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CaseLaw

Abbey v State (2017) CLR (h) (SC)

Judgement delivered on 28th April, 2017

Brief

  • Burden and Standard of proof in criminal cases
  • Supreme Court
  • Summary trial procedure and Filing of Information in criminal trial
  • Armed Robbery
  • Jurisdiction
  • Legal Practitioner – Duty of to court
  • Order 6 Rule 8 (6) of the Rules of the Supreme Court
  • Order 6 Rule 5 (1) (C) of the Supreme Court Rules 1999 as amended
  • Section 315 (1) of the Constitution
  • Section 337 of the Criminal Procedure Law of Bendel State as applicable to Edo State
  • Section 33 of the Federal High Court Act
  • Section 4 of the Tribunal's (Certain Consequential Amendments, etc) Decree No. 62 of 1999
  • Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990

Facts

On 21/11/2002, the appellant and three others were charged before the High Court of Edo State, sitting at Benin City (the trial Court) on a two-count charge of conspiracy and armed robbery as follows:

    COUNT 1

    That you Jude Maduka obi, Okechukwu Maraire, Osamede Abbey and Francis Ehebholo, on or about the 25TH day of March 1999 at Buvel Filling Station, No. 222 Muritala Muhammed way Benin City in the Benin Judicial Division. conspired with each other to commit a felony to wit: Armed Robbery and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990.

COUNT 2

That you Jude Maduka Obi, Okechukwu Maraire, Osamede Abbey and others now at large on or about the 25th day of March 1999 at Buvel Filling Station, No. 222 Muritala Muhammed way Benin City, in the Benin Judicial Division robbed the sum of seven hundred and sixty-four thousand four hundred and thirty-eight naira, eighty-three kobo (N764,438.83), Four Hundred Dutch (sic) Mark (400 Dutch (sic) Mark), sixty four US Dollars (64 US Dollars), Fifty British Pounds Sterling cash (50 British Pounds Sterling) and coral beads of assorted forms valued at one hundred and fifty thousand naira (N150,000) properties of Prince Clement Okoeguale and at the time of the robbery were armed with a gun and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria, 1990.

At the arraignment the appellant was the 3rd accused. All the accused persons pleaded not guilty to the charges against them. Unfortunately, the 1st accused, Jude Maduka Obi, died in prison custody. The prosecution withdrew the charges against the deceased and amended the charge. The remaining three accused persons, including the appellant pleaded not guilty to the amended charge. The appellant then became the 2nd accused. The 4th accused, Francis Ehebholo, who was charged on the count of conspiracy only, was discharged on a successful no-case submission, leaving only two accused standing trial - the appellant and one Okechukwu Maraire.

The prosecution called seven witnesses in proof of its case. The facts as presented by the prosecution are as follows: PW3, Thomas lyere was a night guard at Buvel Filling Station, Murtala Mohammed Way, Benin City. He resumed for work at about 7 p.m. on 24/3/1999. After all workers closed for the day around 8 pm he was alone in the premises. At about 2 a.m. in the early hours of the following day, 25/3/1999, he heard some noise suggesting that the gate had been shaken. He went to investigate and saw two persons, who had already entered the premises, walking towards him. He asked of their mission but they did not respond. Sensing danger, he tried to escape to the nearby premises of New Nigerian Bank, which usually has police presence. Unknown to him, there were other hoodlums in the premises. Two other men grabbed him by the collar and dragged him to the mechanic section on the premises. According to his testimony, they tore his shirt and used part of it to bind his hands and legs. They advised him to remain quiet, as he was not the one they were after. A gun was pointed at him to ensure he understood their command.

The person in possession of the gun stood over him while others went to carry out the operation. From where he was held he could hear noises indicating that metal protectors were being cut. The sounds came from the main office block. After about an hour, the person guarding him left. He managed to free himself from his constraints and ran to the nearby New Nigerian Bank and narrated his experience to the policemen on duty. He also called the Managing Director of the filling station and narrated his experience. The first to arrive on the scene was Queen Igah (the office cashier - PW4).

PW1, Clement Kennedy Okoegwale, the Managing Director of the company received the news of the incident while away in the United States of America. He returned as soon as he could and arrived on 27/3/1999. He described what he saw thus:

  • a
    the gate to his office had been sliced open with an electric saw;
  • b
    the door leading to the strong room housing the safe (in the cashiers office) was destroyed; it had been sliced open with a cutting machine but the robbers were unable to force it open.
  • c
    the safe in his office however was damaged and forced open, various amounts of local and foreign currency and coral beads were found to have been Stolen.

    • PW2, the Admin. Manager and PW4, the cashier, both testified as to how they found the strong room vandalized, safes opened and money carted away. PW5, attached to the Federal Special Anti-Robbery squad, Force C.l.D. Annex, Adeniji Adele, Lagos, was a member of the team assigned to investigate the case. The case was transferred to them from Benin pursuant to a petition written to the Assistant Inspector General of Police 'D' Department, Force C.I.D, Abuja. The case file was handed over to him along with the first and second accused persons (the now deceased 1st accused and Okechukwu Maraire). The appellant, who was on bail was subsequently re-arrested by the State C.I.D and handed over to him. He visited the scene and testified as to what he observed and also mentioned the exhibits handed over to him. It was his testimony that appellant volunteered a confessional statement, which he recorded and countersigned after the appellant confirmed that he made it voluntarily. An objection was taken to its admissibility on grounds of involuntariness. It was admitted in evidence after a trial within trial as Exhibit P3. PW6 is the Superior Police Officer before whom the appellant was taken to confirm his confessional statement. The attestation form was admitted in evidence as Exhibit P5.

    ln his defence, the appellant denied any knowledge of the crime. At the conclusion of trial, in a considered judgment delivered on 16/6/2006 the learned trial Judge acquitted and discharged the appellant and his co-accused of the offence of conspiracy charged in Count 1 but convicted and sentenced them both to death by hanging on the charge of armed robbery in Count 2. Being dissatisfied with this decision, the appellant appealed to the Court of Appeal Benin Division. The appeal was dismissed on 16/6/2013. The appellant is still dissatisfied and has further appealed to this Court.

Issues

  • 1
    Whether the Court of Appeal was right in law to have upheld the trial Court's assumption of jurisdiction in this case....
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