Raphael Nwabueze & Ors V. The State (1988)

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KAWU, J.S.C.

The appellants, together with a fourth accused person were arraigned before the High Court of Imo State, Orlu Judicial Division and jointly charged with the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Fire-arms (Special Provisions) Act, 1970. They all pleaded not guilty to the charge.

At the trial before Johnson, J., seven witnesses gave evidence for the Prosecution while each accused person testified on his or her behalf but called no witness. At the conclusion of the hearing, after evaluating all the evidence adduced, the learned trial Judge convicted the appellants and sentenced them to death. The fourth accused was, however, acquitted and discharged.

The appellants appealed to the Court of Appeal, Enugu Judicial Division, which court, on 30th day of January, 1987 dismissed their appeal. They have now appealed to this Court. I will deal with the appeal of the 1st and 3rd appellants first before considering that of the 2nd appellant.

The 1st and 3rd appellants filed two grounds of appeal each, which are very similar and which without the particulars are as follows:-

“(1) The learned Justices of the Appeal Court erred in law in affirming the conviction and sentence of the appellant, when on the evidence disclosed his defence of alibi was not satisfactorily disproved by the prosecution.

(2) The Justices of the Appeal Court erred in law in affirming the said conviction and sentence when the identity of the appellant in the offence alleged was not conclusively or satisfactorily established.”

In the brief of argument filed on behalf of 1st and 3rd appellants, two issues were formulated for determination in this appeal and they are as follows:-

“(i) Was the Court of Appeal right in upholding the findings and conclusion of the trial court, having regard to the defences of alibi raised by the appellants, none of which was either effectively challenged or disproved by the prosecution

(ii) Was the identity of the appellants in the offence alleged established beyond reasonable doubt as will render them liable to the confirmation of their conviction and sentence”

In his own brief, counsel for the respondent formulated three issues for determination as follows:

“Having regard to the nature of evidence before the trial court,

(i) was the finding of facts by the trial court justified as to warrant the Court of Appeal upholding it.

(ii) whether the substance of the alibi set up by the appellants was sufficiently defined to warrant police investigation and therefore avail the appellants as a defence, and