AZEEZ v. PEOPLE OF LAGOS STATE (2020)

AZEEZ v. PEOPLE OF LAGOS STATE

(2020)LCN/14889(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/L/1062C/2014

RATIO

CRIMINAL LAW: BURDEN OF PROOF IN CRIMINAL TRIALS

There is nothing esoteric in the apothegm that in criminal trials the burden is on the Prosecution to prove the offence charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372, MICHAEL vs. THE STATE (2008) LPELR (1987) 1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the defendant. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41.
I iterate that proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. Generally, in criminal trials, the burning issue is not ordinarily whether or not the offence was committed. Most often, the disceptation is on the identification of the person or persons alleged to be the actual perpetrators of the offence charged: NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651. PER OGAKWU, J.C.A.

EVIDENCE: THE LAW ON THE DEFENCE OF ALIBI

Let me start by expounding the law on the defence of alibi. The term alibi, is not defined in the Evidence Act. It is however a derivative of two Latin words ‘alius’ meaning ‘other’ and ‘ibi’ or ‘ubi’ meaning ‘there’ or ‘where’. Its usage in criminal jurisprudence is a dexterous fusion of the first three letters of the word ‘alius’ and the last two letters of the word ‘ibi’ or ‘ubi’, hence the word ‘alibi’. See ALANI vs. THE STATE (1993) 7 NWLR (PT 303) 112 at 114, THE STATE vs. AZEEZ (2008) 4 SC 188, ADEWUMI vs. THE STATE (2012) LPELR (9753) 1 at 32 and OMORUYI vs. THE STATE (2016) LPELR (40133) 1 at 55.
Paucis verbis, alibi means elsewhere other than the scene of crime at the relevant time: ATTAH vs. THE STATE (2010) 10 NWLR (PT 1201) 190. In criminal trials, where the defence of alibi is raised at the earliest opportunity, the Prosecution has the burden to investigate it and disprove the same. It is not for the defendant to establish his alibi to the satisfaction of the Court; it is for the Prosecution to disprove the alibi vide OSUAGWU vs. THE STATE (2013) LPELR (19823) 1 at 20-21. The failure of the Prosecution to investigate a defence of alibi raised, which gave detailed particulars for the ‘elsewhere’, will lead to an acquittal where there is no other evidence fixing the defendant at the scene of the crime. See EYISI vs. THE STATE (2000) 4 NSCQR 60, EKE vs. THE STATE (2011) LPELR (1133) 1, ODU vs. THE STATE (2001) 5 SCNJ 115 at 120 or (2001) 10 NWLR (PT 772) 668 and ADEBIYI vs. THE STATE (2016) LPELR (40008) 1 at 10-13. PER OGAKWU, J.C.A.

CRIMINAL LAW: PRINCIPLES GUIDING IDENTIFICATION

In ADEYEMI vs. THE STATE (1991) 2 NWLR (PT 170) 679 at 694, the apex Court (per Olatawura, JSC) held that identification depends on mental ability and perception of individuals and that where a witness who gave evidence of visual identification was not cross examined or shaken under cross examination, then a trial judge should accept the evidence. See also

CRIMINAL LAW: MEANING AND NATURE OF IDENTIFICATION

Identification is a means of establishing whether a person charged with an offence is actually the same person who actually committed the offence. The identification is often done by an identification parade, but the conduct of an identification parade is not a sine qua non to conviction. Where there are other means of such identification other than through identification parade, such means, once credible, will suffice and the parade can be dispensed with. It will only be necessary to conduct an identification parade when:
1. The victim did not know the defendant before and the first acquaintance with him was during the commission of the offence.
2. The victim or witness was confronted by the offender for a very short time.
3. The victim due to time and circumstances might not have had the full opportunity of observing the features of the defendant.
See ARCHIBONG vs. THE STATE (2006) 5 SC (PT III) 1, AYINDE vs. THE STATE (2018) LPELR (44761) 1 at 32-35 and AWOSIKA vs. THE STATE (2018) LPELR (44351) 1 at 24-25.
Aliis verbis, where there is uncontradicted eyewitness account and identification of the person who committed the offence, where the witness knew the defendant previously and where the defendant is linked to the offence by convincing, cogent and compelling evidence, an identification parade will not be a relevant fact. See ATTAH vs. THE STATE (supra) at 225-226, BALOGUN vs. A-G OGUN STATE (2002) 6 NWLR (PT 763) 512 at 534, EYISI vs. THE STATE (2001) 8 WRN 1, at 9-10, UGWUMBA vs. THE STATE (1993) 5 NWLR (PT 296) 66 and PIUS vs. THE STATE (2016) LPELR (40657) 1 at 23-24. PER OGAKWU, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

GENTY AZEEZ APPELANT(S)

And

THE PEOPLE OF LAGOS STATE RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant was charged with one other person before the High Court of Lagos State in CHARGE NO. ID/11C/2013: THE STATE vs. DAVID ADENIY(J)I & ANOR. It was a three count charge of conspiracy to commit armed robbery, armed robbery and rape. The Appellant was however charged and tried on the counts of conspiracy to commit armed robbery and armed robbery only. At the end of the trial, the lower Court, Coram Judice: Okunnu, J., held that the offences charged were proved and consequently convicted and sentenced the Appellant to death.

The Appellant was dissatisfied with the judgment and appealed against the same by Notice of Appeal filed on 18th September 2014. The judgment of the lower Court which was delivered on 20th June 2014 is at pages 127-144 of the Records, while the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 29th March 2017, but deemed as properly filed on 27th May 2020.

The Records of Appeal and the two volume Additional Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of

argument which they adopted and relied upon at the hearing of the appeal. The Appellant’s Brief was filed on 24th June 2020, while the Respondent’s Brief was filed on 10th July 2020. Both briefs were deemed as properly filed on 10th November 2020.

The Appellant formulated two issues for determination, namely:
“1. Should the trial Court not have relied on the appellant’s unrefuted alibi?
2. Did the prosecution establish the guilt of the appellant to warrant his conviction by the trial Court?”

The Respondent equally distilled two issues for determination, as follows:
“1. Whether the Learned trial Judge was right in convicting the Appellant taking into consideration the oral testimonies of the Respondent’s witnesses?
2. Having regard to the circumstance of the case, whether the Appellant’s defence of Alibi will not fail?”

Under our adversarial criminal justice system, the Prosecution has the onus of proving the commission of the crime charged. By Section 135 of the Evidence Act, the standard of proof in a criminal case is proof beyond reasonable doubt. The lower Court held

that the said standard of proof was attained, consequent upon which it convicted and sentenced the Appellant to death. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. What therefore requires determination in this appeal is whether the lower Court rightly held that the offences of conspiracy to commit armed robbery and armed robbery against the Appellant were proved beyond reasonable doubt.

From the issues distilled for determination by the parties, which issues are the same in every material particular, and the submissions of learned counsel, it is evident that there is no contention as to whether the essential ingredients of the offences charged were proved. The only contention in this appeal is whether the Prosecution disproved the alibi raised by the Appellant. Alibi affords an absolute defence in a criminal matter, where it is not disproved by the Prosecution. Given this fact, it seems to me that alibi

being a defence, it would, if made out, afford a defence and a conviction will in the circumstances not be returned by the Court of trial as the Charge would not have been proved beyond reasonable doubt. Accordingly, it is my considered view that a sole distensible and dilatable issue which encompasses and encapsulates the issues nominated by the parties will suffice for the determination of this appeal. The issue which I find idoneous and on the basis of which I will presently consider the submissions of learned counsel and resolve this appeal is:
Whether the Charge against the Appellant was established beyond reasonable doubt to warrant his conviction for the offences charged.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant refers to the case of WISDOM vs. THE STATE (2017) 14 NWLR (PT 1586) 446 at 464 on the defence of alibi and submits that the defence of alibi was properly raised at the earliest possible time, stating the necessary particulars; vide SHEHU vs. THE STATE (2010) 8 NWLR (PT 1195) 112 at 132. It was further submitted that the Prosecution did not disprove the Appellant’s alibi as the testimony of the PW3, the

Investigating Police Officer (IPO) under cross examination, confirmed the Appellant’s alibi that he was at home on the date when the alleged offence was committed.

The Appellant contended that the lower Court wrongly interpreted the answer given by the PW3 under re-examination to mean that the Appellant could not properly account for his whereabouts after 11pm on the date of the incident, consequent upon which it held that the defence of alibi did not succeed. The lower Court, it was asserted, fell into the error of requiring the Appellant to prove his alibi and wrongly applied the provisions of Section 167 (d) of the Evidence Act by holding that the Appellant’s failure to call his family members as witnesses amounted to withholding of evidence.

The Appellant opined that the lower Court chose part of the evidence of the PW3 favourable to the Prosecution and ignored the part which corroborated the Appellant’s case, holding that that part appeared to contradict the Prosecution’s case. A Court, it was maintained cannot pick and choose what part of a witness’ testimony to believe and what part to disbelieve. The entire

evidence, it was stated was either to be believed or disbelieved. The case of GBADAMOSI vs. THE STATE (1991) 6 NWLR (PT 196) 182 at 206-207 was relied upon.

It was further submitted that if the entire evidence of the PW3 is disbelieved, then it will be the word of the PW1 and PW2 against that of the Appellant and that the PW1 and PW2, whose testimony the lower Court believed, could have been as a result of an honest mistake in identity, since as held in ABUDU vs. THE STATE (1985) 1 NWLR (PT 1) 55, mistakes in recognition of close relatives and friends are sometimes made. The Appellant asserted that the Prosecution did not disprove the alibi he raised and that the said alibi sufficed to exonerate him.

The Appellant, arguing the second issue he distilled, submits that the Prosecution did not prove all the essential elements of the crime charged as a result of which he was entitled to a discharge and acquittal. The case of SHEHU vs. THE STATE (supra) at 144 was called in aid. It was stated that the Appellant’s identity as the perpetrator of the crime charged was not proved as his alibi was not disproved and suspicion, no matter how strong, cannot

ground a conviction. The cases of SHEHU vs. THE STATE (supra) at 135 and ABUDU vs. THE STATE (supra) at 67 were relied upon.

It was posited that the lower Court’s disbelief of the Appellant’s alibi because the Appellant failed to call oral evidence to corroborate his testimony regarding his alibi amounted to requiring the Appellant to prove his innocence. The Court, it was contended, had to warn itself before relying on the evidence of identification of a defendant, since mistakes can be made in recognition of close friends and relatives. The cases of SHEHU vs. THE STATE (supra) and ABUDU vs. THE STATE (supra) were referred to. It was conclusively submitted that the prosecution did not prove that the Appellant was one of those who committed the offences charged and that the case was in consequence not proved beyond reasonable doubt.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the burden on the Prosecution is to prove the offence charged beyond reasonable doubt and that this can be done by reliance on confessional statement of the defendant, eyewitness testimony and circumstantial evidence. The cases of

AYINDE vs. THE STATE (2019) LPELR-47835 (SC) and SAMINU vs. THE STATE (2019) LPELR-47622 (SC) at 14 were referred to.

It was posited that PW1 and PW2 gave eyewitness testimony of what transpired, which testimony was unshaken under cross examination. The PW1 and PW2 were stated to have clearly seen the Appellant on the day of the incident and were not mistaken in their identification of the Appellant. Eyewitness testimony, it was opined, was the best evidence available in criminal trials vide SHURUMO vs. THE STATE (2010) LPELR-3069 (SC) and that the PW1 and PW2 were credible eyewitnesses who gave cogent, compelling and credible evidence that remained unshaken under cross examination.

The Respondent referred to the essential ingredients of the offences charged and submitted that the ingredients were established and that the Appellant was clearly identified as one of the perpetrators of the offences charged. The cases of NDEWENU POSU vs. THE STATE (2011) LPELR-1969 (SC), OGUNBAYO vs. THE STATE (2007) LPELR-2323 (SC), PETER vs. THE STATE (2015) LPELR-22574 (CA), AFOLABI vs. THE STATE (2013) LPELR -20700 (SC) and JOHN vs. THE STATE (2019) LPELR-46936 (SC)

were relied upon.

The Respondent’s submission on the second issue it distilled, is that it is not the law that once alibi is raised, the defendant will be exculpated. It was stated that a plea of alibi is demolished if the Prosecution adduces sufficient evidence to fix the defendant at the scene of the crime at the material time. The cases of OKEREKE vs. THE STATE (2012) LPELR-19678 (CA), NJOVENS vs. THE STATE (1973) 5 SC 17 and IKEMSON vs. THE STATE (1989) 3 NWLR (PT 110) 453 to 466 were cited in support.

The Respondent maintained that the PW1 and PW2 gave eyewitness testimony which identified, recognized and fixed the Appellant at the scene of crime and the evidence was that there was light and that the Appellant did not cover his face. It was asserted that there was no mistake in identity as the PW1 and PW2 were unshaken in their testimony. The cases of KEKONG vs. THE STATE (2017) LPELR-42343 (SC) and IKEMSON vs. THE STATE (supra) at 479 were called in aid.

The Respondent conclusively submitted that an appellate Court will not interfere with findings of primary facts made by the trial Court which heard and saw the demeanour of the

witnesses, unless the findings made are perverse and occasioned a miscarriage of justice vide THE STATE vs. SHONTO (2019) LPELR-47431 (SC) at 20-21.

RESOLUTION
There is nothing esoteric in the apothegm that in criminal trials the burden is on the Prosecution to prove the offence charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372, MICHAEL vs. THE STATE (2008) LPELR (1987) 1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable

inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the defendant. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41.
I iterate that proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. Generally, in criminal trials, the burning issue is not ordinarily whether or not the offence was committed. Most often, the disceptation is on the identification of the person or persons alleged to be the actual perpetrators of the offence charged: NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651. This is at the pith of the disceptation in this matter as the contention of the Appellant centres around the alibi he raised which he maintains was not disproved by the Prosecution and is a defence which affords an absolute defence and exculpates him from the offences

charged, such that the lower Court was wrong in convicting and sentencing him.

It is this contention which is at the pith of this appeal that will captivate our attention in the resolution of this appeal. Let me start by expounding the law on the defence of alibi. The term alibi, is not defined in the Evidence Act. It is however a derivative of two Latin words ‘alius’ meaning ‘other’ and ‘ibi’ or ‘ubi’ meaning ‘there’ or ‘where’. Its usage in criminal jurisprudence is a dexterous fusion of the first three letters of the word ‘alius’ and the last two letters of the word ‘ibi’ or ‘ubi’, hence the word ‘alibi’. See ALANI vs. THE STATE (1993) 7 NWLR (PT 303) 112 at 114, THE STATE vs. AZEEZ (2008) 4 SC 188, ADEWUMI vs. THE STATE (2012) LPELR (9753) 1 at 32 and OMORUYI vs. THE STATE (2016) LPELR (40133) 1 at 55.
Paucis verbis, alibi means elsewhere other than the scene of crime at the relevant time: ATTAH vs. THE STATE (2010) 10 NWLR (PT 1201) 190. In criminal trials, where the defence of alibi is raised at the earliest opportunity, the

Prosecution has the burden to investigate it and disprove the same. It is not for the defendant to establish his alibi to the satisfaction of the Court; it is for the Prosecution to disprove the alibi vide OSUAGWU vs. THE STATE (2013) LPELR (19823) 1 at 20-21. The failure of the Prosecution to investigate a defence of alibi raised, which gave detailed particulars for the ‘elsewhere’, will lead to an acquittal where there is no other evidence fixing the defendant at the scene of the crime. See EYISI vs. THE STATE (2000) 4 NSCQR 60, EKE vs. THE STATE (2011) LPELR (1133) 1, ODU vs. THE STATE (2001) 5 SCNJ 115 at 120 or (2001) 10 NWLR (PT 772) 668 and ADEBIYI vs. THE STATE (2016) LPELR (40008) 1 at 10-13.

In the diacritical circumstances of this matter, the Appellant raised the defence of alibi at the earliest opportunity; the same was investigated and in its judgment the lower Court disbelieved the alibi and convicted the Appellant. This is the casus belli in this matter: whether the lower Court was right in its decision that the alibi was disproved by the Prosecution and so did not avail the Appellant as a defence to the Charge.

In proof of the offences charged, the Prosecution relied on the eyewitness testimony of the PW1 and PW2 as well as the investigation activities conducted by the PW3; upon the transfer of the case to the Special Anti-Robbery Squad (SARS) on 11th November 2011, about ten days after the incident which happened on 1st November 2011. In so far as is relevant to the core issue in this matter, which I iterate is whether the alibi of the Appellant was disproved, the eyewitness testimony of the PW1 and PW2 is that the armed robbers came to their house at about 12 midnight and that the Police arrived at the scene after 2am. (See pages 42, 50, 57 and 60 of the Additional Records of Appeal). It is their further testimony that there was light (electricity supply) during the incident and that the armed robbers did not cover their faces. So while they recognized the Appellant’s co-defendant who had been living in the same area with them for about four years, they could identify the Appellant having encountered him during the incident. The PW1 and PW2, in their testimony, gave graphic details of what happened. (See pages 41, 44, 48, 52, 54, 55, 56 and 58 of the Additional Records).

It is instructive that the PW1 and PW2 were not cross-examined as to the time of the incident or as to the fact that there was light with which they could see the faces of the perpetrators, who they testified, did not cover their faces.

The Appellant, no doubt raised the defence of alibi and contends that the alibi was not disproved and that, indeed, the testimony of the PW3 supported his alibi. Now, the alibi of the Appellant is that he was at home throughout on 1st November 2011, the day of the incident, with his wife and two children. (See page 28 of the Additional Records of Appeal). The testimony of the PW3 on his investigation activities on the alibi is at pages 6-7 of the Additional Records. He testified thus:
“We also verified from people who were there whether those people that they brought before us were at home on that fateful day before they were brought to SARS. Most people volunteered to talk to us but others declined. We tried to inform them that there is no need for them to be afraid that we only come here for investigation so that the people who were brought before us will not be victimised after our investigation. Still they

did not believe what we were saying. Most of them stood very far and were telling us that those people are not the people that went to that place because like the Azeez, one of the suspect who is standing before you, My Lord…
They said that one was seen in the night during this period we were together, some of the guards said they were together during that period and they never knew something will happen again after they must have gone to bed.”

It is instructive that there is nothing in the above testimony on the material point of time vis-a-vis, the incident which happened about or after 12midnight.

The PW3 further testified as follows, under cross examination, on his investigation of the alibi at page 11 of the Additional Records:
“Q. So you said in the course of your investigation, you visited the house of the Defendants. Now, did you try to see and ask those whose name were mentioned in that Statement to confirm whether they were at home on that particular date or not?
A. Well, your Lordship, you know when a matter like this happen, they must try to make sure you go into extra.
THE COURT: Just answer the

question.
A. I did, because I find out whether the suspects were at home on the date of the incident.
THE COURT: The Defendants.
A. Yes, the Defendants. They said yes, they were at home, all of them.”

The PW3 continued and testified as follows under Re-examination at pages 12-13 of the Additional Records:
“Q. Now could you tell this Court if you found out what time of the day they said they were at home for?
A. Yes, the D1 and 2 said that –
THE COURT: The Defendant?
A. The Defendants. They said during that period they alleged, that during that hour until about 9:30, 10, 11 they were at home when they left –
THE COURT: What do you mean by 9:30, 10, 11? Is that a.m or p.m.
A. P.M. Your Lordship. That they were at home during that period before the incident took place at about 02:50 hours in the morning.”

Once again, on the material issue of the time of the incident, the testimony of the PW3 is that his investigation of the alibi disclosed that the defendants “were at home during that period before the incident took place…” The simple understanding of this testimony is that his

investigation of the alibi did not confirm the Appellant’s alibi that he was ‘elsewhere’ at the material point of time when the incident took place. I have not lost sight of the Appellants contention that the lower Court could not believe and disbelieve the PW3 at the same time. This is in respect of the finding of the lower Court at page 142 of the Records that it did not accept the testimony of the PW3 that the incident occurred at 2.50 a.m. In my deferential view, this is much ado about nothing. As earlier stated, the unchallenged evidence of the PW1 and PW2 is that the incident happened at about 12midnight but that it was not until about 2am that the Police came to the scene. When it is further remembered that the PW3 only came into matter about ten days after the incident, when the case file was transferred to SARS, it becomes lucent why the lower Court preferred the eyewitness testimony of the PW2 as to the time when the incident happened.

The Appellant further makes a foofaraw of the lower Court having stated at page 142 of the Records that the answer given by the PW3 under cross examination that he was told that the Appellant was

at home on the date of the incident seemed to contradict the case of the Prosecution, and that the Court only picked the portion of the testimony that was favourable to the Prosecution. Undoubtedly, the testimony that the investigation of the alibi disclosed that the Appellant was at home on the date of the incident would on the face of it seem to support the defence; however the material part of fixing the Appellant at the locus criminis is the point in time when the offence was said to have been committed. This is where the Prosecution effectively utilised the purpose of re-examination which is directed at explaining matters referred to in cross examination (see Section 215 (3) of the Evidence Act), to extract the explanation from the PW3 that the time when the Appellant was said to be at home was until 11pm on the day of the incident. (See pages 12-13 of the Additional Records). The vital aspect remains the time when the offence was committed, which from the evidence is from 12midnight. The judge at nisi prius is to evaluate the entire evidence and make consequential findings of facts. The lower Court duly discharged this duty at pages 141-142 of the

Records and it is not correct as contended by the Appellant that the lower Court only took part of the evidence that was favourable to the Prosecution.

I may be repetitive and circular, but sometimes it is good for emphasis. So it bears emphasizing that the PW1 and PW2 were not effectively challenged under cross examination on their recognition and identification of the Appellant; on the fact that the perpetrators did not cover their faces and that there was electricity supply at the time of the incident with the aid of which they saw the faces of the perpetrators of the crime including the Appellant’s co-defendant who they knew before the date of the incident. The kerfuffle made by the Appellant on the possibility of mistaken identity and recognition is consequently of no moment. In ADEYEMI vs. THE STATE (1991) 2 NWLR (PT 170) 679 at 694, the apex Court (per Olatawura, JSC) held that identification depends on mental ability and perception of individuals and that where a witness who gave evidence of visual identification was not cross examined or shaken under cross examination, then a trial judge should accept the evidence. See also

KEKONG vs. THE STATE (2017) LPELR (42343) 1 at 35 -36 and THE STATE vs. SALAWU (2011) LPELR (8252) 1 at 50.
It is no doubt trite law that there may be errors of observation, recognition or errors in reconstruction and that the Courts are to guard against cases of mistaken identity. The Courts guarding against cases of mistaken identity will be attained by purposeful cross examination by learned counsel in order to expose the errors of observation, of recognition and of resemblance. See IKEMSON vs. THE STATE (1989) LPELR (1473) 1 at 42-43. It is ineffectual for the Appellant’s counsel, having failed to purposefully and effectively cross-examine on the identification and recognition of the Appellant, to now contend that there may have been mistake in the identification and recognition of the Appellant by the PW1 and PW2.

than through identification parade, such means, once credible, will suffice and the parade can be dispensed with. It will only be necessary to conduct an identification parade when:
1. The victim did not know the defendant before and the first acquaintance with him was during the commission of the offence.
2. The victim or witness was confronted by the offender for a very short time.
3. The victim due to time and circumstances might not have had the full opportunity of observing the features of the defendant.
See ARCHIBONG vs. THE STATE (2006) 5 SC (PT III) 1, AYINDE vs. THE STATE (2018) LPELR (44761) 1 at 32-35 and AWOSIKA vs. THE STATE (2018) LPELR (44351) 1 at 24-25.
Aliis verbis, where there is uncontradicted eyewitness account and identification of the person who committed the offence, where the witness knew the defendant previously and where the defendant is linked to the offence by convincing, cogent and compelling evidence, an identification parade will not be a relevant fact. See ATTAH vs. THE STATE (supra) at 225-226, BALOGUN vs. A-G OGUN STATE (2002) 6 NWLR (PT 763) 512 at 534, EYISI vs. THE STATE (2001) 8 WRN 1,

at 9-10, UGWUMBA vs. THE STATE (1993) 5 NWLR (PT 296) 66 and PIUS vs. THE STATE (2016) LPELR (40657) 1 at 23-24.
The eyewitness testimony of the PW1 and PW2 was not impeached under cross examination that there was light and that the perpetrators did not cover their faces, so they recognized the Appellant’s co-defendant, who they previously knew, and equally saw the other perpetrators of the crime clearly such that they could recognize them, given the ample time they spent with the perpetrators of the crime. Recognition of a defendant, as in the circumstances of this matter, may even be more reliable than identification: EYISI vs. THE STATE (supra), OSUAGWU vs. THE STATE (2013) 1-2 SC (PT 1) 37 and SEUN vs. THE STATE (2019) LPELR (47549) 1 at 7-11.
Given the settled state of the law, the lower Court correctly resolved the issue of identification and recognition of the Appellant at pages 135-140 of the Records and conclusively held as follows at page 140 of the Records:
“I find, in the circumstance, that there was no need at all for the Police to have organised an identification parade. I find, rather, that the sisters have given

strong, credible evidence showing a positive identification by them of both defendants herein.”
The finding of the lower Court is rooted in the evidence on record and there is consequently no basis for an appellate Court to interfere: THE STATE vs. SHONTO (supra).

I have at the outset expounded the law on alibi. I have further held in the course of this judgment that the testimony of the PW3 did not support the Appellant’s alibi since the material consideration is the physical impossibility of the Appellant being present at the scene of crime, if he was somewhere else at the material time. Let me reiterate that the investigation of the Appellant’s alibi did not put him elsewhere at the material time of the commission of the crime. Be that as it may, the defence of alibi is destroyed by contrary evidence fixing the defendant at the place of crime. See KOLADE vs. THE STATE (2017) LPELR (42362) 1 at 35-36, OSUAGWU vs. THE STATE (2013) LPELR (19823) 1 at 21, ONUCHUKWU vs. THE STATE (1998) LPELR (2701) 1 at 21 and PETER vs. THE STATE (1997) LPELR (2913) 1 at 29-30.
In NJOVENS vs. THE STATE (1973) LPELR (2042) 1 at 52-53,

Coker, JSC stated:
“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduce sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished. The Supreme Court had had the occasion to consider this point in Hemyo Atam and Anor v. The State, SC. 632/66 decided on the 11th January, 1967 and had observed on this point as follows:
‘Each of the appellants made a statement under caution after his arrest, setting up an alibi. The police officer who took the statements was asked whether he had done anything to check their truth and said that he had not and it was submitted that for this reason justice had been denied to the appellants and there should at least have been a reasonable doubt as to their

guilt. There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution, but in a case such as this where the appellants were identified by three eyewitnesses there was a straight issue of credibility and we are not able to say that the judge’s findings of fact were unreasonable or cannot be supported having regard to the evidence. If the alibis had been true it would have been open to the appellants to call witnesses in support of them and neither of them did so.’”
See also OLATINWO vs. THE STATE (2013) LPELR (19979) 1 at 19-20 and AGU vs. THE STATE (2017) LPELR (41664) 1 at 29.
The testimony of the PW1 and PW2 fixed the Appellant at the scene of the crime at the time the offence was committed such that the defence of alibi crumbled having been disproved by the contrary evidence. The finding of the lower Court that the Appellant did not call any of the family members that he was with to testify on his alibi is, not as contended by the Appellant putting the burden of proof on the Appellant; it is rather the reasoning that the alibi is not true on account of the contrary evidence.

As stated by the apex Court in NJOVENS vs. THE STATE (supra):
“If the alibis had been true it would have been open to the appellants to call witnesses in support of them and neither of them did so.”
It is the similar situation in this case. The Appellant testified in his defence and did not call any other witness. The summation of the lower Court at page 142 of the Records that:
“But even at this, PW3’s evidence is that the Defendants were at home only until about 11pm. In other words, the Police found that the Defendants could not properly account for themselves, for their whereabouts, after 11pm that night. Perhaps this is why they were unable to properly adduce evidence in support of their mere ipse dixit that they were home all through the night. However, those bare words by them, without any evidence in proof of the same, must be ignored by the Court. The defence of an alibi has not succeeded.”
is the correct decision. An appellate Court accords due respect to correct findings and conclusion on facts made at nisi prius: IBHAFIDON vs. IGBINOSUN (2001) 8 NWLR (PT 716) 653.

The concatenation and conflating of the foregoing is that the decision of the lower Court that the offences charged were proved beyond reasonable doubt is the correct decision. The sole issue for determination as distilled by the Court is resolved against the Appellant. The appeal being devoid of merit is hereby dismissed. The decision of the lower Court embodying the conviction and sentence of death imposed on the Appellant is hereby affirmed.

OBANDE FESTUS OGBUINYA, J.C.A.: I endorse, in toto, the elegant leading judgment delivered by my learned brother: Ugochukwu Anthony Ogakwu, JCA. I too, penalise the appeal with a deserved dismissal.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read the draft of the lead judgment just delivered by my learned brother, the Honourable Justice UGOCHUKWU ANTHONY OGAKWU, JCA, wherein the appeal was held to be devoid of merit and was consequently dismissed.
I agree with the reasoning and conclusion reached therein, I have nothing more to add.
The appeal lacks merit and it is dismissed by me too.

Appearances:

Ms. Emma Ndiyo For Appellant(s)

Ms. T. K. Shitta-Bey, Solicitor-General/Permanent Secretary, Ministry of Justice, Lagos State For Respondent(s)