YUSUF AKEEM v. THE STATE(2017)

YUSUF AKEEM v. THE STATE

In The Supreme Court of Nigeria

On Friday, the 2nd day of June, 2017

SC.589/2014

RATIO

WHETHER FAILURE OF THE THE COURT CLEARLY STATE ON THE RECORD OF PROCEEDINGS THE LANGUAGE IN WHICH THE CHARGE WAS READ TO THE ACCUSED/APPELLANT IS FATAL TO THE TRIAL

The basic fundamental principle in the Constitution as provided under Section 36(6) of 1999 Constitution of the Federal Republic of Nigeria that, the person accused must be informed properly of the charge against him so that he will understand it. Should the accused not understand English language which is the language of the Court, the charge must be read and explained to him in that language he understands, presumable, through Court clerk. Section 33(6), (a) of the Constitution of the Federal Republic of Nigeria is very clear on the requirement of affording a person accused of committing any criminal offence with an interpreter, if he does not understand the language of the trial Court before his plea can be taken. This is fundamental right which is inalienable and non-negotiable. Section 215 of the Criminal Procedure Law requires that the charge must be read over to the accused person in the language he understands to the satisfaction of the Court before he is called upon to plead to the charge. See the following cases:- OLABODE VS STATE (2009) 4 NCC 199 OGUNYE VS THE STATE (1999) 5 NWLR (Pt 604) 548 OKORO VS THE STATE (1998) 14 NWLR (Pt. 584) 18, EFFIOM VS THE STATE (1993) 1 NWLR (Pt. 373) 502 MONSURU SOLOLA & ORS VS THE STATE, 22 NSCQR 254 at PP 289-290. However, in ANDREW IDEMUDIA VS THE STATE (1999) 5 SCNJ 47 at 62 per Karibi-Whyte, JSC (as he then was) held that: “The requirement that the charge must be read and explained to the accused in the language he understands, in my opinion, presupposes that the accused does not understand English which is the language of Court. If he does not, the Court has a duty to put on record the language spoken by the accused. However, if the accused understands English, then it is not necessary to record this fact.” Where the accused understands the language of the Court, it is not necessary to record the fact. lt is however good practice to ask the accused the question whether he understood the charge as read, but the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. See:- LATEEF ADENIYI VS THE STATE, 6 NSCQR (Pt. 11) 656 at 663 and 664. In the instant case, page 12 of the record shows exactly how the plea of the Appellant was taken. “The charge was read to the accused and then explained to him by the Court clerk and he pleaded not guilty to the lone charge.” From the above, I am not convinced that the procedure above is not in conformity with the provision of Section 36 (6) (a) of the 1999 Constitution and Section 215 of the Criminal Procedure Law as claimed by the Appellant. In ADENIYI VS STATE (2001) 13 NWLR (Pt. 730) this Court held that: “Thirdly, the Appellant understood English. This is evident in the record. He made his plea and also gave his evidence in English. The omission by the learned trial judge to state that he was satisfied that the Appellant understood the charge is of no moment. Where the accused understands the language of the Court – English, it becomes unnecessary to record that fact. It is however, good practice to ask the accused the question whether he understood the charge so read and explained and to record the answer. But the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. I am therefore, in agreement with the Respondent that the Appellant was properly arraigned.” Similarly, unless it appears very clear from the record that an Appellant did not understand the language used at the trial and that interpretation for his benefit was refused, all acts are presumed to have been legitimately done until the contrary is established. See:- MADU VS STATE (1997) 1 NWLR (Pt. 482) 386 at 401. Throughout the proceeding, in his defence, the Appellant spoke English language at the trial. The charge having been read over and explained to the appellant in English language to which he pleaded not guilty thereto, I find it difficult to conceive how the arraignment of the Appellant can be faulted. Without doubt, it would have been better for the trial judge to add that the Court is satisfied with the arraignment, but failure to do so cannot be fatal to the trial so long as the charge was read over and explained to the Appellant. See:- UDEH VS THE STATE (1999) of NWLR (Pt.609) 1. ADENIYI VS THE STATE (Supra) ANDREW IDEMUDIA VS THE STATE (Supra). PER SIDI DAUDA BAGE, J.S.C.

DUTY OF THE ACCUSED PERSON RAISING THE DEFENCE OF ALIBI TO GIVE ADEQUATE PARTICULARS OF HIS WHEREABOUTS AT THE TIME OF THE COMMISSION OF THE OFFENCE

The law is that it is not enough for an accused to raise the defence of Alibi at the stage of trial. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the Alibi. If the Appellant said he was in a particular place, he must give a lead as to the specific place, names and/or addresses of who to contact and the relevant period he was away from the scene of crime. Therefore, where an accused person raises an Alibi, the defence must be unequivocal and must be given during investigation and not during the hearing of the defence. The mere allegation that he was not at the scene is not enough, the accused person must give some explanation of where he was, and who could know of his presence at that other place at the material time of the commission of the offence in question. See:- YANOR VS THE STATE (1965) 1 AII NLR 193, and OBIODE VS THE STATE (1970) 1 AII NLR 35. PER SIDI DAUDA BAGE, J.S.C.

EFFECT OF THE FAILURE OF AN ACCUSED TO PRODUCE EVIDENCE TO DEMOLISH THAT OF THE PROSECUTION THAT HE WAS AT THE SCENE OF CRIME ON HIS DEFENCE OF ALIBI

I agree with the learned counsel for the Respondent that Exhibit B which is the extra-judicial statement of the Appellant has no iota of evidence of Alibi but only corroborates the whereabout of the Appellant as testified by PW.4 and Pw.1 to be at the scene of the crime (locus criminis). In NDUKWE VS THE STATE NNCC at 4. This Court per M. S. Muntaka-Coomassie, JSC, (as he then was) stated that:- “In the case at hand, the evidence of PW1 and 2 who knew the accused person closely identified the accused at the scene of this dastardly Act. Their evidence is reliable. The defence failed to produce evidence to demolish that of the prosecution even though he got opportunity to do so, by calling witness or witnesses to support him.” See:- also OMOTOLA VS THE STATE (2009) 4 NCC 89 LAWRENCE OGUNO VS THE STATE (2012) 7 NCC Pg 419 SALE DAGAYYA VS THE STATE (2005) 1 N.C.C 532 at 542-543. PER SIDI DAUDA BAGE, J.S.C.

WHETHER A COURT CAN STILL CONVICT ON A CONFESSIONAL STATEMENT ALONE EVEN IF THE ACCUSED PERSON RESILES FROM IT

It is well grounded law that where on the production of a confession it is challenged on the ground that an accused person did not make it at all, the question whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial Judge himself. Whatever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it would be admitted in evidence as the issue of voluntariness or otherwise if the statement does not arise for consideration and decision of this Court See: QUEEN VS IGWE (1960) FSC 55; (1960) SCNLR 158; IKPASA VS ATTORNEY-GENERAL, BENDEL STATE (1981) 9 SC 7. This Court again in SHUAIBU ABDU VS. THE STATE (2006) 12 SC (Pt. VI) at Page 103 held that:- “… the prosecution heavily relied on the confession of the accused/appellant in proof of its case. I am mindful of the fact that a free and voluntary confession of guilt whether judicial or extra-judicial which is direct, positive and properly proved is enough to establish a conviction, so long as the Court is satisfied with its truth. See THOMAS AKPAN EKONG VS. THE STATE (2013) All FWLR (pt. 685) 353; ODEY v. F. R. N (2008) 3 -4 SC 142”. However, in EGBOGHONOME VS. THE STATE (1993) 7 NWLR (pt. 306) 383 It was held that:- “Where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amount to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such u-turn does not necessarily make the confession inadmissible.” See also QUEEN VS ITULE (1961) 2 SCNLR 183; AREMU VS. THE STATE (1984) 6 SC 85; EJINIMA VS. THE STATE (1991) 6 NWLR (Pt.200) 62: AKPAN VS. THE STATE (1992) 6 NWLR (Pt.248) 439 and AKINFE VS. STATE (1988) 3 NWLR (Pt.85) 729. In SULE VS. THE STATE (2009) 4 NCC 456, this Court decided that:- “A Court can still convict on a confessional statement alone even if the accused person resiles from it. A confessional statement is part of the evidence adduced by the prosecution”. See also ADEKOYA VS. THE STATE (2012) 1 NCC page 7 and ONYEYE VS. THE STATE 7 NCC page 304. PER SIDI DAUDA BAGE, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

YUSUF AKEEM Appellant(s)

AND

THE STATE Respondent(s)

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): The Appellant was arraigned and prosecuted at the High Court of Justice of Ondo State sitting at Akure, in Akure judicial Division for the offence of Armed Robbery contrary to Section 1(2) (a) the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol 14 Laws of the Federation, 2004. The offence was allegedly committed on the 2nd January, 2011.

FACTS OF THE CASE
On the 2nd January, 2011 at about 12.40am, the Appellant was said to have entered the house of Mrs. Oguntoyinbo (PW.2) at Orita Obele estate on a robbery operation and informed her that the house was surrounded by his gang. He thereafter demanded for her Jewelry and money and also threatened to open the door and the Appellant carted away her money and Jewelry, but just before he left the house, he saw the picture of her late husband on the wall and asked her where her late husband hailed from and his name. She then told him, he was from Oba Akoko and also told him his name to which he exclaimed “oh lord ”

He collected her phone and that of her daughter and a sum above N2,000. The Appellant led the

daughter of Pw2 to one Mr. Lanre Alonge (PW3) trying to get access to Pw3’s house. Mr. Lanre raised an alarm and the daughter took advantage of the opportunity to escape and the appellant also fled.

On the 10th January, 2011, PW. 2 received a call from father of her daughter’s friend, that she should see him at home. She went to see the man, and he told her that someone had been flashing his number and when he called back, a girl picked the phone and asked to speak with Aderonke who is PW.2’s daughter. On further enquiries as to why she wanted to meet Aderonke, the girl said she wanted to meet her because of the design on the phone (the stolen phone) that she would love to learn and would want to meet Aderonke to teach her. She also said someone gave her the phone and Aderonke’s name, always came up whenever she used the phone. After the conversation, PW.2 strategized on how to get the girl and enlisted the help of Mr. Lanre (PW.3) to help her. PW.3 established a relationship with the girl on phone and thereafter planned to meet her. They agreed to meet at Oke – Ijebu area of Akure and at the meeting point they saw the phone that was robbed from PW.2’s

Daughter on the day of the incident. The girl was thereafter arrested and taken to the police station. At the Police Station she disclosed that the accused person gave her the phone and she led the police to where the accused person was arrested.

The appellant made an extra-judicial statement on the 13th January, 2011 which was admitted by the trial Court and marked as Exhibit B. It is on these facts that the Appellant was prosecuted and charged for committing Armed Robbery.

The trial Court, in its judgment dated 21st January, 2013 found the Appellant guilty and convicted him for Robbery contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act. The Appellant was however aggrieved. His appeal to the Court of Appeal, sitting at Akure, against his conviction and sentence for the offence of Robbery was on 5th June, 2014 dismissed, and the conviction and sentence were affirmed.

It is from this decision of the Court of Appeal, affirming the conviction and sentence of the Appellant for Robbery that this further appeal to this Court has arisen. Learned Counsel for the Appellant on the 1st December, 2014 filed his brief of argument

and formulated 3 issues for the determination of his appeal.
“1. Whether the Court of Appeal was right in affirming the validity of the Appellant’s arraignment as being in compliance with fundamental principle of fair hearing. (Ground 1 of the Notice of Appeal).
2. Whether the non-consideration by the Court of Appeal of the Appellant’s defence of alibi occasioned miscarriage of Justice. (Ground 2 of the Notice of Appeal).
3. Whether the guilt of the appellant, as affirmed by the lower Court, i.e the Court of Appeal, was proved beyond reasonable doubt. (Ground 3 of the Notice of Appeal).”

However, the respondent in his brief of argument filed on the 30th July, 2015 formulated the following issues for determination.
“1. Whether the Court of Appeal rightly affirmed that the appellant’s arraignment was proper and did not Adversely affect his right to fair hearing (Ground 1 of the Notice of Appeal).
2. Whether the defence of alibi could avail the Appellant in the circumstance of this appeal (Ground 2 of the Notice of Appeal).
3. Whether the guilt of the Appellant was proved beyond reasonable doubt by the prosecution and as

affirmed by their Lordships of the Court of Appeal. (Ground 3 of the Notice of Appeal).”

Looking at the issues as formulated by both Counsels, it is clear that the two counsels are in agreement with each other as per the issue for determination of this Appeal.

I shall therefore adopt the issues for determination as formulated by the learned counsel for the Appellant.

ISSUE 1
“Whether the Court of Appeal was right in affirming the validity of the Appellant’s arraignment as being in compliance with the fundamental principle of fair hearing.
Learned counsel for the Appellant submitted that the Appellant’s constitutional right to fair hearing from the inception of this case is pristinely sacred. He argued that Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides that.
Every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in details of the nature of the offence.”

He argued that, the law as depicted above constitutionally, procedural and judicially provides that the charge must be read to the

accused person in the language that he understands. Learned counsel submitted that in this present appeal, the language in which the charge was read to the Appellant was not clearly stated on the record of proceedings of 13/06/2012.

Learned counsel argued that the appellant did not understand English language, which is the language of the Court, as at the material time he pleaded to the charge. He submitted that a valid arraignment is a condition precedent to an accused person’s trial, conviction and sentence the non fulfillment of which renders the whole trial nullity. He relied on EWE VS THE STATE (1992) 6 NWLR (Pt 246) 147 at 152.

He finally submitted that, any criminal trial conducted in violation of Section 2 of the Criminal Procedure Act and Section 187(1) of the Criminal Procedure Code as well as Section 36(6)(a) of the Constitution, Federal Republic of Nigeria 1999, (As amended) is a nullity reliance was put on RUFAI VS THE STATE (2001) 7 NSCR 420 at 427, 428 TOBBY VS THE STATE (2001) 6 NSCQR (Pt.1) 362 at 69. He urged the Court to allow this appeal on this all-important issue of invalid arraignment.

On the other hand, learned counsel

for the Respondent submitted that the lower Court strictly complied with the mandatory requirements of Sections 215 of the Criminal Procedure Law and Section 36 (6) of the 1999 Constitution. He argued that the lone issue to be determined on the contention of the Appellant is whether Appellant understood English and therefore was properly arraigned.

He argued further that the Appellant on the issue of improper arraignment consistently based the Appellant’s lack of understanding of English language on the fact that the Appellant is a trader and had secondary school education. He cited the case of DIBIE & ORS. VS THE STATE (2007) 9 NWLR (Pt.1038) 30.

The learned counsel contended that the simple question to be asked therefore is why would the Appellant in one breath admit he is a trader who is not conversant with the acceptable use of the English language as customary with our Courts. And in another breath denied that the same statement was not written by the Appellant He further submitted that the entire argument is simply an afterthought meant to prejudice the mind of the Court.

He argued that the plea was read, and explained to the

Appellant in English language by the Court clerk to the satisfaction of the Court before the trial Judge recorded the plea and therefore in total compliance with Sections 215 of the Criminal Procedure Law and 36 (6) (a) of the 1999 Constitution of Federal Republic of Nigeria (As Amended). He urged the Court to resolve this issue in favour of the Respondent.

the Criminal Procedure Law requires that the charge must be read over to the accused person in the language he understands to the satisfaction of the Court before he is called upon to plead to the charge. See the following cases:- OLABODE VS STATE (2009) 4 NCC 199 OGUNYE VS THE STATE (1999) 5 NWLR (Pt 604) 548 OKORO VS THE STATE (1998) 14 NWLR (Pt. 584) 18, EFFIOM VS THE STATE (1993) 1 NWLR (Pt. 373) 502 MONSURU SOLOLA & ORS VS THE STATE, 22 NSCQR 254 at PP 289-290.
However, in ANDREW IDEMUDIA VS THE STATE (1999) 5 SCNJ 47 at 62 per Karibi-Whyte, JSC (as he then was) held that:
“The requirement that the charge must be read and explained to the accused in the language he understands, in my opinion, presupposes that the accused does not understand English which is the language of Court. If he does not, the Court has a duty to put on record the language spoken by the accused. However, if the accused understands English, then it is not necessary to record this fact.”
Where the accused understands the language of the Court, it is not necessary to record the fact. lt is however good practice to ask the accused the question whether he understood

the charge as read, but the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. See:- LATEEF ADENIYI VS THE STATE, 6 NSCQR (Pt. 11) 656 at 663 and 664.
In the instant case, page 12 of the record shows exactly how the plea of the Appellant was taken.
“The charge was read to the accused and then explained to him by the Court clerk and he pleaded not guilty to the lone charge.”
From the above, I am not convinced that the procedure above is not in conformity with the provision of Section 36 (6) (a) of the 1999 Constitution and Section 215 of the Criminal Procedure Law as claimed by the Appellant.
In ADENIYI VS STATE (2001) 13 NWLR (Pt. 730) this Court held that:
“Thirdly, the Appellant understood English. This is evident in the record. He made his plea and also gave his evidence in English. The omission by the learned trial judge to state that he was satisfied that the Appellant understood the charge is of no moment. Where the accused understands the language of the Court – English, it becomes unnecessary to record that fact. It is however, good practice to ask the accused the question

whether he understood the charge so read and explained and to record the answer. But the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. I am therefore, in agreement with the Respondent that the Appellant was properly arraigned.”
Similarly, unless it appears very clear from the record that an Appellant did not understand the language used at the trial and that interpretation for his benefit was refused, all acts are presumed to have been legitimately done until the contrary is established. See:- MADU VS STATE (1997) 1 NWLR (Pt. 482) 386 at 401.
Throughout the proceeding, in his defence, the Appellant spoke English language at the trial. The charge having been read over and explained to the appellant in English language to which he pleaded not guilty thereto, I find it difficult to conceive how the arraignment of the Appellant can be faulted. Without doubt, it would have been better for the trial judge to add that the Court is satisfied with the arraignment, but failure to do so cannot be fatal to the trial so long as the charge was read over and explained to the Appellant. See:- UDEH VS THE

STATE (1999) of NWLR (Pt.609) 1. ADENIYI VS THE STATE (Supra) ANDREW IDEMUDIA VS THE STATE (Supra)

Issue 1 is also hereby resolved in favour of the Respondent.

ISSUE 2
“Whether the non-consideration by the Court of Appeal of the Appellant’s defence of Alibi occasioned a miscarriage of justice. Learned counsel for the Appellant argued that a cursory perusal of page 21 of the record of Appeal reveals that the Appellant raised the defence of Alibi which was not considered by both the learned trial Court and the Court of Appeal.”

He submitted that the law is that an accused person’s defence no matter how stupid or fanciful, must be properly considered by both the trial and appellate Courts he cited AYAN VS THE STATE (2013) 7 S. C. (Pt. IV) 1 at 28.

He argued that in ADEBAYO VS THE STATE (2014) 5 – 6 S C. (Pt. 11) 68 at 100, this Honourable Court per Ariwoola, JSC held as follows.
“Alibi means when a Person charged with an offence says that he was not at the scene of crime at the time the alleged offence was committed. That he was indeed somewhere else and therefore he was not the person who committed the offence.”

The learned counsel submitted that the non-consideration of the Appellant’s defence of Alibi has occasioned miscarriage of-justice. He urged the Court to so hold.

Contrary to the submission of the learned counsel for the Appellant above, learned counsel for the respondent submitted that the issue of Alibi raised by the accused person is an afterthought or fanciful story contrived by the accused in a desperate bid to save himself from the clutches of justice. He submitted that the defence of Alibi was raised by the Appellant in his oral evidence for the first time in Court and this defence is filled with contradictions which amount to a substantial disparagement of what was said making it unsafe to rely on.

Learned counsel argued that the principle of law is that the mere raising of such a defence, the facts which are exclusively within the knowledge of the accused and perhaps his witness without adducing evidence in support thereof would not be tantamount to a proper defence of Alibi, on the other hand, where the prosecution adduces cogent evidence of the physical presence of the accused at the locus criminis, it is relieved of the burden of calling any further

evidence to destroy the Alibi raised. He cited the cases of OMOTOLA & ORS. VS THE STATE (2009) 8 ACCR Pg.78. ADEDEJI VS THE STATE (1971) 1 ALL NCR Pg. 75. He submitted that the Appellant did not call any witness to prove his Alibi since the facts of his Alibi are exclusively within his knowledge and thus do not amount to a proper Alibi.

He further argued that for a plea of Alibi to be sustained, it must be raised at the earliest opportunity preferably in the Appellant extra-judicial statement to the police when the antecedents of the events culminating in the arrest of the Appellant for the crime allegedly committed were still fresh in his memory. He finally submitted that Exhibit B which is the Appellant extra judicial statement has no iota of the defence of Alibi but rather – corroborates the oral evidence of PW.1 and PW.4 as to the locus criminis and he urged the Court to so hold.

was in a particular place, he must give a lead as to the specific place, names and/or addresses of who to contact and the relevant period he was away from the scene of crime.
Therefore, where an accused person raises an Alibi, the defence must be unequivocal and must be given during investigation and not during the hearing of the defence. The mere allegation that he was not at the scene is not enough, the accused person must give some explanation of where he was, and who could know of his presence at that other place at the material time of the commission of the offence in question. See:- YANOR VS THE STATE (1965) 1 AII NLR 193, and OBIODE VS THE STATE (1970) 1 AII NLR 35.

In the instant case, the Appellant stated at page 21 of the record that:-
“I was in Abuja on 2nd January, 2011 and I only returned to Akure on 13th January, 2011. I was arrested during the morning hours of 13th January, 2011.”

From the above, it is clear that the Appellant raised the defence of Alibi for the first time in his evidence during cross examination at the trial Court. He did not raise it at the earliest opportunity to the police – there was no proper plea of the defence by the Appellant to require an consideration from this

Court.

I agree with the learned counsel for the Respondent that Exhibit B which is the extra-judicial statement of the Appellant has no iota of evidence of Alibi but only corroborates the whereabout of the Appellant as testified by PW.4 and Pw.1 to be at the scene of the crime (locus criminis). In NDUKWE VS THE STATE NNCC at 4.
This Court per M. S. Muntaka-Coomassie, JSC, (as he then was) stated that:-
“In the case at hand, the evidence of PW1 and 2 who knew the accused person closely identified the accused at the scene of this dastardly Act. Their evidence is reliable. The defence failed to produce evidence to demolish that of the prosecution even though he got opportunity to do so, by calling witness or witnesses to support him.”
See:- also OMOTOLA VS THE STATE (2009) 4 NCC 89 LAWRENCE OGUNO VS THE STATE (2012) 7 NCC Pg 419 SALE DAGAYYA VS THE STATE (2005) 1 N.C.C 532 at 542-543.

From the foregoing, issue 2 is also resolved in favour of the Respondent.

ISSUE 3
“Whether the guilt of the Appellant, as affirmed by the lower Court, was proved beyond reasonable

doubt.
Learned counsel for the Appellant submitted that an accused Person is presumed innocent under the Nigeria criminal law until the contrary is established. He cited Section 36 (5) of the Constitution of Federal Republic of Nigeria, 1999, as amended, which provides that.
Every Person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”

He argued that the essential ingredient of the offence of robbery as contained in Section 1 (2) (a) of Robbery and Firearms (Special Provisions) Act Cap R11 were not met by the prosecution in the trial of Appellant as there was an ensuing doubt, in the whole of the prosecution.

He argued that the Court of Appeal heavily relied on Exhibit B (Appellant’s extra judicial statement) among other materials in affirming the conviction and sentence of the Appellant according to the learned counsel, Exhibit B was wrongly admitted and reliance on It occasioned a serious miscarriage of justice. He referred the Court to page 14 of the record of appeal, where the Appellant denied making the statement.

He cited the case of SHAZALI VS THE STATE (1988) 12 S. C. (Pt. 11)

58 at 71 where this Court outlined the questions the Judge must ask himself, which are.
“(1) Is there anything outside the confession to show that it is true
(2) Is it corroborated
(3) Are the relevant statements made in it of facts, true as far as they can be tested
(4) Was the Prisoner one who had the opportunity of committing the murder
(5) Is his confession possible
(6) Is it consistent with other facts which have been ascertained and have been proved The learned judex went further to say that.”
“If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.”

Learned counsel further argued that a confessional statement that is itself defective and lacks corroboration cannot link an accused person to the commission of an offence, he relied on the decision of the Court in CHIBUILE VS THE STATE (2012) 1 – 3 S. C. 128.

He argued that the evidences of PW 1

and PW 2 are not credible PW.1 was not at the scene of the incident. PW.4 on her own part did not know where or how the Appellant came into possession of the phone in question. PW.2 and PW.3 could not pointedly identify the Appellant as their assailant on the fateful day.

Learned counsel finally submitted that it is clear from the above that Appellant’s guilt has not been proved beyond reasonable doubt as provided under Section 135 of the Evidence Act and urged the Court to resolve this issue in his favour.

Learned counsel for the Respondent contended that the prosecution has proved the case of robbery against the Appellant beyond reasonable doubt.

He submitted that enough evidence was led at the trial Court to show that there was a robbery incident which took place at 27, Orita Obele Estate Akure in the house of Pw 2, Pw.2 narrated at the trial Court how the accused person came to her house and dispossessed her of her money and customized necklaces. The Respondent further submitted that since offence of robbery does not legally require corroboration, a Court can act on the evidence of PW.2 and PW.3 to the effect that this robbery was robbery

as established by Exhibit P 2 and Pw.3 and Pw3’s oral evidence before the trial Court. He cited UGWUMBA VS THE STATE (1993) 5 NWLR (Pt.296) 660 at 674 and AKALEZI THE STATE (1993) 3 NWLR (Pt.273) at 13.

Learned counsel further argued that Exhibit B is a damning exposition of the active participation of the accused (Appellant) in the commission of this crime as sufficiently corroborated by the oral evidence of PW.1, Pw.2, PW.3 and Pw.4 as well as Exhibit P1.

It is well settled in law that free and voluntary confession of the Appellant to the police was, alone without corroborative evidence sufficient to support a conviction.

Learned trial Judge in his judgment stated at page 97 of the record that;
“In view of this, I have no doubt in my (sic) that it was the accused who attacked PW.2 and her daughter in her house in the morning hours of the 2nd January, 2011 at the Orita Obele Estate Akure. Exhibit B, the confessional statement of the accused is very positive as to this fact. The evidence of PW.4 is very strong and it decisively linked the accused to the robbery as the ITEL handset robbed during the robbery was founded with PW.4 some few

days after the robbery and she told the Court that it was the accused that gave it to her some days earlier. The accused has not shown how he got the ITEL hand set. He merely set up the defence that he knew nothing about the hand set and that he was a victim of the evil design of PW.4 and the police. I am unable to buy this.”

Exhibit B which is extra judicial statement of the Appellant is reproduced below as follows:-
“Truly I gave ITEL handset to a girl who was arrested by the police I robbed somebody to collect the handset which leaked my secret, after the third day I returned from the operation, I met the girl at the market where she was purchasing brazier, I ask her to help me select some for my wife which she did when I paid and I also bought some for her at that process, I woo her and she agree and took me to their shop also I took her to my Aunty shop at Araromi Street, Akure to introduce her to my Aunty Joy …”

conclusion of the trial by the learned trial Judge himself. Whatever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it would be admitted in evidence as the issue of voluntariness or otherwise if the statement does not arise for consideration and decision of this Court See: QUEEN VS IGWE (1960) FSC 55; (1960) SCNLR 158; IKPASA VS ATTORNEY-GENERAL, BENDEL STATE (1981) 9 SC 7.
This Court again in SHUAIBU ABDU VS. THE STATE (2006) 12 SC (Pt. VI) at Page 103 held that:-
“… the prosecution heavily relied on the confession of the accused/appellant in proof of its case. I am mindful of the fact that a free and voluntary confession of guilt whether judicial or extra-judicial which is direct, positive and properly proved is enough to establish a conviction, so long as the Court is satisfied with its truth. See THOMAS AKPAN EKONG VS. THE STATE (2013) All FWLR (pt. 685) 353; ODEY v. F. R. N (2008) 3 -4 SC 142”.
However, in EGBOGHONOME VS. THE STATE (1993) 7 NWLR (pt. 306) 383 It was held that:-
“Where an extra-judicial confession has been proved to have been made voluntarily

and it is positive and unequivocal and amount to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such u-turn does not necessarily make the confession inadmissible.”
See also QUEEN VS ITULE (1961) 2 SCNLR 183; AREMU VS. THE STATE (1984) 6 SC 85; EJINIMA VS. THE STATE (1991) 6 NWLR (Pt.200) 62: AKPAN VS. THE STATE (1992) 6 NWLR (Pt.248) 439 and AKINFE VS. STATE (1988) 3 NWLR (Pt.85) 729.
In SULE VS. THE STATE (2009) 4 NCC 456, this Court decided that:-
“A Court can still convict on a confessional statement alone even if the accused person resiles from it. A confessional statement is part of the evidence adduced by the prosecution”.
See also ADEKOYA VS. THE STATE (2012) 1 NCC page 7 and ONYEYE VS. THE STATE 7 NCC page 304.

From the foregoing, I agree with the trial Court when it admitted the extrajudicial statement of the Appellant and convicted him upon that. The trial judge held thus;
“l have no doubt in my mind that Exhibit B was truly made by the accused and it was fully

corroborated by other evidence led in this case”

This issue is also resolved in favour of the Respondent.

Having resolved all the issues against the Appellant, I am satisfied that the prosecution has proved its case beyond reasonable doubt. The appeal is without merit and it is hereby dismissed. The conviction and sentence Under Section 1 (1) of the Robbery and Firearms (Special Provisions) of the Appellant is reconfirmed.

OLABODE RHODES-VIVOUR, J.S.C.: I had the benefit of reading a draft copy of the Leading Judgment delivered by my learned brother Bage JSC. I agree with the conclusions.

There is nothing further that can be usefully said, but I wish to add a few observations of my own on Alibi.

When a suspect arrested for committing a crime, e.g armed robbery, Murder etc and he says he has an alibi, what he is saying is that he was nowhere near or at the scene of the crime when it was committed. He is saying that he was elsewhere, so he could not have committed the offence. The onus of establishing an alibi is on the suspect since it is within his personal knowledge. The suspect should at the first opportunity

he has to write a statement raise the defence of alibi. An alibi should be very detailed on where he was at the time the offence was committed. He should give the names of people he was with, their addresses e.t.c.
A detailed alibi is mandatory since a plea of alibi is demolished if that prosecution leads sufficient evidence to fix the suspect at the scene of crime at the time in question. An alibi is established not on its proof beyond reasonable doubt, but on the balance of probabilities. See Osuagwu v State (2013) ALL FWLR (Pt. 672) p. 1605.
Mohammed v State (2015) 2 SC (Pt. i) p. 163 Uche v State (2015) 4-5 SC (Pt. ii) p.140 Sani v State (2015) 6-7 SC (Pt. ii) p. 1.
In this case the accused person raised the defence of alibi for the first time during his trial. A genuine alibi always fresh in the mind of the accused person. Since he never raised the defence of alibi at the earliest opportunity, i.e when he wrote his statement, raising it in Court during trial is an afterthought. By raising the defence of alibi for the first time during trial, the accused person is deliberately denying the investigating Police Officers the opportunity to

investigate the alibi, a clear attempt to frustrate the trial, knowing fully well that it is too late to investigate an alibi during trial. In the circumstances such an alibi should not be considered as there is nothing to consider.

For this and the comprehensive reasoning in the leading judgment, I too dismiss the appeal.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment of my learned brother, Bage, JSC. I agree that the appeal is devoid of any merit and should be dismissed.

My learned brother has dealt with all the issues raised in this appeal comprehensively and I adopt his judgment as mine. However, and for purpose of lending my own voice, I will say a word or two of mine on the 1st issue raised which questions:
Whether the Court of Appeal rightly affirmed that the appellant’s arraignment was proper and did not adversely affect his right to fair hearing.

It is the contention of the appellant that he was not properly arraigned as the language in which the charge was read was not stated. In other words that Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as

amended was not complied with. The Section provides:-
“Every Person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.”

The plea of the accused Person is at page 12 of the record and the reproduction of same says:-
“The charge was read to the accused and then explained to him by the Court clerk and he pleaded not guilty to the lone charge.”

For all intents and purposes, the plea was read, and explained to the appellant by the Court clerk to the satisfaction of the Court before it recorded the plea. It was therefore in total compliance with Sections 215 of the Criminal Procedure Law and 36(6)(a) of the 1999 Constitution. This is contrary to the contention held by the appellant’s counsel.
A relevant authority in reference is the decision of this Court in Dibie v. State (2008) 6 ACLR 307-335 per Katsina Alu, JSC (as he then was) wherein he said:-
“From the record of appeal as a whole, coupled with the fact that the Appellants are literate in English… Thirdly the Appellant understood English. This is evidence in the record

he made his Plea and also gave his evidence in English. The omission by the learned trial Judge to state that he was satisfied that the Appellant understood the charge is of no moment. Where the accused understands the language of the Court-English, it becomes unnecessary to record that fact. It is however good practice to ask the accused the question whether he understood the charge so read and explained and to record the answer. But the omission to do so would not constitute non-compliance with the constitutional and procedural requirements. I am therefore, in agreement with the respondent that the appellant was properly arraigned. His Lordship TOBI JSC in DIBIE’S case also noted as per page 325.
The language of the Court is English. The Appellant speaks English…. it is a clear and constant human conduct for a person who is addressed or spoken to and who does not hear or understand what is spoken, to immediately ask for an explanation ….. why did the appellants plead “not guilty” to the charge if they did not understand it The submission of the Appellant is tommy rot ….. If he does not, it will not be wrong to presume that he understood what was

said to him …… I would like to think that Section 215 is more for accused persons who are not literate in the language of the Court. I am not saying that Section 215 will not apply to persons who are literate in the language of the Court. I expect such a person not to plead if he does not understand the charge and ask for an explanation.” As it is in Dibie’s case supra, the appellant, after the charge was read to him, Pleaded not guilty thereto. He was represented by a counsel in the person of T. S. Aladetoyinbo, Legal Aid Officer. Also at Page 20 of the record of appeal, the appellant herein (who was the accused before the trial Court) gave evidence in his own defence as DW1.
Intriguingly he swore on the Holy Bible and gave his evidence in English language. He denied knowing anything about the robbery charge. In the same case of Dibie V. State (supra) his Lordship Akintan, JSC in further re-statement said:-
“It may be mentioned that the Court notes are not expected to be a verbatim report of all that transpired at the hearing while it is necessary that it should not leave out the essential matters in the particular case, a trial

will definitely not be set aside only on account of the form a particular account is recorded as in the instant case.”

There is therefore no merit in the argument as it relates to the mode of taking the plea of the appellant.

With the few words of mine and relying particularly on the comprehensive reasoning and conclusion arrived at in the lead judgment, the totality of this appeal is lacking in merit. I therefore dismiss same in terms of the lead judgment of my learned brother.

AMIRU SANUSI, J.S.C.: My lord Honouroble Justice Sidi Bage JSC had before now, obliged me with a draft copy of the judgment just delivered in this appeal. On reading same, I find myself at one with the reasons and conclusion he arrived at that this appeal is devoid of merit and deserves to be dismissed. I too hereby accordingly dismiss the appeal for want of merit, even though I shall below chip in few comments in support of the lead judgment.

His lordship had ably and adequately summarized the fact giving rise to this appeal as well as the submissions of learned counsel to the parties. I therefore see no need to repeat them here.

By his submissions on issue No.1 contained in the appellants brief of argument, the learned counsel for the appellants main grouse is to the effect that when arraigned before the trial Court for his trial, the Court did not comply with the fundamental principles of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999 as amended because the appellant did not understand English language, the language of the Court when the charge(s) was/were read and explained to him before his plea was taken. To that effect, the appellants learned counsel insisted that the procedure adopted by the trial Court which was approved or affirmed by the lower Court had breached the provisions of Section 2 of the Criminal Procedure Act, Section 187 (1) of Criminal Procedure Act, Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended and also Section 215 of Criminal Procedure Act.

Now a cursory look at page 12 of the record of appeal it is clear as crystal that the appellants plea was taken because the trial Court recorded thus:
The charge was read to the accused and then explained to him by

the Court clerk and he pleaded not guilty to the charge.

The appellant’s learned counsel had in no way or at no time challenged the content of the record of proceedings/appeal as reproduced above. The appellant had also at no time informed the trial Court that he did not understand English language which is the language of the Court. In multiplicity of decided authorities this Court had laid down three requirements which must be followed by trial Court in order to establish valid arraignment or to account for valid arraignment under Section 215 of the Criminal Procedure Act. The three conditions are hereunder reproduced.
(a) The accused must be placed before the Court unfettered unless the Court shall see cause otherwise to order.
(b) The charge or information shall be read and explained to the Accused to the satisfaction of the Court by the Registrar, Court clerk or other officer(s) of the Court, and
(c) The Accused shall then be called upon to plead thereto unless, of course, there exists any valid reason to do otherwise such obligation such as want of service where the accused is not entitled by law to service of a copy of the

information and the Court is satisfied that he has in fact, not been duly served herewith.
See OGUNLEYE V THE STATE (1999) 5 NWLR (pt.604) 548 at 555; IDEMUDIA v THE STATE (1999) 7 NWLR (pt. 610) 202 at 204; SABINA MADU v THE STATE (1992) 9 SCNJ 1; OLABODE v THE STATE.

The appellant also complained that he did not understand English language in which the charge(s) was read and explained to him. The law is trite that where an accused person does not understand English language which is normally, the language of the Court, it is his responsibility to tell the Court that he did not understand English language which is the language of the Court or ask his lawyer (if any) to inform the Court of that challenge. In the instant case, at no time did the appellant’s learned counsel inform the Court at the trial, that his client did not understand the English language. Moreso, evidence abound in this instant case, that the appellant followed the proceedings conducted in the English language and also he testified for his defence in English language.

Apropos of the above, I am duly convinced that the provisions of Section 215 of the Criminal Procedure Act was

duly complied with by the trial Court with regard to his arraignment as rightly found by the lower Court. From the surrounding circumstances of the case, it has not been established that the provision of Section 36(6) of the 1999 Constitution as amended was breached, as rightly found by the lower Court. The lower Court was therefore right to have affirmed the findings of the trial Court.

Thus, for these few comments of mine and for the fuller and more detailed reason and the conclusion arrived at in the lead judgment of my learned brother Sidi Dauda Bage JSC which I also adopt as mine, I also see no merit in this appeal. It is accordingly dismissed by me. I confirm the decision of the lower Court which had also affirmed the judgment of the trial Court in which the latter convicted and sentenced the appellant herein. Appeal dismissed.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by learned brother BAGE, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. Mr Isiaka Abiola Olagunju, learned counsel for the Appellant distilled three issues

for determination of this appeal. The first issue is whether the Court of Appeal was right in affirming the validity of the appellant’s arraignment as being in compliance with the fundamental principle of fair hearing. Learned counsel’s quarrel here is that the language in which the charge was read to the Appellant was not clearly stated on the face of the record of proceedings of 13th June, 2012 when the Appellant was arraigned before the High Court. According to the learned counsel, the Appellant did not understand English language as at the time he pleaded to the charge, because he, being a trader who did not go beyond secondary school level, did not appreciate English language. Learned counsel cited a host of authorities in support of his further submission that arraignment of an accused person before a Court is a fundamental issue of constitutional and statutory dimensions which require strict compliance. I agree with learned counsel that arraignment is a very important initial step in the trial of a person charged with a criminal offence. Where there is no proper arraignment, there is no trial in law, no matter the strength or cogency of the evidence

adduced. Any subsequent judgment arising from such proceedings would be rendered totally and incurably defective and consequently declared null and void. See Kajubo v State (1988) 1 NWLR (Pt. 73) 721; Eyorokoromo v State (1979) 6-9 SC 3; Erekanure v State (1993) 5 NWLR (Pt. 294) 385; Effiom v The State (1995) 1 NWLR (Pt. 373) 507. The proceeding, subject matter of the learned counsel’s complaint is at page 12 of the record of this appeal. After taking appearances of counsel, the learned trial Judge recorded the Appellant’s plea as follows:-
Plea:- The charge was read to the accused and then explained to him by the Court clerk and he pleaded not guilty to the lone charge.”

The Appellant was represented by a counsel by name Mrs. A. A Jimoh. It is common knowledge that proceedings at the superior Courts in this country are conducted in English language. Where on the face of the record the proceedings are carried out in a manner that is substantially regular, the presumption is that the judicial and official act of the Court has been done rightly and regularly until the contrary is proved. This is by virtue of the provision of Section 168(1) of the

Evidence Act 2011, which provides as follows:
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” See Ogbuanyinya v Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551; Nwachukwu v State (2002) 7 SC (Pt. 1) 124; Akpan v State (2002) 5 SC (Pt. 11) 110.

Section 215 of the Criminal Procedure Law, Cap 31, Vol. 2, Laws of Ondo State of Nigeria 1978 provides as follows:-
“The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the Court by the Registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.
There is nothing in Section 215 of the Criminal Procedure Law of Ondo State, which I have reproduced hereinabove that

stipulates that the language in which a charge is read and/or explained to an accused person must be expressly recorded before a plea may be valid.
It is good practice for the trial Court to specifically record that a charge was read over and explained to the accused to the satisfaction of the Court and that the accused understood the same before his plea thereto. In Okeke v State (2003) 15 NWLR (Pt. 842) 25 at 99 100 Paras H. B. this Court per Iguh JSC while considering Section 333 of the CPL of Anambra State, 1986, which is similar to Section 215 of Criminal Procedure Law of Ondo State, had this to say:-
Where, however, from all the circumstances of the case and the nature of the charge it can reasonably be said that the information was read and explained to the Appellant in the language he understood and that he infact understood the same before making his plea, the mere fact that the trial Court did not record the particular language understood by the Appellant in which charge was read over to him should not be fatal to the proceedings. What the law to all intents and purposes enjoins a trial Court to do is to satisfy itself that

the accused on the charge being read over and explained to him fully understands the nature thereof before he enters his plea thereto.
But the test with regard to this requirement is subjective and not objective.
There is absolutely nothing on record to suggest that the trial Court was not satisfied that the appellant understood the charge before he pleaded thereto.
In the instant case, the charge against the appellant was read and explained to him. There was no objection by his counsel or himself that he did not understand English. Clearly there is presumption of regularity that all that must be done to let him (the appellant) know the charge against him was done. It is therefore presumed that he understood the charge which was read and explained to him and the trial Court was equally satisfied that the charge was understood by the appellant.

The Appellant who testified as DW1 beginning from page 20 of the record of appeal, gave his evidence in English and his extra-judicial statement, which formed part of the proofs of evidence at pages 10-11 of the record of appeal was made in English. These documents clearly negate learned counsel’s argument that the appellant did not understand the language of the Court.<br< p=””
</br<

For the reasons I have set out herein, the first issue is resolved against the appellant.

The second issue is whether the non-consideration by the Court of Appeal of the Appellant’s defence of alibi occasioned a miscarriage of justice. The Appellant’s defence of alibi is at page 21 of the record of this appeal, and it reads thus:-
“I was in Abuja on 2nd January, 2011, I was arrested during the morning hours of 13th January, 2011.

Learned counsel for the appellant forcefully argued that this defence was neither considered by the trial Court or the Court of Appeal. In a further argument, learned counsel submitted that an accused person’s defence, no matter how stupid or fanciful, must be properly considered by both the trial and appellate Courts.

In aid learned counsel cited Ayan v The State (2013) 7 SC (Pt. IV) 1 at 28, and Adebayo v The State (2014) 5-6 SC (Pt. 11) 68 at 100 where this Court defined the defence of alibi and concluded that the non-consideration of the appellant’s defence of alibi has occasioned a miscarriage of justice. Alibi is a defence based on the physical impossibility of a defendant’s guilt by placing him

in a location other than the scene of the crime at the relevant time. Where an accused person raises the defence of alibi, such defence should be investigated and must be controverted by reliable or positive evidence by the prosecution. However for the prosecution to be saddled with that responsibility, the defence must be raised timeously, that is, as soon as the accused is arrested and the offence for which he is arrested is explained to him. Not only is accused required to raise the defence timeously, he must provide sufficient particulars of where he was and with whom he was in order to allow for proper investigation by the prosecution. In the instant case the Appellant first raised the defence of alibi during his evidence in chief before the Court, after he had admitted the offence for which he was charged in his extra-judicial statement before the police. What consideration was the Court expected to accord to such a defence that was required to be investigated by the prosecution if it had been raised early. Learned counsel for the appellant has failed to state how miscarriage of justice was occasioned against the appellant by the failure of the trial Court to

consider a belated and unsubstantiated defence of alibi. The lower Court was right in not considering the defence of alibi which was a product of afterthought. See Atta v State (2010) 10 NWLR (Pt. 120) 190; Yanor v State (1965) NWLR 337; Salami v State (1988) 3 NWLR (Pt. 85) 670.

For all I have said, this issue is also resolved against the Appellant.

The 3rd and the last issue for determination of this appeal is whether the guilt of the appellant, as affirmed by the lower Court was proved beyond reasonable doubt.

Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 35(2) of the Evidence Act 2011 have squarely placed the burden of proof in criminal cases on the prosecution, who must prove beyond reasonable doubt the guilt of the accused person and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v The State (1993) 7 NWLR (Pt. 307) 511 at 531 Paras A-C; Solola v The State (2005) 5 SC (Pt. 1) 135.
In discharging this burden, the prosecution must establish the ingredients of the offence with which the accused is

charged. This, it can do by direct evidence or circumstantial evidence or confessional statement.

The charge against the appellant at the trial Court reads thus:-
“STATEMENT OF OFFENCE:
Armed Robbery, contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R 11 Vol 14, Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE:
Yusuf Akeem on or about 2nd day of January, 2011 at about midnight at Orita-Obele Estate Akure within the Akure Judicial Division, did rob Oguntoinbo Yemi of her jewelry and monies while armed with dangerous weapons.

Section 1(1) of the Robbery and Firearms (Special Provisions) Act, 2004 provides that any person who commits the offence of robbery shall upon trial and conviction be sentenced to imprisonment for not less than 21 years. Subsection 2 says:-
“If-
(a) any offender in Subsection (1) of this Section is armed with any firearms or any offensive weapon or is in-company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any

person, the offender shall be liable upon conviction under this Act to be sentenced to death.”
For the prosecution to succeed in proving its case beyond reasonable doubt it must prove:-
1 . That there was robbery or series of robberies.
2. The robbery or each robbery was committed by person or persons who were armed.
3. That the accused person was one of those who took Part in the armed robbery.

PW1 in her evidence told the trial Court how she and her daughter were robbed of their handsets and a sum of money just about N2,000. She further testified that her daughter’s handset was later found in possession of PW4 who led them to the Appellant who she claimed gave her the phone. This witness said when she opened the door for the armed robber, the latter flashed torch light on her face. According to her the intruder held an object in his right hand while he held the torch light on the left hand.

Under cross examination, this witness admitted that she was scared and so did not look at the face of the robber who attacked her and her daughter.

PW3 was the neighbor to PW1. while the robber led the daughter of PW1 towards the room of

PW3, the latter raised alarm and the robber ran away. However, the Appellant in his confessional statement, Exhibit B admitted that he was the one that robbed PW2 and her daughter of their GSM handsets and the sum of N2,000.

The only evidence that says the appellant was found to be robbing people by using knife and knockout came from PW1, the IPO who neither produced those weapons nor did he state with certainty that the Appellant used knife and the knockout in this particular robbery. This is what PW1 stated under cross exanimation thus:
“I did not found (sic) any firearms or any offensive weapon with the accused when he was arrested. I worked on the case for up to a month. I found that the accused was robbing people by using knife and knockout. I found the mosque where he stayed till he began his operation. There was no break into Mrs. Oguntoyinbo’s house.”

Clearly there is no evidence that the Appellant was armed when he robbed PW1 and her daughter. I therefore do not think the offence of armed robbery was established by the prosecution. What the prosecution succeeded in proving beyond reasonable doubt is an offence of robbery simpliciter.<br< p=””

</br<

The trial Court found the Appellant guilty of the offence of robbery convicted and sentence him to 21 years imprisonment. This decision was affirmed by the Court of Appeal. This is clearly a concurrent finding of fact by the two lower Courts which this Court can only disturb if there is an exceptional circumstance. Such exceptional circumstance is not available in the circumstance of this case.

For the reasons I have set out herein, and the more detailed reasoning in the lead judgment, this appeal shall be and it is hereby dismissed.

Appearances

L B. Olagunju with him, M. Alabadewe, O. Thanni, A. Ilassan and U. Idris For Appellant

AND

Bunmi Niyi Arajuwa (Administrator General and Public Trustee, Ministry of Justice, Ondo State) with him, A. A. Oladuniyi (P.L.O. Ministry of Justice, Ondo State) For Respondent

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YUSUF AKEEM v. THE STATE(2017)

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