FRIDAY AIGBOJE v. THE STATE (2019)

FRIDAY AIGBOJE v. THE STATE

(2019)LCN/13682(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of July, 2019

CA/B/419C/2018

RATIO

CRIMINAL LAW: STANDARD OF PROOF

There is no doubt that for a charge of murder to be established, the prosecution must prove beyond reasonable doubt that the deceased died, his death resulted from the act of the accused whose act was intentional, with the knowledge that it might result in the death or infliction of serious bodily harm on the deceased. See Ibikunle v. State (2007) 1 SCNJ 207. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

SPECULATIONS HAVE NO PLACE IN OUR LEGAL JURISPRUDENCE
It is trite law that speculations have no place in our legal jurisprudence. See Ikenta Best (Nig) Ltd v. Ag. Rivers State (2008) LPELR-1476 (SC). PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

IDENTIFICATION PARADE: WHEN IT SHOULD BE CONDUCTED

An identification parade must be conducted after the witness has described in writing as soon as possible after commission of the crime, the appearance of the suspect he claimed to have seen. There must be a parade that must consist of a substantial number of persons, each of the persons who must not be a suspect must resemble the suspect in age, height and general appearance and not have features that will be visible during the parade that are different from those of the suspect as described by the witness before the parade. The witness is then asked to identify the suspect among these people. Usually, the procedure for identification parade is to shield the suspect from members of the public before the identification parade is conducted and to ensure that no clue is given to the witness in identifying the suspect. See Akpan v. The State (2002) 12 NWLR Pt. 780 Pg. 189. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

HOW IMPROPER IDENTIFICATION CAN BE FATAL TO THE CASE OF THE PROSECUTION

Improper identification can be fatal to the case of the prosecution as it creates doubt in the mind of the Court which, of course, must be resolved in favour of the accused person. See Ikemson v. The State (1989) 3 NWLR Pt. 110 Pg. 455. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

WHEN IDENTIFICATION PARADE WILL BE UNNECESSARY

Identification parade is unnecessary where a witness claims to have seen a person known to him prior to the incident. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

ALIBI: DUTY OF THE POLICE UPON THE PLEA OF ALIBI BY A PERSON

Upon the plea of Alibi by an accused person, the police have the duty to investigate the claim. Failure to investigate a plea of Alibi with the required particulars may prove fatal to the case of the prosecution. See Odu v State (2001) 10 NWLR Pt. 772 Pg. 668.
However, the plea of Alibi cannot avail an Appellant who is placed at the scene of crime by cogent evidence, direct or circumstantial, as this destroys the defence of alibi. See Ochemaje v State (2008) 15 NWLR Pt. 1109 Pg. 57, The State v. Azeez (2008) 14 NWLR Pt. 1108 Pg. 439, Sowemimo v State (2004) 11 NWLR Pt. 885 Pg. 515. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CIRCUMSTANTIAL EVIDENCE: HOW CIRCUMSTANTIAL EVIDENCE SHOULD BE
Generally, circumstantial evidence must be cogent, complete and unequivocal for it to support a conviction in a criminal trial, especially murder. It must be compelling and must lead to the irresistible conclusion that the accused person and no one else is the murderer. The facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. See Orji v. State (2008) 10 NWLR Pt. 1094 31, Oladejo v. State (1987) 3 NWLR Pt. 61 Pg. 419. Several pieces of evidence when considered together can form irresistible circumstantial evidence enough to ground a conviction. Circumstantial evidence are pieces of evidence that constitutes a greater whole. See Oketaolegun v. State (2015) LPELR-24836 (SC); PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

FRIDAY AIGBOJE 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 the High Court of Edo State, delivered by Honourable Justice J.U. Oyomire on 12/4/2018 wherein the learned trial judge convicted and sentenced the Appellant to death by hanging.
The facts that lead to this appeal are as follows:
On 27/10/14, a commercial bus pulled up by the deceased person (Isaac Aigboduwa) and he was accused of ?being among.? An Audi car comprising of some uniformed Police Officers and one person in the uniform of the Nigerian Civil Defence Corps later arrived at the scene. There was an attempt to force the deceased into the boot of a car while he resisted. Subsequently, the deceased was beaten with hard objects and his assailants then left him while they escaped in the commercial bus and the Audi car. The deceased was found in his pool of blood by one Stephen, the younger brother of the deceased, PW1 and PW2 and he was later taken to hospital where he was pronounced dead.

?The Appellant, an officer of the Civil Defence Corps and three other persons were later arrested, charged with

conspiracy with other persons to murder the deceased person. On 14/10/15, the Appellant and three other persons were arraigned on a two-count charge to wit:
COUNT 1
STATEMENT OF OFFENCE
Conspiracy to murder; punishable under Section 324 of the Criminal Code Cap 48, Vol. II, laws of the defunct Bendel State of Nigeria, 1976 as applicable in Edo State.
PARTICULARS OF OFFENCE
UMAREN DADA (M), OHENEME WISDOM (M), IMOISILI EHIARBI and FRIDAY AIGBOJE on or about the 27TH day of October, 2014 at Ikpokpan Street, Off Sapele Road, Benin City in the Benin Judicial Division, did conspire amongst yourselves to commit a felony to wit: murder.
COUNT 2
STATEMENT OF OFFENCE
Murder, punishable under section 319(1) of the Criminal Code Cap 48, Vol. II, laws of the defunct Bendel State of Nigeria, 1976 as applicable in Edo State.
PARTICULARS OF OFFENCE
UMAREN DADA (M), OHENEME WISDOM (M), IMOISILI EHIARBI and FRIDAY AIGBOJE on or about the 27TH day of October, 2014 at Ikpokpan street, off Sapele Road, Benin City in the Benin Judicial Division, did murder one ISAAC AIGBODUWA. (M)
?
In proof of its case, the Prosecution now

Respondent called five witnesses as follows:
1. Tespna Aigboduwa – The younger brother of the deceased (PW1)
2. James OsadolorIserhierhsen ? A person who had an encounter with the deceased before his death (PW2)
3. Erhabor Nosakhare ? A person present at the scene of event (PW3)
4. Oke Oluwafemi ? The Investigating Police Officer at Adesuwa Police Station (PW4)
5. Omole Adedoyin ? The Investigating Police Officer at SCID (PW5)
6. Dr. Uchendu Jude Obiora ? A Pathologist who gave expert opinion on the autopsy performed on the deceased (PW6).

The Appellant testified in his own defence to the charge preferred against him. At the end of the trial, the Appellant was convicted and sentenced on counts 1 and 2.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 25/5/18 and an amended notice of appeal on 15/8/18 which was deemed filed on 2/4/19. Record was transmitted on 15/8/18. The Appellant?s brief was filed on 15/8/18 deemed filed on 2/4/19 and the reply brief was filed on 30/5/19 deemed filed on the same day. The Respondent?s brief was filed on 15/1/19.
?
The

Appellant in the brief settled by Olayiwola Afolabi Esq., Simon EzehEzenwa Esq., P.E. Chukwu (Mrs.), A.I. Tsado (Mrs.), A.U. Osunde Esq., A.D. Yusuf (Mrs.), Uloho Esther (Mrs.), E.C. Abednego Esq., E.D. Oribhabor (Mrs.), Efosa Odiase Esq., M.O. Asuma (Miss), A.O. Osula (Esq.) identified two issues for determination of the appeal to wit:
1. Whether the trial Court was right to have convicted the Appellant for the offences alleged when the prosecution failed to appropriately identified (sic) and linked (sic) Appellant to the offences alleged and having regard to the trial Court (sic) finding of fact in respect of the identification parade
2. Having regards to the failure of the police to properly conduct an identification parade and the finding of fact of the trial Court in respect of same, whether the trial Court was right to have relied on the doctrine of last seen doctrine to convict the Appellant for the alleged offence without even proper evaluation of the defence of the Appellant.
?
In the Respondent?s brief settled by Osayaba Giwa-Osagie Esq., O.B. Oregbemhe Esq., Ekere Nelson Esq., two issues were formulated for the determination of the

appeal to wit:
1. Whether in view of the peculiar circumstances of this case, identification parade of the Appellant was necessary in order to determine the culpability of the Appellant
2. Whether the Trial Court was not right to have convicted and sentenced the Appellant for the offences of conspiracy to murder and of murder based on the doctrine of last seen.

In determination of this appeal, I will recouch all the issues formulated into a sole issue. I am of the view that the complaints of the Appellant can be adequately addressed by the determination of same:
Whether from the evidence adduced by the prosecution, learned the trial judge was right to have convicted the Appellant for the offences of conspiracy and murder.
SOLE ISSUE
Whether from the evidence adduced by the prosecution, the learned trial judge was right to have convicted the Appellant for the offences of conspiracy and murder.
?
Learned Appellant?s Counsel argued that a conviction can only be secured based on proof of sufficient, credible and cogent evidence which satisfies all the essential elements of an offence. Failure of which an accused person is

entitled to be discharged and acquitted. Counsel cited Ifarumoye v. state (2017) All FWLR (Pt. 917) 1551 at 1606, Paras. C-E; Ogunbayo v. State (2002) 15 NWLR (Pt. 789) 76.

Counsel opined that in order to secure the verdict of guilt in a murder case, it must be proved and established that the deceased died, the death of the deceased was caused by the accused and the accused intended to either kill the victim or cause grievous bodily harm to him. Owolabi Kolade v. The State (2017) LPELR-42362 (SC) P. 13, Paras. B-D. Counsel opined that the ingredients run jointly and it is the responsibility of the prosecution to establish these facts to secure the valid conviction of an accused person. The failure of which will lead to the discharge and acquittal of the accused person. Counsel cited Kazeem Oseni v. The State (2017) LPELR 42546 (CA) PP 50-51, Paras. E-A.

Counsel submitted that the Respondent never proved the case of murder against the Appellant and so it was a serious miscarriage of justice for the Appellant to have been convicted by the trial Court.

Counsel argued that PW1 admitted and stated before the Court that he only saw the 1st and 2nd

accused persons jump into the commercial bus as it zoomed off. Counsel argued that PW1 never mentioned that he saw the Appellant at the scene of the crime. Counsel further argued that the evidence of PW1 which tried to link the Appellant to the commission of the crime should be taken with little weight because the Appellant was only shown to PW1 as one of the persons who allegedly attacked and killed his brother. Counsel cited Freeborn Okiemute v. The State (2016) LPELR 40639 (SC).

Counsel questioned how PW1 identified the Appellant at the police station when PW1 stated that he identified the 1st and 2nd accused person at the scene of the offence and not any other person.

Counsel further argued that PW2, an eye witness also stated that he cannot recognize the Appellant even though he watched the commission of the crime. Counsel submitted that PW2 did not identify the Appellant as one of the persons who killed the deceased.

Counsel opined that the evidence of PW3 showed that the Appellant was included in the 3 out of 4 persons shown to him and whom he identified as one of those who committed the offence. Counsel cited Samuel Bozin v. The State

(1985) LPELR-799 (SC) PP 12-13, Paras E-C. Counsel argued that a proper identification is carried out when a witness picks out an accused person from a lineup of persons with similar sex, height, weight and colour without any assistance. Dare Alebiosu v. The State (2016) LPELR-41359 (CA) PG. 26-27, Paras. E-D. Counsel argued that the identification of three out of four persons is not the proper way to carry out an identification parade. Counsel opined that bringing out four suspects from which three persons were picked as having committed an offence is tantamount to pointing the accused persons to the witness Aichenabor v. The State (2013) LPELR-22211 (CA) PP 19-27, Paras. F-D; Ganiyu v. State (2014) LPELR- 23404 (CA) P. 24, Paras. B-C.

Counsel opined that the Appellant?s identification and his subsequent link to the commission of the offence is a sham and thus is a gross miscarriage of justice on the part of the police. Counsel cited Archibong v. State (2004) 1 NWLR Pt. 855 Page 488 @ 509 Para. CR 3.

Counsel submitted that trial Court cannot approbate and reprobate because having held that the Appellant?s identification was a complete

sham, the subsequent finding that the Appellant was part of those that committed the offence cannot stand. Counsel cited Ushae v. C.O.P (2005) 2 NWLR (Pt. 937) Page 510. Counsel opined that the trial Court erred when he held that the Appellant had been properly identified as one of the persons who killed the deceased.

Counsel submitted that the Respondent failed to establish all three ingredients of the offence of murder as there is doubt as to the Appellant?s identity. Counsel further submitted that where an iota of doubt exists in the Respondent?s case, it must be resolved in the Appellant?s favor. Counsel cited Mustapha v. State (2007) 12 NWLR (Pt. 1049) 637 at 659.

Counsel opined that the doctrine of last seen never applied to the case against the Appellant. Counsel cited Owobu v. State (2015) All FWLR (Pt. 762) 1668 @ 1689, Para. D-E.

Counsel further argued that PW2 stated under cross examination that he could not tell who was present at the scene. Counsel submitted that from the evidence of PW2, the doctrine of last seen cannot apply to the Appellant.
?
Counsel further submitted that the evidence of PW3 can also not

be used for the doctrine of last seen in view of the way and manner he identified the Appellant and the other convicted persons at trial.

Counsel submitted that the findings of the Court describing PW3?s identification as a sham, the evidence of PW1 and PW2 had destroyed the use of the doctrine of last seen by the trial Court in convicting the Appellant.

Counsel opined that the evidence of the Appellant showed that he had no interaction with the deceased. Counsel submitted that the Appellant?s statement tendered as exhibit G and his oral evidence showed that his involvement was merely to effect the arrest one Emeka Eze who was later handed over to the police. Counsel opined that the trial judge himself agreed that the only thing the Appellant did was to go with the 1st accused person at trial, Umaren Dada to effect an arrest for which the doctrine of last seen cannot be used as there was no evidence that the Appellant inflicted any injury on the deceased.
?
Counsel opined that the Respondent was unable to fault the Appellant?s defence. Counsel further opined that the trial judge never gave detailed evaluation to the

Appellant?s defence. Counsel opined that it is undoubted that the duty of the trial Court is to assess the totality of the evidence before ascribing probative value to them. Counsel cited Dakat v. Dashe (1997) 2 NWLR (Pt. 531) 46 @ 55 Paras. F-A. Counsel submitted that before deciding what evidence a trial court prefers to another, the two sets of facts must be placed on an imaginary scale and weighed against each other, then the decision as to the preferred evidence must be made and the account of the preference must be given. Counsel opined that the trial Court simply condemned the Appellant because a previous finding exonerating the Appellant had been made. Counsel cited Mogaji & ors v. Odofin & ors (1978) 6 SC 91 @ 93.

Counsel submitted that the trial Court made findings which exonerated the Appellant, coupled with the fact that there was no proper evaluation of the evidential and probative value of the Appellant?s defence, the Appellant should not have been convicted. Counsel further argued that the evidence of PW1 that he was only able to identify the 1st and 2nd accused person at trial which favoured the Appellant was never given

evidential value.

Counsel then urged this Court to set aside the conviction and sentence imposed on the Appellant.

In response, Respondent?s Counsel argued that identification evidence is used to show that the person charged is the same person that was seen at the locus of the crime. Counsel opined that there must be real doubts as to who was seen at the locus of the crime for an identification parade to be required. Counsel cited Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170 at 183-184, Paras. H-A. Counsel submitted that an identification parade is not necessary in all cases. Counsel cited Emmanuel Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663 @ P. 694, Paras. E-F; Eyisi v. State (2000) 15 NWLR (Pt. 697) P. 555, Okosi v. State (1989) 1 NWLR (Pt. 100) P. 642; Alonge v. I.G.P (1959) SCNLR 516; Ikemson v. State (1989) 3 NWLR (Pt. 110) P. 455; Ukorah v. State (1977) 4 SC 167.
?
Counsel argued that PW1 gave testimony as to how he lived in the same area with the Appellant. Counsel argued that this is an indication that PW1 was very familiar with the Appellant and so it was not necessary to have an identification parade for PW1 to identify

him. Counsel cited Adeyemi v. State (2011) 5 NWLR (Pt. 1239) 1 at 31, Paras. B-C.

Counsel submitted that the evidence of PW1 had positively identified the Appellant. Counsel opined that the evidence of PW1 did not suggest that he had any doubt whatsoever about the Appellant?s identity as one of the persons who murdered the deceased.

Counsel further argued that PW2 testified that some of the people that attacked the deceased wore Police uniforms while one was in the uniform of the Civil Defence Corps. Counsel opined that the 1st ? 3rd accused persons at trial were Policemen while the Appellant was a member of the Nigerian Security and Civil Defence Corps (NSCDC).

Counsel further opined that to buttress the evidence of the Respondent?s witnesses, the Appellant himself testified that he went out with the 1st, 2nd and 3rd accused persons at trial to look for the boys that assaulted Umaren Dada, the 1st accused person at trial.

Counsel opined that Umaren Dada, the 1st accused person at trial also named the Appellant as one of the persons he went out with to make an arrest.
?
Counsel argued that there was no need for an

identification parade because the Appellant had by his statement identified himself as one of the persons who went on a frolic to try and arrest people.

Counsel opined that in a murder case, where the deceased was last seen with an accused, the accused has a duty to explain or show the whereabouts of the deceased or how the deceased met his death. Counsel opined further that where there is no explanation, the Court can draw the conclusion that it was the accused that killed the deceased. Counsel further opined that the law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead. Counsel cited Emeka v. State (2001) 14 NWLR (Pt. 734) 666 @ 685 C-D; Umar v. State (2018) LPELR-43719 (SC).
?
Counsel opined that from the combined evidence of PW1 and PW3, the deceased was last seen alive in the company of the occupants of the commercial bus and Audi 80 car who left him dying in the pool of his blood. Counsel argued that the Appellant and the other convicted persons at trial were the occupants of the Audi 80 car that was seen at the crime scene on 27th October,

2014. Counsel further argued that PW3 stated in his evidence that as occupants of the Audi 80 car, the Appellant and other convicted persons beat up the deceased person before he died as they were Police man and one Civil Defence Officer. Counsel opined that the identity of the occupants of the Audi 80 car on the night of 27th October, 2014 is not in issue as the Appellant admitted being an occupant.

Counsel opined that the Appellant has a duty to give an explanation of how the deceased met with his death. Counsel further opined that in the absence of such an explanation and in view of the evidence presented before the trial Court, the Appellant was right to have been convicted and sentenced for the offence of conspiracy to murder and murder. Counsel cited Osuoha v. State (2010) 16 NWLR (Pt. 1219) 364 at 417, Paras. E-F; Igabele v. State (2006) 6 NWLR (Pt. 975) 100 at 137, Paras. D-H.

Counsel submitted that the Appellant never gave any explanation as to how the deceased met his death but rather, pleaded a non-existent alibi without any particulars which would have enabled the police investigate the alleged alibi.

In the Appellant?s reply

brief, Appellant?s Counsel opined that Counsel owes a duty not to mislead the Court. Counsel cited Offodile v. Onejeme (2012) All FWLR (Pt. 608) 946 @ 962; Bille v. State (2016) NWLR (Pt. 1536) 363 @ 390. Counsel submitted that the Court was misled by the Respondent?s Counsel when he stated that PW1 identified the Appellant. This is because it was admitted by PW1 under cross-examination that he could not identify the attackers of the deceased. Counsel opined that it was further admitted by PW1 that he did not know the people who were in the commercial bus where the gun was fired as he was in his room when he heard a gunshot.

Counsel submitted that the learned trial judge already described the Appellant?s identification by PW3 as a sham. Counsel opined that the Respondent never cross appealed against that finding of fact. Counsel opined that the finding of a Court not appealed against remains valid and subsisting and so the appellate Court cannot interfere with such a finding. Counsel cited C.N.I.B v. S.H.I (2016) All FWLR (Pt. 840) 1331 at 1346; Isiaka v. Amosun (2016) All FWLR (Pt. 839) 1040 at 1055.

Counsel opined that the

Appellant?s defence which had dislodged the doctrine of last seen was never taken into consideration. Counsel cited Owobu v. State (2015) All FWLR (Pt. 762) 1668 @ 1690-1691.

Counsel submitted that a Court must consider all relevant evidence in arriving at its judgment. Counsel cited Lucky v. State (2016) LPELR-40541 (SC); Dwell Space Ltd v. wotth Nigeria Ltd & anor (2018) LPELR-44111 (CA). Counsel further opined that the Appellant?s defence was never taken into consideration in the submissions of the Respondent?s Counsel.

Counsel then urged this Court to discredit the Respondent?s brief as lacking merit.

OPINION
There is no doubt that for a charge of murder to be established, the prosecution must prove beyond reasonable doubt that the deceased died, his death resulted from the act of the accused whose act was intentional, with the knowledge that it might result in the death or infliction of serious bodily harm on the deceased. See Ibikunle v. State (2007) 1 SCNJ 207.
?
It is an established fact that the deceased died. More so, on page 91 of the record, the evidence of PW6- the Medical Doctor expert who

conducted the autopsy, showed that the cause of his death resulted from ?multiple crushed and blunt injuries? which arose from the use of blunt object or weapons on the head region of the body of the deceased. The contentious fact in this appeal has to do with the identity of the assailants and the manner in which it was established for the purpose of proving whether or not the Appellant took part in the murder of the deceased.
?
The Appellant?s Counsel argued that the identity of the Appellant was never established by any of the prosecution witnesses. The Appellant?s Counsel emphatically raised an issue from the evidence of PW1 in his supposed identification of the Appellant. The evidence of PW1 on page 67 and 68 of the record showed that he knew the Appellant before hand because they lived in the same area. Also, PW1 identified the Appellant at State Criminal Investigation Department (SCID). Furthermore, PW1 categorically stated in his evidence on oath that he found the 1st and 2nd accused persons now convicted, jumping into the commercial bus as it zoomed off. In his testimony on page 68 of the record, PW1 stated as follows:<br< p=””

</br<

My younger brother-Stephen knocked at my door, he told me that a group of policemen were fighting Isaac outside. I went out with Stephen to find out what was amis. We noticed a commercial bus zooming out of the scene while an Audi car also drove away facing the opposite direction. I saw the 1st and 2nd applicant jumping into the commercial bus as it was zooming off. There were NEPA lights on at the time as all the houses in the street had their outside security lights on. This aided my identification of the 1st and 2nd applicant

On page 198 and 199 of the record, the learned trial judge held as follows:
?There is undisputed evidence that the 1st, 2nd and 4th Accused Person live in the same street with the P.W.1 and his deceased brother. The P.W.1 positively identified the 1st and 2nd Accused in his statement to the Police and evidence at this trial. Infact, when he saw the 1st Accused Person at Adesuwa Police Station, the morning of the gruelsome (sic) murder, he held the 1st Accused Person and called the attention of the Divisional Police Officer and others to the 1st Accused Person who was arrested

promptly. The evidence of the P.W.1 is that as he came out of his house upon receipt of the news that his brother was being beaten by armed Policemen he saw the 1st and 2nd Accused Person jumping inside a bus that took off from the scene. Learned Defence Counsel for the 1st Accused Person goofed when he stated in his written address that there was no light at the scene. The evidence on record is that the area was well lit at the time as all the houses in the vicinity of the scene of crime had their security lights on. The fact that the area was well lit and the P.W.1 had known the 1st, 2nd and 4th Accused Person prior to this event rendered the evidence of identification by the P.W.1 to be well founded

With due respect to the learned trial judge, I cannot agree with the premise and conclusion drawn as his findings were within the realm of speculation. It is trite law that speculations have no place in our legal jurisprudence. See Ikenta Best (Nig) Ltd v. Ag. Rivers State (2008) LPELR-1476 (SC). PW1 never stated in his evidence that he saw the Appellant at any point in time. He only stated that he saw the 1st and the 2nd accused at trial,

run into the commercial bus. If this is so, how then was he able to identify the Appellant at SCID? I agree with the Appellant?s Counsel that PW1 never stated that he saw the Appellant at the scene of the crime. The argument of the Respondent?s Counsel that PW1 identified the Appellant because they live in the same vicinity cannot hold water. If this were to be so, it would mean that PW1 simply identified the Appellant because they lived in the same area. Thus, as a result of the fact that PW1 did not see the Appellant at the locus of the crime, the subsequent identification of the Appellant by PW1 at State Criminal Investigation Department (SCID) cannot be said to have been properly founded.
?
In considering whether other evidence exists to ground the Appellant?s conviction, PW3 stated in his evidence on oath that he saw some group of officers attack the deceased. At the State Criminal Investigation Department (SCID), PW3 identified the Appellant and some other convicted persons. However, the identification of the Appellant by PW3 was done in a wrong manner. To this extent, I agree with the trial judge when His Lordship held as

follows:
The Police ought to have placed each of the Accused Persons among a group of persons of the same sex, size, complexion and height and ask the P.W.3 to pick out the person he saw that evening since he had not known any of the offenders prior to that night. The P.W.3 was confronted by the offenders for a very short time and in which time and circumstances, he could not have had full opportunity of observing the features of each of the Accused Persons. The end result is that I hold that he identification of the 1st, 3rd and 4th Accused Persons by P.W.3 is a sham. His evidence identifying the 1st, 3rd and 4th Accused Persons as the culprits is of a very poor quality
?
It should be noted that over time, there have been guidelines which have received judicial approval by the Supreme Court for the proper procedure for identification parade. An identification parade must be conducted after the witness has described in writing as soon as possible after commission of the crime, the appearance of the suspect he claimed to have seen. There must be a parade that must consist of a substantial number of persons, each of the

persons who must not be a suspect must resemble the suspect in age, height and general appearance and not have features that will be visible during the parade that are different from those of the suspect as described by the witness before the parade. The witness is then asked to identify the suspect among these people. Usually, the procedure for identification parade is to shield the suspect from members of the public before the identification parade is conducted and to ensure that no clue is given to the witness in identifying the suspect. See Akpan v. The State (2002) 12 NWLR Pt. 780 Pg. 189. Improper identification can be fatal to the case of the prosecution as it creates doubt in the mind of the Court which, of course, must be resolved in favour of the accused person. See Ikemson v. The State (1989) 3 NWLR Pt. 110 Pg. 455. Identification parade is unnecessary where a witness claims to have seen a person known to him prior to the incident. There is a difference between ?I have known him before and I saw him? and ?I saw one of them, I can recognize him if I see him again.? The former is a case of recognition which is distinct from

identification and it does not require an identification parade. The only evidence of identification was given by PW3 who stated in his examination in chief and cross examination that he had identified the Appellant among other suspects at the State Criminal Investigation Department (SCID). None of the Investigating Police Officers (IPO?s)- neither PW4 and PW5 said anything about conducting an identification parade or stated on oath that in fact, PW3 at any point in time identified the Appellant. Having stated this, the evidence on oath of PW3 showed that he saw what transpired at the scene of the crime. PW3 said he was in the toilet when he peeped through the hole in the wall to see some boys beating up somebody with sticks, stones and the butt of a gun. The fact and circumstances of where he was at the time doesn?t make his evidence less credible. This is because his evidence corroborates that of PW2, another eye witness.
?
Now, the evidence of PW2 also did not establish the Appellant?s identity because he stated that he could not recognize any of the attackers. However, PW2 was an eye witness and he testified to the presence of an Audi

car at the scene of the crime. PW2 stated that some minutes after exchanging pleasantries with the deceased, a commercial bus filled with some group of boys pulled up at the scene of the crime and the deceased was accused of ?being among? by a person who came out from the bus and a gun was pointed at the deceased. Subsequently, an Audi car with some uniformed policemen and one person dressed in the Nigerian Civil Defence Corp uniform arrived at the scene of crime and ordered that the deceased be put in the boot of the car.

Similarly, PW1 testified that he saw an Audi car driven away from the scene of the incident.

It should be borne in mind that because PW1, PW2 and PW3 failed to identify the Appellant as being at the scene of the crime doesn?t mean that the evidence given by them should automatically be discredited. It is crucial to note that PW2 and PW3 were eye witnesses who both saw what transpired on the night of the murder of the deceased. The question of identification of the Appellant differs materially from that of their status as credible witnesses of the other events they saw.
?
The Appellant?s statement marked

as exhibit G showed that he was from the Nigerian Civil Defence Corps. Also, that on the night the deceased person died, the Appellant and some others were out in an Audi car looking for the persons that injured Umaren Dada, the 1st accused person at trial. The Appellant also stated this fact in his evidence on oath at page 100 of the record as follows:
I am a staff of National Defence and Security Corps? On 27/10/14, I was in my place of work at 1st Ugbor, G.R.A. B/C when I received a phone call from the 1st applicant (sic) that he and the 2nd applicant (sic) was at Ikpopen Street, off 2nd E.C B/C. he invited me to join him. When I got there (sic) I saw injuries all over the body of the 1st applicant (sic). I asked him how he came by the injuries and if he had incidented the case. He explained to me how he got the injuries and confirmed that he had incidented the case. He told me further that he knows one of the boys he identified as Omoregbe. I advised him to take the matter easy since he had incidented it as the hoodlums can be arrested since he know (sic) one of them. He asked us to escort him to the residence of Omoregbe so that

he can make a formal report to the father of Omoregbe. He promised to let us know whenever the son is seen, we then left. At about 7.pm same day (sic), I was at home when the 1st applicant (sic) called to invite me to meet him in front of police area command. I did and met the 1st applicant (sic) and 2nd applicant (sic) including the 3rd applicant (sic) that I was meeting for the 1st time that evening. The 1st applicant (sic) told me that he got an information that the boys that foght (sic) him that early morning were in a joint somewhere by Marioghonoba Street off 2nd E.C. Road. B/C. he pleaded with us to go with him for the arrest of the hoodlums. We went to the place in an Audi car when we get there, the boys saw us. We were able to apprehend one of them called Emeka Eze. We took him to Adesuwa police Div (sic) in the Audi car and handed him to the policeman in duty. Thereafter, we left for our various homes
?
It is uncontroverted that the evidence given by the Appellant revealed that there was an Audi car which was used by the Appellant and other convicted persons on the night the deceased person died. Now, the question is, was the Audi

car the Appellant used in effecting the arrest of the person that injured Umaren Dada, the 1st accused at trial on the night the deceased person died the same car that PW2 saw at the scene of the crime and PW1 saw as it drove off? It is my humble finding that it is. This is because when compared against the backdrop of other established facts, there is compelling evidence that substantiates the fact that the Appellant was present at the scene of the crime.

Now, it is clear that the Appellant raised the defence of alibi to the effect that he was elsewhere with the other convicted persons while they apprehended one Emeka Eze. Also, in his statement marked exhibit G, the Appellant said after apprehending and taking one of the persons that injured Umaren Dada, the 1st accused at trial to Adesuwa Police Station, he later went to his house where he was with his wife and son when he heard the gun shot. The word ?Alibi? is derived from Latin which means ?elsewhere?. The defence of Alibi in simple terms entails an accused person stating that as at the time an alleged crime was committed, he was physically present in another location which

would have made it physically impossible for him to have committed the offence at the scene of crime. The defence is not just pleaded without details, particulars of the location where the Accused person claimed to have been at the time of the alleged commission of the crime, the exact time and possible witnesses who can confirm the story must be adequately provided at the earliest possible time. See Eke v. State (2011) 3 NWLR Pt. 1235 Pg. 589.
Upon the plea of Alibi by an accused person, the police have the duty to investigate the claim. Failure to investigate a plea of Alibi with the required particulars may prove fatal to the case of the prosecution. See Odu v State (2001) 10 NWLR Pt. 772 Pg. 668.
However, the plea of Alibi cannot avail an Appellant who is placed at the scene of crime by cogent evidence, direct or circumstantial, as this destroys the defence of alibi. See Ochemaje v State (2008) 15 NWLR Pt. 1109 Pg. 57, The State v. Azeez (2008) 14 NWLR Pt. 1108 Pg. 439, Sowemimo v State (2004) 11 NWLR Pt. 885 Pg. 515.
?
The cross-examination of PW5-the Investigating Police Officer (IPO) at SCID revealed that his attempt at investigating the

Appellant?s alibi was thwarted because he never met the Appellant?s wife at their residence. The Appellant?s defence of alibi was weakened by the location Emeka Eze was arrested and the residential addresses of PW2 and PW3, the eye witnesses and where they were when the incident occurred.

In his evidence on oath, PW2 stated thus on Pages 70 and 71 of the Record:
?my names are James Osadolor Iserhierhsen. I live at 23 E.C. Road, B/C. I am an artist. I know one Isaac Aigboduwa. He is now late, I also know the PW1. At about 10pm on 27/10/14, I was sitting at the back of my residence when I saw late Isaac Aigboduwa? An Audi car loaded with policemen arrived the scene (Underlining mine)

PW3 also stated thus in his evidence on oath on pages 73 and 74 of the record:
?my names are Erhabor Nosakhare. I live at 23 2nd E.C. Road, B/C?On 27/10/14, I returned home from work at about 10pm. When I got home, I met the PW2 and I later went to the toilet (Underlining mine)

In his evidence on oath, the Appellant stated thus on page 100 of the record:
At about

7.pm same day (sic), I was at home when the 1st applicant (sic) called to invite me to meet him in front of police area command. I did and met the 1st applicant (sic) and 2nd applicant (sic) including the 3rd applicant (sic) that I was meeting for the 1st time that evening. The 1st applicant (sic) told me that he got an information that the boys that foght (sic) him that early morning were in a joint somewhere by Marioghonoba Street off 2nd E.C. Road. B/C. he pleaded with us to go with him for the arrest of the hoodlums. We went to the place in an Audi car when we get there, the boys saw us. We were able to apprehend one of them called Emeka Eze. We took him to Adesuwa police Div (sic) in the Audi car and handed him to the policeman in duty. Thereafter, we left for our various homes (Underlining mine)
?
It is clear as crystal that the Appellant and other accused persons at trial made several trips in the Audi car into 2nd East Circular Road, Benin City (2nd EC Road B/C) to apprehend the assailants of Umaren Dada. The strong inference to draw from these set of facts is that the Appellant was present at the scene of the crime. Hence, his

defence of alibi cannot avail him. See Ochemaje v State (supra). This is because the Appellant?s evidence on oath showed that on the day the deceased person died, the Appellant and the other convicted persons were at ?2nd E.C. Road, B/C.? This is a crucial point to note particularly because PW2 and PW3 who were eye witnesses resided around that area. In fact, PW2 exchanged pleasantries with the deceased shortly before his death. The fact that the Respondent admitted that he was at the same street collapsed his alibi.
?
To this extent, I believe that the Audi car that was used by the Appellant and the other convicted persons in effecting the arrest of Emeka Eze is the same Audi car that was seen by PW1 and PW2 on the night of the deceased?s death. This is so because the Appellant happened to be at the same street the deceased was assaulted in. In addition to that fact, it was on the same night and an Audi car was used. This constitutes in humble view conclusive circumstantial evidence. Generally, circumstantial evidence must be cogent, complete and unequivocal for it to support a conviction in a criminal trial, especially murder. It

must be compelling and must lead to the irresistible conclusion that the accused person and no one else is the murderer. The facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. See Orji v. State (2008) 10 NWLR Pt. 1094 31, Oladejo v. State (1987) 3 NWLR Pt. 61 Pg. 419. Several pieces of evidence when considered together can form irresistible circumstantial evidence enough to ground a conviction. Circumstantial evidence are pieces of evidence that constitutes a greater whole. See Oketaolegun v. State (2015) LPELR-24836 (SC); Omoregie v. State (2017) LPELR-42466. To this extent, the circumstantial evidence is convincing to show that the Appellant was at the scene of the crime and was among those who assaulted the deceased.
?
To this extent, I agree with the Learned Respondent?s Counsel that the evidence given by the Appellant corroborates that of PW2 to the effect that one of the occupants of the Audi car was a person dressed in the uniform of the Nigerian Defence Corps. More so, I agree with the reasoning of the learned trial judge when His Lordship held

thus on page 199 and 200 of the record:
The P.W.2 in his testimony claimed that he could not identify any of the Accused Persons by face. He, however, said that some of the people that set upon the deceased wore Police uniforms while one was in the uniform of the Civil Defence Corps. The 1st ? 3rd Accused Persons are Policemen while the 4th Accused Person is a staff of the Civil Defence Corps. What is more, the 4th Accused Person has himself testified that he went out with the 1st, 2nd and 3rd Accused Person to look for boys that allegedly assaulted P.W.1
?
Thus, in the circumstances of this case, when the Appellant and the other convicted persons were ostensibly going about looking for the culprits responsible for inflicting injury on the head of Umaren Dada-the 1st accused at trial, for quite a period of time, it is irresistible to conclude that the offence was also committed. The fact that the Appellant stated where he was at a particular time does not rule out the fact that he did not come to the scene of crime or participate in beating the deceased to death. The two incidents or outings which were embarked upon

by the Appellant and the other convicted persons in furtherance of their intention to punish those who assaulted Umaren Dada were not mutually exclusive.

Appellant?s Counsel also raised the issue of the inapplicability of the doctrine of last seen. The doctrine connotes that an accused person who last saw the deceased person alive has a duty to give an explanation of how the deceased met his death. Upon failure to give an explanation, the Court may infer in the face of overwhelming circumstantial evidence that the accused person murdered the deceased. This is a rare instance where an accused person would be deprived of his presumed innocence, and until he is able to dispel the heavy burden of proving and explaining what led to the death of the deceased who was last seen in his company, his guilt will be presumed. It must be noted that the doctrine has no special statutory foundation. An examination of the various substantive laws on criminal proceedings which include the Evidence Act, the Criminal Codes, Criminal Procedure Codes & Acts of the various States and the 1999 Constitution, reveal that there is no direct statutory provision which

founds the doctrine. The closest one gets is Section 167 of the Evidence Act 2011 which provides as follows:
?167.The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case…?
The doctrine is therefore a development of case law which is a core part of our legal jurisprudence. The doctrine of last seen is based on circumstantial evidence which is one of the tools by which Courts attempt to attain justice in murder cases where there are no eye-witnesses and where circumstantial evidence is the only available evidence connecting the Accused person to the crime.
To have a proper understanding of the doctrine of last seen, it is pertinent to consider a few decisions of the Supreme Court on the doctrine.
In Archibong v The State (2006) 14 NWLR Pt.1000 Pg. 349 the Appellant was convicted for murder. The case of the prosecution was that the deceased and the Appellant went to a hotel for drinks after which they checked into a room. The waiter came

over to the room and requested for money but the Appellant asked him to come back. About two hours later, the waiter knocked on the door of the room but there was no response. He opened the door and found that the Appellant was no longer in the room but the deceased lay naked and motionless on the floor with foam around her mouth and nose. The Supreme Court applied the doctrine of last seen and convicted the Appellant. Ogbuagu JSC said as follows:
In view of the said doctrine, it is settled that it is the duty of the accused person to give an explanation as to how the deceased met his or her death. In the absence of any explanation by the Appellant as to how the deceased met her death, surely and certainly, the trial Court was perfectly justified in drawing the inference that the Appellant killed the deceased.?
In Ariche v The State (1993) 6 NWLR Pt. 302Pg. 752 the Appellant was convicted for the offence of murder. The prosecution alleged that the Appellant gave the deceased a ride in his car and that since then the deceased had not been seen. The Appellant denied the charge and claimed that along the way there was an accident and

the car plunged into a river. He claimed that while the deceased died in the accident, he was rescued by fishermen. The divers who later combed the river could find neither the car nor the body of the deceased. The Supreme Court upheld the conviction.
Also, the doctrine of last seen was applied in the case of Jua v. State (2010) 4 NWLR Pt. 1184 Pg. 217. The gist of the case is that the Appellant was suspected to have stolen a motor cycle. Police Constable Rotimi Jeremiah took the Appellant to Ipee supposedly to produce the particulars of the motor cycle. That was the last time Rotimi Jeremiah was seen alive. In the course of investigation, the Appellant made both oral and written confession and statements that he, together with the other accused persons, killed the deceased. The Appellant was arrested. He led the police to the scene of crime. The clothes last worn by the deceased, four teeth and some strands were recovered at the scene. The Appellant attempted to escape but his efforts were unsuccessful. He was convicted and sentenced to death. His appeals to the Court of Appeal and the Supreme Court failed.
?The learned trial judge relied on the case

of Igabele v. State (2006) LPELR-1441 (SC) to justify the conviction of the Appellant on the doctrine of last seen. In that case, the Appellant and the deceased person were respectively employed as a driver and conductor for the commercial vehicle of the third prosecution witness in that case. The last time the deceased was seen was when he went out together with the Appellant as they often did on a daily basis. The corpse of the deceased was later found in a riverbank with his tongue and genitals removed. The Appellant?s defence that the deceased disembarked along the way did not avail him as he did not state the exact place the deceased person disembarked. The Supreme Court then upheld the Appellant?s conviction.
Also, in the case of Haruna v. Ag. Federation (2012) LPELR-7821 (SC) relied on by the learned trial judge. The Appellant in that case was convicted and sentenced to death for the death of the deceased who he was attached to as a security guard. The Appellant was the only person in the compound on the day the deceased person was found dead. The Supreme Court also upheld his conviction and sentence.
?It is my view that there is a

common theme in these authorities herein above cited. The Appellants were not just seen in company of the deceased persons, they were seen at times when it would only be reasonable for the Appellants to be called to account for the whereabouts of the deceased persons. I cannot agree with the learned trial judge when His Lordship held as follows:
In the instant case, the P.W.1 had positively identified and placed the 1st and 2nd Accused person at the material time the deceased was fatally assaulted. The P.W.2 and P.W.3 have also in some manner lend weight to the evidence of the P.W.1. the Accused Persons in their statements to the Police had agreed that they went on a revenge mission that night trying to trace the boys who were alleged to have assaulted the 1st Accused Person. It is in evidence that after Emeka Eze had been taken in the boot of the Audi car to Adesuwa Police Station, the ?avengers? went out a 2nd time on their mission in the same Audi car. This car was seen by the P.W.2 and P.W.3 at the scene of crime with uniformed Police men and a civil defence man in it. These men are the Accused Persons and Cpl. Chuks now at

large. It was necessary for the Accused Persons to explain how the deceased who was last seen in their company met his untimely death. The doctrine of last seen is one of the occasions in our criminal jurisprudence when the Accused Person is not expected to remain quiet. He is expected to explain the circumstances of the death of the person he was last seen with. I am fortified in the above view by the case of Okoko & Anor v. State (1964) 1 All NLR 423. Instead of giving an explanation to the Court, all that the Accused Persons did was a complete denial circumstances. I agree with the Learned Prosecuting Counsel that the doctrine of ?last seen? applies to the facts of this case
?I agree with the Appellant?s Counsel that the last seen doctrine is inapplicable in this case. This is because the evidence is equivocal for the purpose of applying the doctrine. This was not a situation in which the deceased was taken away by the assailants and his body later found dead, but someone who was attacked, beaten and left for dead while his attackers fled the scene of the crime. However, irrespective of the inapplicability of the last

seen doctrine to the case at hand, other corroborating pieces of evidence exist to ground the Appellant?s conviction.
There is no doubt that an Appellate Court would interfere where a trial Court failed to properly evaluate the evidence before it. However, it should be noted that the Appellate Court is not to determine whether the reasons stated by the trial Court are correct but rather, whether considering the whole circumstances of the case, the judgment itself was just in fact and law.

I am of the view, that having looked at the pieces of circumstantial evidence linking the Appellant to the commission of the crime, including his concession that he was indeed one of the law enforcement officers going about town on the day of the incident to look for the person that assaulted one of the accused person at trial who was a policeman. The fact that he was a member of the Civil Defence Corps when an eye witness stated that one of those who assaulted the deceased wore the Corps uniform and the failure to have a strong alibi which could put him exclusively out of the location of the scene of crime are sufficient when put together to form compelling

evidence to ground the conviction of the Appellant. It is very sad indeed when law enforcement agents like Police Officers and Officers of the Civil Defence Corps. who are sworn to protect and serve the public would resort to extra judicial killings of citizens because they were insulted or assaulted. In recent times, this phenomenon has increased whereby persons in authority who are supposed to provide security and succor turn around to victimize the defenceless citizenry. This gross abuse of power must be decisively discouraged.

I agree with the conclusion of the learned trial judge that indeed, the Appellant conspired with others by going around Benin town with the intention of catching and punishing the boys who allegedly assaulted a Police Officer and thereafter committed the substantive offence of murder by beating the deceased to death.

Having resolved the issue against the Appellant, I have no reason not to affirm the judgment of the trial Court. The judgment and order of conviction for conspiracy and murder and the death sentence imposed by Hon. Justice J.U. Oyomire delivered on 12/4/18 in Charge NO. 3/CD/92C/2015 is hereby affirmed.<br< p=””

</br<

Appeal Dismissed.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA
I entirely agree with his Lordship’s reasoning and conclusion.

The evidence at the lower Court weighs heavily against the appellant. I find the conclusion of the learned trial Judge unassailable.
I also resolve the sole issue isolated for determination in the lead judgment against the appellant.

This appeal lacks merit, It is accordingly dismissed while the judgment of the learned trial judge delivered on 12/4/18 in Charge No. B/CD/92C/2015 is affirmed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I was obliged with the draft of the judgment of my learned brother, Helen Moronkeji Ogunwumiju, JCA, just delivered.

I agree with the reasoning and conclusion of my learned brother that the criminal allegations levelled against the appellant were proved beyond reasonable doubt. The trial Court was amply justified, having regard to the facts and circumstances of the case, to have found the appellant guilty and to have

convicted and sentenced him, accordingly.
For the very articulate and elaborate reasons given in the leading judgment, I also dismiss the appeal and affirm the decision of the trial Court.

Appearances:

E.O. Afolabi, Esq. with him, P.C. Ogieban, Esq., J.K. Okonmah, Esq., Tsado A.I. (Mrs.), P.C. Ogiegban, Esq., E.C. Abenego and Mrs. M.O. OgbeideFor Appellant(s)

N.O. Edowande, Esq. holding the brief of Osayaba Giwa-Osagie, Esq.For Respondent(s)

Appearances

E.O. Afolabi, Esq. with him, P.C. Ogieban, Esq., J.K. Okonmah, Esq., Tsado A.I. (Mrs.), P.C. Ogiegban, Esq., E.C. Abenego and Mrs. M.O. OgbeideFor Appellant

AND

N.O. Edowande, Esq. holding the brief of Osayaba Giwa-Osagie, Esq.For Respondent