Chika Nwomeh V. State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Ondo State High Court sitting in Akure delivered on 28th January, 2010. The Appellant was arraigned before the court on a two count charge of conspiracy and armed robbery under the Robbery and Firearms (Special Provisions) Act, Cap 398 Vol. XXII Laws of the Federation of Nigeria, 1990. The charge read thus:-

1. Conspiracy to commit armed robbery contrary to and punishable under S.5 (b) of the Robbery and Firearms (Special Provisions) Act.
2. Armed robbery contrary to and punishable under S.1 (2) of the Robbery and Firearms (Special Provisions) Act.

Upon arraignment, the Appellant pleaded not guilty to the 2 count charge. To prove the guilt of the Appellant, the Prosecution called and led evidence through 5 witnesses as well as tendered 6 Exhibits while the Appellant defended himself through his own oral evidence. He called no witnesses.

The case of the prosecution against the Appellant was that the complainant (PW1) who was the owner of a Petrol Station reported an armed robbery incident to the police on the 24/10/2005. In the course of his complaint PW1 told the police that while he was at his Petrol Station at about 7.00 p.m. on 24/10/05 with his wife and daughter, the Appellant came and pretended that he wanted to buy petrol. It was reported that at that time it had started getting dark and the complainant had ordered his daughter to close down for the day and to lock up the gates, as had always been the practice of the complainant and his staff.

As the Appellant was being asked by the complainant where he was going to put the petrol he claimed he wanted to buy, he told the complainant to “shut up” whereupon he brought out a gun and soon thereafter marched both the complainant and his daughter to inside the office at the Petrol Station at gun point. While inside the office he ordered the duo to lay face down. He proceeded to rob them of all monies in their possession including the proceeds of the days petrol sales. PW3 (complainant’s daughter) was able to recognize the Appellant when she saw him at the market some days later. At the time she recognized the Appellant she was in the company of her mother (PW2) and other family members. The sighting of the Appellant was reported to the police. He was tricked and lured to the police station where he was formally identified by PW1. He was arrested and charged to court.

Having denied the charge and pleaded not guilty, the Appellant defended himself by putting forward an alibi that at the time of the alleged commission of the crime he was at his place of work at a Barbing Salon. He also put it as part of his defence that he was framed up by the complainant because he did not like his relationship with his daughter (PW3).

At the end of the evidence of the parties respective learned counsel addressed the court. In its judgment the lower court remarked thus:-

“The evidence placed before this court by the prosecution is overwhelming and leaves no room for any doubt as to his involvement in the criminal act of armed robbery perpetrated by him alongside three others on 24/10/2005. While giving evidence, the accused revealed himself as a pathological liar, a questionable character with intrigue up his sleeves. A man who pretended to be fully engaged positively in a work during the day but in the night turned to a criminal inflicting pains and trauma on the people in the community he lives and benefitted from.”

(lines 25 to 32 page 75 of record of appeal)

It is upon this finding and remark, that the lower court found the Appellant guilty and proceeded to convict him on the 2nd count of charge and sentenced him to death.

The Appellant was dissatisfied with his conviction and sentence. He appealed to this court in a notice of appeal dated 11th February, 2010 which was later amended by leave of this court granted on 12th October, 2011. This amended notice of appeal contains 6 grounds of appeal.

To argue the appeal, learned counsel Mr. Ikenna Okoli, filed a brief of argument on behalf of the Appellant. This brief is dated 20/10/2011 and filed on 28/10/11. It was deemed properly filed and served on the Respondent on 19th July, 2012. Learned Counsel I. O. Adejumo filed a brief on behalf of the Respondent. It is dated 22/11/12 and filed on 27/11/12. It was deemed properly filed and served on 28-11-2012.

From the grounds of appeal, learned counsel to the Appellant formulated and argued 2 issues for the determination of this appeal. They are:-

(1) Whether the judgment of the trial court delivered on 28th Januaty, 2010 is a valid judgment in the circumstances?