BENJAMIN GHOHOR v. STATE
(2013)LCN/6014(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2013
CA/B/354C(A)/2010
RATIO
ARMED ROBBERY: WHAT MUST BE PROVED BY THE PROSECUTION TO ESTABLISH THE OFFENCE OF ARMED ROBBERY
In proving the offence of armed robbery, the prosecution must establish by evidence and prove that:
(i) there was infact a robbery attack on some person(s);
(ii) the robbery attack was an armed robbery, that is offensive and dangerous weapons were used in the execution of the robbery and
(iii) the accused person was the armed robber.
See Bozin V. The State (1995) 2 NWLR (pt. 8) 455; Alabi V. The State (1993) 7 NWLR (pt. 307) 511; Olayinka V. The State (2007) 9 NWLR (pt. 1040) 561; Olowoyo V. The State (2012) 35 WRN 112 at 145; (CA) Osetola & Anor. V. The State (2012) 17 NWLR (pt. 1329) 251 at 275 (SC).PER TOM SHAIBU YAKUBU, J.C.A
IDENTIFICATION EVIDENCE: WHAT PURPOSE DOES AN IDENTIFICATION EVIDENCE SERVE
The identification evidence of a witness who was either the victim of the armed robbery attack or of a witness who was an eye witness to the armed robbery operation, is that evidence which tends to show that the person charged with that offence is the same as the person who was seen by the witness, as committing the said offence. See Abudu V. The State (1985) 1 NWLR (pt. 1) 55; Mbenu V. The State (1988) 3 NWLR (Pt. 84) 615; Ogoala V. The State (1991) 3 SCNJ 61; Uche-Williams V. The State (1992) 10 SCNJ 74; Sunday Ndidi V. The State (2007) 5 SCNJ 274 at 287 – 288.PER TOM SHAIBU YAKUBU, J.C.A
JUDGEMENT: ANY JUDGMENT THAT IS LIKELY TO LEAD TO A CAPITAL PUNISHMENT MUST BE DECIDED CAREFULLY
Let me refer to the admonition by my Lord Mohammad, JSC, in Sunday Ndidi V. The State (2007) 5 SCNJ 274 at 292 that:
“A judgment which sends a man to the gallows to await the hang man to execute him at any single minute must be punctuated by logical thinking based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal interferences is carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance. See Aniagolu, JSC’s dictum in the case of Nwosu v. State (1986) 4 NWLR (Pt. 35) 348 at page 359.”PER TOM SHAIBU YAKUBU, J.C.A
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
BENJAMIN GHOHOR Appellant(s)
AND
THE STATE Respondent(s)
TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment): On the 3rd August, 2009, the appellant was found guilty of the offences of conspiracy to commit armed robbery and armed robbery. He was consequently sentenced to death by hanging by Ebiowoi Tobi, J.,of the Delta State High court of Justice, sitting at Otor-Udu.
The appellant and one LUCKY EFE were alleged to have attacked one Rebecca Oderhewo, on 13th October, 2005 at Ovwian within Effurun Judicial Division, Delta State who was robbed of the sum of N300 cash and jewelries worth N3, 000.00. They were said to have been armed with a gun and a cutlass. The appellant denied the two charges against him.
At the trial, the prosecution called two witnesses. An attempt to tender in evidence the extra-judicial statement of the appellant by the prosecution was objected to by the defence on the ground of involuntariness of the said statement. The trial within trial ended in favour of the defence, hence the extra-Judicial statement of the appellant was marked REJECT “1”
The appellant gave evidence in his defence and denied involvement in the offence for which he was charged to court. At the end of the case for the defence, counsel for the prosecution and defence addressed the court.
They were each convicted for the said offences under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Vol. 22 Laws of the Federation of Nigeria, 1990, on 3rd August, 2009.
Each of the convicts filed separate notices of appeal against their convictions and sentences of death by hanging placed on them. The appeal of the appellant herein is No. CA/B/354C(A)/2010 whilst that of his co-accused – LUCKY EFE is N o. CA/B/354C/(B)/2010.
In his appeal, the appellant originally filed two grounds of appeal. Thereafter, six additional grounds of appeal were filed by the appellant.
So,vide an amended Notice and Grounds of appeal, the appellant filed altogether, eight (8) grounds of appeal.
Ayo Asala, Esq., of learned counsel to the appellant settled the appellant’s brief of argument dated 22nd May, 2012 which was filed on 5th June, 2012. In it, two issues were distilled for the determination of the appeal, to wit:
“(i) Whether there was credible evidence before the lower court justifying the findings that the appellant was properly identified as one of the persons that robbed PW1, Rebecca Oderhewo.
(ii) Whether from the totality of the evidence on the record, the lower court was right in convicting the appellant for the offences of conspiracy to rob and armed robbery.”
The respondent, on the 7th January, 2013 filed her brief of argument dated 24th December, 2012. It was settled by O.F. Enenmo Esq., Deputy Director of Public Prosecutions, Delta State Ministry of Justice, Asaba. A sole issue for determination was identified by Mr. Enenmo, namely:
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN LAW WHEN HE HELD THAT THE PROSECUTION PROVED IT’S CASE AGAINST THE ACCUSED PERSON BEYOND REASONABLE DOUBT. GROUNDS 1, 5, 9.”
In considering and determining this appeal, I adopt the two issues distilled for determination by the learned counsel to the appellant.
Arguing issue one, Mr. Asala, for the appellant, submitted that the evidence by the PW1, especially as it related to the identification of the appellant as one of the persons who robbed her on 13th October,2005 was unreliable and inconsistent. His contention is that where a witness had made an extra-judicial statement to the police prior to the trial in court, which is inconsistent with the evidence he later gave in court at the trial, without any cogent explanation for the inconsistency, the court should regard such piece of evidence as unreliable. He referred to Orungbo V. The State (1974) 9 NSCC 358; Ubani V. The State (2004) FWLR (pt. 191) 1533 at 1551.
Mr. Asala, referred to and pointed out instances of alleged inconsistencies between the extra-judicial statement of PW1 in Exhibit ‘A’ and her oral testimony at the trial, to the effect that:
“(i) The PW1 in her testimony said she was able to identify the persons that robbed her to be vigilante people because they wore the uniform of the vigilante which was red and red See pages 28 and 29 of the record. This piece of evidence was not contained in exhibit ‘A’, the extra judicial statement of PW1 made to the police on 2/11/200.
(ii) PW1 also gave oral evidence of how she reported the matter to the vigilante’s office, a day after the incident. She also testified that on 14/10/2005, she went to the vigilante’s office in the afternoon and saw the appellant and the other accused person already arrested and sitting down on the ground, and that she identified them. She also testified how she recovered some of the items stolen from her. Curiously all these vital evidence were not contained in her extra judicial statement, exhibit ‘A’.
(iii) In her oral testimony, PW1 earlier said in her evidence in chief that: “I had earlier seen the two accused persons that day.” Not quite long thereafter, she made a volte face by saying” I did not see them in the vehicle. I only identified them as vigilante people by their uniform.” See her evidence at pages 28 to 29 of the record.
(iv) In her oral testimony, pw1 said she was able to identify the appellant because of the light (NEPA), but this was not stated in exhibit ‘A’ the extra judicial statement.”
Learned counsel submitted that from the foregoings, the appellant in reliance upon Section 232 of the Evidence Act, 2011, drew the attention of PW1 to her extra-judicial statement to the police in Exhibit ‘A’ which demonstrated that the identification of the appellant by the PW1 in the circumstances of this case raised some doubt of the complicity of the appellant in the charges laid against him at the court below and the doubt ought to be resolved in his favour. He relied on Abudu V. The State (1998) l ACLR 411. He also submitted that where a case such as the instant one is based principally on an identification by a witness, such evidence must be closely examined and received with caution. He referred to Ndukwe V. The State (2009) All FWLR (Pt. 464) 1447 at 1474.
Mr. Asala, furthermore contended that the weakness in the evidence of the PW1’s identification of the appellant was that she did not state at the earliest opportunity in her extra-judicial statement to the police on 14/10/2005 as to how she was able to identify the appellant and that the said statement of 14/10/2005 was kept away by the prosecution at the trial, even when the appellant demanded for it. He referred to the evidence of the PW2 the investigating police officer, to the effect that the contents of the extra-judicial statement obtained from the PW1 on 02/11/2005 “is different from the earlier one earlier made,” that is the one of 14/10/2005, which was not produced by the prosecution as demanded by the appellant at the trial. He argued that Section 167(d) of the Evidence Act, 2011 ought to have been invoked by the learned trial judge against the prosecution. He relied on OGBODU v. The State (1997) 53 LRCN 2549. And that the prosecution must not keep away any evidence because it will assist the case of the defence. He referred to The State V. Ajie (2000) FWLR (Pt. 16) 2831.
Learned counsel still harping on the identification of the appellant by the PW1, submitted that the learned trial judge ought to have applied the inconsistency rule and rejected both the extra-judicial statement of PW1 in Exhibit ‘A’ and her oral evidence in court. He relied on Usufu V. The State (2008) All FWLR (pt. 405) 1731 at 1750 – 1751. He also contended that PW1 was not a truthful witness. For this, he relied on Babuga V. The State (1996) 7 NWLR (pt. 460) 279 at 294.
Mr. Asala, contended that in the circumstances of this case, an identification parade ought to have been conducted by the police in order to make sure that the victim of the attack could really pick out her attacker from among men who are placed on the same line for the identification purpose/exercise. He referred to Alabi V. The State (1993) 7 NWLR (pt. 307) 511 at 527; Okosi V. The State (1998) 1 ACLR 281; Bozin v. The State (1998) 1 ACLR 1 at 14; Orok V. The State (2010) All FWLR (pt. 532) 1732 at 1746.
Arguing issue two, learned counsel to the appellant submitted that the learned trial judge did not properly evaluate the evidence on records in relation to the identification of the appellant by the PW1 and that in the instant case, the learned trial judge made speculative and inconsistent findings in respect of the identification of the appellant by the PW1 which could not have been the basis for the conviction of the appellant. He relied on Orepekan V. The State (2005) 4 ACLR 193 at 209.
Mr. Asala contended furthermore, that since the learned trial judge at page 78 of the record of appeal, found that there was “no proper identification parade conducted as known to law”, conducted in the vigilante office, he ought not to have turned round again when he found that the fact of no conduct of a proper identification parade did “not take away the credible evidence of identification by PW1.” And that, “with such positive identification, the law dispenses with identification parade….”
Learned counsel to the appellant also submitted that the prosecution ought to have called one Mr. Prosper – the Chairman of Udu Vigilante, as a very material and essential witness because he was the person who was said by the prosecution to have arrested the appellant and a co-accused person in respect of the case. Furthermore, that it was the same Mr. Prosper, who allegedly recovered the stolen items from the appellant and the other accused person. He referred to pages 77 – 78 of the record of appeal in respect of the finding of the learned trial judge to the effect that Mr. Prosper was a necessary witness.
It is the further contention of Mr. Asala that the learned trial judge was in error when he used Exhibit B, an alleged confessional statement of a co-accused person, in the case, to convict the appellant. He submitted that where there are two or more accused persons involved in the same trial, a confessional statement made by one of the accused person, cannot be used to convict a co-accused person because a confessional statement is relevant and admissible against its maker and not against another person. He relied on Solola V. The State (2006) 5 LRCNC 144. And that it is only when there is an independent evidence which tend to confirm that the appellant committed the offence, that the court will rely on such a confessional statement. He referred to Emeka V. The State (2001) FWLR (pt. 66) 682 at 590; Ogunbayo V. The State (2007) All FWLR (Pt. 363)? Kazeem V. The State (2009) all FWLR (pt. 465) 1749 at 1771.
Mr. Asala contended that the learned trial judge was in error when he relied on the oral evidence of the appellant that he was one of the vigilantes posted to guard DSC on the day of the robbery in question, as evidence of corroboration of Exhibit B. And that even if there is evidence that the appellant was with the co-accused the maker of Exhibit B, on the day of the robbery in question, it is settled law that mere presence at the scene of crime, without more cannot form the basis of a conviction in a criminal matter.
Furthermore, that the evidence of the appellant being in DSC to guard on the day of the incident cannot be the same as being present with the co-accused at the house of the PW1, during the robbery operation. Mr. Asala, also submitted that since the identification evidence of PW1 is flawed, her evidence cannot be corroborative of the contents of Exhibit B, as a basis upon which the appellant could have been convicted.
Regarding the conviction of the appellant on the count of conspiracy to commit armed robbery, Mr. Asala submitted that it is the same evidence upon which the learned trial judge convicted the appellant for the offence of armed robbery that was used to convict him for the offence of conspiracy to commit armed robbery. He urged that the offence of conspiracy was not proved against the appellant and that the appellant be discharged and acquitted.
Mr. Enenmo, the learned Deputy Director of Public Prosecutions, for the respondent submitted that the requirements that:
(i) there was a robbery; (ii) the robbery was an armed robbery and
(iii) The accused person took part in the armed robbery operation in question, were proved beyond reasonable doubt by the prosecution in this case. He referred to Suberu V. The State (2010) All FWLR (Pt. 520) 1263 at 1285.
He referred to the evidence of the PW1 the victim of the robbery operation at pages 28 – 31 of the record of appeal and that the pieces of evidence by the PW1 fixed the appellant at the scene of the crime, in question.
Mr. Enenmo, submitted that there were no contradictions between the extra-judicial statement of the PW1 made on 14/10/2005 – and her evidence at the trial. He contended that where a piece of evidence asserts the opposite of what the other piece of evidence had asserted then it would be tantamount to a contradiction, but where a piece of evidence stops short of or contains a little more than what the other piece of evidence had asserted that would be no more than a mere discrepancy. He relied on Ogoala V. The State (1991) 2 NWLR (pt. 175) 509 at 525.
Learned Deputy Director of Public Prosecutions, furthermore submitted that in circumstances such as in the instant case, a frightened observer such as the PW1 – a victim of an armed robbery operation could not have stated with mathematical consistency/accuracy of her experience on the fateful night without some minor discrepancies, which were expected, but if otherwise, then the witness would be suspected of having been tutored and schooled by the prosecution. He again referred to Ogoala V. The State (supra) at p. 526.
With respect to the question of the identification evidence in a criminal trial, Mr. Enenmo, submitted that this could be by visual, vocal or by an identification parade. He referred to Ndukwe V. The State (2009) 7 NWLR (pt. 1139) 43 at 81. So, according to the learned Deputy Director of Public Prosecutions, the question of whether an accused person was properly identified as one having complicity in the commission of a crime is a question of fact to be considered by the trial judge premised on the evidence adduced on it at the trial. He relied on Ukpabi V. The State (2004) 11 NWLR (pt. 884) 439 at 452. Furthermore, that it is not in all criminal trials where an issue of the identity of an accused is an issue, that an identification parade must be conducted as a necessity, and that where a victim easily recognized an accused person as his attacker, an identification parade would become unnecessary. For this, he referred to Otti v. The State (1993) 4 NWLR (pt. 290) 675 at 681; Archibong V. The State (2006) 14 NWLR (pt. 1000) 349 at 392; Adeyemi V. The State (1991) 1 NWLR (pt. 170) 679 at 694.
It was submitted also by Mr. Enenmo that in a situation where the case against an accused would depend largely or wholly on the correctness of the identification of accused person which the defence alleges to be mistaken, the court should examine closely the circumstances in which the identification by the witness was made. The circumstances are:
i. How long did the witness have the accused under his/her observation;
ii. What was the distance between the attacker and the witness;
iii. What was the light/visibility situation at the material time;
iv. Was there any impediment or obstruction created by passing traffic or a surge or people and
v. How much time had elapsed between the observation during the attack and the subsequent identification to the police?
He referred to Bashaya v. The State (1998) 5 NWIR (pt. 550) 351 at 362 – 363.
In the circumstances of the instant case, the learned Deputy Director of Public Prosecutions, contended that the PW1 was in no doubt as to her recognition of the appellant as being among her attackers on the fateful night because they had close proximity, there was light in the house, they spent some time together and the appellant was not masked. Furthermore, that the period between the commission of the offence and the spontaneous identification of the appellant and a co-accused at the vigilante office was just one day, when the event of the previous night was still fresh in the PW1’s memory. Hence, the spontaneous identification of the appellant by the PW1 ruled out the necessity of an identification parade.
With regard to the non-calling of the Chairman of the Udu vigilante, Mr. Prosper as a witness, it is the contention of Mr. Enenmo for the respondent that the prosecution had no obligation to call a host of witnesses but only to offer and tender quality evidence in a criminal trial. He referred to Olayinka V. The State (2007) 9 NWLR (pt. 1040) 561 at 576. He submitted that the prosecution needed not to have called Mr. Prosper as a witness because he was not a vital witness as he had nothing to say in proving any of the ingredients of the offences laid against the appellant and the PW1 was a credible witness and with her evidence, which the trial judge accepted and believed, the conviction of the appellant was justified. He relied on Babuga V. The State (1996) 1 NWLR (pt. 46)) 279 at 300. Learned counsel also submitted that if the defence felt that they needed the evidence of Mr. Prosper as a vital witness regarding the arrest and subsequent identification of the appellant, it was open for her to have done so which she did not. He referred to Ekpeyong V. The State (1991) 6 NWLR (pt. 200) 693 at 700.
Arguing on the offence of conspiracy, learned counsel to the respondent submitted that the gist of the said offence lies not in the doing of the act or the purpose for which the conspiracy was conceived but in the forming of the scheme or agreement between the parties to commit an offence. That the external or overt act of conspiracy is the concert by two or more persons by which mutual consent for a common purpose is exchanged and agreed upon. He relied on Usufu V. The State (2007) 3 NWLR (Pt. 1020) 94 at 124. Hence, because the offence of conspiracy is usually hatched with utmost secrecy, the law recognizes that it is always uneasy to lead direct evidence to establish it. He referred to Gbadamosi V. The State (1991) 6 NWLR (pt. 195) 182 at 205 – 206.
Learned counsel to the respondent also submitted that in the circumstances of this case, where there is evidence that the appellant and the co-accused person who were assigned by the Udu vigilant group to guard the DSC Housing Estate together, found their way to the home of PW1 and attacked her with a gun and a cutlass carting away her money and jewelries and left together from the said PW1’s abode after the armed robbery operation; it was obvious that they had agreed and planned to carry out the armed robbery operation on the PW1. He relied on Okosun V. Attorney-General, Bendel State (1985) 3 NWLR (pt. 12) 283 at 297.
With respect to the statement of the co-accused in Exhibit B, which the learned trial judge held that it incriminated the 1st accused – appellant because the said Exhibit B was corroborated by the evidence of PW1’s positive identification of the appellant, Mr. Enenmo submitted that it was the evidence of the PW1 who positively identified the 2nd accused (co-accused person) as one of the armed robbers who attacked her, which constituted an independent evidence which tended to confirm that the appellant had complicity in the armed robbery operation on PW1, hence the learned trial judge was not in error to have relied on the statement of the co-accused person, in convicting the appellant. For this, he referred to Emeka V. The State (2001) FWLR (pt. 66) 682 at 690.
Mr. Enenmo submitting on the non-production of the first statement made by the PW1 to the police on 14th October, 2005, soon after the attack on her, contended that since there was nothing on the records of appeal showing that a subpoena was served on the prosecution to produce the said document which she did not produce, Section 167 (d) of the Evidence Act, 2011 cannot be invoked against the prosecution. He relied on Aremu V. The State (1991) 7 NWLR (pt. 201) 1 at pp. 17 – 18. He urged that the appeal be dismissed.
RESOLUTION OF ISSUES 1 AND 2
In proving the offence of armed robbery, the prosecution must establish by evidence and prove that:
(i) there was infact a robbery attack on some person(s);
(ii) the robbery attack was an armed robbery, that is offensive and dangerous weapons were used in the execution of the robbery and
(iii) the accused person was the armed robber.
See Bozin V. The State (1995) 2 NWLR (pt. 8) 455; Alabi V. The State (1993) 7 NWLR (pt. 307) 511; Olayinka V. The State (2007) 9 NWLR (pt. 1040) 561; Olowoyo V. The State (2012) 35 WRN 112 at 145; (CA) Osetola & Anor. V. The State (2012) 17 NWLR (pt. 1329) 251 at 275 (SC).
The prosecution, at the trial court relied heavily on the evidence of the victim of the armed robbery attack on her on the 13th October, 2005, in her home at about 11.00 pm. She was the PW1 and star witness of the prosecution. The learned trial judge believed and accepted her evidence that she was indeed attacked with guns by two men on that day and that some money and jewelries were carted away from her by the armed robbers. The appellant and a co-accused LUCKY EFE who were jointly tried together, each denied the charges laid against them. They were each convicted and sentenced to death for the offences of conspiracy to commit armed robbery and armed robbery.
The identification evidence of a witness who was either the victim of the armed robbery attack or of a witness who was an eye witness to the armed robbery operation, is that evidence which tends to show that the person charged with that offence is the same as the person who was seen by the witness, as committing the said offence. See Abudu V. The State (1985) 1 NWLR (pt. 1) 55; Mbenu V. The State (1988) 3 NWLR (Pt. 84) 615; Ogoala V. The State (1991) 3 SCNJ 61; Uche-Williams V. The State (1992) 10 SCNJ 74; Sunday Ndidi V. The State (2007) 5 SCNJ 274 at 287 – 288.
The appellant contended that since no identification parade was conducted by the police through which he was identified by the PW1 as one of her attackers on 13th October, 2005, it means that he had no complicity in the offences alleged against him. The learned trial judge in his judgment at page 78 of the record of appeal found that no proper identification parade was conducted at the vigilante office where the PW1 identified the appellant as one of her attackers on the fateful night of 13th October, 2005. This is what the learned trial judge said:
“The prosecution relies on the identification of the accused persons by the PW1 as the people who robbed her. There is nothing in Exhibit ‘A’ which shows how the PW1 identified the accused as those who robbed her. In her evidence she said she could identify the accused because of what they were wearing. In the vigilante office, no proper identification parade was conducted as known to law. She however identified the accused as those who robbed her. The accused denied knowing her talk less of robbing her. This puts the issue of identification in question and so the court is called upon to exercise caution. See Sunday Ndidi V. The State (2007) 5 SCNJ 274.”
Furthermore, at page 79 of the record of appeal, the learned trial judge again said:
“It is true no evidence of proper identification parade known to the law was done at the police station and the vigilant office.”
These findings were not appealed against by the appellant or cross-appealed by the respondent, so it is extant, subsisting and binding. This court is not to re-open the issue of the conduct of a proper identification parade again. See Durogo V. The State (1992) 9 SCNJ 46 at 54, to the effect that an appellate court is not to re-open issues of fact decided by the trial court not appealed against nor set up a new case before it. Furthermore, See Queen V. Ohaka (1962) 1 All NLR 505; Esangbedo V. The State (1989) 4 NWLR (pt. 113) 57.
Curiously and inexplicably the learned trial judge after his finding that there was no proper identification parade conducted at the vigilante office where PW1 identified the appellant, made a summersault, with respect, at page 79 of the record of appeal when he said, to wit:
“The evidence of PW1 on the identification of the accused persons is not weak as the evidence shows that she had opportunity to see them particulars 2nd accused whom she had discussed and interaction with. Her evidence shows that she could identify the 1st accused also with the light. It is true no evidence of proper identification parade as known to the law was done at the police station and the vigilant office. That in my opinion does not take away the credible evidence of identification by PW1. With such positive identification, the law dispenses with identification parade. See Archibong v. The State (2006) 5 S.C.N.J. 202. The positive and direct identification of the accused by the PW1 in the house, to the police, the vigilante office and in court dispenses with identification parade and puts pressure on the accused persons as this court is concerned.”
This is incomprehensible, I must say. The scenario and circumstances of this case are not dissimilar to what happened in Bozin v. The State (1985) 2 NWLR (pt. 8) 465 or (1998) 1 ACLR 1 at 14 where Oputa, JSC held thus:
“Here the appellant was under arrest after being mercilessly beaten up by members of the Civil Defence as an armed robber. The prosecution witnesses were then brought to the police station and asked ‘Is this the man?’ what will be the natural answer but “yes” – another case of res ipsa loquitur but now in the criminal law. The impropriety of the method used in the identification of the appellant was reduced into a farce when one considers the evidence of the 2nd P.W William Emeurude about what happened on the night of the robbery … policemen … came in a beetle car and asked if we knew Samuel Bozin and we relied “yes”. What was it that was being identified? The robber or Samuel Bozin. The identification of the suspected person must be very carefully conducted and it is very wrong to point out the suspected person and ask “Is that the man?” The usual and proper way is to place the suspected person with a sufficient number of others and to have the identifying witness pick out the accused without any assistance.”
So also, more recently in Danladi Abdullahi V. The State (2005) All FWLR (Pt.263) 698: there was no formal identification parade and the victim of the armed robbery attack was invited to the police station where the appellants were being held and she came and identified them as those who robbed her on the previous night, just as it happened in the instant case, at the vigilante office. This court held at p. 715 of the report that:
“It is a settled principle under our criminal justice system that where an identification evidence is poor, as in the instant case, the trial court should return a verdict of not guilty unless there is another evidence which goes to show the correctness of such an identification see Otti V. State (1993) 4 NWLR (Pt. 290) 675; Adamu V. State (1991) 4 NWLR (P. 187) 530 Chukwuma v. State (1990) 1 NWLR (Pt. 463) 685; Ozaki V. State (1990) 1 NWLR (Pt. 124) 92; and Eyisi v. State (2001) FWLR (Pt. 35) 750, (2000) 15 NWLR (Pt. 691) 555.”
I am of the considered opinion that the reliance of the learned trial judge on Archibong V. The State (2004) 1 NWLR (pt. 855) 488, where a formal identification parade was dispensed with, was a clear misapprehension of the facts of that case. For, in that case, two prosecution witnesses clearly knew Archibong prior to the commission of the offence of murder and it was those witnesses who gave to the police the description and features of Archibong, which invariably led to his arrest. In that situation, there was no reason for the conduct of a formal identification parade. It was indeed a case of recognition which entailed the knowledge of Archibong prior the date he committed the offence of murder on a lady in the hotel room where those witnesses were members of staff. He was their customer, so they knew him very well. He too said he knew those two witnesses.
However, that is not the same situation or scenario neither in this appeal, where the PW1 knew not the appellant nor vice versa prior to the attack on PW1 on 13th October, 2005.
In the instant appeal, there is evidence by the only eye-witness and victim (PW1) of the armed robbery attack on her by the appellant and another person, a co-accused, in her room on 13th October, 2005. She made an extra-judicial statement to the police in Exhibit ‘A’ wherein she said that:
“One of them now ask (sic) me to get up which I did. And if I see the one that ask (sic) me to get up I can identify him.”
Exhibit ‘A’ was made on 2nd November, 2005. The incident took place at about 2300hrs, that is 11.00pm on 13th October, 2005.
On the 5th November, 2007 at the trial of the case (see pages 28-29 of the record of appeal), she testified thus:
“I am Rebecca Odevhewo. I stay in DSC Township, Sector C. I am a trader. On 13/10/05, I was returning from town. I entered a taxi in Orhuwhorun. We were 5 passengers in the taxi. On getting to Township first gate, some people dropped. This was around 11.00 pm in the night. We saw vigilante vehicle entering DSC Township through first gate. We were happy seeing them. I dropped at the 2nd gate. I went home. My husband and his brother were waiting for me outside our house when I got home. Shortly after I got home, I heard noise outside. As I was about going out, I saw the five accused persons with gun shouting at me to go back pointing the gun at me and ordering my husband, his brother and myself to go inside our house. They had earlier pointed the gun at my husband and his brother asking them to put up their hands. They asked us all to lie down. My husband and his brother lay down but I was standing looking at them. The 1st accused saw I was watching them, he then pointed the gun at me, I then lay down. I had earlier seen the two accused that day. The uniform the two accused persons were wearing made me to know that they were part of the vigilante group I had earlier seen. The uniform was red upon red. They asked us to give them all we have got. The 2nd accused person asked me to go into the room and he followed me. He used gun to point at my child that was lying down on the floor. He threatened to kill the child if I do not give him good money. I then asked him to follow me to another room since my children were in the room we first entered. He commanded me to bring money. I begged them telling him that we do not have money as my husband is a DSC staff and DSC have not been paying salary. He repeated his thereat to kill my child if I do not bring good money. I gave him the little money in my purse. I did not know the exact amount but I was later informed at vigilante house in Ovwian that it was between N300 to N400. I also gave him my jewelries. As he was about searching the room, the 1st accused who was with my husband and his brother called on him for them to go. As he was going out of the room, I followed him to the parlour. They removed the key leading to the parlour from outside. They told my husband that he will collect the key through the window. They tried to lock us inside but they could not as the key was bad. They said they were going and that if anyone made noise they would fire. They left. I did not see them in the vehicle. I only identified them as vigilante people by their uniform. They did not cover their faces when they robbed us. This incident happened between 11.00 pm and 12 midnight. We had light so I was able to identify them. We had NEPA. Those that robbed us are in court. They are the 1st and 2nd accused persons. In the morning, I went to Ovwian Police Station to report the matter. The Police took my statement and I went home. In the afternoon, I was told by my friends to go to Ovwian Town to report at the vigilante office where they stay. I went and reported the incident. I told him where I stay in Sector C. The officer that attended to me asked me to describe the items stolen from me. I told them the ring and the bag is the same. It is festac. He asked me to go and call him later. When I called they asked me to come and that they have caught the boys who robbed me. Before I got there, they had asked them to sit on the ground. I am asked to identify them and that I did. I said the 1st accused was the one who took money and handset. I relayed my story again. The vigilante officer said when they saw the accused they had N7, 000 on them but the phone they did not see except the sim card belonging to my husband’s brother. For my jewelries, they only saw the necklace and earring. They did not see the ring and the bangle. I received how much the accused stole from us. I said they took almost N20,000 from my husband’s brother. I was given N7, 000 they recovered from them. I then went home. About a week or two later then, a Police from Ovwian police station said the DPO said I should come and make another statement as the accused persons have been arrested. I eventually went and made the statement.”
Under cross-examination by learned counsel to each of the two accused persons at the trial, PW1 said at pages 30 – 31 of the record of appeal, to wit:
“I told the police that I could identify the accused persons because of NEPA light that I had. I do not know what they recorded but I told them all these. The police read my statement over to me before I thumb printed. I reported first to the police before I went to vigilante. I did not tell the police so in the Exhibit A. I told them that I made some recoveries from the vigilante office.
Cross examination by Eju
I did not say I was eating when the robbers came. I did not follow the accused persons outside. I only followed the one with me in the room to the parlour. I was really surprised when I saw them. I was afraid when I saw them with gun. The first thing I noticed when I saw them in my house was their uniform. I never saw the accused persons when I saw the vigilante van at about 11.00 pm that day. Before then, I know that vigilante wears red uniform. It was because I saw them with the red uniform that I concluded that the accused persons belonged to the vigilante group. These two accused persons were the persons that robbed me. I am not identifying them because of the uniform but because I saw them robbed me. I went to the police the next day of the event and made a statement. I do not know the IPO in charge of my case. I cannot know the people I met at the vigilante office. I do not know the people in the vigilante office that gave me the things and money recovered. After the incident about a week or two later the police sent for me. I did not give the recovered items to the police. I did not see the DPO when I went to Ovwian police station.”
Earlier in answer to a question preceding the cross-examination reproduced above, the PW1 said:
“I told the police in my second statement that I identified them by the uniform they were wearing. I never lied on this point.”
From the foregoings, that is Exhibit ‘A’ and the evidence of PW1 at trial reproduced in extenso, it is clear to me that the PW1 never knew the appellant and the co-accused prior to the attack on her on 13th October, 2005.
The learned trial judge in his judgment at pages 78 – 79 said, inter alia:
“The prosecution relies on the identification of the accused persons by the PW1 as the people who robbed her. There is nothing in Exhibit A which shows how the PW1 identified the accused as those who robbed her. In her evidence she said she could identify the accused because of what they were wearing. In the vigilante office, no proper identification parade was conducted as known to law. She however identified the accused as those who robbed her. The accused denied knowing her talk less of robbing her. This puts the issue of identification in question and so the court is called upon to exercise caution. See Sunday Ndidi v. The State (2007) 5 S.C.N.J. 274. In the evidence in court, the accused persons denied having ever seen the PW1 except in court. The identification of the accused by the complainant is important. This involves the evidence of the identification at the time of committing the offence and at the police station. Based on Ndidi v. The State supra), I am convinced that the PW1 satisfied all the tests to be able to identify the accused when the robbery was taking place. In her evidence she said there was light and so she used the light in identifying them. It is not the uniform she used in identifying them but the light. The purpose of the uniform is to make her know that they were vigilantes. That they were on duty at the time material to the event is corroborated by even the accused persons. She had enough time at close contact particularly with 2nd accused to be able to identify him. Her evidence clearly meets the requirement of identification of the 2nd accused properly.
The evidence of PW1 on the identification of the accused persons is not weak as the evidence shows that she had opportunity to see them particularly 2nd accused whom she had discussion and interaction with. Her evidence shows that she could identify the 1st accused also with the light. It is true no evidence of proper identification parade as known to the law was done at the police station and the vigilante office. That in my opinion does not take away the credible evidence of identification by PW1. With such positive identification, the law dispenses with identification parade. See Archibong V. The State (2006) 5 S.C.N.J 202. The positive and direct identification of the accused by the PW1 in the house, to the police, the vigilante office and in court dispenses with identification parade and puts pressure on the accused persons as this court is concerned.”
To my mind, the learned trial judge rightly found that:
(1) There is nothing in Exhibit A which shows how the PW1 identified the accused as those who robbed her.
(2) In the vigilante office, no proper identification parade was conducted as known to law.
(3) The identification of the accused by the complainant is important.
(4) This involves the evidence of the identification at the time of committing the offence and at the police station.
(5) It is true no evidence of proper identification parade as known to the law was done at the police station and the vigilante office.
In the circumstances of the facts in this case, could the learned trial judge be said to be right when he held that the positive identification by the PW1 of the appellant, dispenses with the necessity of an identification parade and put his reliance in Archibong V. The State (2006) 5 SCNJ 202 or (2006) 14 NWLR (pt. 1000) 349?
I am afraid, I do not think that his Lordship was right. In the first place, the facts in Archibong V. The State (supra) relied upon by the learned trial judge are poles apart from the facts in this case. In Archibong V. The State (supra) the appellant was well known to two of the prosecution witnesses prior to the commission of the offence of murder in a hotel room by him. It was the two prosecution witnesses who gave the description of Archibong to the police upon his disappearance after the commission of the offence of murder in a hotel room that led to his subsequent arrest and trial. So, when he raised the question as to his identification by the said two prosecution witnesses, it was held that an identification parade was unnecessary, both by the trial court and the Court of Appeal.
In his judgment, at the Supreme Court, MUSDAPHER JSC (as he then was) emphatically said:
“In the instant case therefore, it is plainly illogical to attack the credibility of PW2 and PW3 on the identification of the appellant, when the appellant himself concedes that both PW2 and PW3 were known to him before the date of the incident in question. In my view, considering the whole circumstances of this case, it was otiose to hold an identification parade. It is not in every case that an identification parade becomes necessary. See Adeyemi V. The State (supra). In the present case, rather than be a case of mistaken identity it was one of recognition and knowledge of the appellant who was already known to the witnesses prior to the date of the incident in question. The appellant who by his statement to the police and his evidence admitted that knowledge of him by both PW2 and PW3 can hardly complain of any mistaken identity.”
In the instant case, the PW1 did not know the appellant and the co-accused person prior to the attack on her on 13th October, 2005. The learned trial judge as I indicated earlier in this judgment rightly found that the PW1 never said in Exhibit ‘A’ how she identified the appellant and the co-accused as those who robbed her. All she said in Exhibit ‘A’ was that she would identify the one that asked her to get up if she saw him. But what was the mode of the identification? A proper identification of an accused person who allegedly attacked a victim entails the description of the accused person given to the police shortly after the attack on him or her, the features of the accused person which the victim communicated to the police, that is, whether the accused person was dark or light complexioned, tall or short and/or wearing a particular dress and the opportunity which the victim had to so observe the accused person. See Ikemson V. The State (supra); Abudu V. The State (1985) 1 NWLR (pt. 1) 55; Mbenu V. The State (1988) 3 NWLR (pt. 84) 515; Ndidi V. The State (supra); Osetola V. The State (2012) 17 NWLR (pt. 1329) 251 (SC).
Therefore, any complaint in respect of an identification of an accused person regarding his complicity in an offence must be objectively considered by the trial court. The best identification is the prompt one by the victim or other persons who witnessed the commission of the offence. See Yunusa Adamu V. The State (1991) 6 SCNJ 33 at 35. Hence each case must be considered on its own peculiar facts and circumstances. But where there is more of suspicion rather than some concrete evidence against an accused person, an identification parade becomes very necessary whereby the suspect/accused person is lined up among other suspects and people of various heights and seizes and the victim is asked to identify and pick out his attacker.
I am of the firm and considered opinion that the so-called visual identification of the appellant and the co-accused by the PW1 at the vigilante office on 14th October, 2005 was a re-enactment of the scenario in Bozin V. The State (1998) 1 ACLR 1 at 28 which was roundly condemned by OPUTA, JSC.
See also Abdullahi V. The State (2005) All FWIR (Pt. 263) 698 at 716-717.
In the case on hand, PW1 said she was invited to come and identify the boys who robbed her. She went to the vigilante office, saw them and said they were the people who robbed her. So, the accused persons were simply placed for a kill and the PW1 had no difficulty in saying they were the people who robbed her. Of course, she was actively prodded by the police to do so!
My curiosity however, is that the learned trial judge, having found that the way the PW1 identified the appellant at the vigilante office was not through a proper identification as known to law, made a summersault when he later said:
“The positive and direct identification of the accused by the PW1 in the house, to the police, the vigilante office and in court dispenses with identification parade and puts pressure on the accused persons as this court is concerned.” See page 79 of the record of appeal.
This, to my mind and with respect, is incomprehensible. Suffice it to say again that the quality of the identification evidence offered by the PW1 relating to the appellant and the co-accused and their complicity in the commission of the offence of armed robbery on her on 13th October, 2005 is manifestly very poor such that a conviction based on that sort of evidence is dangerous as an innocent man may be sent to his early grave.
Let me refer to the admonition by my Lord Mohammad, JSC, in Sunday Ndidi V. The State (2007) 5 SCNJ 274 at 292 that:
“A judgment which sends a man to the gallows to await the hang man to execute him at any single minute must be punctuated by logical thinking based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal interferences is carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance. See Aniagolu, JSC’s dictum in the case of Nwosu v. State (1986) 4 NWLR (Pt. 35) 348 at page 359.”
His Lordship continued at page 294 of the report, inter alia:
“The cardinal principle of trial in criminal cases is that the trial court must not be seen to appear to look for excuses to shore up the case of the prosecution to get a conviction anyhow. Such an attitude of ignoble practice only portrays the court as anything but impartial arbiter. It is reprehensible for any court to portray any attitude that shows tendency to get conviction at all costs for the prosecution. In that case the court would have now turned itself into a prosecutor and a persecutor. A court of law or reasonable tribunal should be wary of such a practice.”
Also see Abdullahi V. The State (supra) at 718.
With respect to the contention of the appellant’s counsel regarding suppression of the first statement made by the PW1 on 14th October, 2005 and the invocation of Section 149(d) of the Evidence Act, 2004 (now Section 167(d) of the Evidence Act, 2011), there is evidence in the record of appeal vide the PW1 and PW2 that the former indeed made an earlier statement to the police prior to the making of Exhibit A by the same PW1.
In his judgment at page 75 of the record of appeal, the learned trial judge found that it was proved that:
“The PW1 made 2 statements and that of 2/11/05 was the only one tendered.”
So, why did the prosecution hideaway the extra-judicial statement made by the PW1 soon after the attack on her. She was robbed on 13th October, 2005 at 11.00 pm. She and PW2 said that her first extra-judicial statement was made on the next day – 14th October, 2005.
In Abdu Mohammed V. The State (1991) 7 SCNJ 114 at 129 – 130, the apex court deprecated the practice of suppression of evidence by, the prosecution, in no uncertain words, inter alia:
“Suppression of evidence in any trial, civil or criminal is a violation of the principle of fair hearing entrenched in our constitution. It is a serious allegation which must not be taken lightly. Suppression of evidence is a denial of justice. Once it is established that evidence in a trial has been suppressed, such a trial should be set aside” per Olatawura, JSC.
So also in Akpabio V. The State (1994) 7 – 8 SCNJ (Pt. III) 429 at 454, the apex court, per Iguh, JSC opined thus:
“It seems to me well established that in a criminal trial, the defence is entitled to see any written statement in the possession of the prosecution which was made by a witness called by the prosecution and which relates to any matter on which the witness had given evidence, and to cross-examine the witness on it and then tender it solely to impeach his credit.”
I am very certain in my mind that when the defence called for the extra- judicial statement made by the PW1 on 14th October, 2005, the prosecution became apprehensive and jittery when she merely said that they did not have it. That certainly, was not in the best interest of legal practice and justice. I cannot but remind prosecution counsel of the admonition by the eminent jurist, my Lord, ADETOKUNBO ADEMOLA, CJN, in Odofin Bello v. The State (1965) NSCC 268 at 274, inter alia:
“We cannot do better than remind counsel that it is the duty of the prosecution to put all facts at its disposal before the court and not to hide anything. Anything short of this is an attempt to conceal from the court any evidence favourable to the accused. We shall be compelled to take serious action against a repetition of such conduct.”
I think that the above words of caution are enough and those who have ears to hear, should hear. The best tradition at the Bar must be maintained at all times. Therefore, the prosecution must make available all evidence in respect of a case in court whether it is presumed to be against its position or not. Hence, the prosecution must not hide or keep away evidence which will assist the case of the defence. The court is obliged to be abreast of all the facts connected with the case. See The State V. Ajie (2000) FWLR (pt. 16) 2831.
The judge is the adjudicator and not the prosecutor, who most times tend to be persecutors.
I am therefore in agreement with the contention of Mr. Asala, learned counsel to the appellant that Section 167(d) of the Evidence Act, 2011 be invoked and it is accordingly invoked against the respondent. See Ogbodu V. The State (1997) 53 LRCN 2549.
With respect to the contention of Mr. Asala, that the prosecution ought to have called one Mr. Prosper, the Chairman of Udu vigilante as a witness, the learned trial judge, in my view had founded on it. At line 28 of page 77 to lines 1 – 8 of page 78 of the record of appeal, this is what he said, to wit:
“The prosecution has a responsibility to prove that the items stolen from her were actually gotten from the accused persons. Though it is desirable there is no law that says absence of that proof will make prosecution’s case fail. I make bold to however say that the prosecution did not satisfy me that the items were recovered from the accused. PW1 evidence is hearsay as she was not there when the items were recovered. The Chairman of the vigilante told her that he recovered the items from the accused. That evidence being hearsay is inadmissible. See Ijiofor v. The State (2006) 5 L.R.C.N.C.C. 315. PW2 evidence also did not help matters. What is more, the prosecution did not call the Udu vigilante, Chairman to testify to that effect that he recovered the items from the accused persons. In this regard, the provision of Section 149(d) of the Evidence Act becomes relevant and applicable. The prosecution is not under any obligation to call number of witnesses but he is under obligation to call such witness as they would require to establish their case against the accused. See Ijiofor v. The State (2006) 5 L.R.C.N.C.C. 315, Saidu V. The State (19821 13 N.S.C.C. 70. In the absence of a confessional statement particularly as it relates to 1st accused, the Chairman of Udu vigilante, Mr. Prosper evidence is necessary to pin the stolen items to them.”
The respondent, having not cross-appealed against this finding, I do not think that we are to re-open it at this stage. See Durugo V. The State (supra), Esangbedo V. The State (supra).
With respect to Exhibit B, the extra-judicial statement made by the co-accused which incriminated the appellant and which the learned trial judge used to convict the appellant, it is imperative to hear the learned trial judge on it. At lines 10 -22 of page 81 of the record of appeal, his Lordship reasoned thus:
On the side of the 1st accused, there is no confessional statement. Does that make his case better than that of the 2nd accused? I do not think so. While it is true that the confession of a co-accused cannot be held against another accused but if such confession is corroborative by other evidence, a court can use it. The evidence of the 1st accused admitted that he is a member of the vigilant group assigned along with 2nd accused to guard DSC that day. They closed at 6.00am. The Chairman of their group brought only 2 of them out telling them that there was robbery where they kept vigil the previous day. This evidence corroborated the fact that the 1tt accused was on duty with the 2nd accused and they were together. This evidence combined with the evidence of PW1 with her positive identification of the 2nd accused person as the person who robbed her does not make the case of 1st accused person better than 2nd accused. Exhibit ‘B’ which incriminates the 1st accused has been corroborated.”
Generally, the law is that in a joint trial as in this case, an alleged confessional statement made by one accused person which incriminates a co-accused person, cannot be used as a plank upon which to convict the accused person, so incriminated. See Solola V. The State (2006) 5 LRCNCC 144 or (2005) 2 NWLR (pt. 937) 460. And in Oyakhire V. The State (2007) All FWLR (pt. 344) 1 at 14, the Supreme Court per Tabai, JSC, restated the principle, inter alia:
“It is at this juncture, necessary to restate the legal principles with respect to a statement to the police and evidence of an accused person against a co-accused. The settled principle is that a statement made by an accused person to the police may amount to an admission of the offence for which he is charged and such a statement and the facts admitted therein are admissible only against the maker of the statement and not against a co-accused. But where the accused goes into the witness box and repeats on oath the contents of his statement to the police, they become evidence for all purposes, admissible in law and can be acted upon by the court against the co-accused. These principles were re-echoed in Akanbi Enitan & Ors. v. State (1986) 3 NWLR (pt.30) 604 at 611; R. v. Akinpelu Ajani & ors. v. State (1936) 5 WACA 3 at 4; Hamuzat Badmos v. Commissioner of Police (1942) 8 WACA 123. The above is the purport of the provisions of Section 178 (2) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990.”
The above principle of the law understandably, is that where in an extra-judicial statement made by an accused person, he incriminates, a co-accused and without more, such an incriminating statement binds him – the maker only and not the accused who cannot be convicted on what he did not make and had no opportunity of controverting it, moreso where a copy of such a statement was not cross-served on, him to know what the other accused person had said of him. However, where the accused person who made the incriminating statement against a co-accused also goes into the witness box and in his evidence on oath, repeats the incriminating evidence, it would be expected that the co-accused should cross-examine him on it, but if otherwise a conviction could surely be predicated on the incriminating statement by an accused person, against a co-accused person, as the latter would be presumed to have adopted the incriminating statement. See Kasa V. The State (1994) 5 SCNJ (pt. 1) 1 at 18.
Let me say a word with respect to the reasoning of the learned trial judge that a confession by an accused person in his extra-judicial statement which incriminates a co-accused person, if it is “corroborated by other evidence, a court can use it”. See Emeka V. The State (2001) FWLR (pt. 65) 68 at 690.
The fact that the 1st accused person (appellant herein) was on duty with the other accused person together on the same night of 13th October, 2005 could not have been enough corroboration of an allegation that they both indeed went together from their duty post at DSC, to the home of the PW1 and attacked her. I am unable to see any corroborative evidence by PW1, PW2 and Exhibit ‘A’ to support Exhibit ‘B’. And what is worse, earlier in this judgment, I came to the conclusion that there was no positive but very poor identification of the appellant and the other accused person, by the PW1 on 14th October, 2005 at the vigilante office, Ovwiah.
For all the foregoing, I am satisfied that the prosecution did not succeed in proving her case against the appellant beyond reasonable doubt. I, allow the appeal.
The judgment of Ebiowei Tobi, J, of the Delta State High Court of Justice, holden at Otor-Udu in Suit No. OUHC/10C/2007 of 3rd August, 2009, is set aside.
The appellant is ordered, as discharged and acquitted, accordingly.
HELEN MORONKEJI OGUNWUMIJU J.C.A: I have read the judgment just delivered by my learned brother, TOM SHAIBU YAKUBU, JCA. It was a thorough exposition of the criminal law relating to the issues in controversy. I need to add that a trial judge cannot speak from two sides of the mouth when making findings of facts. Findings of fact must be consistent. Having found that the identification parade was irregular, the evidence of said identification cannot be the basis of the conviction of the Appellant.
Secondly, a confessional statement extra judicially made, unless adopted on oath in open court by the maker only binds the maker and cannot be used to convict a co-accused. I agree with my learned brother that for fuller reasons brilliantly given by him, the appeal should be allowed. Appeal Allowed.
AYOBODE OLUJIMI LOKULO-SODIPE J.C.A: I have had the privilege of reading in draft the Judgment of my learned brother, TOM SHAIBU YAKUBU, JCA. I am in complete agreement with His Lordship’s reasoning and conclusions. I have nothing to add.
I, too allow the appeal and hereby set aside the judgment of the lower court delivered in Suit No. OUHC/10C/2007 on 3/8/2009 convicting and sentencing the Appellant to death for the offences of conspiracy to commit armed robbery and armed robbery respectively, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN, 1990. I discharge and acquit the Appellant.
Appearances
Ayo Asala, Esq.For Appellant
AND
O.F. Enenmo, Esq., Deputy Director, Public Prosecutions, Delta State Ministry of Justice, Asaba, (with him: Agbagwu, Esq., Chief State Counsel and N. Agosiagu Esq., State Counsel)For Respondent
