Felix Anthony Orok V. The State (2009)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE J.C.A:

This is an appeal against the judgment of Honourable Justice E. E. Ita of the High Court Cross River State, Calabar, wherein he convicted the Appellant on a one count charge of Armed Robbery and sentenced him to death. The facts of the case are that on the 24th day of July, 2004, Chike Okpa, in company of Alfred Ekpeyong (PW 2) and one Bassey Orok came to meet the complainant Chief Archibong Archibong (PW 1) in a social gathering at No. 19 Abasi Obori Street, Calabar. They were to deliver PW 1 the sum of N150,000.00 being proceeds from the sale of the motorcycles in PW1 ‘s shop. The trio followed PW1 to the address because they had waited in the shop for too long for him to come for the proceeds. He (PW 1) directed them to return to the shop and wait for him. The trio left Abasi Obori Street through Mayne Avenue and, PW1 left through Uwanse. PW1 got to his shop before the three boys. He opened the shop and waited. When they eventually arrived, they were tattered with torn cloths. Chike who was in possession of the money reported that they were robbed by a gang, PW2 told him (PW1) that he knew one of the gang members by name Sento. (Accused / Appellant). Eventually, PW1 and PW2 made complainants and witness’s statements to the Police on 9/8/2004. PW2 led the Police to the arrest of the Appellant. The Appellant made two statements on different dates to the Police in both of which he denied the charge and in the first raised a plea of alibi.

At the trial, the accused pleaded not guilty to the charge, the prosecution called three witnesses that is PW1 Chief Archibong Archibong (the complainant) PW2 Alfred Ekpenyong one of those who accompanied Chike Okpa and PW3 the IPO. The Appellant testified for himself and called no other witness. His defence was an alibi, which the Respondent conceded could not be investigated because he did not furnish any or sufficient particulars.

At the conclusion of the evidence and the addresses, the trial court convicted the Appellant and sentenced him to death. It is against the said conviction and sentence that the Appellant has appealed to this court. Originally, the Appellant filed five grounds of appeal and was granted leave by this honourable court to file and argue additional ground of appeal.

The Appellant’s brief of argument was dated and filed on 5/5/08. The Respondent’s brief was dated and filed on 4/6/08. Appellant’s Reply brief was dated and filed on 27/10/08.

The Appellant formulated four (4) issues for determination:

1. Whether the evidence of the alleged victim of the Armed Robbery Mr. Chike was not material in the resolution of the material point and trial at the court below.
2. Whether in a case that attract death sentence the trial Judge was right to convict the accused on evidence of one witness whom the accused denied knowing and where the accused made no confessional statement.
3. Whether the judgment was unwarranted and unreasonable.
4. Whether it is an offence for an accused person to know the name of the officer investigating his matter.

The Respondent on the other hand formulated the following issues:

1. Whether the evidence of Chike Okpa one of the alleged victim of the armed robbery attack was a sine qua non in the determination of the Appellant’s guilt.
2. Whether the prosecution proved the guilt of the Appellant as required by law.
3. Whether the observation of the learned trial Judge at page 55 lines 13 – 16 that the Appellant was quite conversant with Police Station and their working, influenced his f
4. finding of the Appellant guilty of the charge.

I have carefully gone through the records of appeal in this case and I am of the opinion that the following three (3) issues in their order taken from the issues formulated by the parties would suffice for this appeal.

1. Whether the evidence of the alleged victim of the Armed Robbery Mr. Chike, was not material in the resolution of the material point and trial at the court below.
2. Whether the observation of the learned trial Judge at page 55 lines 13- 16 that the Appellant was quite conversant with Police Station and working influenced his finding of the Appellant guilty of the charge.
3. Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt as required by the law.

On Issue No. 1 learned Counsel for the Appellant quoted the count against the Appellant from the particulars of offence in the information and submitted that the person allegedly robbed was Chike Okpa. And that there is no where in the record of proceedings that Chike testified at least as to the identity of the Appellant as one of the robbers and the role he played. He furthered that another victim of the robbery, Bassey Orok, was also not called as a witness. And submitted that while it is not necessary for the prosecution to call every available witness to prove his case, it is incumbent on the prosecution to call a particular witness whose evidence is material for the resolution of the point in issue.

Relying on the case of Archibong vs. The State (2004) 1 NWLR (Pt. 855) 488 at 495, Appellant’s Counsel submitted that the evidence of Chike Okpa and Bassey Orok the alleged victims of the robbery would have gone a long way to establish whether the Appellant was one of the robbers especially as the Appellant was not arrested at the scene of crime. Also, relying on the case of Okonofua vs. State (1981) 1 NCR 145 at 147, Counsel submitted that the learned trial Judge ought to have considered the proof of evidence as same would have made him to consider Chike Okpa and Bassey Orok as vital witnesses.

Appellant’s Counsel referred to the statement to the Police of Bassey Orok at page 33 of the record as follows:

“One person who was not with the robbers was talking to the armed robbers in a familiar tone later, that boy whose name I don’t know told us to come the following morning that he will take us to one of the robbers – I was not chanced to follow them to the boy’s house that very morning but when I got time I asked Chike Okpa whether they did see the boy and he said yes. He said that the boy told them that he knows one of the robbers.”

On this, Appellant’s Counsel submitted that the presence of Bassey Orok as witness would have assisted the trial court to determine the boy that Bassey Orok mentioned in his statement and whether it is the same with PW2. As it is the not enough to hold that the boy referred to in Orok’s statement is same as PW2. Counsel to the Appellant submitted that the boy referred to by Bassey Orok is not the same as PW2 because both PW2 and Bassey Orok knew themselves before the incident.

Counsel referred to page 28 of the record, lines 10- 11 where PW2 said in chief: