FEMI ADEBOWALE v. THE STATE OF LAGOS
(2018)LCN/12202(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2018
CA/L/1057C/2016
RATIO
COURT AND PROCEDURE: TO DETERMINE THE IDENTITY OF AN ACCUSED
“There is no doubt that a determination of the identity of an Accused person is within the primary jurisdiction of the trial Court and the Court is urged to be careful in reaching a conclusion as to whether the person in the dock is the same person or one of the persons who committed the offence charged. Whatever means of proof the Prosecution has adduced must be carefully scrutinised, to the effect that it is only where the Prosecution has established the identity of the Accused beyond reasonable doubt that the Court may act on it. See: AYINDE v. STATE (2018) LPELR-44761(SC); AKOKHIA v. STATE (2018) LPELR-44163(CA); and UMOR v. STATE (2018) LPELR-44934(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“Generally, alibi means elsewhere and technically speaking in law, means a defence that may be relied on by an Accused, which is to the effect that the Accused could not have committed the crime alleged, because he was not present at the place the crime occurred at the time it occurred, but he was elsewhere, with a person or persons, doing something else. The Supreme Court in the case of IKUMONIHAN v. STATE(2018) LPELR-44362(SC)(Pp. 50-52, Paras. E-C) per Ariwoola, J.S.C., gave an apposite exposition of the above when it held thus: “What is the meaning of alibi? It is a defence where a suspect or an accused claims that at the time when the offence or crime with which he is charged was committed he was elsewhere. It is the law that the police must be notified of the suspect’s intention to raise it as a defence. Normally, the defence must be raised at the earliest opportunity by the suspect in answer to a charge by the police, at the investigation stage, to enable the police establish the truth or falsity of the claim. See: R. Vs. Lewis (1969) 2 Q.B1; Adio Vs The State (1986) 3 NWLR 714; (1986) 2 N.S.C.C. 815; Adedeji Vs. The State (1971) 1 All NLR 75; Danlami Ozaki & Anor Vs. The State (1990) 1 NWLR (Pt.124) 92; (1990) 1 All NLR 94; (1990) LPELR 2888 (SC)…'”PER JAMILU YAMMAMA TUKUR, J.C.A.
EVIDENCE: ORAL TESTIMONY OF AN EYE WITNESS
“Oral testimony is one of the most popular means of proof of an allegation and is sometimes the best means thereof. Sections 125 and 126 of the Evidence Act clearly stipulates the fact that oral testimony is an acceptable means of establishing disputed facts in a Court of law and the Apex Court in the case of UDO v. STATE (2018) LPELR-43707(SC) (P. 22, Paras. A-B) Per RHODES-VIVOUR, J.S.C., reiterated the importance and acceptable nature of oral testimony of an eye witness thus:’Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence.’ See: ADETA v. NIG. ARMY (2016) LPELR-40235(CA); UDO v. STATE (2015) LPELR-25767(CA); and OLUWATOYIN v. STATE (2018) LPELR-44441(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES:
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
FEMI ADEBOWALE – Appellant(s)
AND
THE STATE OF LAGOS – Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos State in CHARGE NO: ID/4C/2014 delivered by Honourable Justice O. Atinuke Ipaye on the 28th day of June, 2016, wherein the Court convicted the Appellant for the offences of conspiracy to commit armed robbery and robbery, contrary to Sections 295(2)(b) and 297 of the Criminal Law of Lagos State.
The material facts of this appeal is that an Armed Robbery incident occurred on or about 28th December, 2012, with a group of armed robbers attacking the residence of the PW1 & PW2 in Abule Egba, Lagos. Acting on a complaint brought to it by the PW1 and PW2, the Respondent brought an Information dated 30th October, 2013, charging the Appellant with armed robbery, and robbery while armed with dangerous weapons. The Appellant pleaded not guilty and full trial commenced. The Respondent called three witnesses in proof of its case, while the Appellant called four witnesses and testified under oath on his own behalf.
At close of trial, the learned trial Judge found the Appellant guilty on all counts and sentenced the Appellant to death by hanging.
Dissatisfied with the above, the Appellants appealed to this Court vide a Notice of Appeal dated and filed on 26th August, 2016. The Appellants Brief of Argument settled by A.S. Olatunji Esq., of Biodun Olatunji & Co., is dated and filed on 28th September, 2016, with six grounds of appeal. Appellants counsel formulated three issues for determination to wit:
1. Whether the defence of alibi timeously raised by the Appellant with sufficient particulars has been successfully rebutted or disproved by the Respondent. (Grounds 1 and 2)
2. Whether the identity of the Appellant has been established beyond reasonable doubt as a person who participated in the robbery. (Grounds 3, 4 and 6)
3. Whether the lower Court was justified to have convicted the Appellant for the offence of conspiracy to commit armed robbery solely on the eye witness evidence of PW1 and PW2. (Ground 5)
On the other hand, the Respondents Brief settled by Y.G. Oshoala Esq., Director, Attorney Generals Chambers M.O.J Lagos State is dated and filed on 18th May, 2017, but deemed properly filed on 8th November, 2018. Respondents counsel also distilled three issues for determination to wit:
1. Whether from the facts and circumstance of this case, the Respondent has disproved the defence of alibi.
2. Whether from the facts and circumstances of this case, the Respondent has established beyond reasonable doubt the identity of the Appellant as the person who participated in the robbery.
3. Whether the learned trial Judge was right to convict the Appellant for the offence of conspiracy to commit armed robbery and armed robbery solely on the eye witnesses evidence of PW1 and PW2.
An examination of the issues raised by both parties reveals that they are substantially the same. I therefore adopt the issues formulated by the Appellant for the purpose of convenience in the determination of this appeal.
ISSUE ONE:
WHETHER THE DEFENCE OF ALIBI TIMEOUSLY RAISED BY THE APPELLANT WITH SUFFICIENT PARTICULARS HAS BEEN SUCCESSFULLY REBUTTED OR DISPROVED BY THE RESPONDENT. (GROUNDS 1 AND 2)
Learned counsel for the Appellant argued that the Appellant timeously and properly raised the defence of alibi, by informing the Police as soon as he was arrested by PW3 and the claim was investigated. He further argued that the defence of alibi was based on the fact that at the time the robbery took place, the Appellant had travelled to Ilesha and stayed with Mr and Mrs Obadare throughout the weekend, and this was not disproved by the Prosecution.
He relied on the cases of Idemudia v. State (2015) 17 NWLR Pt.1488, P.375 at P.396-397 paras H-G; Abudu v. State (1985) 1 NWLR Pt.1 P.55.
Learned counsel also argued that the failure of the Respondent to tender in evidence the statements of Mr and Mrs Obadare, together with the passenger manifest of the Oshodi Motor Park where the Appellant boarded the vehicle to Ilesha, diminished the quality of evidence by which the Respondent sought to disprove the Appellants alibi.
He submitted that the reasoning of the trial Court for dismissing the defence of alibi, found at page 176 of the records, is erroneous on the following grounds:
i. The findings of the learned trial Judge that the alibi did not explain the whereabouts of the Appellant between 2am and 3am on Friday 28th December, 2012, when the crime was committed, was unsupported by evidence, as the charge and testimony of the Prosecution Witnesses is to the effect that the robbery took place on the 29th December, 2012, between the hours of 2am and 3am;
ii. The evidence of PW1 and PW2 which fixed the Appellant at the scene of the crime committed on 29th December, 2012, was unreliable and ought not to have been relied on by the trial Court because instead of identifying the Appellant at the earliest opportunity, they only mentioned the name of the Appellant for the first time at trial on 15th May, 2014 and 27th May, 2014, respectively, a period of about 17 months from the date of the incident, an act which the Courts have held to smack of an afterthought;
iii. Trial Court was wrong to refuse to rely on the evidence of the Appellants Father in Law, as all was required is for the Father in Law to confirm the alibi raised by the Appellant, which he did; and
iv. The trial Court ought to only attach weight to the Respondents assertion that the Appellants name was missing from the passengers manifest, if the manifest was tendered and admitted in the trial.
He relied on the following: Section 167 (d) Evidence Act 2011; Abudu v. State (supra); Idemudia v. State (supra); and Oyebola v. State (2008) ALL FWLR Pt.402 P.1175.
Counsel submitted that the identification parade conducted by the Police was a sham and unreliable, because the PW1 and PW2 previously knew the Appellant.
He relied on the cases of Nwakodo v. Ohajuruka (2010) ALL FWLR Pt.511 P.849 at P.942; and Afolalu v. The State (2010) ALL FWLR Pt.538 P.812 at 837 paras B-F.
On the other hand, learned counsel for the Respondent argued that the Respondent established conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt as the ingredients of armed robbery, which are: that there was a robbery; that one or more of the robbers were armed; and that the Appellant was one of the robbers, were conclusively established at trial.
He relied on the cases of Suberu v. State (2010) 8 NWLR (Pt.1197) 586 SC; and Bello v. State (2007) 10 NWLR (Pt.1043) P.564.
Learned counsel for the Respondent also argued that the direct testimonies of the PW1 Mrs. Olowoeyo Amadalat one of the victims; PW2 Taofikat Olowoeyo and PW3, Sergeant Amodu Gbenga, proved the offence of armed robbery and placed the Appellant at the scene of the crime by identifying the Appellant as one of the participants in the robbery.
Learned counsel also argued that the defence of alibi would not avail the Appellant because, the Respondent rebutted the defence by the evidence of PW1 and PW2 which placed the Appellant at the scene of the crime, identified the Appellant timeously and also identified him at the Police Station without hesitation.
He relied on: Emmanuel Egwumi v. The State (2013) 13 NWLR (Pt.1372) P.525 at 531 Ratio 5 & 6; Njovens v. State (1973) 5 SC 17; and Udo Akpan v. The State (1986) 3 NWLR (Pt.27) 258.
Counsel submitted that the defence of alibi was not credible because the Appellant did not discharge the evidential burden on him as he never gave evidence as to his whereabouts at the particular time of 2am to 3am on 28th December, when the robbery took place and why his name was not on the manifest at Oshodi Park, where he purportedly boarded a bus to Ilesha.
He cited the case ofNwabueze v. The State (1988) 4 NWLR (Pt.86) 16.
Counsel also submitted that the PW1 and PW2 adduced evidence fixing the Appellant at the scene of the crime at about 2am-3am on the night and morning of 28th and 29th December, 2012, which the Appellant did not rebut, and that where an Accused is fixed at the scene of the crime by testimony which is believed by the trial Court, failure to investigate by the Police would not create reasonable doubt.
He relied on Victor Essien Victor v. The State (2013) 12 NWLR (Pt.1369) P.465 at 469.
Counsel argued that the trial Court was right to hold that the defence of alibi failed as the Respondent has adduced sufficient and substantial evidence to rebut the defence by fixing the Appellant at the scene of the crime, and that where the trial Court does not believe the testimony of the Accused and his witnesses on the issue of alibi that is the end of the matter, particularly where the facts and circumstances support such finding.
He relied on Victor Essien Victor v. The State (supra).
RESOLUTION
Generally, alibi means elsewhere and technically speaking in law, means a defence that may be relied on by an Accused, which is to the effect that the Accused could not have committed the crime alleged, because he was not present at the place the crime occurred at the time it occurred, but he was elsewhere, with a person or persons, doing something else.
The Supreme Court in the case of IKUMONIHAN v. STATE(2018) LPELR-44362(SC)(Pp. 50-52, Paras. E-C) per Ariwoola, J.S.C., gave an apposite exposition of the above when it held thus:
“What is the meaning of alibi? It is a defence where a suspect or an accused claims that at the time when the offence or crime with which he is charged was committed he was elsewhere. It is the law that the police must be notified of the suspect’s intention to raise it as a defence. Normally, the defence must be raised at the earliest opportunity by the suspect in answer to a charge by the police, at the investigation stage, to enable the police establish the truth or falsity of the claim. See: R. Vs. Lewis (1969) 2 Q.B1; Adio Vs The State (1986) 3 NWLR 714; (1986) 2 N.S.C.C. 815; Adedeji Vs. The State (1971) 1 All NLR 75; Danlami Ozaki & Anor Vs. The State (1990) 1 NWLR (Pt.124) 92; (1990) 1 All NLR 94; (1990) LPELR 2888 (SC). In other words, alibi means, when a person charged with an offence says that he was not at the scene of the crime at the time the alleged offence was committed. That he was indeed somewhere else, as a result, he was not and could not be the one who committed the offence. See; Okosi Vs. The State (1989) 1 CLRN 29. Alibi is a defence, based on the physical impossibility of a suspect’s guilt by placing him in a location other than the scene of the crime at the particular time. It is the fact or state of having been elsewhere when an offence was committed. See; Akeem Agboola Vs. The State (2013) All FWLR (Pt.704) 139; (2013) 54 NSCQR (Pt.11) 1162; Black’s Law Dictionary 9th Edition, page 84 . However, where a defence of alibi is successfully raised, the result is an acquittal of the accused relying on the defence. The defence is said to be a combined defence of lack of act and mens rea. That is, that he was not present at the scene of the crime and was therefore neither in a position to have committed the offence nor participated in its commission. See; Benson Ukwunnenyi & Anor Vs. The State (1989) NWLR (Pt.114) 131; (1989) LPELR 3353 (SC).”
See: OKERE v. IGP (2018) LPELR-44178 (CA); and SHIDE v. STATE (2018) LPELR-45038(CA).
When the defence of alibi is raised at the earliest opportunity by the Defendant, which is usually at the time of making statements to the Police, the burden of investigating and disproving such alibi is on the Prosecution or the Police.
See: SHEHU v. THE STATE (2010) LPELR-3041(SC); EZEAMA v. STATE (2014) LPELR-22504(CA); and UDOFIA v. STATE (2018) LPELR-44311(CA).
The point of disharmony in this appeal is not whether the Appellant validly raised the defence of alibi, because he did inform the Police at the earliest opportunity that he travelled to Ilesha at about the time the robbery incident occurred, and supplied particulars as to the people he was with throughout the weekend following the robbery that occurred on 28th December, 2012.
See: UDO v. STATE (2016) LPELR-40721 (SC); EBENEZER v. STATE (2016) LPELR-41637 (CA); and AKPALLALA v. STATE (2018) LPELR-45041 (CA).
There is also no doubt that the Police did investigate the defence of alibi raised by the Appellant, but the issue has to do with whether the alibi so raised was disproved by the Respondent. It is indeed correct to say that the defence of alibi is not a magic wand, which once waved, can absolve an Accused of any crime committed.
It is also true that once the Prosecution can place the Accused at the scene of the crime at the time the crime was committed, then the defence of alibi would have been disproved. The Apex Court in the case of NOMAYO v. STATE (2018) LPELR-44729 (SC) Per RHODES-VIVOUR, J.S.C. (P.23, Para. F), stated the foregoing principle of law succinctly, thus:
A defence of alibi fails when the prosecution is able to show that the accused person was at the scene of crime when the offence was committed. See Egwumi v. State (2013) 13 NWLR (Pt.1372) p.525. Evidence that the appellant was one of the armed robbers that came to the restaurant of PW1 on 3 March 2004 is one way. Identification of the appellant by PW1 was flawless, together with the affirmation of that identification by PW2 and the confessional statement of the appellant makes investigation of alibi no longer necessary.”
See: AYAN v. STATE (2013) LPELR-20932 (SC); HALILU v. STATE (2016) LPELR-40269 (CA); and FRIDAY v. STATE (2014) LPELR-22983 (CA).
In deciding whether or not to accept the defence of alibi raised by the Appellant, the trial Court at page 176, lines 11-38 of the record held thus:
In the instant case the incident is alleged to have taken place between the hours of 2am and 3am on Friday 28/12/12. The alibi of the defendant is that he travelled to Ilesha at 5 am on 28/12/12. With all due respect I do not see how this is a credible alibi because the defendant herein has not explained his whereabouts between 2am and 3am on Friday 28/12/12 and I so hold. More importantly, I believe and accept the credible and cogent testimonies of PWI and PW2 which categorically pinpoints the defendant as being at the crime scene as one of the robbers that invaded, assaulted and robbed the family at gun point on the early hours of between 2 and 3am on 28/12/12 and I so hold. The testimony of DW3 is to be taken with a pinch of salt, he is the alleged father in law of the accused. He testified that he met with the defendant for the first time on 28/12/12 at the introduction of the defendant as his daughters fiance. He could not say when the defendant arrived at his residence in Ilesha, whether in the morning, afternoon or evening. He was so unsure of his testimony when in the box.
The testimony is unhelpful, as it did not relate to the whereabouts of the accused between the hours of 2am and 3am of 28/12/12 the time the robbery took place. There is no evidence before the Court which puts the defendant in a place other than the crime scene and I so hold. Furthermore, effort made at tracking the defendants name on the passenger manifest of travellers from Oshodi Motor Park Lagos to Ilesha proved abortive as his name was not found on the passenger manifest for that day. All of which tends to show that the defendants his testimony that he travelled from Oshodi to Ilesha the operation that took place a couple of hours earlier between 2am and 3 am on 28/12/12 and I so hold.
The implication of the above is that the trial Court had the oral testimony of the Father in law of the Appellant on the one hand and on the other hand, the oral testimony of the Victim of the crime fixing the Appellant at the crime scene at the time of the commission of the crime, actively participating in the commission of the crime.
He chose to believe the evidence of the Victim over that of the Father in law, and gave reasons for doing same. It is beyond doubt that the evaluation of evidence and the ascription of probative value to such evidence are primarily within the purview of the trial Court that had the opportunity of hearing the witness(es) and observing their demeanor and the Appellate Court will not ordinarily interfere with the findings of the trial Court on that evidence unless the findings are shown to be perverse which is not the case here. See (3) First Bank of Nigeria plc Vs Mr Efobi Effion Bam (2010) LPELR (CA); (ii) Charles Kingsley Joe Isong Vs the State (2011) LPELR 9081(CA); (2) Ogunlana Vs The State (1995) 5 NWLR (Pt.395) 266
I see no reason to disturb the findings of the trial Court in that regard. This issue is therefore resolved in favour of the Respondent.
ISSUE TWO:
WHETHER THE IDENTITY OF THE APPELLANT HAS BEEN ESTABLISHED BEYOND REASONABLE DOUBT AS A PERSON WHO PARTICIPATED IN THE ROBBERY. (GROUNDS 3, 4 AND 6)
Learned counsel for the Appellant argued that the conclusion reached by the trial Court that the facts and evidence shows that the Appellant committed the offence of armed robbery was perverse as there exists circumstances which weakens or destroys the said conclusion.
Counsel sought to substantiate the foregoing by submitting that the inordinate delay of 17 months on the part of the PW1 and PW2 before mentioning the name of the Appellant or fixing him at the scene of the crime, even in the face of opportunities to do same at Oke Ado Police Station, Panti Police Station, and SARS Ikeja, raises doubt as to the reliability of such testimony, a doubt which constitutes reasonable doubt against the case of the Respondent, which ought to be resolved in favour of the Appellant.
Learned counsel for the Appellant also argued that the learned trial Judge ought to have found certain portions of the PW1s evidence improbable, such as when she testified that she was shot on her chest and shot at three times and still had the strength to struggle with her attacker.
Counsel identified specific factors which weakens the conclusion of the trial Court as to the guilt of the Appellant thus:
A. No record of the PW1 and PW2 mentioning the name of the Appellant before trial and the undated written statement of PW1 and PW2 at pages 6-9 of the record were not tendered as exhibits at trial and go to no issue;
B. Failure to call the Divisional Police Officer that the PW1 allegedly informed of the identity of the Appellant as a Witness, thus making doubtful that the PW1 informed said DPO;
C. Failure to tender the statements made to the Police by the PW1, PW2, DW3 and DW5 at Ile-epo/Oke-odo Police Station and CID Panti; and
D. Failure to tender as Exhibit, the Petition of the PW1 to the Police upon which the Appellant was charged.
He relied on the following cases:
Sambo v. State (1993) 6 NWLR Pt.300 P.399 at 418; Onah v. State (1985) 3 NWLR (Pt.12) 236; Idemudia v. State (supra) at 394; Abudu v. State (supra); Oyebola v. State (supra) at pages 1187-1188; and State v. Azeez (2008) ALL FWLR Pt.424 P.1423 at 1469.
On the other hand, learned counsel for the Respondent argued that the Respondent led evidence to prove that the Appellant participated in the commission of the crime, by the testimony of PW1 and PW2, who were victims of the crime, and who identified the Appellant at the earliest time by describing him to the DPO, the Police, the DW3 and the Appellants co-workers.
He relied on the case of Okosi v. State (1989) 1 NWLR (Pt.100) 642.
Learned counsel for the Respondents also argued that the determination of the question regarding the proper identification of a party to a crime is one of fact within the purview of the trial Court and once there is visual and positive identification of the Accused at the scene of the crime which is believed by the trial Judge, the Appellate Court should not disturb such a finding.
He relied on the cases ofUkpabi v. State (2004) 11 NWLR (Pt.884) 439; and Osuagwu v. State (2009) 1 NWLR (Pt.1123) at 527; Samuel Attah v. State (2010) 10 NWLR (Pt.1201) 190 SC; and Odu & Anor v. The State (2001) 5 SCNJ 115.
Learned counsel submitted that the identification parade conducted by the Police in this matter was unnecessary as the identity of the Appellant was not in dispute, as the PW1 and PW2 knew him before the robbery and clearly saw him during the operation.
He cited the cases of Ikemson v. The State (1989) NWLR (Pt.110) 455; and Otti v. State (1993) 4 NWLR (Pt.290) 675.
Counsel also submitted that the so-called improbable facts which the Appellants counsel argued ought to create reasonable doubt, are not improbable facts, but facts which were uncontradicted and unchallenged by the Appellant during trial, and that the presence of minor lapses in the evidence of PW1 and PW2, which is otherwise credible and substantial, is not enough to warrant an interference with the findings of the trial Court.
He relied on the following cases:
Samuel Attah v. State; Ebeinwe v. The State (2011) 7 NWLR 402; and Michael Omisade v. State 1976 11 SC 75.
RESOLUTION
Counsel for the Appellant has taken issue with the identification of the Appellant as a participant in the robbery operation that undoubtedly occurred on, 28th December, 2012, principally on the grounds that the PW1 and PW2 did not timeously identify the Appellant as a party to the crime. There is no doubt that the proper identification of the Appellant as one of the persons who participated in the robbery operation the subject matter of this appeal is of utmost importance if justice will be achieved. The Supreme Court espoused the crucial nature of identification of a Defendant to a charge in the case of STATE v. SANI (2018) LPELR-43598 (SC) (P. 17, Paras. B-D) per RHODES-VIVOUR, J.S.C., thus:
A trial judge must be very sure that the accused person standing in the dock is indeed the armed robber, and so must be extra careful when examining evidence of the prosecution and defence especially on the issue of the identity of the accused person. The accused person must be properly identified before a conviction is sustained on appeal. An accused person should always be entitled to the benefit of doubt.”
This Court in the case of IDRIS v. STATE (2014) LPELR-23803 (CA) (P. 37, paras. D-G) Per ALKALI, J.C.A., also stressed the importance of proper identification of the Accused person thus:
“As the Court put it in Ani vs. The State (2009) 16 NWLR part 1168 pages 443 at 460 paragraphs D-E per Tobi JSC. “Identification of an accused person in the commission of a crime is a most serious exercise in the administration of criminal justice as it creates the link between the accused and the offence. Accordingly a Court of law cannot speculate that a complainant might have or must have disclosed the person or persons who committed the offence where there is no evidence to draw such a conclusion”
See: AWO v. STATE (2013) LPELR-22004 (CA); and IBANE v. THE STATE (2012) LPELR-9702(CA).
There is no doubt that a determination of the identity of an Accused person is within the primary jurisdiction of the trial Court and the Court is urged to be careful in reaching a conclusion as to whether the person in the dock is the same person or one of the persons who committed the offence charged. Whatever means of proof the Prosecution has adduced must be carefully scrutinised, to the effect that it is only where the Prosecution has established the identity of the Accused beyond reasonable doubt that the Court may act on it.
See: AYINDE v. STATE (2018) LPELR-44761(SC); AKOKHIA v. STATE (2018) LPELR-44163(CA); and UMOR v. STATE (2018) LPELR-44934(CA).
This Court in the case of OSI v. STATE (2018) LPELR-44778(CA) (Pp. 19-20, Paras. A-A) Per OSEJI, J.C.A., gave an exposition on how the testimony of a witness based on recognition of an Accused ought to be treated thus:
“It is trite that the question whether an accused person is properly identified as a party to the commission of a criminal act is a question of fact to be considered by the trial Judge on the evidence adduced for that purpose. Therefore, where there is a visual and positive identification of the accused at the scene of the crime which is believed by the trial Judge, the Appellate Court should normally not disturb such a finding.
See: NDUKWE VS. THE STATE (2009) 2 – 3 SC (PT. 1) 35; ATTAH VS THE STATE (2010) 3 – 5 SC (PT. 1) PAGE 1. Thus in the case of ADESINA (AKA ACHAJI) VS. THE STATE (2012) 6 SC (PT. III) 114 and OCHIBA VS. THE STATE (2011) 12 SC (PT. IV) 709 the Supreme Court held that in order to ascribe any probative value to the evidence of an eye witness identification of a criminal, the Court in guiding against cases of mistaken identity must meticulously consider the following issues: (1) Circumstances in which the eye witness saw the suspect: was it in difficult condition? (2) The length of the time the witness saw the suspect or defendant at a glance or longer observation. (3) The opportunity of close observation. (4) Previous contact between the two parties. (5) The lighting conditions.”
See: ADAMU v. STATE (2018) LPELR-44941(CA); KWALI v. STATE (2014) LPELR-23797(CA); and OLATUNJI v. STATE (2018) LPELR-44330(CA).
Now, the main ground upon which the Appellants counsel has asked this Court to disregard the testimony of PW1 and PW2 identifying the Appellant as one of the perpetrators of the offence of armed robbery as charged, is that they did not raise the recognition of the Appellant timeously. The Respondent has proffered explanation as to why this Court should not upturn the findings of the trial Court on the ground of the timeliness of the identification of the Appellant by the PW1 and PW2.
The law with regards to this kind of situation is that such identification of the Accused by recognition which is presented in a belated manner, ought to be treated with caution, and may be discarded in the absence of sound explanation as to why the Accused was not identified at the earliest opportunity. That is where an eye witness omits or fails to mention at the earliest opportunity the name of the person he claims he saw committing an offence, a trial Court must be careful in accepting and relying on his evidence given at a later date implicating the accused, unless a satisfactory explanation is given for the failure to mention the name immediately after the commission of the offence.
The Apex Court indeed gave a caveat with regards to failure of an eye witness to timeously raise the identification of an Accused in the case of OKIEMUTE v. STATE (2016) LPELR-40639(SC) (Pp. 52-53, Paras. D-A) Per OKORO, J.S.C. thus:
“It was held by this Court in Bozin V. The State (1985) 2 NWLR (pt. 8) 465 that the importance of the eye witness acting promptly in identifications cannot be over-emphasized. It was stressed that where such witnesses are not prompt to volunteer evidence on the identity of the accused, any such evidence thereafter should be accepted with caution. Also, in COP V. Alao (1959) 10 NLR 39 at 40, it was held that when an eye witness omits to mention at the earliest opportunity the names of persons whom he said he saw committing the offence, a Court must be careful in accepting his evidence given later and implicating the persons charged, unless a satisfactory explanation is given.”
See: HASSAN v. STATE (2017) LPELR-43288(CA); ADEYEMI V. STATE (2010) LPELR-19776(CA); and SULAIMON v. STATE (2018) LPELR-44280(CA).
The crucial question therefore that must be answered at this juncture is whether the Respondents Witnesses identified the Appellant at the earliest opportunity and if the answer is no, whether there was a sound explanation for the failure to so do. A calm look at the facts and evidence of this appeal reveals that while the Police may not have been as thorough and coherent in their investigation to show that the PW1 identified the Appellant at the earliest opportunity, her testimony that she described him to the Police Officers at Okeodo and SARS Ikeja at the earliest opportunity has not been discredited.
Appellants counsel also sought to impugn the reliance on the testimony of the two Prosecution witnesses on the grounds that the testimony was improbable. A look at the testimony in question reveals that is not the case. The PW1 did not testify that she sustained gunshots injuries 3 times, but that she was shot at three times. Whether or not all the shots landed on the intended target is another matter entirely. There was also ample and unchallenged evidence of gunshot wounds at the trial. Furthermore, the perfect opportunity or time wherein the Appellants counsel ought to have challenged this testimony was under cross examination and a look at the records at pages 26 to 28 reveals that the credibility of the Witness was not impugned. The import of this is that Appellants counsel cannot attempt to attack the credibility of the Witnesses at this stage when the facts upon which he is basing his attack were proffered at trial, and left uncontested.
See: ANYASODOR v. STATE (2018) LPELR-43720(SC);
This issue is also resolved in favour of the Respondent.
ISSUE THREE:
WHETHER THE LOWER COURT WAS JUSTIFIED TO HAVE CONVICTED THE APPELLANT FOR THE OFFENCE OF CONSPIRACY TO COMMIT ARMED ROBBERY SOLELY ON THE EYE WITNESS EVIDENCE OF PW1 AND PW2. (GROUND 5)
Learned counsel for the Appellant relying on the Supreme Courts decision in the case of Idemudia v. State submitted that it was wrong for the trial Court to solely rely on the testimony of PW1 and PW2 to convict the Appellant, as the evidence was unreliable because they knew the Appellant before the incident but refused or neglected to mention the Appellants name to the Police at the earliest opportunity but only mentioned his name at trial on 15th May, 2014 and 27th May, 2014 respectively which was about 17 months after the commission of the crime.
He relied on Idemudia v. State (supra) at P.400.
Learned counsel argued that the failure to investigate the call logs of the Appellant was an opportunity lost to determine the location of the Appellant between 28th December, 2012 and 30th December, 2012, and that the opposition of the Respondent to the application of the Appellant compelling MTN Communications Nigeria Ltd to print and produce all the call logs of the Appellants line from 27th December, 2012, to 30th December, 2012, implies that the Respondent is not interested in the justice of the case but only interested in the prosecution of the Appellant.
Counsel submitted that on the whole, this appeal is a proper case where this Court should disturb the findings of the lower Court, because the findings of the lower Court have occasioned miscarriage of justice.
He relied on the cases of Yaki v. State (2008) ALL FWLR Pt.440 P.618; Abudu v. State (supra); and Idemudia v. State (supra).
On the other hand, learned counsel for the Respondent argued that the facts led before the lower Court are conclusive proof beyond reasonable doubt that the Appellant and other persons now at large were the ones who robbed PW1 at her residence.
Learned counsel for the Respondent also argued that the PW1 gave clear, unambiguous and uncontroverted evidence regarding the robbery incident which identified the Appellant as one of the robbers, present at the crime scene at about 2am to 3am, which testimony was corroborated by the evidence of PW2 and PW3.
Counsel submitted that the learned trial Judge could have validly relied on the testimony of the PW1 alone to convict the Appellant, as same is credible and unchallenged; and that the contradictions or inconsistency alleged by the Appellant was not of a sufficient nature to justify an overturn of the trial Courts decision.
He relied on the following cases:
Igbo v. State (1975) 9 NSCC P.415 at 418; Abogede v. State (1996) 5 NWLR (Pt.448) 270 at 2807; Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538 at 552; Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 at 533; Ugwumba v. The State (1993) 5 NWLR (Pt.296) 660 at 674; Ohunyon v. The State (1996) 2 SCNJ 280 AT 288; Grace A. Akpabio & 2 Ors v. The State (1994) 7-8 SCNJ (Pt.111) 429; Gira v. The State (1996) 4 SCNJ 95 at 101; Effiong v. The State (1998) 8 NWLR (Pt.512) 362; and Ebeinwe v. The State (supra).
Counsel also submitted that the burden of proof rests on the prosecution, but that the standard of proof is proof beyond reasonable doubt, not beyond all shadow of doubt, and that the Respondent duly discharged the burden of proving conspiracy to commit armed robbery and armed robbery against the Appellant at trial, by adducing uncontroverted evidence.
He relied on the following cases:
Usman Kaza v. State (2008) 2 NCC 374 at 425 paras N-H; Akalezi v. The State (1993) 2 NWLR (Pt.273) 1 at 13; Adamu v. Akukalia (2005) 11 NWLR (Pt.936) 263 at 279 F-G; Audu v. State (2003) Pt.820 P.516 at 54 paras C-D; Abiodun v. State (2011) LPELR-4987 (CA); and Okere v. State (2001) 2 NWLR (Pt.697) 397 at 415-416 paras H-A.
RESOLUTION
Oral testimony is one of the most popular means of proof of an allegation and is sometimes the best means thereof. Sections 125 and 126 of the Evidence Act clearly stipulates the fact that oral testimony is an acceptable means of establishing disputed facts in a Court of law and the Apex Court in the case of UDO v. STATE (2018) LPELR-43707(SC) (P. 22, Paras. A-B) Per RHODES-VIVOUR, J.S.C., reiterated the importance and acceptable nature of oral testimony of an eye witness thus:
“Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence.”
See: ADETA v. NIG. ARMY (2016) LPELR-40235(CA); UDO v. STATE (2015) LPELR-25767(CA); and OLUWATOYIN v. STATE (2018) LPELR-44441(CA).
It is also correct to argue that the trial Court can validly rely on the testimony of one eye witness to convict an Accused in deserving circumstances. The Apex Court in the case of CHIDOZIE v. C.O.P (2018) LPELR-43602(SC) (Pp. 24-25, Paras. A-B) Per SANUSI, J.S.C., recently restated this settled principle of the law thus:
“My attention has been attracted by the submission of the learned counsel for the appellant when he raised some insinuations or sentiments that the trial Court relied only on the testimony of one witness i.e the PW1, to convict the appellant. With due deference to the learned counsel, once the prosecution was able to discharge its burden of proof of the offence charged, the Court of trial can convict the accused even on evidence of a single witness as in this instant case. Aruna v The State (1990)6 NWLR (pt.155)125; Okosi vs AG Bendel State (1985) 1 NWLR (pt.100) 642; Nwachukwu v The State (1985) 1 NWLR (pt.ll) 218; Ani v The State (2003)11 NWLR (pt.830)142; Afolalu v The State (supra). It is a well settled principle of law, that the prosecution is not bound to call every person that was linked to the offence by physical presence or otherwise to give evidence what he perceived. Once person who can testify to the actual commission of the crime and the other relevant ingredients has done so, it will suffice for the satisfaction of the principle of proof beyond reasonable doubt as stipulated by Section 138 of the Evidence Act. See Obue v State (1976) 2 SC 141; Sadau v State (1968) All NLR 124; The State v John Ogunbanjo & Anor (2001) 12 NWLR (pt.678) 576; Shurumo vs The State (2010) 44 NSCQR 159. As a matter of fact, a single witness who gives cogent eye witness account of the incident, as in this instant case, will be sufficient. See Odili vs State (1977) 4 SC 1; Shurumo v The State (supra).”
See: ILODIGIWE V. THE STATE (2012) LPELR-9342(SC).
The main ground for the attack on reliance of the trial Court on the testimony of PW1 and PW2, which is that the testimonies were unreliable because the Witnesses spent an inordinately long amount of time before mentioning the Appellant as a participant in the robbery operation has been addressed by my resolution of issue two.
For the avoidance of doubt, the Supreme Court in the case of Idemudia v. State (supra), did not state that evidence of Witnesses in cases of recognition must be given within a specific time limit, rather the decision is to the effect that where there is delay, the trial Court must be careful and advise itself as to the possible unreliability of the testimony.
Counsel also took issue with the failure of the Police to properly investigate the call logs of the Appellant and the opposition of the Respondent to the Appellants application for the production of same. While it is advisable for the Police to investigate all possible avenues for establishing the guilt of a suspect, failure to do so in these circumstances do not detract from the efficacy of the eye witness testimony pinning the Appellant to the crime.
I agree with the submissions of Respondents counsel that the standard of proof in criminal matters flowing from the general burden of proof which rests firmly on the prosecution, is proof beyond reasonable doubt. The Constitution presumes the innocence of an Accused person and the prosecution has the duty to prove every ingredient of the offence charged to the very high standard that leaves no room for reasonable doubt in the legal mind of the Court.
See:Section 135 of the Evidence Act 2011; ESENE v. STATE (2017) LPELR-41912(SC); YAURI v. STATE (2016) LPELR-40118(CA); and ADESINA v. FRN (2017) LPELR-43268(CA).
It is also true that proof beyond reasonable doubt is distinct from proof beyond all shadow of doubt. While the former is a matter of law, the latter tends towards sentiments and shifting human perceptions. The Apex Court in the case of SMART v. STATE (2016) LPELR-40827(SC) (P. 27, Paras. B-D) Per RHODES-VIVOUR, J.S.C., clearly stated what constitutes proof beyond reasonable doubt thus:
“In Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) p.170 I explained proof beyond reasonable doubt thus: “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
See:ORODE v. STATE (2018) LPELR-43788(CA); NOMANY v. FRN (2018) LPELR-44546(CA); and SHAHINUL v. FRN(2018) LPELR-44528(CA).
This issue is also resolved in favour of the Respondent.
The Appeal lacks merit and same is dismissed. The judgment of the lower Court in Suit No: 1D/4C/2014, the State of Lagos V Femi Adebowale delivered on 28th day of June, 2016 wherein the Appellant was convicted and sentenced to death for the offences of conspiracy to commit Robbery and Armed Robbery Contrary to Sections 297 and 295 2 (b) of the Criminal Law of Lagos State 2011 is affirmed.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege Of reading in draft the lead judgment of my learned brother JAMILU YAMMAMA TUKUR, just delivered with which 1 agree and adopt as mine. I have nothing more to add.
TOBI EBIOWEI, J.C.A.: I agree.
Appearances:
A.S. Olatunji with him, Uchenna Enweren For Appellant(s)
U.G. Oshoala (Director, Ministry of Justice) with him, Y.E. Sule For Respondent(s)
