Daniel Okon Utuk V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Justice of Cross River State, Calabar Judicial Division presided over by Ita. J. The judgment in charge No HC/50c/2004 was delivered on the 25th October 2004.

The Appellant and “others now at large” were originally arraigned, on a two count charge of conspiracy to commit armed robbery contrary to 516 of the Criminal Code Cap 31 volume 2 Laws of Cross River State of Nigeria 1983 and armed robbery contrary to section 1 (2) (a) of the Robbery and Firearms (special provision) Act Cap. 398 vol xx11 Laws of the Federal of Nigeria 1990 on 23/6/04. Appellant pleaded not guilty to each of the two counts on 28/6/2004.

On 2/8/04 on the application of the prosecuting counsel the trial Court struck out count 1 of the charge. The particulars in Court 11 were amended to read plot 130 and not 61 as stated in the original information. The amendment did not affect the “others now at large” in the original information. Appellant pleaded not guilty to count 2 as amended and the state opened its case the same day 2/8/04.

Three witnesses testified for the state. Appellant testified on his behalf but called no other witness.

Learned Counsel for the parties addressed the trial Court. After a review of the evidence adduced in the case the learned trial Judge held:

“I have no alternative than to find the accused person guilty as charged (sic) and he is accordingly convicted. PW2 who said he is being detained over this incident, against whom no charge is pending in any Court and who has been in that detention since 2003 is hereby released from prison custody.”

See page 51 of the records. The Court accordingly sentenced the Appellant to death.

Appellant was aggrieved by the judgment and a notice of appeal containing seven grounds of appeal was signed by Learned Counsel for the Appellant and filed on his behalf on 19/11/04.

In view of the defect in the notice and grounds of appeal and lapse of time Learned Counsel acting on behalf of the Appellant sought for leave to appeal against the judgment on 7 grounds. The motion on notice was filed on 9/7/09. It cannot be ascertained from the records what became of this motion but on 22/7/09 a similar motion for leave to appeal on 7 grounds was filed. There’s however no indication as to when the motion was taken or if it was taken at all.

Another notice of appeal containing 6 grounds of appeal was filed by the Appellant on 22/10/09 with leave of Court.

Learned Counsel for the Appellant distilled two issues for determination in his brief of argument. The two issues are:

C1. whether in the circumstances of this case the prosecution has successfully proved beyond reasonable doubt the charge of Armed Robbery against the Appellant to warrant his conviction.

C2. Whether the statements of PW2 that the Accused/Appellant seen in the midst of the persons now at large conspiring against the complaint//pw1 was proved by evidence led in the case to warrant conviction and even if that was so