Happy Kingsley Idetudia V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Leading Judgment)

The Appellant in this criminal appeal was arraigned before the High Court of the Isiokolo Judicial Division of Delta State presided over by F.O. Oho J. on an information of two count charge of conspiracy to commit armed robbery and attempted armed robbery. The prosecution’s case against the Appellant was that on 21/2/06 at about 11.30pm while one Samuel Odorume (who testified as PW2) and his wife were returning to their house from a journey, the Appellant and about four other persons accosted them and the Appellant whom PW2 had known earlier ordered PW2 to throw away the cigarette he was smoking. As he did so, the Appellant who was armed at the time and the other persons including one Stanley and another called Aboki then searched him under gun point and found the sum of N50.00 (fifty naira) on him.

Although they returned the money stating that they were not there to steal N50.00, the Appellant threatened to Tail down PW2 – a term which meant to kill him. It took the plea of one of the members of the gang who had recalled that he had recently eaten from the PW2’s wife’s pot, to dissuade the Appellant from carrying out his threat. The Appellant and the other members of the gang then took them to the house of PW2’s elder brother’s wife, Mrs. Ngozi Odorume where he (PW2) was asked to wake her up and when PW2 refused, the gang sat him and his wife down and started breaking the louvre blades of the window. Thereafter the gang escorted PW2 and wife home with the Appellant warning PW2 that if he (PW2) said anything of the incident he would be a dead man. The Appellant was subsequently seen at the Abraka Police Station and identified by PW2.

The defence of the Appellant was one of Alibi. He claimed that on the day of the incident he was at Warri in the house of his elder brother. The police had contact with Appellants elder brother, one Gabriel of No. 24 Ojabugbe Street, Okumagba Avenue, Wani, who stated that the Appellant was in his house.

At the conclusion of hearing, the trial court in his Judgment believed the case of the prosecution and disbelieved the case of Alibi presented by the Appellant. He then convicted the Appellant who being dissatisfied with that Judgment has brought the present appeal. Three Grounds of Appeal were filed from which learned counsel for the Appellant Mr. Asugo, in his brief distilled two issues namely:

1) “Was the Alibi of the accused person destroyed by the evidence of PW1 to make the learned trial Judge convict the Appellant in spite of it?

2) Was there sufficient evidence on record to prove beyond reasonable doubt that the Appellant conspired with others now at large to commit the offence of attempted armed robbery”.

The Respondent’s counsel, Mr. Enenmo, in his brief also set out two issues for determination as follows;

1) Whether having regard to the defence of Alibi raised by the Accused/Appellant the learned trial Judge was right when he held that the prosecution proved its case beyond reasonable doubt.

2) Whether there was sufficient evidence on record upon which the learned trial judge convicted the Appellant for the offence of conspiracy.

The issues raised by both counsel are similar though couched differently and can conveniently be compressed into one straight forward issue of narrow compass. It is:

Whether on the facts and circumstances of this case, the trial court was right in rejecting the defence of alibi put forward by the Appellant and holding that the prosecution proved its case.

In his brief of argument, learned counsel for the Appellant, Mr. Asugo, had contended that the defence of Alibi put up by the Appellant was not shaken, therefore the trial Judge’ according to him was wrong to have convicted the Appellant. He submitted that the trial Judge did not review the evidence nor did he give any reason for not being impressed by the defence of Alibi presented by the Appellant. More so when the wife of PW2 who was said to be present at the scene was not called by the prosecution to give evidence. The fact, he contended, that PW2 made his statement one year after the incident, even though he mentioned the name of the Appellant therein, weakened the effect of his evidence. He also argued that there was no proof of the offence of conspiracy.

In his reply, learned counsel for the Respondent, Mr. Enenmo, in his brief, referred to the evidence of PW1 and PW2 and submitted that their evidence sufficiently fixed the Appellant with presence at the scene of crime and therefore it was for the Appellant to call as witness the person that was with him on the day of the incident which he did not do. He argued that the charge having alleged a particular time in the commission of the crime, the Appellant ought to have led specific evidence as to where he was at the particular time alleged. The Alibi, he argued, was therefore vague. Moreover, he contended, the Appellant did not call his said brother to give evidence. The evidential burden was therefore, he argued, not discharged.