BLESSING BOTU v. THE STATE (2014)

BLESSING BOTU v. THE STATE

(2014)LCN/7238(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of May, 2014

CA/B/76C/2013

RATIO

EVIDENCE: EFFECT OF THE IDENTIFICATION EVIDENCE OF AN EYE WITNESS OR VICTIM.

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 HELEN MORONKEJI OGUNWUMIJU, J.C.A.

PRESUMPTION: EFFECT OF THE DOCTRINE OF RECENT POSSESSION ON A PERSON FOUND IN POSSESSION OF A POSSESSION RECENTLY STOLEN

ISSUES THE COURT MUST EXAMINE IN GUARDING AGAINST MISTAKEN IDENTITY

“To ascribe any value to the evidence of an eye-witness re-identification of a criminal, the courts in guarding against the case of mistaken identity must meticulously consider the following issues:

(1) circumstances in which the eye-witness saw the suspect or defendant,

(2) the length of time the witness saw the subject or defendant,

(3) the lighting conditions,

(4) the opportunity of close observation,

(5) the previous contacts between the two parties.”

See also Bashaya V. The State (1998) 5 NWLR (Pt. 550) Pg 351. per HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

BLESSING BOTU Appellant(s)

AND

THE STATE Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice Ebiowei Tobi sitting at the High Court of Delta State, Ughelli Judicial Division delivered on the 23rd day of July 2011. The facts that led to this appeal are as follows:
The Appellant was arraigned before the trial court on a three count charge of conspiracy to commit armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act and armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. The Appellant and one Odafe Awhata now at large were alleged to have robbed at two different locations on different dates, two different complainants. The first robbery occurred on the 18th day of August 2002 and the second on 24th day of August 2002. The appellant and Odafe Awhata were accused of having robbed on the 18/8/2002 at gun point one John Eyalegin of his Mercedes Benz V/Boot. They were also accused of having on the 24/8/2002 at gun point robbed one Pastor A. B. J. Udoka of his Mercedes Benz N boot 300E. The particulars of the offences are stated thus:

PARTICULARS OF OFFENCE: COUNT I
Blessing Botu (m) and Odafe Awhata (m) on or about the 18th day of August, 2002 at Effurun within Effurun Judicial Division conspired with each other to commit armed robbery armed with a gun

PARTICULARS OF OFFENCE: COUNT II
Blessing Botu (m) and Odafe Awhata (m) on the 18th day of August 2002 at DSC township within Effurun Judicial Division robbed one John Eyalegin of his Mercedes Benz V/Boot car and at the time of the robbery you were armed with a gun

PARTICULARS OF OFFENCE: COUNT III
Blessing Botu (m) and Odafe Awhata (m) on the 24th day of August 2002 at DSC town 1, within Effurun Judicial Division robbed one pastor A. B. J Udoka of his Mercedes Benz N Boot 300 E with registration number BP 165 ABJ and at the time of the robbery, you were armed with an offensive weapon to wit: gun

The Appellant pleaded not guilty to all three counts. Evidence was led by both parties at trial with the respondent calling four witnesses while the Appellant testified for himself. 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, as the trial court held that it was not made voluntarily, hence the extra-Judicial statement of the appellant was marked REJECT “1”. The defence thereafter made a no case submission which was overruled.

At the close of the trial, the trial court found the appellant not guilty of count I of the charge to wit: conspiracy to commit armed robbery but the appellant was found guilty of charges II and III to wit: armed robbery. The court sentenced him to death for each of the two counts.

The Appellant being dissatisfied with the Judgment of the trial court, by a Notice of Appeal dated 28th July 2011 filed five grounds against his conviction and sentence. The Appellant’s brief of argument is dated 11th March 2013 deemed filed on the 7th January 2014 while the Respondent’s brief dated 30th April 2013 deemed filed 7th January 2014.

The Appellant’s counsel in the brief settled by Ayo Asala Esq formulated two issues for the determination of the appeal. The issues read thus: –
1. Whether there was credible evidence before the lower court justifying the findings that the appellant was properly recognized/identified as one of the persons that robbed PW1 and PW2.
2. Whether from the totality of the evidence on the record, the lower court was right in convicting the appellant for the offence of armed robbery.

In the brief filed by Martins A. Omakor Esq for the Respondent, the following two issues were raised for determination:
1. Whether the lower court was right in convicting the Appellant from the evidence (direct and circumstantial) before it.
2. Was identification parade necessary in this case.

The issues formulated by the appellant and the respondent counsels are intertwined and basically the same, but differently numbered, however I shall adopt the issues formulated by the appellant’s counsel as they are more concise. I shall deal with the issues 1 and 2 together as they are intertwined.

Issue 1 & 2
Whether there was credible evidence before the lower court justifying the findings that the appellant was properly recognized / identified as one of the persons that robbed PW1 and PW2.
Whether from the totality of the evidence on the record, the lower court was right in convicting the appellant for the offences of armed robberies.

On issue one, the Appellant’s counsel argued that the trial court rightly held that count I had not been proved beyond reasonable doubt, but the court wrongly relied on the inconsistent and unreliable evidence of Pw1 and Pw2 to convict the appellant for the substantive offence of armed robbery in respect of counts II and III. Having set out the elements to guide against mistaken identity and citing in aid, Ochiba v. State (2012) ALL FWLR (Pt. 608) 849 at 871 and the dictum of Lord Widgery, CJ in R V Turnbill (1976) 3 ALL ER, 549, the Appellant’s counsel submitted to the effect that the findings of the learned trial judge is against the settled principle of law on identification evidence. He argued that there was no evidence that PW1 gave a description or the features of the appellant to the police at the earliest opportunity being 18/8/2002, despite the fact that there was evidence that PW1 reported the incident and made a statement on that same date, which the prosecution failed to produce, offering no explanation for this failure. Counsel argued that it was for this reason that the evidence of P.W.1 could not be relied on by the Court in proving the count of conspiracy as contained in count l, and as such should have been rejected in relation to count II. He argued that there existed a presumption in favour of the appellant that if the statement was produced by the prosecution it would have been against the prosecution as it relates to the identification of the appellant as one of the armed robbers. He cited Ogbudu v. State (1997) 53 LRCN Pg. 2549.

Counsel submitted that the evidence of P.W.2 presented a strange and bizarre means of identification which is not known to our criminal jurisprudence, since it was the appellant that identified PW2 as his uncle, a story denied by PW2. He submitted that P.W.2 did not make a statement to the police prior to the alleged unusual identification. He further submitted that it was uncontroverted fact that both P.W.1 and P.W.2 made no pretence of knowing the appellant prior to the incident, that the appellant was not arrested at the scene of the crime and as such the only acceptable and reliable means of identification of the appellant which will command credibility is by identification parade. He cited Omopupa v. State (2008) ALL FWLR (Pt 445) 1648 at 1671, PARAS D-H and Emenegor v. State (2010) ALL FWLR (PT 511) 884 at 943.

Appellant’s Counsel further contended that it was wrong for the learned trial judge to hold that the evidence of PW2 on the identification of the appellant was not seriously challenged under cross- examination, as the evidence of P.W.2 is bedeviled with a lot of inconsistencies that no reasonable tribunal will attach any credibility to it. He also argued that it was wrong for the police to bring out the appellant and the other accused person from the cell without mixing them with other people before asking PW1 and PW2 to identify them and that it was also wrong for the learned trial judge to rely on such evidence of identification in convicting the appellant. He cited Bozini v. State (1998) 1 ACLR at Pg 14.

Appellant’s counsel submitted that having regard to the charge, the prosecution failed to prove the charge against the appellant beyond reasonable doubt. Counsel submitted that the prosecution has a duty, which is an unshifting burden, to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. He cited Bello V. State (2012) 8 NWLR (Pt. 1302) Pg. 207 at Pg 231.

Counsel argued that the evidence of P.W.1 and P.W.2 of the identification of the appellant was unreliable. The prosecution investigation left much to be desired as ample evidence show that the police was intent on convicting the appellant at all cost. PW2 never identified the appellant as one of the armed robbers that attacked him prior to his oral testimony in court and the two statements made by PW2 after the appellant was shown to him by the police cannot be relied on because the police had already shown the appellant to P.W.2. He further submitted that exhibit B, B1, to B4 being alleged cartridges recovered by the police and the extra judicial statement of the appellant was rejected by the learned trial judge.

Counsel contended that the fact that the appellant was found in a stolen vehicle driven by the co-accused person is not conclusive prove that the appellant was a participis criminis in the offence charged, as the appellant gave uncontroverted evidence that he was given a lift by the co-accused, so the learned trial judge was therefore wrong to have applied the doctrine of recent possession in convicting the appellant. He further contended that where there is enough explanation by an accused person on how he came by the property, the presumption will not apply. He cited State v. Nnolim (1994) 5 NWLR (Pt. 345) 394 at 410 and submitted that when the accused person has established this presumption on a balance of probability and once the explanation is reasonable, the onus is discharged. He further cited Omopupa v State (2008) ALL FWLR (Pt. 445) 1648 at 1671.

In response to these issues raised, the Respondent’s counsel submitted that an identification parade was not necessary from the manner of recognition of the accused by P.W.1, as P.W.1 was not shaken, impeached or contradicted under cross examination. He further submitted that P.W.1’s identification of the appellant was spontaneous identification which is recognized in law as good identification of the appellant. He cited Ikemson V. The State (1998) volume 1 ALL CLR page 80 at page 104, Ndukwe v The State (2009) 2 SCNJ 223, Otti V. The State (1993) 5 SCNJ page 143 at 147 and Ukpabi v. The State (2004) 11 NWLR part 884 page 439 at 449. Counsel stated that the Supreme Court has held that recognition is undoubtedly more reliable than identification of a stranger, as identification parade are not full proof as the history has shown that instances of mistaken identity abound. Counsel stated that the robbery occurred on 18/8/2002 and less than a week 25/8/2002 when the incident was still fresh in the mind of P.W.1 he was called by the police to see if he could identify the armed robbers. P.W.1 and P.W.4 were never cross- examined on this spontaneous identification, the legal implication of which is that they are admitted facts and deemed in law to be the truth of what happened. He cited Okosi v The State (1998) VOL 1 ACLR Pg. 281 at 295, Oforlette v The State (2000) VOL 80 LRCN Pg. 2670 at 2694 and Pg 2694.

Respondent’s counsel with regards to count III stated that the appellant identified P.W.2 as his uncle (this fact was never challenged under cross examination) while P.W.2 denied knowing him, but recognized him as the one that waylaid him with a gun and carried off his vehicle. He stated that the legal implication of not cross examining witnesses on material fact is that the facts are admitted and deemed as the truth. Counsel stated that the appellant did not bother to introduce his defence that the appellant was offered a lift in the snatched car during cross examination of P.W.2, P.W.3 or P.W.4, and did so belatedly only during defence, giving P.W.4 no opportunity to investigate this allegation, as the law treats such evidence as a clear and very damaging after thought. He cited Ikemson v. State (1998) Vol 1 A.C.L.R Pg 80 at 105.

Counsel submitted that the Court below rightly held that this is an appropriate case where the doctrine of recent possession under Section 167(a) of the Evidence Act 2011 as amended can be invoked. He cited Madagwa v. State (1998) 5 N.W.L.R part 92 Pg 60 at Pg 83. Counsel further submitted that there exist circumstances that make a complete and unbroken chain which constitutes sufficient and cogent proof that the appellant committed the offence and to urge the court to hold that circumstantial evidence can also be used to convict the Appellant in this case.

Respondent’s counsel argued that an identification parade as required formally by law was not necessary because P.W.3, P.W.4 and other police officers in the police station where the Appellant was arrested heard when the Appellant and the original co- accused at large claimed that it was their uncle who gave them the car and the person they identified as their uncle turned out to be the victim of their armed robbery. Counsel insisted that the use made by the court of the identification by the appellant of the P.W.2, a complaint did not amount to a miscarriage of justice. Counsel further argued that P.W.2 could also recognize the Appellant as he was not masked on that day and P.W.2 had ample opportunity to look at the appellant who directly faced him when he pointed a gun at him. This identification of the witness is also strengthened and coupled with the fact that it was the appellant that P.W.2 surrendered his car key to.

Respondent’s counsel submitted that there was enough evidence both direct and circumstantial which the court below relied on to convict the appellant. Counsel pointed out that with regards to Count II, the evidence from P.W.1 and P.W.4 were relied upon by the trial court. As regards count III, the evidence of P.W.2, P.W.3, P.W.4 and circumstantial evidence were relied upon. He stated that the Appellant had no alibi at the material time of the 18/8/2002 about 9.20pm, and he was therefore fixed at the scene of the crime. By the evidence of P.W.II, any alibi given by him is thus legally, logically and conclusively demolished. He cited Patrick Njovens V. The State (1998) VOL 1 A.C.L.R Page 224 at 261, Ikemson V. The State (supra).

Counsel argued that the court below was right in convicting the appellant as his conduct was tantamount to an admission of guilt. He cited Dapera Gira V. The State (1996) SCNJ Pg. 95 at 106, Udo V R (1964) 1 ALL N.L.R. Pg. 21 at Pg 23, Utteh V. The State (1992) 2 NWLR Pt. 223 Pg. 257. He further argued that it was proper in law for the court below to convict the appellant without tendering the gun allegedly used, as the none tendering of the weapon used in the commission of a crime is not fatal to the prosecution’s case. He cited Micheal Alor V. the State (1998) 1 ACLR 658 at 673, Mohammed Garba v. The State (2000) 4 S.C.N.J Pg. 315 at Pg. 323.

Resolution of issues 1 and 2
In proving the offence of armed robbery, the prosecution must establish by evidence and prove beyond reasonable doubt the following:
(i) There was in fact 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) 465; 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) 36 WRN 112 at 145 (CA); Osetola & Anor. V. The State (2012) 17 NWLR (Pt. 1329) Pg. 251 at Pg. 275 (SC). There seems to me no dispute amongst parties with regards i and ii.

It is also settled that in the discharge of the burden of proof imposed on it by law, the prosecution no doubt can utilize any or a combination of the following ways of proving the commission of a crime, namely:
(i) by confessional statement(s);
(ii) by circumstantial evidence; and
(iii) by evidence of eyewitness otherwise referred to as direct evidence.
See MOSES v. THE STATE (2003) FWLR Pt. 141 Pg. 1969 at Pg. 1987; and JOSHUA V. STATE [2009] All FWLR Pt. 475 Pg. 1626.

In this instant case, the lower court found the offence of armed robbery in Count ii for which the Appellant stood charged to have been established through the evidence of PW1 particularly as the witness identified the Appellant as one of the robbers that robbed him.

The prosecution, at the trial court relied heavily on the evidence of the PW1 as proof of the armed robbery attack on him on the 18/8/2002 in convicting the appellant as the armed robber in count II. It is my humble view that where the identity of an accused person is in issue as in this case, a trial court must be careful to examine the evidence of recognition carefully to detect whether there are any weaknesses capable of diminishing the strength and veracity of the prosecution’s witness’s evidence.

The contention of the appellant is that the evidence of identification given by the PW1 and PW2 of the appellant is unreliable and inconsistent. In the case of PW1, there is no physical evidence linking the appellant with the offence, the case for the prosecution depended entirely on the correctness of the recognition of the appellant by the PW1.
Let us put into perspective that the first witness statement made by PW1 on the 18/8/2002 was never tendered, which does not help the case of the prosecution, as there exists no evidence of a description of the appellant prior to the purported identification.
PW1 is recorded as having further testified on oath at page 95 of the record thus:
“On 18/8/2002 at about 9.20pm when I was returning from the church with my family, I drove in my Mercedes benz registration number DT 3073 P. I was blocked by another v boot. ……..I opened the car and with the aid of the inner light I was able to recognize his face. I gave the car keys”

At page 203 of the record, the learned trial judge held thus:
“The defence did not lead any evidence by way of cross-examination to test the credibility of the positive identification of the accused by P.W.1. A challenge of the identification under cross examination to create doubt in the court’s mind as it relates to P.W.1’s evidence of positive identification would have helped”

Now, the law is well settled that the court should examine closely the circumstances in which the identification by the witness was made. In Ndidi v. State (supra) Pg. 651-652, of the NWLR, His Lordship, Aderemi JSC stated at page 651 para. G-H as follows:
“To ascribe any value to the evidence of an eye-witness re-identification of a criminal, the courts in guarding against the case of mistaken identity must meticulously consider the following issues:
(1) circumstances in which the eye-witness saw the suspect or defendant,
(2) the length of time the witness saw the subject or defendant,
(3) the lighting conditions,
(4) the opportunity of close observation,
(5) the previous contacts between the two parties.”
See also Bashaya V. The State (1998) 5 NWLR (Pt. 550) Pg 351.

From the totality of the evidence of PW1 as highlighted above, the following facts are indisputable:
1. That the armed robbery attack occurred around it was 9.20 pm, which is reasonably a dark hour.
2. That PW1 opened the door and with the aid of the inner light, he recognized the appellant,
3. That prior to PW1’s identification of the appellant, he already had the mindset that armed robbers had been caught while carrying out another armed robbery, and those suspects were being brought out of the police cell when the identification took place.

It is clear, at least to me, that the confusion into which PW1 must have being thrown into (faced with such an experience especially with his family involved) and the time and length of the attack has created a great doubt in my mind that PW1 would have indeed be able to recognize the appellant as one of the armed robbers if proper identification was carried out in the circumstances of this case.

When a charge is based principally on identification by a witness, such evidence must be closely examined and received with caution. See Ndukwe V. The State (2009) All FWLR (Pt. 464) 1447 at 1474.
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 this instant case, at the police station. This court held at Pg. 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 vs. State (1993) 4 NWLR (Pt. 290) 675; Adamu vs. State (1991) 4 NWLR (Pt. 187) 530 Chukwuma vs. State (1990) 1 NWLR (Pt. 463) 686; Ozaki vs. State (1990) 1 NWLR (Pt. 124) 92; and Eyisi vs. State (2001) FWLR (Pt. 35) 750, (2000) 15 NWLR (Pt. 691) 555.”

It is my humble view that the circumstances of the identification of the appellant should have raised doubt in the mind of the trial judge. The case of the prosecution in relation to Count II depended entirely on the correctness of the recognition of the appellant by PW1. In this case, no identification parade was conducted. The witness PW1 identified the appellant as his attacker while he was handcuffed in police custody having been arrested for another offence of armed robbery. Where there is mere suspicion rather than some concrete evidence against an accused person, an identification parade becomes very necessary whereby the 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. In this circumstance, a proper and formal identification parade ought to have been conducted by the police in order to make sure that PW1 could really pick out the appellant from among men who are placed on the same line for the identification. See Orok V. The State (2010) All FWLR (Pt. 532) 1732 at 1746 and Alabi V. The State (1993) 7 NWLR (Pt. 307) 511 at 527.

I find it particularly relevant that the learned trial judge at page 191 of the record held:
“The pw1 statement was not tendered when counsel asked for it. This brought in Section 149(d) of the Evidence Act. That presumption under Section 149(d) of the Evidence Act places a lot of credibility problem on the evidence of Pw1 as it relates to conspiracy. Withholding Pw1 statement of 18/8/02 is fatal to the prosecution’s case on establishing conspiracy using the evidence of pw1.”
We must understand that the argument of the learned appellant’s counsel is that the Court ought to have rejected the evidence of P.W.1 which was the only evidence led by the prosecution in support of count II, having rejected the same evidence in respect of count I. It is my humble view that this should have been the position. Doubt should have been cast on the mind of the learned trial judge. Any reasonable doubt must be resolved in favour of the appellant. The sanction here is capital punishment for the offence of armed robbery. In criminal matters, the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt and that burden does not shift. See Adisa v. The State (1991) 1 NWLR (Pt. 168) 90.

I am however not un-mindful of the fact that the appellant had no story to tell in relation to count II and was completely quiet about his whereabouts on the 18/8/2002, other than to say he was not guilty. I have taken that fact into cognisance but agree with the learned appellant’s counsel as I am not convinced that the prosecution proved beyond reasonable doubt that the appellant was one of the armed robbers to the incident of 18/8/2002.
I resolve this issue in favour of the appellant.
Now this leads me to count III.

Let me begin by saying that there are reasons to doubt the credibility of the evidence of some of the prosecution witnesses as was rightly held by the trial court at pages 186 and 187 of the record. The duties of the police do not include influencing the evidence of the complainant. I am completely aghast and rendered speechless by the perverted interest the police obviously showed as they tried to tamper with the statement, of P.W.2. That behavior is condemned in its totality.

Having said that let me briefly highlight the facts leading up to the appellant’s arrest. On the 24/8/2002 around 7.00pm P.W.2’s car was snatched by armed robbers in DSC Township, Orhuwhorun but was discovered within two hours or less by PW3 on its way to Benin with the appellant as an occupant. The appellant did not deny that he was found in the car but claimed that he was offered a lift by the co-accused. The appellant was taken to Sapele police station. PW2 in his evidence at pages 97-98 of the record stated that:
“I was lined up with some other men and they brought the suspect which are the accused person. They identified one in the mix as their uncle. I was not asked to identify them. The police told me to made a statement. That was in Sapele. I made the statement. We were told to go and come back the next day. The car was finally released to us on the 26/8/2002. That was when I told the police, my case has ended. I made another statement on 26/8/2002. In both statement I said I could only identify one of them. This is because it was the 1st accused that was directly facing me when the car was taken. The robbers were not masked.”

We must at this point stop to evaluate this evidence. As rightly pointed by the appellant’s counsel, this identification is un-usual, however nothing in the criminal code forbids it. The point being made here is that it can be relied on as it was by the trial court if believed to be true. We must understand that if indeed the appellant had claimed that the car was their uncle’s and he was told to identify this uncle, it is believable that he will identify his victim at the instance, as he would be able to recognize him. Having said this, let us further examine P.W.2’s statement.

“On 24/8/2002 at about 7pm, I was going home from the office. As I was entering the compound, one of the accused person pointed a gun at me to hand over my car keys to him. That is the 1st accused. I did so at his command, I lay down. They drove away the car. The 1st accused entered the driver’s seat.”

The witness was unshaken regarding his evidence that he recognised the Appellant among the robbers that attacked him as the appellant faced him directly when the car was taken. The probative value given by the trial judge with regards to the identification of PW2 by the appellant is in order, as same was considered on the basis of the evidence and leaves little room for doubt. No miscarriage of justice has occurred as a result of the form of identification evidence accepted by the trial court.

It is also undisputed fact that when PW2’s car was recovered, the appellant and one Odafe Ahwata were found in the car on the road to Benin. Appellant’s counsel had argued that even though the appellant was found in the stolen vehicle according to the appellant (driven by the co-accused person) that is not conclusive proof that the appellant was a participis criminis in the offence charged. The trial court considered this point extensively and went further to state and highlight some other pieces of evidence facts that strengthened its belief that the Appellant was one of the armed robbers. (See pages 199 – 205 of the record).

I am therefore of the considered opinion and in total agreement with the learned trial judge when he held at page 206 of the record:
“Another interesting aspect of this case is that the accused was found in the car which was stolen about an hour later on the way to Benin. Though I do not accept the evidence that cartridges were found in the car because I am not satisfied with the search done by the police, the fact still remains that the accused was found inside a stolen car within an hour of the theft. This speaks volumes and makes a very loud sound. Even if I do not accept the direct evidence, the circumstantial evidence is also very strong and indeed credible particularly in relation to count 3 which accommodates the evidence of pw2. There are circumstances co-existing that make a complete and unbroken chain which constitute sufficient and cogent proof that the accused committed the offence. This is a requirement in using circumstantial evidence as the bases to convict an accused”.

An accused person can be convicted of the offence of armed robbery punishable with death if there exists cogent and compelling circumstantial evidence. Hewart Lord Chief Justice of England in R V Taylor & Ors (1928) 21 CAR 20 at p. 21 held:
“……so it is, but circumstantial evidence is very often the best. lt is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
The Supreme Court also held in the case of Mohammed v. The State (2007) 11 NWLR Pt. 1045 Pg. 303, where Tobi JSC said thus:
“A case is said to be proved beyond reasonable doubt either by direct oral evidence or by circumstantial evidence. Although witnesses can lie, circumstances cannot lie.
Consequently, and in that sense, circumstantial evidence affords better proof beyond reasonable doubt. See Adio v. The State (1986) 2 NWLR Pt. 24 Pg. 581.”

By the doctrine of recent possession if a person is found in possession of property recently stolen, the presumption is that he is either the thief or knew the property to be stolen. See Aremu v the State (1991) 7 NWLR (Pt 201) 1, Yonao v. C.O.P. (1990) 5 NWLR (Pt. 148) 103 at 116 – 117. The proximity of the time of possession to the theft seems to be an essential requirement of the presumption whether the appellant is the thief, or received them with knowledge that they are stolen goods. See Madagwa v. the State (1988) 5 NWLR (Pt 92) 50. In this case the appellant was found as an occupant of the stolen vehicle less than two hours after it was stolen at gun point from P.W.2.
The Supreme Court in the case of State v Nnolim (1994) 5 NWLR Pt 345 Pg 394 at Pg.410 where Adio J.S.C also held:
“An explanation by an accused of the way in which a stolen property came into possession which might reasonably be true and which is consistent with innocence, although the court may not be convinced of its truth, would displace the presumption under Section 148(a) of the Evidence Act. See Salami v. The State (1983) 3 NWLR Pt 85 Pg. 670. In this connection, the Court may infer guilty knowledge where the accused gives no explanation at all about how he came to be in possession of the property recently stolen or where the explanation he has given is untrue. It is only where the court is in doubt about whether the accused knew or did not know that the property was stolen that the court will discharge and acquit him. In this particular case, each of the respondents was unable to give true account or explanation of how he came into possession of Exhibit “G” and the learned trial judge was right to convict each of them for the offence(s) for which he convicted them…”
This case is similar to the case of Iliyasu Sumaila V The State (2012) LPELR – 19724 (CA) where Ejembi Eko J.C.A held:
“The PW1 identified the appellant as one of those who robbed him. Six hours after the robbery the appellant was found with the motorcycle and the telephone handset. There could be no better instance of the doctrine of recent possession in Section 49(a) of the Evidence Act (now Section 167(a) Evidence Act, 2011 than this. The doctrine runs thus; the man who is in possession of stolen goods soon after the theft is either the thief or is a receiver of stolen goods knowing them to have been stolen unless he gives proper account on how he came into possession of the goods. This is a presumption of facts, and is rebuttable. See Eze v The State (1985) NWLR (Pt 13) 429. This appellant has not given proper account of the stolen goods found with him. The p.w.1 identified him as the robber.”

Thus in the circumstances of this case, the trial court was right when he held on page 208 of the record thus:
“Using circumstantial evidence for count 3, it is clear that there exist circumstances co-existing that paint a complete and unbroken chain as to the guilt of the accused. Let us see what does circumstances are to determine how complete and unbroken the chain is. The P.W.2’s car was snatched at gun point about 7.00pm 24/8/02 by armed robbers in DSC, township 1, Orhuwhorun. The accused was apprehended within an hour or two of the theft on the way to Benin with the snatched car with the accused as one of the occupants of the car”.

I certainly do not see how the evidence of identification of PW2 by the appellant, and that of appellant by PW2 and the unequivocal finding of the lower court that the Appellant was one of the robbers that attacked PW2 while entering his house on the 24/8/2002 can be faulted. The very circumstance of the arrest of the appellant leaves room for very little doubt as to his guilt in respect of Count III. It is my humble opinion that the learned trial having considered all the ingredients of armed robbery and appraised the evidence before him rightly held that the prosecution had proved its case beyond reasonable doubt with regards to count III. There is no basis to question the conviction of the Appellant based on the evidence of PW2. lt is a settled position of the law that an appellate court will not disturb the finding made by a trial court unless that finding is either perverse in law or is against a rule of procedure and that it has thereby occasioned a miscarriage of justice. See Sele v. State (1993) 1 NWLR Pt. 269; Pg. 276; T.S.A. Industries LTD v Kema Investment LTD (2006) 2 NWLR Pt 964 Pg 1.

It is patent from the judgment that the lower court clearly considered the case of the appellant vis-a-vis that of the prosecution before arriving at its conclusion. From the facts of the instant case, the totality of the evidence led, I have been unable to see any reasonable doubt that the Appellant established that in any way derogated from the evidence adduced by the Respondent in the proof of the charge preferred against the Appellant in count III. With regards to count III, the charge has been proved beyond “reasonable doubt”. Proof beyond reasonable doubt is not synonymous or the same as proof beyond every shadow of doubt. That proof beyond reasonable doubt carries a high degree of probability. See Onafowokan v. The State [1987] 3 NWLR Pt. 61 Pg. 538. This issue is therefore resolved against the appellant.

In the circumstances, the judgment of the Delta State High Court delivered on the 23/6/2011 is affirmed in part. I set aside the conviction and sentence of the appellant in count II of charge NO/OUCH/7C/2004 and enter an order of acquittal and discharge of the appellant. The finding of the trial court with regards to count III of the charge is upheld and I also find the Appellant guilty and sentenced to death accordingly. In the circumstances, that portion of the judgment of Ebiowei Tobi in charge NO. OUCH/72/2004 delivered on 23/6/11 is hereby affirmed. Appeal allowed in part.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the draft of the Judgment just delivered by my learned brother, the Hon. Justice H. M. Ogunwumiju, JCA. Having equally read the briefs of argument of the learned counsel vis-a-vis the record of appeal, as a whole, I cannot but concur with the reasoning and conclusion reached in the lead Judgment, to the effect that the instant appeal succeeds in part.

It’s my privilege to adopt the reasoning and conclusion reached in the lead Judgment as mine. Consequently, the Judgment of the High Court of Delta State, holden at Ughelli on 28/7/11, Coram Ebiowei Tobi, J; is hereby affirmed in part by me. The conviction and sentence of the Appellant regarding count II of the Charge No. OUHC/7C/2004 is hereby set aside, and an order of discharge and acquittal of the Appellant is entered.

However, the finding of the lower court regarding count III of the charge is upheld. Thus, the portion of the said Judgment in Charge No. OUHC/72/2004 delivered on 23/6/11 is hereby affirmed.

TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of reading the draft of the judgment delivered by my Lord, Hon. Justice HELEN MORONKEJI OGUNWUMIJU, JCA.

I am in complete agreement with the illuminating reasoning and the conclusion reached therein, that the appeal has merit and must be allowed in part.

The finding of the trial court with regard to count 3 of the charge is upheld. Therefore the conviction of the appellant in count 3 is affirmed. However the conviction and sentence of the appellant in count 2 is hereby set aside.
In effect the appeal is allowed in part.

Appearances

Ayo Asala Esq.For Appellant

AND

Martins A Omakor Esq (Asst Director Public Prosecution, Delta State)For Respondent