Shola Famuyiwa V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal sitting at Ado-Ekiti delivered on the 16th December, 2014 where the Court Appeal or Court below or the lower Court affirmed the trial Court’s decision of M.O. Abodunde J on the 25th June, 2013, conviction and sentence of appellant to death by hanging for the offences of conspiracy and armed robbery.
The panel of the Court below is thus: – A. G. Mshelia, F. O. Akinbami and B. M. Ugo JJCA with the lead judgment anchored by M. G. Mshelia JCA.
The facts of the case leading to the appeal are stated hereunder, viz: –
BACKGROUND FACTS:
The version as put across by the appellant is thus: –
The appellant was a trader at Challenge in Ibadan. In 2002, the Landlord of the place where the appellant was selling his wares at Challenge in Ibadan asked the appellant to quit the land where the appellant was selling his wares. Although the notice to quit was sufficient, the appellant and the other traders had no opportunity to rent another shop.
The Landlord enlisted or contracted members of OPC to chase
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the appellant and other traders away from the land whereby a misunderstanding/fight ensued between members of OPC and the traders. The police intervened and transferred the appellant and others that were arrested with him to the Challenge Police Station in Ibadan.
Later on, the appellant and seven other persons that were arrested with him were removed from the cell at Challenge Police Station Ibadan and transferred to Ekiti. On getting to Ekiti State, the appellant was accused by the Police as being one of the armed robbers who operated in Ekiti. The police demanded for the sum of N50,000.00 (Fifty Thousand Naira) each from the appellant and the other suspects for them to be released. The appellant did not have the sum of N50,000.00 to pay but the other suspects who paid were released.
The Police threatened to deal severely with the appellant if he failed to pay the bail fees of N50,000.00. At about 1.00am the next day, the cell was opened and the appellant was brought out.
The appellant was severely beaten by Policemen and thereafter the appellant was hung on a ceiling fan and hit with a cutlass on the head but the appellant raised his hands in
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defence and the cutlass cut the appellant’s palm and injured him.
When the appellant started bleeding, the Police took him to the General Hospital, Ado-Ekiti for treatment. At the General Hospital, the appellant told the doctor who treated him that he was innocent and that he was just a victim of police brutality, The Doctor then asked the appellant to inform him anytime the case is being prosecuted.
The appellant denied the charge of conspiracy and armed robbery against him. The appellant also denied entering the palace of Oore of Otun Ekiti, and stealing his properties or driving away his Mercedes Benz car. The appellant stated that he made his statement in Yoruba language and thumb-printed same. The appellant was seriously beaten and brutalized and was forced to thumb-print the statement. The Police did not read the appellant’s statement to him. The appellant denied making any confessional statement relating to armed robbery in Ekiti.
The Police subjected the appellant and the others arrested with him to thorough search but nothing incriminating was found on him.
The appellant stated that he does not know the 2nd accused person who was
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brought along with him from Ibadan. The appellant further stated that he got to know the 2nd accused in cell. The appellant testified that he never met the Oore of Otun-Ekiti before except on the day he came to testify in Court. There was no time an identification parade was conducted before the appellant was brought to Court and the appellant was merely charged to Court based on suspicion and the charge was not properly investigated by the Police.
On 28th September, 2004, the appellant and one other accused person were arraigned before the High Court of Justice of Ekiti State sitting at Ado-Ekiti in Charge No. HAD/6C/2003 on a four (4) count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act Cap. 398 Vol, xxii Laws of the Federation of Nigeria 1990 as amended by Tribunals (Certain Consequential Amendments etc) Decree No.62 of 1999.
The appellant pleaded not guilty to all the counts charge of the charge and proceeded to trial with respondent calling six (6) witnesses while the appellant testified for himself and called
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no witness.
The respondents version of the facts is as follows: –
The respondents case was to the effect that on 3rd day of April, 2002, a gang of armed robbers (including the appellants and one Adeniyi Owolabi) while armed with guns invaded the palace of PW1, Oba J.A, Popoola, the Oore of Otun Ekiti and made away with his beaded crown, international passport, $6,650 USD, 15 bundles of materials and his Mercedes Benz car which was used in packing the stolen items away from the palace. The appellant (and one Adeniyi Owolabi) committed another armed robbery on 28th July, 2002. The appellant was arrested in Ibadan and PW1’S Mercedes Benz was discovered there. The appellant confessed to the commission of the armed robbery in the palace of PW1 at Otun Ekiti.
The learned trial judge found the offence of conspiracy and armed robbery proved beyond reasonable doubt and convicted and sentenced the appellant and his co-accused, Adeniyi Owolabi. On appeal to the Court below, the decision of the trial Court was affirmed and so dissatisfied, the appellant has come before this Court to ventilate his grievance.
On the 5th October, 2017 date of hearing,
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learned, Counsel for the appellant, J.C. Okafor Esq., adopted his brief of argument filed on the 29th September, 2015 and in it, distilled five issues for the determination of the appeal which are as follows: –
1) Whether the learned justices of the Court of Appeal were right in holding that the failure to conduct an identification parade to ascertain the identity of the person who committed the alleged offence in the instant case was not fatal to the prosecutions case. (Ground 1).
2) Whether the learned justices of the Court of Appeal were right in holding that the appellant conspired with the other co-accused persons to commit the offence of armed robbery. (Grounds 2 and 3).
3) Whether the learned justices of the Court of Appeal were right in holding that the prosecution had proved the offence of armed robbery against the appellant beyond reasonable doubt and that failure of the prosecution to tender any of the items allegedly stolen but which were recovered was not fatal to the prosecution’s case. (Grounds 4 and 5).
4) Whether the learned justices of the Court of Appeal were right in holding that the alleged
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confessional statement (Exhibit “B”) had passed the test of admissibility and that the learned trial judge was right to have admitted the statement in evidence in spite of the fact that the Police officer (Inspector Itsenewa) who obtained the alleged confessional statement was not called as a witness by the prosecution. (Grounds 6 and 7).
5) Whether the learned justices of the Court of Appeal were right in holding that the trial Court properly evaluated the defence of the appellant and that the non tendering of anonymous letters referred to by the Pw1 was unfounded. (grounds 8 and 9).
The Director of Public Prosecutors (DPP) of Ekiti State, Gbemiga Adaramola Esq., for the respondent adopted its brief of argument filed on 29th June, 2017 and deemed filed on 5th October 2017. In it were crafted three issues for determination which are thus: –
1) Whether the Court of Appeal was not right in upholding the findings of the trial Court that failure to conduct identification parade was not fatal to the prosecution’s case.
2) Whether the Court of Appeal was not right in holding that EXHIBIT B was properly and legally admitted by the trial Court.<br< p=””
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3) Whether the Court of Appeal was not right in upholding the decision of the trial Court that the offences of conspiracy and armed robbery of 3rd April, 2002 were proved beyond reasonable doubt against the appellants by the prosecution.
The issues identified by the respondent captured the necessary questions and are apt. I shall use them in answering the questions in this appeal and all together.
ISSUES 1, 2 AND 3:
(1) Whether the Court of Appeal was not right in upholding the findings of the trial Court that failure to conduct identification parade was not fatal to the Prosecution’s case.
(2) Whether the Court of Appeal was not right in holding that EXHIBIT B was properly and legally admitted by the trial Court.
(3) Whether the Court of Appeal was not right in upholding the decision of the trial Court that the offences of conspiracy and armed robbery of 3rd April, 2002 were proved beyond reasonable doubt against the appellant by the prosecution.
Learned counsel for the appellant, J. C. Okafor Esq., contended that the Court below was wrong in holding that the failure of the prosecution to conduct an identification parade to
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ascertain the identity of the person who committed the alleged offence in the instant case was not fatal to the prosecution’s case. That whenever the case against an accused person depends wholly or substantially on the correctness of identification of the accused which the defence alleges to be mistaken, the Court must closely examine and receive with caution the evidence alleged before convicting the accused in reliance on the correctness of the identification. That the crucial issue in a criminal case is not whether or not the offence was committed but whether the identification of the actual perpetrators of the offence charged was correct. He cited the cases of:
Theophilus Eyisi and 2 Ors v. State (2000) 15 NWLR (pt. 691) 555 at 587, Ndidi v. State (2007) 13 NWLR (Pt. 1052) 632 at 651, Nwuzoke v. The State (1988) 1 NWLR (pt. 72) 529 at 532, Onuoha v. State (1988) 3 NWLR (pt. 83) 460 at 477.
Mr. Okafor of counsel for the appellant stated on that the Court below was in grave error in holding that the appellant conspired with other co-accused persons to commit the offence of armed robbery when the prosecution failed to show that there was a meeting
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of the minds of two or more persons to do or cause to be done an illegal act or legal act by illegal means. He cited Obiakor v. The State (2002) 10 NWLR (pt. 776) 612 at 628.
Also contended for the appellant is that EXHIBIT B the alleged confessional statement of the appellant did not pass the admissibility test and so the exhibit is inadmissible. That there is no circumstantial evidence on record which points irresistibly to the guilt of the appellant vis – a- vis the crime of conspiracy. He relied on Adeleke v. The State (2013) 16 NWLR (pt. 1381) 556 at 586, 587; Afolalu v. The State (2010) 43 NSCQR 227 at 243-244; Suberu v. The State (2010) 41 (pt. 2) NSCQR 1169 at 1205; Ani v. The State (2003) 11 NWLR (pt. 830) 145.
Learned counsel for the appellant submitted that the evidence of PW6 is in favour of the appellant as PW6 was not the investigating Police officer. That the failure of the prosecution to tender the statement of the appellant made in Yoruba brought into operation Section 167 (d) of the Evidence Act, 2011; which leads to the conclusion that the prosecution kept the statement away because it would have been in favour of the appellant and
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so the standard of proof beyond reasonable doubt cannot be taken to have been discharged by the respondent. He cited Njoku v. The State (1993) 6 NWLR (pt. 299) 272 at 285; Idowu v. The State (2000) 7 SC (pt.2) 50 at 79; Oforlete v. The State (2000) 7 SC (pt. 1) 80 at 95 etc.
It was contended that the failure of the prosecution to tender any of the items allegedly stolen which were recovered cast a serious doubt on the case of the prosecution. He referred to Nwomukoro v. The State (1995) 1 NWLR (pt. 372) 432 at 44.
That the failure of the respondent to call the investigating Police officer who obtained the alleged confessional statement of the appellant greatly prejudiced the prosecution’s case.
For the appellant, it was submitted that the learned trial judge did not evaluate the defence of the appellant before convicting him.
In response, learned counsel for the respondent, submitted that identification parade is only one way of establishing the identity of an accused person and that in the case at hand the unchallenged testimony of PW1 fixed and hooked the appellant with the commission of the alleged offences and no need for an
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identification parade.
He referred to State v. Aibangbee (1988) 3 NWLR (pt. 84) 548 at 590-591; Attah v. State (2010) ALL FWLR (pt. 549) 1224; Ogoala v. State (1991) 2 NWLR (pt.175) 509; Ikemson v. State (1989) 3 NWLR (pt. 110) 455 at 460-461; Otti v. State (1993) 5 SCNJ 143.
The learned DPP contended that there are instances when the presence of a person who is required to give evidence for any purpose connected with a judicial proceedings may be dispensed with under our criminal justice system and one of the instances being when the non-attendance has been sufficiently explained to the Court and the Court is satisfied with the explanation as in the instant case. He cited Njoku v. State (1992) 8 NWLR (pt. 262) 714; Gaji v. State (1975) 5 SC 61; Ukpe v The State (2001) 18 WRN 84 etc.
He further submitted that the issue of admissibility or otherwise of the confessional statement resiled by the appellant does not come in as appellant merely retracted from the statement and did not go into the voluntariness and so nothing stopped the trial Court from admitting the statement. He cited Ikemson v. State (1989) 6 SCNJ 54; Shande v. The State (2005) 22
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NSCQR 756; Nsofor v. State (2004) 18 NWLR (pt. 905) 292; Sule v. State (2009) ALL FWLR (pt. 481) 809 at 831 etc.
That there is corroborative evidence connecting the appellant with the offences he is charged with and made EXHIBIT B possible. He cited Durugo v. The State (1992) 6 NWLR (pt. 255) 525, Achabua v. The State (1976) 12 SC 63; Olabode v. State (2007) ALL FWLR (pt. 389) 1301
On the count of conspiracy, the appellant stated that there was enough in the evidence of prosecution from which the agreement or meeting of the minds between appellant and his co-accused could be inferred. He referred to Adejobi v. State (2011) 6-7 SC (pt. iii) 65; Bright v. State (2012) 1 SC (pt. ii) 47; State v. Salawu (2011) 12 SC (pt. iv) 191.
That the prosecution proved the essential ingredients of the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt.
The thrust of the appellant’s case is that there was no identification parade as the identity of the culprits of the armed robbery was not ascertained and so appellant being pointed as one of the robbers was faulty.
Also that the statement, EXHIBIT B ought not to have
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been admitted in evidence as the police officer, Inspector Itsenewa who obtained it was not called as a witness by the prosecution and subjected to cross – examination by the appellant.
The respondent posited that what the prosecution put across was sufficient in the identification of the appellant as part of the armed robbery attack and there was no need for an identification parade.
It needs to be said that the identity of the accused person who participated in a criminal offence as the one in this instance, armed robbery is crucial and must be given all the attention it requires. Whenever the case against an accused person depends wholly or substantially on the correctness of identification of the accused which the defence alleges to be mistaken, the Court must closely examine and receive with caution the evidence alleged before convicting the accused in reliance on the correctness of the identification.
Indeed the crucial issue is not whether or not the offence was committed but whether the identification of the person or persons accused as the actual perpetrators of the offence charged was correct. See
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Theophilus Eyisi and Ors v. The State (2000) 15 NWLR (pt. 691) 55 at 587, Ndidi v. The State (2007) 13 NWLR (pt. 1052) 632 at 651; Nwuzoke v. The State (1988) 1 NWLR (pt. 72) 529 at 532.
“On the night of the 3rd of April, 2002 I was sleeping in my room. I heard a voice a very loud bang, I said who is that I heard a voice which replied “Awa ni o” Eyin wo “Awa ole ni o” come and open the door if not, you will be responsible for the consequence. I dressed up with my wife and the door was opened. 1st to come in after the door was opened was one of my security personnel who had his hands tied to the back and his body was soaked with blood. I saw three other people come in heavily armed with guns, I was able to identify them. They were led by the 1st accused person (appellant) he came in and had a short gun with him…”
“They asked for the key of my vehicle, Mercedes Benz 280. I was asked to lie down on the bed, after about 2 or 3 minutes they returned and said that they cannot start the car, I told them that I can assist with starting the car facing the gate, so they can leave, all items stolen were put in the car and they drove off. On the next day I wrote a statement
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at the police station.”
This Court had said in numerous occasions that the definition of identification is a whole series of facts and circumstances for which a witness or witnesses associate a defendant with the commission of the offence charged. Another way of saying so is that an identification parade is set up and it is to be limited to cases of real doubt or dispute as the identity of an accused person or his connection with the alleged offences.
That is, that the empaneling of the identification parade is not to be conducted for cosmetic reasons or for the mere asking.
In the case at hand, apart from what PW1 stated earlier, he had mentioned the appellant pointing the gun at his head and threatened to fire if PW1 did not bring the money.
Clearly this is one of those instances where the identification parade is dispensed with as the facts and circumstances were sufficient for the trial Court to accept the evidence proffered that the accused was properly identified and situated at the place of operations and the material time. I place reliance on State v. Aibangbee (1988) 3 NWLR (pt. 84) 548 at 590-591; Attah v. State (2010) ALL FWLR
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(pt. 549) 1224; Ogoala v. State (1991) 2 NWLR (pt. 175) 509; Ikemson v. State (1989) 3 NWLR (pt. 110) 455 at 460-461; Otti v. State (1993) 5 SCNJ 143.
Again to be stated is that in our criminal administration system or jurisprudence there are instances where identification parade will be dispensed with which situations are thus: –
a. Where there is good and cogent evidence linking the accused person to the alleged crime on the day of the incident.
b. By the accused persons confessional statement in which he identified himself. I rely on Usung v. State (2009) ALL FWLR (pt. 462) 1203, Bolanle v. State (2005) 7 NWLR (pt. 925) 431 at 452.
In this case of the appellant’s confessional statement, EXHIBIT B, the appellant’s contention is that the statement ought not to be admitted in evidence talk less of admitting it in evidence and utilizing in the conviction of the appellant.
The grouse of the appellant is that the police officer, Inspector Itsenewa who obtained the statement was not called to testify and of course had his testimony under cross-examination before the statement could be accepted and made use of. The facts in this case at hand are
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that corporal John Aiyetigha testified as PW6 and through him the said statement was admitted as exhibit.
I shall recast some excerpts of the testimony of Pw6 for elucidation for what transpired and that is thus: –
“The suspects were released to Ekiti State command. In the Command, Daniel Itsenewa took the statement of the suspects. He was handling the case until he was transferred. I was sent to Delta State Command to fetch him to testify in this case.
…Abuja was contacted and I was also informed that he is with Delta State Police Command. On the next visit, I was able to trace him to Efun and Ekpan involved in an accident. The D.P.O. said that he sustained injuries on both arms and as such have (sic) not been reporting for duty regularly that they do not know the village he was taken to for treatment. This now made the AC CID to write a letter to be presented to the Court in respect of the case.”
Before the Pw6 testified the inability of the respondent to procure the presence of Inspector Daniel Itsenewa had prompted a letter dated 23rd February, 2006 addressed to the learned trial Judge and signed by one Assistant Commissioner of Police,
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Sunday S. Arijorin, the Head of the absent officer’s Department. In relation to that letter is the provision of Section 50 of the Evidence Act, 2011 which stipulates thus: –
“In any case of a person employed in the public service of the Federation or of a State who is required to give evidence for any purpose connected with a judicial proceeding. It shall be sufficient to account for his non-attendance at the hearing of the said judicial proceeding if there are produced to the Court either a Federal or State Gazette or a telegram, an E-mail or Letter purporting to emanate from the head of his department, sufficiently, explaining to the satisfaction of the Court his apparent default.”
It is therefore clear, that the appellant raising the issue of a breach of his fundamental right to fair hearing has been effectively answered since the provisions of Section 50 of the Evidence Act, 2011 were met and Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria was not infringed upon. See Njoku v. State (1992) 8 NWLR (pt. 262) 714; Gaji v. State (1975) 5 SC 6; Ukpe v. State (2001) 18 WRN 84.
What the appellant is going on about can only
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be taken on his fair hearing right being infringed upon if he was not afforded the opportunity to prepare for his defence and no adequate explanation given as to why the Police officer who obtained the confessional statement was absent at the hearing. In the full circumstances of the case at hand, it is evident that no breach of fair hearing had occurred.
See Emenegor v. State (2010) ALL FWLR (pt. 511) 884, Abdullahi v. Nigerian Army (2010) 18 WRN 60.
On the confessional statement, EXHIBIT B which the appellant retracted, it has to be said that the appellant denying making the statement does not translate to the statement being inadmissible rather what would be the resultant effect is the weight the Court would attach to it or its contents. See Ikemson v. State (1989) 6 SCNJ 54, Shande v. The State (2005) 22 NSCQR 756.
The appellant had also the grouse that the trial Court ought not to have convicted the accused/appellant on his confessional statement. On this, it is necessary to say that an accused can be convicted solely on his confessional statement and that corroborative evidence is only desirable and not necessary.
A free and voluntary
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confession which is direct, positive and properly proved is sufficient to sustain a conviction and it is now well settled that the nature of the corroborative evidence required does not need to be direct evidence that the accused person committed the offence. It is enough even if it is only circumstantial evidence connecting or tending to connect him with its commission and that is the case here. See Nguma v. A.G. Imo State (2014) 16 WRN 1; Olalekan v. State (2001) 18 NWLR (pt. 746) 793 at 824; Nwachukwu v. State (2004) 17 NWLR (pt. 902) 262; Durugo v. The State (1992) 6 NWLR (pt. 255) 525; Achabua v. The State (1976) 12 SC 63; Olabode v. State (2007) ALL FWLR (pt. 389) 1301.
In respect to the matter of conspiracy, the appellant’s position is that the respondent had not established that appellant conspired with the other accused persons as there was no evidence to that effect. It has to be reiterated that conspiracy connotes agreement of the parties and in ascertaining that agreement, direct evidence is not indispensable since the meeting of the parties is usually done in secret and near impossible for an eye witness account. Therefore, the evidence of
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conspiracy is usually a matter of inference by the Court from surrounding facts and circumstances including the confessional statement of the appellant. See Adejobi v. State (2011) 6-7 SC (pt. iii) 65; State v. Olashehu Salawu (2011) 12 SC (pt. iv) 191; Bright v. State (2012) 1 SC (pt. ii) 47.
On whether or not the respondent advanced sufficient evidence, direct, confessional and circumstantial to prove the alleged offences against the appellant.
This Court had said again and again that the ingredients of the offence of armed robbery are well stated in a long line of cases including Otti V. State (1993) 5 SCNJ 143. It has been held that a crime could be established by all or any of three ways or methods which are namely: –
- By direct evidence of an eye witness.
- By circumstantial evidence
- By confessional statement
See Emeka v. State (2001) 14 NWLR (pt. 734) 666 at 683
These three ingredients have been established, firstly and secondly that there was a robbery or series of robberies, all the six prosecution witnesses were consistent in their evidence that there was a robbery in the palace of Pw1 in the night of 3rd<br< p=””
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April, 2002 and in that Pw1 was an eye witness.
Thirdly the respondent with overwhelming and uncontroverted evidence of prosecution witnesses especially that of PW1, EXHIBIT B and circumstantial evidence had established conclusively that appellant was one of the robbers who invaded the palace of Pw1 on the night in question and carted away his valuables.
The appellant’s confessional statement, EXHIBIT B which is stronger than the evidence of an eye-witness as it came from the accused/appellant himself can secure the conviction of the appellant as in this instance the confession is positive, direct and has been proved properly.
I place reliance on Amoshima v. State (2009) Vol. 32 WRN 47, Mbang v. State(2010) Vol. 22 WRN page iii.
In conclusion, the appellant’s assertion that the evidence proffered was not properly evaluated was not proved by him as having asserted, the burden was on him to prove the assertion and in that the appellant failed woefully. I rely on State v Yusuf (2007) ALL FWLR (pt. 377) 1001 at 1010-1011; Igago v State (2001) 2 ACLR 104.
This is one of those cases where the concurrent findings of two Courts below
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cannot be tampered with or interfered with either as there has been no miscarriage of justice or wrong application of the law by either of those two counts below. I place reliance on Onogwu v. State (1995) 6 NWLR (pt. 401) 276.
The invitation by the appellant for this Court to revisit the evidence which has been the subject of the concurrent findings of the trial Court and the Court of Appeal which came from very sound reasoning cannot be accepted. All I see is an unmeritorious appeal and the only option available is to dismiss it.
I hereby dismiss this appeal as I uphold the decision of the Court of Appeal which appointed the judgment of the trial High Court.
SC.386/2015