ALKASSIM v. STATE (2020)

ALKASSIM v. STATE

(2020)LCN/14507(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, July 22, 2020

CA/K/412/C/2018

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

KASSIM ALKASSIM APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

Thus to succeed under the Act on the offence of armed robbery, the prosecution must lead evidence to prove the following ingredients namely:
(i) There was robbery
(ii) Each Robbery was armed robbery
(iii) The accused participated in the armed robbery.
See Okoh v. State (2014) 8 NWLR (pt. 1410) 502.

In the bid to discharge the duties on him, the prosecution can elect to prove his case by any of the three (3) methods or a combination of two or more methods, namely:
(i) Proof by direct eye witness account (ii) Proof by a free and voluntary confessional statement which is direct and positive (iii) Proof by circumstantial evidence from which the guilt of the accused person can be inferred. See: Emeka v. State (2001) 14 NWLR (Pt. 734) 666; Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300; Abang v. State (2010) 7 NWLR (pt. 1174) 431;Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305, 338. PER HUSSAINI, J.C.A.

RETRACTED CONFESSIONAL STATEMENTS

Perhaps the point should be made here that in a case such as this, where a statement ascribed to an accused person was objected to as not his voluntary confessional statement, the trial Court cannot admit such statement in evidence without first determining the voluntariness of that statement vide a trial within trial being conducted to determine the admissibility of that statement. See: Igri v. State (2009) LPELR-4379 (CA), as contradistinguished from a mere case of denial of such statement by the person to whom it was ascribed. In that case, the trial Court has a duty to admit the statement in evidence but the weight to be attached to it will depend on whether the statement met with the criteria set out in R. v. Sykes (1913) Cr. App. Rep. 224, 230; Hassan v. State (2001) 15 NWLR (Pt. 735) 184, 199. The Six (6) tests laid down in the English case referred to above which trial Courts are enjoined to apply relative to retracted statements are:
(i) Is there anything outside the confession (in this case Exh. A and A1) to show that it is true?
(ii) Is it Corroborated no matter how slight?
(iii) Are the facts made in it true as far as they can be tested?
(iv) Was the Prisoner/accused one who had the opportunity of committing the offence?
(v) Is the Confession possible?
(vi) Is it consistent with other facts which have been ascertained and proved in the matter?
It is apparent from the record of appeal before us that the trial Court subjected the Rule in R. v. Skyes (Supra) to that test as can be seen at pages 55-56 of the record where the trial Court found as follows:- “It is my view that there is, in the instant case sufficient reason establishing these facts. The testimonies of the prosecution witnesses, which I accept as the truth have already afforded the necessary corroboration and other relevant issues pertaining to the confessional statement of the accused person, (Exhibit A and A1). And on its own the testimonies of the witnesses, especially that of PW1 and PW2 as accounts of eye witnesses, have fully and without more, established the prosecution’s case against the accused persons.” PER HUSSAINI, J.C.A.

WHETHER OR NOT CONTRADICTIONS WHICH UST DISPLACE THE EVIDENCE OF THE PROSECUTION WITNESSES MUST BE FUNDAMENTAL AND SUBSTANTIAL TO AFFECT THE ISSUE THE COURT IS CALLED UPON TO DECIDE

The law is that where there are material contradictions in the evidence of a party and which contradiction touch on a vital or material point in issue such parties case becomes weakened and thus unreliable and therefore lacking of probative value. See Esika v. Madolu (1997) 2 NWLR (Pt. 485) 54, 69. In other words, contradictions which must displace the evidence of the prosecution witnesses must be fundamental and substantial to affect the issue the Court is called upon to decide. See Usufu v. State (supra); Sunday Udosen v. The State (2007) 4 NWLR (Pt. 1023) 125.
Discrepancies in the evidence of witnesses which are merely peripheral to the fundamental question before the Court are not reckoned with as contradictions. Instances cited by the learned appellant’s counsel in his brief fall into this category and these are not fatal to the case of the prosecution. See: Agugira v. State (2016) 14 NWLR (Pt. 1539) 309, 328; Musa v. State (2015) 9 NWLR (Pt. 1359) 236; Sale v. The State (1993) NWLR (Pt. 267) 276, 288.
It is only natural that two or more witnesses cannot narrate the same story in exactly the same way. It is against the law of nature. See:Ezeuke v. The State (2016) 6 NWLR (Pt. 1509) 529, 535. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Appellant was apprehended, arraigned and charged at the High Court of Katsina State, Funtua Judicial Division, for the offence of Armed Robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria, 2004. His plea of “not guilty” was entered hence the prosecution opened their case and called evidence of five (5) witnesses and tendered Exhibits A, A1, B, C and D.

The case of the Prosecution, now respondent, was that, on or about the 3rd day of September, 2008 at SuleKofar Sauri Ward, Dutsen Reme, Bakori Local Government Area, the Appellant attacked and robbed one Alhaji Hussain Mohammed of the sum of N2.3 Million, One (1) Toyota Highlander Jeep, four (4) handsets and golden earrings and at the time of the attack, he was armed with gun with which, he threatened his victim, Alhaji Hussain Mohammed and his entire house hold.

The appellant testified for himself in his defence and tendered no exhibit but the trial Court at the conclusion of evidence and counsel’s final addresses found the

Appellant guilty vide the Judgment delivered on the 10th October, 2016. The Appellant was convicted and sentenced to a term of Imprisonment of 21 years.

Dissatisfied with this Judgment, conviction and sentence, the Appellant has appealed to this Court vide the Notice of appeal filed on the 10th April, 2018 containing (five (5) grounds of appeal, on the orders of this Court given on the 28th March, 2018 extending time for the Appellant to appeal that Judgment. The record of proceedings of the lower Court was transmitted to this Court on the 17th July, 2018 and the same deemed on 25th June, 2020 as properly before the Court.

In the brief of argument filed for the Appellant on the 24th August, 2018 and deemed on 25th June, 2020 the Appellant formulated the following four (4) issues for determination, namely:
“(1) Whether the trial Court was right in attaching weight to Exhibit A & A1 without properly evaluating and analyzing same.
(2) Whether the learned trial Judge was right in convicting the Appellant for the offence of Armed Robbery by accepting the testimonies of PW1 & PW3 as an account of eye witness without proper

identification of the Appellant.
(3) Whether in the circumstance of this case, the alleged contradictions in the prosecution’s case are material enough to vitiate the prosecution’s case.
(4) Whether on the totality of evidence and the circumstances of this case the prosecution proved their case beyond reasonable doubt against the Accused person”

The Respondent has adopted the said four (4) issues in their own brief of argument at paragraphs 3.2 at page 5 of the Respondent’s brief.

Be it noted that the four (4) issues so formulated in the Appellant’s brief of argument are/were not linked to or tied to any of the five (5) grounds of appeal, a situation which ordinarily will render those issues as incompetent as issues must properly distil from the grounds of appeal and failure of which the issues can be ignored, discountenanced or struck out together with arguments canvassed under those issues. See:Bikay Engineering Co. Ltd v. Governor, Ondo State (2010) LPELR – 3877 (CA); Literamed Publications Ltd v. Mary Akpenyi (2014) LPELR – 24082 (CA); Akinfolarin v. Akinola (Pt. 81) 235; Amadike v. Governor of Imo State

(1993) 2 NWLR (Pt. 275) 302, 313; Akpan v. State (1994) 9 NWLR (Pt. 168) 347. Garba v. State FWLR (Pt. 24) 1448; Ossai v. FRN (2013) 13 WRN 87.
The Courts however in the interest of justice, are enjoined to do substantial justice to all parties and in the bid to do that, failure to link or tie issues formulated, to the grounds of appeal may not be allowed to necessarily lead to or result in the issues being struck out for lacking in competence. This will be so in particular where the Court considers the issues on a close look on the grounds that the issues or some of them can validly be distilled from the listed grounds of appeal. In the bid to do substantial justice, the Court can consider the issues in its Judgment. See: Akanbi Wada v. Chief Jonathan Posomu (2006) 12 SCM (Pt. 2) 108, 120 OR (2006) LPELR –709 (SC). By comparative look at the issues formulated by the Appellant in his brief of argument and the Grounds of appeal, I form the opinion and I so hold that issue No. 2 can be linked to Grounds 1& 4 of the grounds of Appeal on the question of proper identification of the Appellant by PW1 and PW3, issue No. 1 can be linked to

Ground 3 of the grounds of appeal on the question surrounding the confessional statement ascribed to the Appellant vide Exhibits A and A1. Issue 3 is linked to Ground 5 of the Grounds of appeal on the alleged contradictions in the evidence of the Prosecution witnesses. Issue No. 4 can be linked to Ground 2 of the Grounds of appeal, which is on the question, whether the prosecution proved their case at all, by a standard of proof beyond reasonable doubt as required by law.

I will now revert to the submissions made by counsel on both sides relative to each and every issue raised and canvassed by them in their respective briefs of argument thus:
ISSUE NO. 1
Whether the trial Court was right in attaching weight to Exhibit A and A1 without properly evaluating and analyzing same.

Learned Appellant’s counsel, arguing issue No. 1 in his brief, faulted the finding or conclusion drawn by the trial Court in its Judgment that Exhibits A and A1 being the Hausa and English version of the Confessional Statement indeed emanated from the Appellant as erroneous. Even then, it is argued, that Exhibits A and A1 are not capable of sustaining conviction of

the Appellant, the reason being that:
(i) The appellant has denied ever making Exhibits A and A1.
(ii) That although a statement retracted is admissible, the weight the Court can attach to that Statement is strictly guided by the principles laid down in a plethora of authorities including Isah v. State (2007) 12 NWLR (Pt. 1049) 582, 591; Dawa & Anor v. The State (1980) 8 – 11 SC 236, 267 – 268 where the Court adopted with approval, the Statement or test set in R v. Sykes (1913) 8 Cr. App. R. 233 and the decision in Kanu v. The King (1952/55) 14 WACA 30.
(iii) That the learned trial Judge only alluded to the said test or principle without properly evaluating same to see whether the evidence adduced by the Prosecution can be linked to the 6 tests or principles enunciated in those cases;
(iv) That there is nothing in the evidence of the Prosecution witnesses to show that the statements in Exhibits A and A1 were true.
(v) That the Statement in Exhibits A and A1 was not corroborated by some other facts outside those Statement.
(vi) That the evidence of identification of the Appellant by PW1 and PW3, were faulty or defective

hence evidence of their witnesses cannot be reckoned with as eye–witness account of the robbery incident.

It is further argued that the trial Court neither answered or evaluated the question whether the Appellant had the opportunity to commit the offence. That in the absence of the 6 tests being applied or tested, the Court cannot act on the confessions as done by the trial Court. He relied on Kareem v. FRN (2002) 8 NWLR (Pt. 770) 636, 656, wherein it was urged on us not to sustain the conviction of the Appellant based on Exhibits A and A1.

ISSUE NO. 2
Whether the learned trial Judge was right in convicting the Appellant for the offence of Armed Robbery by accepting the testimonies of PW1 and PW3 as an account of Eye witness without proper identification of the Appellant.

It is submitted for the appellant that there was no evidence of proper identification of the Appellant by the PW1 and PW3 especially considering the fact that the incident of the said armed robbery took place at night time or the very early hours of the morning of which period was dark. Relying therefore on the decision in Ndidi v. State (2007) 13 NWLR (Pt. 1052)

633; 653 –654 we were urged to hold that the quality of the evidence of identification of the Appellant was very poor more especially as the evidence of PW1 and PW3 on the identification of the appellant did not fall within the types of identification mentioned in Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) 62 (CA) and reckoned with as proper mode or method for identification. He argued that there is no evidence of how PW1 and PW3 recognized the Appellant in terms of his outlook or features. We were urged to so hold relying further on the case of Mustapha v. State (2007) 12 NWLR (Pt. 1049) that the Prosecution has not led any credible evidence to identify the Appellant or link him with the offence charged.

ISSUE NO. 3
Whether in the circumstance of this case, the alleged contradictions in the Prosecution’s case are material enough to vitiate the prosecution’s case.

The Prosecution’s case (Respondent), it was submitted, was surrounded by fundamental inconsistence and contradictions. Learned counsel for the Appellant gave instances by reference to evidence of witnesses particularly the evidence of PW1, PW3 and PW5 on the question of

whether the police recovered any item from the Appellant. Learned Appellant’s counsel argued that PW1, PW3 and PW5 indeed contradicted themselves on this aspect of their evidence and he cited Okeke v. State (1995) 4 NWLR (Pt. 392) 691; Theophilus v. the State (1996) 1 NWLR (Pt. ) 139, 141. He argued further that it was the duty of the Prosecution to explain away those contradictions and not the trial Court. The Prosecution having thus failed in its duties, he cannot be said to have proved their case beyond reasonable doubt. He relied on Usufu v. State (2007) 3 NWLR (Pt. 1020) 94, 103. In the absence of any explanation being offered by the prosecution, we were urged to hold that the prosecution failed to prove his case, hence the conviction and the sentencing of the appellant ought to be set aside and to that extent Issue No. 3 in be resolved favour of the appellant. We were referred to Usufu v. State (supra); Sunday Udosen v. The State (2007) 4 NWLR (Pt. 1023) 125; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561, 569.

ISSUE NO. 4
Whether on the totality of evidence and the circumstances of this case, the prosecution proved their case beyond reasonable doubt

against the accused person…

In arguing Issue No. 4, learned counsel for the appellant made reference to his issues Nos. 1, 2, and 3 above and submitted that on the totality of the evidence led, the prosecution had not proved her case beyond reasonable doubt based on which, we were urged to allow this appeal, set aside the judgment of the Court below, and discharge and acquit the appellant. We were referred to the decision in Oludotun Ogunbayo v. The State (2002) 15 NWLR (Pt. 789) 76, 98.

Learned counsel for the Respondent arguing per contra urged us to dismiss this appeal. Arguing issue No. 1, in particular, it was contended that the trial Court was right when it convicted the appellant based on his own retracted confessional statement (Exhibit, A1) the Court having earlier, evaluated that evidence in line with the accepted practice and the law. On this point we were referred to page 55 of the record of judgment on the Court’s application of the test or set principles and the decision in State v. Gwangwan (2015) 13 NWLR (Pt. 1477) 600, 620, on the issue that the

Confessional Statement (Exh. A, A1) found corroboration in the evidence of PW1 and PW3.

On the question whether the appellant can be convicted on his own confessional statement only, learned respondents counsel gave affirmative answers and relied on the decision in Igbikis v. State (2017) 11 NWLR (pt. 1575) 126, 150 Para B-C and Patrick v. State (2013) 163, 183.

In addressing issue No. 2 learned Respondent’s counsel argued that the question of proper identification of the appellant was never an issue before the trial Court as there was spontaneous recognition or identification of the appellant even before the trial commenced and this recognition led to the arrest of the appellant in the first place. Such evidence of spontaneous recognition it is argued, can be acted upon. He relied on Kodigiew v. State (2012) 18 NWLR (Pt. 1331) 1, 41. On the issue of the contradiction in the evidence of prosecution witnesses, learned respondent’s counsel argue that no such material contradiction exist except minor discrepancies and this is not fatal to the case of the prosecution. He relied on Jeremiah v. State (2012) 14 NWLR (Pt. 1320) 248, 272. He

further relied on the decision such as Agugira v. State (2016) 14 NWLR (Pt. 1539) 309, 328; Musa v. State (2015) 9 NWLR (pt. 1359) 236; Sale v. State (1993) NWLR (Pt. 267) 276, 288; Ejeuke v. State (2016) 6 NWLR (Pt. 1509) 529, 535; Eke v. State (2011) 3 NWLR (Pt. 1235). Under issue No. 4, it was argued for the respondent that the prosecution proved their case by a standard of proof beyond reasonable doubt against the appellant viewed from the evidence of PW1, PW3 among others and Exhibits A and A1. We were urged to resolve this and other issues in favour of the Respondent and dismiss this appeal.

RESOLUTION OF ISSUES
All the four (4) issues raised by the appellant in his brief of argument and as adopted by the Respondent in their own brief being issues which all border on the question of satisfactory proof of the allegation of armed robbery made against the appellant can be condensed into just one (1) issue, and that is, whether there is any legally admissible evidence to support the conviction and sentencing of the appellant by the Court below. Put differently, did the prosecution discharge his duties of proving the guilt of the appellant by a

standard of proof beyond reasonable doubt in line with Section 135(1), (2) of the Evidence Act, of the offence of armed Robbery contrary to the provision of Section 1 (2) (a) of the Robbery and Firearms (Special Provision) Act. This duty on the Prosecution to prove the guilt of the accused (appellant) does not shift.

(pt. 1174) 431;Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305, 338.

At the trial, the Prosecution called evidence of Five (5) witnesses and also tendered documents which were admitted and marked as Exhibits A, B, C and D. The appellant testified in his own defence as DW1 but called no other evidence or tendered any document. The Court below at the close of evidence and counsel’s final addresses, returned a verdict of guilt on the appellant, relying significantly, on the evidence of PW1, PW3 among others and Exhibits A-A1, the statements ascribed to the appellant as his confessional statement.

One of the reasons advanced for challenging the decision of the trial Court below is on account of failure by the Court below to properly evaluate those statements, given the fact that the appellant had at the trial resiled from making those statements.

It can be recalled that the prosecution in the course of the trial applied to tender Exhibits A and A1 in evidence through PW4. Upon the objection being taken to the voluntariness of Exhibits A and A1, the trial Court rightly in my view, embarked on the procedure for trial within trial (TWT) with the

prosecution calling evidence to establish the voluntariness of the statement. What is expected of the defence (appellant) at the close of trial within trial, was to lead evidence to disprove the voluntariness of the statement (Exhibits A and A1) ascribed to him. Rather, the appellant stating the contrary, denied making those statements.

The trial Court in its Ruling overruled the objection and admitted Exhibits A and A1 in evidence as the voluntary confessional statement of the Appellant. See pages 32-39 of the record on the proceedings leading to that Ruling delivered on 1st July, 2015.

Perhaps the point should be made here that in a case such as this, where a statement ascribed to an accused person was objected to as not his voluntary confessional statement, the trial Court cannot admit such statement in evidence without first determining the voluntariness of that statement vide a trial within trial being conducted to determine the admissibility of that statement. See: Igri v. State (2009) LPELR-4379 (CA), as contradistinguished from a mere case of denial of such statement by the person to whom it was ascribed. In that case, the trial Court has a duty

to admit the statement in evidence but the weight to be attached to it will depend on whether the statement met with the criteria set out in R. v. Sykes (1913) Cr. App. Rep. 224, 230; Hassan v. State (2001) 15 NWLR (Pt. 735) 184, 199. The Six (6) tests laid down in the English case referred to above which trial Courts are enjoined to apply relative to retracted statements are:
(i) Is there anything outside the confession (in this case Exh. A and A1) to show that it is true?
(ii) Is it Corroborated no matter how slight?
(iii) Are the facts made in it true as far as they can be tested?
(iv) Was the Prisoner/accused one who had the opportunity of committing the offence?
(v) Is the Confession possible?
(vi) Is it consistent with other facts which have been ascertained and proved in the matter?
It is apparent from the record of appeal before us that the trial Court subjected the Rule in R. v. Skyes (Supra) to that test as can be seen at pages 55-56 of the record where the trial Court found as follows:-

“It is my view that there is, in the instant case sufficient reason establishing these facts. The testimonies of the

prosecution witnesses, which I accept as the truth have already afforded the necessary corroboration and other relevant issues pertaining to the confessional statement of the accused person, (Exhibit A and A1). And on its own the testimonies of the witnesses, especially that of PW1 and PW2 as accounts of eye witnesses, have fully and without more, established the prosecution’s case against the accused persons.”
It is not correct therefore to suggest as the appellant or his counsel did in their brief of argument that the trial Court failed to subject Exhibit A and A1 to the test or principle established for retracted confessions.
The trial Court was indeed aware of the dangers of the failure to observe and apply the principle enunciated in R. v. Sykes (supra) as can be seen at 55 where the Court observed that the conviction of an accused person on his retracted statement will depend only on those tests or principles reproduced earlier.

A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the offence. Confessions if voluntary are deemed to be relevant facts

as against the person who made it. See Sections 28 and 29(1) of the Evidence Act, 2011 and the decision on Olalekan v. The State (2001) LPELR-2561 (SC).

Exhibit A1 is the English version of Exhibit A, recorded in Hausa Language. Relative to those statements the Court below at pages 54-55 of the record of appeal found that Exhibits A and A1 are indeed confessional statements of the accused/appellant. I have no reason therefore to doubt this finding of the trial Court hence the trial Court rightly found in favour of the respondent based on those documents among other pieces of evidence.

Talking about other pieces of evidence naturally leads me to the testimonies of witnesses called by the prosecution. They are five (5) of them in number but the evidence of PW1, PW3 and PW5 clearly stand out being the evidence of witnesses said to be contradictory of the other. The basis for this supposition lies on the fact that whereas PW1 in his evidence said he saw the Polythene bag the appellant had held which they now found to contain bullets and pinches, PW3 testified stating the contrary that nothing was recovered from the accused person out of what was stolen

from them. Yet PW5, the officer in charge of Exhibits testified and tendered items which included (i) 12 rounds of live cartridges (ii) 2 M/vehicles plate numbers bearing AG/3/GWA (iii) Two pairs of sandals. These, according to the learned appellants counsel contradicted PW1 who said only Polythene bag containing bullets and pinches were recovered.

Learned appellant’s counsel further referred us to the alleged contradiction in the evidence of PW2 and PW3 on the differences as to the time the accused/appellant was arrested. These differences between them in their statement, it is argued, was a contradiction material enough to vitiate the evidence of those witnesses. There are a host of such other instances referred to by the learned appellant’s counsel at pages 21-23 of his brief of argument.

In Uwagboe v. State (2008) 12 NWLR (Pt. 102) 621, the Supreme Court relying on Ayo Gabriel v. The State (1989) NWLR (Pt. 122) 457 opined that two pieces of evidence contradicted the other when they are themselves inconsistent and that a discrepancy occurs when a piece of evidence stop short of or contains a little more than what the other piece of

evidence says or contains, some minor differences in details.
The law is that where there are material contradictions in the evidence of a party and which contradiction touch on a vital or material point in issue such parties case becomes weakened and thus unreliable and therefore lacking of probative value. See Esika v. Madolu (1997) 2 NWLR (Pt. 485) 54, 69. In other words, contradictions which must displace the evidence of the prosecution witnesses must be fundamental and substantial to affect the issue the Court is called upon to decide. See Usufu v. State (supra); Sunday Udosen v. The State (2007) 4 NWLR (Pt. 1023) 125.
Discrepancies in the evidence of witnesses which are merely peripheral to the fundamental question before the Court are not reckoned with as contradictions. Instances cited by the learned appellant’s counsel in his brief fall into this category and these are not fatal to the case of the prosecution. See: Agugira v. State (2016) 14 NWLR (Pt. 1539) 309, 328; Musa v. State (2015) 9 NWLR (Pt. 1359) 236; Sale v. The State (1993) NWLR (Pt. 267) 276, 288.
It is only natural that two or more witnesses cannot narrate the same

story in exactly the same way. It is against the law of nature. See:Ezeuke v. The State (2016) 6 NWLR (Pt. 1509) 529, 535.
It is not in contention that robbery took place in the House of PW3 and an arrest was made. Whether the person arrested, as in the appellant, was/is the culprit, is the subject of my discourse, shortly but as far as the question of the alleged material contradictions, are concerned, viewed from the evidence of witnesses for the prosecution, none exist to my understanding. I so hold.

Next in line is the question whether the testimonies of the PW1 and PW3 pass for proper identification of the appellant as eyewitness account of the incidence of robbery.

To the appellant there can only be proper identification where the culprit was recognised through his:-
(a) Finger prints (b) hand writing (c) palm print (d) voice (e) Identification parade (f) Photographs (g) recognition of the features of the culprit by witness (h) a combination of two or more of the above.
That indeed is the law where the question of identification of the culprit is in issue. See: Agbi v. Ogbeh (2009) 8 NWLR (Pt. 916) 62.

However, given the evidence

of PW3 at page 30 of the record of appeal, the issue of proper identification of the appellant did not arise during the trial. This is what PW3 said in his evidence in chief:
“Two days later, I was sitting beside my brother’s house, receiving condolence from people, when I saw the accused person whom I identified among the robbers that came to my house that Thursday. I tried to call him but he tried to escape. I told the people around to assist and catch him for me. They caught him and I asked him, “were you not the person that came to my house last time? He began to shiver.
He had taken my white shoes that night and I now asked him where is my pair of white shoes? He answered that he had left the shoes somewhere. I also asked him about my jeep, the Toyota Highlander and he started to tell me how he left my house and the road they took but he was dropped somewhere while the others left with the car. He told me the car was then in Kaduna.”
The witness was not contradicted on this point in his evidence under cross-examination, hence the trial Court rightly acted on this unchallenged evidence. See Ebewe v. State (2011) 17

NWLR (Pt. 1246) 402. It follows therefore that even before the trial commenced, the identity of the culprit, the appellant herein, was known and established. Consequently, the question that the appellant was not properly identified at the trial and yet the trial Court found in favour of the respondent becomes a non-issue at the trial Court and this Court.
The identification of the appellant was spontaneous and where spontaneous recognition of the appellant is acceptable, the Court can act on such evidence. See: Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1, 41.

I have indicated before that the burden duty to prove the guilt of the accused/appellant rest with the prosecution to prove all essential ingredients that constitute the offence of armed robbery beyond reasonable doubt. Given the evidence of PW1, PW3 among others and Exhibits A and A1, the prosecution had discharged her duties under the law and the trial Court ably evaluated that evidence before reaching the conclusion to convict the appellant as charged. I have no reason to disturb this finding of the Court below but affirm that judgment delivered on the 10th October, 2016. See: Anyegwu v. Onuche

(2009) 3 NWLR (Pt. 1129) 659, 674. The appeal in effect, fails on the sole issue reformulated by me, hence the appeal is dismissed.

That is the Order and Judgment.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading, in advance, the judgment of my learned brother Saidu Tanko Husaini, JCA. I agree with the eloquent reasoning therein and conclusion that the appeal fails on the resolution of the lone issue and should be and is hereby dismissed. I adopt the consequential orders made in the judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the Judgment of my learned brother SAIDU TANKO HUSAINI JCA, where the facts leading to this appeal have been amply set out.

I am in agreement with My Lord’s deliberations on the issue raised and his conclusions thereon.

I also dismiss this appeal and affirm the judgment of the lower Court.

Appearances:

Ja’afar Shehu, Esq. For Appellant(s)

Halima Lawal (Mrs), Esq., Chief State Counsel, Ministry of Justice, Katsina. For Respondent(s)