and Bature vs. State (1994) 1 NWLR (pt. 320) 267.

?It is equally trite in law that where the accused wishes to set up a defence that he did not make the confessional statement or that same was made involuntarily, such an accused is person expected to do so when the said Confessional Statement is about to be tendered by the prosecution or during his defence. I have carefully read through the entire proceedings at pages 43 to 64, especially pages 56 to 63 of the

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record of proceedings and could not see anywhere the accused person contested the tendering of the Confessional Statements on the ground that he did not make same or raised the defence of involuntariness as to the making of the confessional Statements.

?It is pertinent at this juncture to point out that the learned counsel for the Appellant vide his submissions on this issue, appears not have appreciated the fact that the conviction of the accused person by the trial Court was based majorly on his Confessional Statements and not on the evidence of PW1 and PW2. Having accepted the said Confessional Statements as positive and direct, the learned trial Court inferred from same all the ingredients of the offence of armed robbery and therefore convicted the Appellant. Had the learned counsel for the Appellant appreciated the above fact this much, he would have seen no reason to attack the evidence of PW1 as hearsay evidence. PW1 testified as to what he discovered during his investigation of the case as the 1st IPO. Also PW2 did the same as the second IPO. The Deputy Chief Security Officer to Osun State Polytechnic, Iree, Mr. Lawrence Adegbite was not an

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Investigating Police Officer (IPO) and never acted in that capacity. The evidence on record was that he, accompanied by some students brought the accused with a report that he went to Jekajose Hall, Estate Area and Wuraola Hall, Iree with others at large to collect students’ goods, items like handset and money through the use of weapon like knife. This piece of evidence cannot be construed to mean that Mr. Lawrence Adegbite obtained a Confessional Statement from the accused which the prosecution refused to tender before the Court. My humble understanding of that piece of evidence is that Mr. Lawrence Adegbite accompanied with some students brought the accused, reporting that he went to Jekajose Hall, Estate Area and Wuraola Hall, lree with others at large to collect students’ goods, items like handset and money through the use of weapon like knife.

In any case, like I said before, the conviction of the Appellant was solely based on his Confessional Statements which the learned trial Judge found to be positive, direct and voluntarily made. For instance at page 79 Paragraph 1, the learned trial Judge found as a fact thus:
“It would appear from the

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evidence before the Court that the main plank of the prosecutor’s case is the Confessional Statement of the accused person i.e. Exhibits A, B and F.”

Furthering, the learned trial Judge, after considering the statutory definition of confession vide Evidence Act, at Paragraph 3 of the same page 79 appraised the issues thus:
‘The evidence before the Court is that the accused person made extra judicial statements before the trial of this case at the police station. It is trite that where an accused person wishes to deny the fact that he is the maker of a Confessional Statement he must do so when the statement is about to be tendered by the prosecution. There was no objection to the tendering of the said Exhibits by the defence. Also, where an accused person alleges that a Confessional Statement was involuntarily made, he must do so during his defence. The accused person during trial never alleged that he was induced or forced to make the Confessional Statements. He in fact stated that he made the statement in Yoruba language and that it was interpreted by the police and he was asked to thumbprint which he did. The accused person in his statement

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before the police, particularly Exhibit B confirmed that he was armed when he visited the house of the victims and that he collected Nokia 1100 and Motorola handsets.” Can the Court rely on the confessional statement as true? Taylor F. J. in the case of Afolabi vs. C.O.P. (1961) 2 SCNLR 307 considered the test to be applied when he said
“….the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are there statements made in it of facts so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder? Is the confession possible is consistent with the other facts which have been, as in this case proved before us?
See also the case of Lasisi vs. State (2011) 52 WRN pages 118-167, Ratio 8 at 125. Exhibit D and E were recovered by the police. These are (1) stainless knife, and two handsets stolen by the accused and sold to unsuspecting customers. PW1 and PW2 gave evidence in this regard. This evidence has not been effectively countered by the defence.”

I cannot fault this appraisal of the law as respects Confessional

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Statement by the learned trial Judge. It is trite that a Court can conveniently convict on a confessional statement once it is satisfied as to its truth. See Nwangbomun vs. The State (1994) 2 NWLR (pt.327) 380; Egboghanome vs. State (1993) 7 NWLR (pt. 306) 383.

I must say that the insistence by the learned counsel for the Appellant that the prosecution failure to call as witnesses Mr. Lawrence Adegbite (Deputy Chief Security officer) and the alleged victims of the armed robbery is anything but otiose. The law is very clear that once the prosecution has discharged to the satisfaction of the Court the burden laid on it by law, it is of no moment that a particular witness or witnesses were not called. See the case of Bello Shurumo vs. The State (2010) 12 SCNJ, 47 and Emmanuel Ochiba vs. The State (2011) 12 SCNJ, 526.

It is to be noted that over the years, it has become a settled guiding legal principle that a trial Judge at the stage of writing judgment and making findings and decisions, appraises the evidence on each side of the divide and give the evidence on each side the probative value it deserves before arriving at a just conclusion of the case. On this

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voyage, he also determines which of the relevant evidence to believe, whether they are contradicted or not because he had the singular advantage of listening and watching the demeanor of the witnesses. See Duru vs. Nwosu (1989) 4 NWLR (pt. 113) 24 and Agala vs. Okusin (2010) 10 NWLR (pt. 1202) 412. l cannot agree more with the appraisal of facts in issue and applicable laws by the learned trial Judge.
Having ruminated this much, this issue is resolved against the Appellant.

RESOLUTION OF ISSUE 3
The grouse of the Appellant with this issue is that the arraignment of the Appellant when this case started “de novo” or anew before Hon. Justice I. o. Adereke was improper and thereby contravenes Section 36(6) of the 1999 Constitution of Federal Republic of Nigeria (as amended) and Section 215 of the Criminal Procedure Laws CAP 35 Laws of Osun State.

It is pertinent to produce the proceedings of 14th day of April 2011 at page 56 of the Record of Appeal that contained the arraignment complained about for ease of reference, thus:
“The Accused is Present.
J. A. Ayanyemi SSC for the State,
L. S. Betto for the Accused.
Plea of the

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accused to the charge 1st count – pleaded not guilty.
2nd count – pleaded not guilty.
3rd count – Pleaded not guilty.”

It is clear from the submissions of the learned counsel for the Appellant that the failure of the learned trial Judge to record that “count 1 is read over to the accused in Yoruba language (or any other language that the Appellant understands) and he pleaded not guilty” is fatal to the arraignment of the Appellant and ipso facto to the entire trial.

I have carefully read in-between the lines of Section 36(6) of the Constitution of Federal Republic of Nigeria 1999 (as amended) and Section 215 of the Criminal Procedure Law CAP 35 Laws of Osun State and I am unable to see where it was one of the requirements that the Court must ?record? “that the charge is read and/or explained to the accused person in the language he understands and he pleaded not guilty” for the arraignment to be valid.

For avoidance of doubt, the said Sections are hereby produced, thus:
“Section 36(6): Every person who is charged with a criminal offence shall
?(a) be informed promptly in the language that he understands and in detail of

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the nature of the offence.?
“Section 215 provides, thus:
“The person to be tried 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 serve of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.”

Since the law does not mandatorily require the Court to record particular words during arraignment, one is at a loss as to how to find fault with the learned trial Judge style of writing. It would have been a different kettle of fish if the complaint of the Appellant was that he was placed before the Court fettered, or that he did not understand the charges or that same was not read and explained to him in the language that he understands. To my humble mind it is enough to state that plea was taken and the accused pleaded not guilty. It must also be

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borne in mind that L. S. Bello Esq., learned counsel for the Appellant was in Court on that date and day of arraignment and did not raise any objection as to the manner of arraignment.

I have carefully read the case of Olayinka vs. State (2007) 9 NWLR (pt. 1040) 561 that the learned counsel for the Appellant relied heavily on, and it is obvious that the Apex Court allowed that appeal on other grounds and not solely on the ground of arraignment. In fact the complaint of improper arraignment was not considered at all in the lead judgment of that case. It was only Nikki Tobi, JSC that deprecated the manner of arraignment as improper in his contribution to the lead judgment by Tabai, JSC. Indeed that appeal was allowed because the learned trial Judge failed to consider the plea of “alibi” raised by the Appellant therein. Since the lead judgment by Tabai, JSC and the concurring contributions by Katsina-Alu, Kalgo and Muhammad, JJSC did not consider the issue of improper arraignment, it is not safe to conclude that the case of Olayinka vs. State (supra) is not authority that a record of proceedings of arraignment like in this case is improper and fundamental a flaw

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as to vitiate the trial. On the strength of the above reasons, I also resolve this issue against the Appellant.

RESOLUTION OF ISSUE 1
Since the crux of the prosecution’s case is the confessional statements of the Appellant which both the Court below and this Court had accepted to be true, positive and direct while resolving Issue No. 2, and the said confessional statements disclosed that the Appellant conspired with other persons at large to rob their victims; as can be glaringly seen on Exhibit F at page 102 to 105 of the Record of Appeal. This issue is therefore, without much ado, resolved against the Appellant.

Having resolved the three Issues raised by the Appellant in this appeal against the Appellant, this appeal is hereby dismissed for being devoid of any merit.

?Consequent upon the dismissal of this appeal, the conviction of the Appellant by Hon. Justice I. O. Adeleke of Osun state High Court, Ikirun Division on 29th day of March, 2012 in charge No. HIK/4C/2008 is hereby affirmed. But given my deep seated conviction that no human has the right to take away another’s life, I differ on the sentencing of the Appellant by the learned

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trial Judge. I found comfort for my conviction in the dictum of the Apex Court in the case of Benson Ukwunneyi & Anor vs. The State (1989) 4 NWLR (pt. 114) 13 @ 156 Paragraphs C – D, per Oputa, JSC (as he then was) who opined thus:
?I will conclude this concurring judgment by saying a few words about proof beyond reasonable doubt. This is the policy of our law. The policy derives from the fact that human justice has its human limitations. It is not given to human justice to see and know as the great Eternal knows, the thoughts and actions of all men. Human justice has to depend on evidence and inferences.
Dealing with the irrevocable issue of life and death, she has to tread cautiously lest she sends an innocent man to an early and ignoble death. In our system, it is therefore better that nine guilty persons escape than that one innocent man is condemned…”

On the strength of my conviction and the warning of the apex Court per Oputa, JSC cited above, I hereby reverse the sentence of death passed by the learned trial Judge to life

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imprisonment.

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Other Citations: (2016)LCN/8641(CA)