Essien Ibok Essien V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

The appellant was charged, tried and convicted along with one Ekong Akpan Thomas on a lone count of armed robbery contrary to Section 1{2)(a) of the Armed Robbery and Firearms (Special Provision) Act 1990 at the Akwa Ibom State Robbery and Firearms Tribunal, sitting at Ikot Ekpene. The appellant was the 2nd accused at the trial tribunal.

To establish its case, the prosecution called five witnesses, PW1 – PW3, the victims of the criminal conduct of the two accused persons, and PW4 and PW5, police officers, who investigated the case against the appellant and his co-traveller in crime. The prosecution also tendered and relied on ten exhibits, A, B, C, D, E, F, G, G1, G2 and H in fashioning their case. The appellant gave evidence in his defence. He called no other witness. At the end of the trial, the trial tribunal in a considered judgment delivered on 28th May 1999, the 1st accused and the appellant were convicted as charged and sentenced to death.

Dissatisfied with the tribunal’s judgment, the appellant appealed on a single ground vide a notice dated 4th December 2013

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to the Court of Appeal, Calabar Division, hereinafter referred to as the Lower Court, which judgment of 4th December 2014 affirmed appellant’s conviction and sentence by the trial Court. Still aggrieved, the appellant has further appealed to this Court on a notice containing two grounds dated and filed on the 5th January 2015.

In his brief settled by Godwin Omoaka and deemed filed on 30th March 2017, the appellant has distilled a lone issue on the basis of which he requires the appeal to be determined. The issue reads:-

“Given that, in all aspects, the evidence adduced by the prosecution was materially contradictory, was the Court below right in coming to the conclusion that the prosecution discharged the legal burden on it of proving the guilt by the appellant beyond reasonable doubt (Proof beyond reasonable doubt issue),”

The similar issue formulated in the respondent’s brief settled by the Uwemedimo Nwoko Esq the Hon. Attorney General of Akwa Ibom State and deemed filed on 30/3/2011 too reads:-

“whether the Court below was right in affirming the judgment of the trial Court and dismissing the appeal in the evidence on record before the

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Court.”

On the lone issue, learned appellant counsel submits that the trial Court has the duty of ensuring that the prosecution had discharged the burden of proof of the offence against the appellant beyond reasonable doubt. The Lower Court’s finding at page 57 of the record of appeal in affirming the trial Court’s decision that the respondent has established the essential ingredients of the offence against the appellant is not sustainable. The evidence of PW1, PW2 and PW3 on the fact of the occurrence of the armed robbery for which the appellant is convicted, it is submitted, falls short of the standard of proof the law demands. Not only was the armed robbery not reported on the date it took place, it is further submitted, the prosecution has failed to situate the appellant at the scene of the robbery. There is violent discrepancies in the evidence of PW1, PW2 and PW3 as to the date the offence took place making such evidence on the fact unreliable.

Most importantly, learned appellant’s counsel further argues, the state of alertness of the victims of the robbery, PW1, PW2 and PW3 as well as visibility at the scene, submits learned counsel, makes the