David Oyedele V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The appellant with one Seyi Oyeneye were before the Ogun State High Court Per A. A. Akinyemi J. sitting at Abeokuta Judicial Division, charged with the offences of conspiracy to commit murder contrary to and punishable under Section 324 of the Criminal Code Law, Vol.1, Laws of Ogun State of Nigeria 2006 and murder contrary to and punishable under Section 319 (1) of the Criminal Code Law Vol.1, Laws of Ogun State of Nigeria, 2006. The learned trial judge convicted the accused now appellant who appealed to the Court of Appeal, Ibadan Division or Court below or Lower Court, Coram: A. A. B. Gumel. H. S. Tsammani and O. Daniel-Kalio JJCA which Court below dismissed the appellant’s appeal and affirmed the conviction and sentences including that of death by hanging hence the current recourse to the Supreme Court on appeal.

FACTS RELEVANT TO THE APPEAL:

By an application dated 11th September 2008, the respondent sought consent to prefer Criminal Proceedings pursuant to Section 340 Criminal Procedure Law of Ogun State, 2006 against one Seyi Oyeneye and David Oyedele (the present appellant).

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The Honourable Chief Judge of Ogun State further to Section 4 (2) Criminal Procedure Law of Ogun State, 2006 gave the requisite consent sought on 21st November, 2008 pursuant to which the respondent by information laid on 11th February, 2009 pursuant to Section 340 (2)(b) Criminal Procedure Law of Ogun State, 2006 indicted one Seyi Oyeneye (as 1st Accused) and the appellant (as 2nd Accused) on a two (2) count charge of conspiracy to commit murder and murder contrary to the combined effect of Sections 316 (2) and 324 Criminal Code Law of Ogun State, 2006 and punishable under Section 319 (1) thereof.

Both accused persons, i.e. Seyi Oyeneye (the 1st Accused) together with the present appellant were subsequently arraigned on 29th July, 2009 before the Honourable Justice E. O. Osinuga sitting at the High Court of Ogun State sitting at Abeokuta when the following was recorded to have transpired:

“Mr. O. T. Olaotan – Director Law Development appearing with Mr. A. O. Lapite – State Counsel for the State.

Mr. O.O. Ogah – Principal Legal Aid Officer for the 2nd accused person.

Mr. Olaotan – The plea of the accused persons

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are yet to be taken.

Mr. Ogah – We are prepared for the plea to be taken now sir.

Charge is read and explained to each of the accused persons in Yoruba language.

Each of the accused persons says he understands the charge.

Plea: 1st Count: 1st Accused – Not Guilty

2nd Accused – not Guilty

2nd Count: 1st Accused – Not Guilty

2nd Accused – Not Guilty”.

Trial in Plenary took place before the Honourable Justice A. A. Akinyemi on 20th July, 2010; 20th February, 15th May, 28th June, 4th July, 18th October and 12th December, 2012; 14th January, 15th May, 6th and 7th June and 31st July, 2013. In the course of trial, the following transpired at the proceedings of 15th May, 2012.

“Accused persons present.

Mrs. F. O. Shittu… SC for the State.

O. B. Odeyale for the 2nd accused person.

R. Kolade CPD for the 1st accused person.

Odeyale: I have just been briefed. I need time to study the case.

COURT: Take the plea of the accused persons again. Registrar: Do you understand English or Yoruba Each accused persons: We understand Yoruba.

Registrar: Reads Count 1 to

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accused persons in English. Interprets it in Yoruba.

1st Accused: I understand it. PLEA: Not guilty.

2nd Accused: I understand the charge. PLEA: I am not guilty.

Registrar: Reads Count 2 and interprets it in Yoruba, 1st Accused: I understand the charge.

PLEA: I am not guilty.

COURT: The case is fixed for hearing on the 28th June, 2012.

Accused persons shall continue to be remanded at Ibara Prison, Abeokuta.

Sgd.

A.A. AKINYEMI JUDGE

15/05/2012”.

Furthermore, in the course of the trial, the respondent (as Prosecution) called five (5) witnesses between 28th June, 2012 and 15th May, 2013 namely: Nofiu Onifade (PW1), Inspector Adeolu Mojeed (PW2), Saheed Babatunde (PW3), CSP (Rtd.) Babatunde Alli (PW4) and Dr. Ogunsina Gbenga Sikiru (PW5) while each of Seyi Oyeneye (1st Accused person) and the present appellant, David Oyedele (2nd Accused person) testified in their own respective behalves, and defence as DW1 and DW2 on 6th and 7th June and 31st June 2013. The following items were also variously tendered and admitted in evidence:

(a) The statements to the police of the 1st Accused person

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in Yoruba and English language marked Exhibits A and A1 respectively through PW2.

(b) The statements to the police of the 2nd Accused person (present appellant) in Yoruba and English languages marked Exhibits B and B1 respectively through PW2.

(c) The statements to the police of the 1st Accused person in Yoruba and English languages marked Exhibits C and C1 respectively through PW4.

(d) The statement to the police of the 2nd Accused person marked Exhibit D through PW4.

(e) Two Dane Guns marked Exhibits E and F through PW4.

(f) 1 Local Double Barrel (Gun) marked Exhibit G through PW4.

(g) 2 Cutlasses marked Exhibit H and H1 through PW4.

(h) One Walking Stick marked Exhibit through PW4.

(i) Brown Bag with 10 Cartridges inside including 1 unexpended marked Exhibit K through PW4.

(j) A Yellow Rope marked Exhibit L through PW4.

(k) Four Photographs marked Exhibits.

(I) Medical Report dated 18/06/2006 marked Exhibit N through PW4 and identified issued by PW5.

At the end of the trial on 31st July, 2013, the following was recorded to have transpired:

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“Odeyale: That is the case for the 2nd Accused.

COURT: The Accused persons shall file and serve their Written Addresses within 21 days from today, prosecutor shall file and serve theirs within 21 days.

Therefore, all the accused persons shall file their Reply on law within 7 days thereafter.

The case is adjourned to 8th October 2013 for adoption of final Address(es).

Sgd.

A. A. AKINYEMI

JUDGE

31/7/2013”.

At the close of the trial and adoption of final addresses, the Court fixed a date of judgment and on the 7th January 2014 delivered his judgment, convicting the accused and sentenced him to two terms of death by hanging. The Court of Appeal affirmed the conviction and sentences.

The appellant aggrieved has now come before this Court vide Notice of Appeal of four grounds.

On the 25th day of October, 2018 date of hearing, learned counsel for the appellant, Kolawole Esan Esq. adopted the brief of argument filed on 2416/2016,

1) Whether Exhibit B and B1 relied upon the Court of Appeal in affirming the judgment of the trial Court passed the test required and therefore qualified as a confessional statement to justify and sustain the conviction of the

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appellant. (Ground 1).

2) Whether Exhibit B and B1 held to be a confessional statement by the Court of Appeal in affirming the trial Court’s judgment were corroborated by other pieces of evidence outside the confession. (Ground 2).

3) Whether the Court of Appeal did not err in law and thereby occasioned a miscarriage of justice when in its consideration of Issues 1, 2 and 3 formulated by the appellant, it failed to consider Issue 2 which touched on the germane issue of fair hearing. (Ground 3).

4) Whether the Court of Appeal did not err in law in its failure to consider the issue of conspiracy separate but rather tied it to the guilt of the appellant to the count of murder. (Ground 4).

Learned Attorney General of Ogun State, Dr. Olumide Ayeni adopted the brief of argument of the respondent, filed on the 19/9/16 and formulated two issues for determination which are thus:-

i) Whether the respondent as prosecution proved the commission of the offences with which the appellant was charged, tried, convicted and sentenced on a standard of proof beyond reasonable doubt having regard to the entire circumstances of the case and with

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particular reference to corroboration of Exhibits B, B1 and D being confessional statements ex abundanti cautela. (Culled from Grounds 1 and 2 of the Notice of Appeal).

(ii) Whether appellant’s constitutional right to fair hearing and/or natural justice was in any way violated by reason of the judgment of the Court of Appeal of Nigeria affirming his conviction and sentence by the trial High Court of Ogun State. (Culled from Grounds 3 and 4 of the Notice of Appeal).

I shall utilise the two issues as identified by the respondent in the determination of this appeal.

ISSUE 1:

Whether the respondent as prosecution proved the commission of the offences with which the appellant was charged, tried, convicted and sentenced on a standard of proof beyond reasonable doubt having regard to entire circumstances of the case and with particular reference to corroboration of Exhibits B, B1 and D being confessional statements ex abundanti cautela.

Learned counsel for the appellant contended that the Court of Appeal in coming to its conclusion completely misread and misapplied the contents of Exhibits B and B1 and was in error in affirming the decision

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of the trial Court and so an instance for the intervention of the Supreme Court to disturb the concurrent findings of the two lower Courts. He cited Mbenu v The State (1988) NWLR (Pt,84) 615 at 626; Ogoala v The State (1991) 12 NWLR (Pt.175) 509 at 528; Ikem v State (1985) 1 NWLR (Pt.2) 378 at 385; Oshoboja v Amida (2009) 18 NWLR (Pt.1172) 188 at 202-203; Okhuarobo v Aigbe (2002) 9 NWLR (Pt.771) 29 at 85.

That there is nothing on record to show that Exhibits B and B1 were corroborated as the Court below found. He relied on Ubierho v The State (2005) 5 NWLR (Pt.919) 644 at 656; Alake v The State (1992) 9 NWLR (Pt.265) 260 at 273.

In response, learned counsel for the respondent submitted that the position of the law is that in proving a charge of conspiracy, it is a matter of fact inferable from the circumstances of each case, which on the strength and material in this appeal is clearly established which offence may be express or implied. He cited Kaza v The State (2008) 7 NWLR (Pt.1085) 125 at 154; Upahar v The State (2003) 6 NWLR (Pt. 816)230 at 239;

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Shodiya v The State (2013) 12 Sal 175 at 187 etc.

That the facts, material and evidence at the trial are sufficient to satisfy the ingredients of the two counts offences with which the appellant was charged and convicted and the Court of Appeal right to affirm the earlier decision of the trial Court. He relied on Shehu v State (2010) 8 NWLR (Pt.1195) 112 at 135; Eholor v Osayande (1992) 6 NWLR (Pt.249) 524 at 548; Igbi v The State (2000) 3 NWLR (Pt.649) 169; Theophilus v The State (1996) 1 NWLR (Pt.423) 139; Enang v Adu (1981) 11-12 SC 25; Oshodi v Eyifunmi (2000) 13 NWLR (Pt.684) 298 a6 332.

The stance of the appellant is that in nowhere in the extra – judicial statements of the appellant, B1 and B2 did he admit that the deceased was shot in the mouth though appellant admitted shooting into the air that hit the deceased on his mouth. That the situation was such that there needed proper proof from the prosecution that the deceased was shot in the mouth and by the appellant.

The respondent taking the opposite stand stated that the facts, material and evidence at the trial are

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sufficient to satisfy the ingredients of the two counts of the offences viz, conspiracy and murder which the accused was charged and convicted. Also that the angle put forward by the appellant does not represent what is borne out of the record.

The findings and conclusion of the learned trial judge which the Court below agreed with thereby producing the concurrent findings before the Supreme Court which while the appellant is asking the Court to interfere and upset those findings as perverse, the respondent urges non – action by the Supreme Court on the ground that nothing happened in the face of those findings of the two Courts that could persuade this Court’s disturbing them and the conclusion that was arrived at.

The need to go into the recesses of earlier decisions comes to play. In respect to the offence of conspiracy, it is a matter of fact inferable from the circumstances of each case since the meeting of the minds towards a common purpose for an illegal act between two or more persons are usually a secret mission only known to the participants in the agreement. Also the agreement must be express in furtherance of the agreement.

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See Kaza v The State (2008) 7 NWLR (Pt.1085) 125; Upahar v The State (2003) 6 NWLR (Pt.681) 230 at 230 at 239; Shodiya v The State (2013) 12 SCM 175 at 185.

In regard to the ingredients of the offence of murder, the Supreme Court had in the case of Ibikunle v The State (2007) 2 NWLR (Pt.1019) 546 at 582 per Onnoghen JSC (as he then was) held thus:-

“(1) If the offender intends to cause the death of the person killed, or that of some other person;

(2) If the offender intends to do to the person killed or to some other person grievous harm…, is guilty of murder”.

Those ingredients of the two offences charged in view alongside the prevailing legal principles a glimpse of what the learned trial judge and judgment delivered on 7th January, 2014 the trial High Court of Ogun State sitting at Abeokuta would lend some insight thus:-

“From the evidence before this Court, the deceased was not attacking or about to attack the 1st accused rather he was going about his business when the 1st accused challenged him. It was actually the deceased who was trying to defend himself from the attack of the 1st accused.

I am absolutely in no doubt, considering the

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totality of the evidence before the Court that the 1st accused person, and indeed, both accused persons, were not acting in self-defence that night. The evidence of the 1st accused in this regard was nothing but a desperate after-thought, the effort of a drowning man trying to claw at a straw. I disbelieve and reject it completely as a blatant lie. Assuming but without conceding that they were actually acting in self-defence, the mode of their response and the amount of harm done to the deceased grossly out-weighed whatever danger if any, that the deceased may have posed to them”.

On appeal, the Court of Appeal went to great length to evaluate what the trial High Court had done in my humble view out of abundance of caution and for effect I shall quote that Court extensively for clarity per Daniel-Kalio JCA, thus:-

“A keen examination of the above statement reveals that it is confessional being one that clearly states or suggests the inference that the appellant committed the offence he was charged with, to wit, murder. In the statement, the appellant admitted that Semiu Babatunde was killed; he admitted that he was at the scene of the crime; he

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admitted that he carried a gun which he fired; he admitted that no one else fired a gun; and he admitted that the deceased was shot in the mouth. His statement that he did not know whether the shot to the mouth of the deceased was as a result of the shot he fired is a copout. Having admitted that no one else fired a shot that night, it does not require a genius to conclude that the shot was fired by the appellant. There was nothing in the statement that was exculpatory of the appellant.

Although the confessional statement is clear, it is the law that it is desirable that it should be corroborated by some other evidence outside the statement no matter how slight. The learned trial Judge referred in his judgment to evidence he considered to be corroborative of the confessional statement. The learned trial judge considered the evidence of PW3 the evidence of PW2. the evidence of PW1 the evidence of PW4 the Divisional Crime Officer of Ibara Police Station who led a team of policemen to the scene of the crime, and came to the conclusion at page(s) 135-136 of the Record of Appeal.

I agree that the evidence of the witnesses

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referred to by the learned trial judge corroborate the confessional statement. I go further to say that the pieces of evidence were not merely corroborative of the confessional statement of the appellant but reinforce it strongly.

Perhaps I should make a comment or two about the evidence of PW5, the Medical Doctor that the appellant’s learned counsel tried to discredit. The witness testified that upon a post-mortem examination of the deceased, he found that the deceased had a gunshot wound on the right side of the mouth (See at page 74 of the Record of Appeal). Appellant’s learned counsel submitted that the evidence of the Doctor was not based on any scientific finding but on mere observation. I dare say that observation is important in any scientific examination and more especially in a medical examination. In any case, the observation of a gunshot wound to the mouth corroborates the confessional statement of the appellant who said there was a gunshot wound to the mouth of the deceased but eerily tried to refuse to accept blame for it, forgetting that he had stated that he was the only one that fired a gunshot on the

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day of the incident.

At any event, it is the law that although medical evidence as to the cause of death is desirable, it is not essential in all cases as in the absence of a medical report the Court can infer the cause of death from other evidence adduced. My view is that the evidence of PW5 (the medical doctor) also corroborates the confessional statement and that even if it is taken off the table, that is to say, disregarded, the confessional statement massively corroborated by other pieces of evidence already mentioned, provide evidence beyond reasonable doubt that the appellant is guilty of the offences for which he was charged”.

The learned appellate Justice went on to state as follows:

“Issue 4 as will be recalled is concerned with whether the learned trial Judge was correct in holding that outside the confessional statement of the appellant there were other pieces of evidence proving beyond reasonable doubt that the acts of the appellant caused the death of the deceased. It should be clear from my consideration of issues 1, 2 and 3 above that issue 4 was also treated and resolved. It is

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therefore unnecessary to consider issue 4 separately. Issue 4 is also resolved against the appellant.

It will appear that the appellant skipped issue 5 and went on to consider issue 6. By so doing, I take it that the appellant has abandoned his issue 5.

Issue 6 has to do with whether the offence of conspiracy was proved. Learned counsel submitted that the conspiracy to be established, there must be an agreement between the accused persons to execute an agreed act and that the agreed act must be unlawful…

Conversely therefore, where an appellant has been found guilty of the substantive offence (in this case murder), he cannot be found to be not guilty of conspiracy to commit the offence. The basis for this legal position was explained in

Njovens v The State (1973) All NLR 371 and it is that the overt act or omission which evidences conspiracy is the actus reus and the actus reus of each and every conspiracy must be referable and is very often the only proof of the criminal agreement call conspiracy. In other words, the act of murder (actus reus) is the proof of the conspiracy (criminal agreement) to commit murder. Issue 6 is resolved

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against the appellant.

Evidence before the trial Court showed that the appellant took part in the merciless killing of the deceased. It was murder most unspeakable. The learned trial Judge rightly found the appellant guilty as charged. The appeal has no redeeming feature. It lacks merit and it is dismissed. The judgment of the lower Court is affirmed”.

The two offences in issue are conspiracy and murder and the relevant statutory provisions are hereunder quoted thus:-

“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:

(2) if the offender intends to do to the person killed or to some other person some grievous harm; is guilty of murder.

In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.

319 (1) Subject to the provisions of this section any person who commits the offence of murder shall be sentenced to death.

324. Any person who conspires with any other person to kill any person, whether such person is in Nigeria or elsewhere, is guilty of a felony, and is liable to imprisonment

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for fourteen years”.

What has been portrayed above are the concurrent findings of the two Courts below and it is stated the now obvious position of the law that the Supreme Court will not reverse the concurrent findings of fact unless the appellant has established exceptional or special circumstances which impels the Court to act. In the case at hand such compulsion to change the course of events as placed on record by the two Courts below are clearly absent thus making it imperative for this Court to hold its peace and not embark on a hunting expedition or fishing manoeuvres just to prove an empty intellectual point especially in this instance where the Court’s below found that Exhibits B and B1, the confessional statement put forward the inference that appellant committed the offences and the manner of execution. Also there were other pieces of evidence lending corroboration to the confessional statement including the medical report as tendered by the medical doctor and so all the requirements upon which a Court particularly that of trial should utilise in acting on a confessional statement to support a conviction are clearly on display. The situation

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on ground in this case at hand goes along the route pathway already trod by this Court faced with concurrent findings of fact of two or more lower Court’s upon which this Court has no business interfering or intervening or upsetting what had earlier been done. I place reliance on Ibikunle v The State (2007) 2 NWLR (Pt.1019) 546, 582, 571, 567, 575, 579 and 584-585; Shehu v The State (2010) 8 NWLR (Pt.1195) 112 at 135; Okonkwo & 4 Ors v Okonkwo & 5 Ors (2010) 14 NWLR (Pt.1213) 228 at 246; Agbi & Ors v Ogbeh (2006) 11 NWLR (Pt.990) 65.

The long and short of the poser before Court as found by the two Courts below and which I have no difficulty agreeing with is that appellant and his co-accused were not acting in self-defence that night of incident and the admission of the appellant was to the effect that he was at the scene of crime at the material time and shot the deceased in the mouth and no one else by his admission shot a gun that night which caused the death of the deceased. Therefore those concurrent findings of the two Courts below are upheld.

ISSUE 2:

Whether appellant’s constitutional right to fair hearing and/or natural

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justice was in any way violated by reason of the judgment of the Court of Appeal of Nigeria affirming his conviction and sentence by the trial High Court of Ogun State.

For the appellant it was advanced that the trial Court failed to consider one of the statements of the appellant, Exhibit D on the ground that it was admitted without an English translation but the correct position was that it was actually the English version that was admitted in evidence without the Yoruba translation. That the trial Court had a duty to have the Yoruba version translated to English. He cited Damina v The State (1995) 8 NWLR (Pt.415) 513 at 539; Olayinka v The State (2007) 9 NWLR (Pt.1040) 561 at 579.

That the failure of the Court of Appeal to pronounce upon the crucial matter of the statement, Exhibit D lead to a miscarriage of justice. He cited Irolo v Uka (2002) 14 NWLR (Pt.786) 195 at 225; Onochie v Odogwu (2006) 6 NWLR (Pt.975) 65 at 904.

Learned counsel for the appellant contended further that there are instances when an accused person can be discharged on a charge of conspiracy but convicted on the substantive offence

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and in this case at hand the offence of conspiracy was not made out. He cited Stile v The State (2009) 17 NWLR (Pt.1169) 33 at 63-64; Mumuni v The State (1975) All NLR 295 at 308; Nwosu v The State (1986) 4 NWLR (Pt.35) 348 at 359.

Learned counsel for the respondent stated that there is no merit in the position of the appellant on this issue which should be discountenanced and the cases cited by the appellant were not helpful.

What I see in this Issue has to do with the failure of the trial Court making a pronouncement on the prosecution failing to produce both the English and Yoruba version of Exhibit D since that Court made the mistake of thinking that it was the Yoruba version of Exhibit D that was admitted even though in reality it was the English version. The appellant posits that the error produced a miscarriage of justice for which the Court should look favourably on the matter and resolve the situation advantage of the appellant.

The respondent taking the contrary view on the ground that the mistake was too minor and would not tilt the balance of justice as substantially the prosecution had effectively discharged the burden of proof laid

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upon it beyond reasonable doubt.

Indeed, I am inclined to the slant placed forward by the learned Attorney-General for the respondent that all that was expected of the prosecution in proof of the offences of conspiracy and murder was done and the learned trial judge had carried out his duty when rendering the judgment with all the necessary requirements in place and so this minute technical point that appellant is harping on has no effect on the substantiality of the proceedings conviction and sentence. This Court has had occasion to lay down what is required of a judge when writing a judgment and I shall have recourse to the case of Ishola & Ors V Folorunsho & Anor (2010) 13 NWLR (Pt. 1210) 169 at 195 per Muhammad JSC, thus:-

“… the fundamentals in writing a good judgment which a trial Court is enjoined to adhere to comprising of among other requirements, such as:

(a) making a brief statement of the type of action/office being adjudicated upon;

(b) setting out the claim/offence in full or in part;

(c) a review of the evidence led;

(d) appraisal/evaluation of such evidence;

(e) making findings of fact therefrom;

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(f) consideration of the legal submission made and/or arising, and findings of law on them and

(g) conclusion, that is verdict/final decision/order(s).

Yet, it is not infrequent that you find different judges with different styles of writing judgment. Some are so brief in nature, other are (verbose) and some may decide to take a middle course. Whichever style a judge adopts, what is important is clarity in the language in which the judgment is written and delivered and that justice should be seen by all to have been done to the parties in dispute. A retired Justice of this Court had an opportunity to observe, while he was sitting as a Court of Appeal Judge, that a succinct or concise judgment in this con must not be too brief. It should certainly not be long. It should be of average length and this involves covering all the required contents of a good judgment in summary.”

Clearly the two Courts below acted within the expectations of a good judgment and what the appellant is pointing at would not change the course of events and really is of no moment since the prosecution discharged its duty of proof beyond reasonable doubt of

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the offences charged.

The issues raised on either side having been resolved in favour of the Respondent and against the Appellant, I must say, there is no basis for this Court’s interference with what the two Courts below have done.

The appeal lacks merits and I dismiss it as I affirm the judgment of the Court of Appeal which had in turn upheld the conviction and sentences of the accused/appellant.

Appeal Dismissed.

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SC.296/2016