MABA v. STATE (2020)

MABA v. STATE

(2020) LCN/4913(SC)

In The Supreme Court

On Friday, January 10, 2020

SC.778/2016

Before Our Lordships:

Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Between

ATTO MABA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CHARGE

The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability.”
at 186 E-G (supra):
“It is not proof beyond all iota of doubt. One thing is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.”
In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5 – 7 SC (Pt. II) 93, (2010) 6- 7 MJSC 187 , it was held that:
“Proof beyond reasonable doubt means proof to moral certainty, such proof as satisfies the judgment and conscience of a judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has beencommitted by the defendant and so satisfies him as to leave no other reasonable conclusion possible.”
See also: Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1. PER KEKERE, EKUN, J.S.C.

THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

The essential ingredients of the offence of armed robbery, which must be established beyond reasonable doubt are:
1. That there was a robbery or series of robberies;
2. That each robbery was an armed robbery;
3. That the accused was one of those who participated in the robbery or series of robberies.
See: Bozin v. State (1985) 2 NWLR (Pt. 8) 465, (1985) 16 NSCC (Pt. II) 1087, (1985) 7 SC 450, (1985) All NLR 199, (1986) 2 QLRN 69; Alabi v. State (1993) 7 NWLR (Pt. 307) 511. PER KEKERE, EKUN, J.S.C.

THE POSITION OF LAW ON THE IMPORTANCE OF IDENTIFICATION OF AN ACCUSED PERSON IN THE COMMISSION OF A CRIME

The identification of the accused as a participant in the commission of the crime is a crucial factor in the successful prosecution of a case of armed robbery. Identification evidence is that which tends to show that the person charged is the same person seen at the locus criminis. See: Nwaturuocha v. The State (supra); Ogoala v. The State (1991) 12 NWLR (Pt.175) 509. PER KEKERE, EKUN, J.S.C.

FACTORS TO DETERMINE WHETHER OR NOT AN IDENTIFICATION PARADE IS NECESSARY

While it is true that an identification parade is a very useful tool in ascertaining the true identity of anyone accused of committing a crime, it is not in every situation that an identification parade must be held. It depends on the facts and circumstances of each case. An identification parade is only necessary when there is doubt as to the ability of the victim to recognize the suspect or where his identity is in dispute. See: Alufohai v. State (2015) All FWLR (Pt. 765) 198, (2015) 3 NWLR (Pt. 1445) 172 at 191 – 192 H.A, (2014) 12 SCM (Pt. 2) 122; Ogoala v The State (supra); Okiemute v. The State (2016) 15 NWLR (Pt. 1535) 297; (2016) LPELR – 40639 (SC). The Courts are guided by certain factors in determining whether or not an identification parade is necessary. It will not be necessary in the following circumstances where:
(a) There is a clear and un-contradicted eye-witness account and identification of the person who allegedly committed the crime;
(b) The witness knew the accused previously;
(c) The defendant is linked to the offences by convincing, cogent and compelling evidence; and
(d) The accused in his confessional statement identified himself with the crime.
On the other hand, an identification parade would be necessary where:
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) The victim or witness was confronted by the offender for a very short time; or
(c) The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.
See: Okiemute v. The State (supra). PER KEKERE, EKUN, J.S.C.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal Sokoto Division, delivered on 4th March 2016, affirming the conviction and sentence of three years imprisonment without option of fine passed on the appellant by the High Court of Sokoto State delivered on 1st February, 2008 for conspiracy and armed robbery punishable under Sections 97 and 298 of the Penal Code.

The appellant and one Abubakar Ibrahim were charged jointly. They were alleged to have conspired to rob and did actually rob one Fatima Darai, while armed with a knife on or about 16th June, 2006 in Takau village of Tangaza Local Government. Area, Sokoto. They were alleged to have forcefully collected the sum of N5,000 from her.

Both accused pleaded not guilty to the two counts of the charge. The appellant was the 2nd accused. The prosecution called four witnesses and tendered exhibits, including the English and Hausa versions of statements made to the Police by the appellant, which were marked Exhibits C and C1 respectively.

The facts are straightforward. According to the complainant, Fatima Darai

(PW3), on 16th June, 2007 at about 3p.m, she travelled to Takkau village for a business transaction with her customer, one Baidu. While Baidu was counting the money paid to her for goods purchased by him, she noticed the appellant and his co-accused gambling and smoking cannabis nearby. On her way back to her village in the company of a neighbour, she was attacked by the two men. It was her testimony that the 1st accused, Abubakar, held her by the neck and pulled her to the ground while the appellant brought out a knife threatening to slit her throat unless she handed over the money she had just collected. She disclosed to them that the money was in her shirt pocket. She was stripped of her shirt and the appellant and his co-accused took the sum of N5,020.00 they found there. Her neighbour fled the scene. She stated that after the incident she made a report to the Police and that she told them she knew the accused persons although she did not know their names.

PW1, Sgt. Ahmed Bala was the exhibit keeper. He tendered in evidence a knife, which was admitted as exhibit 1 and the sum of N980.00 in various denominations, which were marked exhibit 1A.

PW2, Sgt. Chindo Manu, attached to CID Sokoto, was the Investigating Police Officer (I.P.O.) in the case. He recorded the appellant’s statements and testified as to the procedure adopted in obtaining the statements. Being confessional in nature, he testified that he took the appellant before a superior officer before whom he confirmed that the statements were voluntarily made.

Learned counsel for the appellant objected to the tendering of the statements on the ground that they were not made voluntarily. In the circumstance, the learned trial judge ordered a trial-within-trial to be conducted to test the voluntariness of the statement. Midway into the trial-within-trial, the appellant’s counsel withdrew the objection. The Hausa and English versions of the two statements were consequently admitted in evidence and marked exhibits C and C1 respectively.

PW4, PC Yahaya Lawal, attached to Gidan Modi Police Division, testified that as part of his investigation into the matter, he recovered a knife in the home of the appellant and that the appellant handed over the sum of N980 to him, after which he was directed to transfer the matter to the C.I.D. Office, Sokoto.

The appellant testified in his own defence. He denied any involvement in the crime and stated that he was tortured and forced to make exhibits C and C1. He denied knowing his co-accused and stated that he was at his home in Takkau village on the day of the incident.

At the conclusion of the trial and after giving careful consideration of the oral addresses of counsel, the Court found the appellant and his-co-accused guilty as charged and sentenced them to 3 years imprisonment without option of fine on each count, to run concurrently.

Being dissatisfied with the judgment, the appellant appealed to the Court below. In a considered judgment delivered on 4th March 2006, the appeal was dismissed. The appellant is still dissatisfied and has further appealed to this Court vide his notice of appeal filed on 5th August 2016 but deemed filed on 25th October 2018. He has raised three grounds of appeal.

At the hearing of the appeal on 17th October 2019, Said Sanusi, Esq. adopted and relied on the appellant’s brief, which was deemed filed on 25th October 2018, in urging the Court to allow the appeal.

Adopting and relying on the

respondent’s brief, also deemed filed on 25th October 2018, Paul M. Kasim, Esq. withdrew the preliminary objection argued in paragraphs 3.0 to 3.2.5 at pages 10-12 of the brief and urged the Court to dismiss the appeal.

Learned counsel for the appellant formulated a sole issue for the determination of the appeal as follows:
“Whether the appellant was properly connected to the crime for which he was charged, convicted and sentenced in view of the glaring inconsistencies that are apparent on the record.”

Learned counsel for the respondent, while formulating a single issue for determination, contended that out of the three grounds of appeal, the sole issue identified by the appellant is predicated on ground 1 only. He urged the Court to strike out grounds 2 and 3 of the notice of appeal as having been abandoned, as no issue was distilled from those grounds. If that is done, he proposed the following issue for determination:
“Whether having regard to the evidence led at the trial, the appellant was not properly connected to the crime with which he was charged.”

I find the respondent’s issue more apt for the

resolution of the appeal and I adopt it accordingly.

Before considering the merit of the appeal, it is necessary to address the submission of learned counsel for the respondent regarding grounds 2 and 3 of the notice of appeal. The 3 grounds of appeal, without their particulars, are as follows:
1. The lower Court erred in law when it held that as in the instant case, the witness claims to have seen a familiar or definite person, identification parade is absolutely unnecessary.
2. The lower Court erred in law when it held that the retraction of the appellant’s extra-judicial statement does not amount to a retraction in law.
3. The lower Court was wrong to have held that the prosecution had therefore proved not only the offence of conspiracy but also the offence of armed robbery through credible evidence of PW3 and the confessional statement of the appellant, which was positive and direct.

Ground 1 clearly complains about the identification of the appellant as one of those who committed the crime with which he was charged. Grounds 2 and 3 are concerned with the reliance placed on his extra-judicial statement by the Court. The

appellant’s sole issue for determination, as reproduced above, is as to whether the appellant was “properly connected to the crime.” I am of the considered view, that although inelegantly drafted, the sole issue encompasses all the grounds of appeal and is not confined to ground 1 alone. The contention that grounds 2 and 3 have been abandoned is misconceived.

However, I do agree with learned counsel for the respondent that it is proper practice to tie any issue for determination to the grounds of appeal.

Learned counsel has not shown that he has been misled by the manner in which the issue has been couched or that the respondent has suffered a miscarriage of justice thereby.
I shall now proceed to determine the appeal.

Learned counsel for the appellant submitted that in a charge for armed robbery, the identity of the accused as one of those who took part in the offence is crucial and that the failure of the prosecution to prove that the accused was one of those who committed the offence, is fatal to its case. He referred to: Olanipekun v. State (2016) All FWLR (Pt. 845) 123, (2016) 13 NWLR (Pt. 1528) 100 at 121-122 H-B;

Alufohai v. State (2015) All FWLR (Pt. 765) 198, (2015) 3 NWLR (Pt. 1445) 172 at 191 – 192 H.A, (2014) 12 SCM (Pt. 2) 122. He submitted that PW3 testified that her attackers covered their faces with caps but she was able to identify them because she had seen them earlier sitting close to her customer, Baidu’s shop, smoking Indian hemp. He contended that the said Baidu was a material witness, who should have been called to testify to confirm that they were seen earlier. Relying on the case of Famakinwa v. State (2016) 11 NWLR (Pt. 1524) 538 at 560 D-E, he urged the Court to invoke the provision of Section 167 (d) of the Evidence Act, 2011 against the respondent and to hold that if the said Baidu had been called, his evidence would have been unfavourable to the prosecution.

He submitted that there was no evidence as to how and where the appellant was arrested nor how he was identified. He submitted further that there was no evidence before the Court to show that PW3 gave a description of the appellant or his name to the police prior to his arrest. He referred to the evidence of PW4 wherein he stated that the accused persons and the victim were brought

together to Gandi Madi Police Station from a police out post and contended that the evidence showed that the accused persons were already exposed to PW3 by the time they got to Gandi Madi Police Station and that there could no longer be any credible identification of the accused at that stage. He submitted that from the record, PW3 made her statement to the police two days after the appellant and his co-accused made their confessional statements. He contended that PW3’s statement was tailored to synchronize with the confessional statements.

On the standard of proof for eye-witness identification, he referred to Idemudia v. State (2015) All FWLR (Pt. 800) 1302, (2015) 17 NWLR (Pt. 1488) 375, (2015) LPELR – 24835 (CA); Ibrahim v. State (2015) All FWLR (Pt. 779) 1149, (2015) 1 NWLR (Pt. 1469) 164 at 190 A-F.

On the reliance of the lower Court on exhibits C and C1, learned counsel conceded that the Court is entitled to rely on the confessional statement of an accused if it is voluntary and credible. He argued that a careful examination of exhibits C and C1 suggest that the statement was “packaged by the police” and that the appellant

was brutally forced to accept it as his statement. He referred to the evidence of PW4 under cross-examination where he stated that the case reported to the police was a case of extortion and noted that in his statement made at CID Sokoto on 20th June 2006, PW4 made no mention of any search or items recovered from the accused persons. He submitted that it was strange that they were charged with armed robbery and wondered where the knife and the sum of N980 came from. He submitted that the disclosure of PW4 under cross-examination that he did not conduct any search in the home of the appellant, confirms the appellant’s testimony that he was forced to append his signature to exhibits C and C1.

Learned counsel reiterated the criteria for testing the veracity of a confessional statement as stated in Ogedengbe v. State (2014) All FWLR (Pt. 752) 1724, (2014) 12 NWLR (Pt. 142) 338 at 348 , (2014) LPELR – 23065 and argued that exhibits C and C1 failed to meet the requirements. He submitted that in the circumstances there was reasonable doubt about the appellant’s guilt, which ought to have been resolved in his favour.

Another contention is that there were material discrepancies and contradictions in the evidence of the prosecution’s witnesses, particularly PW4. He noted that although PW4 testified that the appellant volunteered a statement to him while he was at Gidan Madi Police Division, the statement was not tendered. Once again he urged the Court to draw the inference provided for in Section 167 (d) of the Evidence Act against the respondent. He referred to Famakinwa v. The State (supra) and Ononuju v. The State (2014) 8 NWLR (Pt. 1409) 345 and urged the Court to resolve the issue in favour of the appellant.

Learned counsel for the respondent, in reply, made a preliminary observation that the appellant did not appeal against his conviction for conspiracy to commit robbery. He submitted, relying on Adejobi v. State (2011) All FWLR (Pt. 588) 850, (2011) 12 NWLR (Pt. 1261) 347, (2011) 6-7 SC (Pt. III) 65, (2011) LPELR (97) 1 and Anyaduba v. Nigerian Renowned Trading Co. (1992) 5 NWLR (Pt.243) 535, (1992) 6 SCNJ 204, that where a finding has not been challenged, it remains binding and subsisting.

He submitted further that it is not the practice of this Court to interfere with

concurrent findings of fact, unless such findings are shown to be perverse. He relied on: The stool of Abinabina v. Enyimadu (1938) AC 207, (1953) 12 WACA 171; Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561, (1992) 7 SCNJ 284; Mainagge v. Gwamma (2004) All FWLR (Pt. 222) 1617, (2004) 7 SCNJ 361, (2004) 7 SC (Pt. 11) 86 at 97.

Learned counsel submitted that the evidence led by the prosecution satisfied the ingredients for both conspiracy to rob and armed robbery punishable under Sections 97 and 298 of the Penal Code. He noted that Section 96, which defines conspiracy, has been considered and interpreted in a plethora of cases, including Chianugo v. The State (2002)2 NWLR (Pt. 750) 225 at 236 A; Obiakor v. The State(2002) 10 NWLR (Pt.776) 612 at 628, to the effect that it must be proved beyond reasonable doubt that:
(a) The agreement to commit an offence – an illegal act is between two or more persons.
(b) That the said act, apart from the agreement itself, must be expressed in furtherance of the agreement.

He submitted that it is also settled law that agreements under Section 96 of the Penal Code can be inferred from circumstantial evidence. See: Obiakor v The State (supra) and Ahmed v The State (supra).

For the offence of armed robbery, he submitted that the prosecution must prove:
(a) That there was a robbery or series of robberies;
(b) That the robbery or series of robberies was an armed robbery;
(c) That the accused was one of those who took part in the armed robbery.
He referred to Bozin v. State (1985) 2 NWLR (Pt. 8) 465, (1985) 16 NSCC (Pt. II) 1087, (1985) 7 SC 450, (1985) All NLR 199, (1986) 2 QLRN 69; Alabi v. State (1993) 7 NWLR (Pt. 307) 511 at 523 F-H. He reproduced an excerpt of exhibits C and C1 wherein the appellant confessed to acting in concert with his co-accused to rob PW3 and narrated how he spent his share of the loot. He submitted that the facts stated by the appellant could only be given by someone with peculiar knowledge of what took place and how the offence was committed.

He submitted that notwithstanding the fact that he resiled from the statement in Court, the Court was entitled to base a conviction on it once it was satisfied that it was true and that there was other evidence outside the statement that rendered it probable.

He submitted that nevertheless, the general practice of the Court is to look outside the statement for some corroborative evidence that makes it probable that the statement is true. He referred to Onochie v. The Republic (1966) NMLR 307; R v. Kanu (1952) 14 WACA 30.

He submitted that the evidence of PW3 is that of an eye witness, which the two lower Courts found credible. He argued that her evidence was corroborative of the appellant’s confessional statement. He submitted that there is no evidence to substantiate the contention of the appellant’s counsel that PW3 synchronized her evidence with the appellant’s statement – that there was no evidence that she read the appellant’s statement before making her own.

He contended further that it was not necessary to call PW3’s customer, Baidu or the neighbour she was with when she was attacked, because her eye-witness account was cogent and credible. He submitted that the burden of proof upon the prosecution is discharged by the quality of evidence tendered and not the quantity of witnesses who testify. He cited the case of Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521, (1999) 2 LRCN 232, (1998) 4 SC 110.

He submitted that PW3’s evidence satisfied the ingredients of conspiracy to rob and armed robbery.

On the evidence of identification, he submitted that PW3 was emphatic that it was the appellant and his co-accused that she saw on the fateful day, having noticed them earlier in front of Baidu’s shop gambling and smoking Indian hemp. That they saw her collect money from Baidu, and having seen them earlier, it was easy for her to recognize them. He submitted that by covering his face with a cap, the appellant was trying to hide his identity because he knew that she could recognize him, but the attempt was futile.

Regarding the identification of the appellant, he submitted that an identification parade is unnecessary where the victim had known the accused prior to the commission of the crime. He referred to Joseph Amoshima v The State (2009) 4 NCC 280 at 285; Balogun v. A.G. Ogun State (2002) 6 NWLR (Pt. 763) 512 at 534; Eyisi v. State (2000) 12 SC (Pt. 1) 24, (2000) 15 NWLR (Pt. 691) 555, (2001) FWLR (Pt. 35) 750, (2001) 8 WRN 1, (2001) 12 SCNJ 104. He submitted that the case of Famakinwa v. The State (supra),

relied upon by learned counsel for the appellant is distinguishable from the facts of the instant case. He submitted that the contention that PW3 did not mention the names or give a description of the appellant and his co-accused to the police when she made her report, is of no moment, as PW2 and PW4 who participated in the investigation were not cross-examined on the issue. He submitted that the address of counsel cannot take the place of evidence. He relied on Anthony v. Governor of Lagos State (2003)10 NWLR (Pt. 828) 302; Obasuyi v. Business Ventures Ltd (2000) FWLR (Pt. 10) 1722, (2000) 5 NWLR (Pt. 658) 668, (2000) 12 WRN 112, (2000) 4 SC (Pt. 162) 175. Learned counsel wrongly referred to p. 668 EF. He submitted that the Court does not engage in speculation.

He also noted that in her evidence at the trial, PW3 stated that she made a statement to the police stating that she knew the accused persons although she did not know their names. He argued that the issue of mentioning their names at the earliest opportunity therefore does not arise. He submitted that her evidence that she knew them and that they saw her collecting money from her customer was not

challenged under cross-examination and is therefore fully established. See:Oforlete v. The State (2000) 12 NWLR (Pt. 681) 415 Cal 436; Adebiyi v. Umar (2012) 9 NWLR (Pt. 1305) 279 at 296.

Learned counsel submitted that the tests for determining the truth of exhibits C and C1 were fully met in this case and the two lower Courts were right in relying on the appellant’s confessional statements and the testimony of PW3 in convicting him and affirming his conviction respectively. He noted that the appellant and his co-accused narrated how they spent the money taken from PW3, facts which are peculiarly within their knowledge.

He contended that some of the issues thrown up by learned counsel for the appellant as contradictions are minor inconsistencies, which are not fatal to the prosecution’s case, since they do not contend the opposite of the case. See:Gabriel v. State (1989) 5 NWLR (Pt. 122) 457, (1989) 12 SCNJ 33; Okonkwo v. Okonkwo (2004) 5 NWLR (Pt. 865) 87 at 128. He noted that whether it was N5,000 or N5,020 that was taken from PW3 is not a material contradiction. Similarly, as regards how exhibits 1 and 1A were recovered, he noted

that PW4 testified that a search was conducted in the homes of the accused persons and a knife was found in the appellant’s house. As to which of the accused held the knife to PW3’s neck, he submitted that there was credible evidence to the effect that the duo acted in concert with one person holding the victim down and the other wielding the knife – it was immaterial who did what in the circumstances.

He did not address the argument that the complaints against the accused persons were conspiracy and extortion and not armed robbery, the involuntariness of exhibits C and C1 and the alleged withholding of the appellant’s statement made at Gidan Madi Police Division, on the ground that the sole issue formulated by the appellant does not relate to those issues.

Earlier in this judgment, I held that the sole issue formulated by the learned counsel for the appellant encompasses the three grounds of appeal. The arguments will be considered at the appropriate stage in the judgment.

The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See

Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability.”
at 186 E-G (supra):
“It is not proof beyond all iota of doubt. One thing is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.”
In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5 – 7 SC (Pt. II) 93, (2010) 6- 7 MJSC 187 , it was held that:
“Proof beyond reasonable doubt means proof to moral certainty, such proof as satisfies the judgment and conscience of a judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been

committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible.”
See also: Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.

In the instant appeal, the first and second ingredients of the offence are not in serious contention. The main plank upon which this appeal has been fought is that the prosecution failed to prove that the appellant was the person who attacked the victim (PW3).

The identification of the accused as a participant in the

commission of the crime is a crucial factor in the successful prosecution of a case of armed robbery. Identification evidence is that which tends to show that the person charged is the same person seen at the locus criminis. See: Nwaturuocha v. The State (supra); Ogoala v. The State (1991) 12 NWLR (Pt.175) 509.

Learned counsel for the appellant has argued strongly that without an identification parade, the lower Court was wrong to have affirmed the finding of the trial Court that the appellant was properly identified by PW3.

The Courts are guided by certain factors in determining whether or not an identification parade is necessary. It will not be necessary in the following circumstances where:
(a) There is a clear and un-contradicted eye-witness account and identification of the person who allegedly committed the crime;
(b) The witness knew the accused previously;
(c) The defendant is linked to the offences by convincing, cogent and compelling evidence; and
(d) The accused in his confessional statement identified himself with the crime.
On the other hand, an identification parade would be necessary where:
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) The victim or witness was confronted by the offender for a very short time; or
(c) The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.
See: Okiemute v. The State (supra).

Learned counsel for the appellant made heavy weather of the fact that PW3 did not give the description or names of her attackers

to the police prior to their arrest, especially as she stated that they covered their faces with caps. Under cross-examination, she stated that in her statement to the police, she told them that she knew the accused persons, although she did not know their names. Her statement to the police was not tendered with a view to challenging her on that aspect of her evidence. It follows, therefore, that her evidence remained unshaken, even under cross-examination.

She stated that she saw the appellant and his co-accused sitting close to the shop of one Baidu, with whom she was conducting her business, and that they were gambling and smoking Indian hemp and that they saw when the said Baidu counted money and handed it over to her for the goods she had sold to him. She was clear and unequivocal in her testimony. The learned trial judge, who had the opportunity of listening to her testimony and observing her demeanor in the witness box, believed her. The lower Court agreed with him.

Even though PW3 said the robbers covered their faces with caps at the time they attacked her, she had testified not only that she knew them, even though she did not know their

names, she also stated that she had seen them shortly before she was attacked observing her transaction with Baidu.

In addition, the appellant made a confessional statement wherein he stated inter alia, as follows:
“I could remember on Friday 16th June, 2006 about 1500 hours after jumaat prayer, I saw Fatima who happened to come to our village from Sabo village. I saw her with huge amount of money the time she is buying rice in our village. I told Abubakar Ibrahim that we should go and attacked (sic) her in the bush and get money. We agreed and I carried my knife and a cap which I used and cover my face. Myself and Abubakar Ibrahim went to the bush between Takkau village to Guddau village, I told Abubakar Ibrahim to jack her on the neck while myself brought out knife and told her to bring money or I will kill her. Fatima then brought out the money and gave us, from (sic) we ran away and leave (sic) her there.
After counting the money, we discovered it is N5,000 only which we shared among the two of us each take N2,500. I spent my share as follows; I bought rice seed of N560, I gave my wife 1,000 to get labourers at my rice farm. I bought five

plates of millet of N600 also I bought meat of N300 while remaining N40 I use it in buying Sodrax and Paracetamol to enable me work in my farm…”

Section 28 of the Evidence Act 2011, provides:
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
It is settled law that an accused person may be convicted solely on the basis of his confessional statement if it is positive, direct, unequivocal and voluntarily made.
See: Yesufu v. State (1976) 6 SC 167, (1976) NSCC 307; Nwachukwu v. The State (2003) NWLR (Pt.123) 312; Kamila v. The State (2018) 8 NWLR (Pt. 1621) 252. There can be no better proof of the commission of a crime than the words of the accused himself, voluntarily stating how the offence was committed and the role he played.

In the instant case, not only did the appellant give a graphic account of all that transpired, he also gave details of how the money taken from PW3 was shared between him and his co-accused and how he spent his own share.

As observed earlier, the two lower Courts found the evidence of PW3

to be cogent and credible. Her evidence corroborates the facts contained in exhibits C and C1. The contention of learned counsel for the appellant that PW3’s testimony was procured to tally with exhibits C and C1 is speculative and without basis.

Returning to the issue of identification, I am of the considered view that the lower Court was correct when it held that having regard to the circumstances of this case, an identification parade was not necessary.
Relying on the authority of Okiemute v. The State (supra), it is evident from the testimony of PW3 that she knew the appellant and his co-accused prior to the incident, even though she did not know their names. The Court was entitled to treat the appellant’s confessional statement as having been voluntarily made, as the objection, to its voluntariness was withdrawn after the commencement of the trial-within-trial. Where an accused person unequivocally admits that he committed the crime for which he is charged, an identification parade is unnecessary.

Having confessed to the crime and given details of his participation, evidence as to where and how he was arrested is neither here

nor there, particularly as it was not made an issue by the defence at the trial.

Learned counsel for the appellant has been unable to satisfy me that there were any material contradictions in the evidence of the prosecution witnesses to warrant interference by this Court, the appellant himself having confessed to committing the crime.

It is also well settled that in proving its case, the prosecution is not required to call a particular number of witnesses or a host of witnesses. All it needs to do is to call enough material witnesses to satisfy the burden of proof. Where the prosecution fails to call a particular witness and the defence deems his evidence crucial to the case, he is at liberty to call that witness himself. See: Afolalu v The State (supra); Olayinka v. State (2007) All FWLR (Pt. 373) 163, (2007) 2 NSCC 505, (2007) 9 NWLR (Pt. 1040) 561, (2007) 4 SC (Pt. 1) 210, (2007) 85 SCM 193, (2007) 8 SC 193; Ochiba v. State (2011) 17 NWLR (Pt 1277) 663, (2012) All FWLR (Pt. 608) 849. In view of the credible evidence given by PW3 and the appellant’s confessional statement, the prosecution was not obliged to call Baidu to testify.

It is my considered view that he was not a material witness in this case.

The fact that the Police initially investigated a case of extortion is also of no moment. The charges before the Court were conspiracy and armed robbery and that is the case on which evidence was led and which was proved by the prosecution.

Furthermore, having confessed that he committed the offence in the company of and with the cooperation of his co-accused, as stated by PW3, the charge for conspiracy was fully established. Having acted in concert with another to do an illegal act, it makes no difference who did what in the prosecution of the crime.

On the whole, I am satisfied that the appellant was properly connected to the crime with which he was charged. I am not persuaded to interfere with the concurrent findings of the two lower Courts. The sole issue for determination in this appeal is resolved against the appellant. The appeal lacks merit and is hereby dismissed.
The judgment of the lower Court is affirmed. Appeal dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment just delivered by my learned

brother, Kekere-Ekun, JSC. I entirely agree with the reasoning and conclusions that the appeal should be dismissed.
Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: My lord Kekere-Ekun JSC, obliged me with the draft of the leading judgement delivered now. I am persuaded by the reasoning and conclusion.

I entirely agree with my lord that an identification parade is a very useful tool in ascertaining the true identity of anyone accused of committing a crime. Accordingly, as a general proposition, where a trial Court is confronted with the question of identification of an accused person, it should be satisfied that the evidence of identification, which the prosecution marshalled, establishes his guilt beyond reasonable doubt, Ukpabi v. State (2004) All FWLR (Pt. 218) 814, (2004) 11 NWLR (Pt. 884) 439, (2004) 34 WRN 133; (2004) 7 SC 189, 199 – 200.
However, an identification parade is not, always, a sine qua non to conviction. It, [that is, an identification parade], is only necessary when there is doubt as to the victim’s ability to recognize the suspect or where his identity is in dispute, Ikemson v. State (1989) 1 CLRN 1, (1989) 3 NWLR

(Pt. 110) 455, (1989) 6 SCNJ 54, (1989) 20 NSCC (Pt. 11) 471, (1989) 6 SC (Pt. 5) 14; Ibrahim v. State (1991) 4 NWLR (Pt. 186) 399, (1991) 5 SCNJ 129; Ibe v. State (1992) 5 NWLR (Pt. 244) 642; (1992) 5 SCNJ (Pt. 11) 172; The State v Aibangbee (1988) 3 NWLR (pt 84) 549; (1988)7 SCNJ 128,(1988) 2 NSCC 192.
Other cases include: Attah v. State (2010) All FWLR (Pt. 540) 1224, (2010) 10 NWLR (Pt. 1201) 190, (2010) LPELR 597 (SC) 33; Balogun v. Attorney-General, Ogun State (2001) 94 LRCN 260, (2002) 6 NWLR (Pt. 763) 512, (2002) 2 SCNJ 196, (2002) 4 SCM 23, (2002) 2 SC (Pt. 11) 89, (2002) FWLR (Pt. 100) 1287; Eyisi v. State (2000) 12 SCNJ 104, (2000) 4 NSCQR 60, (2001) FWLR (Pt. 35) 750, (2001) 8 WRN 1(2002) 15 NWLR (Pt. 691) 555; Williams v. State (1992) 10 SCNJ 74, (1992) 8 NWLR (Pt. 261) 515; Ugwumba v. State (1993) 5 NWLR (Pt. 296) 660, (1993) 6 SCNJ (Pt. 11) 217.

It is for these, and the more elaborate, reasons in the leading judgement that I, too, will dismiss this appeal as unmeritorious.
Appeal dismissed.

EJEMBI EKO, J.S.C.: This is an appeal against the concurrent judgment. The trial Court had convicted and sentenced the appellant for

conspiracy and armed robbery, punishable respectively under Sections 97 and 298 of the Penal Code Law of Sokoto State. The lower Court affirmed the conviction and sentence.

The sole issue formulated from the three grounds of appeal before us here is –
Whether the appellant was properly connected to the offences charged, in view of the inconsistencies apparent on the record.

The challenge to the concurrent judgment is thus one premised on facts. It is a challenge to concurrent findings of fact. I notice that the appellant’s counsel had couched his arguments before us as if he was presenting final address before the trial Court. At this second tier of appeal, counsel should have concerned himself with showing how the lower Court erred in affirming the conviction and sentence of the appellant for the alleged offences. Counsel should always bear in mind that, appeal to this Court on facts, by dint of Section 233(2) and (3) of the Constitution, is not as of right, it would not be right of him to be labouring to have the apex Court review the evidence, previously reviewed by the two Courts below, the third time unless special circumstances justify

that unusual cause. It is now trite, and the judicial policy has antiquated policy behind it, that concurrent findings of fact cannot be re-opened unless the appellant shows exceptional circumstances: Devi v. Kumar Romendra Narayan Roy (1946) AC 508; Kwasi v. Twum (1952) 12 WACA 309; ALLI v. Alhaji (1953) 13 WACA 320; Kodilinye v. Anatogu (1955) 1 WLR 231; Dawodu v. Danmole (1962) 1 ALL NLR 702. In view of the antiquity of this principle, time has come to regard an appeal to this Court premised only on facts with the ulterior purpose of this Court undertaking a third evaluation of facts as an abuse of Court’s process.
The facts argued in this appeal attest to the point I am making. The appellant made undisputed confessional statements, exhibits C and C1. The confession was recorded by the PW2. The senior police officer was made to attest to the voluntariness of the making of the said confession, which confession in exhibits C and C1 was admitted unopposed into the body of the evidence against the appellant at the trial. The evidence of the PW3, the victim of the robbery, which remained unshaken and unscathed by cross-examination, corroborated the

facts admitted in exhibits C and C1 in every materia particular. The evidence of the PW3 had fixed and connected the appellant to the alleged robbery. His identity was no longer in doubt as participes criminis. Appellant’s counsel, clearly testing the intelligence of this Court and by extension insulting the intelligence of the two Courts below, had this appeal contending on these undisputed facts, that the appellant was not properly connected to the offences charged. This is what makes this appeal clear abuse of Court’s process which, in administration of justice has never been tolerated.

The counsel responsible for this appeal is hereby reminded of the combination of Rules 30 and 32 (2)(j) & (k) of the Rules of Professional Conduct for Legal Practitioners, 2007 – the RPC frowns at this conduct. Rules 30 and 32 (2)(j) & (k) of the RPC are as follows-
30. A lawyer is an officer of Court and accordingly, he shall not do any act or conduct himself in a manner that may obstruct, delay or adversely affect the administration of justice.
2. In presenting a matter to the Court, a lawyer shall (not)
(j) promote a case which to

his knowledge is false.
(k) in any other way do or perform any act which obviously amounts to an abuse of the process of the Court or which is dishonourable and unworthy of an officer of the law charged, as a lawyer, with the duty of aiding in the administration of justice.
I notice, these days: either for quick financial gains or for the purpose of making the numbers of Supreme Court appearances required to support application for the conferment of the privilege of the rank of Senior Advocate of Nigeria, lawyers are becoming rather reckless in the manner they approached and inundate this Court with all manners of appeals. As a word is enough…I say no more.

This appeal frivolously and vexatious deserves to be and it is hereby dismissed. Accordingly, I hereby endorse and adopt the judgment just delivered by my learned brother, K. M. O. Kekere-Ekun JSC.
Appeal dismissed.

UWANI MUSA ABBA-AJI, J.S.C.: I was privileged to read in advance the lead judgment just delivered by my brother, Kekere-Ekun JSC. I am in agreement with the reasoning and conclusion reached by him to dismiss the appeal.

The lower Court division of Sokoto

affirmed the conviction and sentence of the appellant for conspiracy and armed robbery under Sections 97 and 296 of the Penal Code respectively.

On 16th June, 2007 at about 3pm, Fatima Darai traveled to Takkau village for her usual business with her customer, Baidu. While Baidu counted the money paid her for the goods he bought from her, she noticed the appellant and his accomplice gambling and smoking cannabis nearby. On her way back to the village in the company of a neighbour, she was attacked by the 2 men. She gave evidence that the 1st accused, Abubakar, held her by the neck and pulled her down to the ground while the appellant, who brought out a knife threatened to slit her neck unless the money she got from her business was handed over to him. Having stripped her shirt where the money was hid, they collected N5,020.00 from her. Her neighbour luckily fled away. Her report to the police was emphatic that she knew the accused persons previously although she did not know their names. Both the trial and lower Courts found them guilty as charged, hence the current appeal.

The issue distilled for determination by the appellant is:
Whether the

appellant was properly connected to the crime for which he was charged, convicted and sentenced in view of glaring inconsistencies that are apparent on the record.

It appears and so glaring by the issue formulated by the appellant’s counsel that he does not protest the other ingredients but wants to disconnect the appellant from participation or connection with the armed robbery. All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any the ingredients of the offence charged, the accused is entitled to acquittal by the trial or appellate Court. In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the undermentioned elements, namely- (I) that there was a robbery, (II) that the robbers or any of them was armed at the time of the robbery; and (III) that the accused person or persons was/were the armed robber(s). All the above ingredients must co-exist. In other words, if any one or more of these ingredients has not been proved; then the offence fell short of being proved beyond reasonable doubt and therefore the Court must discharge and acquit

the accused person of the offence of armed robbery. See Per Sanusi, JSC in Ugboji v. State (2017) LPELR-43427 (SC).

The connecting rod to the appellant is the PW3 who gave clear and unequivocal evidence that she knew them previously before the armed robbery. Her testimony is that she saw them sitting by a shop close the one of Baidu, gambling and smoking Indian hemp. Apart from her previous knowledge and familiarity with them, she narrated that she saw them shortly before the armed robbery. Although he contested the voluntariness of his confession, the trial Court who had the singular privilege of watching his demeanour, accepted the confessional statement as corroborative of his connection with the armed robbery.

Where a visual identification as here has not been destroyed by any credible evidence to the contrary, the Court will be entitled as here to accept and act on it. See Per Chukwuma- Eneh JSC, in Ilodigiwe v. State (2012) LPELR-9342 (SC).

Identification parade is only one way of establishing the identification of an accused person in relation to the offence charged. Where, as in the present case, the accused person is well known to the

witness before the day of the commission of the offence alleged, there can be no need for an identification parade. Similarly, where the witness had ample opportunity to identify the accused person, as in the case on hand, I would not think an identification parade was necessary. Recognition may be more reliable than identification of a stranger. See Per Ogundare, JSC in Eyisi v. State (2000) LPELR-1186 (SC), also per Eko JSC, in Lawali v. State (2019) LPELR-46405 (SC).

The PW3 gave a vivid and categorical identification and identity of the appellant shortly before the crime and immediately after the crime. Thus, the identification or identity of the appellant in connection to the armed robbery cannot be an issue herein at all. He has been squarely fixed and identified as one of the two people that robbed PW3.
I therefore affirm the judgment of the lower Court. The appeal is dismissed.
Appeal dismissed.

Appearances:

SAID SANUSI, ESQ. For Appellant(s)

PAUL M. KASIM, ESQ. For Respondent(s)