Christopher Okereke Ukpabi V. The State (2002)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A.

This is an appeal against the decision of Imo State High Court, Aba Judicial Division (now Abia State High Court, Aba Judicial Division) delivered on the 30th day of March, 1982 in charge No. A/11C/80 wherein the appellant was convicted of the offence of Robbery contrary to section 1(2)(a) of the Robbery and Fire-arms (Special Provisions) Act No.47 of 1970.

The facts of the case put briefly are as follows:

On 11/7/78 at about 5 a.m., PW2 Samuel Sunday, was on his way to market carrying some goods. At a point along Ngwa Road, someone whom he later knew to be the appellant stopped him and ordered him to search himself. He resisted the order and suddenly two other persons emerged at the scene, one of them was wearing a face mask and holding a gun on his hand. At this stage, the appellant asked him to choose between searching himself and death and he surrendered his goods which included eight dozens of headties valued N315.00, fifty pieces of gowns valued N200.00 and other personal effects and the sum of N25.00. He was ordered to continue going on the direction he was coming from without looking backwards.

As he was going to report his experience on the road to his people, he saw and recognized the appellant as one of those who robbed him buying some cigarettes at a small store at the park along Ngwa Road. He arrested him and held him until the Police arrived.

He stated that the electric light in front of the store where he was robbed enabled him to see the face of the appellant clearly and recognized the way he walked.

The prosecution also called Sunday Olori PW1 and Police Sergeant Oto Ebere who testified as PW4 and tendered the statement of the appellant as exhibit 1.

The defence of the appellant is a total denial of the charge. He gave evidence that he was a beggar and that he was sitting by the side of the road begging when PW2 passed by and asked him if he saw two men who passed the road where he sat and he said no. PW2 then informed him that some people had carried his goods and they were running towards Ngwa Road. He then held him saying that he was the leader of the men who robbed him and a fight ensued between the two of them. He was later taken to the Police Station were PW2 lodged a complaint against him and he was eventually arrested by the Police.

At the end of the trial, the learned trial Judge found the appellant guilty and convicted him accordingly. Dissatisfied with the decision, the appellant has appealed to this court and filed a brief of argument and raised two issues for determination.

“Issues For Determination”

Whether the learned trial Judge was right in holding that the PW2 saw the face of and recognized the appellant at the scene of the incident having regard to the doubtful circumstances of recognition and identification existing in this case and failure to advert to the special need for warning and caution before convicting the appellant in reliance on the correctness of the identification.

Whether the learned trial Judge was right in convicting the appellant of the offence as charged and sentencing him to death when the prosecution failed to prove the charge against the appellant beyond reasonable doubt?

Learned counsel for the respondent also filed a brief of argument and adopted the two issues raised by the respondent.

On issue one, learned counsel for the appellant submitted that the learned trial Judge was wrong in holding that PW2 saw the face and recognized the appellant at the scene of the incident having regard to the doubtful circumstances of recognition and identification. He argued that failure to conduct proper identification is fatal to the case of the prosecution. He further contended that there is doubt whether PW2 recognized the appellant having regard to his evidence under cross-examination when he said that he was pre-occupied with how to save himself stressing that under such circumstances, he could not have the opportunity of close facial examination out of fear he expressed himself on how to save his life. Learned counsel further argued that the learned trial Judge failed to recognize that as the case against the appellant was based principally on the facial identification by PW2, his evidence should have been very closely examined and received with caution after warning himself. Reliance was placed on the cases of R. v. Turnbull & Anors. (1976) 3 All ER 549 at 551-552; Nathaniel Mbenu & Anor v. The State (1985) 3 NWLR (Pt.84) 615 and Zekeri Abudu v. The State (1985) 1 NWLR (Pt.1) 55 (1985) 1 SC 222. He referred to the inconsistent evidence of PW2 at page 17 lines 23 – 24 of the records where he said that he first saw the accused when he dragged him to the Police Station and page 17, lines 24 – 26 where he said that the first time he saw the accused was when he stopped him on the road, and submitted that the learned trial Judge was silent on this evidence and no explanation was furnished for the inconsistency in the evidence of PW2 as to the time he saw the appellant for the first time on the day of the incident and relied on the cases of Joshua v. The Queen (1964) 1 All NLR 1 at 2-3; Onubogu v. The State (1974) 9 SC 1 and Williams v. The State (1975) 9 – 11 SC 139 at 150.