Albert Ikem V. The State (1985)

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G. KARIBI-WHYTE, J.S.C.

I have had a preview of the judgment of the Chief Justice of Nigeria in this appeal. I am in total agreement with the reasoning and conclusions that the appeal be allowed. I wish merely to add my own views in concurrence.

On the 19th May, 1983, Albert Ikem, hereinafter referred to as the appellant was convicted of the offences of conspiracy and Robbery with arms contrary to S.3A(b) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended by S. 20 of the Robbery and Firearms (Special Provisions)(Amendment) Act No. 48 of 1971 and S.1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 and sentenced to death by the Bendel State High Court sitting at Asaba. His appeal to the Court of Appeal Division, Benin City was dismissed on the 19th day of March, 1984. This is an appeal from that judgment.

Appellant was charged in the first count with the offence of conspiracy to commit robbery with firearms, contrary to S.3A(b) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended by section 2 of the Robbery and Firearms (Special Provisions) (Amendment) Act No. 48 of 1971: In the second count he was charged with Armed Robbery, punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970.

The offence was alleged to have been committed on or about the 2nd April, 1981 at Asaba/Onitsha road near Bridge Head. The facts as can be gathered from the evidence of the first and 2nd prosecution witnesses, who were the complainants, and the appellant and his witness, was that the PW1 and PW2. were on their way back to Onitsha from Asaba at about 8 p.m. on the 2nd April, 1981. when they were flagged to stop by a torchlight waving person. According to PW1, two men in civilian clothes emerged, and ordered them to surrender all they had with them and in the vehicle. PW1 was sitting in the front seat with the PW2. the driver, who was so frightened, that he Jumped out of the vehicle and ran away.

PW1 was then searched by one of the robbers and his money from his pocket taken from him. The robbers then escaped into the bush nearby. PW2’s evidence was that he did not run away, it was when he attempted to do so that he was ordered to come out of the vehicle and to surrender all he had in his possession. He told one of the robbers that he had nothing. After searching his pockets and finding nothing, he was slapped, his shirt torn and the robbers ran into the bush. PW1, said that one of the robbers i.e. the accused, dipped his hand into PW1’s pocket and removed his money, and both robbers disappeared. Whilst the PW1 said that the accused, now appellant, held a dagger in his hand, and that was what frightened him, PW2 said both robbers were holding guns, and he was able to see this because he pointed the light of the vehicle at them and saw their faces. This is the account of the incident of the robbery by the two complainants actually affected.

The second part concerned the report to the Police by PW1 and PW2, and the actual apprehension of the appellant. From the accounts of the complainants, i.e. PW1 and PW2, the robbers ran away after robbing them.

After reporting the incident to the Police, complainants were given armed policemen to return to the scene of the incident in the vehicle in which the complainants were robbed. PW1’s evidence was that he came out on reaching the scene, and was walking along the road, when again he saw a torchlight flash. He continued walking towards the direction from which the light came and met the appellant. He enquired from appellant whether appellant could direct him to where he, PW1, could buy fuel for his vehicle. Appellant insisted on being given the registration number of PW1’s vehicle before he could be of assistance. PW1 said that this excited his suspicion and made him look at appellant closely and he thereupon recognised him as the man who had robbed him of his money. PW1 then invited the Police who were all the time waiting in the vehicle and showed appellant to them as one of the robbers who had robbed them that night. Appellant was then arrested and taken to the Police Station.

In his evidence, PW2, said that appellant was one of the robbers who robbed them with guns; although he admitted that the man who slapped him was not appellant but the man at large. The evidence in court of PW3 and PW4 who were the Police Officers to whom PW1 and PW2 complained after the incident, and who accompanied them to the alleged scene and subsequent apprehension of appellant is worth examining.

PW3 said in his evidence that PW1 showed him a torchlight which PW1 removed from one of the robbers, and appellant on being confronted admitted that the torchlight belonged to him, PW4 in his evidence said, he saw appellant with a torchlight at the time he was arrested. Both PW3 and PW4 said that on search after the arrest appellant had N20 in cash on him. PW3 and PW4 accompanied PW1 and PW2 to the alleged scene of the robbery. PW5 who investigated the offence stated in evidence that appellant was referred to him with a torch and N20. These were tendered and marked Exhibits “A” and “A1”, respectively.

In his evidence appellant denied the charge and stated that he lived at Bridge head Camp, Asaba, and that he was a trader in petrol, gas and motor oil. He was at home eating at about 9 p.m. when a car stopped on the opposite side of the road, and someone from the car carne out to his premises to enquire whether he had petrol to sell. He said he had, but since the vehicle of the enquirer, who was PW1, was on the opposite side of the road, PW1 required a container. Appellant was prepared to give PW1 a container if PW1 would pay for it. Appellant asked for the registration number of PW1’s vehicle, and when PW1 was unwilling to disclose, appellant’s left him in annoyance and advised PW1 to go to DW1, appellant’s neighbour, to buy the fuel. When DW1 came out, PW1, then told appellant and DW1, that he had been robbed along the road. As they were discussing the information PW3 and PW4 came out from the vehicle PW1 came with, and PW1 pointed to appellant as the man who had robbed him. Appellant was at this time holding a torchlight which he usually had at night and N20 in cash made up of 2 N5 and 10 N1 currency notes. Appellant’s evidence was corroborated entirely by the evidence of his only witness, DW1. The evidence of the defence was in sum that the first time he ever saw PW1 was at about 9 a.m. and he had with him a torchlight and N20 eash in money. That PW1 was asking to buy fuel.

Very summarily stated, evidence of the prosecution was that PW1 and PW2 were flagged down at about 8 p.m. by a torchlight flashing robber, and were robbed of PW1’s money by one of the two robbers who immediately after escaped into the bush. PW2 was slapped, his shirt torn, and both PW1 and PW2 went to the Police Station to report the incident. There PW1 handed over to the Policeman on duty a torchlight he recovered from one of the robbers. PW1 in his evidence stated that when confronted PW2 got out of the car and escaped. PW2 said he did not, and that he was present throughout the incident.

The learned trial Judge rejected the defence of the appellant having disbelieved the evidence of appellant and his witness. He believed and accepted the evidence of the prosecution and found that the prosecution has proved the case against appellant beyond reasonable doubt, convicted him and sentenced him to death.

Appellant appealed to the Court of Appeal, on four grounds, of error in law that the offence was proved, and misdirection’s in law and fact for regarding the failure to mention the amount of money lost as immaterial, and failure to consider contradictions in the evidence of PW2 and PW1. Ground 4 is the omnibus ground. The Court of Appeal dismissed the appeal and all the grounds of appeal filed. This appeal is against the judgment of the Court of Appeal. Originally two grounds of appeal were filed. With leave of this Court, H.A. Lardner, SAN., filed two additional grounds of appeal. The original grounds of appeal were withdrawn and were accordingly struck out. One the two additional grounds of appeal were argued before us. They are as follows –