Okechukwu Chukwu V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of C. M. Egole; J of the Imo State High Court, sitting at Owerri delivered on the 19th day of December, 2008 in Charge No: HOW/23C/2008: wherein the Appellant was convicted and sentenced to death for having committed the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. 22, of the Laws of the Federation 1990, applicable to Imo State.

The case of the prosecution against the Appellant is that he, in company of two others, while armed with a gun(s) robbed Nnena Duru (P.W.1) of the sum of twenty-eight thousand Naira (N28,000.00) at Fair Field Guest House, Egbu-Owerri. That in the process, of committing the robbery, the Appellant inflicted serious injuries on the said Nnena, which led to her being hospitalized.

At the trial, the prosecution led evidence to show that, on the 16/12/2005, at about 10.30a.rn., the Appellant in company of two others arrived the Fair Field Guest House and met the P.W.1 (Nnena) alone. That the Appellant who was a regular visitor to the Guest House inquired from her whether Chinonso Duru (P.W.2) and Chinedu Egbe (P.W.3) who are staff of the Guest House and whom the Appellant regularly visited were around, and she told him that they had both gone out.

The appellant then requested for a bottle of beer and a bottle of stout which Nnena served, and left to carry on with her usual chores in the kitchen. That the Appellant later met her in the kitchen and asked her the amount for renting a room, but she told him to go and wait for her in the V.I.P. Waiting Room with his friends and that she will join him later for an answer.

It is also the case of the prosecution that, at that instance the Appellant signaled his companions and the tall one joined the Appellant in the kitchen, and immediately produced a short gun which he pointed at Nnena (P.W.1). That the Appellant then ordered her to shut up and proceeded to tear her blouse, and used same to tie her hands to the back. He also tied her legs, blind-folded her and pushed her to the ground, and proceeded to heap two fifty litres jerry cans full of water on her. That the Appellant collected the keys to her room, and also wanted the keys to the cashier’s room, but it was abortive.

That all the while the shorter person was in the V.I.P. Waiting Room monitoring movements. The Appellant could not get entrance into her room with the key he collected from her, so he took a pestle and used same to break into the room wherein he ransacked the room and stole the sum of twenty-eight thousand Naira (N28,000.00). It was further stated that in the process one Reginald saw her and came to her rescue. That on sighting the said Reginald, the Appellant and his two friends fled through the fence. The P.W.1 was then taken unconscious to the hospital for treatment from the injuries she sustained in the course of the robbery.

The Appellant admitted that he knew the Fair Field Guest House where he had visited a couple of times to see Chinonso whom he met when both of them were in detention for sundry offences. He also admitted knowing Nnena (P.W.1) who was alleged to have been robbed, and that she also knew him. He however denied ever visiting the Fair Field Guest House on the 16/12/2005 when the P.W.1 alleged she was robbed. He stated that on the date of the robbery, he was living in Lagos with his uncle, one Mr. Victor Nwosu, who works with N.T.A. Ikeja-Lagos. He therefore denied committing the offence of armed robbery alleged against him, and raised the defence of alibi.

At the trial, the prosecution called four witness, who testified as the P.W.1, P.W.2, P.W.3 and P.W.4 respectively. The Appellant testified in his defence and called one witness who testified as the D.W.2. At the close of evidence, parties were ordered to file and exchange Written Addresses. Thus, in a considered judgment delivered on the 19/12/2008, the learned trial Judge found the Appellant guilty of the offence of armed robbery and consequently sentenced him to death by hanging. It is against the conviction and sentence passed on him that the Appellant has appealed to this court.

The Notice of Appeal consisting of eleven (11) Grounds of Appeal was dated the 24/01/2009 and filed the 02/2/2009. However, on the 13/4/2011, this court granted the Appellant leave to file and argue one Additional Ground of Appeal, vide Motion on Notice filed the 23/11/2010. The Additional Ground of Appeal therefore makes a total of 12 Grounds of Appeal filed by the Appellant. For ease of reference, I take the pains to re-produce same here, but without their particulars. They are:

“1. The trial Judge misdirected himself in law when he held that the overt contradictions and inconsistencies in the evidence of P.W.1., the only alleged victim and eye witness in a capital trial is “immaterial” and thereby occasioned a miscarriage of justice.

2. The trial Judge misdirected himself in law when he drew the conclusion that P.W.1 knows the accused in relation to the robbery incident, and that she could identify him at anytime any day. He misapplied the case of OLALEKAN v. STATE (2001) 9 L.R.C.N. 3385 @ 3395.
3. The trial Judge misdirected himself in law when he held that evidence of P.W.2 and P.W.3 are not hearsay evidence upon which he convicted and sentenced the accused person.
4. The trial Judge erred in law when he held that statement made by P.W.1, P.W.2 and P.W.3 to the Police in the F.I.R. which was before him and adopted by the witnesses as their statement during trial are not before him and that acting on them amounts speculation.
5. The trial Judge gravely erred in law when he held that the fundamental issue of hospital, doctor’s medical report, police report and overt contradictions and inconsistencies in respect to hospital treatment of the only victim of alleged armed robbery is “immaterial” in establishing the alleged armed robbery.
6. The trial Judge erred in law when he held that the submission of defence counsel on the non-petition to the Commissioner of Police and non prompt mentioning of the name of the accused as a person who robbed the complainants until about four months was mis-conceived.
7. The trial Judge misdirected himself in law when he held that exhibit P2 is the 1st Statement of the accused person in relation to the case of armed robbery and that evidence of foot print was not cross-examined.
8. The trial court misdirected himself (sic) in law when he held that the prosecution prove (sic) the case of armed robbery against the accused.
9. The trial Judge erred in law by misapplying the principle in the case of PETER NWONMINKWO v. THE STATE (1995) 1 NWLR (Pt.372) Pg.432 at 443.
10. The trial Judge misdirected himself in law when he rejected the defence of Alibi on grounds that the accused did not raise it at the earliest opportunity.
11. The trial Judge misdirected himself in law when he failed to consider the case of malice and evidence of close relation (sic) existing between the P.W.1 and P.W.2 against the accused.
12. The learned trial Judge erred in law when he delivered judgment without hearing the final address of Appellant through his counsel thereby breached the Appellant (sic) Fundamental Right to fair hearing.

As required by the Rules of this court, the parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument was dated the 25/10/2010. Therein the Appellant formulated six (6) issues for determination as follows:

1. Whether from the totality of evidence adduced by the prosecution witnesses and circumstances of the case, there exists any sufficient credible and reliable evidence to establish the guilt of the Appellant as required by law. (Grounds 1, 2, 3, 5, 9 and 11).
2. Whether the learned trial Judge was right in rejecting the plea of alibi made by the Appellant at the earliest opportunity he was confronted with the petition tagged “Armed Robber”. (Ground 10).
3. Whether the learned trial Judge was right in attaching weight to Exhibit P2 when Appellant denied authorship. (Ground 7).
4. Whether the learned trial Judge was right in convicting Appellant based on the alleged petition tagged “Armed Robbery” rejecting the complaint of assault made at Owerri Urban Police and the legal effect of excluding the alleged petition upon which trial and conviction of Appellant was based. (Grounds 6 and 8).
5. Whether the learned trial Judge was right when he held that statement of P.W.1 was not before him acting on it will amount to “Speculation” when the statement was in proof of Information and Court’s file was adopted by P.W.1 as her statement during trial. (Ground 4).
6. Whether the learned trial Judge breached the rule of fair hearing when he adjourned for judgment and subsequently delivered judgment without giving Appellant or his counsel opportunity to address the court. (Ground 12).

It should be noted that upon being served the Respondent’s Brief of Argument, the Appellant filed a Reply Brief dated the 15/9/2011 and filed the 30/11/2011 out of time. However, the said Reply Brief was deemed filed the 09/5/2012 vide Motion on Notice dated 10/4/2012 and filed 03/5/2012.

The Respondent’s Brief of Argument was dated the 04/5/2011 and filed 10/5/2011. Therein, the Respondent formulated two (2) issues for determination in this appeal as follows:-