CASE SUMMARY OF:
Udo Akpan v. The State (1986) - SC
(1986) 5 S.C. 302;
(1986) All N.L.R 517;
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- Chief Jibowu.
* FOR THE RESPONDENT
- Mr. A. N. Kessington.
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FACT (as relating to the issues)
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 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 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 appealed to this Court being the final Court of Appeal.
Ground 1 reads: 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 Station to give satisfactory account of my whereabouts during the date alleged to have committed the offence.
HOLDING & RATIO DECIDENDI
ON GROUND 1, THE SUPREME COURT STATES:
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.
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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. - Oputa, JSC. Akpan v. State (1986)
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