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Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
OSARO NOMAYO-Appellant
AND
THE STATE-Respondent
…………………….A…………………….
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Benin Division or Court below or Lower Court, CORAM: Helen Moronikeji Ogunwumiju, Ayobode Olujimi Lokulo-Sodupe and Tom Shaibu Yakubu JJCA which affirmed the conviction of the appellant by the Edo State High Court.
FACTS BRIEFLY STATED
At the trial four witnesses testified for the prosecution while the appellant testified on his own behalf and called two witnesses.
On 9th March, 2004 at about 9.00pm, PW1 (Bola Akinsanya) was in her restaurant where she sold food. At the material time some of her customers and sales girls were with her. All of a sudden a vehicle stopped in front of her restaurant and three boys and a girl came out and entered her restaurant. PW1 saw a shot gun with one of the boys. The boy with the gun ordered those in the restaurant to lie down and they all obeyed. The robber with the gun, shot three times into the air. One of the robbers walked straight to PW1 and collected the sum of N19,520 from her. The robber also collected the sum of N540 from the sales girl called Kudirat.
Some of the customers were also robbed. The armed robbers later ran away. The following day at about 6.00am PW1 went to visit and thank her neighbours who assisted her the previous night. On her way she heard shouts of “thief, thief’. She found out that the thief was caught. On getting to the scene, PW1 identified the thief with red cap and shirt he had on when she was robbed and she identified him as one of those who robbed her of her money the previous night,
The appellant was arrested and tried on five count charge of conspiracy and Armed Robbery. The Appellant was found not guilty in counts III to v of the charge as the prosecution did not lead evidence in proof of the counts but was however found guilty on counts 1 and II of the charge. On the 8th day of March, 2018 date of hearing, learned counsel for the appellant, Emmanuel Achukwu Esq. adopted the brief of the appellant filed on 21st May, 2012 and he distilled a sole issue for determination which is thus:-
Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.
Learned Solicitor General of Edo State, Oluwole O. Iyamu Esq. and counsel for the respondent adopted its brief of argument filed on 22nd October, 2014 and deemed filed on 6th May, 2015. It adopted the single issue for determination formulated by the appellant.
The sole issue is apt in the determination of this appeal and I do not hesitate in utilising it.
SOLE ISSUE
Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.
Mr. Emmanuel Achukwu of counsel for the appellant contended that the decision of the learned justices of the Court below in the circumstances of this case is not correct. That the defence of alibi put forward by the appellant was not investigated and learned trial judge had not considered that fact which error the appellate Court went along with. That the conclusion of the Lower Court in view of the facts as borne out by the evidence adduced by the prosecution and defence is incorrect. That it must be borne in mind that in criminal cases especially armed robbery offences which carry death penalty, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He referred to Ozaki v The State (1990) 1 NWLR (Pt.124) 92 at 115; Ikem v The State (1985) 1 NWLR (Pt.2) 378; Section 135 Evidence Act 2011; Cyracus Ogidi & Ors v. The State (2005) 1 SCNJ 67 at 85-86.
Going further, learned counsel for the appellant observed that the PW1 did not state how she was able to identify the appellant as one of the robbers that night of the incident. He cited Sunday Ndidi v The State (2007) 41 WRN 1 at 15-16; (2007) SCNJ 274 at 287-288; Ochiba v State (2011) 17 NWLR (Pt.1277) 663 at 694-695; Abudu v State (1985) 1 NWLR (Pt.1) 55.
He stated that the evidence of PW2, Mathew Idugboe, member of the neighbourhood watchmen was pure hearsay evidence without a linkage between appellant and the alleged offence. Also suffering the same fate was the evidence of PW3 and PW4, Police Officers who obtained the statement and the one who re-arrested the appellant respectively. That their evidence left a gap which made it difficult for the prosecution to establish the offence beyond reasonable doubt. He relied on Umani v The State (1988) 1 NWLR (Pt.70) 274.
At the trial four witnesses testified for the prosecution while the appellant testified on his own behalf and called two witnesses.
On 9th March, 2004 at about 9.00pm, PW1 (Bola Akinsanya) was in her restaurant where she sold food. At the material time some of her customers and sales girls were with her. All of a sudden a vehicle stopped in front of her restaurant and three boys and a girl came out and entered her restaurant. PW1 saw a shot gun with one of the boys. The boy with the gun ordered those in the restaurant to lie down and they all obeyed. The robber with the gun, shot three times into the air. One of the robbers walked straight to PW1 and collected the sum of N19,520 from her. The robber also collected the sum of N540 from the sales girl called Kudirat.
Some of the customers were also robbed. The armed robbers later ran away. The following day at about 6.00am PW1 went to visit and thank her neighbours who assisted her the previous night. On her way she heard shouts of “thief, thief’. She found out that the thief was caught. On getting to the scene, PW1 identified the thief with red cap and shirt he had on when she was robbed and she identified him as one of those who robbed her of her money the previous night,
The appellant was arrested and tried on five count charge of conspiracy and Armed Robbery. The Appellant was found not guilty in counts III to v of the charge as the prosecution did not lead evidence in proof of the counts but was however found guilty on counts 1 and II of the charge. On the 8th day of March, 2018 date of hearing, learned counsel for the appellant, Emmanuel Achukwu Esq. adopted the brief of the appellant filed on 21st May, 2012 and he distilled a sole issue for determination which is thus:-
Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.
Learned Solicitor General of Edo State, Oluwole O. Iyamu Esq. and counsel for the respondent adopted its brief of argument filed on 22nd October, 2014 and deemed filed on 6th May, 2015. It adopted the single issue for determination formulated by the appellant.
The sole issue is apt in the determination of this appeal and I do not hesitate in utilising it.
SOLE ISSUE
Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.
Mr. Emmanuel Achukwu of counsel for the appellant contended that the decision of the learned justices of the Court below in the circumstances of this case is not correct. That the defence of alibi put forward by the appellant was not investigated and learned trial judge had not considered that fact which error the appellate Court went along with. That the conclusion of the Lower Court in view of the facts as borne out by the evidence adduced by the prosecution and defence is incorrect. That it must be borne in mind that in criminal cases especially armed robbery offences which carry death penalty, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He referred to Ozaki v The State (1990) 1 NWLR (Pt.124) 92 at 115; Ikem v The State (1985) 1 NWLR (Pt.2) 378; Section 135 Evidence Act 2011; Cyracus Ogidi & Ors v. The State (2005) 1 SCNJ 67 at 85-86.
Going further, learned counsel for the appellant observed that the PW1 did not state how she was able to identify the appellant as one of the robbers that night of the incident. He cited Sunday Ndidi v The State (2007) 41 WRN 1 at 15-16; (2007) SCNJ 274 at 287-288; Ochiba v State (2011) 17 NWLR (Pt.1277) 663 at 694-695; Abudu v State (1985) 1 NWLR (Pt.1) 55.
He stated that the evidence of PW2, Mathew Idugboe, member of the neighbourhood watchmen was pure hearsay evidence without a linkage between appellant and the alleged offence. Also suffering the same fate was the evidence of PW3 and PW4, Police Officers who obtained the statement and the one who re-arrested the appellant respectively. That their evidence left a gap which made it difficult for the prosecution to establish the offence beyond reasonable doubt. He relied on Umani v The State (1988) 1 NWLR (Pt.70) 274.
…………………….B…………………….
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