Usen Okon Ekanem V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

On the 4th day of May, 1999 the Honourable Attorney-General and Commissioner of Justice, Akwa Ibom State arraigned Usen Okon Ekanem (appellant) and Eteyen Okon Offiong before the Robbery and Firearms Special Tribunal sitting at Ikot Ekpene on two counts of armed robbery.

The arraignment under count one was under section 1(2)(a) and count two under Section 2(1) of the Robbery and Firearms (Special provisions) Act No.5 of 1984 Laws of the Federation of Nigeria, 1990.

In count one the prosecution alleged that on 16th day of October, 1994 the suspects, armed with offensive weapons to wit, a locally made pistol, entered into the house of one Ekan Okon Ekanga (Pw1) at No.150 Inyang Utono Street, Ibiaku Offot Uyo, in Uyo Judicial Division and robbed him, carting away the following items (i) Video machine and video cassettes valued at N60, 000.00 (ii) Car radio and equalizer valued at N51,000.00 (iii) clothing valued at N10,000.00 (iv) shoes valued at N1,000.00 (v) N2,500.00.

The total value of the items stolen was put at Seventy-eight thousand, five hundred and sixty Naira (N78, 560.00). In count two it was alleged that on the same 16th day of October, 1994 at use, Offot village, Uyo in Uyo Judicial Division while so armed attempted robbing Mrs. Affiong Akpan (pw2) contrary to Section 2(1) of the Robbery and Firearms (special provisions) Act, 1990.

The prosecution called three witnesses. The suspects testified without calling witnesses. Each pleaded alibi. At the end of the trial learned Counsel submitted written addresses. The learned trial Judge considered the addresses before arriving at the following decision on 28th day of May, 1999 to wit:

“From the totality of the evidence before me, the accused persons are not guilty of an attempted robbery as contained in count 2 on the information. I therefore acquit and discharge them on that count I find the 1st and 2nd accused persons guilty of armed robbery contrary to section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federal Republic of Nigeria, 1990. They are hereby convicted accordingly.”

After allocutus the two suspects were each sentenced to suffer death in a manner to be determined by the Military Administrator or Governor of Akwa Ibom State.

Being aggrieved with the conviction and sentence Usen Okon Ekanem (1st accused) filed a Notice of Appeal on 7th May, 2010 challenging the judgment on four grounds. There is no evidence that Eteyen Okon Effiong (2nd accused) appealed against the decision of the learned trial Judge. A brief of argument was filed on behalf of the appellant on 8th December, 2011. Respondent’s brief was filed on 6th March, 2012 with a deeming order on 23rd April, 2012. Upon being served, the learned Counsel to the appellant filed a Reply Brief on 7th May, 2012. All the briefs were adopted by Counsel when the appeal came up for hearing on 12th June, 2012.

ISSUES FOR DETERMINATION

The appellant’s learned counsel set out the following issues for determination in the Brief of Argument:

“1. Whether the Tribunal below was not wrong in rejecting the defence of alibi raised by the Appellant even when same was not investigated? (Distilled from ground 1).

2. Whether the trial Tribunal was not wrong in holding that the onus was on the Appellant to tender statements made to the police by a victim of the alleged crime? (Distilled from ground 2).
3. Whether the Tribunal below was right in holding that the accused person was positively identified as one of the robbers having regard to the irregularities that attended the identification parade? (Distilled from ground 3).”

The following issues were submitted for determination by the Respondent’s learned Counsel:

“1. Whether the Tribunal below was wrong in rejecting the defence of alibi raised by the Appellant.