Michael Ebeinwe V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C,

The charge for which the appellant was arraigned before the Ogun State High Court, holden in Ijebu-Ode reads as follows:-

“That you Michael Ebeinwe on or bouat (sic) the 23rd day of October, 2000 at Itele in the Ijebu-Ode Judicial Division robbed one Paul Umoke of a Suzuki Motorcycle FR 50 valued at N100,000.00 and at the time of the said robbery was armed with an offensive weapon to wit cutlass and thereby committed an offence contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990 as amended by the Tribunals (certain consequential Amendments ETC), Decree 1999.”

The accused pleaded not guilty to the charge. The case of the prosecution is that the appellant inflicted injuries on one Paul Umoke. A motorcycle operator whom he hired to carry him to his house with a matchet, when they got to the destination. The appellant and took the victim’s motorcycle to an unknown place. The incident took place at Atoyo Village along Lagos-Benin Expressway Ijebu-Ife. The prosecution called three witnesses who testified and tendered the confessional statement of the accused/appellant.

The appellant defended himself and denied that he made the confessional statement voluntarily, but that he was tortured by the police. The learned trial judge at the end of the case for the prosecution and the defence found the prosecution case proved beyond reasonable doubt, and convicted him as charged. Aggrieved by the conviction the accused appealed to the Court of Appeal. The Court of Appeal found no merit in the appeal and so dismissed it, and affirmed the decision of the court of trial.

Dissatisfied with the judgment he has again appealed to this court on four grounds of appeal. Learned counsel exchanged briefs of argument which were adopted at the hearing of the appeal. In his brief of argument, the learned counsel formulated only one issue for determination, and the issue is, whether the prosecution failed to prove the guilt of the appellant. Two issues for determination were however raised in the respondent’s brief of argument. The issues are:-

1. Whether the prosecution proved the guilt of the appellant as required under section 138 of the Evidence Act.
2. Whether the learned Justices of the Court of Appeal were right to have affirmed the judgment of the trial court.

In arguing their sole issue, the learned counsel for the appellant submitted that the evidence of the victim of the crime, (P.W.1) was riddled with contradictions, and so it diminished the evidence put forward by the prosecution. He cited the cases of Ogoala v. The State 1991 2 NWLR part 175 page 509, Ayo Gabriel v. The State 1989 5 NWLR part 122 page 457, Okereke v. The State 1998 3 NWLR part 540 page 75, Ogbu v. The State 1992 8 NWLR part 259 page 255, and Wankey v. The state 1993 5 NWLR part 295 page 542. Learned counsel further submitted that the contradiction in the evidence put forward by the prosecution were substantial and material contradictions or conflicts especially that of P.W.1, which should warrant the reversal of the judgments of the court below.

The learned counsel for the respondent contended that there were no contradictions in the evidence of PW1, and if at all there were they would amount to mere discrepancies. He placed reliance on the cases of Gabriel v. State supra, Musa v. State 2009 15 NWLR part 1165 page 467, and Asriyu v. The State 1987 4 NWLR part 67 page 709. The evidence the appellant’s counsel is hammering on are as follows:-

“As we got to the destination, I asked for my money saying that I could not carry him any further as the day was far spent and it was getting late. He then started to matchet me with cutlass………………………

The incident happened at Atoye along the Express at Ijebu-Ife.”

In the course of cross examination PW1 testified thus:-

“On getting to the house of the accused (the destination) he told me he was going inside to bring money with which to pay my fee but he came out with a cutlass and started to attack me.”

The only discrepancy I can perceive in these pieces of evidence is that of the scene of the clime for which P.W.1 added, ‘Atoye along the Express at Ijebu-Ife’. As for his earlier evidence that the incident occurred when they got to the destination, it was consistent with the evidence in cross examination in which he said they had reached the destination. The fact that PW1 said the scene of crime was along the Express road does not detract from the fact that he was robbed or cut with a cutlass by the appellant. The destination or the house may well be on the Express Road. When one reads the evidence against the backdrop of the confession of the accused in his caution statement one will see that the accused/appellant corroborated the evidence of PW1. In Exhibit ‘J’ his confessional statement can be found the following:-

“On the 22/10/2000, I saw one motorcyclist at Ijebu-Ife and asked him to carry me to Ajegunle area of Itele where I reside with my friend to collect some money and a matchet.”