Victor Essien Victor V. The State (2009)

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JEAN OMOKRI, J.C.A.

This is an appeal against the decision of Justice Enefiok Udoh sitting at the High Court of Justice, Eket Judicial Division of Akwa Ibom State, in charge No. HEK/7C/2002 delivered on 27/7/2006.

The facts of this case are that the appellant Victor Essien Victor and three others were alleged to have broken into and entered No. 1 Bassey Ekanem Street Eket on the 22/6/2001 and robbed the residents thereat of their properties and money while armed with guns, matches and other offensive weapons. They also beat up the victims. The appellant and the other three co-accused persons were arrested and arraigned before the Court for the offence of armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398, volume 22, Laws of the Federation of Nigeria, 1990. Four witnesses testified for the prosecution in support of the charge. The appellant testified on his own behalf and called no witness. At the conclusion of hearing, the learned trial Judge found the appellant and the 2nd accused guilty, convicted them and sentenced them to death. The 3rd and 4th accused persons were discharged and acquitted.

Aggrieved by the decision of the trial court, the appellant appealed to this Court on four grounds subscribed in his notice of appeal filed on 9/9/2008, but deemed properly filed by this Court on 14/01/2009. In his brief of argument dated 27/1/2009 and filed on 28/1/09, the appellant distilled two issues for determination from the four grounds of appeal.

The issues are as follows:-

1. Whether from the totality of evidence before the trial Court the prosecution had proved the charge of armed robbery against the appellant beyond reasonable doubt.

2. Whether the testimonies of tainted witnesses can be used without caution as part of the evidence to convict.

Issue No. 1 is distilled form grounds 1, 3 and 4 of the Notice of Appeal while issue No.2 is distilled from Ground 2.

The respondent in his brief of argument dated on 23/2/2009 and filed on 24/2/2009 formulated only one issue for determination. This issue is as follows:-

1. Whether the conviction of the appellant herein by the learned trial Judge was proper in the circumstances of this case and having regards to the evidence led at the trial court.

The appellant did not file a reply brief. The appellant’s brief was settled by Chief Orok Ironbar. At the hearing of the appeal, Miss Ene argued the appeal and took the two issues together. She referred to Section, 138 (1) of the Evidence Act Cap E. 14, Laws of the Federation of Nigeria, 2004 and the cases of Bakare v. State (1987) 1 NWLR (Pt. 52) 579 and Odili v. State (2005) 1 NCC 143 at 765 and submitted that the prosecution must prove the charge against the appellant beyond reasonable doubt. Learned counsel submitted that the appellant made three statements to the police on 22/6/2001, 4/7/2001 and 18/7/2001 but the police only tendered the statement made on the 22/6/2001 and left out the other two. She contended that the prosecution was obliged to tender all the statements made by the appellant as was held in Okere v. State (2001) FNLR (Pt. 70) 1652. She then submitted that by refusing to tender the other statements, the prosecution knew that tendering same would have tilted the scale in favour of the appellant and that by Section 149 (d) of the Evidence Act Cap F. 14, L. F. N. 2004, there is a presumption that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it. She relied on R vs. Subramanian (1934) 25 CR. App R. 109 and concluded that the prosecution under our law owes a duty to the court to present all relevant facts and evidence available to them before the court, whether favourable or unfavourable.

Miss Ene submitted that from the statement made on 22/6/2001, the appellant raised the defence of alibi but the police did not investigate it.

She then submitted that failure to investigate and disprove the alibi is fatal to the case of the prosecution. She relied on Dagaya v. State (2005) N.C.C. 532 at 534, Ukers Iina v. State (2003) FWLR (Pt. 137) F 719. George v. State (2009) NWLR (Pt. 1122) 325, Aigworeghian v. State (2004) 3 JSC 77.

Learned counsel further submitted that the prosecution did not put enough convincing material before the Court to show that the alleged armed robbery actually occurred. She was of the view that the IPO testified that he visited the scene of crime and saw the damaged door of the house and window belonging to PW1’s neighbour yet he did not tender any part of the broken door or window nor a photograph of the scene in the Court, to prove that the robbers made forceful entry into the apartment as claimed by the complainants. She also pointed out that PW1’s wife who owned the bulk of the money allegedly stolen and was present during the alleged robbery neither made statement nor testified in the case. Counsel relied on Onah v. State (1985) 3 NWLR (Pt. 12) 233 and submitted that although the prosecution has the discretion to call whichever witnesses it considers necessary, its failure to call very vital witnesses whose evidence may determine the case one way or the other, is fatal to the case because it would be presumed in line with Section 149 (d) of the Evidence Act, that had the witness been called, her evidence would have been unfavourable to the case of the prosecution. Counsel contended that PW1 did not describe the clothes the appellant wore at the scene of the robbery. He relied on Abdullahi v. State (2008) 17NWLR (Pt. 1115) 203 at 216 on this point.