Daniel Peter V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice C.O. Ogisi, judge of the Delta State High Court sitting at the Owa Oyibu Judicial Division delivered on 5th August, 2009 wherein the Appellant was convicted for the offences of conspiracy to commit armed robbery and armed robbery. The facts that led to this appeal are as follows.

The Appellant was charged to court on a two-count charge of conspiracy to commit armed robbery and armed robbery. Both offences are punishable under S.1 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004. The particulars of the offences are stated thus:

PARTICULARS OF OFFENCE: COUNT I

DANIEL PETER on or about the 26th day of May, 2007 at Owa Oyibo within Owa-Oyibo Judicial Division conspired with others now at large to commit armed robbery.

PARTICULARS OF OFFENCE: COUNT II

DANIEL PETER on or about the 26th day of May, 2007 at Owa-Oyibo within Owa-Oyibo Judicial Division robbed one Chibuogwu Francis, of his motor cycle with registration No. DT 6235 Y while armed with offensive weapon to wit: battle axe.

To prove its case, the respondent called four witnesses. Chibuogwu Francis, the victim on the face of the charge testified as PW1. His wife testified as PW2. The couple testified that PW2 was robbed by armed robbers including the appellant along Ute-Owerre road at about 5.30 am on 26th May, 2007 and a Lifan motorcycle was snatched from her. The couple said that they recognized the appellant as one of the armed robbers.

PW3 and PW4 were police officers who investigated the crime. The prosecution tendered a total of three exhibits through these police officers. Exhibits 1 and 2 were the extra-judicial statements made by the appellant. Exhibit P3 was the motor cycle allegedly snatched by the appellant and recovered from some other robbery accused.

The Appellant called two witnesses. DW1 was the Appellant’s wife while DW2 was a 12 year old boy living with them. Both D. W. 1 and D. W. 2 confirmed the alibi of the Appellant who gave evidence in his own defence as D. W. 3 that on the day in question which was a Saturday the Appellant went to the farm early in the morning on 26th May 2007. When the Appellant returned from the farm around 12 noon, DW1 told him that his uncle, one Okafor had sent for him. The Appellant then left for Idumuesan to answer the summons of his uncle. In Exhibits 1 and 2 the extra judicial statements of the Appellant, he denied the charges and mentioned that he was at home in the early hours of 26th May 2007 when the offence was committed before he left for the farm with D.W. 2.

Upon the close of appellant’s defence, counsel for both parties addressed the lower Court. In its judgment, the lower Court found the appellant guilty of the offences of conspiracy to commit armed robbery and armed robbery, and sentenced him to 25 (twenty five) years imprisonment with hard labour on each count. The sentences are to run concurrently.

Dissatisfied with the judgment, the appellant filed a notice of appeal containing four grounds of appeal on 10th August, 2009. The appellant subsequently filed an amended notice of appeal on 27th of August, 2012. Briefs were filed in this court by both parties and the appeal was argued by counsel. The Appellant’s brief was filed on 4th October 2012 and deemed filed on 28th November 2012. The Respondent’s brief was filed on 7th January 2013. The Appellant’s counsel in the brief settled by Ekeme Ohwovoriole Esq. identified four issues for determination as follows:-

1. Whether the evidence adduced by the prosecution was at variance with the charge preferred against the appellant; if so, whether the appellant’s conviction is not liable to be quashed. (Grounds 3 and 10).
2. Whether the lower court was right in relying on the evidence given by the PW1, PW2, and other prosecution witnesses when their evidence was clearly inconsistent with their previous statements and no reason was given for the inconsistencies. (Ground 6).
3. Whether the court properly considered and/or resolved the defence of alibi raised by the appellant in both of his statements Exhibits P1 and P2, and his oral testimony, especially when the Police did not investigate his defence. (Grounds 2, 8 and 9).
4. Whether the lower court was right in holding that the prosecution had established its case beyond reasonable doubt, when the evidence of PW1, PW2, and other prosecution witnesses are unreliable unconvincing and fall far short of the standard required to establish proof of guilt in a criminal trial (Grounds 5, 7, 11 and 12).

In the Respondent’s brief settled by Mr. O.F. Enenmo, Deputy Director of Public Prosecutions, Delta State, counsel identified three issues for determination as follows:-

1. Whether the learned trial Judge was right in law when he held that the prosecution proved its case against the accused person in the two count charge beyond reasonable doubt.
2. Whether there was evidence on record on which the learned trial Judge held that the appellant was identified as one of the robbers that robbed PW1 and PW2 in this case.
3. Whether the learned trial judge was right in law when he held that the defence of alibi will not avail the appellant.

ISSUE ONE: