Michael Effiong Ika V.the State (2009)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

On 2nd May, 2001, Mrs. Felicia Bassey, a Police Inspector, reported that about 0300hrs of the same date robbers broke into her house at No. 97 Ndidem Iso Road, Calabar at gun point robbed her and her family members of sums of money and other valuables. In the course of investigation the police arrested some suspects including the appellant and three other people. At the close of Investigation, three accused persons were charged with the offence of armed robbery including the appellant as the 1st accused, while one person was charged with receiving stolen property. The charge read as follows:

STATEMENT OF OFFENCE

ARMED ROBBERY contrary to Section 1(2)(a) Robbery and Firearms (Special Provisions) Act Cap. 398, Vol. XXII Laws of the Federation of Nigeria 1990.

PARTICULARS OF OFFENCE

MICHAEL EFFIONG IKA, DAN SUNDAY UDOH, EKONG EKONG on the 2nd of May, 2001 at about 3.00a.m at No. 97 Ndidem Usang Iso, Calabar in Calabar Judicial Division broke Into the dwelling of one W/Sgt Felicia Bassey and robbed her of her household properties.

STATEMENT OF OFFENCE

RECEIVING STOLEN PROPERTY, contrary to Section 427 of the Criminal Code Cap 31 Vol. II Laws of Cross River State.

PARTICULARS OF OFFENCE

ARIT BASSEY EKANEM on the 2nd of May, 2001 at about 3.00a.m at NO.2 Orok Street, Calabar, in Calabar Judicial Division was found to be in possession of goods known to have been stolen.

Subsequently the name of Ekong Ekong the 4th accused was struck out because he was reported dead. At the close of the prosecution case, learned counsel for the accused made a no case submission on their behalf. The trial court upheld the defence counsel’s submission in favour of the 3rd accused and found that no prima facie case of receiving stolen property was made out against her and consequently discharged and acquitted the 3rd accused. The no case submission made on behalf of the 1st and 2nd accused was overruled and the trial court ordered them to enter their defence. The two accused testified and called a witness each. The 1st accused testified as DW1 while his father testified as DW2. The 2nd accused gave evidence as DW3 while his senior brother testified as DW4. All the defence witnesses were cross-examined. At the close of the case of both the prosecution and defence, the learned trial Judge In a reserved judgment, delivered on 25th day of July, 2008 found the two accused guilty of the offence of armed robbery. He thereby sentenced the 1st accused to death by hanging. In respect of the 2nd accused, he found that he was 16years of age when he committed the offence of armed robbery and thereby invoked the provisions of Section 368 (3) Criminal Procedure Law and ordered him to be detained at the Governor’s pleasure. The two accused felt dissatisfied with their conviction and appealed against it.

The appellant’s Notice of Appeal containing 10 grounds is dated 24th September, 2008 from which the appellant’s counsel formulated the following 8 issues for determination:

1. WHETHER OR NOT the Honourable Trial Judge was entitled to raise suo motu in his judgment the question of the error or defect in stating the charge and proceed to resolve the Issue against the accused/appellant without calling upon both counsel to address him on the said defect in the charge. Ground 1.
2. WHETHER OR NOT the appellant’s statement Exh. ‘A’ was unequivocal as to the guilt of the accused/appellant when he had earlier made Exh. ‘F’ denying any involvement in the commission of any offence? Ground 2.
3. WHETHER OR NOT the learned trial Judge was correct to use Exh. ‘A’ in convicting the accused/appellant without any reference to Exh. ‘F’ the earlier statement made by the accused denying the crime alleged against him. Ground 3.
4. WHETHER OR NOT the learned trial Judge acted properly in law when he convicted the accused/appellant of armed robbery when the charge brought against him did not state that he was armed with any firearms or offensive weapon. Grounds 4 & 6.
5. WHETHER OR NOT having rejected the PW1’s evidence on identification as unreliable the learned Trial Judge could subsequently utilize the same PW1’s evidence to find and hold that it was accused/appellant who robbed PW1? Ground 7.
6. Was the accused/appellant given a fair hearing when the learned trial Judge failed or refused to evaluate or give any consideration to Exh. ‘F’, the accused/appellant’s first statement made to the police denying committing the offence he was charged with? Grounds 5 and 8.
7. Was the learned Trial Judge acting in accordance with the law when he held that the accused person had Identified himself In Exh. ‘A’ a statement made to the police that was neither clear nor unqualified and therefore not a confessional statement? Ground 9.
8. With the doubtful evidence of identification and failure to evaluate Exh. ‘F’ was the judgment of Hon. Justice E. E. Ita not unreasonable and unwarranted and therefore justifying the quashing of the conviction and sentence of the accused/appellant? Ground 10.

The Respondent formulated four issues for determination which are as follows:

1. WHETHER the learned Trial Judge was entitled in law to raise and resolve suo motu the issue of the defect in the charge and proceed to convict the accused/appellant on it. Covers grounds 1, 4 and 6
2. WHETHER the lower court was right in relying on the confessional statement of the Accused/Appellant Exh. ‘A’ in finding him guilty of the charge of armed robbery. Covers grounds 2, 3, 5 and 8.
3. WHETHER having found PW1 evidence on the Issue of Identification of the appellant as unreliable the trial court was right to utilize the same PW1 evidence and hold that Appellant robbed PW1. Covers ground 7.
4. WHETHER non consideration of Exh. ‘F’ by the trial court was justified where appellant denied making the statement. Covers ground 9.

Although the Appellant’s counsel formulated eight issues for determination, arguments on issues 1, 4, 5, 6 and 7 were taken separately while issues 2 and 3 were argued together and issue 8 was abandoned altogether as no arguments were advanced on it. Issue 1 dealt with the propriety or otherwise of the learned trial Judge’s raising suo motu the defect in the information laid before the court and the resolution of same without calling on both counsel in the case to address him. Learned counsel for the appellant argued this violated the principles of procedural fairness of affording the parties the constitutional right to be heard and this has occasioned a miscarriage of justice. The issue was whether in a case of armed robbery if there was no element of being armed with offensive weapons included in the charge the learned trial judge could proceed and convict the appellant and sentence him to death as happened In this case without occasioning a serious miscarriage of justice. Citing the cases of ABIMBOLA v ABATAN (2001) 9 NWLR (pt. 717) 66; UGO v OBIEKWE (1989) 1 NWLR (pt. 99) 566 and OJO v FRN (2008) 11 NWLR (Pt. 1099) 467, learned counsel submitted that the failure of the learned trial judge to call for address of counsel before deciding that the accused/appellant was guilty of the defective charge which did not include the element of being armed with a firearm or offensive weapon occasioned a serious miscarriage of justice since the appellant was sentenced to death when he was not accused of being armed with a firearm or offensive weapon as required by the law.