Dan Sunday Udoh V. The State (2009)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHA, J.C.A

 On 2nd May, 2001, Mrs. Felicia Bassey, a Police Inspector, reported that about 0300hrs of the same date robbers broke into her house at No. 97 Ndidem Iso Road, Calabar and at gun point robbed her and her family members of sums of money and other valuables.

In the course of investigation the Police arrested some suspects including the appellant and three other people. At the close of the investigation three of the accused persons were charged with the offence of armed robbery including the appellant who was the 2nd accused, while one person was charged with receiving stolen property. The charge read as follows:-

STATEMENT OF OFFENCE

ARMED ROBBERY contrary to Section 1(2)(a) Robbery and Firearms (Special Provisions) Act Cap. 398, Vol. XXII Laws of the Federation of Nigeria 1990.

PARTICULARS OF OFFENCE

MICHAEL EFFIONG IKA, DAN SUNDAY UDOH, EKONG EKONG on the 2nd of May, 2001 at about 3.00a.m at No. 97 Ndidem Usang Iso, Calabar in Calabar Judicial Division broke into the dwelling of one W/Sgt. Felicia Bassey and robbed her of her household properties.

STATEMENT OF OFFENCE

RECEIVING STOLEN PROPERTY, contrary to Section 427 of the Criminal Code Cap 31 Vol. II Laws of Cross River State.

PARTICULARS OF OFFENCE

ARIT BASSEY EKANEM on the 2nd of May, 2001 at about 3.00a.m at NO.2, Orok Street, Calabar, in Calabar Judicial Division was found to be in possession of goods known to have been stolen.

Subsequently the name of Ekong Ekong the 4th accused was struck out because he was reported dead. At the close of the prosecution case, learned counsel for the accused made a no case submission on their behalf. The trial court upheld the defence counsel’s submission in favour of the 3rd accused and found that no prima facie case of receiving stolen property was made out against her and consequently discharged and acquitted the 3rd accused. The no case submission made on behalf of the 1st and 2nd accused was overruled and the trial court ordered them to enter their defence. The two accused testified and called a witness each. The 1st accused testified as DW1 while his father testified as DW2. The 2nd accused gave evidence as DW3 while his senior brother testified as DW4. All the defence witnesses were cross-examined. At the close of the case of both the prosecution and defence, the learned trial Judge in a reserved judgment, delivered on 25th day of July, 2008 found the two accused guilty of the offence of armed robbery. He thereby sentenced the 1st accused to death by hanging. In respect of the 2nd accused, he found that he was 16 years of age when he committed the offence of armed robbery and thereby invoked the provisions of Section 368 (3) Criminal Procedure Law and ordered him to be detained at the Governor’s pleasure. The two accused felt dissatisfied with their conviction and appealed against it.

The 2nd appellant’s Notice of Appeal No. CA/C/170/08 which contains 7 grounds of appeal is dated 24th September, 2008 from which the appellant’s counsel Nta A. Nta formulated six issues for determination:

1. Whether or not the Honourable trial Judge was entitled to raise suo motu in his judgment the question of the error or defect in stating the charge and proceed to resolve the issue against the accused/appellant without calling upon both counsel to address him on the said defect in the charge. Ground 1.