Godspower Asakitikpi Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

The appellant was charged in the High Court of erstwhile Bendel State sitting at Sapele with two counts of armed robbery contrary to section 1 subsection (2) (a) of the Firearms (Special Provisions) Act, No. 47 of 1970. He was convicted of both counts and was sentenced to death. The appellant brought an appeal to the court of appeal against the conviction.

The appeal was unsuccessful. He, therefore, appealed further to this court, formulating three issues for our determination, namely –

“1. Whether the appellant was denied a fair trial because of the inordinate delay in commencing the trial of his case.

2. Whether the concurrent findings of the lower courts were reasonable having regard to the evidence of identification before the (trial) court and the effluxion of time (or time-lag) between the alleged commission of the offence and the trial of the accused.
3. Whether the failure of the (trial) court to state specifically in the record that the accused was present at the time of delivering judgment is fatal to the trial and conviction.”

Although the Attorney-General of Delta State was represented in this court on the 28th day of January, 1993 when the appeal was adjourned to the 1st day of April, 1993 for hearing, the respondent is presently neither represented nor was a brief filed on its behalf even though the appellant’s brief was served on the Attorney-General on the 28th day of January, 1993. In exercise of our inherent powers and in view of the provisions of Order 6 rule 9 of the Supreme Court Rules, 1985, we decided to hear the appeal in the absence of representation for the respondent by counsel.

The facts of the case are as follows: On the 6th day of July, 1981, Balonwu Dike (P.W.1) a trailer driver, and Peter Okafor (P.W.2) who was his assistant, were asleep inside their trailer at Okirigwe junction. P.W.2 was sleeping inside on the seat in the driver’s cabin while P.W.1 was sleeping inside the trailer when, at about 1.00 a.m. two persons armed with a pistol and a knife respectively woke up P.W.1 whom they asked to open the cabin’s door. P.W.2 did as they asked. The person holding a knife entered the driver’s cabin and asked P.W.2 for money. P.W.2 said that he had no money but took the persons to the trailer and woke up his master (P.W.1), who saw the appellant holding a pistol. The appellant threatened that P.W.1 should open the door of the trailer or otherwise he would be shot. P.W.1 complied and the person holding a knife then demanded of him (P.W.1) to surrender the vehicle or face death. P.W.1 surrendered N40.00 in 2 notes of N20.00 denomination to the person holding knife who in turn handed over the money to the appellant. The person with a knife then took from P.W.2 a N5.00 note which he handed over to the appellant.

After the incident P.W.1 and P.W.2 decided to return to Warri as they had no money to continue with the journey to Maiduguri. When they came to a police check-point at Amukpe junction, P.W.1 reported the incident to the policemen at the spot. P.W.1 was asked by the policemen whether he could identify the culprits and he answered in the affirmative. As a result, the policemen stopped a taxi carrying passengers and instructed the taxi driver to take P.W.1 together with two policemen to the scene of the incident. The taxi driver did as he was requested. At the scene of the incident, the appellant and the person that held a knife during the incident were seen by P.W.1 and the two policemen attempting to rob a woman. The appellant was arrested while the person that held a knife escaped. When searched on the spot, the appellant was found to be in possession of a pistol (exhibit C) four live cartridges (exhibit D1-D4) and the sum of N45.00 in two N20.00 notes and one N5.00 note, which were tendered in evidence as exhibit E.

The appellant was taken to the police station at Sapele where he volunteered a statement to the police under caution. He denied committing robbery and set up an alibi. The statement was put in evidence at the trial and was admitted as exhibit B.

Three witnesses including P.W.1 and P.W.2 were called by the prosecution at the trial and the appellant, who was the only accused person before the trial court, (the other suspect being at large) testified on his behalf. He denied committing the offence charged and set up the defense of alibi. He denied the content of exhibit B that the pistol and cartridges found on him (exhibits C and D1-D4) were dropped on him by his friend called Lucky who fled from the scene where the appellant was arrested. No witness was called by the appellant.

The learned trial Judge believed the case for the prosecution and the appellant was convicted on the two counts for armed robbery and was sentenced to death.

Arguing the first issue for determination, learned counsel, for the appellant, Mrs. Oluwatoyin Doherty referred, in the appellant’s brief, to the provisions of section 33 subsection (4) of the constitution of the Federal Republic of Nigeria, 1979, which states thus-

“(4) Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time by a court or tribunal.”

and submitted that in the circumstances of the present case, the appellant did not have a fair trial. The ground for the submission is that-

“The accused was charged to court on the 17th of January, 1982, (Sic). Thereafter the case was adjourned eighteen times and most of these adjournments were because the court was not sitting and prosecuting counsel and witnesses were not in court. The case was adjourned at the instant of the accused or his counsel on only two occasions. The trial of the accused commenced on the 10th of March, 1983, fourteen months after the charge was preferred against him. The trial Judge had earlier warned on the 18th of November, 1982, that the charge would be dismissed, if the case is (sic) not prosecuted.”