Joseph Edet Ekpo V. The State (2008)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

Two people (appellant not included) were arraigned before the Special Tribunal constituted pursuant to the provision of Robbery and Firearms (Special Provisions) Decree NO.5 of 1984 as amended sitting at Ikot Ekpene, Akwa Ibom State. They were charged with armed robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provisions) Decree NO.5 of 1984. The particulars of the one Court charge reads “Etim Edet Oboho and Effiong Etim Sunday on or about the 17th day of June, 1993 at Oron in Oron Judicial Division while armed with dangerous weapons to wit matchet and penknife robbed Okafor Ndukwe Anya and Uche Emole Uba of the sum of N220,284.00 (Two Hundred and Twenty Thousand, Two Hundred and Eighty-Four Naira) property of one Sunday Ikema.” See page 1 of the records.

The record shows that on 20/6/94 the Clerk of Court read and explained the charge to the accused persons and each pleaded not guilty thereto. The case was adjourned to 21/6/94 for trial.

On 21/6/94 the Tribunal was informed that three other accused persons in the alleged armed robbery were being tried at the Oron Magistrate’s Court. The Tribunal adjourned to 28/6/94 for trial and ordered that the rest of the accused persons as well as all relevant exhibits be brought before it on the adjourned date. On 28/6/94 six accused persons, including the appellant who appeared as the 3rd accused were brought before the Tribunal. Even though the charge before the Tribunal on 28/6/94 contained the names of 6 accused persons learned Counsel for the prosecution was granted leave to amend the charge to include the 3rd, 4th, 5th and 6th accused persons. It was adjourned to 6/7/94 for plea and trial if possible at the instance of the prosecuting Counsel who sought adjournment to “enable him determine whether or not to proceed against the accused persons on the charge as amended.” On 6/7/94 Mr. Ekong for the prosecution applied under Section 163 of the Criminal Procedure Law to amend the charge by way of substitution. The reasons which the Tribunal said the prosecuting Counsel gave for the amendment were excluded from the records. The Tribunal granted the application. thus:

“Application to amend the charge by substituting a new charge granted and accordingly the charge filed on 13/5/94 is hereby substituted with the new charge filed on 13/5/94 is hereby struck out.” (See page 5 of the records). As the records indicated the new charge was read and explained to the accused persons. Each of the six accused persons pleaded not guilty to each of the two counts of the charge. The Tribunal “adjourned sine die for trial at the next session of the Tribunal.” When the matter was called up on 10/8/94 it was adjourned to 17/8/94 for trial. On 19/11/96 the prosecuting Counsel informed the Tribunal that the 1st, 2nd and 4th accused persons were dead and asked that the surviving accused person take a fresh plea. The Tribunal struck out the names of the 1st, 2nd and 4th accused and the charge was read to the 3rd, 5th and 6th accused each of whom pleaded not guilty to each of the two counts of the charge.

Having read the records of proceedings I have set out the above details in view of issues which will arise in the determination of the appeal. The issues appear to have eluded the Tribunal as well as learned Counsel for the parties even though they have a decisive effect on the appeal. Trial opened on 19/11/96. The State called 4 witnesses and closed its case on 24/6/98. The defence opened its case on 17/5/99. The first accused (now appellant) testified in his defence and called one other witness, his wife, Glory Edet Ekpo, and rested his case on 17/5/99.

At the conclusion of the 3rd accused person’s evidence-in-chief (he was not cross-examined) learned Counsel who appeared for the three accused persons including the 1st accused, now appellant Mr. Uwah, irrespective of the fact that this is a death penalty case, informed the Tribunal in a manner bordering on non-chalance, that “he has no address to offer.” See page 26 of the records. Following this Miss Ekanem prosecuting said that she had nothing to offer by way of reply. The case was adjourned to 26/5/99 for judgment.

In the judgment delivered on schedule the Tribunal concluded as follows:

“On the basis of the evidence adduced by the prosecution in this case, which evidence is largely unchallenged, coupled with the confession (sic) made by the accused persons as contained in Exhibits 4, 7 and 9, I find that the prosecution has proved its case beyond all reasonable doubt and so I find each of the accused persons guilty as charged.”

The Tribunal then sentenced each of the accused including the appellant, to death “in a manner to be determined by the Military Administrator of Akwa Ibom State”. See page 35 of the records.

Dissatisfied with the judgment the appellant, in a notice of appeal dated 26th day of July, 2006 but filed on 18/6/07 by leave of this Court appealed on three grounds from which three issues were distilled for determination in the appellant’s brief of argument. The issues are:

“3.1 Whether the Robbery and Firearms Tribunal was right in convicting and sentencing the appellant to death for the offence of Armed Robbery solely on the alleged confessional statement of the appellant without testing the veracity of the confessional statement.

3.2 Whether the prosecution had proved its case beyond reasonable doubt having regard to the material contradiction in the evidence of the prosecution in witnesses in respect of the identity of the appellant.

3.3 Whether there was proof before the Honourable Tribunal that the incident of 17/6/93 was an armed robbery incident.”