Mindi V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting at Makurdi, delivered on 25th April, 2018 wherein the appeal against the appellant’s conviction by the Benue State High Court for conspiracy and armed robbery was dismissed. The appellant and his co- accused Agber Hueza were initially charged along with others, to wit: Terzingwe alias Love Fela and another person at large for the offences of criminal conspiracy and armed robbery punishable with death under Sections 1(2) (b) and 6(b) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria. 2010. However,the prosecution proceeded against the Appellant and his co-accused, Agber Hueza when the other accused persons could not be found in respect of the 1st, 2nd and 3rd of heads of Charge for the offences of criminal conspiracy and armed robbery punishable with death.

The Appellant and Agber Hueza who were tried together, were discharged and acquitted on the 2nd head of charge for want of proof, but were found guilty of the 1st and 3rd heads of charge, and were consequently convicted and sentenced to death.

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Dissatisfied with the said conviction and sentence, the appellant appealed to the lower Court which dismissed his appeal and affirmed the judgment of the learned trial judge.

Again, the Appellant is dissatisfied with the judgment of the Court of Appeal. He has accordingly appealed to this Court.

The meat of the case against the appellant and his co-travelers is that on or about 24/9/2012, they conspired with some other persons who are still at large, at various times while armed with offensive weapons, along Vandeikya – Adikpo and Jato – Aka – Katsina – Ala roads, robbed Alhaji Sejir Mohammed Labaran and lieh Basil of their possessions including various sums of money, phones etc. The defence put up by the appellant and his co-accused was a total denial of the respective allegations. After investigation, the matter went for trial.

Notice of appeal in this matter was filed on 15th May, 2018 which contains six grounds of appeal out of which the appellant has distilled three issues for the determination of this appeal.

In the appellant’s brief settled by Edwin O. Okoro, Esq., and filed on 5th July, 2018, the three issues formulated by the

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appellant are listed on page 3 of the said brief as follows:

1. Whether the Court below was right to have affirmed that the trial Court was right to have admitted in evidence Exhibits A1 and B1 the extra judicial statements of the respective Appellant and co-accused at the trial-within-trial on the main ground that they did not raise the voluntariness of their statements with their counsel or any other person while in police custody.
2. Whether the Court of Appeal was right to have affirmed the decision of the trial Court that the prosecution had proved the 1st and 3rd heads of charge beyond reasonable doubt against the appellant and co-accused in the circumstances of the case and that there were no contradictions in the evidence of the prosecution witnesses.
3. Whether the Court of Appeal was right to have affirmed that the trial Court was right to have used and relied on the alleged confessional statements (exhibits A1 and B1) while convicting the Appellant and co-accused of conspiracy and armed robbery on the 1st and 3rd heads of charge when the said Exhibits do not have any link at all with 1st and 3rd heads of the charge.

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The learned counsel for the Respondent, Eko Ejembi Eko, Esq., distilled two issues for determination. The two issues are as hereunder stated:-

1. Whether the learned Justices of the Court of Appeal, Makurdi Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s extra judicial statements – Exhibits A1 as evidence and treated same as confessional Statement inspite of the fact that same were (sic) retracted by the Appellant.
2. Whether the learned Justices of the Court of Appeal Makurdi Division were right to have affirmed the decision of the learned trial Judge that the prosecution proved its case beyond reasonable doubt against the appellant as to warrant the Appellant’s conviction for the offences charged having to the totality of evidence the Court.

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Bearing in mind the facts of this case, the judgment of the Court below and the grounds of appeal raised in this appeal, I am of the view that the two issues distilled by the learned counsel for the respondent are more apt and illuminating capable of resolving the issues in controversy between the parties. Moreso, the appellant’s issues one and two are related to

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the admission and reliance on Exhibits A1, the confessional statement of the appellant. So, basically, the appellant has two issues. Accordingly, I shall determine this appeal based on the two issues as distilled by the respondent.

ISSUE ONE

This issue has to do with the admissibility and reliance on Exhibit A1 – the extra judicial statement, being confession of the appellant by the learned trial Judge as affirmed by the Court below.

It is the submission of the learned counsel for the Appellant that the concurrent findings of the two Courts below on the admissibility of the extra judicial statement of the appellant is grossly and totally perverse in that the main reason why the statement was admitted by the learned trial judge is because there is no evidence that the accused person was denied access to his counsel or relatives to whom he would have complained that his statement was obtained by duress. Secondly, that the prosecution failed to prove that the statement was voluntarily made, relying on Abiodun v The State (2013) 9 NWLR (pt 1358) 150 paragraph F and Section 29(2) (a) and (b) of the Evidence Act, 2011. Again, he submitted that the

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prosecution failed to call members of the youth to substantiate beyond reasonable doubt the assertion that the appellant was arrested and beaten by them before handing him to the police.

Furthermore, learned counsel submitted that the Court below failed to appreciate that in their examination in chief and under cross examination PW1A and PW2A did not show to the Court any credible evidence of medical report or treatment of the Appellant and co-accused at the time they were arrested notwithstanding their claim that the injuries were sustained before they were brought to the police.

Learned counsel further submitted that the right time for an accused person to challenge the voluntariness of his statement in law, is at the point where such statement is to be presented for admissibility by the prosecution, relying on Mbang v State (2013) 7 NWLR (pt 1352) at 72 paragraph H.

On the reliance on the confessional statement by trial Court, he submitted that the 3rd head of charge made it clear that the Appellant and co – accused used a snatched Golf car from Alhaji Sajir Mohammed Labaran to knock one Ijeh Basil down before robbing him at gun point.

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That the trial Court having dismissed the charge relating to the said Alhaji Sajir Mohammed Labaran for want of proof, will be seen to be approbating and reprobating at the same time by holding that the alleged armed robbery against Alhaji Labaran did not take place and at the same time hold that the appellant and co – accused used the Golf car snatched from Alhaji Labaran to rob Ijeh Basil. He urged Court to resolve both his issues 1 and 3 in favour of the appellant.

In response, the learned counsel the respondent submitted in the main that a Court of law can convict an accused person for the commission of an offence even upon a retracted confessional statement if there exists other independent corroborative evidence to give credence to the retracted confessional statement as was in this case, citing in support the cases of Ejinima v The State (1991) LPELR-1067 (SC) and Bouwor v The State (2016) LPELR – 26054 (SC). He contended that a confessional statement such as Exhibit A1 does not become inadmissible because the accused person retracted it or denied making it voluntarily.

Learned counsel submitted further that Exhibit A1, the confessional

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statement of the appellant was admitted after going through a trial-within-trial and that the testimonies of PW1A and PW2A for the purposes of the trial within trial were unshaken, uncontroverted and unchallenged regarding how the extra judicial statement was obtained. Having not been challenged, he submitted that the two Courts below were right to rely on same, relying on the cases of Lanre v State (2018) LPELR – 45156 (SC), Obineche & Ors v Akusobi & Ors (2010) LPELR – 2178 (SC).

Finally, learned counsel submitted that the Court below was very much within the boundaries of the law when it affirmed the decision of the learned trial Judge admitting the extra judicial statement of the appellant in evidence as Exhibit A1 and placing reliance on same as a confessional statement. He urged the Court to resolve this issue against the appellant.

RESOLUTION OF ISSUE ONE

The grouse of the appellant in this issue relates to the reason offered by the learned trial Judge, as affirmed by the Court below at the point of admitting the extra judicial statement of the appellant during a trial within trial. At page 121 of the record or appeal, the

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learned trial judge said as follows:-

“The opportunity availed the accused persons as there is no evidence that any of them was ever denied access to counsel or any relative while in custody up to the moment that the respective statements were tendered in Court. There is no evidence that any of them raised any issues either with counsel or any other person on what he claimed to have experienced while in custody, especially on the circumstances in which they may have made the respective written statements… The evidence of the PW1A, who said that he witnessed the process by which the statements were recorded and that they were voluntarily made has not been discredited; I have no reason therefore to disbelieve him on the point. Consequently, the respective objections are each overruled and the written extra-judicial statements of the respective accused persons tendered are hereby admitted and shall be marked as Exhibits A1 (for that of the 1st accused) and Exhibit B1 (for that of the 2nd accused).”

In its judgment, in respect of the above position of the learned trial judge, the Court below expressed the following views in support of same.

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On page 203 of the record, the lower Court said:-

“I find it difficult to fault the reasoning of the learned trial judge on this. While it is perfectly correct to say that it is only at the trial that an accused person can properly challenge the police/prosecutor as to the voluntariness vel non of his confessional Statement, such a challenge must not be merely superficial and casual. In the face of credible evidence adduced by the police that the statement was voluntarily given, the accused person must also adduce evidence capable of belief to show that there were circumstances which made the statement not voluntary.”

From a calm reading of the two findings of the two Courts below, it is revealed that the learned trial judge did not admit the statement of the Appellant (Exhibit A1) merely because he failed to raise same with his counsel before coming to Court, but because the evidence led by the prosecution on the voluntariness of the said statement was never discredited. The Court below even went ahead to state clearly that it is only at the trial that an accused person can properly challenge the voluntariness or otherwise of his extra

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judicial statement at the police station and I agree entirely with this view.

The issue here is that at the point of tendering the confessional statement of the appellant, he alleged that he signed the said statement after he was tortured. The learned trial judge, in my opinion did the correct thing by holding a trial within trial in order to test the veracity of the said objection. The prosecution called PW1A and PW2A to prove that the statements were voluntarily made. The Appellant testified and denied making the statement voluntarily. The learned trial judge preferred the evidence adduced by the prosecution and held the statement to be a voluntary confessional statement of the appellant. This was affirmed by the Court below.

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After a careful consideration of the evidence led by the prosecution at the trial within trial, I am satisfied to hold that the appellant has not shown to this Court why the concurrent findings of the two Courts below on the issue should be disturbed. Exhibit A1 was admitted after going through the rigors of a trial within trial and it must be noted that the testimonies of PW1A and PW2A for the purpose of showing how the

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extra judicial statement of the appellant was obtained was unshaken, uncontroverted and unchallenged. The mere ipsi dixit denial by the appellant has not mustered enough strength to shake the concrete evidence adduced by the Respondent. I accept the concurrent findings of the Courts below that Exhibit A1, the confessional statement of the appellant, was voluntarily made.

It is now well settled that once a confessional statement is proved to have been made voluntarily, as in the instant case, such as being direct, positive, unequivocal and very suggestive of an admission of guilt by the accused person, it is sufficient to ground a conviction where the maker resiled therefrom or retracted the same completely at the trial. It has always been the position of this Court that a confessional statement, once properly proved, is sufficient to sustain a conviction despite the retraction by the maker as it is in the instant case. See Galadima v The State (2012) 18 NWLR (pt 1333) 610, Egboghonome v The State (1993) 7 NWLR (pt 307) 383, Okoh v The State (2014) 8 NWLR (pt 1410) 502, Ikpo & Anor v State (1995) 9 NWLR (pt 421) 540, Silas Sule Mohammed v The State (2014) 12 NWLR (pt 1421) 387.

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My Lords, I made this point in Aribigbola Awosika v The State (2018) LPELR- 44351 (SC) pages 63 – 64 paragraphs C – A that an accused person can be safely convicted on his retracted confessional statement if the trial Court is satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. Be that as it my, it is desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession is true. See Uluebeka v State (2000) 7 NWLR (pt 665) 404, Adamu Saliu v The State (2014) 12 NWLR (pt 1420) 65. Let me state clearly that although corroboration is desirable as I have stated above, there is no law which makes it mandatory as an accused person can be convicted solely on his conviction alone where it is found to be direct, positive and unequivocal. See Ubierho v The State (2005) 5 NWLR (pt 919) 644. I conclude this aspect by stating that the concurrent findings of the two Courts below on the admissibility and reliance on

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Exhibit A1 to convict the appellant is impeachable. The issue relating to the use of the Golf car to rob Ijeh Basil shall be discussed in the next issue. Thus, issue one is resolved against the Appellant.

ISSUE TWO

The second issue is whether the Court below rightly affirmed the decision of the learned trial judge that the prosecution proved its case beyond reasonable doubt against the appellant as to warrant the Appellant’s conviction for the offences charged having regard to the totality of before the Court.

After stating the ingredients of the offences of conspiracy and armed robbery, the learned counsel for the appellant submitted that each offence must be proved beyond reasonable doubt. But after viewing the evidence led at the trial including Exhibit A1, learned counsel submitted that the two Courts below were wrong to rely on Exhibit A1 because it did not relate to the 1st and 3rd heads of charge but the 2nd only which had been dismissed for want of evidence. That Exhibits A1 and B1 never mentioned any incident of robbing PW1. He stressed that the Courts below committed a big blunder when they made reference to the said exhibits to the

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effect that the appellant and co – accused admitted plying the road where PW1 was robbed that day.

Learned counsel submitted further that since the learned trial Judge had found the evidence of the prosecution witnesses, except that of PW1 to be hearsay, the evidence of PW1 alone was inadequate to prove the charge against the appellant beyond reasonable doubt. Learned counsel also submitted that failure to call a member of the vigilante group who arrested the Appellant and who handed him to the police is fatal to the prosecution’s case. He urged the Court to resolve this issue in favour of the Appellant.

Responding, the learned counsel for the respondent agreed that the prosecution has the task of proving the case beyond doubt and as to what constitutes reasonable doubt, he referred to the case of Jua v The State (2010) LPELR – 1637 (SC). Learned counsel drew the attention of this Court to the fact that when the appellant and accomplices were apprehended, the items recovered and displayed on the ground included PW1’s blackberry phone, his calculator and record book. Secondly, that the failure of the appellant to cross examine PW1 on his oral testimony

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in respect of the recovered items means they had admitted same, relying on Elegushi & Ors v Oseni & Ors (2005) LPELR-1111(SC), Ighalo v State (2016) LPELR-40840(SC).

Learned counsel also submitted that the testimony of the PW1 corroborated the contents of Exhibit A1 in respect of the use of a Golf car for the robbery on the date in question. He opined that the extra judicial statement of the appellant stated clearly that the appellant participated in all the ingredients of the offence of armed robbery and conspiracy to commit armed robbery which occurred on the 24/09/2012 along Jato – Ala to Katsina – Ala highway. On how to establish conspiracy, learned counsel referred to the case of Bouwor v The State (2016) LPELR – 26054(SC).

In response to the argument that PW1’s evidence alone was not enough to prove the charge against the Appellant and that failure to call one or the youths who apprehended the appellant was fatal to the prosecution’s case, learned counsel submitted that the evidence of a single witness that is direct, cogent and uncontroverted can be relied upon to ground conviction, relying on Chidozie v COP (2018) LPELR-43602(SC).

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Finally, learned counsel submitted that the unchallenged and uncontroverted evidence of PW1 corroborates the confessional statement of the Appellant contained in Exhibit A1 and that the trial Court was right to place reliance on same as affirmed by the Court below. He relies on the case of Esseyin v State (2018) LPELR – 44476 (SC). He urged the Court to resolve this issue against the Appellant.

RESOLUTION

The appellants in this issue are contending that the prosecution failed to prove the charge beyond reasonable doubt and as such, the Court below was wrong to agree with the learned trial Judge that the respondent proved this charge beyond reasonable doubt. Fortunately, this Court has severally defined the concept. “proof beyond reasonable doubt” in quite a number of cases. Thus in Jua v The State (2010) LPELR-1637(SC), this Court per Niki Tobi, JSC (of blessed memory) explained the concept as follows:-

“Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not fanciful doubt, it is not an

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imaginary doubt. It is a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.”

(at page 20 paragraphs C – E) see also Nwaturuocha v The State (2011) 6 NWLR (pt 1242) 170, Friday Smart v The State (2016) LPELR – 40827 (SC), Akindipe v The State (2012) 16 NWLR (pt 1325) 94, The State v Onyeukwu (2004) 14 NWLR (pt 813) 340, Ajayi v The State (2013) 9 NWLR (pt 1360) 589, Umoh Ekpo v The State (2018) LPELR – 43843(SC).

The resultant effect of the above postulation is that before a Court can convict for capital offences such as the one at hand, and indeed every other offence, it must ensure that the evidence presented before it is credible, coherent and leaves no one in doubt that the accused person committed the offence. Anything short of this, the prosecution would have failed in its duties.

Now, the essential ingredients of the offence of armed robbery are as follows:-

1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery.

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See Afolalu v The State (2010) 16 NWLR (pt 1220) 584, Emeka v The State (2014) 13 NWLR (pt 1425) 614, Bozin v The State (1985) 2 NWLR (pt 8) 465, Idemudia v The State (1999) 7 NWLR (pt 610) 202. Thus, before a Court can convict an accused person on the offence of armed robbery, the three ingredients must be present. From the records before this Court, it is clear that the learned trial Judge convicted the appellant based on Exhibits A1 and B1 – confessional statements of the appellant and his co- accused respectively and the evidence of PW1. The Court below accepted the conviction in the following words and findings on pages 210 – 211 of the record:-

“There is no doubt that PW1 was attacked on the morning of 24-09-2012 on the Jato – Aka/Katsina-Ala highway and dispossessed at gun point of his properties consisting of large amounts of money, a Black-berry Telephone Handset, a calculator and other items enumerated by him. There is also no doubt that since the robbery took place in broad daylight and the robbers were not masked, PW1 readily and unhesitatingly identified the appellant and 2nd accused as being amongst the persons who attacked and robbed

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him on the date in question. In particular, the appellant was identified as the person issuing commands to PW1 at gunpoint while the 2nd accused was the person who drove the Golf car that was used to knock him off the road before the robbery took place. PW1 also described in graphic detail how, after the robbery, the accused persons drove off in the same vehicle towards the direction of Jato-Aka and he followed suit on his motorcycle. Upon arriving the village, he promptly informed the youth of what had just transpired. The youth immediately and proactively gave chase and embarked on a search of the robbers. Eventually, they apprehended the appellant and 2nd accused and the PW1 identified them on the spot as the persons who had robbed him of his possessions at gunpoint that morning … A bag was recovered from them and when it was emptied in presence of the PW1, he saw some of his money, his Blackberry Handset and two of the pistols used by the robbers… In addition, the evidence of the PW1 (the victim and sole eye witness) was both lucid and credible, and he was unshaken during cross-examination. The learned trial Judge was therefore right when he accepted and

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acted on it. Also, in Exhibit A1 and B1, the Appellant and 2nd accused gave detailed accounts of their roles in the armed robbery. ”

A major issue raised by the learned counsel for the appellant in this appeal is that Exhibit A1, was not a confessional statement in respect of the 1st and 3rd heads of charge against the appellant. Rather, that it was in respect of the 2nd head of charge which was dismissed against the appellant. He submitted that it was therefore wrong for the two Courts below to agree on the conviction of the appellant based on the said Exhibit A1. On page 135 of the record, the learned trial Judge made the following conclusion in respect of the above complaint that:-

“Exhibits A1 and B1 may not have confessed to the crimes charged but they each admit the fact that the accused persons had all driven in a Golf car while heading towards Jato-Ata on the day that the PW1 mentioned in his account. That admission lends credence to the evidence of the PW1 that he had an encounter with the accused persons who drove in the car at the material time.”

The above findings by the learned trial Judge was further strengthened by the

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Court below at page 214 of the record as follows:-

“This finding is in accord with the evidence adduced before the Court. Thus, the fact that count 2 of the charge was dismissed because the victim and owner of the Black Golf 3 Car did not testify in proof of the fact that he was robbed of the car (on the date in question) does not in any way detract from the fact that it a Black Golf car that was used in the robbery against PW1 on the date in question. Whether or not the car was stolen is a different kettle of fish and immaterial to count 3 of the charge in respect of the robbery against the PW1. In other words, the allegation of armed robbery committed against Alhaji Sajiri Mohammed Labaran as alleged in count two of the charge (which was dismissed), was not the issue. The trial Court rightly dismissed count two of the charge because insufficient evidence was adduced in proof of same, the victim having failed to come forward and testify. This, however without more, cannot be used to exclude the fact that a Black Golf car was used by the Appellant and his co-travelers in crime to commit the offence of armed robbery as charged in count three on the date in question.” ​

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It is not in doubt that the two Courts below have explained the matter comprehensively and does not require further elucidation. For the avoidance of doubt, let me state clearly that although the appellant did not state in Exhibit A1 that he robbed PW1, he however stated in the said confessional statement that he used a Black Golf Car to rob along Jato-Aka road on the same date to which the PW1 testified. The PW1 testified that he reported the robbery incident to the youths of the town who mobilized and got the appellant and his co- accused arrested. The appellant, in Exhibit A1 also agree that he was “arrested by the militia of the area.” The PW1 testified that the appellant and his co- accused were handed over to the police by the youths who arrested them. The appellant in Exhibit A1 agree that it was the militia of the area who handed them to the police.

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It is not in doubt that the learned trial Judge relied on the evidence of PW1 and Exhibit A1 to convict the Appellant. The lower Court had described the evidence of PW1 as both lucid and credible and that he was not unshaken during cross-examination. The law is trite that the

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Court can act on the evidence of a single witness if that witness can be believed given all the surrounding circumstances of the case. Also that one single credible witness can establish a case beyond reasonable doubt. See Akalezi v The State (1993) 2 NWLR (pt 273) 1, Victor v The State (2013) 12 NWLR (pt 1369) 465, Shina Oketaolegun v The State (2015) LPELR – 24836 (SC), Adelumola v State (1988) 1 NWLR (pt 73) 683.

In the instant case, at the point the appellant and his co- accused were arrested, a bag was recovered from them and when it was emptied in the presence of PW1 he saw some of his money, his Blackberry Handset and two pistols used by the robbers. This damaging evidence was never controverted during the trial. It is so strong against the appellant. It is credible and positive. Without any evidence from Exhibit A1, it is my view that the evidence PW1 was cogent enough to have convicted the appellant. That notwithstanding, the pieces of evidence in Exhibit A1 clearly strengthened the evidence of PW1 and made it more probable. The recovery of the Blackberry Handset belonging to the PW1 from the appellant was in my opinion a master stroke in the evidence against the appellant. ​

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All the arguments as to time, punctured tyre of the golf car, and other minor discrepancies in the evidence of prosecution witnesses are irrelevant, the appellant having been fixed to the scene of crime with the recovery of the stolen items and gun i.e. weapon of the crime from him. I agree with the Court below that the learned trial Judge rightly convicted the Appellant based on the evidence adduced before him. I have no reason to disturb the concurrent findings of the two Courts below on the matter.

In conclusion, I hold that this appeal lacks merit and is accordingly dismissed. The judgment of the Court of Appeal in Suit No CA/MK/125C/2016, is hereby affirmed.

Appeal Dismissed.

SC.597/2018