BENSON v. STATE (2020)

BENSON v. STATE

(2020)LCN/14071(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/156C/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ANIEFIOK AMOS BENSON APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE DEFENCE OF ALIBI

In any criminal trial, the defence of alibi is germane. Where an accused puts forward the defence, that he was somewhere else at the relevant time and not at the scene of the crime when the offence for which he is charged was committed he is said to have raised the defence of alibi. The duty is on the prosecution to disprove the allegation as it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. The duty of the accused is merely to raise the defence promptly and properly. See: ATTAH V. STATE (2010) LPELR – 597 (SC); YANOR V. THE STATE (1965) NMLR 3371; NJOVENS VS. THE STATE (1973) 5 SC 17; ADEDEJI V. THE STATE (1971) ALL NLR 75; SALAMI V. THE STATE (1988) 3 NWLR (PT. 85) 670; GACHI V. THE STATE (1965) NMLR 333.
An accused person is duty bound to furnish the necessary information from which his where-about at the crucial time can be checked and where there is more credible evidence believed by the trial Judge fixing the accused person at the scene of the crime, where he is seen committing offence, the defence of alibi will collapse. See: AKPAN V. THE STATE (1991) 5 SCNJ 1, IKEMSON V. THE STATE (1989) 20 NSCC (PT. 11) 471. Once the defence of Alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt. See: ADEDEJI V. THE STATE (1971) 1 ALL NLR P.75. In any event, a trial Judge has a duty, even in the absence of the investigation of an alibi raised by an accused, to consider the credibility of the evidence adduced vis-a-vis the alibi. See: OZAKI V. THE STATE (1990) 1 NWLR (PT. 124) 92. It is the law where an alibi is properly raised, the prosecution must investigate it, however, it is also the law where there is visual and positive identification of the accused at the scene of the crime which is believed by the trial Judge, no matter how beautifully the defence of alibi is put up, it shall stand defeated and shall require no investigation in which case an appellate Court would not disturb such a finding.
See:AYAN V. STATE (2013) LPELR – 20932 (SC); NJOVENS V. THE STATE (1973) NSCC 257 AT PAGE 278; OMOTOLA & ANOR. V. THE STATE (2009) ACLR 29. PER ONYEMENAM, J.C.A.

DEFINITION OF THE TERM “CONFESSION”

Section 28 of the Evidence Act, 2011 defines confession thus:
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
Section 28 of the Evidence Act, (supra) in its judicial interpretation by the Supreme Court; per Ariwoola, J.S.C. defined confession thus:
“… a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or some essential part of it.”
See:ADEBAYO V. STATE (2014) LPELR-22988(SC) PP. 4041 PARAS E-C. See also the Supreme Court, per Okoro, J.S.C. in NKIE V FRN (2014) LPELR-2287(SC) P.29 PARAS D-F; where it was stated that:
“A confession or confessional statement has been defined in several cases by this Court as an admission made by an accused person stating or suggesting that he committed the crime which is the object of the charge preferred against him. It is an acknowledgement of the crime of the accused.”
From the records, the evidence of PW2 is not clear as to what the Appellant apologized to him about. It is on record that the Appellant had earlier divorced the PW2’s sister he was married to, the apology could as well be with regards to that. In the circumstance, the mere fact that the Appellant, in his evidence-in-chief before the trial Court did not deny apologizing to PW2 and the fact that PW2 was not cross- examined on the evidence does not mean that the issue of the apology related to the crime for which the Appellant was charged. To hold so in my view will amount to serious speculation which will obviously lead to a miscarriage of justice. Accordingly, to the extent that the purpose of the alleged apology to the PW2 by the Appellant was undisclosed, the same cannot amount to an admission by the Appellant of the commission of the crimes for which he was charged. An admission to a crime must be unequivocally expressed or implied. The learned trial Judge was therefore in error when he held that the referred apology amounted to an admission of commission of the offences as charged by the Appellant. PER ONYEMENAM, J.C.A.

MEANING OF “IDENTIFICATION PARADE”

On whether identification parade was not necessary. “An identification evidence is one tending to show that the person charged with an offence is the same person who committed the offence. Where an identification evidence is however poor the trial Court should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification.” See: ARCHIBONG V. STATE (2004) 1 N.W.L.R. (PT. 855) 488 @ 509 PARA C. PER ONYEMENAM, J.C.A.

INSTANCES WHERE AN IDENTIFICATION PARADE WOULD NOT BE NECESSARY

It is worthy of note however that it has been held in a plethora of cases that an identification parade is not the only means by which the identity of a person or persons who committed a crime may be ascertained. See: DAIRO V. STATE (2017) LPELR – 43724 (SC); PETER ADEWUNMI V. THE STATE (2016) LPELR-40106 (SC); FATAI V. THE STATE (2013) LPELR-20182 (SC); OGOALA V. STATE (1991) LPELR – 2307 (SC); IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455 . Instances where an identification parade may not be necessary in ascertaining the identity of one accused of committing a crime includes:
1. Where the accused person was arrested at the scene, or a place so closely connected with the scene of crime.
2. Where the prosecution evidence fixes the accused at the scene,
3. Where the accused person is well known to the witness before the day of the commission of the offence alleged.
4. Where the accused person has by his confession identified himself.
On the other hand, identification parade is essential where:
(a) the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) the victim or witness was confronted by the offender for a very short time; and
(c) where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.”
The question whether a person is properly identified as one who committed a crime is a question of fact to be determined by the Court having regard to the evidence adduced in that regard. See: UKPABI V. THE STATE (2004) 11 NWLR (PT. 884) 439. An identification parade should never be conducted for purely cosmetic reasons. It should be limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged. To insist that it must be conducted in all cases even where the visual evidence of identity is clear and corroborated by other evidence will make a mockery of criminal justice. See: OGOALA V. STATE (1991) LPELR – 2307 (SC). PER ONYEMENAM, J.C.A.

DEFINITION OF THE WORD “CONTRADICTION”

The word ‘contradiction’ traces its lexical roots to two latin words, namely: ‘contra’ and ‘dictum’ which means ‘to say the opposite. See: IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455. Evidence of witness can only be said to be contradictory when they give inconsistent account of the same event. For contradictions in the evidence of witnesses to vitiate a decision, they must be material and substantial. Such contradictions must be so material to the extent that they cast serious doubt on the case presented as a whole by the party on whose behalf the witness testified, or as to the reliability of such witnesses. In sum, minor or inconsequential contradictions which did not seriously relate to the ingredients of the offence charged should not vitiate the case of a party. See: EKE V. THE STATE (2011) LPELR – 1133 (SC); ENAHORO V. QUEEN (1965) NMLR 265; EMIATOR V. THE STATE (1975) 9 – 11 (SC) 107; AFOLALU V. THE STATE (2009) 3 NWLR (PT. 1127) 160; NASIRU V. THE STATE (1999) 2 NWLR (PT. 589) 87; OKOZIEBU V. THE STATE (2003) 11 NWLR (PT. 831) 327. PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Akwa Ibom State High Court sitting in Abak Judicial Division delivered on 25th July, 2016 per Ezekiel O. Enang, J. wherein the Appellant was convicted of the offences of armed robbery, rape and unlawful damage and sentenced to five years imprisonment; 10 years imprisonment and; one year imprisonment, respectively.

The Appellant was arraigned on a three counts charge for the offences of Armed Robbery, Rape and Malicious Damage contrary to Sections 422 (2), 367 and 472 of the Criminal Code, Cap 38 Vol. II, Laws of Akwa Ibom State of Nigeria, 2000, respectively. The Respondent alleged that the Appellant, while armed with a gun, robbed and raped one Helen Bassey on 17th March, 2013 at about 8:30pm in Utu Edem Akai of Abak Local Government Area of Akwa Ibom State. It is also the Respondent’s case that the Appellant, on the same date and place, maliciously damaged Helen Bassey’s underpants, an earring and a necklace. In his extra-judicial statement to the police, the Appellant denied committing the offences and claimed to

have been visiting his sick mother in another town on that day.

At trial, the Appellant pleaded not guilty to the three counts charge. In proof of its case, the Respondent called three witnesses and tendered six Exhibits. The Appellant called two witnesses, himself and one other. At the close of trial, parties filed their addresses and judgment was delivered on 25th July, 2016. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 1st February, 2019.

The appeal was heard on 29th January, 2020. Parties adopted their respective briefs. Julius O. Idiege settled the brief of the Appellant filed on 11th June, 2019; Uwemedimo Nwoko settled the Respondent’s brief filed on 28th January, 2020. In its brief, the Appellant raised four issues for determination, to wit;
1. Whether the learned trial Judge was right when he held that the mere fact the Appellant went to see his mother and came back by 8.00 p.m. does not mean that he could not have committed the offences after coming back from seeing his mother.
2. Whether the learned trial Judge was right when he held that the evidence of PW2 as to what he said the appellant told

him amounts to a confession of the crimes by the appellant.
3. Whether having regards to the circumstances surrounding the commission of the crimes for which the Appellant was charged, the learned trial Judge was right to have held that it was not necessary to conduct identification parade.
4. Whether the learned trial Judge considered the totality of the evidence of the parties before arriving at the conclusion that the prosecution proved the charges preferred against the appellant beyond reasonable doubt and to have found the appellant guilty of the charges preferred against him.

The respondent adopted the issues raised by the Appellant. I will adopt the issues raised by the Appellant for the determination of this appeal. However, I will resolve issues one, two and three together and issue four separately.

SUBMISSIONS ON ISSUES 1, 2 AND 3
1. Whether the learned trial Judge was right when he held that the mere fact the Appellant went to see his mother and came back by 8.00 p.m. does not mean that he could not have committed the offences after coming back from seeing his mother;
2. Whether the learned trial Judge was right when he

held that the evidence of PW2 as to what he said the appellant told him amounts to a confession of the crimes by the appellant.
3. Whether having regards to the circumstances surrounding the commission of the crimes for which the Appellant was charged, the learned trial Judge was right to have held that identification parade was not necessary.

Mr. Idiege argued that the trial Court erred in law when it failed to give full consideration to the defence of alibi raised by the Appellant. He submitted that the onus was on the Respondent to disprove the defence of alibi raised by the Appellant having provided sufficient information on his whereabouts on the date of the offences alleged against him, to wit; that he went to visit his sick mother at Nung Udoe Itaik. That the non-investigation of the alibi was confirmed by PW3, the Investigating Police Officer while answering questions put to her during cross-examination. He referred to page 97 of the Record and his extra-judicial statement to the Police at pages 14 – 16 of the Record.

He contended that the failure of the police to investigate the alibi raised by the Appellant and the failure of the trial

Court to give full consideration to the defence occasioned miscarriage of justice against the Appellant. EBRE V. STATE (2001) 12 N.W.L.R. (PT. 728) 617 @ 637 PARAS F-G; OKAFOR V. AG IMO STATE (2018) LPELR-48693(CA); BOLANLE V. STATE (2005) 7 N.W.L.R. (PT. 925) 431 @ 457 PARAS D-F.

The learned counsel further submitted that the trial Court was wrong to have found that the Appellant admitted to the commission of the crimes based on the testimony of PW2 that the Appellant had called him to apologize. It is his contention that the Court failed to test the veracity of PW2’s evidence with any other corroborating evidence. He argued that the Respondent failed to lead credible evidence in proof of the allegation by providing evidence of the phone call and the phone numbers used. That the fact that the Appellant did not deny or contradict the allegation does not amount to an admission of same. He referred to SECTION 28 OF THE EVIDENCE ACT, 2011; ADEBAYO V. STATE (2014) LPELR-22988(SC) PP. 4041 PARAS E-C; AZORYEME V. STATE (2019) ALL F.WL.R. (PT. 976) 1096 @1111 PARAS C-G.

Mr. Idiege posited that the Court was wrong to have held that an identification

parade was not necessary in the circumstances of the case. He contended that an identification parade was necessary in view of the evidence of PW1 that the crimes were committed in the night; her evidence that the person who allegedly committed the crimes was not arrested at the scene; and her further evidence that she had not known the perpetrator before the day of the incident. That the failure to conduct an identification parade to ascertain the identity of the perpetrator of the crimes for which the Appellant was charged, is fatal to the case of the Respondent and urged the Court to so hold. Counsel referred to: CHUKWUDOZIE V. STATE (2019) LPELR-47164(CA); OGU V. COP (2017) LPELR-(SC) PP. 29-30 PARAS A-E; ARCHIBONG V. STATE (2004) 1 N.W.L.R. (PT. 855) 488 @ 509 PARA C.

In opposing reaction; Mr. Nwoko learned counsel for the Respondent, submitted that for the defence of alibi to be successful, it must cover the time of the commission of the offence. He argued that where the accused person does not clearly state where he was at the time of the commission of the crime but merely states where he was prior to the time of the commission of the crime, then the

alibi need not be investigated.

He submitted that the defence of alibi does not avail the Appellant in this case, his evidence being that he had returned from seeing his sick mother by 8:00pm on that day while the time of the commission of the offence, as stated by the Respondent, was at about 8:30pm. Also, that the Respondent had adduced sufficient evidence to prove that the Appellant was at the scene of crime at that material time. He referred to: STATE V. FATAI AZEEZ & ORS (2008) LPELR 3215 (SC); AUGUSTINE ONUCHUKWU V. STATE (1998)4 NWLR (PT. 457) 576 AT PP. 592 — 593, PARA G.

Reacting to the issue of confession, Mr. Nwoko argued that unchallenged evidence is deemed admitted. That the mere fact that the Appellant had given evidence not tending towards the confession does not exclude other facts before the Court. He argued that the Accused person need not expressly admit the commission of the crime as a statement suggesting same would pass for a confession.

He argued that from the evidence of PW2, there is an inference that the Appellant committed the offences. That it was not necessary to provide evidence of the phone call, same

not being a fact in issue. Also, that there are other corroborating pieces of evidence suggesting that the Appellant could have truly made such a call suggesting his admission of the crimes. He referred to page 80 of the record; Section 28 of the Evidence Act 2011; EZIGBO V. STATE (2012) 16 NWLR (PT. 1326) P. 3/8.

On the issue of identification parade, Mr. Nwoko submitted that it is a trite principle of law that identification parade is not a sine qua non to conviction. He argued that the identity of the accused person is not in doubt in this case. That PW1 had ample opportunity to assess the features of the Appellant for proper identification, having interacted with him some minutes before the commission of the crime. He posited that the trial Court was right in holding that there was no need for an identification parade and urged the Court to so hold. He referred to: ADESINA V. STATE (2012) 14 NWLR (PT. 1321) P. 429; ARCHIBONG V. STATE (2004)1 NWLR (PT. 855) 488; JIMOH V. STATE (2012) 3 NWLR (PT. 1286) P. 144: UKPABI V. STATE (2004) 11 NWLR (PT. 884) 439.

RESOLUTION OF ISSUES 1, 2 AND 3
In any criminal trial, the defence of alibi is germane.

Where an accused puts forward the defence, that he was somewhere else at the relevant time and not at the scene of the crime when the offence for which he is charged was committed he is said to have raised the defence of alibi. The duty is on the prosecution to disprove the allegation as it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. The duty of the accused is merely to raise the defence promptly and properly. See: ATTAH V. STATE (2010) LPELR – 597 (SC); YANOR V. THE STATE (1965) NMLR 3371; NJOVENS VS. THE STATE (1973) 5 SC 17; ADEDEJI V. THE STATE (1971) ALL NLR 75; SALAMI V. THE STATE (1988) 3 NWLR (PT. 85) 670; GACHI V. THE STATE (1965) NMLR 333.
An accused person is duty bound to furnish the necessary information from which his where-about at the crucial time can be checked and where there is more credible evidence believed by the trial Judge fixing the accused person at the scene of the crime, where he is seen committing offence, the defence of alibi will collapse. See: AKPAN V. THE STATE (1991) 5 SCNJ 1, IKEMSON V. THE STATE (1989) 20 NSCC (PT. 11) 471. Once the defence of Alibi has been promptly and

properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt. See: ADEDEJI V. THE STATE (1971) 1 ALL NLR P.75. In any event, a trial Judge has a duty, even in the absence of the investigation of an alibi raised by an accused, to consider the credibility of the evidence adduced vis-a-vis the alibi. See: OZAKI V. THE STATE (1990) 1 NWLR (PT. 124) 92. It is the law where an alibi is properly raised, the prosecution must investigate it, however, it is also the law where there is visual and positive identification of the accused at the scene of the crime which is believed by the trial Judge, no matter how beautifully the defence of alibi is put up, it shall stand defeated and shall require no investigation in which case an appellate Court would not disturb such a finding.
See:AYAN V. STATE (2013) LPELR – 20932 (SC); NJOVENS V. THE STATE (1973) NSCC 257 AT PAGE 278; OMOTOLA & ANOR. V. THE STATE (2009) ACLR 29.
The Appellant’s grouse on his defence of alibi stems on the trial Court’s holding that:
“The accused in his

statement to the police stated that he went to see his sick mother and came back at about 8.00 p.m. the mere fact that he went to see his mother and came back by 8.00 p.m. does not mean that he could not have committed the offence after coming back from seeing his mother but before arriving home … Thus the mere fact that he went to see his sick mother does not mean that he could not have committed the offence.” See: Page 141 line 19 to 23 of the Record of Appeal.
The learned counsel for the Appellant submitted that the Appellant having provided reasonable and sufficient information of his whereabouts on the date of the offences alleged against him – that he went to Nung Udoe Itaik to see his mother who was sick – the burden of disproving the defence of alibi pleaded by the Appellant was on the prosecution who failed and or neglected to investigate the defence of the Appellant. It was also contended for the Appellant that the trial Court failed to consider his defence of alibi.
The Appellant no doubt raised the defence of alibi and stated where he was from morning when he went to church stating the church he attended, to going with his uncle to

visit his sick mother at Nung Udoe Itiak. He raised alibi of his whereabouts till about 8:00pm on the date in question. The Appellant was mute on his whereabouts from after 8:00pm on the fateful date, meanwhile the prosecution evidence is that the crime was committed from about the time of 8:30pm. In law for the defence of alibi to be material to the charge, the same must cover the time of the commission of the offence because alibi which means somewhere; presupposes that the accused person was somewhere other than where the prosecution alleges he was at the time of the commission of the offence, making it impossible for him to have committed or participated in the commission of the offence with which he was charged. The Appellant in this particular case did not state where he was as at 8:30pm at which time the offences were allegedly committed. There was therefore no alibi for the police to investigate and none for the Court to consider since the Appellant though clearly stated where he was prior to the commission of the offence but withheld information as to where he was at the time of the commission of the offence.
Howbeit, I must also emphasis that

even where an accused person has rightly made out the defence of alibi, the plea will be demolished where the prosecution through an eye witness adduces cogent and compelling evidence that fixes the accused person at the scene of crime at that material time. See: AUGUSTINE ONUCHUKWU VS. STATE (1998)4 NWLR (PT. 457) 576; AYAN V. STATE (2013) LPELR – 20932 (SC); NJOVENS V. THE STATE (1973) NSCC 257 AT PAGE 278; OMOTOLA & ANOR. V. THE STATE (2009) ACLR 29. It is my view that the evidence of the Prosecution on record particularly the evidence of the PW1 and PW2 adequately fixed the Appellant at the scene of crime at the time of the commission of the offence.
Accordingly, I hold that the particulars of his where about as given by the Appellant does not make it impossible for him to have committed the offence with which he was charged, the defence of alibi cannot therefore avail the Appellant. The learned trial Judge was right in the circumstances of the case in holding that the mere fact that the Appellant went to see his mother and came back at 8:00pm does not mean that he could not have committed the offences as charged. I resolve this issue in favour

of the Respondent.

The next issue is the Appellant’s quarrel over the evaluation and holding of the trial Court on the evidence of PW2 thus:
“Assuming that there was the need to conduct identification parade what of the evidence of PW2 in chief that some months after the incident the accused called him on phone and apologized and said that he should forgive him and he told the accused to go to PW1 and apologize. This niece of evidence was neither challenged in cross examination nor denied by the accused in his evidence. This amounts to a confession that he had committed the offence.” See: Page 141 line 28 to Page 142 line 1 to 3 of the Record of Appeal.

This was as a result of the evidence in chief of the PW2 on 27th October, 2014; where PW2 testified that:
“I went and carried PW1 to Mkpatak. When I went back, I saw Police in my house and they said that somebody complained that I came with the youths and beat him up. I was told that the Accused was the one who lodged the complaint against me. I went with the Police to the Police station. At the police station, I and him were taken before the DPO. I narrated what happened to the

DPO. I was asked by the DPO to bring PW1. I went and brought PW1 to the police station and she made statement to the Police. I was then asked to leave. Some minutes after, the Accused called me on phone and apologized and said that I should forgive him and I told him to go to PW1 and apologize.” See: Page 88 line 28 to page 89 line 1 to 8 of the Record of Appeal.

The contention of the Appellant herein is that the evidence of PW2 as contained in the printed records of the trial Court reveals that, details of the discussion the PW2 and the Appellant had with the DPO was not provided by PW2. He submitted therefore that the context in which the Appellant allegedly called PW2 on phone and apologized to him is not known or stated in the evidence of PW2 relied upon by the learned trial Judge to hold that said apology amounted to a confession by the Appellant.
Section 28 of the Evidence Act, 2011 defines confession thus:
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
Section 28 of the Evidence Act, (supra) in its judicial interpretation by the

Supreme Court; per Ariwoola, J.S.C. defined confession thus:
“… a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or some essential part of it.”
See:ADEBAYO V. STATE (2014) LPELR-22988(SC) PP. 4041 PARAS E-C. See also the Supreme Court, per Okoro, J.S.C. in NKIE V FRN (2014) LPELR-2287(SC) P.29 PARAS D-F; where it was stated that:
“A confession or confessional statement has been defined in several cases by this Court as an admission made by an accused person stating or suggesting that he committed the crime which is the object of the charge preferred against him. It is an acknowledgement of the crime of the accused.”
From the records, the evidence of PW2 is not clear as to what the Appellant apologized to him about. It is on record that the Appellant had earlier divorced the PW2’s sister he was married to, the apology could as well be with regards to that. In the circumstance, the mere fact that the Appellant, in his evidence-in-chief before the trial Court did not deny apologizing to PW2 and the fact that PW2 was not cross- examined on the evidence does not

mean that the issue of the apology related to the crime for which the Appellant was charged. To hold so in my view will amount to serious speculation which will obviously lead to a miscarriage of justice. Accordingly, to the extent that the purpose of the alleged apology to the PW2 by the Appellant was undisclosed, the same cannot amount to an admission by the Appellant of the commission of the crimes for which he was charged. An admission to a crime must be unequivocally expressed or implied. The learned trial Judge was therefore in error when he held that the referred apology amounted to an admission of commission of the offences as charged by the Appellant.
I resolve the issue in favour of the Appellant.

PARA C.
It is worthy of note however that it has been held in a plethora of cases that an identification parade is not the only means by which the identity of a person or persons who committed a crime may be ascertained. See: DAIRO V. STATE (2017) LPELR – 43724 (SC); PETER ADEWUNMI V. THE STATE (2016) LPELR-40106 (SC); FATAI V. THE STATE (2013) LPELR-20182 (SC); OGOALA V. STATE (1991) LPELR – 2307 (SC); IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455 . Instances where an identification parade may not be necessary in ascertaining the identity of one accused of committing a crime includes:
1. Where the accused person was arrested at the scene, or a place so closely connected with the scene of crime.
2. Where the prosecution evidence fixes the accused at the scene,
3. Where the accused person is well known to the witness before the day of the commission of the offence alleged.
4. Where the accused person has by his confession identified himself.
On the other hand, identification parade is essential where:
(a) the victim did not know the accused before and his first acquaintance with him was during the commission of

the offence;
(b) the victim or witness was confronted by the offender for a very short time; and
(c) where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.”
The question whether a person is properly identified as one who committed a crime is a question of fact to be determined by the Court having regard to the evidence adduced in that regard. See: UKPABI V. THE STATE (2004) 11 NWLR (PT. 884) 439. An identification parade should never be conducted for purely cosmetic reasons. It should be limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged. To insist that it must be conducted in all cases even where the visual evidence of identity is clear and corroborated by other evidence will make a mockery of criminal justice. See: OGOALA V. STATE (1991) LPELR – 2307 (SC).
From the facts on the records, the identification of the Appellant by the PW1 cannot be faulted. Before the commission of the offences, the PW1 and the Appellant had shared some moment at the Abak roundabout (Pick up Point) while

negotiating the transportation fare with street lights on.
During her cross examination, the PW1 had stated thus:
“The only time I saw the face of the Accused person clearly was at the roundabout and when we were struggling….. I stood with him at the roundabout 5 minutes negotiating the price with him (page 68 of the Record of Appeal).”
This manifestly shows that the PW1 had acquainted with the Appellant for above five (5) minutes before the commission of the offence. There will be no doubt in the mind of any reasonable man that five (5) minutes of negotiation was sufficient for PW1 to observe features of the Appellant for proper identification. This in my view defeated the first element of a need for identification parade. Also at the scene of the commission of the offences, the PW1 had further observed the Appellant from the flash of his phone when he made a call not quite long after the commission of the offences, the PW1 in her examination had stated thus:
“… I described him to them that he is tall, rides blue motorcycle, and wore white polo and white silver necklace. They said they know whom that would be … This later

motorcyclist rode pass in speed. I identified him… Later, he returned to his compound and I approached him and asked him for my phone.”
It is evident therefore that PW1 was not confronted with the Appellant for a very short time. She had enough time, not a mere fleeting chance as she was availed ample time to observe the Appellant and conduct a thorough scrutiny of the Appellant who, from the PW1’s unequivocal narration, had spent enough time negotiating with the Appellant the motor cycle fare to her destination at the Abak round about which was properly lit. The evidence of the PW1 categorically and graphically fixed the Appellant at the scene of crime where he raped her and collected her items as listed in the charge under threat. Also beyond any doubt pinning the Appellant down to the scene of crime was PW1’s description of the Appellant’s nicker which was apt of the nicker the Appellant was wearing when the youth who apprehended him when he finally got back to his house stripped him of his trouser. In the circumstance of this case that the PW1 had good opportunity to observe the Appellant to the extent that her description of him

made the PW2 who knew the Appellant before the commission of the offences identify who the PW1 described and the correct description of his inner wear (nicker); an identification parade was absolutely unnecessary. See:LAWALI V. STATE (2019) LPELR – 46405 (SC). Furthermore, it is worthy of note that the fact that in the instant case, the PW1 had good and enough time to observe the Appellant to the extent of recognizing and identifying him was more reliable than identification of a total stranger in an identification parade. See: EYISI V. STATE (2000) LPELR – 1186 (SC).
I am therefore satisfied that the trial Court had adequately and properly dealt with the defence of alibi raised by the Appellant and having regard to the overwhelming evidence of the prosecution witnesses which fixed the Appellant at the scene of the crime, the evidence of alibi became defeated, the Appellant was properly convicted on this ground.
From all I have said above, I hold that since the identity of the Appellant was not in doubt the trial Court was right in holding that there was no need for an identification parade.

I resolve the issue in favour of the

Respondent.

SUBMISSIONS ON ISSUE 4
“Whether the learned trial Judge considered the totality of the evidence of the parties before arriving at the conclusion that the prosecution proved the charges preferred against the appellant beyond reasonable doubt and to have found the appellant guilty of the charges preferred against him”

It is the Appellant’s submission that the evidence of the prosecution witnesses were mostly contradictory and hearsay thereby rendering them inadmissible and unreliable. Mr. Idiege contended that the Respondent’s failure to call as witnesses, Usen Titus Akpan and some other persons mentioned in the evidence of PW1 and PW2 was fatal to its case.

Urging the Court to allow the appeal, learned counsel submitted that the trial Court erroneously relied on the evidence of the Respondent in its judgment without giving adequate consideration to the evidence of the Appellant. That the trial Court failed to make any finding on the contradictions contained in the evidence of the Respondent’s witnesses or on the uncontroverted evidence of DW2. He referred to: VICTOR OJIAKO V THE STATE (1991) 2

N.W.L.R. (PT. 175) 578 @ 584 PARAS E-F; FABIAN NWATURUOCHA V THE STATE (2011) 6 N.W.L.R. (PT. 1242) 170 @ 188 PARAS F – G;

Mr. Nwoko, the learned Attorney General of Akwa Ibom State for the Respondent, submitted that the law is trite that a judge is not permitted to pick and drop evidence at will but he should put all the evidence on an imaginary scale and see where it would tilt. He further submitted that the Respondent’s failure to call Usen Titus as a witness does not harm its case as it is trite that the prosecution need not call a host of witnesses.

Urging the Court to dismiss the appeal, he argued that the evidence of PW2 is not hearsay since he had gone to the scene of the crime to meet PW1. He referred to: SECTION 200 EVIDENCE ACT, 2011; ONU & ORS V. IDU & ORS (2006) LPELR – 2696 (SC) PP.34-35 PARAS F – E; OLOWOYO V. STATE (2012) 17 NWLR (PT. 1329) P. 346; OGIDI V. STATE (2005) 5 NWLR (PT. 918) 286.

RESOLUTION OF ISSUE 4
The learned counsel for the Appellant, Mr. Idiege highlighted the evidence of the Respondent’s witnesses which he viewed were contradictory and urged that the learned trial Judge was

wrong in relying on such evidence in finding the accused guilty.

327.
The evidence referred to by the Appellant’s counsel is the evidence of PW1 at pages 93 lines 10 12, lines 15 – 18; 85 lines 17 – 18; 5 lines 10 – 11, line 16; page 79 lines 4 – 8, 17 – 23, lines 23 –page 80 lines 1 – 14 of the records; on the one hand and the evidence of PW2 at pages 86 lines 24 – 28; 79 lines 17 – 20; 87 lines 6 – 8; 87 lines 11 – 18; 90 lines 6 – 10, line 18; 87 line 13 to 88 lines 1 – 12 of the records; on the other hand, for the alleged contradictions.
A careful perusal of the surmised contradictions at the referred pages of the records show that they are not material and substantial to such a degree as to affect the case of the prosecution. The evidence of the PW1 in no way affirms the opposite of her evidence or the evidence of PW2. What I see apparent in the evidence of the Respondent’s witnesses are minor discrepancies in details between them owing to individual astuteness and capacity for observing and narrating meticulous details. See: EGWUMI V. THE STATE (2013) LEPLR – 20091 (SC); NWANKWOALA V. FRN (2018) LPELR 43891 (SC); AYO GABRIEL V. THE STATE

(1989) 5 NWLR (PT. 122); DAGAYYA V. STATE (2006) LPELR – 912 (SC). I therefore hold that there was no evidence asserting the opposite in the evidence of the Respondent’s witnesses.

At paragraphs 4.71 to 4.73 of the Appellant’s brief, the Appellant’s counsel argued that the evidence of the PW1 and PW2 on the fact that it was Usen Titus Akpan that called the PW2 to come to the road where he met the PW1 was hearsay and inadmissible in evidence. He equally argued that failure to call the said Usen and the other village youths to testify was detrimental to the Respondent’s case. The fact of who and who did not call the PW2 to come to the road side where PW1 was crying after she escaped to the road having just been raped is not material to the facts in issue. Its admissibility has no probative value and will not in any way sway the mind of the Court either positively or negatively to the conviction or discharge of the accused. The referred piece of evidence is of no legal value in the determination of the case before the trial Court. After the PW2 arrived at the scene where the PW1 was rescued, he saw things for himself and was also

told all that happened by the PW1. He followed up the case personally until the case was reported to the police, his evidence does not in any way qualify as hearsay and I so hold.

As to failure of the Respondent to call Usen or any of the village youths that gathered at the call of PW2, I hold that the act of the learned trial Judge in the circumstances of the case did not contravene any known legal position. The Prosecution is entitled to call witnesses it considers relevant to its case. It is not bound to call all the eye – witnesses or every person present at the scene of crime to testify in order to discharge the burden placed on it to prove its case beyond reasonable doubt. A single eye witness who gives a cogent and credible eye witness account will suffice even in a murder charge. See: IDAGU V. STATE (2018) LPELR – 44343 (SC); OCHIBA V. STATE (2011) 17 NWLR (1277) 663 SC. The Appellant in this case as in any other case cannot dictate to the Prosecution who must be called as a witness. The Prosecution has discretion in the matter; it determines the direction of its case and which witness to call to prove its case against the accused.

Once it discharges the burden to prove its case beyond reasonable doubt, it does not matter that a particular witness was not called to give evidence. The only exception is when the Prosecution as any other party in a case has failed to call a vital witness. A vital witness is a witness, whose evidence may determine the case against an accused person, one way or the other, and failure to call such a vital witness is usually fatal to the Prosecution’s case. See: ONAH V. STATE (1985) 3 NWLR (PT. 12) 236 SC; IKUMONIHAN V. STATE (2018) LPELR – 44362 (SC); KAMILA V. STATE (2018) LPELR – 43603 (SC). Neither Nsen nor any of the youths that gathered at the call of the PW2 is a vital witness accordingly failure of the Respondent to call any of them as a witness does not affect the case of the Prosecution.

On the evaluation of the evidence of the Appellant vis-a-vis the evidence of the Prosecution. I want to note that this being a criminal case where the Prosecution is bound to prove its case beyond reasonable doubt and where the accused need not defend himself, the trial Court was right in paying full attention to the evaluation of the evidence of the

prosecution as it is only where the Prosecution has so proved its case against the accused that the trial Court will evaluate the defence raised by the accused person and the defences ordinarily available to him to see if that could raise a reasonable doubt in the mind of the Court. Rightly on this the trial Court considered the alibi raised by the Appellant and made its finding which I had upheld.
The contention that the Appellant’s father did not plead on behalf of the Appellant nor offered to refund the PW1 of her losses does not go to the root of the material facts in case of the case. Accordingly, failure to evaluate it by the trial Court did not occasion a miscarriage of justice and cannot be a basis of setting aside the decision of the trial Court. In sum, I resolve the issue in favour of the Respondent.

In all, from the four issues nominated by the Appellant for determination; issue No. 2 was resolved in favour of the Appellant while issues 1, 3 and 4 were resolved in favour of the Respondent.

Despite my resolution of issue No. 2 in favour of the Appellant, the appeal nevertheless lacks merit and it is accordingly dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I hold that this appeal is lacking in merit. I uphold the conviction and sentence of the Appellant by the High Court of Akwa Ibom State delivered by Ezekiel O. Enang, J. in Abak Judicial division on 25th July, 2016 in Charge No. HA/13C/2013.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother UCHECHUKWU ONYEMENAM JCA.

I also abide by the trial orders of Court made in the lead judgment particularly dismissing the appeal.

Appeal is dismissed.

Appearances:

JULIUS IDIEGE For Appellant(s)

JOSEPH AKPAN, Asst. Director Ministry of Justice, Akwa Ibom State. For Respondent(s)