Agim Sunday V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment)

The Appellant was charged along with two other co-accused Persons on an information with one count of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provision ) Act, Cap. 11, Laws of the Federation of Nigeria, 2004, before Hon Justice B.T. Ebuta, J. of the High Court of Cross River State, Ikom Judicial Division. The Appellant was the 1st accused person. The particulars of the offence charged read as follows:

Agim Sunday, Asu Abang and Chinedu Emeka on or about the 1st day of October, 2009 at Katabang Junction in Boki Local Government Area at about 1.00 am while armed with locally made gun, matchets and a dagger did rob Agbor Frank Ojong of the sum of N285,000.

The Appellant and the co-accused persons all pleaded not guilty to the charge. At the trial, the prosecution, now the Respondent, called two witnesses namely, Agbor Frank Ojong, the Complainant, who testified as PW1 and Sergeant Okpokam Thomas, the IPO, who testified as PW2. The Respondent also tendered Exhibits marked Exhibit 1 5b. The Exhibits included the statements of the Appellant and other co-accused persons; a leather bag containing clothing; the sum of six thousand, six hundred Naira (N6,600); a white Qlink Motorcycle, 3 machetes and one locally made single barrel long gun.

The Appellant and other co-accused persons each testified in his own defence as DW1, DW2 and DW3 respectively. The Appellant called an additional witness, his biological father, who testified as DW4.

At the conclusion of the trial, the Appellant and other co-accused persons were convicted by the learned trial Judge on November 7, 2012 and sentenced to death by hanging. Being dissatisfied with the said judgment, the Appellant instituted this appeal. His Notice of Appeal, dated the November 19, 2012 was filed on December 5, 2012, raising one ground of appeal.

The Appellant’s Brief of Argument was settled by Essien E. Udom, Esq. and Samuel Akpabio, Esq. on 8/10/2013, and deemed properly filed and served on 9/10/2013. The Respondent’s Brief was settled by P.S. Bisong, Esq., Director, Public Prosecution, Ministry of Justice, Cross River State, on 12/11/2013 but deemed properly filed and served on 8/5/2014. These Briefs were, respectively, adopted by S. Akpabio, Esq. learned Counsel for the Appellant; and, by P.S. Bisong, Esq., the learned D.P.P., on 22/9/2014.

From the ground of appeal, the Appellant distilled a sole issue for determination as follows:

Whether having regard to the entire evidence before the trial Court, the Prosecution had proved beyond reasonable doubt the guilt of the Appellant for an offence of armed robbery.

The Respondent adopted the sole issue as formulated by the Appellant, for determination.

It was submitted for the Appellant that the law is well settled that for the prosecution to succeed in proof of the offence of armed robbery, there must be proof beyond reasonable doubt of the following:

1. That there was a robbery or series of robberies;
2. That the robbery or each robbery was an armed robbery: and,
3. That the accused was one of those who took part in the armed robbery; relying on Attah vs. State (2010) 10 NWLR (PT 1201) 190: Suberu vs. State (2010) 8 NWLR (PT 1197) 586.

The provisions of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which provides that an accused person is presumed innocent until proven guilty, shifts the onus of proof on the prosecution; and, the burden is discharged by proof beyond reasonable doubt.

Reliance was placed on Iko vs. State (2001) 14 NWLR (PT 732) 221 at 263; Isibor vs. State (2002) 3 NWLR (PT 754) 250 at 277. That, having regard to the evidence, the prosecution did not satisfy this requirement of the law as there was no credible evidence to link the Appellant to the alleged armed robbery.

The Appellant was not arrested of the scene of crime. The only evidence to link the Appellant and the co-accused persons to the crime was the evidence of PW1 who said he saw the Appellant and the 2nd accused person of the scene of crime.