Joel Ighalo V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 19/1/2007 by the High Court of Justice, Edo State, holden at Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice R.I. Amaize (hereafter simply referred to as “the learned trial Judge”). In the judgment, the lower court convicted the Appellant for the offence of armed robbery and sentenced him to death by hanging.

The facts of the case briefly stated are that on 1/4/2003 at about 2am a group of armed robbers (about 7) invaded the residence of one Musah I.O. Ighalo. The robbers were armed with guns, machetes, battle axes and iron rod. They beat up and deprived Musah Ighalo of various sums of money and inflicted serious injuries on members of his family. Indeed a son of Musah Ighalo died shortly after the robbery from the injury he sustained at the hands of the armed invaders.

The Appellant who is also a son of Musah Ighalo (but born by another woman to whom Musah Ighalo is not married) was at his father’s office at the state Hospital Management Board, Benin City sometime in March 2003 and thereat he threatened to use members of his gang to deal with his father for not treating him well as a son. Musah Ighalo pw3 in his statement to the police mentioned that he recognised the Appellant amongst the robbers that invaded his house.

The Appellant was later arrested by the police and he denied any involvement in the robbery attack on his father and family. He set up a defence of alibi which the Police in the course of investigation into the incident could not verify as being true. The Appellant was charged to court after the completion of investigation by the Police.

The Respondent fielded four witnesses in the proof of its case against the Appellant. Musah Ighalo testified as PW3 and gave evidence concerning the robbery. In his evidence, pw3 fixed the Appellant at the scene of the robbery by identification evidence by way of recognition. The Investigating police officer (IPO) testified as PW4 and gave evidence of the investigation he carried out in relation to the robbery incident. The remaining two witnesses gave evidence regarding the threat made by the Appellant prior to the robbery incident.

The Appellant gave evidence in his own behalf and also called one witness. In his evidence, the Appellant denied any involvement in the offences for which he was charged, as well as evidence in support of his defence of alibi. The other witness called by the Appellant gave evidence in support of the defence of alibi set up by the Appellant. The lower court after having had the benefit of addresses from the parties evaluated the evidence adduced before it, and found the Appellant guilty of the offence of armed robbery in which PW3 was the victim.

The Appellant being dissatisfied with his conviction and sentence lodged an appeal against the judgment of the lower court by a Notice of Appeal dated 7/2/2007 and filed on the same date. The Notice of Appeal contains one ground of appeal. The ground reads: “The judgment of the learned trial judge is unreasonable, unwarranted and against the weight of evidence”. In other words, the Appellant’s sole ground of appeal is the omnibus ground of appeal in criminal appeal.

In accordance with the Rules of this court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 23/9/2009 and filed on 14/4/2010 but deemed to have been properly filed and served on 7/5/2012 was settled by Emmanuel Achukwu. Respondent’s Brief of Argument dated 31/5/2012 and filed on 4/6/2012 was settled by V. U. Adeleye (Mrs.) learned Assistant Director of Public Prosecutions, Ministry of Justice, Edo State (i.e. ADPP). The appeal was entertained on 6/3/2013 and both Emmanuel Achukwu learned lead counsel for the Appellant and learned (ADPP) for the Respondent adopted and relied on the Briefs of Argument filed on behalf of their respective clients as hereinbefore identified, in aid of their positions in the appeal.

In his Brief of Argument, the Appellant formulated one Issue for the determination of the appeal. The Issue reads thus: –

Did the prosecution discharge the burden of proof of the appellant’s guilt beyond reasonable doubt in the circumstance of this case, especially relating to the defence of alibi set up by the appellant and the proper identification of the appellant?

In its Brief of Argument the Respondent formulated two Issues for the determination of the appeal. The Issues read thus: –

“(i) whether the learned trial judge rightly rejected the defence of alibi put up by the Appeal at the trial as being hollow and completely destroyed by the evidence of Mr. Musa Ighalo (PW3).

(ii) whether having regard to the totality of the evidence led at the that and the circumstances of this case, the prosecution proved the charge of conspiracy and armed robbery against the appellant beyond reasonable doubt to warrant his conviction.”