ISAH ABDULKADIR v. THE STATE
(2019)LCN/12575(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/S/154C/2017
RATIO
IDENTIFICATION PARADE: REASON FOR IDENTIFICATION PARADE
“These are the two reasons for which an identification parade may be necessary. See ADISA V. STATE (1991) 1 NWLR (Part 168) Page 490 at 505. The identification evidence before the lower Court was given by PW2 an 11year Old girl, whose unsworn evidence on how she identified the Appellant at the State CID was not corroborated by some other material evidence as required by Section 209 of the Evidence Act (as amended). PW1, 2, 3 and 4 did not corroborate it. The law is that an identification parade must be properly conducted. In ALEBIOSU V. THE STATE (2016) LPELR 41359 (CA) Page 26 Paragraphs E-D it was held that:- The proper and acceptable method is to place the suspect with sufficient number of other persons of similar sex, height, weight and colour as the suspect, and then have the identifying witness pick out the accused person from among them without any prodding by any person.” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES:
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
ISAH ABDULKADIR – Appellant(s)
AND
THE STATE – Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the Judgment of Sokoto High Court delivered by Justice M. S. Sifawa on 11th May, 2017. Pursuant to leave of Court granted in accordance with Section 185(b) of the Criminal Procedure Code, the Appellant was arraigned and charged with the offence of Armed Robbery punishable under Section 298 (c) of the Penal Code Law. The Appellant pleaded not guilty to the one head count of the charge. The prosecution in proof of its case called four witnesses and closed its case. The defence opened their case and the Appellant testified for his defence; he called no additional witnesses. The prosecution and the defence filed and adopted their respective written addresses.
The lower Court delivered its Judgment on 11th May, 2017 convicted and sentenced the Appellant to 10 years imprisonment with payment of fine of N50,000.00 (Fifty Thousand Naira) as shown at Pages 57-81 of the Records. Dissatisfied, the Appellant filed the Notice of Appeal on 18th July, 2017. This Court granted leave for extension of time to Appeal on 27th March, 2018 and to compile and transmit the Records. The Record of Appeal was deemed compiled and transmitted on 27th March, 2018. The Appellant’s Brief of argument was filed on 10th April, 2018 deemed served on the Respondent on 11th April, 2018. The Respondent’s Brief was filed on 26th September, 2018.
The Appellant formulated two issues for determination which the Respondent also adopted:-
1) Whether the quality of identification parade evidence of the Appellant given by PW1 and PW2 is good and reliable enough to have sustained the conviction of the Appellant. (Distilled from ground 1).
2) Whether the prosecution proved the charge against the Appellant beyond reasonable doubt. (Distilled from ground 2).
Arguing the first issue, learned Plaintiff’s Counsel submitted that for the prosecution to secure a conviction to a charge of Armed Robbery under Section 298 of the Penal Code; the following ingredients must be proved beyond reasonable doubt:-
a) That there was a robbery or series of robberies.
b) That each of the robbery was an armed robbery.
c) That the accused was one of those who participated in the robbery.
Counsel referred to EKE V. THE STATE (2011) LPELR 1133 (SC) Page 15 Paragraphs E-F. According to Counsel, four witnesses testified for the prosecution and the Appellant testified for himself. He further submitted that from the evidence of the prosecution witnesses, the following facts are not in doubt:-
a) That the alleged robbery took place on 25th March, 2016 at night and there was no electricity resulting to darkness.
b) That the Appellant was arrested on 1st June, 2016 at his place of work.
c) The Appellant was not arrested at the scene of crime.
d) That the Appellant knew both PW1 and PW2 before the alleged robbery incident.
e) That some of the robbers were masked while others painted their face in black color.
f) That the house of the Appellant was not searched by the police.
g) That no weapon, cash or valuables were recovered from the Appellant
h) That other suspects named by PW1 were arrested and later released from prison custody after about six months.
i) That PW1 gave no evidence in Court of the features with which he identified the Appellant on the night of the incident apart from saying he knows him before.
j) That PW2 did not give evidence in Court of the features with which she recognized the Appellant during the identification parade.
k) That the statements made by PW1 and PW2 at the earliest opportunity at Unguwar Rogo Police station (if any) were not included in the proof of evidence.
l) That PW4 gave no evidence of how the identification parade was conducted.
Counsel submitted that the central issue is whether the prosecution correctly identified the Appellant as one of the robbers who robbed PW1 on the day of the robbery or not. He cited DARE ALEBIOSU V. THE STATE (2016) LPELR CA Pages 19-20 and submitted that in the instant case the Appellant was not arrested at the scene of the robbery or immediately after the act; nor did he admit committing the crime. That these are the only situations when identification parade will not be necessary and he relied on ADISA V. STATE (1991) 1 NWLR (Part 168) Page 490 at 505. That the identification parade evidence was given by PW2 a 10 year old girl whose unsworn evidence on how she identified the Appellant at the State CID was not corroborated as required by Section 209 of the Evidence Act. That PW3s evidence did not corroborate it. He said that even PW4 the IPO did not give any account of how the identification of the Appellant was done at the State CID. That even PW2 was able to identify the Appellant because she knew him before the identification parade was conducted. Learned counsel submitted further that PW2 did not give the details of how the identification parade was done.
He referred to ALEBIOSU V THE STATE (Supra) Pages 26-27 and submitted that the lower Court was in error when it concluded that the identification parade was not properly conducted. According to Counsel, PW1 said that through the aid of torch light flashed by the robbers he recognized the Appellant as he knew him before the incident. That he did not describe to the police in his prejudicial statement those features about the Appellant which enabled him to identify him on the night of the incident; that he merely told the lower Court that he knew the Appellant as he used to go to his shop to buy provisions. That PW1s identification of the Appellant was nothing more than dock identification because as counsel submitted, PW1 said under cross examination while looking at the Appellant that he was tall, black and slim while there was no previous record of such description of the Appellant by PW1.
According to Counsel, PW2 under cross examination described the Appellant as fair in complexion while he is not fair in complexion. She also said under cross examination that the Appellant was not wearing mask, while she said later that the Appellant moved the mask backwards. That the description of the Appellant by PW2 did not corroborate the evidence of PW1 even in open Court. Counsel referred to IKEMSON V. STATE (1989) 3 NWLR (Part 110) Page 455 at 472 (SC) as to some conditions for a proper identification parade. Learned counsel said the lower Court ought to have dismissed both descriptions by PW2 of the Appellant. That the mere fact that the PW1 knew the Appellant before the robbery without stating how he recognized the Appellant on the night of the robbery is of no moment. He referred to MOHAMMED ADAMU V. STATE (2013) LPELR Page 33-34. According to counsel there is a difference between recognition and identification and cited WORU V. THE STATE (2011) AFWLR (Part 602) Page 1644 in support of his argument. Learned counsel referred to the holding of the lower Court at Page 76 of the record and submitted that it is not the duty of the Appellant to provide evidence for the prosecution to secure conviction. That to do so will be to shift the burden of proof to the Appellant which is contrary to Section 36 (5) of the 1999 Constitution (as amended). He urged this Court to allow the Appeal and set aside the Judgment of the lower court.
In his response, learned Respondent’s Counsel submitted that the evidence adduced before the lower Court clearly established the fact that a robbery took place on 25th March, 2016 at about 0300 hours at Nakasari Area Sokoto State; that the robbers numbering about eight (8) including the Appellant were armed with gun, sword, cutlass and sticks. He referred to the evidence of PW1, PW2 and PW3 during examination in chief and cross examination as reflected at Pages 23-25 of the Record of Appeal. According to counsel, the evidence of the prosecution witnesses was not challenged or contradicted therefore deemed admitted and referred to OFORLETE V. THE STATE (2000) 12 NWLR (Part 681) 415. Counsel submitted that PW1 and PW2 actually identified the Appellant when a torch light was flashed on his face coupled with the fact that PW1 knew the Appellant for long before the robbery; furthermore, counsel submitted the fact that the Appellant admitted patronizing the shop of PW1 which PW1 corroborated goes to show that it will be easier for PW1 to identify the Appellant. This learned counsel submitted proved that the Appellant was fixed at the locus criminis by the evidence of PW1 and PW2.
According to counsel, it is not in all criminal cases that identification parade is necessary especially where there is strong and cogent evidence linking the Appellant to the crime on the day of the incidence. He referred to BOLANLE V. THE STATE (2005) 1 NCC 342 Ratio 4 and submitted that the law is settled that the question of whether the Appellant is properly identified as one of those who participated in the robbery is a question of fact to be considered by the trial Court. He referred to JOEL ADAMU V. THE STATE (2007) 14 NCC 189 at 194 -195 Ratio 6. He urged the Court dismiss the Appeal and affirm the Judgment of the lower Court.
The Appellant was charged for the offence of armed robbery punishable under Section 298 (c) of the Penal Code. The prosecution must prove beyond reasonable doubt that:-
a) There was an armed robbery
b) That the accused was armed and participated in the armed robbery. In proof of its case the prosecution called four witnesses (PW 1, 2, 3 and 4).
From the evidence of these witnesses contained at Pages 23-30 of the Record of Appeal the following facts are not in doubt:-
1) That a robbery took place on 25/03/2016 at 3:00am at Nakasari Area, Sokoto and there was no electricity, resulting in darkness.
2) That the Appellant was arrested on 1/06/2016 at his place of work.
3) That the Appellant was not arrested at the scene of crime.
4) That the Appellant knew both PW1 and PW2 before the robbery.
5) That some of the robbers were masked while others painted their faces in black color.
6) That the house of the Appellant was not searched by the Police.
7) That no weapon, cash or valuables were from the Appellant
8) That PW1 gave no evidence before the lower Court of the features with which he identified the Appellant on the night of the robbery apart from knowing him before.
9) That PW2 did not give any evidence in Court of the features with which she recognized the Appellant at the identification parade
10) That PW4 gave no evidence of how the identification parade conducted.
The issue for determination now is whether or not the prosecution correctly identified the Appellant as one of the robbers who robbed PW1 on the night of the robbery.
In the present case, the Appellant was not arrested at the scene of crime or immediately after the robbery nor did he confess committing the crime. These are the two reasons for which an identification parade may be necessary. See ADISA V. STATE (1991) 1 NWLR (Part 168) Page 490 at 505. The identification evidence before the lower Court was given by PW2 an 11year Old girl, whose unsworn evidence on how she identified the Appellant at the State CID was not corroborated by some other material evidence as required by Section 209 of the Evidence Act (as amended). PW1, 2, 3 and 4 did not corroborate it. The law is that an identification parade must be properly conducted. In ALEBIOSU V. THE STATE (2016) LPELR 41359 (CA) Page 26 Paragraphs E-D it was held that:- The proper and acceptable method is to place the suspect with sufficient number of other persons of similar sex, height, weight and colour as the suspect, and then have the identifying witness pick out the accused person from among them without any prodding by any person.
The issue for determination now is whether the prosecution complied with the above standard or not. How many persons were paraded with the Appellant? Were all they of the same height, colour and weight? There was no single prosecution witness who answers those questions in his/her evidence. The unsworn evidence of PW2 on the identification parade therefore goes to no issue. PW1 said under cross examination as contained at Page 25 of the record of Appeal said that with the aid of a torch light flashed by the robbers he was able to recognize the Appellant as he knew him before the incident. When asked under cross examination to look at the Appellant and describe him, he described him as tall, black in colour and slim. While PW2 under cross examination as is shown at Page 26 of the Record described the Appellant as neither black nor white, that he is fair in colour. The description of the Appellant by PW2 was therefore not corroborated by that of PW1 even in open Court. The two descriptions contradicted each other. This contradiction is resolved in favour of the Appellant. The first issue is therefore resolved in favour of the Appellant and against the Respondent.
As regards the second issue for determination whether the prosecution have proved the charge against the Appellant beyond reasonable doubt or not; in all criminal matters it is the duty of the prosecution to prove the guilt of an accused person beyond reasonable doubt. From the evidence of DW1 (the Appellant) which was reflected at Pages 31-33 of the Record of Appeal, PW1 saw the Appellant regularly from 25/03/2016 when the alleged robbery occurred up till 3/06/2016 when the Appellant was arrested. PW1 knew where the appellant lives and he said so during cross examination and has been seeing him (Page 25 of the record) but he waited for about 68 days before deciding to effect the arrest of the Appellant. While dealing with a case with similar fact in MUSTAPHA V. THE STATE (2007) NWLR (Part 1049) 637 at 666 Paragraphs F-C this Court Held that:-
In the instant case, the quality of the evidence of PW1 who identified the Appellant as one of the robbers that struck at his house was poor and the mistaken identity cannot be ruled out there was no light that night, yet he said he peeped out and saw somebody like the Appellant and he waited till three days later to identify the Appellant at the police station and this after he had asked who is this? Surely this is not good enough: his evidence raises more questions than answers. Was it the Appellant he saw that night or someone that looked like him? And if it was the Appellant he saw, why did he not report him to the police earlier? These questions raised more serious doubts which ought to have been resolved in favour of the Appellant and are hereby resolved in his favour.
In the present case the failure of PW1 to report the Appellant who he has been seeing from the date of the alleged robbery until after 68 days raised more doubts which ought to be resolved in favour of the Appellant; and are hereby so resolved. The second issue is therefore resolved in favour of the Appellant and against the Respondents. The Appeal is meritorious and is hereby allowed. The Judgment of the Sokoto State High Court in Suit No:- SS/03C/2017 delivered on 11/05/2017 is hereby set aside.
The Appellant is accordingly discharged and acquitted as charged upon the failure to prove the essential elements of the offence of armed robbery punishable under Section 298 (c) of the Penal Code.
AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my learned brother, Abdullahi M. Bayero, JCA. I agree with his reasoning and conclusion that the identification evidence against the Appellant was not conclusive. I agree with his conclusion that the Appellant is entitled to benefit from the doubt created in the prosecution’s case. I abide the consequential order discharging and acquitting the Appellant.
Accordingly, the conviction and sentence of the Appellant by the lower Court are set aside.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother ABDULLAHI M. BAYERO, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. I abide by other consequential orders of Court.
Appearances:
Dr. Ehiogie West Idahosa, Esq. For Appellant(s)
Al Mustapha Abubakar For Respondent(s)
