Kingsley Awo V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The appellant was on 4th June, 2012 convicted and sentenced to death by hanging for the offence of conspiracy to commit armed robbery and armed robbery punishable under Section 1(2) (a) of the Robbery and Firearm (Special Provisions) Act, Cap R. 11 Vol. 14 Laws of the Federation of Nigeria, 2004; at the Delta State High Court of Justice, holden at Ozoro.

The appellant along with some other persons at large were said to have robbed one Omoviye Martins of his Teebro handset, two Nokia handsets, a Tiger Generating set and the sum of twenty three thousand naira (N23,000.00) only while armed with a gun along the Ozoro/Kwale Express Road, Ozoro on 19th May, 2009.

Furthermore, the appellant was alleged to have robbed one Glory Ofuvie of her motor cycle, a Nokia handset, a D.V.D. machine and the sum of N3,000.00 while armed with a gun along the same Ozoro/Kwale Express Road, Ozoro on same 19th May, 2009.

The Prosecution called five witnesses in order to proof the charges against the appellant. The star witnesses for the prosecution were the PW1 and PW2 who were the victims of the two armed robbery operations. The PW1 gave evidence of visual identification of the appellant as one of the armed robbers who attacked him on the fateful day. The PW2 could not identify the armed robbers.

The appellant denied the charges against him in his extra judicial statements obtained by the police and also in his defence at the trial. He indeed set up an alibi to the effect that on the fateful day of the alleged armed robbery, he was with his mother who lived at Ovrode community. He did this in his extra judicial statement obtained by the police who neglected to investigate the said alibi by interrogating the appellant’s mother.

The learned trial judge at the end of the trial, believed essentially the evidence of the PW1 with respect to the visual identification of the appellant. He convicted and sentenced him to death for the two charges aforementioned.

This appeal, is against the said judgment. The appeal was anchored on four grounds of appeal.

The appellant in order to prosecute the appeal, filed on 10th September, 2012; a brief of argument settled by Ayo Asala, Esq., of counsel dated 9th September, 2012. Three issues were distilled from the grounds of appeal for determination as follows:

“(i) Whether the learned trial judge was right to have relied on the evidence of identification of the appellant by the PW1 to hold that the prosecution proved the charges against the appellant beyond reasonable doubt.

(ii) Whether the learned trial judge rightly rejected the defence of alibi raised by the appellant in this case.

(iii) Whether from the totality of the evidence on record, the lower court was right in convicting the appellant for the offences of conspiracy to rob and armed robbery.”

O.F. Enenmo, Esq., Deputy Director of Public Prosecutions at the Delta State Ministry of Justice, settled the respondent’s brief of argument which was dated and filed on 3rd October, 2012. He too, identified three issues for determination, to wit:

“1. Whether the learned trial judge was right in law when he held that the prosecution proved its case against the accused person on the three counts beyond reasonable doubt. Ground(s) 1 and 4.