MATTHEW ORIMOLOYE V. THE STATE
In The Supreme Court of Nigeria
On Thursday, the 18th day of October, 1984
SC.73/1983
JUSTICES
AYO GABRIEL IRIKEFE Justice of The Supreme Court of Nigeria
KAYODE ESO Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
SAIDU KAWU Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
Between
MATTHEW ORIMOLOYE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT THE POWERS OF THE ATTORNEY-GENERAL CAN BE EXERCISED BY HIM IN PERSON OR THROUGH THE OFFICERS OF HIS DEPARTMENT
I think this has been adequately taken care of by s.191 (2) of the Constitution of the Federal Republic of Nigeria which provides –
”The powers conferred upon the Attorney-General under sub section (1)…… may be exercised by him in person or through officers of his department.”
It goes without saying that the D.P.P is an officer in the Attorney-General’s department. There is no need for further exercise or assurance to clothe the D.P.P with the powers of instituting and undertaking criminal proceedings against any person. PER ESO, J.S.C.
DIRECT AND POSITIVE EVIDENCE OF IDENTIFICATION
However, where there is direct and positive evidence of identification or very strong and convincing circumstantial evidence, the onus is clearly in such a circumstance on the accused, the appellant in this case, to call evidence to establish his alibi. If he fails to do this, then the positive evidence of identification or strong convincing circumstantial evidence will be sufficient unequivocal evidence pointing unmistakably to the fact that the accused is the perpetrator of the crime. This is the position in this case. PER KARIBI-WHYTE, J.S.C.
POWERS OF THE ATTORNEY-GENERAL IN CRIMINAL PROCEEDINGS
There is no merit on this ground. S. 191 (4) of the Constitution 1979, clearly and unequivocally provides that the powers conferred upon the Attorney-General under subsection (1), that is to institute and undertake criminal proceedings may be exercised by him in person or through officers of his department. There is no ambiguity that the Director of Public Prosecutions is an officer in the Department of the Attorney- General who has the powers to exercise the powers of prosecution of the Attorney-General. This ground of appeal also fails. PER KARIBI-WHYTE, J.S.C.
IRIKEFE, Ag. C.J.N. (Presiding): The appellant in pursuance of the commission of robbery on the night indicated on the charge brought against him discharged a double-barrelled shot gun in the direction of P.w.1 and scored a hit. Some of the pellets in the cartridge injured P.w.1 on his right hand. Thereafter some of the confederates of the appellant broke down the door of the Singer Machine shop and stole money and goods. P.w.1 and P.w.2 saw the appellant and gave testimony to that effect. In fact, after P.w.1 had received treatment for his gunshot injuries, he was taken by the police to the police station and as soon as he caught sight of the appellant, he pointed to him as the robber who had fired at him in the early hours of that day. The police recovered the spent cartridge at the scene of robbery.
The only issue in this case is that of identity and on the record, the appellant was properly and adequately identified by both P.w.1 and P.w.2, who had ample opportunity to do so. The charge brought against the appellant was proved and nothing that was urged by his counsel would persuade me to disturb the findings made by the court of trial. The appeal clearly lacks merit and should fail. I hereby dismiss it and affirm the conviction and sentence made by the court of trial which were in turn rightly affirmed by the Court of Appeal.
ESO, J.S.C.: The premises of Singer Machine Company at Ife were invaded by robbers at about 1.00 a.m. Eye witness account indicated there were moonlight and streetlight. The 1st and 2nd p.w. identified the appellant. It was he who fired a gun and while in that process he leaned against the car that brought the robbers to the scene. At the first opportunity the appellant was identified by those eye witnesses.
There is not much that could even be said in defence of the appellant whose defence was a denial once the account given by the eye witness was accepted.
The trial court sifted the evidence and came to the inevitable conclusion that it was the appellant that fired that gun and that he was one of the four night marauders.
The Court of Appeal found no substance in the appeal of the appellant.
In this Court, in a detailed brief by Chief Afe Babalola followed by oral submissions by Mr. Aribido the appellant’s claim to innocence was emphasised. Learned counsel talked of inconsistency in the evidence of prosecution witnesses but was only able to refer to evidence of non-eye witnesses whose evidence is immaterial to the identification of the appellant as a culprit. Mr. Aribido also made heavy weather of identification parade. But it is not in every case that a parade is necessary to identify culprits. The appellant was identified by 1st p.w. as soon as the latter saw him at the police station and even before he was asked to identify him.
I do not think there is any merit in the attack by learned counsel on the judgments of the trial court and the Court of Appeal.
Finally the appellant in the brief filed on his behalf submitted that the information filed was null as it was filed by the D.P.P. I think this has been adequately taken care of by s.191 (2) of the Constitution of the Federal Republic of Nigeria which provides –
”The powers conferred upon the Attorney-General under sub section (1)…… may be exercised by him in person or through officers of his department.”
It goes without saying that the D.P.P is an officer in the Attorney-General’s department. There is no need for further exercise or assurance to clothe the D.P.P with the powers of instituting and undertaking criminal proceedings against any person.
On the whole, the appeal is devoid of merit and it is hereby dismissed. The conviction and sentence on the appellant are hereby further confirmed.
KARIBI-WHYTE, J.S.C.: This is an appeal against the dismissal of the appeal of the appellant by the Court of Appeal. Appellant was charged with the offence of (Armed robbery contrary to and punishable under s.1 (2) (a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970, as amended by the Robbery and Firearms (Special Provisions) (Amendment) (No.8) Decree of 1974. He was convicted. At his trial the prosecution called six witnesses. Out of these the 1st and 2nd witnesses who were eye witnesses, identified the appellant. Appellant gave evidence denying the charge and pleaded alibi.
Mr. Aribido has filed three additional grounds of appeal. There was one original ground. In arguing this appeal, counsel has pursued two defences. The first which was the main attack and covered by ground one of the original ground and ground three of the additional grounds of appeal, attacks the identification of the appellant by PW1 and PW2 on various grounds, namely –
(a) That the incident took place at 1 a.m.
(b) That there is conflicting evidence of the lighting of the place rendering it improbable that appellant could be identified.
(c) The method of identification is unsatisfactory.
He submitted that for there to be an acceptable identification there ought to be an identification parade.
It cannot be too seriously argued that the conviction of the appellant was dependent entirely on his identification by PW1 and PW2. The facts of this case which have not been contradicted in any manner are that appellant with three or more others with a double-barrelled gun attacked the premises where PW1 was on guard. They went in a car. PW1 met and exchanged greetings with them. PW2 who lives on the top floor above the shop was awake when the robbery party arrived and saw them through his window. In his statement to the police and his evidence in court, which was corroborated by the PW1, who was on guard at the premises, appellant was a member of the gang of four who came to rob the Singer shop. Appellant was the one recognised by PW1 and PW2 as wearing a beard, white shirt and dark trousers, leaning on the car with which the gang came and carrying the double-barrelled gun. It was appellant who shot at PW1 and injured him, and also fired shots at the building. PW1 and PW2 were able to see the gang and recognised appellant because of the street light which was on, and the moon light. On being fired at PW1 ran away, and PW2 though upstairs in his house locked himself and family in the toilet. Appellant and his confederates carried out their raid by breaking into the shop and carrying away the items enumerated by PW4.
The main questions for consideration are –
(a) The identification of the appellant and
(b) Whether the alibi of appellant was considered.
The question whether appellant was properly identified or not is a question of fact to be considered by the trial court. The trial Judge believed the evidence of PW1 and PW2 and that at the time of the morning they were in a position to recognise the appellant. Besides there was clear corroboration on the fact that appellant was wearing a beard, and his dress. Mr. Aribido has complained about the manner of identification because there was no identification parade. PW1 and PW2 walked into the police station and spontaneously and independently although almost simultaneously identified appellant. It is necessary to point out that the spontaneous reaction towards the recognition of appellant in respect of an offence committed less than six hours earlier is a more acceptable identification of the appellant than a programmed identification. It was clear from the evidence that PW1 and PW2 did not go to the police station for the purpose of identifying appellant.
The finding of fact by the learned trial Judge is faultless. There is no evidence that either or both PW1 or PW2 has written something different from what he now testified on oath to require any satisfactory explanation – See Agwu v. The State (1965) N.M.L.R. 18,20, Jizurumba v. The State (1976) 1 N.M.L.R. 303. The finding of fact has not been challenged as not following from the evidence or that it is perverse. In my view no reasonable tribunal on the evidence can come to a different conclusion.
It was submitted that the prosecution has not disclosed to the court its findings on the investigation of the alibi of the appellant. The nature of the evidence of the appellant makes it very difficult to investigate the alibi with success. However, where there is direct and positive evidence of identification or very strong and convincing circumstantial evidence, the onus is clearly in such a circumstance on the accused, the appellant in this case, to call evidence to establish his alibi. If he fails to do this, then the positive evidence of identification or strong convincing circumstantial evidence will be sufficient unequivocal evidence pointing unmistakably to the fact that the accused is the perpetrator of the crime. This is the position in this case. Appellant having been positively identified by PW1 and PW2 as the person with the gun who came with the other three men to rob the Singer shop, the onus is now on him to introduce evidence that he was not. This he has failed to do. These grounds of appeal therefore fail – Ntam v. The State (1968) N.M.L.R. 86.
The last ground of appeal was that the information was filed in the name of and 40 by the Director of Public Prosecutions who has no authority to file information in view of s. 191 of the Constitution. There is no merit on this ground. S. 191 (4) of the Constitution 1979, clearly and unequivocally provides that the powers conferred upon the Attorney-General under subsection (1), that is to institute and undertake criminal proceedings may be exercised by him in person or through officers of his department. There is no ambiguity that the Director of Public Prosecutions is an officer in the Department of the Attorney- General who has the powers to exercise the powers of prosecution of the Attorney-General. This ground of appeal also fails.
All the grounds of appeal fail. The appeal is dismissed. The conviction of the appellant by the trial court and the dismissal of appellant’s appeal to the Court of Appeal are hereby affirmed.
KAWU, J.S.C.: The appellant was a member of a gang of robbers who raided the premises of the Singer Machine Company situated at Obalufon Street, Ile-Ife in the early hours of 12th June, 1980 and who stole various goods valued at N2,262.00. It was established in evidence that in the course of the robbery the appellant shot at the 1 P.W. who was the night guard. 2 P.W. who lived in a flat on top of the workshop witnessed the incident and shortly afterwards he and 1 P.W. identified the appellant as a member of the gang.
At the trial, the appellant put up a defence of alibi which was rejected. The main question in the appeal here was whether the appellant was properly identified by both first and second prosecution witnesses. This aspect of the case was adequately considered by the learned trial Judge at p.19(13-15) of the record where he said,
“These two witnesses (referring to 1 P.W. and 2 P.W.) testified clearly in court and they were steadfast. When they identified the accused as one of the people who raided the Singer Sewing Machine Company shop at the material time and place (sic) They said they were able to identify the accused because of street lighting and moonlight.”
The trial Judge believed the evidence of these two witnesses.
Having given careful consideration to the oral submissions made and the briefs of both counsel in this appeal, I do not see any merit in this appeal. The appeal is therefore dismissed. The decisions of the lower courts are hereby affirmed.
OPUTA, J.S.C.: This is a straightforward case. The facts are simple and not at all involved. Akinola Akande, a nightguard, was on duty on 11/6/80 at the Singer Machine Company, Ile-Ife. At about 1.00a.m. the following morning, a Peugeot car pulled up. There were about 4 passengers. One of them was the appellant. It was the appellant who fired a double barrel gun at the 1st P.W. The 1st P.W. was taken to the hospital for treatment. On his return to the police station (where likely, following a report, appellant was arrested) presumably to make his statement, 1st P.W. saw and recognised the appellant as the one who fired at him earlier on that morning. This was a spontaneous act. It was not prompted by any question. Also the 2nd P.W., Johnson Bale recognised the appellant. Both 1st P.W. and 2nd P.W. were able to recognise the appellant by the street light and the moonlight. There was nothing in cross-examination to suggest that there was no moonlight that night or no street light around the vicinity of the shop of 1st P.W. But what is more important is that the trial Judge accepted the evidence of identification. In this court, the identification of appellant by 1st P.W. and 2nd P.W. was questioned and branded “unsatisfactory”. I am unable to see anything unsatisfactory in 1st P.W. recognising and identifying someone who a short while before spoke to him and they exchanged greetings. The issue of identification is an issue of fact which on the evidence before him, the learned trial Judge was quite competent to handle.
He believed the evidence of identification. I do not see anything unreasonable or perverse in this belief. This ground fails as does the entire appeal which is completely lacking in substance and merit. It should be dismissed and it is hereby dismissed. The judgment of the trial court and the sentence of death imposed are hereby upheld. The judgment of the court below dismissing appellant’s appeal is also hereby affirmed.
Appeal dismissed.
Appearances
Mr. Babatunde Aribido holding brief – Mr. Ate Babalola For Appellant
AND
Dr. G. O. Olateru-Olagbegi (Mrs), D.D.P.P. Oyo State For Respondent
