MURITALA AKIBU v. THE STATE (2016)

MURITALA AKIBU v. THE STATE

(2016)LCN/8154(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of February, 2016

CA/I/372c/2014

RATIO

EVIDENCE: IDENTIFICATION PARADE; THE PROPER AND ACCEPTABLE METHOD CONDUCT IDENTIFICATION PARADE

The law is that, an identification parade must be carefully conducted and therefore it is very wrong to parade the suspect before the witness and ask “Is this the man?” or “Are these the people that robbed you last night?” The proper and acceptable method is to place the suspect with sufficient number of other persons of similar sex, height, weight and colour as the suspect, and then have the identifying witness pick out the accused person from among them without any prodding by any person. It is therefore improper, as was done in the instant case, to invite a witness to identify an accused person not mixed up with other people. That being so, an identification parade with only the accused person(s) on parade is certainly not an identification parade known to the law. See Okeke v. State (1995) 4 NWLR (Pt. 392) p. 676 at 707; Ikemson v. State (1989) 3 NWLR (Pt. 110) p.455; Bozin v. The State (1985) 2 NWLR (Pt. 8) p.465 and Alabi v. State (1993) 7 NWLR (Pt. 307) p. 511. per. HARUNA SIMON TSAMMANI, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ROBBERY; THE DEFINTION OF THE OFFENCE OF ROBBERY

The offence of robbery as earlier pointed out, has been defined by Section 11 of the Robbery and Firearms Act (supra). At the pain of repetition, I find it necessary for easier understanding of this issue, to again reproduce that definition here. Thus, Section 11 of the Act states that:
“robbery” means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” per. HARUNA SIMON TSAMMANI, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ROBBERY; WHAT THE PROSECUTION MUST PROVE TO SUCCEED IN PROVING THE OFFENCE OF ROBBERY
From the above stated definition of “robbery”, for the prosecution to succeed in proving the offence of robbery, they must adduce credible evidence which prove the below stated ingredients beyond reasonable doubt;
(a) That the accused stole something capable of being stolen;
(b) That the accused used or threatened to use violence immediately before or immediately after the time of stealing the thing; and
(c) That the violence or threat of it was either on a person or property for the purpose of obtaining or retaining the thing stolen or to prevent or overcome resistance to its being stolen or retained.
It would be seen that the central elements to be proved in a charge of robbery are the act of stealing; and the use or threat of use of violence either on a person or property with the aim of obtaining or retaining the thing stolen or to prevent or overcome resistance to the thing being stolen or retained. See Rabiu v. State (2010) 10 NWLR (Pt. 1201) p.127 and Otti v. State (1993) 4 NWLR (Pt. 290) p.675. per. HARUNA SIMON TSAMMANI, J.C.A.

CRIMINAL LAW; THE DEFINITION OF THREAT AND WHAT CONSTITUTES ROBBERY

The Black’s Law Dictionary (8th Ed.) defines “threat” at page 1519 thereof as:
“a communicated intent to inflict harm or loss on another or on another’s property, especially one that might diminish a person’s freedom to act voluntarily or with lawful consent.”
The Black’s Law Dictionary (supra) also defines “threat” as an approaching menace; or a person or thing that might well cause harm. My Lord, Pats-Acholonu, JCA (as he then was and of blessed memory) brought out the meaning clearer in the case of Nwomukoro & Ors v. State (1995) 1 NWLR (Pt. 375) p.432 at 449 in these words:
“For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence of his person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking. I believe that intimidation or constructive force by which what is commonly described as fear of God is put in a person and in which crime of robbery is committed shall include administration of force or menace and other means by which a crime of robbery is committed shall include all other means by which the victim is put in fear sufficient to sustain at the material time free exercise of his will power as to make it awfully difficult or near impossible for him to offer any resistance to any one taking his property” per. HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

MURITALA AKIBU Appellant(s)

AND

THE STATE Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court, sitting at Ijebu-Ode and delivered by the Hon. Justice O. A. Onafowokan on the 28th day of March, 2014.

Before the said High Court, the Appellant and one other were arraigned on a three counts amended charge alleging the offences of conspiracy to commit and the commission of armed robbery, which are offences contrary to Sections 6(b) and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004. The Appellant and his co-accused were found guilty on counts 1 and 2 of the Amended Charge and sentenced to twenty-one (21) years each for conspiracy to and the commission of robbery simpliciter. They were however discharged and acquitted on the third (3rd) Court.

A summary of the facts of this case is that, on the 27th day of July, 2010, the Appellant conspired with one other person, who was tried along with him, to and did rob one Bola Otuyelu, in her home at Itanrin Village, Ijebu-ode within the Ijebu-ode Judicial Division of the High Court

of Ogun State. At, the trial, the said Bola Otuyelu who was victim of the alleged crime, testified to the effect that she and her children were sleeping, at about 2:00a.m in the night of 27/7/2001, when she heard noise from outside their home. That, the intruders entered the house through the kitchen which door they broke down; and that it was the sound of the door that woke her up, she tried to call her brother but could not do so because, the intruders had already closed in on her. According to her (PW1) the intruders scattered the whole house and collected her handset and that of her child.

According to the witness (PW1), the intruders even attempted to rape her when her telephone rang from the bathroom where she had dropped it, so the robbers took the phone, switched it off and left. According to her, it was the Appellant who tried to rape her. That when the robbers came, there was no light in her room as she usually puts out the light before going to bed, but that she could see the Appellant who was not wearing a mask with the aid of the light from her bathroom and the torchlight carried by her attackers.

?At the trial, the prosecution also led

evidence to show that, the PW2, a member of the Vigilante Group in the area, received a distress call that night of the incident whereof he organized some members of his group to search for the robbers. That, the Appellant and his co-accused were arrested that night and handed over to the police and that upon being searched, the handset phones stolen from the P.W.1 were found on the Appellant and his co-accused. That, the Appellant made a statement to the police which statement was confessional. At the trial, the said statement was admitted in evidence, after a trial-within-trial, as Exhibit ‘B’.
The defence of the Appellant was a complete denial of the charges against him, when he retracted or resiled from his statement made to the police and which is in evidence as Exhibit ‘B’.

?At the hearing, the prosecution called three witnesses who testified as P.W.1, P.W.2 and P.W.3 and also tendered three exhibits which were admitted and marked as Exhibits A, B and C respectively. The Appellant testified in his defence as the D.W.2. At the close of evidence, parties filed and exchanged Written Addresses and in a well-considered judgment delivered on the

28/3/2014, the learned trial Judge found that the Appellant could not be convicted for armed robbery as the facts before him did not disclose the offence of armed robbery. The learned trial Judge however found that the facts established the offence of robbery simpliciter; and accordingly found the Appellant guilty on the charge of conspiracy and for robbery. The Appellant being aggrieved by the judgment of the trial Court has now filed this appeal.

The Notice of Appeal which is at pages 88 – 91 of the Record of Appeal was undated but filed on the 02/5/2014. It consists of four (4) Grounds of Appeal, which without their particulars, I hereunder reproduce as follows:
1. The learned trial Judge erred in law when he held as follows:
“In the circumstances, since the accused persons did not cast doubt on the inference that the available light was sufficient for PW1 to see the accused persons, I find the evidence of identification of the PW1 unassailable. I believe it and hold that the PW1 had ample opportunity and visibility to clearly identify the accused persons.”
2. The learned trial Judge erred in law when he held as follows:
“Apart

from the evidence of the PW1, the prosecution led further evidence through the PW2 and PW3 to the effect that the accused persons were arrested not long after they left the PW1’s house and that the two phone sets belonging to PW1’s were found on them after search at the police station. These pieces of evidence in my view not only make identification parade unnecessary, see: Adamu v. State (1991) 4 NWLR (Pt. 187) 530; it strengthened the evidence of the PW1 and unequivocally linked the accused persons to the scene of crime and the offences alleged. I so hold.”
3. The learned trial Judge erred in law when he held as follows:
“Having regard to the evidence on both sides on the charge of armed robbery, I find and hold that the prosecution only succeeded in proving the offence of robbery and not armed robbery beyond reasonable doubt. I therefore resolve the 2nd issue against the prosecution. It is however the law pursuant to Section 179 of the Criminal Procedure Law of Ogun State that where the evidence adduced and the facts found are insufficient for conviction for the offence charged but at the same time support the lesser offence in respect of which

the accused was charged, he may be convicted of the lesser offence. See Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765; Odeh v. F.R.N. (supra) and Ezeja v. State (2008) 10 NWLR (Pt. 1096) p.513. On that premise, I find the accused persons guilty of the offence of robbery and convict accordingly.”
4. The judgment of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.

On these Grounds of Appeal, the parties filed and exchanged Briefs of Arguments in compliance with the Rules of this Court. The Appellant’s Brief of Arguments settled by Olusegun Idowu; Esq. was dated and filed the 18/5/2015 but deemed filed on the 16/9/2015. At page 3 of that Brief of Arguments, the Appellant raised three issues for determination as follows:
1. Whether the learned trial Judge was right that the PW1 had ample opportunity and visibility to clearly identify the Appellant in view of the facts, circumstances and totality of the evidence adduced before him? [Ground One].
2. Whether in view of the facts, circumstances and the evidence adduced, the learned trial Judge was right that identification

parade was unnecessary? [Ground Two].
3. Whether on the facts and circumstances of this case, all the ingredients of charge of robbery could be said to have been proved beyond reasonable doubt by the Respondent to warrant the trial Court convicting the Appellant for same and consequently sentencing him to 21 years imprisonment? [Ground Three].

The Respondent’s Brief of Arguments settled by Miss F. F. Fakolade (Principal State Counsel, Ministry of Justice, Ogun State) was dated and filed on the 14/10/2015. Therein, two issues were formulated for determination as follows:
(i) Whether the Appellant was properly identified and linked to the scene of crime and the offences alleged so as to warrant his conviction by the trial Judge?
(ii) Whether from the totality of the evidence adduced at the trial, the Respondent proved the charge of conspiracy to commit Robbery and Robbery against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act, No. 18 of 2011?

A cursory look at the issues formulated by the Appellant would show that, issues 1 and 2 deal with the issue of identification evidence, and which issue

correspond with issue (i) raised by the Respondent. Issue three (3) on the other hand correspond with the 2nd issue raised by the Respondent. On that note, I take it that there are only two issues that call for determination in this appeal, and will therefore determine this appeal on the issues as nominated by the Respondent. Accordingly, I shall adopt the issues raised by the Respondent as mine in the determination of this appeal.

Now, arguing on issue one learned counsel for the Appellant contended that, in view of her evidence under cross-examination to the effect that there was no light in her bedroom as she does not sleep with light on, PW1 could not have clearly identified the Appellant as one of the suspects that broke into her room on the 27/7/2010. That, identification of the Appellant by PW1 as one of the accused persons that robbed her on the day in question was based on the light coming from her bathroom and the torchlight one of the intruders was holding, which ordinarily should have the effect of weakening the veracity of the identification evidence of by the PW1. The cases of Musa v. The State (1996) 8 NWLR (Pt. 468) p.610; Wakala v. State

(1991) 8 NWLR (Pt. 211) p.552 and Abudu v. State (1985) 1 NWLR (Pt. 1) p.55 at 61 – 62 per Coker, J.S.C. were then cited to submit that, the trial Court did not warn itself of the special need for caution and the desirability to weigh such evidence with others adduced by the prosecution before acting on such evidence of identification, particularly when the case put forward by the Appellant depended wholly or substantially on the correctness of the identification.

It was further submitted that, though the PW1 gave evidence that she put on the light in her bedroom when the robbers came in and also that there was light from the torchlight carried by one of the robbers, there was however no evidence from her that the Appellant went into the bathroom with her when her phone which she had left in the bathroom rang. That, the quality of identification by the PW1, was very poor and therefore, the learned trial Judge should have returned a verdict of not guilty. The cases of Chukwu v. The State (1996) 7 NWLR (Pt. 463) p.686 and Khaleed v. State (1997) 8 NWLR (Pt. 516) p.237 were then cited to urge us to hold that the learned trial Judge was wrong in holding that

the PW1 had ample opportunity and visibility to identify the Appellant.

Learned Counsel for the Appellant went on to contend that, it is the law that a formal identification parade becomes necessary when, as in the instant case, the identity of the accused person in relation to the offence charged is in dispute. The case of Ogoala v. State (1991) 22 N.S.C.C. (Pt. 1) p.366 was then cited to submit that, the issue of identification also becomes necessary in instances where the accused person was not caught at the scene of crime. Furthermore, that where the identification of the accused person is blurred or fuzzy, a formal identification parade is necessary. That, though an identification parade is not necessary or a sine qua non in all cases, but in situations where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstances he might not have had full opportunity of observing the features of the accused, an identification would be necessary. That in such situations, a proper identification will take into consideration the description of the accused given to the police shortly after

the commission of the offence, the opportunity the victim had for observing the accused, and the features of the accused noted by the victim and communicated to the police that marks him out from other persons. The cases of R. v. Turnbull & Ors (1976) 3 W.L.R. 445; Adisa v. State (1991) 1 NWLR (Pt. 168) p. 490 at 505-506 and Madagwa v. State (1988) 5 NWLR (Pt. 92) p.60 were cited in support.

Learned Counsel for the Appellant referred to the testimony of the PW1 under cross-examination to submit that, the mode of identification of the Appellant by PW1 at the police station was a sham, irregular and a charade as the PW1 was assisted by the police to identify the Appellant. The cases of Okeke v. State (1995) 4 NWLR (Pt. 392) p.676 at 707 and Bozin v. The State (1985) 2 NWLR (Pt. 8) p.465 were then cited to submit that, the identification parade in which the accused is put among several people is more reliable. We were accordingly urged to hold that, the identification parade is necessary on the facts and circumstances of this case, and thus resolve this issue in favour of the Appellant.

?On this issue, learned counsel for the Respondents contended

that, there is overwhelming evidence adduced by the prosecution to prove that the PW1 properly identified the Appellant as one of the suspects that broke into her home on the 27/7/2010. That the PW1 while describing the lighting situation in the home stated clearly that, when the Appellant came into her room, she put on the light in the bathroom while trying to call her brother on phone and that there was also light coming out from the torchlight carried by one of the assailants. Furthermore, that PW1 also stated the role played by the Appellant in the course of the robbery as she stated that it was the Appellant who tried to rape her. That, the PW1 was never cross-examined, challenged nor shaken on this aspect of her testimony. The cases of Oforlete v. State (2000) FWLR (Pt.12) p.2081 at 2098 Paragraphs H-A and Adeyemi v. State (1991) 2 NWLR (Pt. 170) p.679 were then cited to submit that, in such a circumstance, the learned trial Judge was right in accepting and relying on that evidence

Learned Counsel for the Respondent went on to submit that, the case against the Appellant was not based wholly on identification of the Appellant by PW1. The cases of

Ogedengbe v. State (2014) LPELR-23065; Emeka v. The State (2000) 14 NWLR (Pt. 734) p.666 at 683 and Igabele v. The State (2006) 2 S.C. (Pt. II) p.61 at 69 were then cited to submit that, the guilt of an accused person can be established by one or combination of any of the following methods:
(a) By confessional statement,
(b) By circumstantial evidence; or
(c) By evidence of eye witnesses.

That, the prosecution proved their case by the three methods stated above, as apart from the evidence of PW1 who was an eye witness and victim of the crime, the Appellant made confessional statement to the police (Exhibit A). The cases of Dibie v. State (2007) All FWLR (Pt. 363) p.83 at Paragraphs C-D and Nwachukwu v. State (2001) All FWLR (Pt. 390) p.1380 at 1406 and 1409 were then cited to submit that, a confessional statement once it has been proved and admitted will be sufficient to convict thereon. That, based on the confessional statement of the Appellant therefore, the identity of the Appellant was not in dispute at the trial. Furthermore, that where an accused person confessed to the offence and the confession is found to be consistent with other

relevant facts proved at the trial, outside of the confession, an identification parade becomes irrelevant and therefore superfluous. The cases of Akeem Agboola v. The State (2013) LPELR-20652 per Onnoghen, JSC; Hakeem Fatai v. State (2013) LPELR-20182; Ukpabi v. The State (2004) 34 W.R.N. p.133; Ikemson v. The State (1959) 3 NWLR (Pt. 110) p.455 and Abubakar Usman v. The State (1991) 5 S.C.N.J. p.129 were cited in support.

Learned Counsel for the Respondent also submitted that, apart from the testimony of PW1 and the confessional statement of the Appellant, there are other pieces of evidence which link the Appellant to the commission of the offence upon which he was convicted. Those other pieces as enumerated by learned counsel are:
(a) The two phones stolen from the PW1 in the course of the robbery were recovered from the Appellant.
(b) The Appellant and the co-accused were arrested by PW2 that same night of the robbery while coming out from the bush and immediately handed over to the police.

That, ironically, the prosecution witnesses were never cross-examined on those vital facts adduced by the prosecution. The cases of Eyisi v. State

(2000) 15 NWLR (Pt. 691) p.555; (2010) LPELR-1186 and Oforlete v. State (supra) were cited to submit that, those vital facts effectively linked the Appellant to the commission of the offences for which he was convicted. Learned Counsel for the Respondent then submitted that, the arguments of the Appellant on the evidence of identification ignored those vital pieces of evidence adduced by the prosecution at the trial. The case of Emenegor v. State (2010) All FWLR (Pt. 511) p.884 at 942 was then cited in urging us to hold that the prosecution adduced sufficient evidence which linked the Appellant to the commission of the offences for which he was convicted.

Now, by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), every person charged with a criminal offence shall be presumed to be innocent until the prosecution proves him guilty. Section 36(5) of the 1999 Constitution (supra), therefore, creates a presumption of innocence in favour of all persons who are accused of having committed criminal offences. This presumption of innocence has the concomitant effect of laying a burden on the prosecution to proof the guilt of the

accused person. See also Sections 131(1) and (2) and 132 of the Evidence Act, 2011. Such burden can only be said to have been discharged if the prosecution lead evidence which establishes or proves every ingredient of the offence beyond reasonable doubt. See Section 35 of the Evidence Act. It therefore means that, to discharge that burden, the prosecution must lead credible evidence which establishes every essential element or ingredient of the offence. That burden in criminal cases remains on the prosecution and never shifts. The burden also entails not only proving all the essential elements of the offence charged but also rebutting all defences raised by the accused, although in some instances, the law will cast on the accused the burden of proving certain facts. See Section 136 of the Evidence Act, 2011. See also Abdullahi v. State (2008) 17 NWLR (Pt. 1115) p.203; Amala v. State (2004) 12 NWLR (Pt. 888) p.520; Maiyaki v. State (2008) 15 NWLR (Pt. 1109) p.173 and Ndukwe v. The State (2009) 7 NWLR (Pt. 1139) p.43.

?In the instant case the Appellant and his co-accused were charged and subsequently arraigned, for the crimes of conspiracy to and the

commission of armed robbery. The learned trial Judge however found that, from the evidence adduced before him, the offence of armed robbery had not been proved. He however found that the evidence before him discloses that the lesser crime of robbery simpliciter had been committed by the Appellant. The learned trial Judge therefore, exercised the power granted him by Section 179 of the Criminal Procedure Law of Ogun State, to convict the Appellant and his co-accused for robbery and for conspiracy to commit robbery. As stated earlier, it is against such conviction that this appeal has been instituted.

At this juncture, I find it necessary to point out that, the offence of robbery has been created by Section 1(1) of the Robbery and Firearms Act (supra) which stipulates that:
1.(1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years.
The offence of robbery created by Section 1(1) of the Robbery and Firearms Act (supra) has been defined under the Interpretation Section of the Act (supra), which is Section 11 as follows:
“robbery” means

stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
By Section 1(2)(a) of the Act, where in the course of the robbery, the accused person or offender is armed with a firearm or any offensive weapon or is in the company of any person so armed, the crime committed is armed robbery. Where such offender or any of such persons in company with him is not armed with any firearms or any offensive weapon, the offence committed is simple robbery. The difference between robbery and armed robbery is also seen in the punishment prescribed for each of them. While armed robbery is punishable with death, simple robbery is punishable with imprisonment only.

For the purposes of this appeal, it will suffice to point out that, for the prosecution to prove that robbery has been committed by the prisoner; they must have led credible evidence which established the following facts beyond reasonable doubt:
(a) That there was a robbery or series of robberies;

and
(b) That the accused person was the robber or one of the robbers.
It would be seen therefore, that it will not be sufficient for the prosecution to, lead evidence that there was a robbery or that a robbery had been committed. They must proceed to lead evidence which fixes or links the accused person with the commission of the robbery charged. In most cases, the Courts are saddled with the burden of determining whether or not evidence adduced at the trial has linked the accused person with the crime. The dispute that often arises in such situations has always been on the identity of the perpetrator or perpetrators of the crime i.e., whether the accused person is the perpetrator or one of the perpetrators of the crime.

Now, in most of the case were armed robbery or robbery is alleged our Law Reports are replete with cases where the issue of proper identification of the real culprit in the commission of the offence has become an issue in the trial. The Supreme Court has therefore insisted that, before a person could be convicted for such an offence, the Court must test the evidence of identify in the light of other evidence adduced at the

trial, and carefully evaluate such evidence of identity. The Court must therefore be satisfied that the evidence on the identity of the accused person leads to no other conclusion than that he has been linked with the commission of the offence beyond reasonable doubt. Identification evidence is therefore that which tend to show that the person charged with the offence is the same person who was seen committing the offence. When faced with such situation, the Court must therefore ensure that the evidence led on the identity of the accused established the culpability of the accused person beyond reasonable doubt. See Ndukwe v. State (2009) 7 NWLR (Pt. 1139) p.43; Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) p.170 and Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) p.40.

The identity of the culprit that committed the offence charged would become an issue at the trial where:
(a) The victim did not know the accused person prior to the time of the alleged crime and his acquaintance with him (accused) was during the commission of the offence; or
(b) The victim or witness was confronted by the offender for a very short time; or
(c) Due to time and

circumstances of the encounter, the victim might not have had full opportunity of observing the features of the accused.
In such situations as enumerated about, it is desirable that an identification parade be conducted so as to clear any doubt about the evidence of identity. The identification parade is therefore limited to cases where there is a real and not imagined doubt or dispute as to the identity of the accused person or his link with the offence charged. Identification parade would therefore not be necessary where a witness or victim knew the accused person well before the incident, and has given the police his name. See Ndukwe v. State (supra); Eyisi v. State (2000) 15 NWLR (Pt. 691) p.555 and Ukpabi v. State (2004) 11 NWLR (Pt. 884) p.439.

In considering the evidence of identify, the learned trial Judge reviewed the testimony of the PW1, who is the victim of the robbery and held in the last paragraph of page 84 of the Record of Appeal as follows:
“The evidence was not challenged nor was PW1 shaken under cross-examination. Though I am not unmindful of the evidence of PW1 under cross-examination that there was no light in her bedroom,

the evidence however thin into in significance in view of her evidence of other sources of light from the bathroom and the torchlight carried by the accused person.”

The learned trial Judge then held at page 85 lines 3 – 6 of the Records that:
“In the circumstances, since the accused persons did not cast doubt on the inference that the available light was sufficient for PW1 to see the accused persons, I find the evidence of identification of the PW1 unassailable. I believe it and hold that the PW1 had ample opportunity and visibility to clearly identity the accused persons…”

It is clear from the Record of Appeal that the evidence of identification came from the PW1, who also happened to be a victim and thus an eye witness to the commission of the offence. To appreciate the decision of the learned trial Judge on the issue, I find it necessary to reproduce the relevant portion of the testimony of the PW1, which is at page 14 lines 16 – 25 of the Records. Therein, the PW1 stated that:
“I know the two accused persons. It was the 2nd accused that attempted to rape me on 27/7/10. It was the first accused that led them. He was the one asking me

questions and I saw his face because I knelt down before him begging him. At the station, the two accused persons were brought out and I identified them as those that came to my house. I identified the 1st accused by his dress. It was the dress he wore when they attacked me? There was no light inside on the 27/7/10. We usually put off the light before we go to bed. When they came in, I put on the light in the bathroom while trying to call my brother on the phone. The other light in the apartment was from the torchlight carried by the accused persons.”

Under cross-examination, the PW1 reiterated that there was no light in her bedroom when the robbers came. She proceeded to state that:
“In the morning, at the police Station, they brought out two people for me to identify. The accused persons were the two people shown to me. I identified the 1st accused by his dress. I identified the 2nd accused because he did not cover his face and he stood in front of me, talking to me. I made a statement at Obalende police station. I stand by the statement but it was not detailed as my evidence in Court now…”

?From the above reproduced testimony of the

PW1, it is obvious that there was no light in her bedroom, being the battle area that the acts of robbery took place. It is also her testimony that the only source of light in the bedroom was from her bathroom and the torchlight held by one of the intruders. There is no description of the position of her bathroom vis–vis her bedroom and therefore no evidence of the degree of brightness that flooded into her bedroom from the bathroom. Obviously, the robbers did not want to be identified, and therefore it is very doubtful if the intruders who had removed the security light bulbs at the back and sides of the house so as to avoid being identified, could allow light from the bathroom to illuminate the bedroom to such an extent or intensify that could make their being identified possible. I also find it difficult to comprehend how the identification of the assailants was possible through the torchlight held by one of the assailants. From the testimony of the Appellant therefore, I am of the view that the evidence as to the circumstances of the robbery does not support the evidence of PW1 that she was able to clearly identify the Appellant as one of the

persons that robbed her on the 27/7/2010. It is therefore my view that, in the circumstances of the case, an identification parade was essential to clear any doubt as to the identity of the actual culprit. See Okafor v. State (2006) 4 NWLR (Pt. 969) p.1; Ibrahim v. State (1991) 4 NWLR (Pt. 186) p. 399 and Ikemson v. State (1989) 3 NWLR (Pt. 110) p.455. See also Ndukwe v. State (supra) at pp.79-80 Paragraphs H-A.

The evidence as testified to by the PW1 is that, in the morning following the robbery and subsequent arrest of the Appellant, she was invited by the Police to the Police Station where the Appellant and the co-accused where brought out and shown to her. That she was then asked whether she could identity them as the culprits in the robbery that took place in her house, and that she answered in the positive. Though she told the Court that she made a statement to the police, she did not say whether she made the statement before or after the Appellant was shown to her. If she had made the statement before the Appellant was shown to her, it is the description of the Appellant given to the police that would have formed an important factor in the conduct

of the identification parade. Unfortunately, her statement made to the police is not in evidence as it was never tendered by the prosecution at the trial. What the Court is left with is her evidence as, to the identity of the Appellant during her testimony in Court, and what was done at the Police Station. At the police station, what is on record is that, the police merely showed the Appellant to the PW1 and she was asked whether he is one of the persons that robbed her. That conduct does not accord with the law on the conduct of an identification parade.

?The law is that, an identification parade must be carefully conducted and therefore it is very wrong to parade the suspect before the witness and ask “Is this the man?” or “Are these the people that robbed you last night?” The proper and acceptable method is to place the suspect with sufficient number of other persons of similar sex, height, weight and colour as the suspect, and then have the identifying witness pick out the accused person from among them without any prodding by any person. It is therefore improper, as was done in the instant case, to invite a witness to identify an accused person not

mixed up with other people. That being so, an identification parade with only the accused person(s) on parade is certainly not an identification parade known to the law. See Okeke v. State (1995) 4 NWLR (Pt. 392) p. 676 at 707; Ikemson v. State (1989) 3 NWLR (Pt. 110) p.455; Bozin v. The State (1985) 2 NWLR (Pt. 8) p.465 and Alabi v. State (1993) 7 NWLR (Pt. 307) p. 511.

That is however not the end of the matter on this issue. This is in view of the holding of the learned trial Judge at page 85 lines 7 ? 14 of the Record of Appeal. Therein, the learned trial Judge had made findings and held that:
“Apart from the evidence of the PW1, the prosecution led further evidence through the PW2 and PW3 to the effect that the accused persons were arrested not long after they left the PW1’s house and that the two phone sets belonging to the PW1 were found on them after search at the police station. These pieces of evidence in my view not only make identification parade unnecessary, see Adamu v. State (1991) 4 NWLR (Pt. 187) 530, it strengthened the of the PW1 and unequivocally linked the accused persons to the scene of crime and the offences alleged. I so

hold.”

The learned trial judge therefore found from the evidence adduced at the trial that, identification parade was unnecessary, in view of the finding of the handset phones of the PW1 in possession of the Appellant and the co-accused. This finding of the learned trial Judge, in my view, cannot be faulted. This is because, it is the law that, where other evidence adduced at the trial unequivocally links the accused person with the offence with which he has been charged, identification parade is no more necessary in order to ascertain the involvement of the accused. Thus, in the case of Adisa v. State (1991) 1 NWLR (Pt. 168) p.490 at 505, Tobi, JCA (as he then was) held that:
“It is not in every case that an identification parade to identify a suspect is necessary. That will not only protract the investigation process but will stultify it. I can only foresee two main instances when identification may not be necessary in the judicial process. The first is when the suspect, the subject of the identification, is caught in the process of committing the offence. In popular language and by way of a clich, the suspect is caught red-handed, which

etymologically means in the very act, or immediately after, as if with bloody hands. The second is when he admits committing the offence, and subject to adjectival rules of admissions and confessions, a trial Judge can safely convict on the admission or confession. In both cases, the legal and factual nexus between the crime and the suspect is beyond doubt.”

In the instant case, the Appellant was arrested some few hours after the robbery. Furthermore, the PW1’s handsets, which were stolen in the course of the robbery were found on him. The law is that, where a person is arrested immediately after the offence was committed; and the property stolen found on him, the presumption under Section 167(a) of the Evidence Act, 2011 is that, he is either the thief or has received the goods knowing them to be stolen. In the instant case, the Appellant did not explain how he came by the stolen handsets some few hours after they were stolen from the PW1 in the process of the robbery. Again, the Appellant made a statement to the police in which he confessed to the robbery. That statement was tested, proved and admitted in a trial within a trial, as Exhibit ‘B’. Though

the Appellant resiled from or retracted that statement, the learned trial Judge carefully applied or subjected the statement to the tests enjoined on the Courts to apply before convicting on a retracted confessional statement, and found that there were other evidence which show clearly and unequivocally the culpability of the Appellant in the commission of the robbery charged. For clarity, the learned trial Judge found on the confessional statement of the Appellant as follows:
“The evidence of the PW1, that four people came to her house in the middle of the night and stole two phone handsets; the PW2’s evidence that the accused persons were arrested that night not long after the incident and handed over to the police and the further evidence of the PW2 and PW3 that when the accused persons were searched at the Police Station, two phones which later turned out to be the phones stolen from the PW1 were recovered, not only greatly corroborate Exhibits A and B, it shows that the facts therein are true. No reasonable person would expect the accused persons to deny the allegations against them after the PW1 had identified the two handsets recovered from them as

those stolen from her. These pieces of evidence fortify Exhibits A and B and make them consistent with other facts admitted in evidence. In the circumstances of all the above, I agree with Mr. Adebayo that the evidence of PW1, PW3 and Exhibit C without any equivocation make the truth of the confession highly probable.”

From the evidence on record, I agree with the above findings and conclusion thereon by the learned trial Judge. It therefore means that, despite the defects and limitations on the evidence of the PW1 on the identity of the Appellant in relation to the robbery committed in her house, and indeed the “identification parade” conducted by the police, there is ample evidence linking the Appellant with the commission of the offence. See Osung v. State (2012) 18 NWLR (Pt. 1332) p.256. See also, Otti v. The State (1993) 4 NWLR (Pt. 290) p.675 at 680; Ogoala v. State (supra) and Okosi v. State (1989) 1 NWLR (Pt. 100) p.642. I therefore agree with the learned trial Judge that the Appellant was effectively linked with the commission of the offence for which he was convicted. This issue is therefore resolve against the Appellant.

?On issue two

(argued by the Appellant as issue three), learned counsel for the Appellant submitted that, the burden was on the Respondent to prove all the ingredients of the offences charged. He then referred to the definition of stealing under Section 11 of the Robbery and Firearms Act (supra), to contend that robbery under the Act simply means stealing with the use of violence or threat of violence. The case of Nwachukwu v. State (1985) 3 NWLR (Pt. 11) p.218 was cited to submit that, for the offence of robbery to be sustained, the prosecution must prove:
(a) That the accused stole something;
(b) That the thing stolen is in law capable of being stolen;
(c) That the accused threatened to use or actually used violence immediately before or immediately after the time of stealing the thing;
(d) That the violence could be on either a person or on a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

It was further submitted by learned counsel for the Appellant that, before it can be said that the prosecution has proved its case beyond reasonable doubt; every ingredient of the

offence charged must be established. The case of Bozin v. The State (1985) 2 NWLR (Pt. 8) p.465 was cited in support. That from the facts and circumstances of this case, it cannot be said that the Appellant actually threatened to use violence or used violence immediately before or after the time of stealing the PW1’s handset phones. That, the learned trial Judge should have convicted the Appellant for stealing rather than for robbery, because, in learned counsel’s view, the prosecution succeeded in establishing the ingredients of the offence of stealing only against the Appellant.

Furthermore, that the offence of robbery which is a lesser offence than armed robbery for which the Appellant was charged, was not properly proved and that the trial Court erred in convicting the Appellant for the offence of conspiracy to commit robbery and robbery. According to learned counsel for the Appellant, there was no iota of evidence suggesting that the Appellant threatened or used violence on the PW1 in order to collect her two handsets. For this submission, learned counsel drew our attention to the findings of the learned trial Judge thereon, at page 85 of the Record

of Appeal. On that premise, we were urged to hold that the learned trial Judge was wrong when he convicted the Appellant for the offence of robbery. The case of Isibor v. State (2001) FWLR (Pt. 78) p.1077 was cited in support.

In response, learned counsel for the Respondent contended that, the prosecution proved the charges of conspiracy to commit robbery and robbery against the Appellant beyond reasonable doubt, and the trial Court was right in convicting the Appellant as such. Learned Counsel also drew our attention to the definition of “stealing” as stated in Section 11 of the Robbery and Firearms Act; and proceeded to draw the distinction between robbery simpliciter and armed robbery as stated by Ariwoola, JSC in the case of Akeem Agboola v. The State (2013) LPELR-20652. The essential elements to be proved in a charge of robbery as stated in the cases of Taofeek Adeleke & Anor v. The State (2011) LPELR-3606; Otti v. State (1993) 4 NWLR (Pt. 290) p.675; Aruna v. State (1990) NWLR (Pt. 155) p.125 and Haruna Rafiu v. The State (2012) LPELR-7897 were then listed by learned counsel. It was therefore submitted that the prosecution led credible evidence

to proof that two handsets belonging to PW1 were stolen from her (PW1) by the Appellant and others on the 27th day of July, 2010, and that those two phones were recovered from the Appellant and his co-accused upon search conducted their bodies, after they had been arrested. That those facts were never contradicted nor controverted by the defence, either by way of cross-examination or evidence on those points. It was accordingly submitted that, the fact of stealing of the two phones was proved beyond reasonable doubt.

Learned counsel for the Respondent also submitted that, the offence of robbery is committed when there is use of violence or threat of the use of violence to any person or property, either before or immediately after the commission of the offence. The case of Haruna Rafiu v. The State(supra) was cited in supported. That the violence envisaged under the Robbery and Firearms Act (supra), could be on either a person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen or retained. The cases of Taofeek Adefeke & Anor v. The Stateand Otti v. State (both supra) were cited in support. That,

in the instant case, the prosecution led credible evidence to show that the Appellant and the other robbers used violence to the property of PW1 in order to collect her handsets. Furthermore, that there is credible evidence to show that the Appellant also threatened PW1 in order to collect her phones. Learned counsel drew our attention to pages 13 lines 20 – 30 and 14 lines 1 – 7 on the point and the cases ofBabalola & Anor v. State (1970) LPELR-2826; (1970) All N.L.R. p.46 and Otti v. State (supra), to submit that, what has been clearly proved from the evidence of PW1 is that, violence was clearly used in breaking into the PW1’s house and threat of rape was also issued to her and her children in the act of stealing the two phones by the Appellant. The case of Semiu Afolabi v. The state (2013) LPELR-20700 was also cited in support.

It was further submitted by learned counsel for the Respondent that, apart from the facts that the Appellant and the other intruders broke the door of PW1’s house and also threatened to rape her and her children, the fact that the Appellant and others entered the house at about 2.00a.m uninvited was enough threat to PW1

and her children. That in such circumstances, any reasonable person in PW1’s shoe would have felt threatened by the presence of intruders at that hour of the night. We were therefore urged to hold that, the learned trial Judge was right when he held that having regard to the evidence adduced, the prosecution had succeeded in proving the offence of robbery and not armed robbery beyond reasonable doubt.

As pointed out earlier in the course of this judgment, the Appellant and his co-accused were charged and arraigned at the trial Court for the offences of conspiracy to and the commission of the offence of armed robbery. After evaluation of the evidence led before him, the learned trial Judge found that the offence of armed robbery was not disclosed by such evidence. Rather, he found that the evidence disclosed that the offence of robbery simpliciter had been proved beyond reasonable doubt and accordingly exercised the power granted him by Section 179 of the Criminal Procedure Law of Ogun State, to convict and sentence the Appellant for robbery. There is no appeal against the step taken by the trial Court. However, the Appellant has appealed against his

conviction for robbery, and argues that, he should have been convicted for stealing only and not robbery. Now, I had in the course of this judgment also pointed out that, for the Court to convict for any offence, the evidence led thereon by the prosecution must prove all the essential elements of the offence beyond reasonable doubt. After evidence has been led, the trial Court has the sole and primary responsibility of evaluating the entirety of the evidence, both oral and documentary, before arriving at the decision, whether to convict or not to convict. In the instant case, the learned trial Judge, upon such evaluation of the evidence led before him, found that armed robbery had not been proved beyond reasonable doubt, but found that the facts have established the commission of the lesser offence of robbery simpliciter.

immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
From the above stated definition of “robbery”, for the prosecution to succeed in proving the offence of robbery, they must adduce credible evidence which prove the below stated ingredients beyond reasonable doubt;
(a) That the accused stole something capable of being stolen;
(b) That the accused used or threatened to use violence immediately before or immediately after the time of stealing the thing; and
(c) That the violence or threat of it was either on a person or property for the purpose of obtaining or retaining the thing stolen or to prevent or overcome resistance to its being stolen or retained.
It would be seen that the central elements to be proved in a charge of robbery are the act of stealing; and the use or threat of use of violence either on a person or property with the aim of obtaining or retaining the thing stolen or to prevent or overcome resistance to the thing being stolen or

retained. See Rabiu v. State (2010) 10 NWLR (Pt. 1201) p.127 and Otti v. State (1993) 4 NWLR (Pt. 290) p.675. In the instant case, the grouse of the Appellant against his conviction for the lesser offence of robbery is that, there was no evidence before the trial Court pointing or even suggesting that he (Appellant) used or threatened to use violence on the PW1 in order to collect the two handsets from PW1. On that basis, the Appellant contends that the conviction for robbery was erroneous and therefore perverse.

Let me digress a little to state that, what the Law penalizes under the Robbery and Firearms Act, is the act of stealing by the use of violence or threat of the use of violence. Where the act of stealing is not accompanied by the use or threat of the use of violence, the offence committed is simple theft, which is not punishable under the Robbery and Firearms Act (supra). In most cases such act of stealing is done stealthily. However, where the act of stealing is accompanied by the use or threat of use of violence on a person or property in order to take or retain such property taken; or to prevent or overcome any resistance to its being stolen

or retained; such act of stealing becomes robbery. On the other hand, where the perpetrator of the act of robbery is armed with a firearm or other offensive weapon, such robbery aggravates to armed robbery. In the instant case, the learned trial Judge found that the prosecution proved the fact of robbery but failed to prove that the Appellant nor the co-accused was in possession of any firearm or offensive weapon.

I need to reiterate that the complaint of the Appellant is that, the prosecution failed to prove that the Appellant used or threatened to use violence on the PW1. In the instant case, though the evidence on record discloses that the Appellant and his co-accused gained entry into the PW1’s house by the use of force, there is no evidence to show that any violence was actually practiced on the PW1. However, even where actual violence was not practiced, but threatened, the fact of robbery would have been proved. In other words where the robber threatens to use violence in the process of committing the offence of stealing (theft), the offence of robbery is said to have been committed. The Black’s Law Dictionary (8th Ed.) defines “threat” at page 1519

thereof as:
“a communicated intent to inflict harm or loss on another or on another’s property, especially one that might diminish a person’s freedom to act voluntarily or with lawful consent.”
The Black’s Law Dictionary (supra) also defines “threat” as an approaching menace; or a person or thing that might well cause harm. My Lord, Pats-Acholonu, JCA (as he then was and of blessed memory) brought out the meaning clearer in the case of Nwomukoro & Ors v. State (1995) 1 NWLR (Pt. 375) p.432 at 449 in these words:
“For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence of his person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking. I believe that intimidation or constructive force by which what is commonly described as fear of God is put in a person and in which crime of robbery is committed shall include administration of force or menace and other means by which a crime of robbery is committed shall include all other means by which the victim is put in fear sufficient to sustain at the

material time free exercise of his will power as to make it awfully difficult or near impossible for him to offer any resistance to any one taking his property”
?It appears to me therefore that, any act or statement by the assailant which creates fear in the mind of the victim that violence would be inflicted on him if he does not cooperate, would amount to threat of use of violence within the contemplation of Section 11 of the Robbery and Firearms Act (supra). The threat of use of violence need not be by words. It could be communicated by conduct or any menacing move from the robber which would create fear in the mind of a reasonable person. The act or conduct of the robber should be such that it would be foolhardy to resist or refuse to cooperate. The learned trial Judge did not make any specific finding of fact on whether or not violence was used or threat of it, on the PW1. He only held that from the facts of the case, the offence of robbery was committed. The evidence thereon came from PW1 who stated in her evidence in chief at pages 13 – 14 of the records as follows:
“On the 27th day of July, 2010, they came back again. They came about 2:00a.m

in the midnight. They removed the light bulbs at the back and sides of the house. They went to the place they entered through the last time. They saw that the iron there had been doubled. They tried to remove the iron because the cement was still fresh. I saw their footprints there. When they could not remove it. They went to the door by the kitchen. They broke down the door and entered. It was the sound of the door that I heard that woke me up. I quickly picked my telephone set and called my brother. He picked my call but I had no opportunity to tell him what was happening because the invaders had closed in on me and I had to drop the telephone set on the water closet.
They started asking me what I have; they also collected the telephone set which belongs to my child. They scattered the whole house and I told them I had nothing, that they have collected everything the first time they came. They again attempted to sleep with my children. I started begging them that anything they wanted I was ready to give them. All this while, my children had come to hide at my back. That was when the 2nd accused person said that I should extend my buttock out. I started pleading with him. He told me he had no mercy

and if I love myself I should do as he directed. It was while we were on that that the phone I left in the bathroom rang. I went to pick it. They snatched it from me and switched it off.”

?It is clear from the above reproduced narration of her ordeal in the hands of the Appellant and his fellow robbers, that threat of violence was eminent in the circumstances. This is a woman who was in her house alone with her young children. She was suddenly woken up in the middle of the night by the noise of her house being broken into by a group of intruders; all men. The intruders forced themselves into her house and demanded that she hand over her possessions, which included the two handset phones. The same intruders attempted to rape her and her young children; and it should be remembered that there was a previous robbery in her house wherein, the robbers raped her and her young children. In the circumstances of what transpired on the 27/7/2010, it is very ridiculous to contend, as done by learned counsel for the Appellant that, no violence was threatened against the PW1 on the said 27/7/2010. I have no doubt in my mind that the Appellant threatened to use violence

on the PW1 in order to steal her two handset phones. The fact of robbery had therefore been proved by the prosecution beyond reasonable doubt. I therefore resolve this issue against the Appellant.

Having thus resolved, it would be seen that this appeal has no merit. It has failed and is therefore dismissed. I accordingly affirm the judgment of the Ogun State High Court, sitting at Ijebu-Ode, delivered on the 28th day of March, 2014.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of a preview of the judgment delivered by my learned brother, Tsammani, JCA. I fully agree with his reasonings and conclusions. I too would dismiss this appeal for lacking in merit. I also abide by all consequential orders in the lead judgment.

OBIETONBARA DANIEL-KALIO. J.C.A.: I have had the privilege of a preview of the judgment of my learned brother Haruna Simon Tsammani, JCA. The learned trial judge was right when he held that although a case of armed robbery was not proved against the appellant, the offence of robbery was proved against him beyond reasonable doubt. I agree that the appeal

against the judgment lacks merit. The judgment of the lower Court is affirmed.

Appearances

Olusegun Idowu, Esq.For Appellant

AND

A. M. Adebayo, Esq. (A.C.S.C. Ministry of Justice, Ogun State)For Respondent