Ehimen Esene V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of Acha J. of the High Court of Justice, Edo State, Benin Judicial Division delivered on the 2nd day of June, 2010 in charge No.B/3C/2008. The State v. Ehimen Esene, in which the learned trial Judge convicted and sentenced the Appellant (then accused person) to death by hanging on the charge of armed robbery, under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of Nigeria 1990. The Appellant, as accused person in the court below, was charge as follows:

“That you Ehimen Esene (m) on the 23rd of December, 2006 at Ako – Iyobhere bush, Irrua, in the Irrua Judicial Division robbed one Franca Okhuonurie (F) of the sum of N42,000:00 cash, a bag of salt valued N600:00; a bag of rice valued N7,000:00; a wrist watch and necklace valued N22,400:00 and at the time of the robbery you were armed with offensive weapon to wit a knife and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Fire Arms (Special Provision) Act R 11 2004.”

Briefly the prosecution’s case at the High Court was that pw1, one Franca Okhuonurie, who testified that on the 23rd December, 2006, she was returning from Abuja and that she boarded a bus which dropped her at AP Junction, Irrua, she further stated that the Accused Person rode a motor bike to where she was and requested her to ride in it to Obedu 1 and that the accused charged her the sum of N300:00 to take her to Obedu but they finally settled for N200:00.

PW1 further stated that she asked the Accused Person to take Akho Junction into Irrua but the accused said that there were policemen at the junction so he took Agric Road instead, she also stated that as they were going the Accused rode his bike and passed the Agric Junction and that he drove the bike into the bush and asked her to come down. She stated that the accused started beating her inside the bush and that he asked her to give him all she had otherwise he would stab her with the knife he was holding.

She also stated that the Accused person gave her a bite on her left side breast and she fainted. PW1 also stated that she was in the bush till the following morning and the incident started about 9pm in the night. She testified that on the day of the incident she was carrying a bag of rice, bag of salt, cloths, meat, necklace, wrist watch, shoes and the sum of N42,000:00 given to her by her brother in respect of the house he was building.

She also stated that on the 26/12/2006 her brother returned from Lagos and on the 27/12/2006 as she was going with her brother to report the incident to the police, at Akho Junction she identified the accused as the person who robbed her and that she showed him to her brother and that when the accused saw her he started to run with his motorbike and that they followed him up to a house he entered and that they went to the Police station to bring policemen. Pw1 also testified that as they were coming back to the house, the accused saw them and ran into a mechanic workshop where the police arrested him.

Following the armed robbery attack on the PW1, the accused was arrested by the Police and was taken to Irrua Police Station for investigation.

The Appellant was initially taken to Irrua police station and after investigation, he was charged to court for stealing and assault occasioning harm. And as the trial commenced, the Trial Magistrate, after going through the facts of this case ordered that the matter be further investigated as there were atoms of violence in this case. The case was transferred to the Anti-Robbery section of the State CID Benin City for further investigation and the accused was finally arraigned at the Magistrate Court from where he was remanded in prison custody before being charged on information to the Armed Robbery and Firearms Tribunal Benin where the case was tried and concluded.

Dissatisfied with the Judgment of the trial court, the Appellant filed his Notice of Appeal dated 4th of June, 2010, contained on pages 93 and 94 of the printed records. From the said Notice of Appeal the Appellant formulated a sole issue for determination to wit:

“Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt.”

On the other hand, the Respondent in its brief of argument dated 18/2/13, filed on the 19/2/13, and also deemed as properly filed on the 19/2/13, adopted the sole issue as formulated by the Appellant to wit:

Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt.”

In arguing the appeal, learned counsel to the Appellant submitted that, it is settled beyond question that in criminal cases especially armed robbery offences which carry death penalty, that the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt see:- Morka v. The State (1998) 2 NWLR (pt.537) 294 at 301.