John Etim & Anor. V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of F.I. Duroha – Igwe J. in the Owerri Judicial Division of the High Court of Imo State delivered on 1/11/07 .

The Appellants were charged with the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms Act Cap. 398 Vol. XXII Laws of Federation of Nigeria 1990.

In the court below, John Etim, 1st Appellant was the 1st Accused person. Ifeanyi Chikere (now late) was the 2nd Accused person and the 3rd Appellant Lawrence Ihenacho Nwogu (alias Acho was the 3rd Accused person.

The particulars of the offence were as follows:

“John Etim ‘M’, Ifeanyi Chikere ‘M’ and Lawrence Iheanacho Nwogu (alias Acho) ‘M’ on the 5th day of August 1999 at Federal Housing Estate, Owerri in the Owerri Judicial Division while armed with firearms did rob (sic) one Racheal Nsofor Ndulue the sum of N1,000 (One Thousand Naira)”.

The case of the prosecution is that on 5/8/99, at about 6.20 am, PW2 Rachael Chinyere Nsofor – Ndulue (Mrs), the complainant went to pick her car from her neighbour’s compound where she normally packs for security reasons. She stopped infront of her gate in preparation to alight and open her gate. At that moment, she saw a navy blue Peugeot 504 Saloon Car which looked like that of the Police. The number plate was hooded and the music emanating from the car was loud.

PW2 looked and saw the 2nd Accused person driving and 3rd Accused person sitting beside him. They stopped right behind her making an escape impossible. PW2 was still inside her car when 3rd Accused person walked up to her with a long gun. He pointed the gun to her and ordered her not to look at him. It dawned on her that armed robbers were visiting and she promptly complied with their instructions. They were not masked. By this account, 1st Appellant had a blue trouser on with ash coloured top. The 1st and 3rd Appellants had long rifles while 3rd Appellant had a chain of bullets hung round his chest, 2nd Accused was carrying a silver coloured short gun.

PW2 was ordered to drive into her house and she did so. 1st Appellant ordered her to go into the house and she obeyed while the 3rd Appellant followed behind. Inside the house, 1st Appellant asked to know the whereabout of her husband. PW2 replied that her husband was not in. The noise woke up the children and two of them walked into the sitting room and confirmed when asked by the Accused persons that their father traveled.

The three Accused persons pointed their guns at PW2 and asked her to lie face down. 1st and 2nd accused persons led her children at gun point away from the parlour to the kitchen area where they were held hostage. At this point, all the Accused persons were in the kitchen area. Her third son emerged and saw his mother alone in the sitting room. PW2 got up and ran out towards the gate and out to her neighbour’s (Chief Nathan Udogwu) and found his gate wide open she ran into the premises and raised alarm.” Armed robbers, armed robbers” 3rd Appellant rushed out and shot his gun in her direction.

He missed and the police guard in Chief Odogwu’s house, PW3 replied with a gunshot. PW2 ran right inside her neighbour’s house as the door was open. Shortly after, she heard the vehicle with which the Accused came zoom off with reverse gear. PW2 used the telephone in Chief Udogwu’s house to phone men of “operation smash”. She heard another big bang as if something had fallen into the gutter followed by several shots. When PW2 emerged from Udogwu’s house, she saw that it was the Peugeot car belonging to the Accused persons that fell into the gutter.

On going into her house, she discovered that the N1,000 (one thousand Naira) which she kept on her table was no longer there. The Registration number of the Peugeot Car is BX 889 LND. PW3 later recovered the car (Peugeot 504) and took it to the Police Station where he incidented the report. PW2 later lodged a report with the police. On 11/8/99, the Officer in – Charge Monitoring Unit informed PW2 that some arrests had been made and that she was to identify the robbers who attacked her. She waited in his office until she was asked to come out. Outside, she saw a formation of men and she was asked to identify her attackers. She was able to identify the 1st and 2nd Accused persons.

She did not see 3rd Accused/Appellant in the formation of men on that day. Sometime in 2002, the 3rd Accused was arrested and the police again asked her to come and identify him. PW2 was able to identify the 3rd Accused person. Seven witnesses testified for the prosecution while all the Accused persons testified in their own defence and called three other witnesses.

Each of the Accused person put up different versions of alibi. In a considered judgment, the learned trial Judge rejected defence of alibi set up by each of the Accused. First, on the ground that particulars of the alibi was not supplied and second, that the eye witness account of PW2 and PW3 pinned each of the Accused persons to the scene of crime.