IWALOYE v. STATE (2020)

IWALOYE v. STATE

(2020)LCN/14655(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Wednesday, October 07, 2020

CA/AK/54C/2015

RATIO

EVIDENCE: EVIDENCE OF RECOGNITION AS TO IDENTIFICATION

The law generally is that evidence of recognition is more reliable than that of identification. However, where the accused is recognized by the witness as in this case, the Court is still enjoined to be circumspect, warn itself of the need for caution and to carefully weigh the evidence alongside other evidence adduced at the trial before convicting the accused on such evidence: ARCHIBONG V STATE (2006) 5 SC, 1 AT 8; TANKO V STATE (2008) 16 NWLR, PT 1114, 591 AT 640 and NDIDI V STATE (2007) 13 NWLR, PT 1052, 653.This is more so in a situation like the instant case where the offence is armed robbery which carries the ultimate penalty of death. To avoid a situation in which an innocent person may for one reason or another be roped in the commission of an offence of which he has no knowledge, the apex Court has cautioned that where the evidence of identity of an accused person to the commission of an offence is that of recognition, the witness must mention the name of a person or persons whom he knows and was seen by him committing an offence to the police at the earliest opportunity. That where the witness fails to mention the name of the person he claims he saw committing the offence at the earliest opportunity the trial Court must be careful in accepting and relying on his evidence given at a later date: IDAHOSA V THE QUEEN (1965) NMLR, 85 AT 88; WAKALA V STATE (1991) 8 NWLR, PT 211, 552 AT 566-567; BOZIN V STATE (1985) 7 SC, 450 AT 469 and MORKA V STATE (1998) 2 NWLR, PT 537 294 AT 302. PER MAHMOUD, J.C.A.

EVIDENCE: DUTY OF COURT IN ACTING ON IDENTIFICATION EVIDENCE

In the case of UKPABI V STATE (2004) 11 NWLR, PT 884, 439, the Supreme Court held that in acting on identification evidence, the Court must closely examine the evidence and view it with caution so that any real weakness discovered about it must lead to giving the accused the benefit of doubt. PER MAHMOUD, J.C.A.
CRIMINAL LAW: EFFECT OF ANY DOUBT IN THE PROSECUTION’S CASE

This is the settled position of the law as held in the case of IDEMUDIA V STATE (SUPRA), that in a criminal trial, any doubt in the prosecution’s case ought to be resolved in favour of the accused/appellant. See also STATE V AZEEZ (2008) 14 NWLR, PT 1108, 439 AT 483 and CHUKWU V THE STATE (1996) 7 NWLR, PT 463, 686 AT 701. PER MAHMOUD, J.C.A.

CRIMINAL LAW: HOW SHOULD AN ACCUSED PERSON ESTABLISH HIS CASE

I find it apt in the instant case to follow the case of BOTU V STATE (2018) (2018) 3 NWLR, PT 1607, 410 to reiterate the settled position of the law that in criminal proceedings, the prosecution must establish its case against the accused person beyond reasonable doubt. While it is also settled that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, where, however there is a doubt, no matter how slight in the case presented by the prosecution, such doubt must be resolved in favour of the accused person. PER MAHMOUD, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

HENRY IWALOYE APPELANT(S)

And

THE STATE RESPONDENT(S)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant and two others were arraigned on a three count charge of conspiracy to commit armed robbery and armed robbery contrary to and punishable under SECTIONS 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) ACT, CAP RII, LFN, 2004, before Hon. Justice D. I. Kolawole of the Ondo State High Court sitting at Akure. The two other persons, Adebowale Abadariki and Oluranti Ayodele were alleged to have jumped police bail and remain at large till date.

The charge against the appellant was that he and the two others still at large, in the early hours of 31st May, 2009, broke into the apartment of one Catherine Sheu at Ibaka Quarters, Akungba Akoko, Ondo State and while armed with a shot gun, dagger and knife robbed her and her friends of N37,000 and other valuables.

In proof of its case the prosecution called four witnesses and tendered seven exhibits, admitted and marked as Exhibits A-F1 respectively.

The appellant as accused pleaded not guilty to the charge. He testified in his own defence as DW1 and called two other witnesses.

At the close of evidence, counsel on both sides filed, exchanged and adopted written addresses. In a considered judgment delivered on the 6th June, 2013 the learned Trial Judge convicted the appellant as charged and sentenced him to death by hanging.

Dissatisfied with this sentence, the appellant by an order of Court sought and obtained on the 23rd June, 2017 appealed to this Court. The Notice of Appeal dated and filed on the 4th June, 2017 contains six grounds, without their particulars as follows:-
GROUND 1
The decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.
GROUND 2
The lower Court erred in law in convicting the Appellant on the Charge of Conspiracy to Commit armed robbery when there was no evidence by the prosecution as to how other people came together to form a common intention to commit the crime.
GROUND 3
The learned trial judge erred in law in convicting the Appellant on the charge of armed robbery when the prosecution failed to prove the charge beyond reasonable doubt.
GROUND 4
The trial Court erred in law in convicting the Appellant despite raising the defence of Alibi

timeously.
GROUND 5
The learned trial Judge erred in law by convicting the Appellant on contradicting evidence of the Respondent’s witnesses.
GROUND 6
The trial Court erred in law to have convicted the Appellant on his alleged confessional statement.
Whereof the appellant urged the Court to allow the appeal, set aside the judgment of the High Court including the conviction and sentence and discharge and acquit the appellant.

In prosecuting his appeal, the appellant, pursuant to an order of this Court granted on the 27th March, 2019 filed his Amended Appellant’s Brief of Argument. This was deemed properly filed on the 15th July, 2020. In it the appellant distilled four issues from the six grounds of appeal for the determination of the Court:
i. Whether the decision of the lower Court was right having regard to the evidence adduced before it to have held that the offence of Conspiracy to commit armed robbery was proved beyond reasonable doubt by the Respondent. (Distilled from Grounds 1 and 2 of the Notice of Appeal).
ii. Whether the lower Court was right in convicting the Appellant on the charge of armed

robbery despite the contradicting evidence of the Respondent’s witnesses. (Distilled from grounds 3 & 5 of the Notice of Appeal).
iii. Whether the lower Court was right to have held that failure of the prosecution to disproof the defense of Alibi timeously raised by the Appellant was not fatal to the Respondent’s case (Distilled from Ground 4 of the Notice of Appeal).
iv. Whether the lower Court was right in convicting the Appellant on his alleged confessional statement. (Distilled from Ground 6 of the Notice of Appeal)

Upon being served with the respondent’s brief, the appellant filed a reply brief on the 30th January, 2019. This was also deemed as properly filed on the 15th July, 2020.

In arguing the appeal, DR Oladoyin Awoyale of counsel for the appellant adopted both briefs as his legal arguments in support of the appeal. On issue (1) counsel relied on the cases of MBANG V STATE (2009) 18 NWLR, PT 1172, 140 and THE PEOPLE OF LAGOS STATE V MOHAMMED UMARU (2014) AFWLR, PT 737, 658 AT 673 to submit that the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Counsel submitted

that the charge of conspiracy to commit armed robbery was not proved beyond reasonable doubt. That there is no iota of evidence to show that the appellant conspired together with other persons to commit the offence. That the evidence of PW4 who said they arrested Abadariki Adebowale and Ranti Ayodele who were roommates and his alleged co-conspirators with a shot gun never tied him to them. Counsel submitted that the appellant was not a roommate to the duo of Abadariki Adebowale and Ranti Ayodele and nothing incriminating was found in his abode. That the appellant was sleeping peacefully at home on the night in question, a fact which was corroborated by the evidence of DW1 and DW3. Counsel referred to the cases of LEGI-MOHAMMED V STATE (2015) AFWLR, PT 804, 1975 AT 1995 and STATE V JAMES GWANGWAN (2015) LPELR-24837 (SC) to submit that to prove a charge of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means; and prove individual participation in the conspiracy by each of the accused persons. Counsel contended that no person was arrested with the appellant and

the appellant was not seen having an agreement with anyone to rob. Counsel further submitted that there was contradiction in the evidence of PW2 and PW3 which discrepancies were highlighted by the learned trial judge in his judgment. Counsel referred to the cases of BUSARI V THE STATE (2015) AFWLR, PT 777, 715 AT 741 and OGBORU V IBORI (2006) 17 NWLR, PT 1009, 609 to submit that in a criminal matter, especially one that is a capital offence, evidence generated must be that which has been properly tested and evaluated to eliminate any doubt whatsoever. That such evidence must be credible in itself in the sense that it should be natural, reasonable and probable in the entire circumstances. Counsel contended that PW2 and PW3 are confused witnesses and no probative value should be ascribed to their evidence. Counsel urged the Court to resolve this issue in favour of the appellant.

On issue (2), counsel relied on the case of SANI V STATE (2015) AFWLR, PT 811, 1303 AT 1315-1316 to submit that to succeed in a charge of armed robbery the prosecution must prove:
a) That there was a robbery or series of robberies.
b) That the robbery or each of the

robberies was an armed robbery.
c) That the accused was one of those who took part in the armed robbery or robberies

Counsel referred to the various discrepancies in the evidence of PW2 and PW3 who he alleged contradicted themselves in identifying who robbed them. Counsel referred to pages 99, 39 and 40 of the record to highlight these contradictions and to submit that the identification of the alleged robber is questionable. That the evidence of the prosecution is so riddled with material contradictions that it was unsafe for the lower Court to have convicted the appellant on it. Counsel referred to the cases of OGISUGO V STATE (2015) AFWLR, PT 792, 1602 AT 1609 and MOHAMMED V STATE (2015) AFWLR, PT 793, 1926 AT 1940 to submit that where there is a material contradiction in the evidence of the prosecution, such a contradiction shall be resolved in favour of the accused/appellant. Counsel also submitted that there was no credible evidence of identification of the appellant as one of those who took part in the armed robbery. That the evidence of PW2 and PW3 amounts to at best a mere suspicion which is not enough to found a conviction.

In arguing

on issue (3), Counsel submitted that the respondent did not investigate the defence of alibi despite being raised timeously by the appellant. Counsel referred to the case of IDEMUDIA V THE STATE (2015) AFWLR, PT 800, 1302 AT 1318 to submit that once the defence of alibi is set up by an accused, it must be investigated thoroughly by the police. That once an alibi is set up by an accused person timeously, the onus is on the prosecution to disprove it. That a plea of alibi is demolished only if the prosecution adduces sufficient evidence to fix the accused at the scene of crime at the material time. Counsel argued that the respondent did not investigate the defence of alibi raised timeously by the appellant. That the appellant also furnished the particulars of the said alibi in full details to the police at the earliest opportunity as required by law. Counsel argued that the alibi was not investigated and the trial Court erred in law in discountenancing the defence. Counsel relied on the case of OLAGESIN V THE STATE (2013) AFWLR, PT 670, 1357 AT 1377 to argue that it is a well established principle of criminal law that every defence raised by an accused person,

no matter how stupid or unreasonable must be considered by the Court. Counsel urged the Court to resolve this issue in favour of the appellant.

On the fourth and final issue, counsel submitted that the appellant stated that the alleged or purported confessional statement was not voluntary and that the statement of the appellant at the Akungba Police Station was not tendered at the trial Court. Counsel urged the Court to resolve this issue in favour of the appellant; allow the appeal, discharge and acquit the appellant.

The respondent’s brief was settled by MRS A. O. Adeyemi-Tuki, the then learned DPP, Ondo State Ministry of Justice (MOJ) on the 12th October, 2019. It was deemed properly filed on the 15th July, 2020. The respondent formulated the following three issues for determination by the Court:
1) Whether the Respondent proved the essential elements of the offence charged beyond reasonable doubt to warrant the conviction and sentence of the Appellant.
2) Whether the learned trial judge was right when he convicted and sentenced the Appellant as charged despite and purported contradiction and inconsistencies in the evidence of the

prosecution witnesses.
3) Whether the learned trial Judge properly evaluated all the evidence in the case including the evidence of alibi put up by the Appellant in the witness box.

In arguing the appeal Mrs. H.M. Falowo, ACLO, Ondo State MOJ, of counsel for the respondent adopted the brief as their legal arguments in opposition to the appeal.

On issue (1), counsel conceded that in criminal trials the burden of proof lies on the prosecution. Counsel however contended that this proof is beyond reasonable doubt and not beyond all shadow of doubt. Counsel referred to Section 135(1) of the Evidence Act, 2011 and the cases of the EMOGA V THE STATE (1997) 1 NWLR (pt. 483) 615 AT 622; STATE V DANJUMA (1997) 5 NWLR (PT 506) 512 AT 529 PARAS B-E; NWACHUKWU V THE STATE (2002) 12 NWLR (PT. 782) 543 AT 568; EMEKA V THE STATE (2001) 14 NWLR (PT. 734) 666 AT 683; LORI V THE STATE (1980) 8-11 SC. 81 AT 86-87.

Counsel further submitted that in order to discharge the onus placed on it, the prosecution must establish all the ingredients of the offence charged. Counsel referred to the cases of YONGO V COP (1992) 8 NWLR, PT 257, 36, (1992) 4 SCNJ, 113 and

ALOR V THE STATE (1997) 4 NWLR, PT 501, 511.

Counsel contended that the proper approach to an indictment which contains an offence of conspiracy together with a substantive charge is to first deal with the main charge before the charge of conspiracy. Counsel referred to the cases of NWACHUKWU V THE STATE (1985) 3 NWLR, PT 11, 218 AT 225-226 and BOZIN V THE STATE (1985) 2 NWLR, PT8, 465 to state the Supreme Court definition of robbery and the three ingredients necessary to prove the offence of armed robbery.

On the first ingredient that there was a robbery or series of robbery, counsel referred to the evidence of PW1, PW2, PW3 and PW4. Counsel contended that the testimonies of PW2 and PW3 under oath was that they were in their room in the early hours of 31st May, 2009 when three armed men forced their way into their room and robbed them of their valuables. PW4 was the Investigating Police Officer at Akungba Akoko while PW1 was the Investigating Police Officer at State CID, Akure and they both gave evidence of their investigations. Counsel submitted that the evidence of PW1 and PW4 corroborated the evidence of PW2 and PW3. Counsel also submitted that the

evidence was overwhelming and was not challenged by the appellant. Counsel also submitted that the prosecution proved beyond reasonable doubt that there was a robbery incident in the room of PW3 during the early hours of 31st May, 2009 as the trial Court rightly held.

On the second ingredient which is whether the robbery was an armed robbery, counsel referred to the evidence of PW2 and PW3 to the effect that the three robbers who went into their room on the fateful night were armed with gun, cutlass and axe. That they threatened to give PW2 a mark on her body and a gun was recovered from one of the accused persons by the police. Counsel also argued that DW3 testified that he accompanied PW4 and another police officer to the house of one of the suspects where a gun and other stolen items were recovered. That the totality of these pieces of evidence proved beyond reasonable doubt that the robbery attack was an armed robbery.

On the third ingredient which is whether or not the appellant was one of the armed robbers who attacked PW2 and PW3, counsel referred to the evidence of PW2 that the robbers were not masked and she knew the appellant before the

robbery. PW2 also insisted that she was the only one who saw the robbers and actually had a conversation with them. She also insisted that the appellant was one of the robbers, who attacked her and PW3 in the early hours of 31st May, 2009. Counsel contended that this piece of evidence was not challenged by the appellant. Counsel also referred to the testimony of PW4, the Investigating Police Officer at the Divisional level at Akungba Akoko through whom the appellant’s confessional statement was admitted in evidence as Exhibit F. PW4 took the appellant before a superior Police Officer for attestation of the confessional statement. The attestation was admitted as Exhibit F1.

Counsel also referred to the testimony of PW1 through whom Exhibit E, the appellant’s confessional statement at the state CID was admitted after a trial within trial. Counsel referred to the cases of UGBOMA V THE STATE (1987) 1 SC. 109; OBOH V THE STATE (1987) 1 SC, 118 AT 279; SECTION 28 OF THE EVIDENCE ACT, 2011; OLALEKAN V THE STATE (2001) 18 NWLR PT 746, 793 AT 798 and SAIDU V THE STATE to submit that the statements, Exhibits E and F are confessional statements having

been made voluntarily and admitting of all the ingredients of the offence and having regard to their contents.

The learned senior counsel submitted that a confessional statement which is voluntary, direct, positive, unequivocal, cogent and properly proved is enough to sustain a conviction. Counsel referred to the case of THE STATE V JIMOH SALAWU (2011) 18 NWLR, PT 1279, 883 AT 920-921 to submit that such a confessional statement is the best and strongest evidence of the guilt of an accused person. That it is stronger than evidence of any eye witness. Counsel referred to the case of OKOH V THE STATE (2014) 8 NWLR, PT 1410, 502. The learned counsel referred to the cases of TIMOTHY V FRN (2013) 4 NWLR, PT 1344, 213; CHIOKWE V THE STATE (2013) 5 NWLR, PT 1347, 205, AKINFE V THE STATE (1988) 3 NWLR, PT 85, 729 AT 746 to submit that the trial Court only needs to ensure that there is evidence outside the confessional statement which corroborates the confession before convicting on same.

On retraction of the confessional statement, counsel referred to the cases of ABDULLAHI V THE STATE (2013) 11 NWLR, PT 1366, 435; NWACHUKWU V THE STATE (2007) 17 NWLR, PT

1062, 31 AT 69 to submit that a mere retraction of a confessional statement by an accused person will not render it inadmissible but will only affect the weight to be attached to it. That where as in this case, an accused person retracts or resiles from his confessional statement in Court, he must explain the inconsistency. Counsel referred to the cases of KAREEM V FRN (NO 2) (2002) 8 NWLR, PT 770, 664 AT 682 and BASSEY V THE STATE (1993) 7 NWLR, PT 306, 469. The learned counsel relying on OTUFALE V THE STATE (1968) NMLR 261 AT 265 submitted that before the Court can rely on a retracted confessional statement to convict an accused person; such statement must be corroborated by some evidence outside the confession which would make it possible that the confession is true.

Counsel argued that the learned trial Judge painstakingly evaluated the evidence of PW2 and PW3 vis-a-vis Exhibits E & F and rightly used the confessional statement, notwithstanding, that the appellant resiled from them at the trial. Counsel contended that evaluation of evidence is the preserve of the trial Court. That since the findings are not perverse, this Court is urged not to

interfere or disturb the said findings. Counsel referred to the cases of EBEINWE V THE STATE (2011) 1 SCNJ 90 AT 101, LINES 25-30 and HYAGNTH V ADUIT MBAVE (1992) 5 NWLR, PT 242, 410.

On whether or not the ingredients of the offence of conspiracy were established against the appellant, counsel submitted that evidence of conspiracy is usually a matter of inference from surrounding circumstances and the trial Court may infer conspiracy from the fact of doing things towards a common purpose. That there are sufficient facts from which common intention can be inferred, and were actually inferred by the trial Court to convict the appellant for conspiracy.

On issue (2), counsel submitted that the purported discrepancies and contradictions in the evidence of the prosecution are not material enough as to upset the judgment of the trial Court. Counsel contended that the evidence of PW2 and PW3 are not contradictory and does not detract from the fact that the appellant was one of the robbers who robbed them on 31st May, 2009. Counsel argued that the events leading to the offence are the same and very consistent. Counsel further submitted that the evidence when

read against the backdrop of the appellant’s confession in Exhibits E and F, will show that the appellant corroborated the evidence of the prosecution witnesses. That the purported contradictions are not such that would raise any doubt as to the guilt of the appellant and the trial Judge rightly overlooked them. Counsel referred to the cases of ATANO V THE STATE (2005) 4 ACLR, 25 AT 30; EJIGBADERO V THE STATE (1978) 9-10 SC, 81 AT 110-111; ONUBOGU V THE STATE (1974) 9 SC 1 AT 20.

In responding to issue (3), counsel referred to the case of UCHE V THE STATE (2014) 10 ACLR, 178 AT 204 as setting out the four conditions which must co-exist for the defence of alibi to avail the appellant:-
1) The appellant must raise the defence at the earliest opportunity, in most cases in his extra judicial statement to the police. This will give the police the opportunity to investigate the alibi.
2) The Appellant must be specific as to where he was when the incident took place. He should be able to mention names of people that were with him at the particular time in his extra judicial statement to the police.
3) Where the prosecution pins him to the

scene of the crime, the onus is on the Appellant to lead evidence of those who were with him at the time the offence was committed.
4) Where however, the prosecution pins the Appellant to the scene of the crime and the trial judge believes the evidence of the prosecution, the Appellant’s alibi is technically destroyed.

Counsel contended that in the instant case the appellant raised the defence of alibi belatedly. That the said defence cannot fly in the face of the overwhelming evidence of the prosecution witnesses including Exhibits E and F which have been found by the trial Court to be voluntary, true and consistent with the evidence of PW2 and PW3. Counsel referred to the case of OSETOLA V THE STATE (2012) 17 NWLR, PT 1329, 251 AT 278. The learned counsel finally submitted that the respondent led sufficient and credible evidence to fix the appellant at the locus criminis at the material time which demolished the alibi raised by the appellant during his trial. Counsel urged the court to resolve all the issues in favour of the respondent, dismiss the appeal and affirm the decision of the trial Court.

I have soberly reflected on the

submissions of both counsel. There is no doubt from the evidence and the submissions on points of law where the scale may tilt in respect of the four issues formulated by the appellant. It will be easy in the face of the evidence before the Court and the strict provisions of the law to resolve all four issues in favour of the respondent and against the appellant. However after a meticulous examination of the records three things agitate my mind. These three things have the potential to tilt the scale in favour of the appellant. What this means is that, even if I consider the four issues formulated against the appellant and find the evidence against him strong enough to return a guilty verdict, one of these three issues, if resolved in favour of the appellant can completely change the equation of the case. It is pertinent therefore in my view to focus on these three things and resolve them without recourse to the issues distilled for resolution.

The first of these three agitations is the unsolved issue of the two co-accused of the appellant. The evidence on record was that three armed robbers attacked the house of PW3 on the night in question. These two

co-accused persons were Adebowale Abadariki and Oluranti Ayodele. They were also arrested by the police. At the commencement of the trial on page 30 of the record, the then learned DPP leading a team of prosecutors from the Ondo State Ministry of Justice stated as follows:
“We want to withdraw against the 2nd and 3rd accused. They were granted police bail and they have since disappeared.
Court: The name of the 2nd and 3rd accused are struck out”

Again at page 37 of the record, PW1, the Investigating Police Officer at the State CID stated in cross examination in respect of the 2nd and 3rd accused persons as follows:
“Exhibits A to D were recovered with the two suspects at Supare who WERE CLEARED AT THE POLICE LEVEL.” (Emphasis provided).

DW3, a former police officer is the father of the appellant. In testifying in defence of the appellant DW3 stated as follows:
“I know that the police investigation extended to Supare Akoko. This was because two of the boys arrested in connection with the case lived there. I drop PW4 and another constable to Supare. I know that ONE GUN WAS RECOVERED THERE. It was put

at the bottom of a jerry can and debris was piled on it. It was a cut to size English barrel gun. The Police recovered bournvita and milk from the room of the two boys. I came to see the accused when he was detained at the state CID, Akure. I was TOLD TO PAY N400, 000 SO THAT THE ACCUSED CAN BE RELEASED ON BAIL. I could not afford that.” (Emphasis provided).

The questions that beg for answers is why the Police would release suspects accused of a serious offence like armed robbery on bail? Why are there different versions as to why the two accused persons were not prosecuted along with the appellant? Why was the case diary not sent to the learned DPP as is the established practice for legal advice as to whether or not there was sufficient evidence to prosecute the two accused persons or insufficient evidence to discharge them? What did PW1 mean when he said that the two suspects were cleared at the Police level? Was there some truth in the allegation of DW3 that he was asked to bring some money to release the appellant on bail? Is this tied to any deliberate act of the police to release the two suspects on police bail in an unbailable offence? These

and other unanswered questions cast a great doubt on the version of the police and ultimately the prosecution as to the role the appellant played in this alleged robbery.

The second agitation relates to the testimonies of PW2 and PW3 as to the identity of the appellant as one of the armed robbers. PW2 testified in her evidence in chief as follows:
“The three men came in armed. They had a gun, a cutlass and an axe …
I RECOGNISED THE ARMED (SIC) ROBBERS. THE ACCUSED IS ONE OF THEM. THEY WERE NOT MASKED. THE ACCUSED HAD BEEN OUR ACQUITANCE BEFORE THAT DAY. I KNEW HIM AROUND AKUNGBA. The operation lasted more than an hour as they left around few minutes to 2 a. m. …he next day we reported to the landlord. He asked us whether we suspected anyone and I said I recognized the accused as one of the three … When we got to the police station we realized that they were five, two did not come in. Because of the fact that THE ACCUSED WAS WELL KNOWN A LOT OF PEOPLE THOUGHT I WAS WRONG IN MY PLACING HIM AMONG THOSE WHO ATTACKED

However when we got to the police station at Akungba the next day. The police told us that he had confessed that he was one of those who attacked us …” (Emphasis Provided)In cross examination PW2 stated:
“… The accused was well known to me. He was assisting is (sic) to put on our generator… I did not mention the name of the accused in my two statements but I said THAT SOMEONE PUT HIS FINGERS IN MY VAGINA IN MY TWO STATEMENTS… I insist that I recognized the accused as one of the three and I said this was why he was arrested in the morning. The accused also confessed in my presence at the Police Station, Akungba that he was part of those who came to rob and rape us.”

PW3 in examination in chief in respect of the appellant stated:
“I reported to my landlord the next morning what happened and I told him that I recognized the accused as one of the three… The police followed me to the house of the accused and we met him and he was arrested

… I knew the accused before the day of the attack. He was like a brother to me. I took to him and it was I that even bought his Jamb form for him.”

Under cross examination, PW3 admitted that her bournvita and milk which were taken away during the attack were not found with the accused but that he gave the information that led to the person from whom they were recovered.

The important consideration here in my view are twofold: the recognition of the appellant by the two witnesses and the fact that they both maintained that the appellant was not wearing any mask. The law generally is that evidence of recognition is more reliable than that of identification. However, where the accused is recognized by the witness as in this case, the Court is still enjoined to be circumspect, warn itself of the need for caution and to carefully weigh the evidence alongside other evidence adduced at the trial before convicting the accused on such evidence: ARCHIBONG V STATE (2006) 5 SC, 1 AT 8; TANKO V STATE (2008) 16 NWLR, PT 1114, 591 AT 640 and NDIDI V STATE (2007) 13 NWLR, PT 1052, 653.This is more so in a

situation like the instant case where the offence is armed robbery which carries the ultimate penalty of death. To avoid a situation in which an innocent person may for one reason or another be roped in the commission of an offence of which he has no knowledge, the apex Court has cautioned that where the evidence of identity of an accused person to the commission of an offence is that of recognition, the witness must mention the name of a person or persons whom he knows and was seen by him committing an offence to the police at the earliest opportunity. That where the witness fails to mention the name of the person he claims he saw committing the offence at the earliest opportunity the trial Court must be careful in accepting and relying on his evidence given at a later date: IDAHOSA V THE QUEEN (1965) NMLR, 85 AT 88; WAKALA V STATE (1991) 8 NWLR, PT 211, 552 AT 566-567; BOZIN V STATE (1985) 7 SC, 450 AT 469 and MORKA V STATE (1998) 2 NWLR, PT 537 294 AT 302.

The evidence of PW2 is very critical. She stated in examination in chief that, “I recognized the armed robbers. The accused is one of them. They were not masked.” PW2 further testified

that, “Because of the fact that the accused was well known a lot of people thought I was wrong in my placing him among those who attacked us. HOWEVER WHEN WE GOT TO THE POLICE STATION AT AKUNGBA THE NEXT DAY. THE POLICE TOLD US THAT HE HAD CONFESSED THAT HE WAS ONE OF THOSE WHO ATTACKED US”
This is in direct contrast to the testimony of PW3 who testified in examination in chief that:
“I reported to my Landlord the next morning what happened and I told him that I recognized the accused as one of the three. The landlord took us to the police station at Akungba. We explained to the police what happened. I made statement to the police. The police followed me to the house of the accused and we met him and he was arrested.”
So was it the recognition of the appellant that led to his arrest as stated by PW3 or was it his confessional statement that confirmed that he was one of the robbers? Whichever of the two pieces of evidence that is preferred or acted upon, the contradiction between the two is material, making both unreliable as to the identification and recognition of the appellant. What is more, it is not enough to state

that you recognise an accused person. You must state how you recognised him. In this circumstance it could have been useful/helpful if the witnesses had stated the type and color of clothes the accused was wearing or some such distinguishing mark. This identification would have been strengthened if those clothes had been found the next morning in the appellant’s room. What is more troubling in all this narration is the lack of credible evidence as to whether the appellant could have been so definitively recognised at 12:30 a.m. While PW3 stated that there was electricity, she contradicted herself by saying she also held ‘phone torchlight’. The testimony of PW2 casts a lot of doubt on the version of PW3 that there was electricity. She testified in chief:
“It was I and Abiola that were still awake; others had slept. I then heard a conversation outside our room. I PUT ON THE TORCH LIGHT TO KNOW WHAT WAS HAPPENING… I tapped Catherine who owned the room to wake her up. She woke up and realized that those outside were thieves.”
In the case of UKPABI V STATE (2004) 11 NWLR, PT 884, 439, the Supreme Court

held that in acting on identification evidence, the Court must closely examine the evidence and view it with caution so that any real weakness discovered about it must lead to giving the accused the benefit of doubt.
There is no credible evidence to show that there was electricity at the time of the commission of the offence. It is also not enough that PW2 and PW3 stated that they recognised the appellant. PW2 admitted in cross examination that she never mentioned the name of the appellant to the police in her two statements to them. She only confirmed her suspicion when she got to the police station the next day and was told by the police that the appellant confessed to the crime.
It is also curious that the appellant who was like a ‘brother to PW3’ and who according to PW2 was well known to them as he used to help them put on their generator would rob and assault them sexually and they never wondered or discussed it even when they discussed the fact of the sexual assault on PW2 and the rape of one of them by the same appellant. More curious is the fact that the appellant so well known to them would choose to go on such an apparent

suicide mission of robbing the victims without wearing a face mask! The evidence on record is that DW3, the father of the appellant was a former police officer. Surely if the appellant chooses to be on the wrong side of the law, he should have learnt a thing or two about not leaving himself open to easy identification by wearing a mask? This and all the other surrounding circumstances of this case make it compelling that the evidence of identification or recognition of the appellant ought to have been taken with caution by the trial Court: ABUDU V STATE (1985) 1 NWLR, PT 1, 55; IDEMUDIA V STATE (2015) 17 NWLR, PT 1488, 375; ADAMU V STATE (2017) and SULAIMON V STATE (2018) LPELR – 44280 (CA).
According to PW4 the Investigating Police Officer at the Divisional Police Station where the offence was first investigated, it was PW3, the nominal complainant who identified the appellant as one of the robbers which made him to go and arrest the appellant in his house. The appellant had raised a defence of alibi that he was at home at the relevant time when he was alleged to have committed the offence. DW3 testified that when the police came to look for the

appellant, he told them that the appellant was unwell and in his room. The police should have investigated this alibi but they did not. In the case of IDEMUDIA V STATE (SUPRA), the Supreme Court held that when the sole defence is an alibi, identification by a single witness must be conducted with care. I therefore take the recognition of the appellant by PW3 and PW2 advisedly.

The 3rd agitation is the Exhibits, particularly the confessional statements, Exhibit E and F & F1. The record in respect of this appeal was transmitted by the Registrar of the lower Court. The index of list of Exhibits shows the following exhibits as transmitted:
“1) “A” – Dismantled gun
2) “B” – 900 grams Milo Drink
3) “C” – “C6” – Seven tins of Milk
4) “E” – Accused Statement

There is no indication of Exhibits F and F1 on this index. These two exhibits were tendered through PW4 the IPO at Akungba Divisional Headquarters. Exhibit F was the confessional statement while Exhibit F1 was the attestation form signed before the superior police officer. Indeed it

was the signatures on Exhibits F and F1 that the learned trial Judge compared to come to the conclusion that the appellant signed all the signatures. These exhibits were not transmitted and there is no explanation why they were not. The worst part is that even Exhibit E that was allegedly transmitted is not the original. Exhibit E was the statement of the appellant taken at the state CID by PW1. According to PW1 he wrote down the statement that the appellant gave and after reading it over to the appellant, he understood and signed. A trial within trial was conducted before Exhibit E was admitted in evidence as having been made voluntarily. What was transmitted to this Court as Exhibit E is a typed document and it was not signed at all by the appellant. It only has the sign ‘SGD’, meaning that it was signed. There is no explanation why the original statement which was hand written and signed by the appellant and which the learned trial Judge relied upon was not transmitted along with the records. In the trial within trial, PW1 in cross examination was emphatic that the accused made only one statement. The purported Exhibit E has three different

statements made on the 31/05/2009, 01/06/2009 and 02/06/2009 respectively. This cannot be the Exhibit E admitted by the trial Court at page 37 of the record upon which the trial Court based its judgment in convicting the appellant. This situation has to be resolved in favour of the appellant. This is the settled position of the law as held in the case of IDEMUDIA V STATE (SUPRA), that in a criminal trial, any doubt in the prosecution’s case ought to be resolved in favour of the accused/appellant. See also STATE V AZEEZ (2008) 14 NWLR, PT 1108, 439 AT 483 and CHUKWU V THE STATE (1996) 7 NWLR, PT 463, 686 AT 701.

I am aware that it is entirely the prerogative of the Attorney General through the State Ministry of Justice to choose who to prosecute and who not to. However, the evidence here is that the alleged gun that was used in the robbery, as well as the provisions (Milo, etc.) allegedly stolen from the victim’s house were recovered in the house of the two accused persons said to be at large. I have already expressed my unease as to why they were left off the hook without due process. I could also not help but wonder aloud that if they were

cleared by the police of any complicity in the robbery, it follows logically that the appellant could not have conspired with himself? I find it apt in the instant case to follow the case of BOTU V STATE (2018) (2018) 3 NWLR, PT 1607, 410 to reiterate the settled position of the law that in criminal proceedings, the prosecution must establish its case against the accused person beyond reasonable doubt. While it is also settled that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, where, however there is a doubt, no matter how slight in the case presented by the prosecution, such doubt must be resolved in favour of the accused person.

The crucial issue in this case as in most criminal cases generally is not whether or not the offence charged was committed but more whether or not the actual perpetrators of the offence are the ones charged and prosecuted. This is why identification evidence including confessional statements which fix the appellant at the scene of crime has to be viewed cautiously and meticulously to guard against mistaken identity. This caution requires that any slight doubt should be resolved in favour of the

appellant.

I have taken all these issues into consideration in this case. It is indisputable that the victims were robbed and some of them sexually molested by the robbers. What is not established is whether the appellant was one of the robbers. I am not satisfied that the two victims, PW2 and PW3 were in a position to categorically recognise the appellant as one of the robbers. Both of them stated to be using torch light. There was no unequivocal evidence that the appellant was indeed one of the robbers. No clear evidence that there was electricity and they had switched it on. No description of the appellant in terms of what he wore etc. The recognition was vague and the witnesses could have been mistaken. I have no option than to resolve this slight doubt and others as found in this judgment in favour of the appellant.

I am fortified in this position by the fact that the strongest evidence against the appellant is the confessional statement. In view of my findings in respect of Exhibits E and F & F1, the alleged confessional statement, there isn’t much to rely on in that regard.
Assuming without conceding, that Exhibits E and F & F1

are valid confessional statements, there is no credible evidence, direct or circumstantial which makes it likely that the confession is true. I also find support in the age old maxim that it is better for a hundred guilty people to be set free than for one innocent person to be convicted.

From all my findings in this judgment I hold that this appeal is meritorious and I accordingly allow it. Consequently, the decision of the lower Court convicting and sentencing the appellant to death for robbery is hereby quashed and set aside. The appellant, Henry Iwaloye is hereby discharged and acquitted.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read the draft of the leading judgment, in this appeal, just delivered by my learned Brother, P, A. Mahmoud, JCA

I agree with the line of reasoning and conclusion reached by His Lordship in the said leading judgment that, the appeal is imbued with merits. I also allow the appeal and abide by the consequential orders made therein.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having read in draft the leading judgment of my learned brother, PATRICIA AJUMA MAHMOUD JCA, I am in agreement with same and that the Appeal be

allowed as the offence of Robbery as charged was not proved at the trial Court.

Consequently, the decision of the Lower Court convicting and sentencing the Appellant to death for robbery is hereby quashed and set aside as in the lead judgment. I abide by the discharge and acquittal order of my noble brother.

Appearances:

Dr. Oladoyin Awoyale For Appellant(s)

MRS H. M. Falowo, ACLO, Ondo State MOJ, with him, MS B. A. Oluwaniyi, SLO For Respondent(s)