Ikechukwu Sunday V. The State (2010)

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FRANCIS FEDODE TABAI, J.S.C

The Appellant together with three others, namely; Samuel Attah, Vincent Friday and Hyginus Oformata were charged and tried at the Kano Judicial Division of the High court of Justice Kano on a two count charge of conspiracy and armed robbery. The charges were laid out as follows:-

THE FIRST HEAD OF CHARGE

“That you Samuel Attah, Vincent Friday, Ikechukwu Sunday and Hyginus Oformata on or about the 10th day of September, 2000 at Na’ibawa quarters Kano, within Kano Judicial Division agreed to do an illegal act to wit, rob the home of Alhaji Danjuma Ali Garko at Na’ibawa of money and jewellery and the same act was done pursuant to the agreement and that you thereby committed an offence contrary to section 5(b) of the Robbery and Firearms (Special provisions) Decree 1984 as amended by Decree No. 62 of 1999.”

THE SECOND HEAD OF CHARGE

“That you Samuel Attah of Na’ibawa quarters, Vincent Friday of Unguwa Uku quarters, Ikechukwu Sunday of Na’ibawa quarters and Hygitrus Oformata of Unguwa Uku quarters within the Kano Judicial Division on the 10th day of September, 2000 at 8:30pm while armed with guns committed the offence of armed robbery in the house of Alhaji Danjuma Ali’Garko of Na’ibawa and robbed them of cash and jewellery worth N94,000,00 (ninety-four thousand naira) only thereby committed an offence punishable under section 1(2) (a) of the Robbery and Firearms (Special provisions) Decree 1984 as amended by Decree No. 62 of 1999.”

Five witnesses testified for the prosecution while each of the accused persons and four other witnesses testified for the defence. At the close of evidence and after address of counsel for the prosecution and the defence the learned trial judge, in the judgment on 24/07/03, found each of the accused persons guilty and each was accordingly sentenced to death. The Appellant and each of the others convicted with him appealed to the Court of Appeal. Each filed a separate notice of appeal. A joint brief of argument was filed for the Appellant and the three others convicted along with him. In its unanimous Judgment on the 6th of January, 2009 the appeal was dismissed.

On the 9th of July, 2000 this court granted the Appellant extension of time within which to appeal. He was also granted leave to raise and argue fresh issues never argued at the courts below, on behalf of the parties briefs of argument have been filed and exchanged. The Appellant’s Brief of Argument was prepared by Dr. J. Y. Musa and it was filed on the 15/10/09. He also prepared the Appellant’s Reply Brief which was fired on the 15/12/09. The Respondents Brief was prepared by Alhaji Aliyu Umar Hon. Attorney General Kano State Ministry of Justice.

In the Appellants brief Dr. J. Y. Musa formulated the issues for determination.

(i) Whether the discretion of the learned trial judge in granting the leave to prefer the charge against the Appellant was exercised in accordance with the law.

(ii) whether there was enough credible and admissible evidence before the learned Justices of the Court of Appeal for confirming and affirming the conviction and sentence of the Appellant.

(iii) whether the non-compliance of the judgment of the learned trial judge with the mandatory provisions of the section 269 (1) of the Criminal procedure Code did not vitiate the entire proceedings and thus rendering it a nullity.

(iv) whether having regard to the entire circumstances of the case the prosecution did not withhold evidence thereby denying the appellant fair trial

(v) whether the Appellant’s defence of alibi was adequately considered and rightly rejected by the courts below.