Michael Okeke V. The State (2016)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A. 

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

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

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

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

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

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

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

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

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

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

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and secondly by considering the evidential worth of the direct oral testimony of the PW1 in respect of the charge of burglary.

Learned counsel for the Appellant argued that Exhibit A was the alleged confessional statement credited to the Appellant and was made while in custody of the police and PW3 who was the vehicle through whom Exhibit A was conveyed into evidence had stated at page 23 of the record thus:
“The case was reverted to my team for investigation. Sergeant Segun Oguntola was a member of my team. Sgt Babatunde Richard, Inspector Damaillan Sulaiman were members of my team, we work together in the team. Sgt Oguntola was the main Investigating Police Officer of this case. Sgt Oguntola had since been promoted and he is now somewhere in Oyo State. I know the handwriting and signature of Sgt Oguntola. I was not present when the statement was taken. But the statement shown to me is in the handwriting of Sgt Oguntola.?

Counsel submitted that when the statement was sought to be tendered, the Appellant’s counsel at the Court below raised an objection that the unsigned and undated statements was inadmissible in law but the

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objection was overruled.

Learned counsel to the Appellant submitted that the Appellant while under cross-examination stated that he did not make any statement to the police and therefore Exhibit A in that circumstances was inadmissible because it was settled law that a retracted or denied extra judicial statement is inadmissible in law. Counsel referred to the cases of Isah vs. State (2010) 16 NWLR (Pt.1218) 192, Ike vs. State (2010) 5 NWLR (Pt.1186) 41, Sabi vs. State (2011) 14 NWLR (Pt.1268) 421.

Learned counsel submitted that since Exhibit A, the alleged confessional statement of the Appellant was unsigned it therefore lacked any probative value because the law is trite that an unsigned document is a worthless piece of paper without any legal efficacy. Counsel referred to the case of Omega Bank (Nig.) Plc. Vs. OBC Ltd. (2005) 8 NWLR (pt.928) 547 @ 576 E-F.

Learned counsel for the Appellant queried the fact that in addition to the document being unsigned, PW3’s evidence on page 23 of the Record that “I was not present when the statement was taken” showed that he was not in a position to know if the Appellant in actual fact made the

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confessional statement in Exhibit A or not and therefore should not place him in the position to assert any evidence concerning Exhibit A.

Learned counsel also submitted that there was no evidence from pW3 to clarify the disparity in dates between Exhibit A and the charge, because he knew nothing about the making of Exhibit A; counsel therefore queried the learned trial Judge’s averment on page 37 of the record where he held thus:
“The statement of the accused in Exhibit A seems to make allusion to the event charged. Although the date given for the break in was 25th April, 2010, it would seem that the date is wrong. This is because the accused conceded that he was not arrested and there is no evidence that the accused was arrested twice.?

According to the counsel, this reasoning of His Lordship was unsolicited and unwarranted and opened the learned Judge to assumptions and speculations. Counsel referred to the cases ofOladele vs. State (1993) 1 NWLR (pt.269) 294; Ogunonzee vs. State (1998) 5 NWLR (Pt.551), Ahmed vs. State (2001) 18 NWLR (Pt. 746)622.

Counsel for the Appellant submitted that where the defence of

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non est factum in relation to Exhibit A was raised then, there ought to be a specific finding as to whether the Appellant made the said Exhibit before the issue of retraction would be considered. Counsel referred to the case of Aiguoreghian vs. State (2011) 6 NWLR (pt. 1242) 138 @ 402 – 403 paras H & A – H, Oseni vs. State (2011) 6 NWLR (pt. 1238) 429, Alhassan vs. State (2011) 3 NWLR (pt. 1234) 253, Kalu vs. State (2011) 4 NWLR (pt. 1238) 429.

Counsel for the Appellant therefore submitted that in light of the above, Exhibit A carries no weight but even if it is given another perspective, a careful scrutiny of Exhibit A shows that Exhibit A cannot be regarded as a confessional statement in the eyes of the law as shown by the relevant portion of its content thus:
‘Consequently, on Sunday 25th April, 2010 in the evening, myself and these my gang members planned to go and break a shop at Sabo, eventually when it was in the early morning of Monday 26th April, 2010 Onyebuchi and Go Slow went and do the operation. But they met the owner of the shop inside when they were trying to break the shop so they tried to run back so the owner of the

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shop started shouting thief and they were running. But they ran to the side where I and Dayo were sleeping but as we heard this noise from our sleep, we too started running so the people pursued us and caught us.”
Counsel submitted that Section 28 of the Evidence Act 2011 defines a confession as an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed a crime.

Counsel noted that from the instant case, there is an alleged admission in the confessional statement by the Appellant of planning with the others at large to break into the shop but the statement went on to explain that he, the Appellant did not know when his co-planners executed the foiled burglary and did not take any part whatsoever in the execution. Counsel therefore reiterated that Exhibit A was not a confessional statement at least in the light of what is confessional statement, counsel referred to the case of Omisade & Ors. Vs. The Queen (1964) NSCC 170 @ 185, lines 6- 17.

The learned counsel for the Appellant submitted that the fact that the Appellant conceived the plot without partaking in the burglary

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is not enough to make the Appellant guilty of the offence of Attempted Burglary.

Learned counsel for the Appellant argued that assuming Exhibit A is a confessional statement, it was inconsistent with the facts proved in the case. The records of proceedings refers to a criminal transaction of Sunday, 25th of April, 2010 while the concern at the trial referred to a burglary that allegedly took place on the 3rd of May, 2010, which according to the learned counsel had not taken place when the Exhibit A, confessional statement was made. Counsel therefore submitted that this implied that these referred to two different criminal transactions, especially in consideration of the fact that there was no corroboration to Exhibit A.

Also, the learned counsel while arguing on the evidential worth of PW1’s testimony in proof of the offence of attempted burglary submitted that PW1’s testimony of being informed by one Abdullahi Abubakar that someone was burgling into his shop at 4.00 a.m. on the 3rd of May, 2010, took him to the shop where he saw the Appellant attempting to break in and he raised an alarm and with the aid of his neighbours the Appellant was

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pursued and caught. According to the learned counsel for the Appellant, he argued that the Appellant maintained that he was not arrested by PW1 at the scene of the crime but at his house. It was therefore counsel’s submission that in view of the conflicting evidence and failure of the prosecution to prove that the statements in Exhibit A were volunteered by the Appellant, the lower Court still regarded Exhibit A as credible and believable. Counsel submitted that belief can only be questioned on appeal if it is obviously against the logical drift of the evidence considered as a whole or against the impact of the wave of probabilities disclosed by the evidence. Counsel referred to the cases of Adefumola vs. The state (1988) 1 N.S.C.C. 465 page 470 lines 45 ? 54, Ofortete vs. State (2000) 12 NWLR (pt.681) 415, Ebre vs. State (2001) 12 NWLR (pt. 728) 617.

Counsel submitted that the lower Court did not take into consideration the defence of the Appellant and evaluate same alongside the case of the prosecution. Counsel referred to the cases of Yahaya Farouk Chedi vs. A. G. Federation (2006) 13 NWLR (Pt.997), Atiku vs. State (2010) 9 NWLR, Aregesola vs.

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Oyinlola (2011) 9 NWLR.

Concluding his submission, the learned counsel for the Appellant urged this Honourable Court to resolve this conjoined issues in the Appellant’s favour, to discharge and acquit him.

On the part of the Respondent, the learned counsel while making his argument on issue One submitted that the combined perusal of the findings of the trial Court contained on pages 38 and 39 of the Record of Criminal Appeal (pages 9 and 10 of the trial Court’s judgment) show that in the lower Court’s arrival at its findings, the trial Court placed heavy reliance on the evidence of PW1 as Corroborated by Exhibit A (the confessional statement of the Appellant) and the Court noted rightly that the evidence of PW1 was credible and believable evidence.

The learned counsel for the Respondent argued that the Appellant’s attempt to wind down the evidential value of Exhibit A was feeble as the argument was mainly centred on the twine issue of date and signature of the confessional statement credited to the Appellant rather than the contents of confessional itself. Counsel noted that a causal view of Exhibit A shows that the statement was marked

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at the space provided for the signature/marks of witness/accused, and the marking or signing reflect the name of the Appellant, Mike Okeke. Counsel stated that the law’s position remains clear that when a statement is being made, the important signature is the statement of the maker and not that of the recorder and that a document, even if unsigned, does not make it inadmissible, the failure to sign a document tendered as Exhibit in a trial only goes to the weight to be attached to the Exhibit and in this case the Exhibit A in question was adequately signed by the maker, Micheal Okeke. Counsel referred to the case of Obidiozo vs. State (1987 4 NWLR (pt. 67) 748 where it was held that the admission by an accused person of his signature to a confessional statement is without anything more evidence that he is the maker of the document in the sense that either he writes it or accepts or agrees with its content. Counsel argued further that the Supreme Court in Ogudo vs. The State (2011) LPELR – 860 (SC) established the principle of law that it is only when a trial Judge decides in his wisdom to sentence an accused person to death solely on a retracted

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confessional statement that the statement must satisfy the basic fundamentals of a valid statement, among others, such as being signed by the accused person. Counsel contended that Exhibit A was duly signed by the accused person.

Learned counsel for the Respondent also submitted that the variance in date in the body of the statement of the Appellant goes to no issues and that contrary to the assertion of the Appellant contained on page 5, Paragraph 5.7 that there is no evidence on the record to indicate that the date of 25th April, 2010 on Exhibit A was not erroneously inserted, a dispassionate reading of the Exhibit as contained on page 17 of the Record of Appeal alludes to the fact that 25th April cannot be a Sunday and at the same time be a Monday morning as shown on the Exhibit and therefore the only logical conclusion is that the date in question is wrong as rightly observed by the Judge and moreover the Appellant indeed stated that he was arrested on the day members of his gang carried out the planned burglary and that day was the 3rd of May, 2010.

Learned counsel for the Respondent submitted that the doctrine of non est factum as

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raised by the Appellant in relation to Exhibit A does not apply and that even if it’s assumed that it applies, the lower trial Court’s finding at pages 37 – 38 on the matter that the objection raised on the tendering of Exhibit A was not sustainable and that such statements on page 18 thus: “The last operation that led to our arrest was jointly planned by all of us” is in itself enough evidence to serve as a confessional statement. Counsel referred to the cases of Adamu Garba vs. The State (1997) 4 NWLR (pt. 492) 144 @ 162, Kasa vs. The State (1994) SC 212/1993; (1994) 5 NWLR (Pt. 344) 269 S.C., Gbadamosi vs. The State (1992) 9 NWLR (pt. 266) 465.

Counsel for the Respondent while arguing on the evidential worth of PW1’s testimony at trial submitted that PW1 is a solid, credible and believable witness by the convincing evidence adduced during the trial of the case. Counsel pointed out that a single credible witness, can establish a case beyond reasonable doubt unless where the law requires corroboration and that the discrepancy in dates is insufficient to vitiate the evidential value of Exhibit as long as the Court finds the witness credible and

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believable. Counsel referred to the cases of Adamu vs. The State (1991) 6 S.C. 17 (LER) (1991) SC 168/1990, Ogoaca vs. State (1991) 2 NWLR (pt. 175) 509 @ 523; Akalezi vs. The State (1993) 3 NWLR (pt.273) 1 @ 13, (1993) 2 SCNJ 19 @ 29 – 30; Ugwumba vs. The State (1993) 3 NWLR (pt.2731) @ 13; (1993) 2 SCNJ 19; Fatai Ofayinka vs. The State (2007) 4 S.C. (pt. 1) 21O; LER (2007) SC 279/2003; Alabi vs. State (1993) 7 NWLR (pt. 307) 511 @ 526 – 527; Okonofua vs. State (1981) 6 – 7 SC 1 @ 18; Adaje vs. State (1976) 6 ? 9 SC 18 @ 28.

Whilst making conclusion on issue One, learned counsel for the Respondent submitted that even if it’s assumed that Exhibit A was wrongfully admitted in evidence, the totality of the facts placed before the trial Court, especially the credible, convincing and believable evidence of PW1 is adequate to establish the involvement of the Appellant in attempted burglary/burglary. Counsel referred to the cases of Usufu vs. State (2007) 3 WNLR (pt. 1020) page 94, Garko vs. The State (2006) 6 NWLR (pt. 977) page 524; Effiong vs. State (1998) 8 NWLR (Pt. 562) page 362.

ISSUE TWO (2)

Whether the learned Honourable Judge

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rightly evaluated the evidence placed before him at the trial of the case to warrant the conviction of the Appellant by the trial Court.

Learned counsel for the Respondents while arguing on this issue submitted that the Honourable Trial Judge rightly evaluated the evidence placed before him and rightly convicted the Appellant for lesser offence of attempted burglary even though the Appellant could have been rightly convicted for the offence of burglary as charged on Count III of the charge sheet. Counsel cited the oral evidence of PW1, Exhibit A and oral evidence of DW1 at the trial as the cognate and relevant evidence in this case. Counsel contended that PW1’s evidence on pages 21 and 22 of the Record of Criminal Appeal is to the effect that he got alerted that the Appellant was illegally entering into his premises in an attempt to break and burgle his shop and with the help of some good neighbour, the Appellant was pursued, arrested and later handed over to the police. Counsel pointed out that the evidence of PW1 was consistent, solid, not shaken during cross-examination which made the lower Judge describe it as credible and believable, counsel

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reasoned factually that it should be borne in mind that the trial Court, was the only Court afforded with the opportunity of seeing and hearing the witnesses and watching their demeanour and thereby the placing them on a better pedestrian to make good judgment.

Counsel for the Respondent submitted that when Exhibit A was placed in evidence by the Prosecution through PW3, the Appellant’s counsel only objected to the tendering of the document on the ground that it was undated, unsigned and written by more than one recorder and not on the grounds of denial of having made the said statement, a stance of defence which the Appellant later took. The learned counsel to the Respondent submitted that a confessional statement cannot be a defence and the Appellant cannot treat it as such. Counsel referred to the case of Egbo Ebonome vs. State (1993), TNWLR (pt. 306) page 383 @ 392 R11 where the Court held that a confession is not a defence as it only strengthens the case of the Prosecution and reduces the problem of establishing the guilt of an accused person.

The learned counsel for the Respondent submitted that the assessment of the credibility of a

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witness was a matter for the trial Court and the lower Court beamed its searchlight to every evidence placed before it from both parties and arrived at a well-considered judgment which provided that the Prosecution proved beyond reasonable doubt that the accused person (Appellant) entered the premises of PW1 and tried to break in, thereby establishing the case of attempted burglary.

Counsel urged this Honourable Court to dismiss the entire appeal for lacking in substance and merit.

RESOLUTION OF ISSUES ONE AND TWO

(i) Whether the charge/offence of attempted burglary could be sustained against the Appellant by the evidence adduced at the trial by the prosecution in all the circumstances of the case.
(ii) Whether the teamed trial Judge rightly evaluated the evidence placed before him at the trial of the case.
I agree with the Appellant that these two Issues are interwoven and therefore will be resolved conjointly.
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According to the records of criminal proceedings, the Appellant’ Michael Okeke was charged in an information that contained three counts, to wit: Conspiracy to commit armed robbery contrary to and

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punishable under Section 6(1) of the Robbery and Firearms (Special Provisions) Act, armed robbery contrary to Section 1(2) (a) of same Act and house breaking/burglary contrary to Section 411(1) (2) of the Criminal Code, CAP 37 Laws of Ondo State 2006.

The lower trial Judge while evaluating the evidence placed within the domain of the Court found for the Appellant that the evidence could not sustain counts 1 and 2. However, same could not be said for the 3rd count of attempted burglary (see pages 37 of the Records of Criminal Proceedings).

In the words of the trial Judge, he stated thus:

“The third count is that the accused broke into the house of Alex Okorie who gave evidence as PW1, the break-in was said to be on the 7 May, 2010. PW1 gave evidence in aid of this count. His evidence is that he received a call that someone wanted to break into his shop at night. He and two others raced to where his shop was and he saw the accused trying to break into the shop. He had with him an iron rod. The accused was pursued and caught through the help of neighbours. The police came to take the accused away. The case of the accused is that he knew

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nothing about the matter and that he was only arrested where he was sleeping. The statement of the accused ?
Exhibit A seems to make allusion to the event charged. Although the date given for the break-in was 25th April, 2010, it would seem that the date is wrong. This is because the accused conceded that he was arrested and there is no evidence that the accused was arrested twice.?

It is deducible from the above reproduced that a heavy reliance was placed on the evidence of Exhibit A (the confessional statement of the Appellant) and also on the evidence of PW1. Are these evidence material enough to sustain the third count of attempted burglary and were the available evidence well evaluated by the trial Judge?
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It is paramount to point out without any iota of bias whatsoever that there’s a time worn attitudinal principle of presumption by the Appellate Courts vested on the lower Court’s finding of fact as being correct and that presumption must be rebutted by the person who seeks to upset the judgment. Moreso an Appellate Court will not ordinarily interfere with the decision of the trial Court except where same is shown to be

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perverse and not borne out of the admissible evidence placed before it.

A trial Court has the primary duty in a trial, whether civil or criminal to listen, to watch and observe the demeanour of witnesses. It has a duty to admit or reject documents or other materials or objects tendered in evidence as exhibits and a final duty at the close of trial to weigh and ascribe probative value to all the evidence placed properly before it. See: Enang vs. Audu (1981), Sule Anyegwu & Anor. Vs. Aidoko Onuche (2009) 3 NWLR (pt. 1129) 659 S.C.; Ahmed vs. State (1997) 7 NWLR (pt. 613) 641; Bright Chibuike & Anor vs. The State (2010) LPELR – 3911 (CA); Martins vs. The State (1997) 1 NWLR (481) 355; Onuoha vs. State (1985) 5 NWLR (54) 1 18; Adamu vs. State (1991) 4 NWLR (pt. 1 87) 530.

Exhibit A was the confessional statement allegedly made by the Appellant which as rightly noted by the trial Judge on page 37 of the record, alluded to the charge of attempted burglary by the Appellant and although the Appellant objected to its admissibility, the learned trial Judge agreed to its relevance and proper tendering through the witness who is a policeman and thereby admitted it

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as evidence.

It is instructive to note that the Appellant’s objection of the said Exhibit A were on three grounds thus:
(a) The document was not signed by the recorder.
(b) The document was not dated
(c) The document does not have one writer as there are two handwritings.
All the above grounds, as rightly pointed out by the Respondent’s Brief of Argument had to do with the form rather than content. Is the Court expected to on the basis of these minor discrepancies come to the conclusion that the confessional statement of the Appellant tagged as Exhibit A is irrelevant and thereby inadmissible when evidence to the contrary abound? In fact, the learned trial Judge while evaluating the said Exhibit A and PW1’s evidence placed within the Court noted that notwithstanding the seemingly discrepancies in dates, it being unsigned by the recorder, noted that as much as it would be good for the recorder of a statement of the Appellant to sign the statement as the recorder, it is not fatal to the case, what was imperative was for the maker of the statement to append his signature/mark on the statement and this was done by the Appellant

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without any denial as to its content, mark or signature thereby making it relevant.

It has been held in a plethora of cases that the basic fundamentals of valid statement of an accused person in a death sentence are basically;
(1) The cautionary words must be well written and signed.
(2) The body of the statement written by the accused person or by a police officer on the accused directives.
(3) The Statement must be endorsed by a superior police officer and signed by the accused Person. See the cases of Ogudo vs. The State (2011) LPELR – SC 341/2010, James Noah vs. The State (2014) LPELR – 23819 (CA).                                  However, what the law frowns at is for the Courts to rely on an unsigned retracted confessional statement, in fact the Courts have only been advised to exercise extreme caution and very little or no weight should be attached to such a statement especially if there exists no independent evidence outside the said unsigned and retracted confessional statement – note this is in cases that has to do with the death penalty.

?This however cannot be said to be the case for the Appellant who signed the ‘Exhibit’ A as

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the accused and the contents of ‘Exhibit’ A was corroborated by the evidence of PW1. The only ‘requirement’ if it can be permitted for usage in this case was the unsigned by the recording police officer and all that was even required was for it to be endorsed. As a matter of fact going by the definition of the word ‘Endorse’ in the Oxford Advanced Learner?s Dictionary 7th Edition it means:

“To say publicly that you support a person, statement or course of action.”
PW3, the head of the police team, to whom the case was assigned, attested to the Exhibit A as the confessional statement of the Appellant in my opinion, this was tantamount to an endorsement of Exhibit A, going by the earlier cited definition.
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Finally, it is pertinent to state that a Court can convict on the retracted confessional statement of an accused person but before this is properly done, the trial Judge should evaluate the confession and testimony of the accused person and all the evidences available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking

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himself the following questions:

(a) Is there anything outside the confessional statement to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Did the accused person have the opportunity of committing the offence charged?
(e) Is the confession Possible?
(f) Is the confession consistent with other facts which have been ascertained and have been Proved?

I have gone though the entire record and apart from the ipse dixit denial of ‘I did not do it’ ‘I do not know….’ No credible or logical version of events different from the Exhibit A he seeks to tender irrelevant was presented for evaluation to the trial Judge for self questioning. See the cases of Emmanuel Tometim vs. The State (2014) LPELR CA/EK/64/C/2013; Nwachukwu vs. The State (2002) 12 NWLR (PT.782); Dapiragira vs. The State (1990) 4 NWLR (pt.443) 375 @ 388.

Therefore, it was not my surprise when the trial Court on page 39 summed up thus:
?I have no doubt in my mind that the Prosecution proved that the accused attempted to break into the shop of Alex Okorie, PW1

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on the 3rd May, 2010. His desire to break into the shop was truncated by the fact that PW1 raised alarm and alerted the accused who then advised (sic) his heels but he was shortly arrested by PW1….”

Without much further ado, I hereby resolve this conjoined Issues 1 and 2 in favour of the Respondent and against the Appellant.

It seems, that the Appellant wants to believe that having successfully wriggled out of counts 1 and 2 he could capitalise on technicalities even in the face of credible, believable and corroborated evidence adduced by the Respondent, that the end of justice could be defeated. Well, we all know the principle that it is good for 99 guilty to escape justice than for one innocent to be wrongly convicted is a general held view in our jurisprudence, I have no doubt in my mind that the Appellant does not fall under the category of the proverbial 99.

Therefore, I am not prepared however to hold that the evidence adduced at the trial Court cannot sustain the charge of attempted burglary against the Appellant.
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In essence, I totally agree with the trial Judge, Hon. Justice D. I. Kolawole in the evaluation of the

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evidence placed before the Court and for these reasons, I affirm the conviction and sentence of 5 years 6 months imprisonment imposed on the Appellant by the lower Court in the judgment delivered on 3rd December, 2012.

Other Citations: (2016)LCN/8838(CA)