David Egharevba V. Commissioner Of Police (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 J. A. Oyakhirome of the Edo State High Court delivered on 29th of October, 2008 in which the appellant was sentenced along with three others to death by hanging for the offence of conspiracy to commit armed robbery and armed robbery.

At the hearing of the appeal, learned appellant’s counsel brought to the attention of the court the fact that the original 2nd appellant had by a bench judgment been discharged and acquitted by this court on 24/4/12. He was the appellant in CA/B/332CB/2009 – Blessing Ero Osayande. The facts that led to this appeal are as follows:

The case for the prosecution at the trial was that on 26/2/2006 at about 2.00am one Mrs. Ehanire Claudette Iyobosasere (PW1) and her children were attacked by a gang of armed robbers. They were beaten up by the robbers and their property which included money, handsets, coral beads and re-charge cards were stolen. During the robbery operation, there was power supply hence PW1, PW2 and PW3 were able to identify the present appellant, David Egharevba (alias) “stone”.

In the court below David Egharevba was 3rd accused, Blacky Ojo was 1st accused, Blessing Ero Osayande was 2nd accused and Ifeanyi Nwafor was 4th accused respectively. The victims who gave evidence as PW1, PW2 and PW3 said that they were able to identify the appellant and the co-accused persons as they live in the same neighbourhood.

At the trial four witnesses testified for the prosecution while the present appellant testified on his own behalf and called two witnesses namely DW7 and DW8. DW7 testified that the appellant slept at home on the night of the incident. DW8 a contractor and community leader gave character evidence on behalf of the appeal.

The appellant maintained his innocence throughout the trial and claimed that he slept at home and did not commit armed robbery. The learned trial judge found that the evidence of the victims fixed him at the scene at the material time. He was convicted and sentenced to death by hanging. Dissatisfied with his conviction and sentence, the appellant appealed to this court.

Mr. Olayiwola Afolabi settled the appellant’s brief and filed it on 19/2/10. He also filed a reply brief on 5/3/13. Mrs. O. S. Uwuigbe who is the Solicitor General of Edo State also filed a respondent’s brief on 21/10/11. The appellant’s counsel identified two issues for determination as follows:-

1) Having regards to the serious nature of the offence that the appellant was arraigned, whether the lower court was right when it failed to consider the defence of alibi promptly raised by the appellant in his statement to the police notwithstanding the failure on the part of the police to investigate the alibi raised by the appellant.

(Issue 3 of the additional grounds of appeal)

2) Having regards to the nature of the charge against the appellant, whether the trial judge was right to convict the appellant of the offence of conspiracy and armed robbery when the evidence adduced by the prosecution was riddled with serious elements of suspicion, material contradiction and grave doubts.

(Issue 4 of the additional grounds of appeal)

The respondent also identified three issues for determination as follows:

i. Whether the charge of conspiracy and armed robbery was proved against the appellant beyond reasonable doubt.