Ekong Dickson V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA J.C.A. (Delivering the Leading Judgment)

In the High Court of Justice Ota, Ogun State of Nigeria, the present Appellant as accused person was arraigned on a two count charge as follows:-

COUNT 1- That you Ekong Dickson (M) and others now at large on or about the 15th day of December 1999 at Johnson Market, Temidire, Sango Ota in the Ota Judicial Division conspired together to commit a felony to wit: Armed robbery and thereby committed an offence contrary to section 5(b) and punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential amendments, etc) Act 1999.

COUNT II – That you Ekong Dickson (M) and others now at large on or about the 15th day of December 1999 at Johnson Market, Temidire, Sango Ota in the Ota Judicial Division while armed with gun did attempt to rob one Osabuohien Jeremiah of his money and thereby committed an offence contrary to section 2(2b) of the Robbery and Fire-Arms (Special provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Act 1990.

He pleaded not guilty to each of the two count charge and the case went on to be heard with the prosecution calling three witnesses and tendering as exhibits one locally made double barrel shot gun, one live cartridge and statements of the accused person amongst others. The accused gave evidence on his behalf and called no witnesses. At the end of the trial and after final addresses of Counsel for the prosecution and the defence, the learned trial Judge Akinyemi, J in a considered judgment delivered on the 14th July 2008 found the accused person not guilty on the first count of conspiracy to commit armed robbery and accordingly discharged and acquitted him on that count but guilty on the second count of Attempted Armed Robbery and accordingly sentenced him to imprisonment for life.

At this stage it is pertinent to get to so much of the facts as can be gleaned from the Records. The case for the prosecution is that on or about the 15th December 1999 between the hours of 8 p.m. and 9 p.m. while PW1 Jeremiah Osabuohien and his wife (PW2) Joy Osabuohien were in their shop at Temidire Johnson Market Ota counting the proceeds of their sale for the day, the accused suddenly entered the shop and pointed a gun at PW1 ordering him to handover all the money in his possession or he would be killed. PW1 and PW2 pleaded with the accused but he told them to put all the money they had in a nylon, bag and hand same to him. PW1 pretended to be searching for a nylon bag and in a surprise move held the gun pointed at him by the accused and a life and death struggle for exclusive possession of the gun ensued between the accused and PW1. PW2 at this stage ran outside the shop shouting “thief, thief, thief”. Meanwhile PW1 succeeded in snatching the gun from the accused who then ran out of the shop and into the hands of the crowd that had gathered outside the shop as a result of the alarm raised by PW2. One OPC member who grabbed the accused had his lips bitten off by the accused person. The rest of the crowd held the accused and after beating him up took him to the police station. PW1 then handed over the gun (exhibit A) to the police, The investigating police officer (PW3) Inspector Edward Atiemuwen, at the time a Sergeant attached to the Anti Robbery section Abeokuta had in the course of the trial tendered the statement of the accused (exhibit B) and the gun and cartridge (exhibits “A” and “A1”) which were handed over to him with the accused. PW3 confirmed that he spoke to other eye witnesses who confirmed being present when the accused was arrested but who were reluctant to come to court to testify. PW3 also confirmed in his evidence having met the man described as an OPC member who confirmed that he had assisted in arresting the accused. PW3 said he saw the lips of the alleged OPC man to whose wounds on the lips were yet to heal at the time.

The accused person’s testimony was that he left Lagos where he was working at Divine Restaurant Iyana Ipaja for Sango Ota on the 15th December 1999 to visit his girlfriend whose name he gave as Iyabo and on his way to Iyabo’s house at Temidire Area of Sango he saw a group of people coming in front of him. They stopped him and said they were OPC members. They spoke in Yoruba language which he did not understand, They said “Omo Ibo” and he replied them in English by asking “What is the matter?” They then began to beat him and took his purse containing the sum of N1, 000.00 and his hand watch. They took him to the police station where he was searched and nothing was found on him. He explained his plight to the police and requested to be taken to his girlfriend’s place but the police refused. He said a name was called out to him which he did not know. The police brought out a gun from a drawer and asked him who owned it and he said he did not know and that he was then beaten up in an attempt to make him confess to an offence which he did not commit but he refused and confirmed that exhibit “B” represented his correct statement.

Aggrieved by the judgment of the lower court earlier highlighted in this write-up, the accused person filed a Notice of Appeal contained at page 43 of the Record of Appeal. By a motion on Notice dated the 7th April 2009 and filed on the 9th April 2009 and brought pursuant to Order 6 rules 4 and 15 and Order 7 rule 1 of the Court of Appeal Rules, 2007 which was in operation at the time, the Accused turned Appellant sought leave of this court to amend the Notice of Appeal and to deem the Notice of Appeal which had been filed and served as properly so filed and served on the Respondent. The application was moved and granted by this Court on the 5th October 2009. The Amended Notice of Appeal of the Appellant is reproduced fully below –

AMENDED NOTICE OF APPEAL

The Learned trial judge erred in law when he held that the failure to call the OPC man who arrested the accused person and in the process had his lips bitten off was not fatal to the prosecution’s case.

PARTICULARS

a. A witness becomes material/vital in a criminal trial if there is a vital point or essential ingredient of an offence which can only be proved by the evidence of that witness.

b. During cross examination P.W.3 testified as follows-

“Apart from the complainant, there was an independent (sic) who said he helped the complainant to recover the gun and in arresting the accused person, and was given a human bite (sic)…. There were other people at the scene but they declined giving statement. Only the person who helped in arresting spoke.”