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CaseLaw

Esene V. tate (2017) CLR 3(g) (SC)

Judgement delivered on March 10th 2017

Brief

  • Burden of proof and standard of proof in criminal cases
  • Armed Robbery
  • Unchallenged and Uncontroverted Evidence
  • Identification Evidence
  • Alibi
  • Witnesses
  • Cross Examination
  • Concurrent findings of fact
  • Weapon of offence
  • Section 135 of the Evidence Act 2011

Facts

This is an appeal against the judgment of the Court of Appeal Benin Division, in criminal appeal CA/B/374C/2010 delivered on the 28th day of May, 2013 by which said judgment, the Court affirmed the conviction and death sentence passed on the appellant by the High Court of Edo state, sitting at Benin City.

Dissatisfied with the judgment of the Court of Appeal, the appellant appealed against same to this Court vide a notice of appeal dated and filed the same day on 12th June, 2013 and raising two grounds of appeal.

SUMMARY OF THE FACTS

The facts of this case as may be gleaned from the evidence of record are that on the 23rd day of December, 2006 the PW1 (one Franca Okuonurie) whilst returning from Abuja was dropped off by the bus she was travelling in at AP junction, Irrua. Whilst at the junction, the appellant - a commercial motor cyclist rider approached PW1 and offered to give a ride on his motor bike to Obedu 1 at a fare of N300. PW1 and the appellant eventually settled for to give her N200.00.

In the course of their Journey, PW1 asked the appellant to take Akho junction into lrrua, a request which the appellant turned down on the basis that there were policemen at the junction. So, the appellant took Agric Road instead. The appellant went past Agric junction and headed into the bush, where the appellant asked PW1 to come down. Thereafter, the appellant beat her and asked her to give him all that she had otherwise he (appellant) would stab her with the knife he was holding.

The appellant, after forcefully removing the weave on from PW1's head, gave her a bite on her left breast as a result of which she fainted and stayed in the bush all through the night

The appellant robbed PW1 of the items she was carrying; a bag of rice, bag of salt, cloths, meat, necklace, wrist watch, shoes and the sum of N42,000.00 cash given to her by her brother in respect of the house he was building.

PW1's brother returned from Lagos on the 26th December, 2006. The next day, that is 27th December, 2006, they (PW1 and the brother) decided to report the incident to the police. On their way to the police station, somewhere around Akho junction, PW1 saw and identified the appellant as the person, who robbed her on the night of 23rd December, 2006. As soon as the appellant saw PW1, he started to run with his motorbike whereupon PW1 and her brother gave him a chase. They saw the appellant enter a particular building. PW1 and her brother then went and invited Policemen. As PW1, her brother and the Policemen were coming back to the building where the appellant had run into, the appellant who saw them again ran into a mechanic workshop where the Policemen arrested him.

    • The appellant was initially taken to Irrua Police station and after investigation, he was arraigned before a Magistrate Court for stealing and assault occasioning harm. At the commencement of trial, after going through the facts, the trial magistrate ordered that the matter be further investigated as there were elements of violence in the case.

    The case was then transferred to the Anti-Robbery section of the State CID, Benin City, for that purpose. At the conclusion of investigation, the appellant was charged on information before the Edo State High Court, sitting in Benin city, where the matter was tried and concluded.

    At the trial, apart from the PW1, three other prosecution witnesses (PW2, 3 and 4) testified for the prosecution. They were: Mr. Cletus Okuonurie, PW1's elder brother (PW2), Kemi Cyril Abudu, the policewoman who investigated the matter when it was incidented at Irrua Police station (PW3), and Mr. Victor Ernest, a Police sergeant, attached to the State CID, Benin City (PW4).

    The appellant testified in his own defence and called no witness. His case was a complete denial of his involvement in the armed robbery of the PW1. In his trial, the appellant raised the defence of alibi to the effect that at the time of the incident (9p.m) he was in his house. Meanwhile, he did not raised this defence in his two statements to the police which were admitted in evidence as Exhibits P1 and P2 at pages 33 to 34 and 19 to 22 of the records of appeal respectively.

    The trial Court in its considered judgment delivered on the 2nd June, 2010 convicted and sentenced the appellant to death as charged.

    His appeal to the Court of Appeal was unsuccessful and dismissed while the trial Court's judgment was upheld. Hence the appeal now before us.

Issues

  • Whether the Court of Appeal was right in affirming the decision of the trial Court...
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