SUNDAY OKODUWA & ORS v. THE STATE

A. NNAMANI, J.S.C. (Delivering the Leading Judgment): This case was originally fixed for judgment on 10th March, 1988. On that date, it seemed to the Court that it was necessary to take further address by Counsel on the consequential order the Court ought to make in the event of the appeal being allowed.
Further argument was taken on 14th April, 1988. At the end of that argument, and having previously read the record of proceedings, the briefs filed by counsel as well as the earlier addresses of counsel, I allowed the appeal, set aside the judgments of the High Court and the Court of Appeal. I ordered that the Appellants be tried before another Judge of the High Court of Bendel State. I indicated that I would give my reasons for this judgment on 29th April, 1988. I now give my reasons.
In suit No. U/9C.81 at the High Court of Bendel State, UBIAJA Judicial Division, the Appellants, Sunday Okoduwa, Patience Aghamelo, Patrick Ogun, Anthony Ugboke, Augustine Oboh, Anthony Usman Gogo and Kennedy Iyinbor were charged with the following offence:-
“Robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree, No. 47 of 1970.
Particulars of Offence
Sunday Okoduwa……………………………………
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on or about the 20th day of May, 1980, at Uromi in the Ubiaja Judicial Division robbed one Madam Abiba Yayah of the sum of N9,794.00 cash, coral beads worth N46,000 and Gold Trinkets worth about N7,000 and at the time of the robbery you were armed with offensive weapons to wit guns and axes”
At the trial before Ohiwerei, J. 10 witnesses testified for the prosecution. These included the complainant who testified as P.W.6 and her son who testified as P.W.2. The Accused persons gave evidence and some of them called witnesses. Their defence was mainly alibi. At the close of the trial, the learned trial Judge found 6 accused persons, Appellants herein, guilty and sentenced them to death by the firing squad or hanging. An appeal to the Court of Appeal, Benin Judicial Division, was unsuccessful hence the appeal to this Court. All the Appellants filed grounds of appeal which must have been drawn up with the assistance of Prison Officials. However, on the 23rd October, 1987, learned counsel for the Appellants, Mr. B. Olaogun obtained leave of this Court to file and argue additional grounds of appeal.
Two additional grounds of appeal were filed in favour of 2nd Appellant, 2 in favour of 3rd Appellant, and 3 in favour of all the Appellants. Both Mr. Olaogun, and Mr. Edokpayi, learned counsel to the Respondent filed well written briefs of argument for which I must commend both counsel.
In his brief of argument, learned counsel to the Appellants, Mr. Olaogun, identified 6 issues for determination in this appeal. These were –
“1. Were the findings of fact made by the trial Judge and the subsequent affirmation of such finding by the Court of Appeal perverse?
2. Were the defences of alibi put up by the Appellants properly rejected by the trial Court?
3. Did the Appellants offer any defence which the trial Court and the Court of Appeal failed to consider and were the Appellants, properly convicted?
4. Was any defence disclosed by the record which the trial Judge and the Justices of the Court of Appeal failed to consider?
5. Were the Appellants given or denied fair hearing by the trial Judge and/or the Justices of the Court of Appeal?
6. Was the unequivocal affirmation of the Appellants conviction and sentence by the Court of Appeal justifiable in the circumstances of this case?”
The Respondent’s brief has set the issues for determination more concisely, and for the purposes of this appeal only one issue there is relevant. This was-
“Whether the defence of alibi raised by each of the six appellants was adequately and rightly rejected by both the learned trial Judge at Ubiaja and their Lordships in the Court of Appeal”
Both learned Counsel addressed the Court in amplification of their brief. Mr. Olaogun, in oral argument, referred to Exhibit P, the statement of 2nd Appellant to the Police in which her age was recorded as 14 years and also to her testimony at p.107 lines 16-17. He next referred to the alibi raised by the 2nd Appellant in her statement to the Police. He contended that this alibi was never checked by Sgt. Atafo P.W.4 before handing over the case to Sgt. Iyoro. He claimed the 2nd Appellant showed the room where she slept with her uncle on the fateful night. He also complained that, although the Police took statements from the father and mother of the 2nd Appellant, they never called them to give evidence. Mr. Olaogun then concentrated on the manner the learned trial Judge handled the trial referring the Court to portions of the Record where the learned trial Judge in his contention descended into the arena by indulging in extensive cross-examination of defence witnesses, or even cross-examining witnesses not cross-examined by learned Director of Public Prosecutions’ of Bendel State who represented the State. He referred the Court to the cases of David Uso v. Commissioner of Police (1972) 11 S.C. 37 and Yuill v. Yuill (1945) 1 All E.R. 183.
In his address, Mr. Edokpayi concentrated on the issue of discharge or retrial of the Appellants following hints dropped by the Court. He submitted that this was a proper case for remitting to the High Court for trial by another High Court Judge. He conceded that the Appellants had been in custody for over 7 years from May 1980. He addressed the Court too on the manner the learned trial Judge handled the trial. He referred the Court to pp.61, 66 and 69 of the record as to the issue of Contempt of Court.
It seems to me that this appeal can be disposed of only by considering additional ground 2 of the grounds of appeal which Mr. Olaogun argued in his brief of argument at length on behalf of all the Appellants. That ground complained that –
“The learned Justices of the Court of Appeal erred in law and on the facts in affirming the conviction and sentence of death passed on each of the Appellants when there is glaring evidence that the Appellants were not given fair hearing.