MATTHEW THOMAS vs THE STATE
(2017) LCN/4551(SC)
In the Supreme Court of Nigeria
Friday, February 24, 2017
Case Number: SC. 384/2014
RATIO
GUIDES TO BE FOLLOWED IN AVOIDING CASES OF MISTAKEN IDENTITY IN IDENTIFICATION OF THE ACCUSED AS THE SAME PERSON WHO WAS SEEN COMMITTING THE OFFENCE
On the issue of whether the identification of the accused appellant was properly made sufficient to link the appellant to the offences charged, it is to be said that it is settled law that identification evidence is such tending to show that the person charged with an offence is the same person who was seen committing the offence. The proof of such identification is beyond reasonable doubt. In the instant case PW2, Olujimi Akintoroye testified that he saw the 2nd accused now appellant when he peeped through the glass door in his evidence and stated that he had all the opportunity of knowing all that transpired as appellant had been their gatekeeper for about a year. Thus providing direct evidence. Also PW1, Justice Akintoroye said he did not personally see appellant in person on the day of incident but that his wife did, while he (PW1) saw the 1st accused at the time of the attack which facts he mentioned to the police station at the earliest opportunity. When these pieces of evidence are taken along the guide set out to avoid mistaken identity which guides are: Circumstances which the eye-witness saw the suspect – whether it was in difficult conditions; a) The length of time the witness saw the suspect or defendant whether in a glance or longer observation; b) The opportunity of close observation; c) Previous contact between the parties; d) The lighting conditions. Then it can be seen that the prosecution/respondent met the required standard that the identification was properly made beyond reasonable doubt. See Ikemson v State (1989) 3 NWLR (Pt.110) 455 at 478 and 479; Ochiba v State (2012) All FWLR (pt.608) 849 at 871. PER MARY UKAEGO PETER-ODILI, J.S.C.
ELEMENTS THE PROSECUTION MUST PROVE TO SUCCEED IN A CHARGE OR OFFENCE OF CONSPIRACY
On what the prosecution should do to succeed in a charge or offence of conspiracy to rob and armed robbery, the ingredients of the offences are thus:- a) That there was an agreement or confederacy, between the convict and others to commit the offence of robbery. b) That in furtherance of the agreement or confederacy, the accused took part in the commission of the offence of robbery or series of robberies. c) That the robberies or each of the robbery was an armed robbery. See Yusuf v. State (2008) All FWLR (Pt.405) 1731. PER MARY UKAEGO PETER-ODILI, J.S.C.
MEANING OF THE PHRASE “PROOF BEYOND REASONABLE DOUBT”
It is to be reiterated that this standard of proof beyond reasonable doubt is not synonymous with proof beyond all doubt or all shadow of doubt. What it means is that the prosecution establishing the guilt of the accused person within compelling and conclusive evidence which translates to a standard that high degree of probability. That is on display herein and there was no necessity for a host of witnesses as who testified were vital and rendered crucial evidence that met the standard beyond reasonable doubt and that is enough. See Adewale Joseph v. State (2011) 6 SCNJ 222 at 235. PER MARY UKAEGO PETER-ODILI, J.S.C.
WHETHER AN IDENTIFICATION PARADE IS NECESSARY TO IDENTIFY A PERSON ACCUSED OF COMMITTING A CRIME; HOW TO DETERMINE WHETHER OR NOT AN ACCUSED PERSON HAS BEEN PROPERLY IDENTIFIED AS BEING ONE OF THOSE WHO COMMITTED THE OFFENCE
It is not in every case that an identification parade is necessary to identify a person accused of committing a crime. The question whether an accused person is properly identified as being one of those who committed the offence is a question of fact to be determined by the trial Court on the evidence adduced for that purpose. See: Ukpabi v. The State (2004) 11 NWLR (Pt.884) 439; Adeyemi v. The State (1991) 2 NWLR (Pt.170) 679. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
JUSTICES:
MARY UKAEGO PETER-ODILI
KUMAI BAYANG AKAAHS
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
CHIMA CENTUS NWEZE
EJEMBI EKO
APPELLANTS
MATTHEW THOMAS
RESPONDENTS
THE STATE
KUMAI BAYANG AKAAHS JSC The appellant was the 2nd of the three accused who were arraigned before the Ondo State High Court sitting at Akure on a two count charge of conspiracy to commit armed robbery and robbery contrary to sections 6(b) and l (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap RII Vol. 14 Laws of the Federal Republic of Nigeria 2004. The 1st and 3rd accused were Benjamin Friday and Nelson Friday respectively. The Charge No. HOD/5C/2008 reads as follows:- COUNT 1 STATEMENT OF OFFENCE CONSPIRACY to commit armed robbery, contrary to and punishable under, section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap RII Vol. 14 Laws of the Federal Republic of Nigeria 2004. PARTICULARS OF OFFENCE BENJAMIN FRIDAY MATTHEW THOMAS and NELSON FRIDAY on or about the 1st day of February, 2008 at Ondo in the Ondo Judicial Division did conspire with one another to commit a felony, to wit armed robbery. COUNT II STATEMENT OF OFFENCE ARMED ROBBERY contrary to and punishable under section l (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap RII Vol. 14 Laws of the Federal Republic of Nigeria 2004. PARTCULARS OF OFFENCE BENJAMIN FRIDAY, MATTHEW THOMAS and NELSON FRIDAY on or about the 1st day of February, 2008 at Ondo in the Ondo Judicial Division robbed Hon. Justice Williams Akin Akintoroye of a sum of N14, 000.00, two sets of laptop computers, a suit, a wrist watch, a pen, a double-barrelled gun and jewelleries and at the time of the robbery you were armed with offensive weapons, viz: guns, cutlasses etc. The accused pleaded not guilty to the charge. In proof of its case the prosecution called four witnesses and tendered several exhibits. PW1 and PW2 were the victims of the robbery while PW3 and PW4 were the Police Officers who investigated the case. Apart from the toy gun which was recovered during the search conducted in the accused residence which was tendered as exhibit B, none of the items mentioned in the charge sheet could be seen. At the end of the trial, all the accused were found guilty of the offences charged and sentenced to death by hanging. Dissatisfied with the conviction each of the accused appealed against the conviction and sentence but the appeals were dismissed. They all filed Notices of Appeal to this court. The 1st and 3rd appellants’ appeals Nos. SC. 382/2014 and SC. 383/2014 respectively were dismissed on 1st July, 2016. This appeal no SC. 384/2014 is the appeal by the 2nd appellant. The appellant’s counsel, Ayo Asala Esq. filed a brief on behalf of the appellant on 16/9/2014 while Tunde Babalola Esq. of counsel also filed an amended brief of argument on behalf of the respondent on 21/10/2016 but was deemed filed on 1/12/2016, the same date the appeal was heard. Two issues were raised in the appellant’s brief which are:- (i) Whether the lower court was right in affirming the decision of the learned trial Judge that the prosecution led credible evidence of identification of the appellant as one of the armed robbers that attacked PW1 and PW2. (ii) Whether having regard to the circumstances and from the totality of the evidence on the record, the lower court was right in upholding the decision of the trial court that the prosecution proved the offences of conspiracy to rob and armed robbery against the appellant beyond reasonable doubt. The respondent adopted the issues framed by the appellant. In his argument on issue No. 1 learned counsel for the appellant attacked the findings made by the trial Judge on the identification of the appellant which were accepted by the court below and submitted under paragraph 3.08 page 7 of the appellant’s brief that the person that was identified as the appellant by PW1 and PW2 did not enter the house with the other four armed robbers and so there was no contact between the person that was identified as the appellant and the victims. Learned counsel also submitted that the evidence of PW2 contrasted sharply with that of PW1 on the recognition of the appellant as one of the armed robbers. He therefore contended that there are material contradictions in the evidence of the prosecution witnesses on the vital issue of the recognition of the appellant. On issue 2 learned counsel submitted that since PW1 did not mention exhibit B as one of the items stolen from his house, the heavy reliance which the learned trial Judge placed on the ownership of the said exhibit to convict the appellant is not supported by the totality of the evidence adduced and so the findings are perverse and the lower court should have set aside the said findings relying on Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521 and Aruna v. State (1990) 6 NWLR) (Pt. 155)125. Learned counsel for the respondent submitted that the lower court was right in affirming the decision of the learned trial Judge who relied on the evidence of identification/recognition of the appellant by PW1 and PW2. The fact that PW1 and PW2 knew the appellant as their gateman before the armed robbery incident and the evidence of PW2 that he saw the appellant as the person who was outside with the dogs on the night of the robbery made the lower court to invoke the provisions of section 9(b) of the Evidence Act to arrive at the conclusion that there are other facts which by themselves make the identification of the appellant by PW2 probable. The lower court relied on Anekwe v. The State (1976) 9-10 SC 255 to hold that a Judge is permitted to infer from the facts proved and other facts necessary to complete the element of guilt or establish innocence. The evidence given by PW2 regarding the appellant is as follows:- “As the dogs barked my father and I peeped through the glass door to see what was the problem if any. I notice that the dogs were attracted to a particular object near the gate area. It was at this stage we saw Matthew Thomas (2nd accused). In the process my mother screamed, alerting us that there were intruders in the compound ………………………………………………………. The 2nd accused was our gate-keeper in the house up to December, 2007. He was in charge of the dogs. He fed them, apart from his normal gatekeeping duties. The dogs stopped barking when they were attracted to the gate ………………………………………….. On the following morning, my father and I were in company of policemen when we saw the 2nd accused person (Matthew Thomas). He was trying to buy something from a kiosk when we saw him. My father pointed him out to the policemen who immediately arrested him. He was taken to the police station at Funbi Fagun from where a team of policemen came to look for the other accused person. It was the 2nd accused who told the police the names and addresses of the 1st and 3rd accused persons”. On being cross-examined PW2 said: The incident happened at about 8.30p.m. The scene of attack was well lit. I confirm that the 2nd accused was arrested a day after the incident. I was with the Police when they visited the house of the 1st and 3rd accused with the 2nd accused acting as pointer. I have not suspected the 2nd accused but I actually saw him on our premises on the night of the robbery attack”. The 1st accused testified that the 2nd accused who had asked him to help him find a job passed the night in the house where he was living with the 3rd accused who is his elder brother. They had arranged to go to the woman who was to offer the 2nd accused work in the farm on the morning of the day of his arrival but he had to wash his master’s car so he advised 2nd accused to go out and buy a recharge card and call the woman. No sooner the 2nd accused left him to make the call as suggested than he saw him come back in handcuffs accompanied by policemen. The policemen asked him if he knew the 2nd accused and he answered in the affirmative. The policemen then demanded to see where the 2nd accused slept the previous night. On being shown the house they entered and searched the house where they recovered the toy gun (Exhibit B) and army camouflage trousers (Exhibits “C”) and the identity card belonging to one “Samuel Peace” a trailer driver and member of the N.U.R.T.W Ondo Branch (Exhibit D). He said the exhibits were inside a bag left behind by one Enete who is his cousin and he was away to Oshogbo where he was working. He said the three of them (1st, 2nd and 3rd accused) slept in the same room in the night prior to the arrest of the 2nd accused. The trial Judge accepted the evidence both direct and circumstantial which backed the involvement of the three accused persons in the armed robbery attack on PW1 and his household on 1st February, 2008. The court below accepted the findings by the learned trial Judge that there is direct and circumstantial evidence which backed the involvement of the three accused in the armed robbery attack on the PW1 and his household on 1st February, 2008. In the lead judgement of Professor Owoade JCA, he stated at page 260 of the record of appeal – “In deciding appellant’s issue 1, if the question were limited to the unchallenged and direct evidence of PW2 that he saw the appellant on the night of the armed robbery incident, there would be enough room to argue as the learned counsel for the appellant did that in this important respect, the evidence of PW1 contradicted that of PW2. To that extent little or no weight would be given to the evidence of identification of the appellant offered by PW2. However, the circumstances presented by the facts of the case become totally different if we are to proffer an answer to the wider question of whether the learned trial Judge was right to have relied on the evidence of identification/recognition of the appellant by PW1 and PW2 to hold that the prosecution proved the charges against the appellant beyond reasonable doubt. This is because in the words of section 9(b) of the Evidence Act 2011 there are other facts which by themselves or in connection with the fact of identification of the appellant by PW2 which make the identification of the appellant by PW2 probable in the circumstances of this case”. He then enumerated the facts and circumstances which when considered together would support or buttress the reliance of the learned trial Judge on the evidence of identification/recognition of the appellant by PW1 and PW2 which are:- (i) PW1 and PW2 knew the appellant as their gateman before the armed robbery incident. (ii) PW2 gave evidence that he saw the appellant as the person who was outside with the dogs on the night of the robbery incident . (iii) On the morning of the armed robbery incident PW1 (who earlier mentioned the name of the appellant to the police as a member of gang) spotted the appellant on the road. (iv) The appellant on sighting PW1 took to his heels but PW1 held on to him and was arrested with the assistance of PW3 and another policeman. (v) In the company of PW2 the appellant took them to their house where the police met the 1st and 3rd accused. (vi) In the presence of the appellant and the two accused persons the police executed a search warrant and recovered a bag which amongst other things contained a toy gun which PW1 claimed was one of the items carted away from his house on the day of the robbery incident. (vii) The defence of the appellant was that at the time of the incident he was in the house in company of the 1st accused. (viii) Meanwhile, the evidence of PW1 and PW2 show clearly that the 1st and 3rd accused were amongst those vividly seen as those that came in to attack them on the night of the robbery. The lower court considered the above listed circumstances and agreed with the learned trial Judge that the appellant was among the gang of robbers who attacked PW1 and his household on 1st February, 2008. The appellant hid under the cover that he did not enter the main house and so could not have been sighted by PW1 or PW2. The legal position stated above that a Judge is permitted to infer from the facts proved and other facts necessary to complete the element of guilt or establish innocence is sound and sensible. Such evidence must be closely examined in order to be certain that there are no other co-existing circumstances which may weaken or destroy the inference. See: Anekwe v. The State (1976) 9-10 SC 255 at 264; Nasiru v. State (1999) 2 NWLR (Pt. 589) 87; Ijioffor v. State (2001) 9 NWLR (Pt. 718) 371. Having found as a fact that the evidence of the prosecution positively led to the identification/recognition of the appellant, his defence of alibi failed. The appellant admitted sleeping with the 1st accused on the night of 1st February, 2008. Prior to the robbery the appellant was an employee of PW1 up to December, 2007. It was the appellant who informed the police of the whereabouts of the 1st and 3rd accused and he led the Police to arrest them where exhibit “B” was recovered. The dogs were familiar with the appellant and they stopped barking when they were attracted to the gate. The appellant took to his heels when he saw PW1 in the morning following the robbery. If the appellant was not part of the robbery gang, how come he was able to know that they committed the robbery the night before and why was he running away from PW1 in the morning following the robbery? The inescapable inference to be drawn is that he was a member of the gang that carried out the robbery in the residence of PW1 on 1st February, 2008 and it was because of his familiarity with the dogs that made them not to bark when the gang invaded the residence of PW1 in the night of 1st February, 2008. The 1st and 3rd accused were convicted with the appellant on 16th August, 2012 for armed robbery and sentenced to death by hanging and their appeals to Court of Appeal were dismissed on 16th May, 2014. Their further appeals to this Court in Appeal Nos. SC. 382/2014 and SC. 383/2014 respectively were dismissed on 1st July, 2014. There are no extenuating circumstances to warrant allowing this appeal as the evidence adduced by the prosecution positively led to the identification/recognition of the appellant and the inference to be drawn clearly showed that the appellant was among those who entered the residence of PW1 on the night of 1st February, 2008 to carry out the robbery operation. If he did not participate in the robbery, he facilitated it by ensuring that the dogs did not attack the robbers or raise alarm by barking. I find that there is no merit in the appeal and I accordingly dismiss it. I further affirm the judgement of the court below in appeal No. CA/AK/159C/2012 delivered on 16th May, 2014 which affirmed the conviction and sentence of the appellant by Adegbenro J. of Ondo State High Court. Appeal dismissed. EJEMBI EKO, JSC. Three accused persons, including the appellant herein, were arraigned before the Ondo State High Court on a two count charge of conspiracy to commit armed robbery and armed robbery contrary, respectively, to Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Vol. 14 LFN, 2004. All the three were convicted, as charged, by the High Court. The appellant’s appeal to the court below was dismissed, hence this further appeal. This appeal was argued on two issues, namely: “(i) whether the lower court was right in affirming the decision of the learned trial Judge that the prosecution led credible evidence of identification of the appellant as one of the armed robbers that attacked PW. 1 and PW.2? (ii) whether, having regards to the circumstances and from the totality of the evidence on the record, the lower court was right in upholding the decision of the trial court that the prosecution proved the offences of conspiracy to rob and armed robber against the appellant beyond reasonable doubt”. I had the preview of the judgment just delivered by my learned brother, K.B. AKA’AHS, JSC. The judgment represents my views in the appeal. Having nothing further and useful to add thereto I hereby adopt the judgment, including all the orders made therein. Consequently, I dismiss the appeal and affirm the judgment of the court below in the appeal No. CA/AK/159c/2012 delivered on 16th May, 2014, which also affirmed the conviction and the sentence of the appellant by the trial High Court of Ondo State in the charge No. HOD/5c/2008. Chima Centos Nweze, JSC My Lord, Aka’abs, JSC, obliged me with the draft of the leading judgment just delivered now. I agree that, being wholly unmeritorious, this appeal should be dismissed. Appeal dismissed. I abide by the consequential orders the leading judgement. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC I have had a preview of the judgment of my learned brother, KUMAI BAYANG AKAAHS, JSC just delivered. His Lordship has exhaustively considered and resolved the two issues submitted for determination in this appeal. I adopt the reasoning and conclusion as mine. This is the third appeal arising from the decision of the Court of Appeal,.Akure Division delivered on 16/8/2012, which affirmed the conviction and sentence of the appellant and two other accused persons by the High Court of Ondo State, Ondo Judicial Division for the offences of conspiracy and armed robbery. The convictions and sentences of the appellant’s co-accused were upheld by this court in Benjamin Friday Vs The State (2016) LPELR -40640 (SC) and Nelson Friday Vs The State (2016) LPELR-40638 (SC). In the instant case, learned counsel for the appellant has argued forcefully against the identification of the appellant as one of the robbers. However there was overwhelming evidence implicating him in the commission of the offence. He was fixed at the scene of the robbery by PW2 who stated unequivocally that he saw the appellant, who had recently worked for them as a gateman, in their premises that night. PW1’s evidence as to how he caught the appellant unawares within the estate where the offence was committed the following morning and how he was able to arrest him in spite of his attempt to flee on seeing him, was unshaken under cross-examination. PW2 also identified him as the person who was outside with the dogs. He testified that the appellant was the one who used to feed the dogs and therefore being used to him they did not attack during the robbery. It was also established in evidence that it was the appellant that led the Police to arrest his co-accused persons. It is not in every case that an identification parade is necessary to identify a person accused of committing a crime. The question whether an accused person is properly identified as being one of those who committed the offence is a question of fact to be determined by the trial court on the evidence adduced for that purpose. See: Ukpabi Vs The State (2004) 11 NWLR (Pt.884) 439; Adevemi Vs The State (1991) 2 NWLR (Pt.170) 679, In a case such as this where the evidence of PW2 was positive, cogent and unshaken under cross-examination, the learned trial Judge was entitled to rely on it along with other facts established by the prosecution in finding that the prosecution had proved its case beyond reasonable doubt. The court below was right to have affirmed those findings. The appellant now before us has not advanced any reasons to warrant this court to interfere with the concurrent findings of the two lower courts or to depart from its previous decisions in the two sister appeals. Having fixed the appellant at the scene of crime and having regard to the totality of the evidence adduced by the prosecution, I agree with my learned brother Akaahs, JSC that this appeal is without merit. I accordingly dismiss it and affirm the concurrent findings of the two lower courts. MARY UKAEGO PETER-ODILL JSC I agree that the appeal lacks merit as stated by my learned brother, Kumai Bayang Aka’ahs and to show my support of the reasonings, I shall make some remarks. This appeal is against the judgment of the Court of Appeal, Akure Division or the Court below or Lower Court, delivered on the 16th day of May, 2014 affirming the decision of the High Court of Ondo State, Akure Judicial Division delivered on the 16th day of August, 2012 convicting and sentencing the appellant to death by hanging on being found guilty and convicted for the offence of conspiracy to commit armed robbery and armed robbery. FACTS: The appellant (2nd accused person) and two others were arraigned before the High Court of Ondo State upon a two count charge of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Section 1 (2) (a) of the Robbery and Fire Arms (Special Provisions) Act Cap R11 Vol. 14, the Laws of the Federal Republic of Nigeria 2004. The other accused persons in the sister appeals viz, SC.382/2014 and SC.383/2014 had their appeals dismissed by this court as lacking in merit The appellant and the two others at the Court of trial pleaded not guilty to the two count charge and the case proceeded to full trial. The prosecution called four witnesses while the appellant did not call any witness but testified in his own defence. The following exhibits were tendered by the prosecution, viz:- (i) One stick – Exhibit A (ii) One red toy gun – Exhibit B (iii) One army-type jeans trouser – Exhibit C (iv) One identity card belonging to Samuel Peace -Exhibit D (v) Extra judicial statements of the appellant as exhibits ‘F’, and ‘L’. The prosecution also tendered the extra judicial statements of the other two accused persons as exhibits E, G, K and M. (vi) Ten photographs – Exhibits H – H9. (vii) Six negatives prints of photographs -Exhibits J – J5. At the close of the prosecution’s case, the appellant testified in his defence. In line with his extra judicial statements to the police (Exhibits F and L), the appellant in his oral evidence denied his involvement in the armed robbery incident. He maintained that he was never at the scene of the armed robbery incident, but that he was with the 1st accused person at his residence at the material time. From the case put forward by the prosecution, the appellant was a former employee of the PW1, a High Court Judge as a security guard and some injuries were inflicted on the PW1 and other members of the family and the house girl was raped. That the appellant took the police to where the other two accused persons were arrested. The stance of the appellant was a denial of any involvement with the incident leading to the charge, conviction and sentence. The fuller details of the facts have been well adumbrated in the lead judgment and so I shall leave the matter there save for reference to the facts when the occasion demands. On the 1st day of December, 2016, learned counsel for the appellant, Ayo Asala adopted the brief of the appellant filed on the 16/9/2014 in which he distilled two issues for determination which are thus:- 1. Whether the lower court was right in affirming the decision of the learned trial judge that the prosecution led credible evidence of identification of the appellant as one of the armed robbers that attacked PW1 and PW2. 2. Whether having regard to the circumstances and from the totality of the evidence on the record, the lower court was right in upholding the decision of the trail court that the prosecution proved the offences of conspiracy to rob and armed robbery against the appellant beyond reasonable doubt. The respondent’s brief of argument filed on 21/10/16 and deemed filed on the 1/12/16 was adopted by learned counsel, Tunde Babalola Esq. He also adopted the issues as crafted by the appellant. I shall utilise the second issue as I am satisfied, it is sufficient in the determination of this appeal. ISSUE TWO: Whether having regard to the circumstances and from the totality of the evidence on the record, the lower court was right in upholding the decision of the trial court that the prosecution proved the offences of conspiracy to rob and armed robbery against the appellant beyond reasonable doubt. Mr. Asala of counsel for the appellant contended that the concurrent findings of the lower courts in the identification/recognition of the appellant as one of the armed robbers that attacked PW1 and PW2 are perverse and not supported by the identification evidence. That the evidence fell short of the guiding principles. He cited Ochiba v State (2012) All FWLR (Pt.608) 849 at 871. That a court must be careful in accepting the evidence of a person who said he saw the offence being committed where the witness fails to mention the name of the culprit at the earliest opportunity and no satisfactory explanation proffered to explain the lapse. Learned counsel relied on the case of Isah v State (2008) All FWLR (Pt.443) 1243 at 1250. Learned counsel for the appellant said the failure to get the house girl to testify was fatal as she was a material witness. He cited Okoro v State (1998) NWLR (Pt.584) 181; Ogudo v State (2012) All FWLR (Pt.629) 1111 at 1131. Also stated for the appellant is that the evidence of the wife of PW1 was crucial as she was a material witness and PW1 narrating what she told him was hearsay evidence and so a fatality to the prosecution’s case has occurred with that failure. The cases of Ekpo v State (2001) All FWLR (Pt.55) 454 at 464 – 465; Ogudo v State (2012) All FWLR (Pt.629) 1111 at 1131. That the evidence of PW2, the son of PW1 contrasted with PW1’s evidence and so rendered the evidence unreliable and unusable. Mr. Asala, learned counsel for the appellant stated that the prosecution failed to establish any of the essential ingredients of the offences charged. He cited Yusuf v State (2008) All FWLR (Pt.405) 1731. That the concurrent findings of the two lower courts are not borne out of the evidence before the court. He cited Oguonzee v State (1998) 5 NWLR (Pt.555) 521; Aruna v State (1990) 6 NWLR (Pt. 155) 125; Ekaiden v State (2012) All FWLR (Pt.631) 1587 at 1614. Also that the charge was at variance with the evidence led and so the doubt that ensues should be resolved in favour of the appellant. He cited Raymond Nwokedi v Commissioner of Police (1977) All NLR 4; Aruna v State (1990) 6 NWLR (Pt.155) 125 at 135. Mr. Asala of counsel concluded by stating that the prosecution’s case was a complete fabrication and not sustainable as it was unnatural, impossible and against ordinary course of human behaviour for the appellant to carry out the operation as stated by the prosecution. He cited Olayinka v State (2007) All FWLR (Pt.373) 163 at 178, Anekwe v State (1998) 1 ACLR 426 at 434. For the respondent, Mr. Babalola of counsel submitted that the lower court was right in affirming the decision of the learned trial judge by relying on the evidence of identification/recognition of the appellant by PW1 and PW2 to hold that the prosecution proved the charges against the appellant beyond reasonable doubt. That the fact that the wife of PW1 as well as the house girl were not called as witnesses cannot be considered prejudicial to the prosecution’s case as the prosecution called other material witnesses to prove its case. That the crucial findings upon which the trial court convicted the appellant and which was affirmed by the lower court were borne out from the evidence on record and in accordance with the applicable principles of law. That cases of Oforlette v The State (2000) FWLR (Pt.12) 2081 at 2102, Akinmoju v Atele (2000) 4 SC (Pt.1) 64 is relied upon. Tunde Babalola Esq. of counsel submitted that the contradictions alluded to by the appellant were not material and substantial and would not affect the case of the prosecution adversely. He cited Khaleel v State (1997) 8 NWLR (Pt.156) 237 at 240; Henry Otti v State (1991) 8 NWLR 103 at 108; Atano v State (2005) 4 ACLR 25 at 30. He stated that the proof beyond reasonable doubt was effected by the prosecution. The case of Adewale Joseph v State (2011) 6 SCNJ 222 was relied on. That the defence of alibi cannot stand in the face of the overwhelming evidence proffered by the prosecution. The case of Fatilewa v State (2007) 5 ACLR 607 was referred to. The stance of the appellant in the main is that the findings of the learned trial judge and affirmed by the court below were not supported by the totality of the evidence on record with the result that the appellant is deserving of a discharge and acquittal after this court allows the appeal and setting aside the decision of the lower court. The opposing stand of the respondent is that the findings upon which the conviction of the appellant was based are supported by the evidence on record. After reviewing what was before it on appeal, the court below per Owoade JCA stated thus:- “In the instant case, the following facts and circumstances do work together to support or buttress the reliance of the learned trial judge on the evidence of identification/recognition of the appellant by PW1 and PW2. The issues are as follows:- (I) PW1 and PW2 knew the appellant before the armed robbery incident as their gateman. (II) PW2 gave evidence that he saw the appellant as the person who was outside with the dogs on the night of the armed robbery incident. (III) On the morning of the armed robbery incident PW1 (who earlier mentioned the name of the appellant to the police as a member of the gang) spotted the appellant on the road. (IV) The appellant on sighting PW1 took to his heels but was held on to and arrested by PW1 with the assistance of PW3 and one other policeman. (V) In the company of PW2 the appellant took the police to their house where the police met the 1st and 3rd accused persons. (VI) In the presence of the appellant and the other two accused persons the police executed a search warrant in the house of the appellant and the other two accused persons and recovered a bag which amongst other things contained a toy gun which PW1 claimed was one of the items carted away from his house on the day of the robbery incident. (VII) The defence of the appellant was that at the time of the incident he was in the house in company of the 1st accused. (VIII) Meanwhile, the evidence of PW1 and PW2 show clearly that the 1st and 3rd accused were amongst those vividly seen as those that came in to attack them on the night of the robbery”. His lordship went on further to state that: “In all the above circumstances I do not think the learned trial judge was wrong to have held at page 131 of the record that: I accept all evidence direct and circumstantial backing up the involvement of the three accused persons in the armed robbery attack on PW1 and his household on 1st February 2008. I therefore find all the three guilty of the second count of the charge alleging armed robbery. His lordship Owoade JCA stated further that “it is settled that a judge, is permitted to infer from the facts proved and other facts necessary to complete the element of guilt or establish innocence. Such evidence, must however be closely examined. The judge has to be certain that there are no other co-existing circumstances which may weaken or destroy the inference”. See the case of Anekwe v The State (1976) 9-10 sc 255 at 264. On the issue of whether the identification of the accused appellant was properly made sufficient to link the appellant to the offences charged, it is to be said that it is settled law that identification evidence is such tending to show that the person charged with an offence is the same person who was seen committing the offence. The proof of such identification is beyond reasonable doubt. In the instant case PW2, Olujimi Akintoroye testified that he saw the 2nd accused now appellant when he peeped through the glass door in his evidence and stated that he had all the opportunity of knowing all that transpired as appellant had been their gatekeeper for about a year. Thus providing direct evidence. Also PW1, Justice Akintoroye said he did not personally see appellant in person on the day of incident but that his wife did, while he (PW1) saw the 1st accused at the time of the attack which facts he mentioned to the police station at the earliest opportunity. When these pieces of evidence are taken along the guide set out to avoid mistaken identity which guides are: Circumstances in which the eye-witness saw the suspect – whether it was in difficult conditions; a) The length of time the witness saw the suspect or defendant whether in a glance or longer observation; b) The opportunity of close observation; c) Previous contact between the parties; d) The lighting conditions. Then it can be seen that the prosecution/respondent met the required standard that the identification was properly made beyond reasonable doubt. See Ikemson v State 1989) 3 NWLR (Pt.110) 455 at 478 and 479; Ochiba v State (2012) All FWLR (Pt.608) 849 at 871. All that should be done to provide a positive identification of the appellant was at play and therefore reliable in linking the appellant to the scene of crime and as a participant. On what the prosecution should do to succeed in a charge or offence of c conspiracy to rob and armed robbery, the ingredients of the offences are thus:- a) That there was an agreement or confederacy, between the convict and others to commit the offence of robbery. b) That in furtherance of the agreement or confederacy, the accused took part in the commission of the offence of robbery or series of robberies. c) That the robberies or each of the robbery was an armed robbery. See Yusuf v State (2008) All FWLR (Pt.405) 1731. Another mode of proof of the offences being by circumstantial evidence and the prosecution proffered the evidence of the recovered toy gun exhibit B found in the bag kept in the appellant’s room within 24 hours of the robbery and the toy gun belonged to PW1’s son was a point which led irresistibly and unequivocally to the guilt of the appellant and there were no co-existing circumstances which weakened the inference that the appellant was part of the robbery gang. See Offorlette v The State (2000) FWLR (Pt.12) 2081 at 2102; AkinmoJu v Atete (2000) 4 SC (Pt.l) 64. The appellant had sought to impugn the evidence of the prosecution witnesses citing discrepancies, contradictions or conflict contending that they were sufficient to create reasonable doubt which should be resolved in favour of the appellant. The corresponding countering response is that there were no material contradictions on which such a favour could be granted the appellant and so the two courts below were right to discountenance them. I have no difficulty in upholding what the two courts below did in that regard as they are in line with the cases of Khaleel v State (1997) 8 NWLR (Pt.156) 237 at 240, Henrv Otti v State (1991) 8 NWLR page 103 at 108; Atano v State (2005) 4 ACLR page 25 at 30. Indeed the material elements of the charge against the appellant has been proved beyond reasonable doubt in line with Section 138 (1) of the Evidence Act, 2011. It is to be reiterated that this standard of proof beyond reasonable doubt is not synonymous with proof beyond all doubt or all shadow of doubt. What it means is that the prosecution in establishing the guilt of the accused person within compelling and conclusive evidence which translates to a standard that is consistent with a high degree of probability. That is on display herein and there was no necessity for a host of witnesses as the witnesses who testified were vital and rendered crucial evidence that met the standard beyond reasonable doubt and that is enough. See Adeweale Joseph v State (2011) 6 SCNJ 222 at 235. The appellant had put up a defence of alibi which was effectively demolished by the overwhelming and compelling evidence which pinned the appellant to the crime and so the trial court was right to have rejected the said alibi raised. See Fatilewa v State (2007) 5 ACLR 607. From the foregoing and the better reasoning in the lead judgment, I see no reason to depart from what the concurrent findings and conclusions of the two courts below posit as I too find no merit in this appeal which I have difficulty in dismissing. I abide by the consequential orders made.
