Christopher Okereke Ukpabi V.the State (2004)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

The appellant was arrested on 11th July, 1978 along Ngwa Road, Aba and later charged for the offence of armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended. He was arraigned before the High Court, Aba and tried for the said offence. On 30th March, 1982, the learned trial Judge (Nsofor, J.) found him guilty of the charge and convicted him. He was sentenced to death. His appeal to the Court of Appeal, Port Harcourt Division, was dismissed on 21st March, 2002.

The appellant has appealed to this court on two grounds of appeal. I shall state them without their particulars as follows:

“(i) The learned Justices of the Court of Appeal erred in law in affirming the conviction and sentence of death against the appellant when the evidence upon which he was convicted depended wholly or substantially on the correctness of one or more identification of the appellant which the defence alleged to be mistaken and in the absence of a valid identification parade and warning contrary to the guidelines laid down in R. v. Turnbull (1976) 3 All ER 549 as approved by the Supreme Court in the case of Zekeri Abudu v. The State (1985) 1 NWLR (Pt. 1) 55, 61, 62.

(ii) The learned Justices of the Court of Appeal erred in law in affirming the conviction of the appellant of the offence of armed robbery and sentencing him to death when the guilt of the appellant was not proved beyond reasonable doubt by the prosecution.”

As will be noticed, the first ground complains of the nature of identification of the appellant while the second ground complains of the insufficiency of the evidence. But the appellant raised only one issue for the determination of the appeal. It reads thus:

“Whether or not the learned Justices of the Court of Appeal were right in affirming the conviction and sentence of death on the appellant when the only thing linking him to the offence of armed robbery was his alleged identification by the victim of the crime, which identification the appellant strongly disputed.”

This issue covers only ground 1. However, the respondent relying on the two grounds of appeal, raised also a single ground which appears to cover the two grounds. The issue reads:

“Whether the learned Justices of the Court of Appeal were right in affirming the conviction and sentence of the appellant in the circumstance.”

The facts of this case were clearly narrated by the two courts below. Briefly, one Samuel Sunday (P.W.2), a petty trader, was taking his wares to the market on 11th July, 1978 along Ngwa Road, Aba in the early hours of the morning. At about 5 a.m. he was accosted by a man whose name he later knew to be Christopher Okereke Ukpabi. He is the appellant. The said P.W.2 was carrying a bag on his head and holding a hand bag. The appellant stopped him and ordered him to search his own person. The first instinct of the appellant was to resist. At that stage, two other persons appeared on the scene. One of them who wore a mask held a gun. The appellant asked P.W.2 to choose between searching himself and death. This frightened P.W.2 and he surrendered his wares together with N25.00 in cash to the men. The wares were 80 dozen of headties valued at N315.00 and 50 pieces of gowns valued at N200.00. Also taken from him were his wrapper cloth, a pair of trousers, one shirt, a towel, a portfolio and some documents.

The men gave P.W.2 a warning to continue in the direction he was going and not to look back. He did as he was directed and after some distance he hid somewhere along the said Ngwa Road. Later, he retraced his steps to go home to report his experience. It was on his way back that he recognised the appellant buying some cigarettes at a small store at the park along Ngwa Road. He gripped him and a crowd of people gathered. One of the people called in the police. The P.W.2 said he was able to recognised the appellant from his face and the way he walked with his lame leg.

The appellant in his testimony claimed to be a beggar who had come from Arochukwu to Aba and that he did not live on Ngwa road. He admitted that on 11th July, 1978, the P.W.2 came round to lay hands on him and both began to fight. He said P.W.1 was one of those who came to intervene. In the testimony of P.W.1 he confirmed that he saw P.W.2 and appellant exchange words. He said P.W.2 demanded from the appellant to return his property but the appellant asked whether P.W.2 had come to take advantage of his deformity.

The appellant made a statement to P.W.3, Sgt. Oto Ebere. In it he said he was having a drink with two other boys in a hotel along Ngwa Road on 11th July, 1978 around 6 a.m. when he had an encounter with the appellant. He claimed that the two boys worked and lived in that hotel. He added:

“Then one man brought a bag and a water proof bag. He said we should guard the bags for him and he was going to bring another bag. Immediately he was going one of the workers whom I was chatting with carried the portfolio and the bag and said that he was going to keep them for upstairs.”