Yusuf Akeem V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
The Appellant was arraigned and prosecuted at the High Court of Justice of Ondo State sitting at Akure, in Akure judicial Division for the offence of Armed Robbery contrary to Section 1(2) (a) the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol 14 Laws of the Federation, 2004. The offence was allegedly committed on the 2nd January, 2011.
FACTS OF THE CASE
On the 2nd January, 2011 at about 12.40am, the Appellant was said to have entered the house of Mrs. Oguntoyinbo (PW.2) at Orita Obele estate on a robbery operation and informed her that the house was surrounded by his gang. He thereafter demanded for her Jewelry and money and also threatened to open the door and the Appellant carted away her money and Jewelry, but just before he left the house, he saw the picture of her late husband on the wall and asked her where her late husband hailed from and his name. She then told him, he was from Oba Akoko and also told him his name to which he exclaimed “oh lord ”
He collected her phone and that of her daughter and a sum above N2,000. The Appellant led the
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daughter of Pw2 to one Mr. Lanre Alonge (PW3) trying to get access to Pw3’s house. Mr. Lanre raised an alarm and the daughter took advantage of the opportunity to escape and the appellant also fled.
On the 10th January, 2011, PW. 2 received a call from father of her daughter’s friend, that she should see him at home. She went to see the man, and he told her that someone had been flashing his number and when he called back, a girl picked the phone and asked to speak with Aderonke who is PW.2’s daughter. On further enquiries as to why she wanted to meet Aderonke, the girl said she wanted to meet her because of the design on the phone (the stolen phone) that she would love to learn and would want to meet Aderonke to teach her. She also said someone gave her the phone and Aderonke’s name, always came up whenever she used the phone. After the conversation, PW.2 strategized on how to get the girl and enlisted the help of Mr. Lanre (PW.3) to help her. PW.3 established a relationship with the girl on phone and thereafter planned to meet her. They agreed to meet at Oke – Ijebu area of Akure and at the meeting point they saw the phone that was robbed from PW.2’s
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Daughter on the day of the incident. The girl was thereafter arrested and taken to the police station. At the Police Station she disclosed that the accused person gave her the phone and she led the police to where the accused person was arrested.
The appellant made an extra-judicial statement on the 13th January, 2011 which was admitted by the trial Court and marked as Exhibit B. It is on these facts that the Appellant was prosecuted and charged for committing Armed Robbery.
The trial Court, in its judgment dated 21st January, 2013 found the Appellant guilty and convicted him for Robbery contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act. The Appellant was however aggrieved. His appeal to the Court of Appeal, sitting at Akure, against his conviction and sentence for the offence of Robbery was on 5th June, 2014 dismissed, and the conviction and sentence were affirmed.
It is from this decision of the Court of Appeal, affirming the conviction and sentence of the Appellant for Robbery that this further appeal to this Court has arisen. Learned Counsel for the Appellant on the 1st December, 2014 filed his brief of argument
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and formulated 3 issues for the determination of his appeal.
“1. Whether the Court of Appeal was right in affirming the validity of the Appellant’s arraignment as being in compliance with fundamental principle of fair hearing. (Ground 1 of the Notice of Appeal).
- Whether the non-consideration by the Court of Appeal of the Appellant’s defence of alibi occasioned miscarriage of Justice. (Ground 2 of the Notice of Appeal).
- Whether the guilt of the appellant, as affirmed by the lower Court, i.e the Court of Appeal, was proved beyond reasonable doubt. (Ground 3 of the Notice of Appeal).”
However, the respondent in his brief of argument filed on the 30th July, 2015 formulated the following issues for determination.
“1. Whether the Court of Appeal rightly affirmed that the appellant’s arraignment was proper and did not Adversely affect his right to fair hearing (Ground 1 of the Notice of Appeal).
- Whether the defence of alibi could avail the Appellant in the circumstance of this appeal (Ground 2 of the Notice of Appeal).
- Whether the guilt of the Appellant was proved beyond reasonable doubt by the prosecution and as
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affirmed by their Lordships of the Court of Appeal. (Ground 3 of the Notice of Appeal).”
Looking at the issues as formulated by both Counsels, it is clear that the two counsels are in agreement with each other as per the issue for determination of this Appeal.
I shall therefore adopt the issues for determination as formulated by the learned counsel for the Appellant.
ISSUE 1
“Whether the Court of Appeal was right in affirming the validity of the Appellant’s arraignment as being in compliance with the fundamental principle of fair hearing.
Learned counsel for the Appellant submitted that the Appellant’s constitutional right to fair hearing from the inception of this case is pristinely sacred. He argued that Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides that.
Every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in details of the nature of the offence.”
He argued that, the law as depicted above constitutionally, procedural and judicially provides that the charge must be read to the
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accused person in the language that he understands. Learned counsel submitted that in this present appeal, the language in which the charge was read to the Appellant was not clearly stated on the record of proceedings of 13/06/2012.
Learned counsel argued that the appellant did not understand English language, which is the language of the Court, as at the material time he pleaded to the charge. He submitted that a valid arraignment is a condition precedent to an accused person’s trial, conviction and sentence the non fulfillment of which renders the whole trial nullity. He relied on EWE VS THE STATE (1992) 6 NWLR (Pt 246) 147 at 152.
He finally submitted that, any criminal trial conducted in violation of Section 2 of the Criminal Procedure Act and Section 187(1) of the Criminal Procedure Code as well as Section 36(6)(a) of the Constitution, Federal Republic of Nigeria 1999, (As amended) is a nullity reliance was put on RUFAI VS THE STATE (2001) 7 NSCR 420 at 427, 428 TOBBY VS THE STATE (2001) 6 NSCQR (Pt.1) 362 at 69. He urged the Court to allow this appeal on this all-important issue of invalid arraignment.
On the other hand, learned counsel
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for the Respondent submitted that the lower Court strictly complied with the mandatory requirements of Sections 215 of the Criminal Procedure Law and Section 36 (6) of the 1999 Constitution. He argued that the lone issue to be determined on the contention of the Appellant is whether Appellant understood English and therefore was properly arraigned.
He argued further that the Appellant on the issue of improper arraignment consistently based the Appellant’s lack of understanding of English language on the fact that the Appellant is a trader and had secondary school education. He cited the case of DIBIE & ORS. VS THE STATE (2007) 9 NWLR (Pt.1038) 30.
The learned counsel contended that the simple question to be asked therefore is why would the Appellant in one breath admit he is a trader who is not conversant with the acceptable use of the English language as customary with our Courts. And in another breath denied that the same statement was not written by the Appellant He further submitted that the entire argument is simply an afterthought meant to prejudice the mind of the Court.
He argued that the plea was read, and explained to the
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Appellant in English language by the Court clerk to the satisfaction of the Court before the trial Judge recorded the plea and therefore in total compliance with Sections 215 of the Criminal Procedure Law and 36 (6) (a) of the 1999 Constitution of Federal Republic of Nigeria (As Amended). He urged the Court to resolve this issue in favour of the Respondent.
The basic fundamental principle in the Constitution as provided under Section 36(6) of 1999 Constitution of the Federal Republic of Nigeria that, the person accused must be informed properly of the charge against him so that he will understand it. Should the accused not understand English language which is the language of the Court, the charge must be read and explained to him in that language he understands, presumable, through Court clerk. Section 33(6), (a) of the Constitution of the Federal Republic of Nigeria is very clear on the requirement of affording a person accused of committing any criminal offence with an interpreter, if he does not understand the language of the trial Court before his plea can be taken. This is fundamental right which is inalienable and non-negotiable.
Section 215 of
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the Criminal Procedure Law requires that the charge must be read over to the accused person in the language he understands to the satisfaction of the Court before he is called upon to plead to the charge. See the following cases:- OLABODE VS STATE (2009) 4 NCC 199 OGUNYE VS THE STATE (1999) 5 NWLR (Pt 604) 548 OKORO VS THE STATE (1998) 14 NWLR (Pt. 584) 18, EFFIOM VS THE STATE (1993) 1 NWLR (Pt. 373) 502 MONSURU SOLOLA & ORS VS THE STATE, 22 NSCQR 254 at PP 289-290.
However, in ANDREW IDEMUDIA VS THE STATE (1999) 5 SCNJ 47 at 62 per Karibi-Whyte, JSC (as he then was) held that:
“The requirement that the charge must be read and explained to the accused in the language he understands, in my opinion, presupposes that the accused does not understand English which is the language of Court. If he does not, the Court has a duty to put on record the language spoken by the accused. However, if the accused understands English, then it is not necessary to record this fact.”
Where the accused understands the language of the Court, it is not necessary to record the fact. lt is however good practice to ask the accused the question whether he understood
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the charge as read, but the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. See:- LATEEF ADENIYI VS THE STATE, 6 NSCQR (Pt. 11) 656 at 663 and 664.
In the instant case, page 12 of the record shows exactly how the plea of the Appellant was taken.
“The charge was read to the accused and then explained to him by the Court clerk and he pleaded not guilty to the lone charge.”
From the above, I am not convinced that the procedure above is not in conformity with the provision of Section 36 (6) (a) of the 1999 Constitution and Section 215 of the Criminal Procedure Law as claimed by the Appellant.
In ADENIYI VS STATE (2001) 13 NWLR (Pt. 730) this Court held that:
“Thirdly, the Appellant understood English. This is evident in the record. He made his plea and also gave his evidence in English. The omission by the learned trial judge to state that he was satisfied that the Appellant understood the charge is of no moment. Where the accused understands the language of the Court – English, it becomes unnecessary to record that fact. It is however, good practice to ask the accused the question
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whether he understood the charge so read and explained and to record the answer. But the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. I am therefore, in agreement with the Respondent that the Appellant was properly arraigned.”
Similarly, unless it appears very clear from the record that an Appellant did not understand the language used at the trial and that interpretation for his benefit was refused, all acts are presumed to have been legitimately done until the contrary is established. See:- MADU VS STATE (1997) 1 NWLR (Pt. 482) 386 at 401.
Throughout the proceeding, in his defence, the Appellant spoke English language at the trial. The charge having been read over and explained to the appellant in English language to which he pleaded not guilty thereto, I find it difficult to conceive how the arraignment of the Appellant can be faulted. Without doubt, it would have been better for the trial judge to add that the Court is satisfied with the arraignment, but failure to do so cannot be fatal to the trial so long as the charge was read over and explained to the Appellant. See:- UDEH VS THE
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STATE (1999) of NWLR (Pt.609) 1. ADENIYI VS THE STATE (Supra) ANDREW IDEMUDIA VS THE STATE (Supra)
Issue 1 is also hereby resolved in favour of the Respondent.
ISSUE 2
“Whether the non-consideration by the Court of Appeal of the Appellant’s defence of Alibi occasioned a miscarriage of justice. Learned counsel for the Appellant argued that a cursory perusal of page 21 of the record of Appeal reveals that the Appellant raised the defence of Alibi which was not considered by both the learned trial Court and the Court of Appeal.”
He submitted that the law is that an accused person’s defence no matter how stupid or fanciful, must be properly considered by both the trial and appellate Courts he cited AYAN VS THE STATE (2013) 7 S. C. (Pt. IV) 1 at 28.
He argued that in ADEBAYO VS THE STATE (2014) 5 – 6 S C. (Pt. 11) 68 at 100, this Honourable Court per Ariwoola, JSC held as follows.
“Alibi means when a Person charged with an offence says that he was not at the scene of crime at the time the alleged offence was committed. That he was indeed somewhere else and therefore he was not the person who committed the offence.”
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The learned counsel submitted that the non-consideration of the Appellant’s defence of Alibi has occasioned miscarriage of-justice. He urged the Court to so hold.
Contrary to the submission of the learned counsel for the Appellant above, learned counsel for the respondent submitted that the issue of Alibi raised by the accused person is an afterthought or fanciful story contrived by the accused in a desperate bid to save himself from the clutches of justice. He submitted that the defence of Alibi was raised by the Appellant in his oral evidence for the first time in Court and this defence is filled with contradictions which amount to a substantial disparagement of what was said making it unsafe to rely on.
Learned counsel argued that the principle of law is that the mere raising of such a defence, the facts which are exclusively within the knowledge of the accused and perhaps his witness without adducing evidence in support thereof would not be tantamount to a proper defence of Alibi, on the other hand, where the prosecution adduces cogent evidence of the physical presence of the accused at the locus criminis, it is relieved of the burden of calling any further
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evidence to destroy the Alibi raised. He cited the cases of OMOTOLA & ORS. VS THE STATE (2009) 8 ACCR Pg.78. ADEDEJI VS THE STATE (1971) 1 ALL NCR Pg. 75. He submitted that the Appellant did not call any witness to prove his Alibi since the facts of his Alibi are exclusively within his knowledge and thus do not amount to a proper Alibi.
He further argued that for a plea of Alibi to be sustained, it must be raised at the earliest opportunity preferably in the Appellant extra-judicial statement to the police when the antecedents of the events culminating in the arrest of the Appellant for the crime allegedly committed were still fresh in his memory. He finally submitted that Exhibit B which is the Appellant extra judicial statement has no iota of the defence of Alibi but rather – corroborates the oral evidence of PW.1 and PW.4 as to the locus criminis and he urged the Court to so hold.
The law is that it is not enough for an accused to raise the defence of Alibi at the stage of trial. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the Alibi. If the Appellant said he
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was in a particular place, he must give a lead as to the specific place, names and/or addresses of who to contact and the relevant period he was away from the scene of crime.
Therefore, where an accused person raises an Alibi, the defence must be unequivocal and must be given during investigation and not during the hearing of the defence. The mere allegation that he was not at the scene is not enough, the accused person must give some explanation of where he was, and who could know of his presence at that other place at the material time of the commission of the offence in question. See:- YANOR VS THE STATE (1965) 1 AII NLR 193, and OBIODE VS THE STATE (1970) 1 AII NLR 35.
In the instant case, the Appellant stated at page 21 of the record that:-
“I was in Abuja on 2nd January, 2011 and I only returned to Akure on 13th January, 2011. I was arrested during the morning hours of 13th January, 2011.”
From the above, it is clear that the Appellant raised the defence of Alibi for the first time in his evidence during cross examination at the trial Court. He did not raise it at the earliest opportunity to the police – there was no proper plea of the defence by the Appellant to require an consideration from this
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Court.
I agree with the learned counsel for the Respondent that Exhibit B which is the extra-judicial statement of the Appellant has no iota of evidence of Alibi but only corroborates the whereabout of the Appellant as testified by PW.4 and Pw.1 to be at the scene of the crime (locus criminis). In NDUKWE VS THE STATE NNCC at 4.
This Court per M. S. Muntaka-Coomassie, JSC, (as he then was) stated that:-
“In the case at hand, the evidence of PW1 and 2 who knew the accused person closely identified the accused at the scene of this dastardly Act. Their evidence is reliable. The defence failed to produce evidence to demolish that of the prosecution even though he got opportunity to do so, by calling witness or witnesses to support him.”
See:- also OMOTOLA VS THE STATE (2009) 4 NCC 89 LAWRENCE OGUNO VS THE STATE (2012) 7 NCC Pg 419 SALE DAGAYYA VS THE STATE (2005) 1 N.C.C 532 at 542-543.
From the foregoing, issue 2 is also resolved in favour of the Respondent.
ISSUE 3
“Whether the guilt of the Appellant, as affirmed by the lower Court, was proved beyond reasonable
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doubt.
Learned counsel for the Appellant submitted that an accused Person is presumed innocent under the Nigeria criminal law until the contrary is established. He cited Section 36 (5) of the Constitution of Federal Republic of Nigeria, 1999, as amended, which provides that.
Every Person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
He argued that the essential ingredient of the offence of robbery as contained in Section 1 (2) (a) of Robbery and Firearms (Special Provisions) Act Cap R11 were not met by the prosecution in the trial of Appellant as there was an ensuing doubt, in the whole of the prosecution.
He argued that the Court of Appeal heavily relied on Exhibit B (Appellant’s extra judicial statement) among other materials in affirming the conviction and sentence of the Appellant according to the learned counsel, Exhibit B was wrongly admitted and reliance on It occasioned a serious miscarriage of justice. He referred the Court to page 14 of the record of appeal, where the Appellant denied making the statement.
He cited the case of SHAZALI VS THE STATE (1988) 12 S. C. (Pt. 11)
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58 at 71 where this Court outlined the questions the Judge must ask himself, which are.
“(1) Is there anything outside the confession to show that it is true
(2) Is it corroborated
(3) Are the relevant statements made in it of facts, true as far as they can be tested
(4) Was the Prisoner one who had the opportunity of committing the murder
(5) Is his confession possible
(6) Is it consistent with other facts which have been ascertained and have been proved The learned judex went further to say that.”
“If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.”
Learned counsel further argued that a confessional statement that is itself defective and lacks corroboration cannot link an accused person to the commission of an offence, he relied on the decision of the Court in CHIBUILE VS THE STATE (2012) 1 – 3 S. C. 128.
He argued that the evidences of PW 1
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and PW 2 are not credible PW.1 was not at the scene of the incident. PW.4 on her own part did not know where or how the Appellant came into possession of the phone in question. PW.2 and PW.3 could not pointedly identify the Appellant as their assailant on the fateful day.
Learned counsel finally submitted that it is clear from the above that Appellant’s guilt has not been proved beyond reasonable doubt as provided under Section 135 of the Evidence Act and urged the Court to resolve this issue in his favour.
Learned counsel for the Respondent contended that the prosecution has proved the case of robbery against the Appellant beyond reasonable doubt.
He submitted that enough evidence was led at the trial Court to show that there was a robbery incident which took place at 27, Orita Obele Estate Akure in the house of Pw 2, Pw.2 narrated at the trial Court how the accused person came to her house and dispossessed her of her money and customized necklaces. The Respondent further submitted that since offence of robbery does not legally require corroboration, a Court can act on the evidence of PW.2 and PW.3 to the effect that this robbery was robbery
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as established by Exhibit P 2 and Pw.3 and Pw3’s oral evidence before the trial Court. He cited UGWUMBA VS THE STATE (1993) 5 NWLR (Pt.296) 660 at 674 and AKALEZI THE STATE (1993) 3 NWLR (Pt.273) at 13.
Learned counsel further argued that Exhibit B is a damning exposition of the active participation of the accused (Appellant) in the commission of this crime as sufficiently corroborated by the oral evidence of PW.1, Pw.2, PW.3 and Pw.4 as well as Exhibit P1.
It is well settled in law that free and voluntary confession of the Appellant to the police was, alone without corroborative evidence sufficient to support a conviction.
Learned trial Judge in his judgment stated at page 97 of the record that;
“In view of this, I have no doubt in my (sic) that it was the accused who attacked PW.2 and her daughter in her house in the morning hours of the 2nd January, 2011 at the Orita Obele Estate Akure. Exhibit B, the confessional statement of the accused is very positive as to this fact. The evidence of PW.4 is very strong and it decisively linked the accused to the robbery as the ITEL handset robbed during the robbery was founded with PW.4 some few
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days after the robbery and she told the Court that it was the accused that gave it to her some days earlier. The accused has not shown how he got the ITEL hand set. He merely set up the defence that he knew nothing about the hand set and that he was a victim of the evil design of PW.4 and the police. I am unable to buy this.”
Exhibit B which is extra judicial statement of the Appellant is reproduced below as follows:-
“Truly I gave ITEL handset to a girl who was arrested by the police I robbed somebody to collect the handset which leaked my secret, after the third day I returned from the operation, I met the girl at the market where she was purchasing brazier, I ask her to help me select some for my wife which she did when I paid and I also bought some for her at that process, I woo her and she agree and took me to their shop also I took her to my Aunty shop at Araromi Street, Akure to introduce her to my Aunty Joy …”
It is well grounded law that where on the production of a confession it is challenged on the ground that an accused person did not make it at all, the question whether he made it or not is a matter to be decided at the
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conclusion of the trial by the learned trial Judge himself. Whatever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it would be admitted in evidence as the issue of voluntariness or otherwise if the statement does not arise for consideration and decision of this Court See: QUEEN VS IGWE (1960) FSC 55; (1960) SCNLR 158; IKPASA VS ATTORNEY-GENERAL, BENDEL STATE (1981) 9 SC 7.
This Court again in SHUAIBU ABDU VS. THE STATE (2006) 12 SC (Pt. VI) at Page 103 held that:-
“… the prosecution heavily relied on the confession of the accused/appellant in proof of its case. I am mindful of the fact that a free and voluntary confession of guilt whether judicial or extra-judicial which is direct, positive and properly proved is enough to establish a conviction, so long as the Court is satisfied with its truth. See THOMAS AKPAN EKONG VS. THE STATE (2013) All FWLR (pt. 685) 353; ODEY v. F. R. N (2008) 3 -4 SC 142”.
However, in EGBOGHONOME VS. THE STATE (1993) 7 NWLR (pt. 306) 383 It was held that:-
“Where an extra-judicial confession has been proved to have been made voluntarily
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and it is positive and unequivocal and amount to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such u-turn does not necessarily make the confession inadmissible.”
See also QUEEN VS ITULE (1961) 2 SCNLR 183; AREMU VS. THE STATE (1984) 6 SC 85; EJINIMA VS. THE STATE (1991) 6 NWLR (Pt.200) 62: AKPAN VS. THE STATE (1992) 6 NWLR (Pt.248) 439 and AKINFE VS. STATE (1988) 3 NWLR (Pt.85) 729.
In SULE VS. THE STATE (2009) 4 NCC 456, this Court decided that:-
“A Court can still convict on a confessional statement alone even if the accused person resiles from it. A confessional statement is part of the evidence adduced by the prosecution”.
See also ADEKOYA VS. THE STATE (2012) 1 NCC page 7 and ONYEYE VS. THE STATE 7 NCC page 304.
From the foregoing, I agree with the trial Court when it admitted the extrajudicial statement of the Appellant and convicted him upon that. The trial judge held thus;
“l have no doubt in my mind that Exhibit B was truly made by the accused and it was fully
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corroborated by other evidence led in this case”
This issue is also resolved in favour of the Respondent.
Having resolved all the issues against the Appellant, I am satisfied that the prosecution has proved its case beyond reasonable doubt. The appeal is without merit and it is hereby dismissed. The conviction and sentence Under Section 1 (1) of the Robbery and Firearms (Special Provisions) of the Appellant is reconfirmed.
SC.589/2014
