Daniel Kekong V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

On 19th January, 2013, at about 8.00p.m., one Perpetua Ubua (PW.1) a GSM recharge card dealer, was attacked and robbed of her handbag containing recharge cards worth N128,000.00 plus the sum of N285,000.00 cash and two (2) mobile cell phones (a Nokia and a Techno) by three men on motorcycles The PW.1 was a passenger on another motor-cycle. She was returning home from her shop after the day’s business. The three boys on their motor-cycle followed the motor-cycle conveying the PW.1.

The motor-cycle from behind was ridden into that conveying PW.1. The three boys allegedly started beating the PW.1 and the person conveying her. One of the boys snatched the PW.1’s hand bag. The PW.1 struggled with him over the hand bag. She was overpowered. She was shouting for help. The boys then started shooting gun to scare people away, and thereafter fled with PW.1’s handbag. The recharge cards in PW.1’s handbag included GLO recharge cards of N100.00 denomination. The PW.1 later testified that the person she struggled with, who took her hand bag was the 2nd Accused/Appellant.

On 22nd

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January, 2013 one girl (identified later as Elizabeth Ajah Obu. who testified as the PW.2) brought 30 pieces of N100.00 GLO recharge cards worth N3,000.00 to PW.1’s salesgirl. The girl (PW.2) wanted to sell them. She claimed that she wanted to sell the 30 GLO recharge cards to enable her buy her book.

The PW.2 pleaded with the PW.1 to give her anything for the recharge cards. While the PW.1 was haggling with the girl (PW 2) she sent her sales girl to the nearby Police Station to get Police officers to her shop. PW.1 in a ploy to delay the PW.2, told the PW 1 that she needed to use her ATM card to withdraw cash from the bank. In the meantime the Divisional Police Officer (DPO) was contacted. The police arrived and they were all taken to the police station.

In the course of investigation, the PW 2, Elizabeth Ajah Obu, named a driver, Promise Bassey Inyang, as the person who gave the recharge cards to sell. Promise Bassey lnyang (later charged and prosecuted as the 1st Accused) named the Appellant (charged as the 2nd Accused) as the person who gave him the 30 GLO recharge cards to sell them for him. The 1st Accused did not know how the 2nd Accused came

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about the recharge cards. He assisted the police to arrest the 2nd Accused.

The 1st and 2nd Accused were jointly charged and tried for armed robbery contrary to Section 1(2)(a) & (b) of the Robbery and Firearms Act. Cap R.11 of the Laws of the Federation, 2004. The High Court of Cross River State (Coram: Ashai A. Ewah J) in a considered judgment after the conclusion of evidence and counsel addresses, convicted and sentenced the 2nd Appellant as the 2nd Accused, to death for the offence of armed robbery charged. The 1st Accused was discharged and acquitted.

The Appellant’s appeal against his conviction and sentence was dismissed by the Court of Appeal, Calabar Division (hereinafter called the Court below) on 28th October, 2014. This further appeal is against the decision of the Court below affirming the conviction and sentence of the Appellant. From a total of four (4) grounds, two (2) issues have been formulated for the determination of this appeal. They are:-

1. Whether the non-admission in evidence of the Police investigation Report (PIR) dated 22/01/2013 by the learned trial Judge and the subsequent affirmation of that finding by

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the Court below was proper in law having regard to the principle governing admissibility of documents and whether the rejection of PIR did not cause injustice to the Appellants (Ground 1)