UDO AKPAN v. THE STATE

Oputa, J.S.C.-The appellant was in the court of first instance charged with two offences namely:-

1. Conspiracy to commit a felony punishable under Section 516 of the Criminal Code.

2. Robbery punishable under Section 402(2)(a) of the Criminal Code (Amendment No. 1) Law of 1980.

The prosecution called a total of six prosecution witnesses. The key prosecution witness was Marcus Imahe called as PW1. He was on 29/5/80 the driver of the Peugeot taxi cab No. LA.977SB. He was driving along Oshodi Mile 2 Express Road. On getting to Ijeshatedo Bus Stop at about 12.15 a.m. he was stopped by a man wearing mobile police uniform. This man demanded from him his particulars. These the PW1 surrendered. The policeman then demanded some money from PW1 who said he had only N5 on him. Apparently annoyed at the meagre sum of N5 the policeman cocked his gun, forced PW1 into the taxi. At this stage another police officer appeared. Both entered the taxi and asked PW1 to drive and keep driving until asked to stop. When PW1 stopped as requested the policeman in mobile police uniform went to a nearby house and came back with another man. The PW1 and all three entered the taxi and drove to Agunlejika Bus Stop. There the 1st policeman in mobile police uniform and his fellow officer beat up PW1 with horsewhip and the butt of the gun. The policeman wearing mobile police uniform was later identified by PW1 as the appellant in this Court. The appellant and his two companions left PW1 unconscious on the road-side and drove away in his taxi car. This car was later sold by the appellant to PW5, James Ejiogu, and PW6 Christopher Ofoegbu for N2,500. Both PW5 and PW6 identified the appellant as the person who sold the car to them.

The PW3 Sergeant No. 34795, Ibrahim Bakari, took part in the investigation of this case. The appellant volunteered a Statement to him in English which the appellant himself recorded in his own handwriting. The Statement was tendered as Ex. D. The appellant signed Ex. D and PW3 countersigned the same Ex. D. Seeing that Ex. D was, on the face of it, a confession, the PW3 took the appellant to a superior police officer, A.S.P. Stephen Adesoro, called as PW4. The appellant admitted to PW4 that Ex. D was his voluntary Statement. The A.S.P. Stephen Adesoro (PW4) then again endorsed Ex. D. This is the summary of the principal facts of this case.

The learned trial Judge in a long and very well considered judgment made at pp. 50/60 of the record of proceedings the following findings of fact:-

“I am satisfied from the foregoing accounts of events … and I hold as a fact that it was the accused while armed with an S.M.G. Rifle who stole the Peugeot 504 saloon car No. LA. 977SB from Marcus Imahe (PW1) … I am also satisfied and I hold as a fact that the accused sold the said vehicle to PW5 and PW6 for N2,500 … It is also clear to me from the evidence and I hold as a fact that the accused person at or immediately before the time of stealing the said vehicle used actual violence to PW1 thereby wounding PW1 on the neck, nose and head in order to obtain or to retain the said vehicle No. LA. 977SB Ex. B.”

…………………….B…………………….

How did the learned trial Judge deal with Ex. D, the confessional Statement of the appellant and his testimony in court retracting Ex. D? The learned trial Judge accepted the evidence of PW3 to whom Ex. D was made and that of PW4, the superior police officer before whom the appellant confirmed his making of Ex. D, and held at p. 52 of the record:-

“I am satisfied from the surrounding circumstances of this case in hand and I hold that the Statement is true.”

After considering the law relating to confessional statements especially the principles laid down by the English Court of Appeal in R. v. Sykes (1913)8 CR.App.R. 233 and by the West African Court of Appeal in Kanu v. The king (1952/55) 14 W.A.C.A. 30, the learned trial Judge found that Ex. D passed all the six tests formulated in the two cases mentioned above, and can therefore comfortably be regarded as a confessional statement. The trial Judge then continued at p. 53 of the record Lines 32-34:

“Accordingly it is my view that full weight and effect should be accorded to the confessional Statement (Ex. D).”

The trial Judge was of the view, and rightly too, that the appellant can even be convicted on Ex. D alone. But in this case there was in addition, the evidence of PW1, PW3, PW5 and PW6 all clearly, directly and circumstantially pointing to the guilt of the appellant. The learned trial Judge found the appellant guilty as charged and sentenced him to seven years imprisonment with hard labour on count one and to death by hanging on count two.

The appellant appealed to the Court of Appeal, Lagos Division coram Ademola, Nnaemeka-Agu and Kutigi, JJ.C.A. in that court counsel on both sides-for the appellant and for the respondent-agreed that there was nothing to urge in favour of the appellant. The Court of Appeal accordingly dismissed the appeal in a judgment of two and a half lines.

The appellant has finally appeared to this Court being the final Court of Appeal. His counsel, Chief Jibowu, filed and relied on his Brief. That Brief concluded on this note:-

“Having gone through the records proceedings, the judgment of the High Court and the Court of Appeal, it is clear that the verdicts of both courts were justified as there was overwhelming evidence against the appellant. There is also no redeeming feature where a mobile policeman who is supposed to prevent crime becomes a member of a robbery syndicate-a betrayal of trust indeed.

…………………….C…………………….

In the circumstances I cannot find anything useful to urge before this Honourable Court in favour of the appellant.”

I also agree that on reading the records and the well-considered judgment of Agoro, J., one must inevitably come to the conclusion that the conviction and sentence passed on the appellant did justice to the justice of this case. To have found otherwise would have been a rape of justice.

The appellant filed at p. 70 of the Record of Proceedings seven Grounds of Appeal. He did not file any ground against count one charging him conspiracy “with others now at large.” The issue whether such a charge is valid or invalid will therefore not arise. In any event, the sentence of death in count two will swallow up the seven years imprisonment with hard labour in count one and any argument on count one will be merely academic. Ex facie there is no substance in Grounds 2, 3, 4, 5, 6 and 7. What of Ground 1? What Ground reads:-

“1. That the learned trial Judge erred in law in convicting me to death, when he (judge) failed to grant an application to call my alibi; PW2; PW3; Cornelius Akpan and Mr A.E. Alieu; the D.P.O. Isolo Police State to give satisfactory account of my whereabouts during the date alleged to have committed the offence.”

If one ignores the inelegance of the above ground, it will no doubt be a serious matter if the appellant was not allowed to call witnesses to prove his alleged alibi. An accused relying on an alibi has a duty to let the police know at the earliest opportunity where and with whom he was at all the material times. This the appellant could have done in his Statement to the police. He did make a Statement tendered as Ex. D. There he confessed to this crime and gave a detailed description of what happened in Lagos, Calabar and finally Mbaise where he sold the car to PW5 and PW6. No alibi was or could have been suggested in Ex. D. Also in the trial court, the appellant was represented by counsel, Mr Adebayo Ariba. The record of proceedings covering the defence appears at pages 31 to 33. Nowhere in these pages can there be found any application by the appellant to call or recall any of the persons mentioned in Ground 1 of the Grounds of Appeal which was prepared by the appellant from his prison cell with the help probably of some unwigged lawyers among the inmates. This ground is completely lacking in substance. It also fails and the appeal fails with it and it is hereby dismissed. The conviction and sentence of the court of first instance as well as the appeal judgment of the Court below are all hereby affirmed.

Kayode Eso, J.S.C.-I have had the advantage of a preview of the Reasons for judgment given by my learned brother Oputa, J.S.C. I am in agreement with these Reasons entirely adopt them.

…………………….D…………………….

Uwais, J.S.C.-I entirely agree with the judgment read by my learned brother Oputa, J.S.C., the draft of which I had seen in advance. For the reasons given by him I will also dismiss the appeal and confirm the decision of the Court of Appeal.

Coker, J.S.C.-The appeal is completely devoid of merit. Before the Court below, Mrs Ugbo, who was counsel for the appellant, had nothing useful to urge in his favour and that Court was unanimous in agreeing with her. Before this Court, Chief Funmi Jibowu, his learned Counsel, also in his brief stated that the verdicts of both courts are justified as there is overwhelming evidence against the appellant.

I have myself read the record of the proceedings of the two lower courts and hold the same view that the evidence against the appellant is overwhelming and his guilt established beyond doubt.

In his statement to the police-Exhibit D, appellant admitted he wore police uniform and signed for the S.M.G. while he was not on duty. Part of his statement reads:-

“On the 29.5.80 one Johnne Adamson Udom told me that there is a vehicle No. LA. 997SB we are going to take from the owner, that I should go an booked for arm, immediately I left to lion building and booked for S.M.G. with 10 rounds of ammunition and we went to the Oshodi-Badagry express road near Ijeshatedo bus stop when we were waiting the man came with Peugeot 504 saloon car No. LA.977SB he told me to stop the man, and I stop the man we three of us enter the vehicle and ask the driver to drive on the way going he stop the man to go down the man go down and the Johnna Adamson Udom enter into the front and drove the vehicle to 21 Yisa Street there Surulere where he took some of his cloths we later drove to CRS, later took to Imo State, where we sold the vehicle to the man a lawyer signed the agreement between us at the amount N2,500 the lawyer said we should pay him the amount N100.00 we paid him the amount, and he produce a receipt to the buyer, we later pay a taxi to CRS alter the following day we take down to Lagos.”