KINGSLEY AWO v. THE STATE
(2013)LCN/6498(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of November, 2013
CA/B/246C/2012
RATIO
WHETHER THE EXISTENCE OF QUALITY EVIDENCE FIXING THE ACCUSED PERSON TO THE LOCUS CRIMINIS CANCELS THE ALIBI SET UP BY THE ACCUSED PERSON.
Of course, where there is quality evidence fixing the accused person to the locus criminis, it cancels the alibi set up by such an accused person and the failure of the police to investigate the alibi would not be fatal to the conviction. The converse is also that where there is very poor evidence of identification which is unreliable and unable to positively fix the accused person at the scene of the crime, a failure by the police to investigate the alibi set up by the accused person like the appellate herein, is fatal to his conviction. Iheonunechukwu V. The State (2009) 2 SCNJ 223; Abubakar Tijani Shehu V. The State (2010) 3 SCNJ 343; Fabian Nwaturuocha V. The State (2011) 3 SCNJ 148; Egwemi V. The State (2013) 13 NWLR (pt. 1372) 525 at 548 (SC). Per TOM SHAIBU YAKUBU, 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
KINGSLEY AWO Appellant(s)
AND
THE STATE Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant was on 4th June, 2012 convicted and sentenced to death by hanging for the offence of conspiracy to commit armed robbery and armed robbery punishable under Section 1(2) (a) of the Robbery and Firearm (Special Provisions) Act, Cap R. 11 Vol. 14 Laws of the Federation of Nigeria, 2004; at the Delta State High Court of Justice, holden at Ozoro.
The appellant along with some other persons at large were said to have robbed one Omoviye Martins of his Teebro handset, two Nokia handsets, a Tiger Generating set and the sum of twenty three thousand naira (N23,000.00) only while armed with a gun along the Ozoro/Kwale Express Road, Ozoro on 19th May, 2009.
Furthermore, the appellant was alleged to have robbed one Glory Ofuvie of her motor cycle, a Nokia handset, a D.V.D. machine and the sum of N3,000.00 while armed with a gun along the same Ozoro/Kwale Express Road, Ozoro on same 19th May, 2009.
The Prosecution called five witnesses in order to proof the charges against the appellant. The star witnesses for the prosecution were the PW1 and PW2 who were the victims of the two armed robbery operations. The PW1 gave evidence of visual identification of the appellant as one of the armed robbers who attacked him on the fateful day. The PW2 could not identify the armed robbers.
The appellant denied the charges against him in his extra judicial statements obtained by the police and also in his defence at the trial. He indeed set up an alibi to the effect that on the fateful day of the alleged armed robbery, he was with his mother who lived at Ovrode community. He did this in his extra judicial statement obtained by the police who neglected to investigate the said alibi by interrogating the appellant’s mother.
The learned trial judge at the end of the trial, believed essentially the evidence of the PW1 with respect to the visual identification of the appellant. He convicted and sentenced him to death for the two charges aforementioned.
This appeal, is against the said judgment. The appeal was anchored on four grounds of appeal.
The appellant in order to prosecute the appeal, filed on 10th September, 2012; a brief of argument settled by Ayo Asala, Esq., of counsel dated 9th September, 2012. Three issues were distilled from the grounds of appeal for determination as follows:
“(i) Whether the learned trial judge was right to have relied on the evidence of identification of the appellant by the PW1 to hold that the prosecution proved the charges against the appellant beyond reasonable doubt.
(ii) Whether the learned trial judge rightly rejected the defence of alibi raised by the appellant in this case.
(iii) Whether from the totality of the evidence on record, the lower court was right in convicting the appellant for the offences of conspiracy to rob and armed robbery.”
O.F. Enenmo, Esq., Deputy Director of Public Prosecutions at the Delta State Ministry of Justice, settled the respondent’s brief of argument which was dated and filed on 3rd October, 2012. He too, identified three issues for determination, to wit:
“1. Whether the learned trial judge was right in law when he held that the prosecution proved its case against the accused person on the three counts beyond reasonable doubt. Ground(s) 1 and 4.
2. Whether there was evidence on record upon which the learned trial judge held that the appellant was identified as one of the robbers that robbed Omoviye Martins – PW3 (sic) (PW1) and Gloria Ofuvie PW2 in this case. Ground 2.
3. Whether the learned trial judge was right in law when he held that the defence of Alibi did not avail the appellant. Ground 3.”
I adopt the three issues formulated by the appellant in the determination of this appeal. Appellant’s issues (i) and (iii) covers respondent’s issues 1 and 2 whilst appellant’s issue (ii) cover respondent’s issue 3 respectively. Hence the two critical issues for determination of this appeal border on the identification evidence against the appellant and the appellant’s alibi set up against his prosecution and convictions, at the trial court.
Therefore, appellant’s issues (i) and (iii) shall be considered and determined together whilst his issue 2 shall be considered and determined separately in this judgment.
Arguing issue one, Mr. Asala for the appellant contended that the learned trial judge was in error when he relied on the identification evidence of the PW1 against the appellant. Learned counsel submitted that in order to ascribe any value to the evidence of an eye witness with respect to identification of an accused person, the court must guide against situations of mistaken identity, hence the court must be guided by:
(a) Circumstances in which the eyewitness saw the suspect whether it was in difficult conditions;
(b) The length of time the witness saw the suspect, whether at a glance or longer observation;
(c) The opportunity of close observation;
(d) Previous contact between the eyewitness and the suspect;
(e) The lighting conditions at the time of the identification.
He relied on Ochiba V. The State (2012) All FWLR (pt. 608) 849 at 871; R V. Turnbill (1976) 3 All ER 549 at 551.
Learned counsel to the appellant contended that by applying the above guidelines, it cannot be said that the PW1 positively identified the appellant as one of his attackers on the fateful day. Furthermore, he contended that the circumstances in which the PW1 was when he claimed to have identified the appellant was no more than a fleeting encounter between the two of them. He relied on Alabi V. The State (1993) 7 NWLR (pt. 307) 511 at 533.
Mr. Asala wondered why the PW1 did not at the earliest opportunity in making his statement to the police after the commission of the offence, describe the features of the appellant and urged that the PW1’s evidence of identification be held as being unreliable. He relied on Emenegor V. The State (2010) All FWLR (Pt. 511) 884 at 943; Isiekwe V. The State (1999) 9 NWLR (pt. 617) 43 at 62; Chukwu V. The State (1996) 7 NWLR (pt. 463) 686 at 702.
With respect to his issue (iii), appellant’s learned counsel submitted that the learned trial judge did not properly evaluate the identification evidence on record by the PW1 against the appellant.
Learned respondent’s counsel arguing his issues 1 and 2, submitted that there was sufficient and credible evidence by the prosecution which proved the charges against the appellant, beyond reasonable doubt. He relied on Isibor V. The State (2002) 4 NWLR (pt. 759) 741; Ogunzee V. The State (1998) 58 LRCN 3512 at 3551; Edamine V. The State (1996) 3 NWLR (pt. 38) 530. Learned counsel submitted that the learned trial judge rightly believed the credible evidence of identification of the appellant by the PW1 and that evidence even standing alone could sustain the conviction of the appellant. He referred to Eke V. The State (2011) 1 SCM 155; Odili V. The State (1977) SC (?).
Arguing his issue 2, the learned Deputy Director of Public Prosecutions, for the respondent, submitted that the PW1 having seen the appellant on the fateful day, was able to identify him, three weeks later when he saw him passing through Urude road at Ozoro. Mr. Enenmo insisted that the learned trial judge rightly believed the identification evidence of the PW1, having considered the factors of:
(1) The opportunity that the victim had in observing the accused person;
(2) The features of the accused person noted by the victim and communicated to the police that marked him out from the other accused persons;
(3) The length of time that the witness had in seeing/observing the accused person.
He referred to Adamu V. The State (1991) 4 NWLR (pt. 187) 530; The State V. Aibangbee (1988) 3 NWLR (pt. 84) 548; Adeyemi V. The State (1991) 1 NWLR (pt. 170) 679.
Respondent’s learned counsel, furthermore submitted that an appellate court will not normally interfere with the findings of a lower court, unless such findings are perverse or erroneous in substance or procedural law. He placed reliance on Ubani V. The State (2002) FWLR (pt. 95) 211; Wankey V. The State (1993) 5 NWLR (pt. 295) 542.
RESOLUTION OF ISSUES (i) AND (iii):
Indisputably, it is settled law that the correctness of the identification of an accused person in the commission of a crime and his complicity in it, is a most serious and critical exercise in the administration of criminal justice. This is not farfetched. It is the keystone which creates a link between the accused person and the commission of the offence alleged against him. Sunday Ani V. The State (2009) 6 SCNJ 98; Sunday Ndidi V. The State (2007) 5 SCNJ 274; Enesi Lukman Abdullahi V. The State (2008) 5 SCNJ 197.
Indeed, the dictum of Lord Widgery, Lord Chief Justice in R V. Turnbill (1976) 3 All ER, 569 at 551 has remained legendary words on marble and a veritable guide in considering the correctness of identification and recognition evidence, by the court. Hear him:
“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken……
Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If on any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asked to be given particulars of such description, the prosecution should supply them. Finally, he should remind the jury of any specific weakness which has appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.
All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”
The Supreme Court in Ochiba V. The State (2011) 17 NWLR (pt. 1277) 663; (2011) 12 SCNJ 526; (2012) All FWLR (pt. 608) 849 at 871, reechoed the guiding factors, to wit:
(i) Circumstances in which the eyewitness/victim of the attack saw the accused person – whether it was in difficult and distressed conditions;
(ii) The length of time that the witness had to see the accused person; was it at a glance or upon a longer observation;
(iii) Whether the witness had the opportunity of a close observation’
(iv) Evidence of a previous contact(s) between the witness and the accused person;
(v) The lighting conditions as at the time of the accused person’s attack on the witness/victim.
On my perusal of the identification evidence of the PW1 herein, it is clear as crystal that he had never seen the appellant prior to 19th May, 2009 when the alleged attack occurred. Furthermore, the appellant was not among the armed robbers who were in the same room with the PW1 when he sat down and a gun was pointed at his chest by one of them. It was in that condition that he was when he said he was able to see the appellant in his parlour and removing his items of property.
To my mind, PW1 must have been super human for a gun to be pointed at his chest while he was sitting down with some armed men hovering over him and could still see another robber in his parlour carting away some items of his property! It is difficult to believe that the PW1 was never distressed and terrified at the time of the attack on him. PW1 in the course of his evidence at the trial said:
“The IPO asked me if I knew them or not (sic) seen them before, I said no…… On the 3rd June, 2009, I was passing through Urude road, Ozoro, and I saw one of the armed robbers. He was among the robbers that attacked me in May, 2009. The armed robber was in front of a house along Urude road, it was around 2pm in the afternoon…….. the accused person is the armed robber I identified to the police along Urude road, Ozoro.”
I am afraid, no conviction can be sustained on this sort of very poor identification evidence at the instance of PW1. He did not know the appellant prior to 19th May, 2009. He did not describe the features of the appellant to the police, soon after the attack on him.
It is incomprehensible and unbelievable that the PW1, with two armed men standing over him and more particularly, according to him, with a gun pointed at his chest, and he was still able to see the appellant in an adjoining parlour, carting away his goods and property. Yet, the learned trial judge at lines 10 to 15 at page 84 of the record of appeal, found that:
“In the case of the accused person, the PW1 certainly had the opportunity to identify the accused person on the 19/5/2009 when he saw the accused person removing his tiger generator set and cell phone in his parlour from his bedroom through the connecting door which he said was open. He also had the opportunity to identify the accused person on the very next morning of the 20th May, 2009 when he saw the accused person riding the motor cycle of the PW2 at Obodeti.”
I am clearly of the firm opinion that since the identification of 19th May, 2009 was flawed as I demonstrated earlier in this judgment, any other identification or recognition evidence on 20th May, 2009 and 3rd June, 2009 were of no moment.
To my mind, the learned trial judge did not make a proper evaluation of the identification evidence by the PW1 against the appellant. Indeed, it is the law that the appellate court will not interfere with the findings of facts by a trial court, if such findings are supported by evidence on the record. Durugo V. The State (1992) 7 NWLR (Pt. 255) 525 at 535; Adegboyega Ibikunle V. The State (2007) 1 SCNJ 207; Oguonze V. The State 58 LRCN 3512 at 3539.
However, if such findings are found to be perverse, the appellate court will certainly interfere with it. Sunday Udosen V. The State (2007) 1 SCNJ 482.
I am satisfied that the finding by the learned trial judge at page 84 of the record of appeal with respect to the identification and/or recognition evidence of the PW1 against the appellant, is perverse and I overturn it, accordingly. In sum, I resolve issues (i) and (iii) for the appellant. With respect to issue (ii), the contention of Appellant’s learned counsel is that the appellant, at the earliest opportunity, that is, in his extra- judicial statement made to the police, upon his arrest, raised the defence of alibi, to the effect that on the fateful day of the armed robbery attack on PW1 and PW2, he was with his mother in Ovrode community. Learned counsel submitted that the said alibi was not investigated by the police. He referred to Yanor V. The State (1965) NWLR 337; Chukwu V. The State (1996) 7 NWLR (pt. 463) 686. He wondered that with the findings of the learned trial judge at pages 77 to 81 of the record of appeal, which were in favour of the appellant with respect to his alibi, the learned trial judge ought to have believed the appellant and not the evidence of the PW1.
Respondent’s learned counsel conceded that the learned trial judge rightly found that the police did not investigate the alibi set up by the appellant at the earliest opportunity with respect to this case. He however, contended that since the evidence of the PW1 had positively fixed the appellant at the scene of the crime on 19th May, 2009, his defence of alibi automatically failed. He relied on Odu V. The State (2001) FWLR (pt. ?) 271.
I have perused the findings of the learned trial judge at pages 77 – 81 of the record of appeal, to the effect that the police was duty bound to investigate the appellant’s alibi, but they failed to do so. That finding, irrefutably is correct. However, the learned trial judge, with respect, goofed and missed the point when he concluded at lines 4 to 7 at page 87 of the record of appeal thus:
“In these proceedings, the testimony of the PW1 which I believe clearly fixed the accused person on the scene of crime at the house of the PW1 on the 19th of May, 2009. Accordingly, the alibi raised by the accused person stands logically demolished and the defence of alibi raised by the accused person fails.”
Of course, where there is quality evidence fixing the accused person to the locus criminis, it cancels the alibi set up by such an accused person and the failure of the police to investigate the alibi would not be fatal to the conviction. The converse is also that where there is very poor evidence of identification which is unreliable and unable to positively fix the accused person at the scene of the crime, a failure by the police to investigate the alibi set up by the accused person like the appellate herein, is fatal to his conviction. Iheonunechukwu V. The State (2009) 2 SCNJ 223; Abubakar Tijani Shehu V. The State (2010) 3 SCNJ 343; Fabian Nwaturuocha V. The State (2011) 3 SCNJ 148; Egwemi V. The State (2013) 13 NWLR (pt. 1372) 525 at 548 (SC).
In Ilodibe Uche V. The State (2013) 28 WRN 145 at 167. I had the opportunity of restating the law on the defence of alibi, to wit:
“The law is no longer recondite as it is well settled that, if an accused person sets up an alibi as a defence, qua timet, at the earliest opportunity, the police investigating the offence for which the accused person is charged, is duty bound to investigate it, and at the trial of the case, the police also had an obligation to put in evidence, the result of its investigation. Just see Ukwunnenyi v. The State (1984) 4 NWLR (Pt. 114) 131 at 149. And it is not for the accused person to lead evidence to establish or prove his defence of alibi. No. It is the burden duty of the prosecution to disprove the defence of alibi set up by the accused person. See Salami v. The State (1988) 3 NWLR (Pt. 85) 670 at 677; (1984) 6 S.C. 357.”
The above, found support and confirmation by the apex court, more recently in Nnamdi Osuagwu V. The State (2013) 1 SCNJ 33 at 52 where His Lordship, Rhodes Vivour, JSC, succinctly re-echoed the same principle, inter alia:
“The onus is not on the accused person to establish alibi to the satisfaction of the court but for the prosecution to disprove it. A plea of alibi is demolished if the prosecution adduces sufficient and accepted evidence to fix the person at the scene of the crime at the material time. See Njovens V. The State 1973 5 SC p. 17.”
In the circumstances of the instance case, earlier in this judgment, I had resolved issues (i) and (iii) in favour of the appellant, to the effect that there was a poor evidence of identification of the appellant by the PW1 as to the complicity of the former in the attack on the latter on 19th May, 2009. Therefore, there is no positive nor sufficient evidence which could have been accepted as fixing the appellant at the scene of the crime on 19th May, 2009, in order to defeat the appellant’s defence of alibi. Hence the appellant’s alibi was neither investigated nor dislodged by the prosecution. Consequently, the conviction of the appellant cannot be allowed to stand.
My Lords, in the administration of criminal justice, it must always be borne in mind that “the two fold aim of criminal justice is that the guilty shall not escape justice or innocence suffer.” See Berger Vs. U.S. 295 U.S. 78 (1935) referred to in U.S. Vs. Nixon (U.S. President) 418 U.S. 683; Supreme Court 3090. OR put differently, by the spirit of the presumption of innocence guaranteed to an accused person under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, the policy of our courts is that it would be better to discharge ten (10) criminals than to convict one (1) innocent person, by mistake or error of law.
Hence, as eloquently admonished by the learned eminent jurist, Oputa, JSC., in Ukwunneyi V. The State (1989) 5 NWLR (pt. 114) 137 at 156, we must be reminded always that:
“Human justice has to depend on evidence and inferences. Dealing with the irrevocable issues of life and death, she has to tread cautiously lest she sends an innocent man to an early and ignoble death.”
Having come to the conclusion that the alibi set up by the appellant was erroneously rejected by the learned trial judge on the flawed and poor evidence of identification of the appellant by the PW1, I am satisfied that this issue be and it is resolved in favour of the appellant.
In effect, since all the issues in this appeal, have been resolved in favour of the appellant, it follows that the appeal is not wanting in merits. I, allow it accordingly.
The judgment of E.I. Oritsejafor, J., of 4th June, 2012 in Charge No. HCZ/17C/2010 is set aside.
The sentence of death by hanging placed on the head of the appellant, is also set aside. In its stead, the appellant is discharged and acquitted. His date with the hangman is aborted!
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had read, before now, the judgment prepared and just delivered by my learned brother, the Hon. Justice T.S. Yakubu, JCA. Having equally perused the briefs of argument of the respective learned counsel vis-a-vis the record of appeal, as a whole, I have no hesitation in concurring with the reasoning and the unassailable conclusion reached in the said judgment to the effect that the present appeal is meritorious.
Hence, having adopted the reasoning the conclusion reached in the judgment as mine, I hereby allow the appeal, set aside the judgment of the Delta State High Court in Charge No. HCZ/7C/2010 which was delivered by E.I. Oritsejafor, J, on 04/6/2012. Both conviction and sentence are hereby quashed. Consequently, the Appellant is discharged and acquitted.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has painstakingly and incisively too, dealt with the pertinent issues that call for determination in the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead judgment. I have nothing to add to the judgment and also adopt the lucid lead judgment as mine.
In the circumstances, I too find the instant appeal to be meritorious and allow the same. The judgment of the lower court delivered on 4/6/2012 convicting and sentencing the Appellant to death by hanging for the offences of conspiracy to commit the offence of armed robbery and the substantive offence of armed robbery, is hereby set aside. In its stead, a verdict of acquittal is entered and the Appellant discharged.
Appearances
Ayo Asala, Esq.For Appellant
AND
O.F. Enenmo, Esq., Deputy Director, Public Prosecutions, Ministry of Justice, Asaba, Delta State (with him: Miss N.D. Agusibo, Legal Officer, Ministry of Justice, Delta StateFor Respondent
