Chidiebere Okolisa V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Anambra State High Court, Awka Judicial Division sitting at Awka (hereinafter referred to as the Lower Court), delivered by Justice M. I. Onochie, J. on the 23rd day of June, 2009 in Charge No. A/19C/2005.

The brief facts of the case are as follows: That on the 19th day of August, 2002 a robbery incident took place and the appellant, Chidiebere Okolisa, participated in the said robbery incident. Thus, he was the 1st accused person among the three (3) accused persons who were initially arraigned before the Anambra State High Court, holden at Awka on a five (5) count charge of criminal conspiracy and armed robbery, contrary to Sections (2)(a) and 4(b) of the Armed Robbery and Firearms (Special Provisions Act) Cap. 398, Laws of Federation of Nigeria, 1990 as amended by Act No. 62 of 1999.

?Upon being charged and with their pleas taken and hearing concluded, the prosecution/respondent discovered that the charge upon which the accused persons were being tried was on the charge sheet previously filed at the Magistrate

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Court. Hence, with the leave of the Lower Court, the charge sheet was substituted with an information containing a one count charge of armed robbery, contrary to Section 1 (2) (a) of the Armed Robbery and Firearms (Special Provisions) Act Cap. 398 as amended by Act No. 62 of 1999 and promptly thereafter, the pleas of the then two accused persons were re-taken on the 23rd day of June, 2009. The said armed robbery incidents was alleged to have taken place on the 19th day of August, 2002 at Abagana and Nimo. Hearing in the case had hitherto commenced on the 15th day of November, 2007. The prosecution called eight (8) witnesses and tendered seven (7) exhibits.

The accused persons (including the appellant) on their own part called five (5) witnesses including themselves. After the closure of the case for the defence, learned counsel for both parties filed written addresses and further addressed the Lower Court. At the end of it all, the learned trial judge found and concluded thus:

?The accused persons in this case were charged with the offence of armed robbery. The facts of this case however show that the 1st accused person committed the offence of

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robbery which is a lesser offence than that for which he is being charged I shall therefore convict the 1st accused person for the offence of robbery simpliciter.

As regards the 2nd accused, I am not satisfied as to the evidence of identification given by prosecution witnesses. PW7 was emphatic that only the 1st accused was spontaneously identified by PW4. The failure of the prosecution to investigate the alibi of the 2nd accused person in my view has created doubts which must be resolved in his favour. He is accordingly acquitted and discharged. I find the 1st accused person guilty of the lesser offence of robbery ?

1st accused person is sentenced to 21 years imprisonment with hard labour. Sentence shall begin to run from the date of remand of the 1st accused. Accused does not deserve the sympathy of this Court.?

The appellant was dissatisfied with the said decision of the Lower Court and as a result thereof, filed an appeal against the said decision vide a Notice of Appeal dated the 7th day of December, 2012 and filed on the 10th day of December, 2012, wherein the appellant challenged the said decision on two (2) grounds of

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