ANDREW NWACHUKWU v. ATTORNEY-GENERAL OF IMO STATE(2002)

ANDREW NWACHUKWU v. ATTORNEY-GENERAL OF IMO STATE

2002)LCN/1146(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of April, 2002

CA/PH/217/2000

 

JUSTICES

SYLVANUS ADIEWERE NSOFOR   Justice of The Court of Appeal of Nigeria

MICHAEL EYARUOMA AKPIROROH   Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria

Between

 

ANDREW NWACHUKWU Appellant(s)

AND

ATTORNEY-GENERAL OF IMO STATE Respondent(s)

AKPIROROH, J.C.A. (Delivering the Leading Judgment): The appellant Andrew Nwachukwu was first arraigned before the Imo State Robbery and Fire Arms Tribunal and following the scrapping of Military and other tribunals, he was formally charged and convicted by the High Court of Imo State on 17th August, 1999 for the offence of armed robbery contrary to section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Decree No.5 of 1984  (as amended) by Decree No. 21 of 1984.
The particulars of the offence are that on the 20th May, 1987 at Akuwa Ibeku in Owerri Judicial Division, being armed with fire-arms, robbed one Canice Aguwa of two bags of crayfish valued at N950.00 and five tins of paints valued at N1,050.00.
The case for the prosecution put briefly is that in the midnight of 19th May, 1981, PW1 heard gun shots in his house and the armed robbers began to break the door of the house. He then took his wife and children and escaped into the bush through the back door. While in the bush, he heard the noise the robbers were making as they broke from room to room of his house. After about two hours stay in the bush, and when he noticed that the noise made by the robbers had stopped, he returned to his house with his family and noticed that the robbers had carried away his two bags of crayfish and five tins of paints as well as two cooking pots.
As early as about 5.30 a.m. the following day, he went to the Police Station and lodged a complaint. When he returned from the Police Station, his brother PW2, Eugene Osuagwu told him that he saw and identified the appellant while committing the offence. He was able to identify him by the aid of electric light from the electric plant of one Simon Aguwa a hotelier. Upon this information, PW1 and PW2 went to their community leader, Kevin Njoku and PW2 narrated their information about the robbery to him. He then followed them to the Police Station and a report was made against the appellant.
Later, Police went to the house of the appellant in company of PW1 and the appellant took them to the house of one elderly woman Ihuoma Maduneme where he stored the bags of the stolen crayfish which had been re-bagged in smaller bags. The Police also recovered the original bag with which he bought the crayfish as well as the five tins of paint. The appellant was later arrested and taken to the Police Station and later charged to court.
The defence of the appellant is a total denial of the offence. After addresses by counsel on either side, the learned trial Judge, Alinor, J., in a reserved judgment found he appellant guilty as charged and sentenced him to death.
Dissatisfied with his conviction naturally, the appellant has appealed to this court and filed a brief of argument and distilled three issues for determination as follows:
“Issues for determination
1. Whether from all the facts and surrounding circumstances of this case, there was convincing evidence of proper identification of the appellant as one of the robbers who committed the armed robbery at the premises of PW l on 20/5/87.
2. Whether or not the learned trial Judge properly evaluated the evidence before the lower court.
3. Whether or not the entire proceedings and conviction of the appellant are not null and void.”
The respondent also filed a brief of argument and framed three issues for determination as follows:
1. “Whether in the absence of the evidence of PW3 the offence as charged against the accused person is not proved reasonable by the evidence of PW1, PW2 and PW4.
2. Whether the fact that all the stolen items viz (a) the crayfish (now divided into sub-bags, (b) the original bag with which the crayfish was bought by PW1, and (c) the five tins of paint were recovered from the possession of the accused/appellant the following morning does not raise presumption that appellant was the armed robber.
3. Whether the statement, evidence ofPW2 and the fact of recovering the stolen items from the possession of accused/appellant do not corroborate each other and amount to proof of the offence beyond all reasonable doubt.
Learned counsel for the appellant argued issues 1 and 2 together.
He submitted that it was unsafe to convict the appellant on the alleged identification by PW2 with the aid of the unspecified quality of light from the light plant from a distance of 80 metres without caution and relied on the case of Samuel Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 at 469. He then referred to the evidence of PW1 and PW2 who contradicted themselves on the date of the alleged robbery because PW1 said that he was robbed on 19/5/87 at midnight while PW2 said that he saw the appellant robbing PW1 at 1.00 a.m. on 20/5/87. It was also his contention that the learned trial Judge had made up his mind before evaluating the evidence led before him and relied on his findings at page 58 lines 11-13. He also relied on the cases of Inusa Musa v. The State (1996) 8 NWLR (Pt. 468) 610 at 618; Theophilus Eyisi & 3 Ors. v. The State (2000) 15 NWLR (Pt. 691) 555. Counsel further argued that the learned trial Judge was in serious error when he relied on the evidence of PW3 who was not cross-examined as corroborating the identification of the appellant by PW2. It was also his contention that the contradiction in the evidence of PW4 on the location from which the expended shells, exhibits D and D1 were recovered and the testimony of PW3 as corroborating the identification of the appellant by PW2 is misconceived because the evidence of PW3 and PW4 is inadmissible and could not have relied on their evidence in convicting the appellant. He further argued that the learned trial Judge was in serious error when he held that the premises of PW1 was well lit and thereby speculating on a very important issue which must be supplied by the  prosecution and relied on a litany of cases including the case of Etumioun v. A.-G., Della State (1995) 6 NWLR (Pt. 404) 719 at 730. He finally submitted that the appellant has not been sufficiently identified as one of the robbers who allegedly robbed PW 1 on 19/5/87 or 20/5/87.
In reply, learned counsel for the respondent submitted that the facts established by the evidence of PW1, PW2 and PW4 are sufficient to justify the conviction of the appellant by the learned trial Judge.
He referred to the evidence of PW1 at page 24 of the records lines 14-15 to the effect that the crayfish which had been re-bagged in smaller bags and the five tins of paints stolen from the house of PW1 were recovered from the possession of the appellant and submitted, that this evidence alone is sufficient to convict the appellant and relied on the case of Alonge v. I.G.P (1959) SCNLR 516; (1959) 4 FSC 203 and The State v. Adisa & Ors. (1971) University of Ife Law Reports (Pt. 3) 296.
It was also his submission that the identification of the appellant by PW2 is strong, cogent and convincing and as such there was no need for identification parade and relied on the case of Anyanwu v. The State (1986) 5 NWLR (Pt. 43) 612. It was also his submission that the defence of the appellant is riddled with material contradictions which rendered his evidence unreliable and the learned trial Judge was justified in convicting him.
Learned counsel for the appellant submitted forcefully that the appellant was not sufficiently identified by PW2 as one of the robbers.
At page 25 of the records, PW2 who identified the appellant at the time of the robbery said:
“In 1987, on 20/5/87 at about 1a.m. I heard gun shot, I got up. I heard some noise from the house of PW1.
When I heard the gun shot I escaped through the back yard. At that time the light plant of one Simon Aguwa was on. I went under an oil bean tree and hid there. By the help of the light, I was able to see a 504 Saloon Car packed near the oil bean tree. I then saw the accused standing in company of another person. The accused had a gun in his hand. He released a shot after a time.  From the point I hid two persons carrying a big sack from the house of PW1 and loaded it into the 504 Saloon Car. Thereafter they went and carried some gallons which they also loaded into the 504 Saloon.  The accused released another gunshot which he held in his left hand. There were five of them in all. After firing this last shot, they moved out, all of them five person who went on that armed robbery, it was only the accused I knew………”
In his evidence in chief at page 40 lines 24 – 29 that appellant said:
“I received the bags of crayfish from Okechukwu Njoku. I know one Okechukwu Njoku, the driver of PW1. He is dead. He died in the village. I did not make any statement that I received two bags of crayfish from Okechukwu Njoku.”
Under cross-examination at page 42 line 21 – 23, he said:
“I am not the person that received the bags of crayfish from Okechukwu Njoku.”
The recovery of the stolen items from the possession of the appellant goes to strengthen the identification of the appellant by PW2 and as such, identification parade is most unnecessary in this case where PW2 was able to identify the appellant through the light plant in the hotel of one Simon Aguwa from where he hid under the oil bean.
See Anyanwu v. The State (1986) 5 NWLR (Pt. 43) 612; Igbi v. The State (2000) 75 LRCN 203; (2000) 3 NWLR (Pt.648) 169 and Okosi v. The State (1989) ANLR 170 at 179; (1989) 1 NWLR (Pt.100) 642.
At page 58 of the records, lines 19 – 22, the learned trial Judge said:
“As regards the defence of non-establishment of the identity of the accused, the evidence of PW2 who stood at advantage position was not challenge……”
Continuing at page 60 lines 16 – 23 of the records, he said:
“Again, when the accused was arrested he took the Police to the house of one Inuoma Maduneme, now deceased where he the accused stored the crayfish. At the time the accused took the Police to where he stored the crayfish, he, accused had re-bagged the crayfish, into smaller bags. These facts once more corroborated the visual identification of the accused by PW2……”
From the findings of the learned trial Judge reproduced above, he was quite right in holding that the appellant was sufficiently identified by PW2 and as such, identification parade was unnecessary.
With respect to the submission of learned counsel for the appellant that the learned trial Judge simply resolved the conflicts in the evidence of the prosecution by stating that the contradictions were immaterial, shows that he did not properly evaluate the evidence led before him. At page 60 lines 6 – 13 of the records, the learned trial Judge said:
“These empty shells, two of them, were recovered the following morning from the compound of PW1 according to his evidence even though PW4, the Police Officer who was actually not the I.P.O., claimed that they were recovered from the compound of the accused. This discrepancy cannot be fatal to the case of the prosecution. What is important here is that the two spent shells of cartridge exhibits D and D1 were recovered from the premises of PW1 where they were alleged to have been fired. These facts also go to corroborate the evidence of PW2 on this issue of identity of the accused……”
The learned trial Judge was justified in treating the conflicts in the evidence of PW1 and PW4 as to where exhibits D and D1 were recovered as immaterial. In the case of Enahoro v. The Queen (1965) NMLR 265 at 281-282 the Supreme Court observed as follows:
“In the case of Omisade we pointed out that where the ground of appeal relied upon was that of contradictions in the evidence of witnesses, it is not enough to warrant a reversal of judgment merely for the appellant to show the existence of those contradictions without showing further that the trial Judge did not advert to, and consider the effects of these contradictions. Besides, we take the view that for the appellant to succeed on the ground of contradictions in the case of evidence of witnesses for the prosecution the contradictions must be shown to amount to substantial disparagement of the witness or witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses.”
The contradictions referred to by counsel for the appellant are minor contradictions which do not occasion miscarriage of justice.See also R. v. Ukut 5 FSC 183. These issues are resolved in favour of the respondent against the appellant.
On the third issue, counsel submitted that the trial of the appellant in the High Court for the same facts that constitute the pending charge before the Magistrate Court which charge was not withdrawn, is most unconstitutional as it has subjected the appellant to double jeopardy, stressing the trial and conviction of the appellant is null and void. Reliance was placed on the case of Olanrewaju v. The Governor of Oyo State & 6 Ors. (1992) 9 NWLR (Pt. 265) 335 at 368. He further argued that the denial of the appellant’s right of cross-examination of PW3 renders her testimony useless and impeaches the entire proceedings.
It would appear from the respondent’s brief of argument that learned counsel for the respondent did not proffer any argument on double jeopardy. Be that as it may, with respect to counsel, I am unable to accede to his submission because double jeopardy arises when a person is purported to have been tried twice, see Amaefule v. The State (1988) 2 NWLR (Pt. 75) 156. There is nothing to show that the appellant was tried for the offences of burglary and stealing preferred against him in the Magistrate Court. As the learned trial Judge said at page 57 lines 8 – 12 of the records:
“Rather the accused was brought before a Magistrate who has no jurisdiction to try the case but who statutorily has power to remand him. That is what happened in this case.”
The appellant having not been tried in the Magistrate Court for the offences with which he was charged, he is therefore not subject to double jeopardy.
This issue is also resolved in favour of the respondent against the appellant.
In conclusion, the appeal fails and it is hereby dismissed. The judgment of the lower court is hereby affirmed.

NSOFOR, J.C.A.: I had before now read in draft the judgment by my Lord, Akpiroroh, JCA., just delivered. I agree with his reasoning and conclusion. I find no merit in the appeal. I do dismiss it accordingly and hereby do affirm the judgment of the court below.

IKONGBEH, J.C.A.: I have read in draft the lead judgment of my learned brother Akpiroroh, JCA., just delivered and I agree entirely with the reasoning and conclusion reached by him.
The appeal lacks merit and I hereby dismiss it and affirm the decision of the lower court.

Appeal dismissed

 

Appearances

  1. B. Ukiri, EsqFor Appellant

 

AND

  1. U. Osuoha, Esq. Assistant Director of Public Prosecutions, Ministry of Justice, Imo StateFor Respondent

 

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