Sunday Ndidi V. The State (2005)

LawGlobal-Hub Lead Judgment Report

AMAIZU, J.C.A.

This is an appeal against the judgment of Diaw, sitting at the Agbor Judicial Division of the High Court of the Delta State. The judgment was given on the 29th day of November, 2001.

Briefly, the facts which led to this appeal so far as they are material to the questions which call for our determination are: at the wee hours of 4th day of January, 2000, armed robbers struck at Abavo in Delta State. PW1, PW2 and PW3 were the alleged victims of the armed robbery.

The incident was reported to the police. One Sunday Ndidi, was accused of the robbery. He was later arraigned before the lower court.

During his trial, five persons gave evidence for the prosecution.

He testified in his own behalf and called no witness. The learned trial Judge after hearing the evidence of witnesses and the defence held as follows:

“I have carefully considered the counts contained in the information of which the accused is charged, the evidence led by the prosecution in proof thereof, and the defence put forward by the accused person, and being satisfied that the prosecution has proved counts 1 & 2 thereof beyond reasonable doubt, find the accused person guilty in each of these counts. The prosecution has failed to prove count 3 against the accused beyond reasonable doubt. I accordingly discharge and acquit the accused person in count 3 thereof.”

The accused, now the appellant, was dissatisfied with the judgment. He has appealed to this court. At first, he filed two grounds of appeal. He later, with the leave of this court, filed six additional grounds of appeal.

The parties through their counsel and in accordance with the rules of this court, filed and exchanged briefs of argument, wherein they identified issues for determination arising from the grounds of appeal.

In his brief of argument, the appellant identified the following issues for determination –

1. Whether the evidence of PW1 was sufficient to support the conviction of the appellant without further corroboration?
2. Whether the failure of the learned trial Judge to act on the evidence on record had not occasioned a miscarriage of justice?

The prosecution also formulated two issues, which though couched in a different language, on a close examination boil down to the above two issues formulated by the appellant. I shall consider the appeal on the basis of the issues formulated by the appellant.

Arguing issue one, Alegeh, Esq. of counsel, submitted that the conviction of the appellant was based solely on the evidence of PW1, Comfort Apokueze. In the learned counsel’s view, the case against the appellant depended wholly or substantially on the identification of the appellant. In that case, still in his view. as the defence has alleged that PW1 was mistaken in her identification, the learned trial Judge should have exercised caution by warning himself before convicting on the identification of PW1. He placed reliance on the case of Abudu v. The State (1985) 1 NWLR (Pt.1) 55.

The learned counsel contended that the identification was too suspicious to be relied upon in convicting the appellant. He cited the case of Mbenu v. The State (1988) 3 NWLR (Pt.84) 615.

The learned counsel referred to the evidence of PW1 on which the conviction was based –