DESMOND AICHENABOR v. THE STATE
(2013)LCN/6496(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of November, 2013
CA/B/256C/2010
RATIO
POSITION OF THE LAW WHERE A WEAKNESS IS DISCOVERED IN THE EVIDENCE ADDUCED BY THE PROSECUTION IN THE PROOF OF ITS CASE
The position of the law is to the effect that where any weakness is discovered in the evidence adduced by the prosecution in the proof of its case, such evidence cannot be said to establish the guilt of the accused person beyond reasonable doubt. In other words, where weakness is discovered the accused person must be given the benefit of doubt. See STATE v. SALAWU (2012) All FWLR (Pt. 614) 1; and NDUKWE v. THE STATE (2009) All FWLR (Pt. 464) 1447. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
MODES TO BE UTILIZED BY THE PROSECUTION IN THE DISCHARGE OF THE STANDARD OF PROOF IMPOSED ON IT BY LAW
The law is also settled that the prosecution in the discharge of the standard of proof imposed on it by law can utilize all or any of the following: (i) direct evidence of an eyewitness or eyewitnesses; (ii) circumstantial evidence; and (iii) confessional statement of the accused person. See ONYENYE v. THE STATE (supra) at 1835. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ESSENTIAL ELEMENTS TO BE ESTABLISHED TO SUSTAIN A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY
The essential elements of the offence of armed robbery which the prosecution must prove or establish beyond reasonable doubt in order to sustain a conviction for the said offence are (i) that there must have been a robbery or series of robberies; (ii) that each robbery was an armed robbery; and (iii) that the accused was one of those who took part in the robbery or robberies while with arms. See OSETOLA v. THE STATE [2012] All FWLR (Pt. 649) 1020; and ONYENYE v. THE STATE (2012) All FWLR (Pt. 643) 1810. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHETHER THE ONUS IS ON THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED PERSON BEYOND REASONABLE DOUBT OR BEYOND EVERY SHADOW OF DOUBT.
The constitution of the Federal Republic of Nigeria (as amended) in Section 36(5) creates a rebuttal presumption of innocence in favour of any person charged with a criminal offence. It is my considered view that the accusatorial system of justice (which is a legal system in which the prosecution is required to provide proof of guilt beyond a reasonable doubt with the evidence being assessed by an impartial judge and jury) necessarily came to the fore against the backdrop of the presumption of innocence created in favour of the accused person by the constitution. Hence the trite position of the law that the onus is on the prosecution to prove the guilt of the accused person and this it is to do by establishing the offence preferred against an accused person beyond reasonable doubt and not beyond every shadow of doubt. See NJOKU v. THE STATE (2013) All FWLR (Pt. 689) 1072; and OLATINWO v. THE STATE (2013) All FWLR (Pt. 685) 312. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
O. A. Lawani Appellant(s)
AND
C. A. Ebosele (Mrs.) (Chief State Counsel, Ministry of Justice, Edo State) with
J. A. Odihirin (Mrs.) (Senior State Counsel) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment delivered on 22/4/2010 by the High Court of Edo State holden in Benin (hereafter referred to as the lower court) presided over by Hon. Justice A. Edodo-Eruaga (hereafter referred to as the “learned trial Judge”). The Appellant was charged before the lower court on a two count Information with the offences of conspiracy to commit the offence of armed robbery and actual offence of Armed Robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria 1990. Having found the prosecution to have proved its case against the Appellant beyond reasonable doubt, the lower court convicted the Appellant on each of the counts preferred against him and sentenced him to death by hanging.
At the trial of the charges/counts preferred against the Appellant, the prosecution fielded four witnesses and tendered the statement made to the Police by the Appellant as Exhibit 3. The Appellant on his own part called three witnesses and also testified in his own behalf. The Appellant also caused to be tendered as Exhibits the statements of two prosecution witnesses which were admitted and marked as Exhibits 1, 1A and 2 respectively. The lower court found the evidence of identification adduced by the prosecution in the case to be compelling and reliable and consequently convicted the Appellant on the strength of the same for the offence of armed robbery preferred against him. Furthermore, haven found the evidence of adduced by the prosecution that the robbery for which the Appellant was not committed by the Appellant alone; the lower court convicted him of the offence of conspiracy to commit the offence of armed robbery.
Being aggrieved with his conviction and sentence, the Appellant lodged an appeal against the judgment of the lower court by a Notice of Appeal dated 30/4/2010 and filed on the same date. The Notice of Appeal contained only the omnibus ground. On 21/12/2010 the Appellant subsequently filed an Amended Notice of Appeal. The process was deemed as properly filed and served on 26/9/2011. The Amended Notice of Appeal in addition to the omnibus ground of appeal contains two other grounds of appeal.
In compliance with the Rules of the Court,parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 4/10/2011 and filed on the same date and his Reply Brief is dated 16/5/2013 and filed on the same date. The aforementioned Briefs were settled by A. O. Lawani, Esq. Respondents’ Brief of Argument is dated 22/4/2013 and filed on 23/4/2013 pursuant to the order of Court made on 16/4/2013. The Brief of Argument was settled by C. A. Ebosele (Mrs.) (learned Chief State Counsel, Ministry of Justice, Edo State) (hereafter simply referred to as “learned CSC”). The appeal was entertained on 26/9/2013 and both O. A. Lawani of counsel for the Appellant and learned CSC for the Respondent adopted the Briefs of Argument of their respective clients as hereinbefore identified in aid of their positions in the appeal. Learned CSC in her oral submissions, urged the Court to discountenance the Reply Brief of the Appellant as it is a re-argument of his case.
In his Brief of Argument the Appellant presented two issues for determination by the Court in the appeal. They read thus:-
“1.Whether there was proper identification of the Appellant as one of the persons that robbed the PW1 and PW2.
2. Whether the guilt of the Appellant was established beyond reasonable doubt as required by law, justifying his conviction on the offence (sic) of conspiracy and armed robbery.”
The Respondent equally formulated two Issues for the determination of the appeal in its Brief of Argument. They read thus:-
“(1) Whether the guilt of the Appellant was established beyond reasonable doubt as required by law, justifying his conviction on the offence (sic) of Conspiracy and Armed Robbery.
(2) Whether an identification parade is necessary where the victim or witness recognized the offender or accused person.”
The appeal will be determined on the Issues as formulated by the Appellant as I find them more appropriate in the light of the grounds of appeal.
APPELLANT’S ISSUE 1:
Dwelling on this Issue, the Appellant stated to the effect that identification evidence in criminal law is one which tends to show that the person charged with an offence, is one and the same as the person who was seen committing the offence. The Appellant went further to itemize what the court should consider when evidence of identification is adduced against an accused person and cited in aid, the case of Ndidi v. The State (2007) 13 NWLR (Pt. 1052) 633 at 636.
The Appellant made the point that a proper identification will take into consideration the description of the accused person given to the police shortly after the commission of the offence, the opportunity the witness had in observing the accused person and the features of the accused person which marked him out from the other persons that were noted by the witness and communicated to the Police. Aside from these, the Appellant said that the identification of an accused person can be done in three major ways; namely, (i) visually; (ii) from or by voice; and (iii) by identification parade. It is the stance of the Appellant that no matter the means or method of identification, it must be done only by a person who had seen the accused committing the offence. In the instant case, the Appellant said that the victims of the robbery were the only witnesses to the incident. It is the stance of the Appellant that PW1 who was one of the victims of the robbery in his evidence before the lower court testified to his lack of knowledge of the perpetrators of the robbery that occurred in his house on 24/3/2006. That in none of their statements to the Police did PWs 1 and 2 who were victims of the robbery give a vivid descriptions of whomever it was that attacked them, even though PW2 had stated in her evidence in court that she had come in contact with the Appellant and one other previously prior to the robbery incident. It is the stance of the Appellant that it is therefore safe to assume that as PWs 1 and 2 had no idea of whoever invaded their house, they also lacked the ability to give details of the perpetrators to the police at the police station at the earliest opportunity or at any other time whatsoever. Raising the poser as to how he came to be identified, it is the stance of the Appellant that his identification was purportedly done by a person who never witnessed the robbery nor was a victim thereof. That his identification was done by one Mr. Ugbodiyen, a person who bore malice against him (the Appellant) and had reason to maliciously prosecute him.
The Appellant submitted that his identification with aid of Mr. Ugbodiyen (someone who was not a witness or a victim of the robbery), was improper and informed by malice. The Appellant made the point that from the record, it was clear that Mr. Ugbodiyen did not witness the robbery. The Appellant referred to the evidence of PW3 as revealing that it was Mr. Ugbodiyen that claimed to know the robbers. The Appellant also referred to his statement to the police as showing that Mr. Ugbodiyen participated in his arrest.
Furthermore, the Appellant referred to the evidence of PW1 under cross-examination as revealing the sham in his purported identification. This is because even after the Appellant had been arrested and purportedly identified, PW1 still admitted that he told a juju priest and members of the community that he did not know those who came to rob him.
The Appellant submitted that where the identity of an accused person is in doubt, the only option open to the prosecution/police is to conduct an identification parade which was not done in the instant case. The Appellant submitted that as his identity was in doubt in the instant case, the procedure employed by the Police in having him identified is not acceptable in law as it ran foul to the proper method of identification in the circumstances of this case. The cases of Ojukwu v. State (2002) 4 NWLR (Pt. 756) 80 at 87, 88 and 90; and Afolalu v. State (2009) 3 NWLR (Pt. 1127) 160 at pages 167 and 189, were cited in aid. The Appellant urged the court to hold that he was not properly identified as one of the persons who robbed PWs 1 and 2, and to discharge and acquit him accordingly.
The Respondent dealt with the Issue relating to the identification of the Appellant under its Issue 2. It is the stance of the Respondent that identification parade is not obligatory where there is good and cogent evidence linking the accused person to the crime on the day of the incident. In other words, that identification parade is not a sine qua non to a conviction for an alleged crime. That identification parade is only essential in the following instances; (i) where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence; (ii) where the victim or witness was confronted by the offender for a very short time; and (iii) whether the victim due to time and circumstance might not have had the full opportunity of observing the features of the accused and the case of Afolalu v. The State cited as “(2011) Vol. 194, 136 at 149 ratio 15” was relied upon.
It is the stance of the Respondent that PW2 in her statement to the Police at the earliest opportunity gave an account which showed that she had a previous encounter with the Appellant and his cohort before they returned to strike later on the same day. The Respondent submitted that identification parade is not conducted where the victim recognized the accused person and that the best identification is by the victim of the crime or a witness to the crime. The cases of Okosi v. State (1998) 1 ACCR 281 at 284; and Ukpabi v. State (2004) 119 LRCN at 4322, were cited in aid.
As earlier stated, learned CSC urged the Court to discountenance the Reply Brief of the Appellant as it is a re-argument of the Appellant’s case. The position of the law concerning reply brief is settled having regard to the plethora of authorities on the matter. In the case of IKEM v. VIDAH PACKAGING LTD (2011) All FWLR (Pt. 601) 1476. I had cause to dwell on the purport of reply brief and when it is necessary to file one. This is what I said at pages 1498 – 1499:-
“Reply Brief is meant to answer or respond to new or fresh points raised in the respondent’s brief of argument. It is not an avenue through which or by which an appellant should canvass or proffer further or repeat arguments in support of an appeal on the pre of replying on points of law. Consequently, where new points do not arise from the respondent’s brief, a reply brief would not be necessary and when filed, will not be in accordance with the provisions of the Court of Appeal Rules. If the respondent’s brief has joined issues with the appellant’s brief, the appellant need not repeat the issues joined, by emphasis or expatiation. See ODON v. AMANGE (2010) All FWLR (509) 496; and IYAGBA v. SEKIBO (2010) All FWLR (Pt. 518) 949.”
The position of the law concerning the purpose and necessity of filing of reply brief as stated above is no different in criminal appeals. See OCHEMAJE v. THE STATE (2008) All FWLR (Pt. 435) 1661 at 1681; and EYO v. THE STATE (2010) All FWLR (Pt. 533) 1914 wherein this court per Omokri, JCA; (of blessed memory) at page 1927 stated thus:-
“A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or argument raised in the respondent’s brief calls for a reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a reply brief is otiose and the court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief: Mozie v. Mbamalu (2006) All FWLR (Pt. 341) 1200, (2006) 15 NWLR (Pt. 1003) 460 at pages 469 – 467. For emphasis, it may be necessary to refer to the provision of Order 17, rule 5 of the Court of Appeal Rules, 2007. It Provides:
xxxxx
In the instant appeal, I have before now reproduced the Issues formulated for determination in the appeal by the Appellant and Respondent in their respective Briefs of Argument. It is clear from the Issues as couched that while Appellant’s Issue 2 and Respondent’s Issue 1 are ipsissima verba, the same cannot be said of Issue 1 as formulated by the Appellant and Issue 2 as formulated by the Respondent, Though the Issues in question as differently couched by the parties relate to identification evidence, the Respondent in my considered view clearly gave the issue of identification in the instant case a peculiar slant which the Appellant did not give the Issue. As a result of this, the argument of the Respondent on the issue of identification was somehow if not radically different from that of the Appellant.
Against the backdrop of this, and guided by the authorities cited hereinbefore, as well as the provision of Order 18 Rule 5 of the Court of Appeal Rules, 2011, it is my considered view that the Appellant ought to and indeed properly responded to Respondent’s Issue 2 in his Reply Brief. This being my conclusion, I do not see how the court can properly discountenance the whole or entirety of the Appellant’s Reply Brief. It is only the argument of the Appellant in relation to Respondent’s Issue 1 (which has no slant whatsoever vis-a -vis Appellant’s Issue 2) that will be discountenanced on the ground that it is nothing more than a re-argument by the Appellant of his Issue 2.
Dwelling on Respondent’s Issue 2 in his Reply Brief, the Appellant submitted that to the effect that the stance of the Respondent is not well founded in view of the evidence of PWs 1 and 4 and reference was made to the pieces of evidence of the witnesses in question. The Appellant stressed that as it was clear from the evidence of PW4 that he was not the only one arrested, and also as PW1 testified that he told a juju priest that he did not know those who came to rob him; the scenario necessitated the holding of identification parade. That having not conducted an identification parade, the only logical conclusion is that PW1 relied heavily on the identification made by Ugbodiyen who was not a victim of the crime in purporting to identify him (i.e. Appellant). That as a number of boys were arrested, an identification parade ought to have been conducted by the Police and failure to do this, was not only fatal to the case of the prosecution but ought to have created a doubt in the mind of the court regarding his (Appellant’s) identification. The Appellant urged the Court to now resolve the doubt in this regard in his favour and cited in aid the case of Adeyemi v. State (2011) 5 NWLR (Pt. 1237) 1 at 11.
Learned counsel to the parties have cited cases relating to identification evidence/identification parade in their respective Briefs of Argument. I have read the cases and it is my considered view that there is actually nothing recondite concerning the principles relating to identification evidence as put in place or enunciated by the courts. It would however appear that problems only arise in the application of the principles to the circumstances of each case.
It is not in doubt that a person who is the victim of a criminal act would want the culprit or culprits to be caught and if caught to be brought to justice to answer for his/their criminal deed/deeds. It would appear that the courts (particularly as it relates to evidence of identification) have recognized that a victim of a crime in the quest or pursuit that the perpetrator(s) of the crime against him is/are punished, might be genuinely mistaken in his identification of the said perpetrator(s) or might outrightly decide to implicate someone or persons of known bad disposition just as the law enforcement agencies might also want to capitalize on the crime committed to have known or perceived miscreants put behind bars. It would appear that it is against the backdrop of the human error to which identification evidence is susceptible or the mischief to which it can be put, that the courts while realizing the primacy or preeminence of identification evidence in the proof of the commission of a crime by an accused person have consistently counseled for caution or some restraint in convicting on the same where it is wholly or substantially the evidence relied upon by the prosecuting agency. I will dwell specifically on three cases to buttress the views herein before expressed.
The first of the cases is that of NDIDI v. THE STATE (supra) cited in the Appellant’s Brief of Argument. Dwelling extensively on the issue of identification evidence in the lead judgment, Aderemi, JSC; made the point that in criminal cases, generally, the crucial issue is not ordinarily whether or not the offence was committed. That more often than not, the controversy always rages over the identification of the person or persons alleged as the actual perpetrators of the offence charged. That it therefore follows that identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. That in order to ascribe any value to the evidence of an eye-witness identification of a criminal, the courts in guarding against cases of mistaken identity must meticulously consider the following issues:
(1) Circumstances in which the eye-witness saw the suspect or defendant.
(2) The length of time the witness saw the subject or defendant.
(3) The lighting conditions.
(4) The opportunity of close observation.
(5) The previous contacts between the two parties.
In the case under reference, it was stressed that whenever the case against an accused person depends wholly or substantially on the correctness of his identification which the defence alleges to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identification. His lordship further stated the locus classicus on the issue of identification to be the English case of R v. Turnbull & Ors. (1976) 3 All ER 548 – a decision of the court of Appeal (England) Criminal Division presided over by Lord Widgery CJ and written by him.
It must be appreciated that our courts have not only cited with approval this decision over the years, but also that it was expressly approved by the Supreme Court in IKEMSON v. THE STATE (1989) 6 SC (Pt.5) 114.
The second of the cases is that BALOGUN v. ATTORNEY-GENERAL OF OGUN STATE (2002) 6 NWLR (Pt. 763) 512. Dwelling on the principles governing the need for identification parade in the said case, the Supreme Court per Uwaifo, JSC; made it clear at page 534 that an identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness’s power of recognition based on the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubt as to who was seen in connection with the offence to require identification parade. An identification parade, his lordship further disclosed is absolutely unnecessary, when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.
The third and last of the cases I wish to dwell upon specifically is that of STATE v. SALAWU (2012) All FWLR (Pt. 614) 1. One of the issues the Supreme Court considered in the case was:-
“Whether the Court of Appeal was right to have come to the conclusion that the respondent was not properly identified by PW2 who was the victim of the robbery operation.”
Dwelling on the issue in the lead judgment, Ngwuta, JSC; stated at page 26 thus:-
“The totality of the evidence of PW2 0n this alleged identification of the respondent is at page 37 of the record. It is hereunder reproduced:
“I identified the accused person at the police station, when he was arrested and brought. The accused also identified me and said it publicly that he took the vehicle from me.”
Wittingly or by deliberate design, the police turned the process of identification on its head and a subsequent identification parade would have been a farce as the witness has been firmly fixed upon the respondent as the person who took a car from him: Balogun v. Attorney-General, Ogun State (2002) FWLR (Pt. 100) 1287, (2002) 2 SCNJ 196 at 211-212.
The robbery was said to have taken place about 7:30p.m. to 8:00p.m. on a street without street light. Even though the PW2 claimed be (sic) could observe the respondent, there is no evidence that the PW2, if he did observe the person who robbed him, stated the physical features of that person to the police at the earliest opportunity he had. As if enough harm had not been inflicted on the appellant’s case, the police decided to work from the answer to the problem they had to solve by ordering the respondent to identify his alleged victim.
The facts as presented, warrant the conduct of an identification parade, taking into account the need for:
(a) description of the accused given by the witness to the police shortly after the commission of the crime;
(b) the opportunity the witness had of observing the accused, and
(c) the features of the accused noted by the witness and communicated to the police which mark him out of (sic) other people.
Patrick Ikemson & 2 Ors v. The State (1989) 1 CLRN 1 at 18. It is disturbing that learned counsel for the appellant would urge the court to endorse the conviction of the appellant based on a travesty of the identification process. I resolve issue 2 against the appellant.”
Equally, dwelling on identification evidence in the case under reference, Adekeye, JSC; at page 36 – 37 stated thus:-
“As regards the identification of the respondent, the appellant disclosed that he was not apprehended immediately at the scene of the crime in Ilorin but was arrested nine days after the robbery incident in Lagos. It is therefore imperative that the respondent must be linked with the crime by cogent and convincing identification. It is settled law that it is not in all criminal cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification parade may be unnecessary. Furthermore, where an accused person by his confession has identified himself, there would be no need for any further identification parade. Identification is the means of establishing whether a person charged with an offence is the same person who committed the offence.
It is essential in instances where:
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
(b) The victim or witness was confronted by the offender for a very short time.
(c)The victim due to time and circumstances might not have had the full opportunity of observing the features of the accused….
Identification parade is not the only way of establishing the identity of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused, a parade is not necessary.
Recognition of an accused may be more reliable than identification: Eyisi v. State (2001) EWLR (Pt. 35) 750, (2001) 8 WRN 1.
In practice, in an identification parade, the proper thing for the police to do is to shield an accused from members of the public before the identification is conducted. The victim testified that he could identify the respondent during the incident with the reflection of right from nearby house but the police decided to resort to recognition. The system adopted in the process of recognition was contrary to normal routine. The police got the respondent to identify his victim. The mode of identification adopted by the police deprived the court of considering issues such as:
(a) Circumstances in which the eye witness saw the suspect.
(b) The length of time the witness saw the suspect or defendant.
(c) Longer observation made in difficult condition.
(d) Previous contact between the two parties.
This irregular identification parade of the respondent was against his claim that he has no brother named Muritala whom the police claimed was their link in bring the respondent back to Ilorin. It was the evidence of the respondent that he was not arrested and brought back to Ilorin in connection with any robbery incident but for shooting Shittu Abdullahi, son of General Adangba..”
It is in my considered view most clear from the cases cited above, that identification parade is not conducted in vacuo or for no cause at all and also that it must not be dispensed with where the circumstances of the case demand that it be conducted. In this country, the Police is the body charged with the investigation of the types of offences preferred against the Appellant. The police in the discharge of their investigatory duties act on information at their disposal and sagacity. The decision whether or not there is need to conduct a formal identification parade for the purpose of establishing the fact that a particular person is the perpetrator of a crime is obviously one that must be taken by the Police at the investigatory stage and the conduct of a formal identification parade must also be undertaken at the investigatory stage by the police haven decided that there is need for one. In other words before the conduct of an identification parade is embarked upon in the course of Police investigation, the need for the same must have arisen from information given to the police by an eye-witness to the commission of the crime showing that he had some encounter no matter how brief with the perpetrator(s) of the crime (who the eye-witness did not know before); and who the eye-witness must have at least told the Police he could identify if seen again or must have told the police his features that he noted and which marks him out from other persons.
It is clear from the record of appeal and particularly the evidence adduced at the trial by the prosecution through PWs 1 – 4 that the Appellant was not arrested at the scene of the robbery of 24/3/2006 in which PWs 1 and 2 were victims. Haven regard to the evidence of PW4, the Appellant was arrested while fleeing from his own house on sighting the team of Policemen in which PW4 was, and which team of Policemen on 25/3/2006 left for Iruekpen haven received information that some boys were seen with a double barrel gun. It is also clear from the totality of the evidence placed before the lower court by the prosecution through PWs 1, 2 and 4, that the Appellant was not only a person who PWs 1 and 2 never knew before the date of the robbery incident in which they were victims but also that the Appellant was not arrested pursuant to any information given to the Police by PW 1 and/or PW2 regarding the Appellant’s appearance or description. The evidence of PW4 during examination-in-chief and under cross-examination regarding how the Appellant came to be arrested and identified as recorded on pages 26 and 27 respectively of the record clearly does not depict the police as having specifically set out to arrest the Appellant who was named or described in any manner by PW1 and/or PW2, The relevant portions of the evidence in question are re-produced hereunder:-
“On the 25/3/06 I was in my office at the Nigeria police station ekpoma (sic) in the anti robbery office when one Abel Ojo (PW1) came to make a report in company of PW2. They reported a case of armed robbery. They both made voluntary statements, upon information received that same day a team lead (sic) by Inspector Ekoja patrol with me in the team left the station to Iruekpen. That some boys were seen with a double barrel gun, we visited the scene of crime, we arrested some boys in Iruekpen. On getting to the accused compound he took to his heals. He was pursued and arrested. We executed a search warrant in his house, we recovered a life catrage (sic) in a bag. We arrested the accused and his father and took them to the station. At the station the PW1 identified him as the person that robbed him the previous night.
Cross examination by Ehiemua:-
… We (my team) arrested the accused. We arrested a number of boys, to the station. At the station PW1 identified him. I am not aware that the PW1 said that it was one man who identified the accused to the police. The PW1 identified the accused immediately we got to the station with the accused and the other boys. We did not conduct an identification parade.”
True it is that at the trial, both PWs 1 and 2 testified to the effect that they told the Police in their statements that they could identify the robbers who robbed them if seen again and described the Appellant as having a beard on his chin. The lower court in its judgment averted to Exhibits 1 and 2 which are the statements of PWs 1 and 2 respectively, in ascribing credibility to the evidence of the said witnesses. The lower court would however appear to have missed the point that having regard to the evidence of PW4 it was on 25/4/2006 at the police Station that PW1 identified the Appellant and that the Exhibit 1 in which the Appellant was described as having a beard was made on 30/3/2006, i.e. after the Appellant had been arrested and PW1 had seen him. In other words, PW1 in the statement was clearly not giving any description that could have been said enabled the Police arrest the Appellant but was simply stating what he saw concerning the Appellant after he was arrested and brought to the Station. In the case of PW2 she simply stated in Exhibit 2 made on 31/3/2006 that she later identified one of the two boys who came to her house as Desmond without disclosing where the identification was made or done. In my considered view it would appear to require no complicated thought process to conclude that the identity of the Appellant after his arrest must have been disclosed to PW2 for her to be able to identify the Appellant by name. In any event, the evidence of identification of the Appellant during the investigation of the case as proffered by the prosecution through its witnesses at the trial was made by PW1 only, having regard to the evidence of PW4. In other words, PW2 was never an identifying witness having regard to the evidence of the Police Investigating Officer (IPO) on record.
The Appellant did not confess to the commission of the robbery in which PWs 1 and 2 were victims in his statement admitted as Exhibit 3 or in his evidence at the trial. In Exhibit 3, PW4 recorded the Appellant to have stated to the effect that he was fingered or pointed out for arrest by one Ogbodiye and in his evidence before the lower court he stated this much.
The lower court in its judgment dwelled on the identification evidence adduced by the prosecution at pages 65 – 68 with particularity. At pages 66-68 the lower court stated thus:
“The PW2 in her testimony said she asked the accused and his partner if they had come again when they returned that evening. The PW1 in his statement to the police, Exhibit “1” said on calling his wife the PW2 to attend to the two boys who said they wanted to buy drinks, she said to them:
“………….. that you people came in the afternoon to buy minerals and now turn to beer”
Obviously, she recognised them from their visit earlier on.
In Ikemson v. State (1998) 1 ACLR 80 at pg.97 Karibi-Whyte, JSC opened (sic) that identification parade is only essential in cases where the victim does not know the accused before and was confronted by the offender for a very short time, in which time and circumstances he might not have had full opportunity of observing the feature of the accused. See also the R v. Turnbull & Ors (1976) All ER 549 at 551.
In the instant matter the PW1 said the accused and his partner came to their house at about 6:30p.m. that evening. He continued:
“I identified the accused as the person who came to me. The accused had bears, he was with me in the room for about 2 hours, the light was on, I was able to identify him out of the boys. He was not masked during the robbery.”
Looking at the evidence before me I am in agreement with the Learned Legal Officer that PW1 and PW2 had enough time and opportunity to recognise this accused person during the robbery in their home on the day of the incident. He (accused) spoke to them all through the period he was with them and his partner, while threatening to kill PW1 for being a wicked Police Commissioner. The PW2 saw him twice that day of this incident. Edozen (sic) JSC in Ukpabi v. State (2004) supra opened (sic) at pg.4330 of the report that:-
“Identification evidence is evidence tending to show that the person charged with an offence is the same as the person who was shown committing the offence.”
I am satisfied with the identification of the accused person in this matter as the person who robbed the PW1 and PW2 on the day of this incident. PW2 struck me as witness of truth. It must have been a traumatic experience for PW1 and PW2. The PW2 broke down in the witness stand, while giving evidence and wept bitterly.”
Having regard to the cases I have cited hereinbefore, I am of the considered view that the lower court was clearly oblivious of the fact that the correctness of the identification of the Appellant as one of the robbers that robbed PWs 1 and 2 was glaringly in issue and called for resolution having regard to the manner of investigation into this case as well as evidence adduced at the trial. As earlier stated there was no evidence that either of PW1 or PW2 knew the Appellant before the robbery incident and/or that the Appellant was arrested pursuant to any description concerning him given to the police by either of PW1 or 2. The claim of PWs 1 and 2 in their respective evidence before the lower court to the effect that they could identify the robbers who struck in their home based on the previous encounters they had with the robbers only went to show that they would have been able to recognize the robbers if seen again. Again, it must be stated that the IPO never testified that PW2 identified the Appellant at anytime during the course of the investigation. It would also appear clear that at no time before PW1 made his statement admitted as Exhibit 1 did he tell anybody that he knew the robbers or give their descriptions. In this regard I consider it pertinent to re-produce a portion of the evidence of pw3 as recorded at pages 24- 25. It goes thus:-
“I left for home later. As I was in my house a boy called Uguodiyen came to tell me that the boys who robbed me are in his compound. I asked him if he could tell this to the PW1 he said yes. I then took him to the PW1 to report what he told him. At day break my brother reported to the police. Ugbodiyen went with them for the arrest. I made statement to the police.
Cross examination by Ehiemua:-
My brother went to the community because the boys ran away. It was the juju priest. I was not there when my brother went to report at Iruekpen community, it was Ibodiyen and the police that went to arrest the boys.”
The situation in the instant case was not one in which PWs 1 and 2 or either of them caused the arrest of the Appellant as a result of their having recognised him anywhere after the robbery incident. Having regard to the evidence adduced by the prosecution through PW3, the Appellant was arrested by the Police with one Ugbodiyen in attendance. This piece of evidence is in consonance with the case and evidence adduced by the Appellant to the effect that he was fingered for arrest by someone who was not a victim of the robbery or an eyewitness thereto. This aside, according to PW4 the Appellant and some other boys were arrested to the station and it was at the station that PW1 (who was not shown to have previously disclosed anything concerning the identity or features of the Appellant to anybody at all) recognised the Appellant and identified him. It is my considered view that the Police in the circumstances narrated above ought to have seen the need for putting to test the power of recognition of PW 1 (the identifying witness/victim) by placing the Appellant in a line up amongst other suspects and people of various heights and sizes and thereafter for him (PW1) to be invited by the police to pick out those he recognised as the robbers. A fortiori, the lower court which had evidence in the same vein before it. The same procedure ought to have been adopted in relation to PW2 for her to be in a position to properly testify regarding the identification of the Appellant.
In other words there was every need to have conducted a formal identification parade in order to correctly identify the Appellant having regard to the circumstances of this case. The position of PW4 that PW1 identified the Appellant out of the persons/boys he and his team arrested to the police station on 25/3/2006 glaringly fell short of a proper identification parade as put in place by the courts in numerous decisions.
It has earlier been said that it is settled law that identification evidence is evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence. See ARCHIBONG v. THE STATE (2006) All FWLR (Pt. 323) 1747 at page 176; and the decision of this Court in ALIYU v. THE STATE (2007) All FWLR (Pt. 388) 1123 at page 1147. Where there is some doubt in relation to the correctness of the identification evidence before the court linking an accused person to the crime with which he is charged, such as the failure to conduct an identification parade, when it is necessary, the identification evidence in that circumstance cannot be found as properly tending to show that the person so improperly identified is the same as the person who was seen committing the offence.
Flowing from all that has been said before now, is that there was no proper identification of the Appellant as the person or one of the persons that robbed PWs 1 and 2 on 24/3/2006 as alleged in the Information preferred against the Appellant. Appellant’s Issue 1 is accordingly resolved in his favour.
APPELLANT’S ISSUE 2:
Dwelling on this Issue, the Appellant re-echoed the trite position of the law that the guilt of an accused person in relation to the offence or offences preferred against him must be proved beyond reasonable doubt and that the onus of proof in this regard, rests solely on the prosecution and never shifts. That failure on the part of the prosecution to prove or establish all the elements of a crime preferred against an accused person translates to a failure on the part of the prosecution to prove its case beyond reasonable thereby entitling the accused person to a verdict of discharge and acquittal. The case of Archibong v. The State (supra) was cited in aid. Having set out the means of proving the guilt of an accused person to be by (i) confession; (ii) by circumstantial evidence; and (iii) by the evidence of eye witnesses, and citing the case of Nsofor v. State (2004) 18 NWLR (Pt. 905) 292 in aid, the Appellant submitted that the prosecution by failing to call a vital witness in the person of one Mr. Ugbodiyen, who allegedly identified the robbers that robbed at the home of PWs 1 and 2, and later on, identified the accused person to the police for arrest, failed to prove its case beyond reasonable doubt. The case of Usufu v. State (2007) 1 NWLR (Pt. 1020) 94 at 118 was cited in aid. It is the stance of the Appellant that his identification as one of the robbers that struck in the home of PWs 1 and 2 was not established beyond reasonable doubt. This is more particularly so as the Police did not investigate the truthfulness of his alibi as contained in his statement and the case of Ozaki v. State (1998) 1 ACLR Pt. 31 at 47 was cited in aid. This court was urged to resolve the doubts in the instant case in favour of the Appellant and therefore discharge and acquit him.
The stance of the Respondent on the Issue is that it discharged the onus of proof on it as stipulated in Section 135 of the Evidence Act, LFN 2011. The ingredients of the offence of armed robbery which it has to prove beyond reasonable doubt were set out and the cases of Adedara v. State (2009) 52 WRN 66 at 72; and Bozin v. The State (1998) 1 ACLR 1 were cited in aid. It is the stance of the Respondent that the occurrence of the robbery incident, and that it was armed robbery, were proved by the evidence of all the prosecution witnesses. That the evidence adduced through these witnesses was not discredited, contradicted nor controverted during cross-examination. It is the further stance of the Respondent that the identity of the Appellant as being one of the robbers was proved through the evidence of PW1 and PW2. The court was urged to discountenance the evidence of the Appellant in relation to how he came to be identified and arrested as well as the submission relating to the non-calling of a particular witness. The Respondent submitted that it is not bound to call all witnesses but only material and vital ones and the case of Alor v. State (1998) 1 ACCR 658 at 660; and Afolalu v. State (supra) were cited in aid. In relation to the defence of alibi, it is the stance of the Respondent that the Appellant never disclosed any alibi that was worthy of investigation or capable of being investigated by the Police. The cases of Bozin v. State (supra); Gashi v. State (1965) 888 (sic); and Udoebre v. State (2001) page 2153 (sic) were cited in aid. It is the stance of the Respondent that as the lower court properly considered the ingredients of the offence of armed robbery and also rightly appraised the evidence before it in arriving at the conclusion that the prosecution proved its case beyond reasonable doubt, there is no power in this court being an appellate court to interfere with the findings of the lower court and the case of Oguonze v. State (1958) LRCN 3512 at 3539 was cited in aid.
The Issue under consideration as couched by the parties is “whether the guilt of the Appellant was established beyond reasonable doubt as required by law, justifying his conviction on the offence (sic) of Conspiracy and Armed Robbery.”
It is pertinent to first observe that the Appellant was charged on a two count Information with two distinct offences, namely Conspiracy to commit the offence of Armed Robbery; and the actual offence of armed robbery. It is clear from the judgment of the lower court that it was after it had initially expressed its satisfaction with the identity of the Appellant as the person who robbed PWs 1 and 2 on the day of the incident (see page 68 of the record) that the lower court proceeded to find the Appellant guilty of the offence of conspiracy on the premise that the Appellant and his partner acted in concert towards a common purpose to wit: armed robbery and consequently found and held that the prosecution had proved the guilt of the Appellant beyond reasonable doubt in both counts. In other words, it is clear as crystal that the lower court found the prosecution to have proved the offences preferred against the Appellant beyond reasonable doubt on the basis of the evidence of identification adduced by the Prosecution.
The constitution of the Federal Republic of Nigeria (as amended) in Section 36(5) creates a rebuttal presumption of innocence in favour of any person charged with a criminal offence. It is my considered view that the accusatorial system of justice (which is a legal system in which the prosecution is required to provide proof of guilt beyond a reasonable doubt with the evidence being assessed by an impartial judge and jury) necessarily came to the fore against the backdrop of the presumption of innocence created in favour of the accused person by the constitution. Hence the trite position of the law that the onus is on the prosecution to prove the guilt of the accused person and this it is to do by establishing the offence preferred against an accused person beyond reasonable doubt and not beyond every shadow of doubt. See NJOKU v. THE STATE (2013) All FWLR (Pt. 689) 1072; and OLATINWO v. THE STATE (2013) All FWLR (Pt. 685) 312. As already stated, the Appellant was charged before the lower court on a two count Information with the offences of conspiracy to commit the offence of armed robbery; and the actual offence of armed robbery. Both the Appellant and the Respondent in their respective Briefs of Argument are at one on the ingredients of the offence of armed robbery. The essential elements of the offence of armed robbery which the prosecution must prove or establish beyond reasonable doubt in order to sustain a conviction for the said offence are (i) that there must have been a robbery or series of robberies; (ii) that each robbery was an armed robbery; and (iii) that the accused was one of those who took part in the robbery or robberies while with arms. See OSETOLA v. THE STATE [2012] All FWLR (Pt. 649) 1020; and ONYENYE v. THE STATE (2012) All FWLR (Pt. 643) 1810. The proper approach to an indictment containing conspiracy charge and substantive charges as enunciated by the Supreme Court in the case of OSETOLA v. THE STATE (supra) at page 1037 is to deal with the substantive charge first and then proceed to see how far the conspiracy charge has been made out in answer to the fate of the charge of conspiracy.
The law is also settled that the prosecution in the discharge of the standard of proof imposed on it by law can utilize all or any of the following: (i) direct evidence of an eyewitness or eyewitnesses; (ii) circumstantial evidence; and (iii) confessional statement of the accused person. See ONYENYE v. THE STATE (supra) at 1835.
In the instant appeal, the Appellant clearly has no grouse against the findings of the lower court that a robbery incident occurred in the house of PWs 1 and 2 in which they were victims on 24/3/2006 and that the robbery was an armed robbery. The grouse of the Appellant is that the identification evidence adduced by the prosecution to establish that he was one of the robbers that carried out the armed is improper in that the correctness of his identification is in doubt inasmuch as a formal identification parade ought to have been conducted in the circumstances of this case but was not conducted.
The issue as to whether or not there was proper identification of the Appellant as one of the robbers that robbed PWs 1 and 2 has been dealt with before now and it is my finding that there was no proper identification of the Appellant as the person or one of the persons that robbed PWs 1 and 2 on 24/3/2006 as alleged in the Information preferred against the Appellant. It is clear as crystal from the record that there was absolutely no other evidence the lower court relied upon in finding the Appellant guilty of the offences preferred against him other than the evidence of identification of the Appellant by PW1 at the Police Station and identification of the Appellant by PW2 (which was no more than “dock identification” in as much as PW2 never identified the Appellant during Police investigation). The lower court by failing to appreciate that the conduct of a formal identification parade in order to establish the correctness of the identification of the Appellant was most necessary in the instant case, glaringly failed to see that there was weakness in the evidence of identification adduced by the prosecution.
The position of the law is to the effect that where any weakness is discovered in the evidence adduced by the prosecution in the proof of its case, such evidence cannot be said to establish the guilt of the accused person beyond reasonable doubt. In other words, where weakness is discovered the accused person must be given the benefit of doubt. See STATE v. SALAWU (2012) All FWLR (Pt. 614) 1; and NDUKWE v. THE STATE (2009) All FWLR (Pt. 464) 1447.
Against the backdrop of ail that has been said above, and haven earlier found that the identification of the Appellant as one of the robbers that robbed PWs 1 and 2 on 24/3/2006 was improper, it follows that the conviction of the Appellant for the two offences preferred against him upon the improper identification evidence adduced by the prosecution has derogated from the standard of proof beyond reasonable doubt required by law thereby entitling the Appellant to a verdict of discharge and acquittal as urged on this court by the Appellant. In other words, Appellant’s Issue 2 is resolved in his favour.
In the final analysis, the appeal is meritorious and clearly succeeds as the two Issues formulated for determination therein have been resolved in favour of the Appellant. Accordingly, the judgment of the rower court delivered on 22/4/2010 convicting and sentencing the Appellant to death by hanging pursuant to the provision of Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria, 1990 for the offences of conspiracy to commit the offence of armed robbery and the actual offence of armed robbery is set aside in its entirety. In the stead of the judgment, a verdict of discharge and acquittal is hereby entered in favour of the Appellant “Desmond Aichenabor”.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: His Lordship, the Hon. Justice A. O. Lokulo-Sodipe, JCA, has accorded me the privilege of having a copy of the Judgment just delivered by him. I have read the said Judgment, the briefs of argument of the respective learned counsel, as well as the record of appeal, as a whole.
Hence, I concur with the reasoning and conclusion reached in the said Judgment, to the effect that the present appeal is meritorious. Thus, I equally hereby allow the appeal set aside the Judgment and quash the conviction and sentence passed on the Appellant on 22/4/2010 in Charge No. HEK/14C/2008.
TOM SHAIBU YAKUBU, J.C.A.: The draft of the judgment just rendered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A., was perused by me, before now. My Lord’s exhaustive and illuminating reasons marshalled in the lead judgment clearly represent my thought and opinion on the vexed issue of identification evidence by victims and/or eyewitnesses with respect to the commission of armed robberies, especially as it pertains to the complicity of accused persons thereto. I, therefore fully agree with him.
His Lordship’s judgment is yet another veritable guide for trial judges, prosecuting counsel and police investigating officers, to follow in criminal trials, especially with respect to identification and/or recognition evidence. I have nothing more useful to add to it.
I, too allow the appeal and set aside the judgment of Edo State High Court of Justice Benin, dated 22nd April, 2010. The appellant is discharged and acquitted, accordingly.
Appearances
DESMOND AICHENABORFor Appellant
AND
THE STATEFor Respondent
