Andrew Nwachukwu V. Attorney-general of Imo State (2002)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A. 

The appellant Andrew Nwachukwu was first arraigned before the Imo State Robbery and Fire Arms Tribunal and following the scrapping of Military and other tribunals, he was formally charged and convicted by the High Court of Imo State on 17th August, 1999 for the offence of armed robbery contrary to section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Decree No.5 of 1984 (as amended) by Decree No. 21 of 1984.

The particulars of the offence are that on the 20th May, 1987 at Akuwa Ibeku in Owerri Judicial Division, being armed with fire-arms, robbed one Canice Aguwa of two bags of crayfish valued at N950.00 and five tins of paints valued at N1,050.00.

The case for the prosecution put briefly is that in the midnight of 19th May, 1981, PW1 heard gun shots in his house and the armed robbers began to break the door of the house. He then took his wife and children and escaped into the bush through the back door. While in the bush, he heard the noise the robbers were making as they broke from room to room of his house. After about two hours stay in the bush, and when he noticed that the noise made by the robbers had stopped, he returned to his house with his family and noticed that the robbers had carried away his two bags of crayfish and five tins of paints as well as two cooking pots.

As early as about 5.30 a.m. the following day, he went to the Police Station and lodged a complaint. When he returned from the Police Station, his brother PW2, Eugene Osuagwu told him that he saw and identified the appellant while committing the offence. He was able to identify him by the aid of electric light from the electric plant of one Simon Aguwa a hotelier. Upon this information, PW1 and PW2 went to their community leader, Kevin Njoku and PW2 narrated their information about the robbery to him. He then followed them to the Police Station and a report was made against the appellant.

Later, Police went to the house of the appellant in company of PW1 and the appellant took them to the house of one elderly woman Ihuoma Maduneme where he stored the bags of the stolen crayfish which had been re-bagged in smaller bags. The Police also recovered the original bag with which he bought the crayfish as well as the five tins of paint. The appellant was later arrested and taken to the Police Station and later charged to court.

The defence of the appellant is a total denial of the offence. After addresses by counsel on either side, the learned trial Judge, Alinor, J., in a reserved judgment found he appellant guilty as charged and sentenced him to death.

Dissatisfied with his conviction naturally, the appellant has appealed to this court and filed a brief of argument and distilled three issues for determination as follows:

“Issues for determination

1. Whether from all the facts and surrounding circumstances of this case, there was convincing evidence of proper identification of the appellant as one of the robbers who committed the armed robbery at the premises of PW l on 20/5/87.
2. Whether or not the learned trial Judge properly evaluated the evidence before the lower court.
3. Whether or not the entire proceedings and conviction of the appellant are not null and void.”

The respondent also filed a brief of argument and framed three issues for determination as follows:

1. “Whether in the absence of the evidence of PW3 the offence as charged against the accused person is not proved reasonable by the evidence of PW1, PW2 and PW4.
2. Whether the fact that all the stolen items viz (a) the crayfish (now divided into sub-bags, (b) the original bag with which the crayfish was bought by PW1, and (c) the five tins of paint were recovered from the possession of the accused/appellant the following morning does not raise presumption that appellant was the armed robber.
3. Whether the statement, evidence ofPW2 and the fact of recovering the stolen items from the possession of accused/appellant do not corroborate each other and amount to proof of the offence beyond all reasonable doubt.

Learned counsel for the appellant argued issues 1 and 2 together.

He submitted that it was unsafe to convict the appellant on the alleged identification by PW2 with the aid of the unspecified quality of light from the light plant from a distance of 80 metres without caution and relied on the case of Samuel Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 at 469. He then referred to the evidence of PW1 and PW2 who contradicted themselves on the date of the alleged robbery because PW1 said that he was robbed on 19/5/87 at midnight while PW2 said that he saw the appellant robbing PW1 at 1.00 a.m. on 20/5/87. It was also his contention that the learned trial Judge had made up his mind before evaluating the evidence led before him and relied on his findings at page 58 lines 11-13. He also relied on the cases of Inusa Musa v. The State (1996) 8 NWLR (Pt. 468) 610 at 618; Theophilus Eyisi & 3 Ors. v. The State (2000) 15 NWLR (Pt. 691) 555. Counsel further argued that the learned trial Judge was in serious error when he relied on the evidence of PW3 who was not cross-examined as corroborating the identification of the appellant by PW2. It was also his contention that the contradiction in the evidence of PW4 on the location from which the expended shells, exhibits D and D1 were recovered and the testimony of PW3 as corroborating the identification of the appellant by PW2 is misconceived because the evidence of PW3 and PW4 is inadmissible and could not have relied on their evidence in convicting the appellant. He further argued that the learned trial Judge was in serious error when he held that the premises of PW1 was well lit and thereby speculating on a very important issue which must be supplied by the prosecution and relied on a litany of cases including the case of Etumioun v. A.-G., Della State (1995) 6 NWLR (Pt. 404) 719 at 730. He finally submitted that the appellant has not been sufficiently identified as one of the robbers who allegedly robbed PW 1 on 19/5/87 or 20/5/87.

In reply, learned counsel for the respondent submitted that the facts established by the evidence of PW1, PW2 and PW4 are sufficient to justify the conviction of the appellant by the learned trial Judge.

He referred to the evidence of PW1 at page 24 of the records lines 14-15 to the effect that the crayfish which had been re-bagged in smaller bags and the five tins of paints stolen from the house of PW1 were recovered from the possession of the appellant and submitted, that this evidence alone is sufficient to convict the appellant and relied on the case of Alonge v. I.G.P (1959) SCNLR 516; (1959) 4 FSC 203 and The State v. Adisa & Ors. (1971) University of Ife Law Reports (Pt. 3) 296.