Okon Udoh Akpan Vs The State (1991)

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B. WALI, J.S.C 

The appellant was tried in the High Court of Lagos State in the Ikeja Judicial Division, upon the following charge –

STATEMENT OF OFFENCE

“Robbery punishable under section 402(2) of the Criminal Code Law Cap 31of Lagos State, 1973.

PARTICULARS OF OFFENCE

Okon Udoh Akpan (m) on or about the 17th July, 1981 along Airport Road Ikeja in the Ikeja Judicial Division, being in company of persons unknown and armed with an offensive weapon to wit; a pistol, robbed (one) Samuel Ajibua of (1) a pickup Peugeot 404 Registration No. LA 8065 ME (2) the sum of N4,521.5k and (3) two cheques for the value of N1,728.15 and N5,525.00 property of STARCO MOTORS NIG. LTD.”

He pleaded not guilty to the charge and the case proceeded to trial. The prosecution called 3 witnesses while the appellant, on his own election, gave evidence on oath. At the end of the trial and in a considered judgment by Desalu J., the appellant was found guilty as charged, convicted and sentenced to death by hanging.

Not satisfied with the trial court’s decision, the appellant appealed to the Court of Appeal which also in a considered judgment dismissed it and affirmed the conviction and sentence passed on him by the trial court. He has now further appealed to this court.

Before considering the arguments for and against the appeal, it is pertinent to state the facts of the prosecution’s case as involved in the episode and which are as follows-

The appellant, in company of two others still at large, on 17th day of July, 1981 at about 4.30 p.m. along the Express Way leading to Murtala Muhammed International Airport, and armed at the time with offensive weapons to wit, pistols, intercepted a Peugeot pickup van with the registration number LA 8065 ME, property of Starco Motors Limited, and under the threat of the said arms, particularly by the appellant, robbed Samuel Ajibua (P.W.1) and Timothy Abiodun (P.W.2) of the pickup, the sum of N4.521.5K in cash, and two cheques for the sum of N1,728.15 and N5,525.00 respectively.

While escaping from the scene of the incident with their loot, the appellant threw the pistol he was holding into the van. When he attempted to jump into the van to join his colleagues he slipped and fell down. The two others drove away in the van while the appellant was pursued and apprehended by P.W.1 and P.W.2 with the help of other people around the scene of the incident. With the help of a policeman. the appellant was taken to the Police Station at the Local Airport.

The van was, on 31st July, 1981 recovered abandoned at Ilasamaja and was towed to C.I.D. Police Station, Panti.

The facts of the appellant’s case, briefly stated are as follows: That on 17th July, 1981, at about 3 p.m., he left his house to the Airport to meet Umo Etuk Udoh, whom he described as his friend. On reaching there, he was told that Etuk had gone to Apapa and decided to wait for him. Later he changed his mind and decided to return to his house. It was on his way back home that he saw people running towards the Airport and on enquiry, he was told that armed robbers were operating on the way and so he joined in running for safety. In the course of that, he collided with another man and both of them fell to the ground. The two started fighting and the other man raised an alarm shouting “thief’ referring to the appellant. This attracted part of the running crowd to the scene of the alarm and they started to beat the appellant. He was consequently rescued by a policeman and was taken to the Police Station. He denied committing any armed robbery or participating in any.

In the brief of arguments filed by the appellant, the issues formulated for determination read thus –