Happy Kingsley Idemudia V The State (2015)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin Judicial Division (herein called the lower court) delivered on the 19th day of January, 2011, affirming the judgment of the High Court, Delta State, Isiokolo Judicial Division, delivered on 19th day of June, 2008 in which the appellant was convicted of conspiracy to commit armed robbery and attempted armed robbery.

The brief facts of the case are that, the appellant was arraigned before the trial court upon a two (2) count charge of conspiracy to commit armed robbery and attempted armed robbery punishable under Section 1(2)(a) and Section 2(2)of the Robbery and Fire Arms (Special Provisions) Act Cap. 398 Vol. 221, LFN 1990.

The appellant pleaded not guilty to both counts. The case of the prosecution was that on or about the 21st day of February, 2006, the appellant in company of two others now at large, at Sanubi in the Isiokolo Judicial Division attempted to rob one Samuel Odorume (P.W. 2) of his money while armed with a gun.

In proof of its case, the prosecution called two witnesses while the appellant testified in his defence and called no witness. At the end of address by both counsels, appellant was found guilty on the two count charge and sentenced to 14 years imprisonment.

The appellant was dissatisfied with the judgment of the trial court and unsuccessfully appealed to the lower court, which dismissed his appeal and affirmed the decision of the trial court.

The appellant was again unhappy with the judgment of the lower court and is now before this court vide a notice of appeal filed on 3/6/2013 pursuant to the leave of this court granted on 24/4/2013. The notice contains two grounds of appeal. In accordance with the rules of court, briefs were exchanged between the parties. The appellant’s brief of argument was settled by one Ayo Asala, Esq of counsel and that of the respondent was by O. F. Enenmo, Deputy Director Public Prosecutions Delta State (MOJ) filed on the 12th August, 2013 and 7th November, 2013 respectively.

On the 16th April, 2015 when the appeal came up for hearing, both learned counsel adopted their respective briefs of arguments. While the counsel Mr. Asala urged that the appeal be allowed, Mr. Enenmo submitted on behalf of the respondent that same be dismissed as it lacks merit. The lone issue formulated by the appellant for determination reads as follows:-

Whether from the totality of the evidence on record, especially the evidence of P. W. 2 and the alibi raised by the appellant, the lower court was right in affirming the conviction of the appellant by the trial court for the offences of conspiracy to rob and attempted armed robbery

The respondent’s issue is in all respect a reproduction of the appellant’s.

In his submission to substantiate the issue raised, the counsel Mr. Asala, representing the appellant enumerated in detail the facts which are not in dispute or contention between the parties. It is the submission of counsel that both the concurrent findings of the trial court and the lower court are perverse and should be set aside; that it is wrong for the lower court to have affirmed the decision of the trial court in attaching credibility to the evidence of P.W.2 which identified the appellant as one of the persons that attacked him on 21/2/2006.

It is the submission of counsel further that where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence, a court must be careful in accepting his evidence given later and implicating the person or persons charged, unless a satisfactory explanation is given; that such delay makes the evidence of identity suspicious and reduces the true content of the evidence below acceptability and probative level.

In re-iterating his submission, the learned counsel submits also that a reading of the record will reveal very clearly that the offence that was investigated by the police in this case is different from that which the appellant was arraigned, tried and convicted. The counsel referred to the police investigation report prepared by P.W.1, the investigation police officer as contained at pages 14 to 17 of the record, especially the findings made by the police; that from the said findings, the complainant is one Solomon Erharhedjeke, while the offence that was investigated by (P.W.1) was house breaking and stealing.

Counsel submits that the lower court was in error when it held that the appellant’s alibi did not explain where he was at the specific time when the offence against P.W.2 was committed. It is a submission of counsel further, that the appellant, who was never confronted with the allegation of P.W.2 should not be expected to respond to the unknown; that despite the evidence of P.W. 2 that his wife was an eye witness to the incident, the prosecution did not deem it necessary to call the wife as a witness; that the court should in the circumstance apply caution therefore in relying on evidence of a single witness on identification. Counsel submits that the testimony of P.W.2 linking the appellant with the offence of conspiracy and attempted armed robbery is unreliable, lacks credibility and ought not to have been relied upon by the trial court also lower court in convicting the appellant.