Itom Ishor Ikpo V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

KUDIRTAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Calabar Division, delivered on 27th June 2014, affirming the judgment the High Court of Cross River State sitting at Ogoja, delivered on 26th July 2012 convicting the appellant for armed robbery and imposing a sentence of death on him.

The appellant was originally charged on 2/6/2011 with two counts of armed robbery contrary to Section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14, Laws of the Federation of Nigeria (LFN), 2004. On 25/1/2012, upon an application by the prosecution, the address of the venue where the offence was alleged to have taken place was amended and the second count was struck out. The original count 1 alleged that the offence took place at No. 2 Mbube Street Abakpa, Ogoja, By the amended count, the appellant and others at large, at about 12 midnight, were alleged to have, on the 31/1/2010 at No. 2 Salvation Street, Abakpa Ogoja in Ogoja Judicial Division, while armed with offensive weapons to wit: locally made pistol and

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cutlass, robbed one Monica Mkpe of a Nokia handset valued at N5,500.00. The appellants plea was taken on the amended charge and he pleaded not guilty.

At the trial, the prosecution called three witnesses in proof of its case. Four exhibits were tendered and marked Exhibits 1, 2, 3 and 4 respectively. The appellant testified in his own defence and called his mother as a witness. The prosecution’s case was that the appellant and others at large, on the 31/1/2010 went to PW2’s residence at No. 2 Salvation Street, Abakpa, Ogoja, at past midnight, where they met the PW2 and her father and another tenant, named Augustine Ogar. The appellant and his gang robbed PW2 of her Nokia phone, and also robbed PW2’s father of the sum of N30,000.00, They also robbed Augustine of N10,000.00. It was the prosecution’s case that the appellant was apprehended some months later with PW2’s Nokia phone. He allegedly confessed to the crime in his two statements to the police. Exhibit 1 was admitted in evidence after a trial-within-trial.

On his part, the Appellant testified in his own defence and called his mother as DW2. He raised a defence of alibi, for the

2 first time, during his defence, The trial Court found him guilty, convicted him as charged and sentenced him to death. Dissatisfied, he appealed to the Court below, which dismissed the appeal. Still dissatisfied the appellant has approached this Court.

In compliance with the rules of this Court, the parties duly filed and exchanged briefs of argument. At the hearing of the appeal on 21st January, 2016, SONNY O. WOGU ESQ., leading Eko Ejembi Eko Esq. adopted and relied on the appellant’s brief filed on 18/11/2014 and urged the Court to allow the appeal. JOSEPH ABANG ESQ., Hon. Attorney General, Cross River State, leading other counsel from the Ministry of Justice, Cross River State, adopted and relied on the respondent’s brief, settled by JOHN O. OGBAN ESQ., which was deemed filed on 3/6/2015, He urged the Court to dismiss the appeal.

From the six grounds of appeal, learned counsel for the appellant formulated a single issue for the determination of the appeal, which was adopted by learned counsel for the respondent. The sole issue is:

Whether the Court of Appeal was right in holding that the respondent proved the charge of armed robbery against

3 the appellant beyond reasonable doubt

In support of the sole issue, learned counsel for the appellant referred to the ingredients of the offence of armed robbery, which must be proved beyond reasonable doubt by the prosecution, to wit:

(a) That there was a robbery at No. 2 Salvation Street, Abakpa-Ogoja on 31/1/2010;