Solomon Umana V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

In this case the appellant was charged on one count information with the offence of armed robbery contrary to section 1 (1), (2) (a) of the Robbery and Firearms Act 2004, Laws of the Federation. The trial commenced on the 18th of May, 2006 and at the end of the trial the case was adjourned to 19th October, 2009 for judgment. At the end of the trial court held that the prosecution had proved all the ingredients of the offence of armed robbery against the accused/appellant and proceeded to convict him and it sentenced him to death.

Before the trial court it was the accused/appellant’s defence that he was in his family house at No 4c Musaha Street, Calabar with his wife and children and also with his father, mother and siblings on the night the incident occurred.

The particulars of his defence of alibi were made available to the police in his extra judicial statement exhibit ‘A’ made at the earliest opportunity but the police failed or refused to investigate the alibi or furnish the lower court with the reasons the alibi of the appellant was not investigated, but the court in delivering its judgment rejected the alibi and sentenced the appellant to death without a proper consideration of the appellant’s defence of alibi.

Before this court briefs of argument have been filed and exchanged. In the brief of argument of the appellant the issues formulated for determination read as follows:-

1. Whether the entire proceedings, and or, judgment of the lower court was/is not a nullity, having regards to the fact that the required consent by a Judge as provided for in section 309(2) of the Cross River State Criminal Procedure Law 2004 was not obtained before the said information was preferred against the accused/appellant (Ground 1).

2. Whether or not the accused/appellant was properly identified as he was not arrested at the alleged scene of crime but sometime after and the victim PW2 never described him to the police when he was making a complaint of the armed robbery to the police and no identification parade was conducted by the police when accused/Appellant was subsequently arrested.

(Ground 2).

3. Whether or not the trial Judge’s finding or observation that the DW 2 accused/Appellant’s father had gone to the victim’s house to arrange a settlement out of court for the accused/appellant had heightened the learned Judge’s suspicion that the accused/appellant was the Person who robbed PW 2 (Grounds 3, 4 and 5).

4. Whether or not the Plea of alibi put up by the accused/appellant was properly investigated, rebutted and considered by the trial Judge (Ground 6).

5. Considering the entire evidence was the learned trial Judge right when he held that the Prosecution had proved all the ingredients of the offence of armed robbery beyond reasonable doubt against the accused/appellant (Ground 7).

On the other hand, in the respondent’s brief of argument the issues formulated for determination in this appeal read as follows:-

(a) Whether consent of a Judge was sine qua non to filing of the charge before the lower court considering the Provisions of section 342 (2) of the Cross River State Criminal Procedure Law, 2004, section 1 and 2 of Criminal Procedure (Amendment Edict 1984, Edict No. 2 of 1984 and sections 4 (2) and 6 of the Revised Edition (Laws of Cross River State) Law, 2004.

(b) Whether identification parade was necessary when PW 2 had a long encounter with DW 1 during the robbery and personally identified DW 1 (sic) later and caused his arrest.