Ifeanyi Nwafor V. The State (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 offences of conspiracy to commit armed robbery and armed robbery. At the hearing of the appeal, learned appellant’s counsel brought to the court’s attention the fact that the original 2nd appellant had by a bench judgment been discharged and acquitted by this court on 24/4/2012. He was the appellant in CA/B/.332CB/2009 – Blessing Ero Osayande. The facts that led to this appeal are as follows:

The case of the prosecution at the trial was that on 26/2/2006 at about 2am, 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 so PW1, PW2 and PW3 were able to identify the present appellant (Blacky Ojo), Blessing Ero Osayande, David Egharevba (aka Stone), Ifeanyi Nwafor and one Isiaka who is at large.

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

During the robbery operation there was power supply and PW2 was able to identify the appellant, Ifeanyi Nwafor.

At the trial, the prosecution called 4 witnesses while the appellant testfied for himself and called no witness.

“Despite the fact that none of the victims mentioned the name of the appellant whom they knew very well to the police immediately after the incident coupled with the fact that PW1 had earlier on threatened to implicate the appellant if for any reason she was robbed and the evidence of the appellant (denying the charge, the learned trial judge who relied heavily on the evidence of PW1, PW2 and PW3 convicted the appellant and sentenced him to death.”

Dissatisfied with his conviction and sentence, the appellant appealed to this court. Mr. Ayo Asala filed the appellant’s brief on 2/10/2012. He identified two issues for determination as follows:

1. Whether there was credible evidence before the lower court to support the finding and conclusion of the trial judge that the appellant was properly recognized/identified as one of the armed robbers that robbed PW1, PW2 and P3.
2. Whether from the totality of the evidence on the record, the lower court was right in holding that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.

The learned counsel for the prosecution, Mr. Otokunrin Senior State Counsel, Edo State also identified similar issues for determination. I will determine the appeal on the issues as set out above and couched by the appellant’s counsel.

ISSUE ONE

Whether there was credible evidence before the lower court to support the finding and conclusion of the trial judge that the appellant was properly recognized/identified as one of the armed robbers that robbed PW1, PW2 and PW3.

Mr. Ayo Asala argued that there was no evidence to support the finding of the learned trial judge that the appellant was properly recognised by PW1, PW2 and PW3 in their house on 26/2/2006. He submitted that it is trite law that one of the major factors that a court must take into consideration in a criminal trial where the evidence against the accused person is based primarily on recognition by one of the victims who claimed to have known the accused person is whether the victims mentioned the name of the accused person to the police at the earliest opportunity. He cited Bozin v. State (1985) 7 SC Pt. 1 Pg. 450; 1998 AGLR 1; Wakala v. State (1991) 8 NWLR Pt.211 pg. 552.

Learned counsel also argued that only PW2 out of the three victims of the robbery identified the appellant as one of the robbers. PW1 and PW3 never in their extra judicial statements or their evidence on oath identified the appellant. The evidence of PW4 was that the appellant lived about 75 yards from behind the house of the victims. PW2 also swore that the appellant was one of the bricklayers who built the house of PW1. There is no doubt that the victims knew the appellant by name and where he lived before the incident. Counsel argued that if the evidence of PW2 and PW4 is to be believed, then there was no mention by PW2 of the appellant to the police when they police responded to the emergency call or when the victims reported to the police the next morning after the robbery. Learned appellant’s counsel contended that since none of the victims especially PW2 mentioned the name of appellant to the police who responded to their distress call immediately after the robbery, the evidence of recognition of appellant by PW2 is unreliable, doubtful and should be regarded as an afterthought.

He cited Ani v. The State (2009) All FWLR Pt.482 P9.1044 at 1062-1063 and Bozin v. The State supra.