Dan Sunday Udoh V. The State (2009)

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KUMAI BAYANG AKAAHA, J.C.A

 On 2nd May, 2001, Mrs. Felicia Bassey, a Police Inspector, reported that about 0300hrs of the same date robbers broke into her house at No. 97 Ndidem Iso Road, Calabar and at gun point robbed her and her family members of sums of money and other valuables.

In the course of investigation the Police arrested some suspects including the appellant and three other people. At the close of the investigation three of the accused persons were charged with the offence of armed robbery including the appellant who was the 2nd accused, while one person was charged with receiving stolen property. The charge read as follows:-

STATEMENT OF OFFENCE

ARMED ROBBERY contrary to Section 1(2)(a) Robbery and Firearms (Special Provisions) Act Cap. 398, Vol. XXII Laws of the Federation of Nigeria 1990.

PARTICULARS OF OFFENCE

MICHAEL EFFIONG IKA, DAN SUNDAY UDOH, EKONG EKONG on the 2nd of May, 2001 at about 3.00a.m at No. 97 Ndidem Usang Iso, Calabar in Calabar Judicial Division broke into the dwelling of one W/Sgt. Felicia Bassey and robbed her of her household properties.

STATEMENT OF OFFENCE

RECEIVING STOLEN PROPERTY, contrary to Section 427 of the Criminal Code Cap 31 Vol. II Laws of Cross River State.

PARTICULARS OF OFFENCE

ARIT BASSEY EKANEM on the 2nd of May, 2001 at about 3.00a.m at NO.2, Orok Street, Calabar, in Calabar Judicial Division was found to be in possession of goods known to have been stolen.

Subsequently the name of Ekong Ekong the 4th accused was struck out because he was reported dead. At the close of the prosecution case, learned counsel for the accused made a no case submission on their behalf. The trial court upheld the defence counsel’s submission in favour of the 3rd accused and found that no prima facie case of receiving stolen property was made out against her and consequently discharged and acquitted the 3rd accused. The no case submission made on behalf of the 1st and 2nd accused was overruled and the trial court ordered them to enter their defence. The two accused testified and called a witness each. The 1st accused testified as DW1 while his father testified as DW2. The 2nd accused gave evidence as DW3 while his senior brother testified as DW4. All the defence witnesses were cross-examined. At the close of the case of both the prosecution and defence, the learned trial Judge in a reserved judgment, delivered on 25th day of July, 2008 found the two accused guilty of the offence of armed robbery. He thereby sentenced the 1st accused to death by hanging. In respect of the 2nd accused, he found that he was 16 years of age when he committed the offence of armed robbery and thereby invoked the provisions of Section 368 (3) Criminal Procedure Law and ordered him to be detained at the Governor’s pleasure. The two accused felt dissatisfied with their conviction and appealed against it.

The 2nd appellant’s Notice of Appeal No. CA/C/170/08 which contains 7 grounds of appeal is dated 24th September, 2008 from which the appellant’s counsel Nta A. Nta formulated six issues for determination:

1. Whether or not the Honourable trial Judge was entitled to raise suo motu in his judgment the question of the error or defect in stating the charge and proceed to resolve the issue against the accused/appellant without calling upon both counsel to address him on the said defect in the charge. Ground 1.

2. Whether or not the Appellant’s Statement Exh. ‘B’ was unequivocal as to the guilt of the accused/appellant when the accused/appellant never admitted the commission of any offence, and there was nothing outside the statement to corroborate Exh. ‘B’ Ground 2.

3. Whether or not the learned trial Judge acted properly in law when he convicted the accused/appellant of armed robbery when the charge brought against him did not state that he was armed with any firearm or offensive weapon? Grounds 3 and 4.

4. Whether or not having rejected the PW1’s evidence on identification as unreliable, the learned trial Judge could subsequently utilize the same PW1’s evidence to find and hold that it was accused/appellant who robbed PW1?

Ground 5

5. Was the learned trial judge acting in accordance with the law when he held that the accused person had identified himself in Exhibit “B’ a statement made to the police that was neither clear nor unqualified and therefore not a confessional statement? Ground 6.

6. With the doubtful evidence of identification and failure to evaluate Exh. ‘B’ was the judgment of Honourable Justice E. E. Ita not unreasonable and unwarranted and therefore justifying the quashing of the conviction and sentence? Ground 7.

The respondent on its part formulated three issues for determination which are:

1. Whether the learned trial Judge was entitled in law to raise and resolve suo motu the issue of the defect in the charge and proceeded (sic) to convict the accused/appellant on it.

Covers grounds 1, 3 and 4.

2. Whether the lower court was right in relying on the confessional statement of the accused/appellant Exh. ‘B’ in finding him guilty of the charge of armed robbery. Covers grounds 2 and 6.

3. Whether having found PW1 evidence on the issue of identification of the appellant as unreliable, the trial court was right to utilize the same PW1 evidence and hold that Appellant robbed PW1. Covers Ground 5.

The appellant and Michael Effiong Ika were tried together for armed robbery under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990. They were both convicted and each of them appealed. The appeal filed by Michael Effiong Ika is appeal No. CA/C/169/2009 while the appeal by Dan Sunday Udo bears appeal No. CA/C/170/2008. The appellants were represented by Nta A. Nta who prepared two records. I have already dealt extensively with the issues raised in Appeal No. CA/C/169/2008 and judgment in the appeal was delivered yesterday, 25th March, 2009. The resolution of the issues in appeal No. CA/C/169/2008 apply mutatis mutandis to Appeal No. CA/C/170/2008. Where reference is made to Exhs. ‘A’ and ‘F’ they should be substituted therefor with Exh. ‘B’.

PW4 said it was the 2nd accused statement that led him to arrest the 1st accused and when the prosecution sought to tender the statement of the 2nd accused there was no objection raised and the statement was admitted as Exh. ‘B’. It was in Exh. ‘B’ that the appellant stated that he was together with Michael Effiong Ika alias Akim, Udoette alias Odim-Inyang, Effiong Inyang and two other boys and when they went to the residence of the woman police, Michael Effiong Ika and himself stayed outside. He mentioned that he was not armed but Udoette carried a locally made gun while others carried matchets. He later testified in his own defence as DW3 where he stated that following the news that his father had been arrested by the Police, he went with his senior brother to SCID where he was told the Police were looking for him. The Police asked him whether he knew anything about the properties of PW1 and he said he knew nothing about it. He was then arrested and beaten up since he refused to admit knowledge of the stealing. The Police tied his hands and hung him on a fan with his head facing downwards. One policeman by name Umo used a big knife to stab him on the head and the knife left a scar on the head. Another one called Silas shot him three times on the leg and demanded N40,000.00 for his bail. His father offered N20,000.00 which was refused. He denied signing Exhibit ‘B’ nor did he tell the police what was recorded in Exh. ‘B’. He denied ever making any statement to the police. He said he was a student of St. Patrick’s College at the time he was arrested. He said he was born in 1985. In 2001, he was 16 years old but at the time he testified he was 21 years old.

Under cross-examination he said he was not taken to hospital but the injuries inflicted on him healed by themselves.

Exhibit ‘B’ was not made as a result of the alleged torture and so a trial within trial could not be conducted to determine its admissibility. Furthermore the accused denied making any statement at all or even signing one.

In his evaluation of the evidence called by the prosecution, the learned trial Judge found that there was a robbery at No. 97 Ndidem Iso Road, Calabar ,on the night of 1st May, 2001 breaking day into 2nd May, 2001.

I dealt with the evidence of PW1 as regards whether the accused were armed with firearms or offensive weapons or were in company of a person so armed in CA/C/169/2008. The appellant in the instant case admitted being in company of a person who was armed with a locally made gun while others carried matchets when they went to steal.

On this score the offence of robbery with firearms or offensive weapons or in the company of a person so armed laid under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria has been proved against the appellant since liability for the confession attaches to him alone and cannot affect those jointly charged with him. See Section 27(3) Evidence Act; MUMUNI v STATE (1975) 6 SC 66 at 88; IKEMSON v STATE (1989) 3 NWLR (Pt. 110) 455 at 476 and DURUGO v STATE (1992) 7 NWLR (Pt. 255) 525 at 541. The evidence of PW1 is unnecessary to corroborate this fact even if the issue of approbating and reprobating her evidence did not arise.

The learned trial Judge invoked Section 368(3) of the CPL to order that the appellant, who was 16years of age at the time of the robbery, be detained during the Governor’s pleasure, since he could not pass the death sentence on him. There is nothing wrong in the order so made.

I find no merit in the appeal and I accordingly dismiss it. It is indeed sad, that the appellant who should have been in school or engage in some apprenticeship to learn a trade, chose instead to associate himself with criminals. It is hope that the Governor of Cross River State will at the appropriate time grant him pardon and order for his release and try to rehabilitate him by encouraging him to learn a trade.

The appeal be and is hereby dismissed

Other Citations: (2009)LCN/3165(CA)