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(2016) LPELR-41304(SC)

In The Supreme Court of Nigeria

On Friday, the 16th day of December, 2016


Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA'AHS Justice of The Supreme Court of Nigeria


JOHN INYANG OKORO Justice of The Supreme Court of Nigeria


THE STATE - Appellant(s)


USEN OKON EKANEM - Respondent(s)

Other Citations

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This is an appeal against the judgment of the Court of Appeal, Calabar Division delivered on 9th July, 2012 discharging and acquitting the respondent for the offence of armed robbery and also recommending that his co-accused, Eteyen Okon Effiong who did not appeal against his conviction and sentence to death, be granted pardon by the Governor of Akwa Ibom State by virtue of his executive powers under Section 212(1)(a) Constitution of the Federal Republic of Nigeria, 1999.The State felt aggrieved and appealed against the said judgment.

The facts leading to the appeal are as follows:-
"The respondent herein together with his co-accused, one Eteyen Okon Effiong, were arraigned before the Robbery and Firearms Special Tribunal of Akwa Ibom State of Nigeria sitting at Ikot Ekpene on a two-count charge of armed robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Decree No. 5 of 1984 and attempted armed robbery contrary to Section 2(1) of the Robbery and Firearms (Special Provisions) Act 1990. They pleaded not guilty to the



The appellant's case was that on 16/10/94 at No. 150 Inyang Utono Street, Ibiaku Offot, Uyo, the respondent while armed with an offensive weapon namely a locally made pistol robbed one Ekong Okon Nkanga of the following items:
(i) A video machine and video cassettes valued at N60,000.00
(ii) Car radio and Equalizer valued at N5,000.00
(iii) Clothings valued at N10,000 00
(iv) Shoes valued at N1000.00
(v) Cash of N2,500.00

The total value of items stolen including the cash was put at N78,560 00 (Seventy-Eight Thousand, Five Hundred and sixty Naira). It was also the prosecution's case that on the same night at Use Offot Uyo, the respondent attempted to rob one Professor Emmanuel Akpan and his wife.

%u200BThe prosecution called three witnesses and tendered 16 exhibits to prove its case while the respondent and his co-accused testified in their own behalf but called no other evidence. The respondent set up the defence of alibi by stating that on the night of 15/10/94 he was in his house together with his wife and the co-accused until the morning of 16/10/94. At the end of the trial, the accused and


co-accused were found guilty of armed robbery and accordingly convicted and sentenced to death but were acquitted and discharged for attempted robbery. He thereafter appealed to the Court of Appeal, Calabar against his conviction for armed robbery. This led to the appeal succeeding and his acquittal and discharge; hence this appeal by the State to the Supreme Court. The appellant submitted three issues for determination namely:-
"1. Whether the respondent%u2019s plea of alibi is not dislodged or demolished by the evidence available before the Tribunal. (Distilled from Ground 1)
2. Whether the respondent and his co-accused were not properly identified as the robbers who committed the offence for which they were charged (Distilled from Ground 2)
3. Whether having regard to the entire evidence before the Tribunal, the Prosecution has not proved beyond reasonable doubt the guilt of the respondent and his co-accused person for an offence of armed robbery." (Distilled from Ground 3).

The respondent submitted only one issue for determination viz:-
"Whether the Court below was right to have reversed the judgment of the


trial tribunal which convicted the respondent on the ground that there was insufficient evidence that proved the respondents guilt beyond reasonable doubt. (Grounds 1, 2 and 3)."

The formulation of the issue for determination by the respondent is more appropriate and will suffice since the complaints in the grounds of appeal are directed against the judgment of the Court of Appeal, Calaba


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