AKEEM AGBOOLA v. THE STATE (2011)

AKEEM AGBOOLA v. THE STATE

(2011)LCN/4637(CA)

In The Court of Appeal of Nigeria

On Monday, the 20th day of June, 2011

CA/I/258/09

RATIO

ADMITTED FACTS: WHETHER A FACT ADMITTED BY CONTENDING PARTIES NEEDS FURTHER PROOF

It is the duty of court to test the probative value of the statements.The settled position of the law on this issue is that, a fact admitted by both contending parties, no further proof of the admissibility of those exhibits (B, B1, C, & C1) will be required. The law is already settled that facts admitted needs no further proof. See: – Hauwa Ubudu vs. Bulama Abdul Razak (2007) 7 NWLR (pt. 773) 669; N.I.D.B. vs. Olalomi Industries Ltd. (2002) 28 WRN 66; Mohammed Sani Abacha vs. The State (2002) 9 MJSC 1; A.G. Fed. Vs. A.G. Abia State (2002) NSCQR 163. PER SIDI DAUDA BAGE, J.C.A.

EVALUATION: WHAT “EVALUATION” OF EVIDENCE ENTAILS

Evaluation simply means the assessment of evidence so as to give value or quality to it. See: – Onwuka vs. Ediala (1989) 1 NWLR (pt.96) 18 at 208; Chief Niyi Akintola v. Buraimoh L. Balogun & Ors (2000) 1 NWLR (pt. 642) 532 at 549. PER SIDI DAUDA BAGE, J.C.A.

EVALUATION OF EVIDENCE: WHETHER IT IS THE TRIAL COURT’S DUTY TO EVALUATE AND GIVE PROBATIVE VALUE TO EVIDENCE BEFORE IT; DUTY OF THE APPELLATE COURT WHERE THE TRIAL COURT FAILED TO EVALUATE EVIDENCE

CONTRASTING TESTIMONIES: POSITION OF THE LAW WHERE THERE ARE CONTRASTING TESTIMONIES BY AN ACCUSED PERSON IN A CRIMINAL TRIAL

The law is already settled that when an Accused person makes a statement to police and in his Evidence in court gives something contrary to it, such testimony is usually treated as unreliable and is therefore ignored. This principle applies to any other witness in a criminal trial. See: – Mbenu vs. State (1988) 7 SC (pt. 111) 71. PER SIDI DAUDA BAGE, J.C.A.

DOCUMENTARY EVIDENCE: EFFECT OF A DOCUMENT WHICH HAS BEEN MARKED REJECTED IN THE COURSE OF TRIAL

The law is that where a document is tendered and marked rejected in the course of trial such a document become irrelevant and cannot be tendered again neither can it be relied upon in the course of address by counsel nor commented upon by the trial court or the Appellate court. PER SIDI DAUDA BAGE, J.C.A.

DECISION/JUDGMENT: WHETHER THE ACT OF REJECTING A DOCUMENT FOR BEING INADMISSIBLE TENDERED IN EVIDENCE CONSTITUTES A DECISION OF THE COURT

…the law is that where a party tenders a document and same is rejected for being inadmissible that act of rejecting the document constitutes a decision of the court. The decision amounts to a ruling, and having so decided or ruled, the only right or remedy available to the party tendering the document is an appeal against the ruling. See: – Bello vs. Attorney General, Kogi State (1997) 7 NWLR (pt. 521) 496 at 621. PER SIDI DAUDA BAGE, J.C.A.

JUSTICES:

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

AKEEM AGBOOLA – Appellant(s)

AND

THE STATE – Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This appeal arises from the judgment of Ojo J. of the High Court of Justice, Ogun State, Ijebu Ode Division, delivered on the 30th of March, 2009, in charge No. HcJ/24c/07. The State Vs. Akeem Agboola The Appellant was charged with one count charge as follows: –
“The accused is ,charged with one count of the offence of armed robbery in that on or about 26/4/2007 along Sagamu/Ijebu ode Expressway near Odogbolu junction in the Ijebu Ode Judicial Division while armed with a Knife robbed one Sunday Cornelius of his Jincheng motor-Cycle, Two nokia phones and the sum of four thousand Naira, an offence contrary to section 1 (2) (a) of the Robbery and Fire arms (special provision) Act (Cap. R. 11) Laws of the Federation of Nigeria, 2004.
The accused person pleaded not guilty to the charge.
Briefly the prosecution’s case is that, or the 26th of April, 2007, the Appellant engaged Sunday Cornelius (PW1) a vulcanizer and a commercial motor-cyclist operating at the Lagos garage, Ijebu Ode to carry him (Appellant) from Ijebu Ode to Sagamu. PW1 initially refused on account of the long distance and because his motorcycle was then unregistered but after persuasions by one Adeleke Taiwo, PW1 agreed. They left Ijebu Ode for Sagamu at about 12 noon.
After the Appellant had finished his business in Sagamu, they headed back to Ijebu-Ode at about 7.00 p.m. shortly before Odogbolu junction the Appellant ordered PW1 to stop under the pretext that he wanted to ease himself. The Appellant eventually slashed PW1 on his neck with a knife and made away with the motorcycle.
PW1 managed to run to Odogbolu junction for help. The motorcyclists at the park helped him to Aiyepe police station and from there the police took him to the General Hospital Aiyepe for treatment. He was referred to the State Hospital Ijebu-Ode. The appellant was later arrested in Lagos with the motorcycle. On request, the Appellant was released to the police in Odogbolu and later transferred to State CID Eleweran Abeokuta.
The Appellant was arraigned on a charge of armed robbery. He denied the charge against him. The learned trial judge after a thorough appraisal of facts and evaluation of evidence adduced at trial found the appellant guilty of the charge and sentenced him to death accordingly.
Being dissatisfied with the judgment the Appellant has now appealed to this court.
From the Amended Notice of Appeal dated 20th August 2010, filed 24th August 2010 containing nine (9) grounds of appeal, the learned counsel to the Appellant distilled the following four (4) issues for determination viz:
“(1) Whether or not there is any probative value in Exhibits B & B1 and C & C 1 for same to be relied on by the trial court as confessional statement in convicting the Appellant Grounds 2 and 4 of the amended grounds of Appeal
(2) Whether the trial court was right to have relied on inadmissible evidence and the same to convict the Appellant at the lower court Grounds 5, 6 and 8 of the amended grounds of Appeal
(3) Whether the prosecution established the identity of the Appellant as the assailant in the robbery incidence dated 26/04/07. Grounds 1, 3 of the amended grounds of appeal.
( 4 ) Whether or not the prosecution proved its case beyond reasonable doubt to secure conviction of the appellant at the lower court grounds 7 and 9.
The Respondent on its part formulated the following four (4) issues for determination viz:
(1) Whether having regard to the totality of the evidence adduced during trial, it can be said that the admissibility of and reliance on Exhibits B & C has occasioned any miscarriage of justice.
(2) Whether having regard to the totality of the evidence adduced during trial, it can be said that the conviction of the Appellant was based on Exhibits E, F, F1 & F2.
(3) Whether having regard to the totality of the Evidence adduced during trial, it can be said that the identity of the Appellant was in doubt,
(4) Whether or not the prosecution proved its case beyond reasonable doubt to secure conviction of the Appellant at the lower court,
The issues as formulated by the appellant shall guide the determination of this appeal.
On issue No.1 learned counsel to the appellant submitted on Exhibits B & B1, C & C1 the statement of the Appellant tendered in spite objection at the trial. The law is that once the statement of an accused person is objected to at the trial on the ground that the accused person did not by himself make the statement, and then he has retracted the statement. A retracted statement is admissible notwithstanding, but the court must test the probative of the said statement before it could be used as confessional statement of the accused person. See: – Sub Iyanda Salau vs. The State (1971) NMLR 249; R.V. Kanu (1952) 14 WACA 30; R.V. Sykes (1973) 8 CR. App. R. 233. See also Brett and Maclean Book; Criminal Law and procedure of Lagos, Eastern Nigeria and Western Nigeria by Brett and Maclean, 34 in Edition at page 283 paragraphs 845. The trial in the present appeal did not test the probative value of the confessional statements. See Dibie v. The State (2005) All FWLR (Pt.259) 1995 at 2019 paragraph D-G at page 2078-2019; Wahab Onasanya Mumuni v. The State (1975) 6. SC 79 at 94.
Learned counsel submitted further that, notwithstanding the settled position of the law that, evidence of one witness is enough to substantiate a conviction against an accused person; one should not nevertheless disregard the warning from the superior courts on the recalcitrance to convict on lane evidence especially in capital offences and where such evidence is that of the victim or any of his relative. Also the trial court should have been persuaded to agree with Appellant that Exhibits B & B1 and C & C1 were suspect and should not have been relied on by the trial court. See: – Queen vs. Hule (1961) 1 All NLR 462. The court must always consider every defence put forward by an accused person. See: – Abgyluwa & Ors vs. Cop. (1967) WRNLR 31.
Learned counsel further submitted that in this instance, the trial court did not consider the defence put forward by the Appellant but only brushed it aside. The failure to consider the defence occasion gave miscarriage of justice on the Appellant.
In reply, learned counsel to the Respondent submitted that he agrees with the submission of the learned counsel to the Appellant that the court must test the probative value of the statements of the accused person (Exhibits B & B1, C & C1). The probative value of the statement has to follow the 6 tests approved in R.V. Sykes (1913) 8 cr. App. R. 233, Akpan vs. State (1992) 6 NWLR (pt. 439) 460. This is the position of the law. Learned counsel submitted in the present appeal, the trial judge not only rightly averred his mind to the importance of testing the veracity of the Appellant’s statements but actually subjected Exhibits B & B1, and C & C1 to the requisite tests to make it probable that the confession was true. See page 55 line 37 page 56 lines 15 of the record of proceedings.
Learned counsel submitted that the trial court made the statement “that exhibits B & B1 and C & C1 confirm virtually all the allegation of the prosecution’ while trying to review the evidence of PW1 & PW2 and not while testing the veracity of the Appellant’s statements. It is therefore wrong to say that the trial judge did not bother to test the probative value of Exhibits B & B1 and C & C1; on the contrary there are corroborative evidence in the testimony of PW1 and PW2 and Exhibits E, F, F1 and F2 what show that to confession of the Appellant is true.
Learned counsel submitted further that the duty of the prosecution is to establish the guilt of an appellant beyond reasonable doubt this could be established on the evidence of one witness. What is of importance is that the evidence of the witness is capable of being believed and was in fact accepted and believed by the trial court. See: – Ibrahim v. The State (1993) 2 NWLR (pt 278) 735 at 748. In this case the learned trial judge believed the evidence of the only eye witness called by the prosecution (pw1) see page 54 lines 19-32 of the record of proceedings.
Learned counsel submitted further that the correct position of the law is that where the weight to be attached to a statement is in issue, the document will be admitted in evidence and the issue of weight will be addressed at the appropriate time. It must however be considered along with the entire evidence and circumstances of the case to determine the weight to be attached to it. It is late for the Appellant’s counsel to argue that the court ought not to admit Exhibits B and C1, the court subjected the Exhibits to the requisite test before it relied on same. Also it is trite that it is not every error or mistake on the part of a lower court that will vitiate a judgment but only where such error or mistake is so fundamental as to occasion a miscarriage of justice. See: – State vs. Ogbubunjo & anor. (2000) 5 NSCQ R 27 at 47-48; Aremu vs. State (1991) 7 NWLR (pt. 201) 19.
The Appellant’s counsel in his reply brief in answer to the arguments of respondent to issue 1 submitted that the contention of the respondent that it is too late for the Appellant’s counsel to argue that the court ought not to admit Exhibits B and C1 is erroneous in law.
The appellant court reserves the right to expunge any inadmissible document which found their way into the records of the court. It is more so in a criminal matter of this nature. See: – Raimi v. Akinyemi (1986) 3 NWLR (pt.26) 97 at 104 paragraphs E-H. The bottom line of this point is to the effect that this court will expunge Exhibits B and C being inadmissible for the reasons earlier adduce in the Appellant’s brief.
Learned counsel submitted further that the respondent has argued in their brief that the judgment of the lower court was not predicated on exhibits F, F1 & F2 but on evidence adduced by PW1 ,2,3,4 and DW1 as well as exhibits B & C in effect, should this court finds that exhibits B & C were wrongly admitted and proceed to expunge them, the appeal might succeed, the reason being that the evidence of PWs 1,2,3,& 4 are those of by standers who were Kilometers’ away from the scene of the purported crime going by their own testimonies.
The determination of this issue is brought to a narrow margin by the submission of the Appellant in his main brief of argument at paragraphs 4.02 & 4.03 where in it is stated that:
“… once the statement of an accused person is objected to at the trial on the ground that the accused person /id not by himself make the statement the settled position of the law is that the accused person has retracted the statement. A retracted statement is admissible notwithstanding… the settled position of the law is that the court must test the probative value of the said statement before it could be used as confessional statement of the accused person …”
The learned counsel to the respondent agrees with the appellant as having stated the correct position of the law.
It is the duty of court to test the probative value of the statements. The settled position of the law on this issue is that, a fact admitted by both contending parties, no further proof of the admissibility of those exhibits (B, B1, C, & C1) will be required. The law is already settled that facts admitted needs no further proof. See: – Hauwa Ubudu vs. Bulama Abdul Razak (2007) 7 NWLR (pt. 773) 669; N.I.D.B. vs. Olalomi Industries Ltd. (2002) 28 WRN 66; Mohammed Sani Abacha vs. The State (2002) 9 MJSC 1; A.G. Fed. Vs. A.G. Abia State (2002) NSCQR 163.
The next stage is whether the trial court in its judgment tested the probative value of the statement of the Appellant. The Appellant argued in his brief that the trial court in the instant appeal did not test the probative value of the confession of the Appellant in line with the requirement of the authority of RV Kanu (1952) 14 WACA 30, where the court approved the tests suggested by Ridley. J in RV Sykes (1913) cr. App. R.233 thus: –
”Is there anything outside the confession to show it is true? Is it corroborated? Are the statements made I it of Fact true as far as they can be tested?
Was the prisoner one who had the opportunity of committing the murder?
Is his confession possible?
Is it consistent with other facts which have been proved?”
In addition to the above test listed, in the instant appeal the confessional statements of the appellant were retracted at the time of trial, it is the duty of the court to test the truth thereof. See: – Dibie vs. State (supra), criminal law and procedure of Lagos, Eastern Nigeria and Western Nigeria by Brett & Maclean (supra). In keeping with the position of the law above the Appellant had contended that, the trial court made a serious error of law which exercise has occasioned grave miscarriage of justice on the Appellant. It is only credible piece of evidence that could confirm exhibits B & B1 and C & C1 and not the other way round. Whereas, what the trial court has done in this instance was to treat exhibits B & B1 and C & C1 as credible and substantive evidence to confirm allegations against the Appellant.
The Respondent in its brief disagreed with the contention of the Appellant above. It maintained that the trial judge not only rightly averred his mind to the Importance of testing the veracity of the Appellant’s statements but actually subjected Exhibits B & B1 and C & C1 to the requisite tests to make it probable that the confession was true.
The trial court on its part at pages 55-56 if the records stated: –
“The court is however enjoined to subject the alleged confession to some examination to ascertain its probative’ value. Such test include whether the accused had the opportunity of committing the offence, whether the confession is possible whether it is consistent with other facts established in the case, and whether there is evidence outside the confession that renders the confession probable, See: Idowu vs. The State B NSCQR 9; Alarape v. The State (2001) 5 NWLR (pt. 507) 79 at 98. I had highlighted above several pieces of evidence by the PW1 and pW2 in particular and the oral testimony of the Accused, which provides corroboration to the confessional statement of tile accused. In addition I wish to refer to the evidence that the said motorcycle snatched from the PW1 was recovered from the Accused in Lagos state. The prosecution tendered Exhibits E, F, F1 and F2 being the bond paper and invoices and motor duty certificates in respect of the yet unregistered motorcycle, also exhibit A the medical report on the treatment of the PW1 at the State hospital Ijebu-Ode which confirms the nature of the injury sustained by the PW1 and confirmed by the accused in his confession. The accused in his confessional statement stated that he stabbed the PW1 with a knife during the robbery and that he threw the knife into the bush after the operation. I am satisfied that the confessions of the accused person exhibits- B, B1 and C & C1 are free and voluntary, direst and unequivocal”.
Having examined what the trial court stated above in the judgment, this court has no doubt that the trial court followed meticulously the test laid down to establish the probative value of the confessional statements of the Appellant as laid down in the case of Sule Iyanda Salau vs. State (supra) RV. Knu (supra) RV sykes (supra).
Evaluation simply means the assessment of evidence so as to give value or quality to it. See: – Onwuka vs. Ediala (1989) 1 NWLR (pt.96) 18 at 208; Chief Niyi Akintola v. Buraimoh L. Balogun & Ors (2000) 1 NWLR (pt. 642) 532 at 549.

It is our law that it is the pre-eminent duty of a trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value, and not this court, which neither heard witnesses nor saw them to observe their demeanours in the witness box.
See: – Ebba vs. Ogodo (7984) 7 SC, NLR 372. This court is in as much the same position to evaluate evidence as the trial court, where the trial court failed to do so. See: – Ajakaiye vs. Adedeji (1990) 7 NWLR (pt. 171) 192; at 197; Aromalaran v. Oladele (1990) 7 NWLR (pt.162) 359; Obi v. Owolabi (1990) 5 NWLR (pt.153) 702 at 704; Begha v. Tiza & anor (2000) 4 NWLR (pt.652) 193 at pp.211-212.
The above situation is not the case with the present appeal, whereby the trial court effectively evaluated the evidence before it, subjected it the test of probative value before coming into its decision; In the present appeal both the Appellant and Respondent are at ad idem on the settled position of the law that evidence of one witness is enough to substantiate a conviction against an accused person with some caution by the Supreme Court. This is settled law and this court will not go further on it.
The position in this appeal is that the Appellant (as Accused person) made his statements Exhibits B, B1, C and C1 to the police. The statements which were confessional in nature, there was no protest in respect of the voluntariness of the said statements obtained by the police.
The Appellant (as Accused person) waited until he was at the trial court, and then said he wanted to retract the said statements Exhibits B, B1, C & C1 which are the Yoruba and English version on the ground that he did not sign the Exhibits. The trial court at page 55 of the records, paragraph 10, stated: –
“At this state it is apposite to comment on Exhibits B & C. The accused did not object to the tendering of the two confessional statements but urged the court not to attach weight to them because the accused said he did not sign them. I need to resolve this. I could see the signature of one Akeem Agboola on the statements…”
The law is already settled that when an Accused person makes a statement to police and in his Evidence in court gives something contrary to it, such testimony is usually treated as unreliable and is therefore ignored. This principle applies to any other witness in a criminal trial. See: – Mbenu vs. State (1988) 7 SC (pt. 111) 71.
Following the above principle laid down by the Supreme Court in the authority cited above, the trial court was absolutely correct to have ignored the purported retraction made by the Appellant to Exhibits B & C. Issue No. 1 resolved in favour of the Respondent.
On issue No. two (2) whether the trial court was right to have relied on inadmissible evidence and use same to convict the Appellant. At the trial court, the court admitted Exhibits F, F1 and F2 through pw4.
Learned counsel 1-o the Appellant submitted that the position of the law is settled that once a document is marked rejected, it cannot be represented in the same proceedings again under whatever guise. See: – African Continental Bank Ltd. v. Alhaji Umaru Gwagwada (1994) 5 NWLR (pt.342) 25 at 31 Bello v. Governor of Kogi State (1997) NWLR (pt.521) 496, at 501; Agbaje v. Adigun (1997) 9 NWLR (pt.269) 261 at 272; Adebakin v. Odujebe (1973) NMLR 148.
Learned counsel submitted further that the basis upon which the court rejected the Exhibits at page 21-22 of the proceedings was because photocopies of the documents were tendered without laying proper foundation. Still the documents admitted as Exhibits F, F1 and F2 were yet, the same photocopies/of the same documents which the court earlier rejected, and the trial court relied on these pieces of inadmissible evidence to convict the Appellant.
Learned counsel submitted further that, I admit quite well that no objection was raised by the Appellant’s counsel at the trial court; however the position of the law with respect to inadmissible evidence admitted in criminal proceedings knows not of admission or waiver by the Accused person’s counsel. See – Raimi vs. Akintola (1986) 3 NWLR (pt.26) 97 at 104, Nwosu vs. Udeaja (1990) 7 NWLR (pt. 160) 56 at 67; Daniel Bassil & anor; Vs. Lasisi Filebe & anor. Vos. 6 NSCQR 269 at 287.
In reply to this submission, learned counsel to the Respondent submitted that in spite of the fact that the Accused person’s counsel did not object to the tendering of Exhibits F, F1 and F2, the Exhibits did not form the basis upon which the trial court convicted the Appellant, see pages 56 lines 6-8 of the record of proceedings lines 6-8 clearly show that that the trial court merely made mention of Exhibits F, F1 and F2 to show that the prosecution tendered the Exhibits. The preceding lines and the lines after lines 6-8 show that the trial court did not rely on Exhibits F, F1 & F2 to convict tie Appellant. Assuming without conceding that the trial court should not have admitted Exhibits F, F1 & F2, it is trite law that it is not every error or mistake on the part of a lower court will vitiate a judgment but only where such error or mistake is so fundamental as to occasion a miscarriage of justice. See: – State vs, Ogbubunjo & anor (2000) 5 NSCQR 27 at 47 – 48. The admissibility of Exhibits F, F1 & F2 has not occasioned a miscarriage of justice.
Learned counsel submitted further that, the Appellant’s counsel made a heavy storm about the circumstances surrounding in Exhibits E, F, F1 & F2 in pages 15 & 16 of his brief. He argued that the trial judge came to a wrong conclusion that the motorcycle snatched from pW1 was recovered
from Appellant in Lagos. The trial judge merely referred to Exhibits E, F, F1 and F2 in pages 55 lines 6-8. The trial judge did not rely on the Exhibits to form basis for convicting the Appellant so the issue of substitution of Evidence by the court does not arise at all. The conviction of Appellant was based on more cogent and credible evidence before the trial court and not Exhibits E, F, F1 & F2.
The issue here is the admissibility of Exhibits F, Fl & F2. The evidence before the court as contended by the Appellant is that these set of documents which were receipt, invoice and duly certificate respectively of the motorcycle which motorcycle was allegedly recovered from the Appellant. Earlier on in the proceedings of the trial court the said Exhibits were received and markmmed rejected by the court while pW2 was testifying.
The same documents 3 3dilt were tendered through pw4 and same were admitted by the trial court & marked as Exhibits F, F1 & F2 as if they were fresh documents. The Appellant maintained the court used the same Exhibits to convict him.
The law is that where a document is tendered and marked rejected in the course of trial such a document become irrelevant and cannot be tendered again neither can it be retied upon in the course of address by counsel nor commented upon by the trial court or the Appellate court.
See: – ACB Ltd vs. Gwagwada (supra).
Again the law is that where a party tenders a document and same is rejected for being inadmissible that act of rejecting the document constitutes a decision of the court. The decision amounts to a ruling, and having so decided or ruled, the only right or remedy available to the party tendering the document is an appeal against the ruling. See: – Bello vs. attorney General, Kogi State (1997) 7 NWLR (pt. 521) 496 at 621.
In this case the court categorically foreclosed any option a party may desire to adopt, rather than an appeal. By this ruling, once a document (for example secondary evidence is held to be inadmissible) it follows that even the original (that is primary evidence) or any other copy that complies with the requirement of the law can become admissible. The question that arises then is whether this principle can in any way be said to strictly accord with justice and fairness. On the basis of relevancy that where a document is said to be inadmissible for non-compliance with the conditions for admissibility, there is no reason why another copy that complies with the condition or admissibility cannot be received in evidence.
I sum, once a document has been rejected in evidence, it cannot be made use of and thus has no evidential value. See: – ATP and JAS Nigeria Limited v. Drake Skull (Nig.) Ltd (2003) 3 NWLR (pt.649) 484 at 491 (referred) and Jimoh Adebakin v. Sabitiyu Odujebe (1973) 1 NMLR 148. (referred).
In concluding on this issue, Exhibits F, F1, F2 are in admissible documents having been marked as rejected by the trial court through a witness, the same documents cannot be admitted by the court through another witness. It is the decision of this court that any reliance on the said Exhibits by the trial court will go to no issue, as they lack evidential value. This court has resolved issue No. 2 in favour of the Appellant.
On issue No. 3, which is whether the prosecution established the identity of the Appellant as the assailant in the robbery incident dated 26/4/07, learned counsel to the Appellant submitted that, one of the ingredients that the prosecution needs to establish to secure conviction in the case of armed robbery is to establish the identity of the accused person who committed the offence. The trial judge at the proceedings in the lower court relied on the oral testimony of the Appellant in the trial as well as Exhibits B & B1 and C & C1 to arrive at the conclusion that the identity of the accused person was established. See: – the testimony of DW1 at pages 29-30 of the record in relation to Adeleke Taiwo who was never called in evidence and that remains speculative of what he said. This evidence is also in conflict with the evidence of PW2 who said the Appellant was re-arrested at Alakuko police station in Lagos.
Learned counsel submitted further that where there are two contradictory evidence offered by parties in a proceeding, the law is settled that a trial court can choose or rather prefer a piece of evidence above another, but the law will not support the attitude where the court relies on one out of two contradictory piece of evidence without justifying the reasons for so doing. See. – Emmanuel Agbnelo & anor. Vs. Union Bank of Nig. Ltd. (2000) 4 S.C. Part 1 233 at 238; Yusuf vs. Obasanjo (2006) All FWLR (pt. 294) 387 at 483.
Learned counsel submitted further that apart from the testimony of PW1 which ought to be taken with caution, testimonies of PW2, PW3, and PW4 availed not much. Reason, the said witnesses did not set their eyes on the Appellant on the day of the incident moreover exhibits B, B1 and C & C1 being retracted statements require some external truth before it can be relied on. In this circumstance the probative value of the statements was not established and other independent witnesses such as Taiwo Adeleke and one Suraju whom the Appellant visited on the day of the incident were never called in evidence. This is notwithstanding the contradictory evidence of PW2 and DW1 about how and where the Appellant was arrested in Lagos. The identity of the Appellant was not proved as the assailant in the supposed robbery of 26/04/2007.
In reply to the submissions above, learned counsel to Respondent submitted that contrary to the submission of Appellant’s counsel, the learned trial judge based his findings on the evidence adduced by PW1, PW2, PW4, DW1 and Exhibits B & C before he came to the conclusion that the prosecution had proved beyond reasonable doubt that the accused was the robber who robbed PW1 of his motorcycle on 26/4/2007. See: – page 54 line 9, page 55 line 34, page 55 lines 32-34.
On not calling Taiwo Adeleke as a witness but his statement tendered as Exhibit ‘D’ the law does not impose a duty on the prosecution to call all the persons, as witnesses, rather, the prosecution is required to call only those it considers material in order to establish its case. See: – Ogbodu v. State (1987) 2 NWLR (pt.54) 20 at 27; Adaje v. State (1979) 6-9 5.C. 78 at 28; Ijiofor vs. State (2006) 6 NSCQR (Pt.1) 2009.
Learned counsel submitted further the law is that where the evidence of one witness cogently and satisfactorily established a point in issue, in the absence of any law requiring that such point should be established by two or more witnesses, it is not good to proliferate the number of witnesses in proof of the same point. Also that what is important is that the evidence of the witness is capable of being believed and was in fact accepted and believed by the trial court. See: – Ibrahim vs. State (1993) 2 NWLR (pt. 278) 735 at 748. In the present case, the learned trial judge believed the evidence of the only eye witness called by the prosecution.
Learned counsel submitted further that the identity of the Appellant was never in doubt throughout the trial of the case it is therefore late for counsel to argue that the prosecution did not establish the identity of the Appellant as the assailant in the robbery incident.
The court carefully examined the argument proffered by the learned counsel to the Appellant on the identity of the Appellant as the assailant in the supposed robbery of 26/04/07. The learned counsel acceded that it was only the testimony of PW1 (which ought to be taken with caution) that identified the Appellant as the accused person. He maintained that the testimonies of PW2, PW3 and PW4 availed not much. Also that Exhibits B & B1 and C & C1 had not helped either. The question here is what is identity? This court per Tobi, JCA (as he then was) in Sanni Adisa vs. The State (1991) 1 NWLR (pt. 168) 490 at pp. 506-507 stated: –
“In the verb form to identify means interalia to show to be a certain person or thing to fix the identity of, to show to be the same or serve one or something assumed described or claimed. In the noun form “identification” means being identified anything by which a person or thing can, be identified.”
The Supreme Court per Oputa JSC (as he then was) in the State vs. Collins Ojo Aibamgbee & anor. (1988) 7 SCNJ, (Part 1) 128 at 162 stated: –
“I rather think that identification is a whole series of facts and circumstances for which a witness or witnesses associate a defendant with the commission of the offence charged. It may consist of or include evidence in form of finger prints, handwriting palm prints, voice, identification parade, photographs or the collection of the features of the culprit by a witness who saw him in the act of commission which is called in question or combination of two or more of these Questions which go to credibility of a witness’s testimony on the evidence of identification usually involve the crucial question as to the opportunity which the witness had of viewing the act of the accused person which he is, testifying about. It is when the opportunity of observing two or more accused persons during the commission of the offence is the same and not when they go through the same identification parade that is said that the circumstances of their identification are the same. ”
From the evidence in court, the victim, who was the PW1 at the lower court, Sunday Cornelius, in his evidence in chief contained at page 16 of the records, stated as follows: –
“I remember 26/04/2007. On that day I arrived at the Lagos Garage. The accused engaged me to carry him to Sagamu. Initially, I said I could not go to that distance because my motorcycle had no registration number, but Adeleke (proposed P.w. 2) urged me to go and that there was not going to be any problem on the way. We left Ijebu-Ode at about 12 noon and arrived in Sagamu. The accused person went to see the people he wanted to see and after finishing his business we left Sagamu for Ijebu-Ode at 7:00 pm…”
Considering the period of interaction between the victim (PW1) and the accused person, from 12 noon to 7:00 pm and beyond the opportunity the victim had to properly identify the assailant is beyond question. There was from the evidence a direct contact between the two for a period of over 7 hours. The evidence of PW1 is the most important as far as the identification of accused person is concerned. The Appellant counsel acceded to this fact, but only added that the evidence of PW1, be taken with some caution. The emphasis placed by the Appellant’s counsel on the evidence of PW2, PW3 and PW4 that those witnesses from their testimonies did not identify the Appellant as the accused person is not the requirement of the law.
The law is that the best identification of an accused person is by the victim. In the instant Appeal, the PW1 had identified the Appellant as his assailant. The Supreme Court in the case of the State vs. Collins Ojo Aibangbee & anor (supra) stated: –
“The best identification of an accused person is by the victim of the crime or a witness to the crime and once there was a proper identification parade conducted by selecting persons of similar physical stature of the accused lined up with the accused before the victim of the crime or witness of the crime is brought out to identify the criminal and there is no evidence of the accused ever being shown beforehand physically or by photograph or nay visual means, that identification parade is proper and evidence based on it admissible identification parade is helpful even though not always necessary in that in many instances question of identity may not be in issue.”
Also in the circumstances of this appeal, considering the high level of interaction between the victim (PW1) and the Appellant, identification parade was not even necessary. Again the Supreme Court in the case of Kenneth Ogaala vs The State (1991) 3 SCNJ 61 at pp.68 and 70 stated: –
“In a circumstance as in this case, where the accused person was caught in trying to escape during the commission of the offence and the victim of the crime was present and positively identified the accused person, there will be no need for the formality of holding an identification parade…”
The law is thus that once the victim has immediately after the commission of the offence seen the accused or arrests him or joins in any other way in identifying him, it will be superfluous to line people up for identification. See: – Okosi vs. The State (1989) 1 NWLR (pt. 100) 642; Ikemson vs. The State (1989) 3 NWLR (pt. 110) 455.
This court is left in no doubt that the issue of identification of the Appellant (accused) by the victim (PW1) is adequate proof by the prosecution that established the guilt of the Appellant beyond reasonable doubt. The Supreme Court in the case of Ukpabi vs. The State (2004) 6-7 SC. 27 stated as follows: –
“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. Where a trial court is faced with identification Evidence, it should be satisfied that the Evidence of identification established the guilt of the Accused beyond reasonable doubt.
Identification parade is not a sine qua non to conviction.”
I only need to add here that there no evidence before the court that has whittled down the identification made the victim (PW1). Even the failure of the prosecution to use Taiwo Adeleke as a witness but tendered his evidence as Exhibit ‘D’. The strength of Evidence of pW2, pW3 & D4, with Exhibits ‘B’ & ‘C’ constituted no harm on the issue of identification of the Appellant.
On the whole therefore, the Evidence of identification by the victim (PW1) has established the guilt of the Appellant (accused) beyond reasonable doubt, and issue No. 3 resolved in favour of the Respondent.
Having resolved issues No.1 which dealt with the probative value of the confessional statement in convicting the Appellant, in favour of the Respondent, and issue No. 3 which established the identity of the Appellant as the assailant in the robbery incident dated 26/04/07. The resolution of issue No.4 to wit whether or not the prosecution proved its case beyond reasonable doubt to secure conviction of the Appellant at the lower court becomes merely academic. This court is satisfied that the guilt of the Appellant has been established by the resolution of issues 1 and 3 that the resolutions by the trial court that prosecution had proved its case beyond reasonable doubt to secure conviction of the Appellant was proper. In the final analysis, the conviction done by Ojo J, of the High Court of Ogun State, Ota Judicial Division on the 30th day of March, 2009 in charge No. HCJ/24C/2007 is hereby affirmed. However, the sentence of the Appellant under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act (cap. R. 11) laws of the Federation of Nigeria 2004 is hereby substituted by this court to sentence under section 2 (2) (a) of the Act to a term of imprisonment for life.

STANLEY SHENKO ALAGOA, J.C.A.: I read in advance the judgment just delivered by my learned brother S. D. Bage, J.C.A. I agree that the conviction by the learned trial Judge below be affirmed while the sentence be substituted with that of imprisonment for life.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in draft the robust judgment prepared by my learned brother, BAGE, J.C.A, in which I concur.
From the trustworthy evidence of the PW1, the victim of the crime, there was about seven hours interaction between the appellant and the pw1, before the former robbed the latter, giving the pw1 sufficient time to recognize and store in his memory the identity of the appellant.
Consequently, the PW1’s evidence on the identity of the appellant as the robber was unimpeachable. It fixed appellant squarely at the scene of crime and proved beyond reasonable doubt that he robbed the pw1 as stated in the evidence for the respondent in the court below, in my opinion.
For the above reason and the fuller reasons contained in the judgment prepared by my learned brother, BAGE, J.C.A, I too would dismiss the appeal but alter the sentence to the lesser offence indicated in the said judgment under section 19 (3) of the Court of Appeal Act, 2004, as subsequently amended by the Court of Appeal (Amendment) Act, 2005, read with the cases of Nwachukwu v. The State (1986) 2 NWLR (pt.25) 765 and Kareem v. The Federal Republic of Nigeria (003) 16 WRN 114.

Appearances

DR. Akin Onigbinde For Appellant

AND

Y. Oresanya Director Commercial Services Ogun State Ministry Of Justice For Respondent