Victor Akpoyibo V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A.:(Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice W. O. Akanbi sitting at Ikire Judicial Division of Osun State High Court, delivered on Thursday, the 22nd day of July, 2010.

The accused, herein the appellant stood charged at the High Court, on a two-count charge of Armed Robbery contrary to section 1(1) and 2(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII, Laws of the Federation of Nigeria, 1990; and Attempted Armed Robbery, contrary to section 2(1) and (2a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII, Laws of the Federation of Nigeria, 1990.

It was the case of the prosecution (herein the respondent) that the appellant on 25th November, 2001 at about 8.00a.m. at Apomu Junction on Ibadan-Ife express road, while armed with an offensive weapon, to wit: a Kalashinicol rifle gun, robbed one Rasheed Folorunsho of the sum of N4,500.00k.

The appellant on his part denied being at the scene of the robbery at the time. He claimed that he was in his house from around 7.45am till he resumed work at the police station which was opposite his house around 8.40am on that day of the incident.

In an attempt to prove their respective cases, the respondent called two witnesses, while the appellant alone testified in his defence. In a considered judgment delivered 22nd July, 2010, the appellant was found guilty of the offence of armed robbery and was sentenced to death.

Being dissatisfied with his conviction and sentence to death, the appellant has appealed vide his Notice of Appeal dated and filed 28th July, 2010 containing 8 (eight) grounds of appeal from which counsel on his behalf has distilled the following two issues for determination of the appeal. The issues read thus:

1. Whether the appellant was denied fair hearing as enshrined in section 36(6) 1(b) of the Constitution of the Federal Republic of Nigeria, 1999. (Grounds 2, 3 and 5).
2. Whether the learned trial Judge was right to have held that the offence of armed robbery was proved against the appellant beyond reasonable doubts. (Grounds 1, 4, 5, 7 and 8).

The respondent adopted wholly the two issues raised for determination and thus the appeal shall be determined based on the foregoing two issues.

ISSUE 1 (ONE)

In arguing issue 1 (one) which is whether the appellant was denied fair hearing as enshrined in section 36(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to simply as the Constitution), the learned, counsel for the appellant relying on the said provision of the Constitution and the decision of this court in Uwazurike v. A.G. Federation (2008) 10 NWLR (Pt. 1096) C.A., submitted that the findings and judgment of the learned trial Judge are in flagrant violation of them.

Counsel went on to contend that the appellant denied being present at the scene at the time; also that the prosecution’s “star witness”/PW1 had earlier in his original complaint at Apomu Police station, recorded in the crime diary that the alleged crime was committed between the hours of 06hrs and 9.40hrs. See page 76, lines 1-19 of the record. Counsel submitted that the prosecution failed to produce the crime diary in issue in spite of the order granted by the trial court to compel the said prosecution to produce it. He contended that the production of that crime diary would have afforded the appellant the adequate facilities guaranteed him under section 36(6)(b) but which the prosecution denied him for no just cause. According to the learned counsel, the non-production of the said crime diaries had denied the appellant “adequate facilities” for his defence, and a fortiori, occasioned a denial of fair hearing to the said appellant. The learned counsel referred to The Longman Dictionary of Contemporary English, edited by Paul Procter 1978, at page 390 which defined “facilities” as means to do things; that which can be used.

Counsel argued that since the prosecutions were in possession of the said crime diaries and which they failed to produce that the learned trial Judge ought to have held that if such crime diaries had been produced their contents would have been unfavourable to the prosecution. Counsel relied on section 149(d) of the Evidence Act Cap. 112, LFN, 1990, as well as the cases of Ukpe v. State (2001) 18 WRN 84; and Emenegor (2010) All FWLR (Pt. 511) C. A. 884, 931, paras. F-G, 931 – 932, H-A.

Counsel not yet done on this aspect of non-production of the crime diary submitted that where the consideration of documentary evidence to resolve a relevant issue (the exact time the alleged armed robbery took place) in a case is principally involved, the demeanour of witnesses can hardly play any part. See Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238; and Ukpe v. The State (supra) page 113, lines 25-30 referred.

He argued further that the learned trial Judge was wrong to have made use of Exhibits H, H1, H2 and H3 which constitute “some documents” to the prosecution instead of insisting on strict compliance with the courts orders for production of crime diaries made 23rd February, 2009. Thus the learned trial Judge wrongly used his judicial authority to deny the appellant fair hearing because his findings based on such irrelevant documents were based on speculation. Counsel referred us to Isiaku Mohammed v. Kano Native Authority (1908) 1 All NLR 426 where it was stated that: