Emmanuel Ugwumba V. The State (1993)

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KAWU, J.S.C. 

This appeal came up for hearing on Thursday, the 8th day of April, 1993. On that day, having carefully perused the record of proceedings, and having studied the briefs of argument filed on behalf of the appellant and the respondent, and having heard oral submissions of both counsel in expatiation of their briefs.

I came to the conclusion that there was nothing in all the submissions made on behalf of the appellant that could possibly justify my interfering with the judgment of the court below and consequently dismissed the appellant’s appeal and reserved my reasons for doing so till today. I now proceed to give those reasons.

The appellant and another person were jointly charged in the High Court of Lagos State, holding at Lagos, for an offence of armed robbery. The charge reads as follows:-

“STATEMENT OF OFFENCE

Armed robbery under section 402(2) (1) of the Criminal Code.

PARTICULARS OF OFFENCE

Francis Dose (m) and Emmanuel Ugwumba (m) on or about the 20th day of June, 1980 at Lagos Judicial Division being armed with an offensive weapon to wit: a gun, robbed one Siraju Taguna, Boniface Nwakoko and Tijani Ajala of N21,150.00 property of S.C.O.A Ltd.”

Both accused pleaded not guilty. At the trial the prosecution called five witnesses in support of their case and both accused testified in their defence but called no witnesses. At the end of the case the learned trial judge BAKARE, J. E found both accused persons guilty as charged. He consequently convicted them of the offence of armed robbery and sentenced them to death.

In his judgment, in respect of the case against the appellant (who was the 2nd accused), he held as follows:-

“I have no hesitation in holding that a robbery was committed on the material day in the manner narrated by Prosecution Witness 2. There is also no doubt in my mind that the 2nd accused was one of the four persons who committed the said robbery. He was seen by Prosecution Witnesses 1, 2 and 4 holding and firing a pistol and was overpowered by Prosecution Witnesses 1 and 4 who disarmed and arrested him. Learned Counsel for the 1st accused submitted that the case against his client was one of oath against oath.

That might be so, but there is nothing preventing a conviction on this type of evidence if there are sufficient reasons to prefer the oath of Prosecution Witnesses to that of the accused; Joshua Alonge vs. Insp. Gen. of Police (1959) SCNLR 516; (1959) 4 FSC 203 at p. 205. I have set out in some detail the evidence of Prosecution Witness 2 to show that the robbery was not a swift operation where perpetrators escape with ease. The crowd at the scene, who were attracted by the alarm raised by Prosecution Witness 2 rose to the occasion by giving the four robbers a fight, not escape in it. They ran out of the car and took to their heels. They were still pursued, Prosecution Witness 2 said the whole drama lasted about an hour and he had sufficient time to see and identify the four evil men who were not masked. When he got to the Police Station to report the incident he saw the 2nd accused who he identified as one of the robbers,”

With regard to the 1st accused, whose appeal was allowed by the Court below, he stated as follows:-

“I prefer the evidence of the arrest of the 1st accused given by Prosecution Witness 4 to that of the accused himself. There is no doubt that the officer was somehow mistaken about the hour of the arrest. This is not fatal to the prosecution’s case. On the totality of the evidence before me, I find that the 1st Accused was one of four men who committed the robbery and was in hiding in the disused shop where he was arrested. The Prosecution the defence put forward by the two accused persons. I find the two accused persons guilty as charged.”