Utto V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C. 

Appellant together with three other persons were alleged to have robbed Esman Fazubazic (PW2) of the sum of N2,000.00 and a Nokia 7250 mobile phone valued at N60,000.00 while armed with a gun. The incident took place at about 8 am on 4th April, 2004 at Pyramid Hotel and Conference Centre, Calabar. PW2 was at the material time, a guest at Pyramid Hotel and occupied room 205. At about 7.30 am on 4th April, 2004, the day of the robbery, PW2 left his hotel room to meet with his workers downstairs and returned to his room after the meeting which lasted approximately twenty minutes. Shortly after, PW2 had a knock on the door and sought to know who was at the door and a voice retorted housekeeper. PW2 opened the door and was confronted by a man wielding a gun.

The man pushed PW2 to the ground and told him to lie on the floor then a second man entered the room and tied PW2’s hands behind his back. Both attackers asked PW2 for money. PW2 told them that he had some money in his pocket the men hurriedly searched PW2’s room for about 5 minutes after which they took PW2 into the bathroom and told him to lie face down on the floor. From the bathroom, PW2 sighted a third man outside the door of his room. As soon as the robbers left, PW2 untied his hands and he immediately ran to the balcony of his room from where he saw his attackers walking out of the hotel premises, he raised an alarm which caught the attention of the hotel security.

On hearing the alarm, the robbers took to their heels but were hotly chased by the hotel security. In the course of the pursuit, PW3 – John Ekereobong Effiong, one of the hotel security staff purportedly heard his colleague, Okoi Arikpo, PW5 call the name of the Appellant. The Appellant was arrested a few days later at Ugep, along with the co-accused persons.

The accused persons were arraigned and tried on an information containing a charge of armed robbery contrary to Sections 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act.

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At the trial, the prosecution called 6 (six) witnesses and tendered ten (10) exhibits. In his defence, the Appellant raised the defence of alibi and did not call any witnesses. At the conclusion of the trial, the learned trial Judge in a judgment delivered on 23rd June, 2008 found all the accused persons guilty and sentenced them to death by hanging.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the lower Court via a Notice of Appeal filed on 20th June, 2014 containing five grounds of appeal. The appeal was heard and judgment delivered on 13th May, 2015, whereat the lower Court affirmed the decision of the trial Court and dismissed the appeal.

The Appellant being dissatisfied with the judgment of the lower Court filed a notice of appeal on the 14/7/2015. The Appellant amended brief of argument was filed on the 6/11/2018 while the Respondent’s brief of argument was filed on the 12/1/2019 but was deemed properly filed on 09/05/2019.

The parties adopted and relied on their respective brief of argument at the hearing of the appeal.

From the five (5) grounds of appeal, the following four (4) issues are distilled for determination:

“1. Were the Justices of the Court below right to affirm the trial Court’s finding that Exhibits B and B1, the Appellant’s statement to the police were confessions notwithstanding the Appellant’s vehement denial in the statements that he participated in the armed robbery? (“improper treatment of statements issue”) Ground 1

2. In view of the unchallenged evidence of the Appellant that he was at Ugep on the day the armed robbery took place, did alibi not avail the Appellant as a defence in the circumstance. (Alibi issue) Ground 2
3. Is this not a proper case for the conduct of an identification parade especially against the backdrop of the conflict in the evidence of the prosecution witnesses regarding the identity of the Appellant? (“Identification evidence issue”) Ground 3
4. Whether, on the totality of the evidence adduced at the trial, the Court below was right to confirm that the prosecution proved the guilt of the Appellant beyond reasonable doubt? (“Proof beyond reasonable doubt issue”) Grounds 4 and 5.

The Respondent adopted the issues for determination as raised in the Appellant’s amended brief of argument.

APPELLANT’S SUBMISSION