Sunday Ndidi V. The State (2007)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

The appeal here is against the judgment of the Court of Appeal, Benin Judicial Division delivered on the 4th of March 2005 upholding the conviction and sentence of death passed by the High Court of Delta State, Agbor Judicial Division on the 28th of November 2001.

The appellant had been charged before the High Court sitting at Agbor with a three-count charge of conspiracy and armed robbery under sections 1(2)(a) and 4(b) of the Robbery and Firearms (Special Provisions) Decree 1984 as Amended. And the third count is the second charge of armed robbery committed against one Helen Onyeije.

To establish their case, the prosecution called five witnesses while the appellant personally gave evidence but called no witness. PW1, PW2 and PW3 were eye-witnesses called by the prosecution. In its judgment delivered on the 4th of March 2005 aforesaid, the High Court discharged and acquitted the appellant on count 3 but pronounced him as guilty on counts 1 and 2 and accordingly sentenced him to death by hanging.

Being dissatisfied with the judgment, the appellant appealed to the court below (Court of Appeal) after hearing the appeal, the court below, in a considered judgment delivered on the 4th of March 2005, dismissed the said appeal and affirmed the judgment of the court of trial. Again, being dissatisfied with the judgment of the court below, the appellant appealed to this court via a notice of appeal dated 7th April, 2005 with three grounds of appeal incorporated into it.

Distilled from the said three grounds of appeal and set out in the appellant’s brief of argument is only one issue which is in the following terms:

“Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant on the basis of the evidence PW1 only in the circumstances of this matter.”

The respondent identified two issues for determination and as set out in their brief of argument, they are as follows:-

“(1) Whether from the totality of the evidence on record, the lower court was right in affirming the conviction and sentence passed on the appellant for the offences of conspiracy to rob and armed robbery.

(2) Whether the appellant was properly identified as the person involved in the armed robbery committed against Mrs, Comfort Apokueze, PW1.”

When this appeal came to us for argument on the 15th of February 2007, Mr. Alegeh, learned counsel for the appellant referred to and adopted his client’s brief of argument dated 26th October 2005 and while urging that we should allow the appeal, he submitted that PW1’s testimony is not credible to warrant conviction, Mr. Ogbogu, Assistant Director, Ministry of Justice, Delta State for the respondent, also referred to and adopted his client’s brief deemed to have been properly filed on 15th February 2006 and urged that the appeal be dismissed.

I have carefully read the issues formulated by the parties; issue No. 1 on the appellant’s is materially similar to issue No 2 on the respondent’s brief, while issue No. 1 on the respondent’s brief dovetails into the other two issues afore-mentioned. I shall therefore take all of them together.

In his brief of argument, the appellant submitted that the conviction and sentence handed down to him were based solely on the evidence of PW1 – Comfort Apokueze – but went ahead to submit that there was no physical evidence linking him with the crime. The evidence of PW1, it was further argued, was not credible, cogent, compelling nor did it irresistibly point to his guilt. Evidence of identification is of no value as, according to him, it did not meet the required conditionalities laid down by the law: pieces of evidence adduced by PW1 were reviewed to buttress the argument while reliance was placed on the decision in Abudu v. State (1985) 1 NWLR (Pt. 1) 55; Mbenu v. State (1988) 3 NWLR (Pt.84) 615; Abodundu v. The Queen (1959) SCNLR 162 and Onubogu v. State (1974) 9 SC

1. It was also his argument that there being an eye witness to the commission of the crime in this case, question of alibi does not arise; it was conceded while the decision in Ntam v. State (1967) NSCC (Vol.5) 1, (1968) NMLR p. 86 was cited. Though the trial Judge reviewed the evidence in support of alibi as presented by the appellant and rejected same, it was submitted that the rejection of same would not make the evidence of PW1 credible. Referring to the evidence of PW 1 that she used a small lantern and that the alleged armed robbers made use of torchlight to pack her things points conclusively to the fact that there was no light at Abavo at that time of the night – 1 a.m.; judicial notice of the fact that it is always dark at that hour ought to have been taken; he further argued – this, it was finally argued on this point that doubt as to the credibility of the evidence of identification ought to have been created in the mind of the trial Judge; the court below, it was again argued, fell into that serious error in not appreciating the incalculable damage to justice which the evaluation of this crucial piece of evidence had done to the case. It was finally urged that this appeal be allowed, the judgments of the trial court and the court below be set aside while the conviction and sentence of the appellant be quashed.

On issue No.1 in the respondent’s brief, it was submitted that the case against the appellant which was that he committed the offence of armed robbery against PW1 on the 4th of January 2000 was proved beyond reasonable doubt. It was further argued that the findings of the trial Judge that at about 1 a.m. on 4th January 2000, armed robbers assaulted and robbed PW1 in her house were not appealed against; adding that the grounds of appeal were limited to the identification of the appellant by PW1 as one of the armed robbers. These findings can only be set aside by this court if there was an appeal against it: it was further argued while relying on the decision in Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298. It was again contended that credible evidence to sustain the appellant’s conviction was laid before the trial Judge: the trial court and the court below made concurrent findings of fact that there were ample and favourable circumstances from which PW1 could identify the appellant as one of the armed robbers who robbed her on the night of 4/1/2000: arguing further, the respondent submitted that the identification of the appellant by PW1 was at the earliest opportunity, the trial court was therefore right, in law, in believing the testimony of PW1 on the issue of identification citing in support the decision in Abudu v. The State (1985) 1 NWLR (Pt.1) 55. The defence of alibi raised by the appellant, it was argued, would not avail him here in that it was not raised promptly and properly prior to the trial, indeed, it was during the trial that the appellant raised it for the first time: the decision in Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt.763) 512 was relied upon for this submission. It was finally urged that this appeal be dismissed.