Michael Ebebeniwa V. The State (2008)

LawGlobal-Hub Lead Judgment Report

MODUPE FASANMI, J. C. A.

This is an appeal against the judgment of an Ogun State High Court of Justice, Ijebu Ode Judicial Division delivered on the 18th of December 2003 wherein the Appellant was convicted for the offence of Armed Robbery.

Dissatisfied with the decision, the Appellant who was the accused person has appealed to this Court on the notice of appeal dated 5th of April 2005 and deemed properly filed and served on the 6th of March 2006.

The facts of this case by the prosecution briefly are that on the 23rd of October, 2000 about evening period, the Appellant waved down one Paul Umoke (PW1) a commercial motorcycle rider at a place along Itele village and requested P.W1 to take him to Atoyo village. upon reaching the agreed destination along Ijebu-Ife Road, near Atoyo village, P.W1 requested that he be paid his fee but the Appellant refused to pay the agreed fee and alleged that he had not reached his final destination while P.W1 claimed he could not proceed further as the day was far spent. P.W1 who was the victim of the robbery claimed he had taken the Appellant to his (Appellant’s) house. The Appellant claimed he was going in to bring money with which to pay P.W1 his fee, only to return with a matchet with which the Appellant later inflicted matchet cuts on his head, mouth and also lost a tooth. The Appellant then took away the motor cycle of P.W1 and hid it in a bush where it was later recovered by the Investigating Police Officer P.W2 after the Appellant’s arrest.

The Appellant upon his arrest made voluntary statements to the Police which are exhibits A&J. The prosecution called three witnesses and tendered nine exhibits. The Appellant testified in his own defence. He denied committing the offence he was charged with. He claimed P.W1 was the person who first attacked him with the matchet and that he was the one who reported the incident when he took the motorcycle to the Police Station to lodge a complaint. He claimed the incident which took place between him and the P.W1 was a mere fight and that he did not commit armed robbery as alleged.

The learned trial judge rejected the defence of the Appellant and held that the prosecution had proved its case against the Appellant beyond reasonable doubt. Appellant was accordingly convicted for the offence of armed robbery.

The notice of appeal dated 5th of April 2005 and deemed properly filed before the Court of Appeal contained (5) five grounds of appeal. The Appellant formulated two issues for determination from the grounds of appeal as follows:-

(1) Whether the prosecution proved its case beyond reasonable doubt In view of the contradictions in the evidence of P.W1 as to the scene of crime and the none production of the motorcycle at the trial.

(2) Whether what took place on that day was a robbery or a fight

The Respondent adopts the issues as formulated by the Appellant as slightly amended here under:-

(1) Whether the prosecution proved its case beyond reasonable doubt

(2) Whether the interaction which took place on the day of the incident between the Appellant and P.W1 was a robbery or a fight.

Briefs were filed and duty exchanged and learned Counsel to the parties adopted their briefs at the hearing of the appeal.

Learned Counsel for the Appellant on issue one submits in his brief that the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt exists all through the trial. He cited the cases of LORI VS. THE STATE (1980) 8-11 SC at 81. IGHALE VS THE STATE (2006) ALL F.W.L.R (pt. 311) page 1797 at 1820-1821 where the Supreme Court held that the commission of an offence by the accused person must be proved beyond reasonable doubts. The court went further to hold that since it is the prosecution that asserts that the accused person had committed an offence, the burden is on it to prove it. The prosecution in proving its case must not allow any chain of event to create some doubts in the mind of the court. Where doubts exist in the mind of the court, such doubts will be resolved in favour of the accused person. He cited KALU V. THE STATE (1988) 4 N.W.L.R (part 90) at 503, LORTIM VS THE STATE (1997L2 N.W.LR part 490 at 711. He referred to the evidence of P.W1 at page 14 of the record of proceedings, where he said as follows “I cannot remember the date. 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” while under cross examination at page 15 P.W1 said that: