Udeh Kingsley Emeka V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appellant was arraigned before the High court of Akwa Ibom state presided over by Hon. Justice Godwin J. Abraham on a two count charge involving allegations of armed robbery and stealing. The appellant who hails from Anambra state, was a Youth Corper posted to Akwa Ibom State. Some time in 2004 and was to complete his youth service in February, 2005 when he was arrested for his alleged participation in an armed robbery.

It is to be noted that in the course of the trial, the trial Judge who started the trial at Ikono in Ikot Ekpene Judicial division, was transferred to Uyo, the state capital. By the order of the Honourable Chief Judge of Akwa Ibom state the case was assigned to the trial Judge. The trial was therefore concluded at Uyo.

At the end of the trial the judgment was delivered in the matter on the 23rd of January, 2009. The accused was convicted as charged and sentenced to death by hanging. He has therefore filed this appeal against the said conviction and sentence.

Before this court briefs have been filed and exchanged. In the appellant’s brief of argument five issues have been formulated for the determination of this appeal.

They read as follows:-

1. Whether the learned trial judge was justified in convicting the accused person inspite of material contradictions in the testimonies of the prosecution witnesses – GROUND 1
2. Whether the trial Judge rightly convicted the appellant PW 1 not having mentioned the recovery of the appellant’s identity card in his first statement to the police – GROUND 2
3. Whether the evidence of the DW. 3 was properly evaluated and if not whether it did not occasion miscarriage of justice – GROUND 3
4. Whether the P.W. 4 the investigating police officer’s investigation did not leave any lacuna and if it did whether it did not occasion miscarriage of justice – GROUND 4
5. Whether the conviction of the appellant by the trial court was warranted having regard to the totality of the evidence before the court.

On the other hand the issues formulated for determination in the respondent brief of argument read as follows:-

1. Whether the trial court was right in holding that there were no contradictions in the testimonies of the prosecution witnesses in respect of the identity of the appellant as one of the robbers who robbed PW1 and PW2 on 30th November, 2004 and thereby rightly convicted the appellant as charged.
2. Whether the trial court properly considered all the defences put forward by the appellant thereby rightly convicted him as charged.

The appellant counsel has argued that it is trite law that whenever there is a material contradiction in the evidence of a witness the court is not to pick and choose which to believe but to reject the totality of the evidence relying on ONUBOGU V. STATE (1974) 9 SC 1 and IBEH v. STATE (1997) 1 NWLR (Pt 484) 632; 661; 664 – 665.

The averment of the appellant’s counsel is that the most fundamental aspect of this case is the identity card of the appellant and how it was recovered. While the appellant maintained that he lost the said identity card sometimes in the 3rd week of November, 2004 and discovered the loss in the classroom while teaching, the PW1; the complainant, claimed that a wallet fell off the pocket of a robber in the course of the alleged robbery and contained the said identity card. So any evidence in relation to the recovery of the said identity card is very material to this case.

It is the submission of the appellant counsel that the evidence of the prosecution witnesses, particularly the PW1, on how the identity card was recovered was contradictory and therefore unreliable for the purpose of securing conviction in a capital offence.

The appellant counsel has argued that on the 30th day of November, 2004, the date of the alleged incidence the PW1 made a statement to the police and therein stated thus:

“They ordered me and passenger to come out of the car. We obeyed. They took the keys of my car a Peugeot 504 (best line) saloon car 2000 series with registration number AKHA 34 from me. One of the assistant then took in my co-traveler Mr. Pius Akpana. Took out the money in his pocket and on the process a purse dropped from his pocket. We recovered the leather purse soon after the robber left with the car.”

That on the 3rd day of December, 2004 the PW1 made another statement wherein he stated as follows:-

“They then took me back to my car but left that off half way to search my co-traveler, Mr. Pius Akpan, money was removed from his pocket, his GSM handset was also removed, a leather purse did drop from his (robber’s) pocket. At this point as God so guided, they took no notice of this.”