Jerry Ikuepenikan V The State (2015)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant herein (as accused person) was arraigned before the High Court of Justice, Ondo State, Okitipupa judicial Division, on a two – count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 1 (2) and 5 (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990. Sequel to his not-guilty plea, the Prosecution opened its case and called five witnesses in proof of its allegations against him. In the course of the trial, the said court (hereinafter referred to as “the trial court”) admitted several exhibits, namely, exhibits A- G. The accused person, who testified in his defence, did not call any other witness.

The trial court, in its judgment of January 12, 2007, following its affirmative findings in favour of the Prosecution’s witnesses and the above exhibits, found the accused person guilty as charged. In consequence, it convicted and sentenced him to death pursuant to Section 1 (2) of the said Act. His appeal to the Court of Appeal, Benin Division, was unsuccessful, hence, this further appeal to this court. However, his Notice of Appeal, dated September 16 and filed on September 28, 2010, was signed by his counsel, Dr. Olumide Ayeni.

He distilled four issues from his eleven Grounds of appeal. They were framed thus:

(1) Whether the Court of Appeal was incorrect when in the circumstances it affirmed the conviction and sentence of death imposed upon the appellant by the trial court when the defence of alibi which was set up by the appellant vide exhibit F-F12 was not investigated by the Police and was so found by the trial High Court

(2) Whether the Court of Appeal was incorrect when in the circumstances it affirmed the conviction and sentence of death imposed upon the appellant by the Trial High Court on the ground that the Prosecution proved the case against the appellant beyond reasonable doubt

(3) Whether the Court of Appeal was incorrect when in the circumstances, it affirmed the conviction and sentence of death imposed upon the appellant by the Trial High Court when it failed to judicially notice that the appellant was a beneficiary of the Amnesty/pardon in terms of the Amnesty Proclamation 51 No. 195 of 25th June, 2009 issued, made, proclaimed and pronounced by the President of Nigeria, pursuant to Sections 36 (10) and 175 [of the] Constitution of the Federal Republic of Nigeria, 1999

(4) Whether the Court of Appeal was incorrect when in the circumstances, it affirmed the conviction and sentence of death imposed upon the appellant by the trial High Court when the whole process of the prosecution of the appellant upon which the conviction was based was an utter nullity

On his part, counsel for the respondent formulated only two issues couched in these terms in the respondent’s brief of argument:

(1) Whether in the circumstances of this case where the prosecution witnesses have fixed the appellant at the scene of the crime, the Lower Court ought not to have affirmed the judgment of the trial court in spite of the fact that the alibi set up by the appellant was not investigated by the Police:

(2) Whether the Prosecution proved its case beyond reasonable doubt against the appellant

RESPONDENT’S PRELIMINARY OBJECTION

In paragraph 6. 0, [page 4 of the brief], of the said respondent’s brief of argument, the respondent incorporated a Notice of Preliminary Objection. It reads thus:

Take Notice that at or before the hearing of this appeal, the respondent shall pray the Supreme Court to strike out the appellant’s Notice of Appeal dated the 16th day of September, 2010 and a fortiori dismiss the issues for determination distilled in the appellant’s Brief of argument from the incompetent Grounds of Appeal.