The State V. Usen Okon Ekanem (2016)

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KUMAI BAYANG AKA’AHS, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Calabar Division delivered on 9th July, 2012 discharging and acquitting the respondent for the offence of armed robbery and also recommending that his co-accused, Eteyen Okon Effiong who did not appeal against his conviction and sentence to death, be granted pardon by the Governor of Akwa Ibom State by virtue of his executive powers under Section 212(1)(a) Constitution of the Federal Republic of Nigeria, 1999.The State felt aggrieved and appealed against the said judgment.

The facts leading to the appeal are as follows:-

“The respondent herein together with his co-accused, one Eteyen Okon Effiong, were arraigned before the Robbery and Firearms Special Tribunal of Akwa Ibom State of Nigeria sitting at Ikot Ekpene on a two-count charge of armed robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Decree No. 5 of 1984 and attempted armed robbery contrary to Section 2(1) of the Robbery and Firearms (Special Provisions) Act 1990. They pleaded not guilty to the

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charge.”

The appellant’s case was that on 16/10/94 at No. 150 Inyang Utono Street, Ibiaku Offot, Uyo, the respondent while armed with an offensive weapon namely a locally made pistol robbed one Ekong Okon Nkanga of the following items:

(i) A video machine and video cassettes valued at N60,000.00

(ii) Car radio and Equalizer valued at N5,000.00

(iii) Clothings valued at N10,000 00

(iv) Shoes valued at N1000.00

(v) Cash of N2,500.00

The total value of items stolen including the cash was put at N78,560 00 (Seventy-Eight Thousand, Five Hundred and sixty Naira). It was also the prosecution’s case that on the same night at Use Offot Uyo, the respondent attempted to rob one Professor Emmanuel Akpan and his wife.

The prosecution called three witnesses and tendered 16 exhibits to prove its case while the respondent and his co-accused testified in their own behalf but called no other evidence. The respondent set up the defence of alibi by stating that on the night of 15/10/94 he was in his house together with his wife and the co-accused until the morning of 16/10/94. At the end of the trial, the accused and

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co-accused were found guilty of armed robbery and accordingly convicted and sentenced to death but were acquitted and discharged for attempted robbery. He thereafter appealed to the Court of Appeal, Calabar against his conviction for armed robbery. This led to the appeal succeeding and his acquittal and discharge; hence this appeal by the State to the Supreme Court. The appellant submitted three issues for determination namely:-

“1. Whether the respondents plea of alibi is not dislodged or demolished by the evidence available before the Tribunal. (Distilled from Ground 1)

2. Whether the respondent and his co-accused were not properly identified as the robbers who committed the offence for which they were charged (Distilled from Ground 2)
3. Whether having regard to the entire evidence before the Tribunal, the Prosecution has not proved beyond reasonable doubt the guilt of the respondent and his co-accused person for an offence of armed robbery.” (Distilled from Ground 3).

The respondent submitted only one issue for determination viz:-

“Whether the Court below was right to have reversed the judgment of the

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trial tribunal which convicted the respondent on the ground that there was insufficient evidence that proved the respondents guilt beyond reasonable doubt. (Grounds 1, 2 and 3).”

The formulation of the issue for determination by the respondent is more appropriate and will suffice since the complaints in the grounds of appeal are directed against the judgment of the Court of Appeal, Calabar and not targeted at the judgment of the trial Tribunal. In any event, this Court can only hear appeals emanating from judgments of the Court of Appeal and not judgments from the trial Tribunal. See: Section 233(1) Constitution of the Federal Republic of Nigeria (as amended) which provides that:-

233(1) The Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal.

In his brief of argument, learned counsel for the appellant while acknowledging the alibi raised by the respondent in maintaining that he slept with his wife in one room of the house while the co-accused slept in another room on the night of the incident, there was evidence from PW3 (Owor

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Ekpeni) who took part in the investigation that he investigated the alibi and from his findings there was no truth in the alibi.

He submitted that contrary to findings made by the lower Court that there was no evidence to dislodge the respondent’s plea of alibi, the prosecution adduced strong and credible evidence to fix the respondent and his co-accused at the scene of the crime. He went further to submit that the respondent was properly identified and all the ingredients of the offence were established.

After reviewing the evidence of the prosecution and defence the lower Court found that the Prosecution failed to call the villagers who arrested the accused; neither did the house girl to PW1 who was raped testify and there was a discrepancy on whether the robbers wore mask or not. It came to the conclusion that since the accused were not arrested in the house of PW1 or PW2 not at Use Offot village, the evidence of PW1 and PW2 was hearsay and consequently the evidence of the accused who pleaded alibi was never disparaged under cross-examination.

Pw1, Ekon Okon Nkanga, the victim of the robbery testified as

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follows:-

I remember the 17/10/94. (This was later corrected to 16/10/94. It was about 1.45a.m. I heard water coming out from the tap. Then I called my house maid, opened the door for her to go and lock the tap. As I opened the door, I saw the 2nd accused person and one other man at my door post. The 1st accused person held gun and demanded to see the owner of the house. I told them I was the owner of the house. Then they marched me inside the house and told me someone sent them. When I entered the house I put on halogen lamp and since it was brighter than the torchlight they were holding, I saw the accused persons since they were not masked.

On being cross-examined he stated:-

“When the robbers marched me inside the house, I put on the halogen lamp….. The robbers took away my car equalizer and the car radio. I told the Police that I saw my wife’s bangle with the 2nd accused. I told the Police that I went to Use when an alarm was raised there to identify the accused persons.

PW1 was recalled and the prosecution tendered bangle which he saw the 2nd accused wearing and it was admitted as Exhibit

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B.

PW2, Dr.(Mrs.) Affiong Akpan, another victim of the armed robbery carried out by the respondent and 2nd accused also testified to the fact that on 16/10/94 at about 3a.m. they heard a gun shot outside their house and a voice saying, open the door oga. When her husband enquired who the people were and what they wanted at that time of the night one of them retorted that they wanted his head. She then opened the window and screamed for help. Soon after robbers broke open the front door, entered the room and switched off the light. On entering the room after shattering the louvre blades, they entered her husband’s room where they stabbed him on the head, and the shoulder close to the neck. On seeing the injuries being inflicted on her husband, she threw herself at him in an effort to shield him and in the process, she too received a cut on her head. She then screamed and rushed out of her husbands room. The villagers responded to the shouts coming out from her compound. Her village, Use and that of Ibiaku Offot where PW1 hailed shared a common boundary. As a result of the injuries she and her husband received, they were rushed to the

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Medical Centre, University of Uyo for treatment.

On their return they learnt that the accused had been caught by the villagers. Later when the Police conducted an identification parade she was able to identify the 1st accused who is the respondent. She had earlier seen him on the night of the robbery through the electric light because he was not masked.

PW3 was the investigator who took over the case. He stated that on 18/10/94, he was on duty at the SIIB office when a case file of armed robbery was transferred from “B” Division, Ewet Housing Police Station. The two accused together with some exhibits were handed over to him. Among the exhibits which were handed over to him was the gold bangle which PW1 had identified as belonging to his wife.

The learned trial Judge in reviewing the evidence called by the prosecution as well as the defence considered the issue of identification vis-a-vis the defence of alibi raised by the defence and stated at pages 64-65 of the records:-

Identification: PW1 said he had no difficulty identifying the accused persons when they were caught by the villagers at Use Offot on the same day of

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the incident. PW1 was also able to identify both accused persons at the Police Headquarters when the Police conducted identification parade.

He identified the accused persons out of nine suspects on parade. It is instructive that PW2 also identified the 1st accused person as one of the 3 man gang which attacked her and her husband within a space of one hour after a 3 man gang had operated at the house of PW1 for which PW1 later identified the two accused persons. I believe the Prosecutions witnesses that it was the same three-man gang which attacked and robbed the PW1 while armed with a gun, that also attacked the house of the PW2. One can appreciate the inability of the PW2 to identify the 2nd accused when it is recalled that PW2 was stabbed by the robbers.

On the gold bangle, Exhibit ‘B’ the PW1 said he was able to identify it with the 2nd accused person as the property of one of his wifes property stolen, by the robbers. The 2nd accused person who stated in his statement, Exhibit M made on the 16/10/94, that is on the date the PW1 alleged his wifes bangle was stolen, that he bought the said bangle from an

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Hausa man, turned around in his evidence before this Tribunal that he knew nothing about the gold bangle. Since the 2nd accused person cannot satisfactorily state how he came by the gold bangle, I hold that the gold bangle was the one stolen from the PW1’s house.

On the defence of alibi raised by both accused persons, I hold that, where there is a direct and positive evidence of identification or very strong and convincing circumstantial evidence, such as the stolen gold bangle found on the 2nd accused, the onus is clearly in such a circumstance on the accused persons, to call evidence to establish their alibi.

Although it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. In other words where there is strong and credible evidence which fixed a person at the scene of the crime, his defence of alibi must fail. See: Ebenechi v. The State

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(2009) 6 NWLR (Pt. 1138) 431 at 448; Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43.

The learned trial Judge believed the prosecution’s evidence that it was the same three man gang which attacked and robbed the PW1 that also attacked the house of the PW2. He went on to hold that there was a very strong circumstantial evidence such as the stolen gold bangle found on the 2nd accused which required the accused persons to call evidence to establish their alibi and if they failed to do so, then the positive evidence of identification or strong convincing circumstantial evidence will be sufficient unequivocal evidence pointing unmistakably to the fact that the accused persons were the perpetrators of the crime.

The lower Court in its own evaluation held that the evidence of PW1 and PW2 regarding the arrest of the accused persons was hearsay since they were not arrested in either PW1 or PW2s house nor at Use Offot village and the evidence of the accused who pleaded alibi was never disparaged under cross-examination. The lower Court also found that the procedure adopted during the identification parade was less than satisfactory; so also

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the evidence used by the lower Court in coming to the conclusion that the gold bangle found with the 2nd accused actually belonged to Pw1’s wife.

Although the respondent and the co-accused were said to have been arrested in the vicinity where the crime was committed; nevertheless PW3 who conducted the investigation stated that the witnesses who arrested the accused refused to make any statements on the arrest.

PW1 testified that the robbers were not masked and at the time they entered his house, he switched on the halogen lamp in the house and this made him to identify the respondent and later further identified him when a formal identification parade was conducted at the Police Station. He also saw the 2nd accused with his wife’s gold bangle. PW2 also identified the respondent during the parade. The respondent in Exhibit P stated that Dr. Affiong Akpan and another person identified him because he is living in Use Offot village and sells meat at a bar and the two people who identified him always bought meat from him and PW2 hated him on account of his prosperity.

The learned trial Judge who watched the demeanor of the witnesses

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including the accused was in a vantage position to say whose evidence was credible and therefore more reliable.There was therefore no perverse finding to warrant a reversal by the lower Court. The positive identification of the respondent by PW1 and PW2 automatically led to the demolition of the defence of alibi. The lower Court’s conclusion that the defence of alibi set up by the accused was not disparaged under cross-examination does not represent the position of the law. This no doubt greatly affected the lower Court’s conclusion in allowing the appeal.

In view of the conclusion I have reached that the respondent was positively identified as one of the robbers, the ingredients of the offence of robbery involving the respondent were established beyond reasonable doubt. The gang of robbers were said to be armed with a gun, a matchet and a sword. Even though the robbers did not inflict any physical injuries on PW1, they nevertheless instilled fear into him before they ransacked the house and made away with some items including cash. In the same way, the fact that nothing was taken from PW2s residence, the injuries inflicted on PW2 and

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her husband clearly qualified the operation as a robbery operation.

The appeal is meritorious and it is hereby allowed. The judgment of the lower Court which acquitted the respondent of the charge and discharged him of the offence of armed robbery is hereby set aside.

The conviction and sentence of the respondent to death is hereby restored.

SC.712/2013