OGBU v. STATE (2020)

OGBU v. STATE

(2020)LCN/15310(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, June 18, 2020

CA/B/158C/2018

Before Our Lordships

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

CHUKWUEMEKA OGBU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A POSITIVE IDENTIFICATION IS BETTER THAN A FORMAL IDENTIFICATION PARADE BY THE POLICE

The settled position of the law is that a spontaneous and positive identification is better than a formal identification parade by the police. The best identification therefore remains the prompt one by the victim or the people who witnessed the commission of the crime. See the case of ADAMU vs. THE STATE (1991) 4 NWLR (PT. 187) 530. PER OHO, J.C.A.

WHETHER OR NOT A CONFESSION ALONE IS SUFFICIENT TO SUPPORT A CONVICTION WITHOUT CORROBORATION

It is settled point of law that a confession alone is sufficient to support a conviction without corroboration so long as the Court is satisfied with the truth of the confession. See JAMES OBI ACHABUA vs. THE STATE (1976) 12 SC 63. The truth of the matters admitted in the statement should as a matter of importance, be established by some other evidence no matter how slight. The locus classicus on the subject is the case of R. vs. SYKES (1913) 8 C.A.R. 233, which has been applied in several Nigerian cases on the subject. What should perhaps, be noted with this case, is that it would have been unsatisfactory to have convicted on the evidence of identification alone had it not been assisted by the confessional statement and would also probably have been unsatisfactory if the conviction had rested solely on the confession without the circumstances, which make it probable that the confessions were true. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?. PER OHO, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF TEH TRIAL JDUGE TO DETERMINE THE ADMISSIBILITY OF A CONFESSION ON PROOF BY THE PROSECUTION THAT IT WAS MADE FREELY AND VOLUNTARILY

WHETHER OR NOT AN IDENTIFICATION PARADE IS NECESSARY IN EVERY CASE

WHETHER OR NOT AN IDENTIFICATION PARADE WILL BE NECESSARY WHERE THERE IS COGENT EVIDENCE LINKING THE ACCUSED PERSON TO THE COMMISSION OF THE CRIME

Where there is a good and cogent evidence linking an accused person to the commission of a crime on the day of the incident, a formal identification parade becomes unnecessary. See THE STATE V. SALAMI (2011) 8 NWLR (PT. 1279) 883. See also OGOALA V. THE STATE (1991) 2 NWLR (PT. 175) 509. The Supreme Court per Nnaemeka-Agu (JSC) posited that:-
“An identification parade should never be conducted for purely cosmetic reasons. It should be limited to cases of real doubt or dispute as to the identity of an accused person on his connection with the offence charged. To insist that it must be conducted in cases like the instant case in which the visual evidence of identity is clear and corroborated by other evidence and the accused person confesses to his complicity in the crime is to make a mockery of criminal justice.” PER OSEJI, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Justice, Benin Edo State of Nigeria delivered on the 13-4-2016, wherein the Appellant and one (1) other were charged with and convicted of the offence of Kidnapping contrary to Sections 2(1) and punishable under Section 3(2) of the Edo State Kidnapping (Prohibition) Law, 2009. Upon arraignment, the Appellant pleaded not guilty to the single count charge. In proof of its case the Prosecution called a total of three (3) witnesses. In the cause of trial, the Appellant resiled from his extra-judicial statement and challenged the admissibility of same. The trial Court however, admitted the extra-judicial statement in evidence on the ground that the statement was voluntarily made.

On the part of the Appellant, he testified for himself and called no witnesses. He also denied the allegation of Kidnapping made against him. Written addresses were ordered by the Court below and which were adopted by learned Counsel for both sides. On the 13-4-2016, judgment was delivered by the Court below, convicting the Appellant and sentencing him to 25 years imprisonment. Dissatisfied with the judgment of the Court below, the Appellant has appealed to this Court vide a Notice of Appeal filed on 18-4-2016, which was subsequently amended by an order of this Court. By the said amended Notice of Appeal, there are five (5) Grounds of Appeal filed, which are reproduced herein, without their particulars as follows;
GROUNDS OF APPEAL:
1. The learned trial judge erred in law when the said judgment was given without giving the accused person an opportunity of fair hearing to reply the prosecution.
2. The learned trial judge erred in law when the said judgment was given without giving the accused person an opportunity of fair hearing to reply the prosecution.
3. The learned trial judge also erred when he convicted the appellant (sic) fact that the prosecution never proved its case with (sic) prove beyond reasonable as required by law.
4. The trial judge erred in law when he convicted the Appellant for the offence of Kidnapping when the identity of the Appellant was seriously in doubt.
5. The learned trial judge erred in law when he relied on Exhibit “D” in sentencing and convicting the Appellant when there is no independent and verifiable evidence of corroboration in support of the said Exhibit “D”.

ISSUES FOR DETERMINATION;
Two (2) issues were formulated in all for the determination of this Court by the Appellant as follows;
1. Having regard to the case presented by the Prosecution before the trial Court and the statutory requirement imposed on the prosecution as to proof beyond reasonable doubt, whether the prosecution successfully proved the said single count of Kidnapping against the Appellant at the trial Court? (Grounds 3 & 4).
2. Having regards to the evidence led at the trial and having regard to the six fundamental test which the law required the trial judge to observe before convicting an accused person with any purported confessional statement, whether the learned trial judge was right when he convicted the Appellant using the said confessional statement? (Ground 3).

On the part of the Respondent, the two issues nominated by the Appellant were promptly adopted with slight modifications thus:
1. Whether the Prosecution has proved the one count charge of Kidnapping against the Appellant beyond reasonable doubt? (Grounds 3 and 4)
2. Whether the learned trial judge was right in his decision to convict the Appellant on the direct evidence of the Prosecution witnesses, which evidence was corroborated by the confessional statement of the Appellant without observing the six fundamental tests prescribed by law? (Ground 5).

It is important to note that the issues nominated by both sides to the divide are clearly identical, except for a few instances of differences in semantics and for this reason this Appeal shall be decided based on the issues nominated by the Appellant. The Appellant’s Brief of argument dated 15-10-2018 was settled by OLAYIWOLA AFOLABI ESQ., and filed on the 17-10-2018 but deemed properly filed and served on the 17-2-2020 while the Respondent’s Brief of argument filed on the 29-4-2020 but deemed filed on the 30-4-2020 was settled by FIFI OMAGE-DIMOWO (MRS.) At the hearing of this Appeal on the 6-5-2020, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL FOR THE PARTIES:
APPELLANT;
ISSUE ONE;
Having regard to the case presented by the Prosecution before the trial Court and the statutory requirement imposed on the prosecution as to proof beyond reasonable doubt, whether the prosecution successfully proved the said single count of Kidnapping against the Appellant at the trial Court? (Grounds 3 & 4)

In arguing this Appeal, learned Counsel submitted that the case of the Prosecution was riddled with inconsistencies and serious contradictions, which ought to have indicated clearly to the trial Court that it was not safe and proper to convict the Appellant. Counsel cited the cases of CHIEF JAMES MOLEGBEMI & ORS vs. CHIEF AJAYI & ORS (2011) LPELR 4501; OKEKE vs. THE STATE (2016) LPELR-40024 in support of his submissions. Against this position, Counsel pointed out that the evidence of the PW1 at page 8 of the printed record shows that he admitted that the Appellant, who was the 1st Accused person at the trial, was not the person with whom the PW1’s wife’s phone rang when it was called. According to Counsel, under the heat of cross examination, the PW1 admitted that he got to know the Appellant as one of the Kidnappers when he saw the Appellant and the 2nd Accused person arrested together and also admitted that the Phone number used in communicating with them did not ring in possession of the Appellant.

Learned Counsel also picked holes with the evidence of the PW2 with regards to the identity of the Appellant in relation to the allegations made against him. Counsel decried the failure to carry out an identification parade having regard to the fact that the PW2 had never met the Appellant before in her life time. Counsel cited the cases of KALU UKEJE vs. THE STATE (2017) LPELR-42447; OKAFOR vs. THE STATE (2006) 4 NWLR (PT.969) 1 AT 57; GANIYU IDRIS vs. STATE (2014) LPELR -23803; JONATHAN NNADI vs. STATE (2016) LPELR-41032 in support of his arguments.

In his further argument on this issue, learned Counsel referred to page 62 line 19 of the Court’s record where he said that the PW3 stated that an identification parade was conducted by the Prosecution. According to learned Counsel there is no evidence to show in the instant case that an identification parade was conducted by the Prosecution other than the bare viva voce evidence proffered by the PW3. He urged the Court to discountenance the evidence of the PW3 on the issue of identification parade as it is not in the character of the Court to rely on speculations.

Against the foregoing, learned Counsel contended that from the evidence on record, at page 101 lines 7-8, it is obvious that there was a large crowd of people running when they heard sounds of gunshot at Ohumba Primary School, when the ransom demanded by the Kidnappers was being paid. In relation to the PW3’s evidence about the ensuring confusion created by the gunshots at the scene at the Ohumba Primary School, and how the Appellant was said to have been apprehended by residents, Counsel contended that the inability of the Prosecution to call these residents as witnesses to ascertain that it was actually the Appellant that was arrested is fatal to the case of the Prosecution. Learned Counsel referred to these residents as vital witnesses who were supposed to have been called to testify. He cited the cases of USUFU vs. THE STATE (2007) 1 NWLR (PT. 1020) 109 AT 194; STATE vs. AZEEZ (2008) 14 NWLR (PT. 1108) 439 AT 451; OPEYEMI vs. STATE (1985) 2 NWLR (PT. 5) 101 AT 103, all on the need to call a vital witness in a criminal case otherwise it would be taken that the Prosecution has failed to prove its case beyond reasonable doubt.

According to learned Counsel the PW2 and the victim of the alleged Kidnap only had a brief moment to look at the faces of the alleged Kidnappers as she was being taken away inside the vehicle in the course of the kidnap bid. However, Counsel picked bones with the answer given by the PW2 under cross examination when she said that she may not have so stated it in her statement to the Police that the Kidnappers asked her to raise her head up as they approached the Police check point, but only remembers while in Court that the Kidnappers asked her to raise her head up as they approached the Police check point and that that was how she got to see the faces of the men abducting her and identified them.

The grouse of Counsel here is that a witness “who facilitated in his/her evidence is not worthy of belief like the PW2 who gave evidence in a manner but changed to the opposite of what he has said earlier.” Counsel in support of this submission cited the case of IFEJIRIKA vs. STATE (1990) 3 NWLR (PT. 593) 59 AT 63.

ISSUE TWO:
Having regards to the evidence led at the trial and having regard to the six fundamental test which the law required the trial judge to observe before convicting an accused person with any purported confessional statement, whether the learned trial judge was right when he convicted the Appellant using the said confessional statement? (Ground 3)

In arguing this issue, learned Counsel referred Court to the case of SUNDAY vs. STATE (2010) ALL FWLR (PT. 548) 874 AT 932 where the Court held that even if the confessional statement is direct and positive, it is always desirable to have outside the accused person’s confession, some circumstances which makes its probable that the confession is true and correct as the Courts are generally not disposed to acting on a confession without testing the truth. In this connection, Counsel reeled out the usual tests that the trial Court is expected to subject the confessional statement of an accused to see whether the confessions made therein is true or not. These are whether there is anything outside the confession to show that it is true?

Whether the confession is true? Whether the statement made in the confession of fact or so far as can be tested as true? Whether the accused person had the opportunity of committing the offence charged? Whether the confession of the accused person was possible and whether the confession is consistent with other facts which have been proved?

As a result of the foregoing, learned Counsel cited the case of NWEZE vs. STATE (2017) ALL FWLR (PT. 898) 40 AT 70-71 and reiterated that in the instant case, so many things went wrong with the case of the prosecution, which makes the purported confessional statement doubtful and he urged the Court to resolve this Appeal in favour of the Appellant and discharge and acquit him of the single count charge.

RESPONDENT:
ISSUE ONE;
Whether the Prosecution has proved the one count charge of Kidnapping against the Appellant beyond reasonable doubt? (Grounds 3 and 4)

The contention of Counsel under this issue is that to attain the standard of proof beyond reasonable doubt, the Prosecution must prove every ingredient of the offence charged and that by so doing rely on testimonies, which are cogent, credible and relevant to the offence charged. It was further contended that the Appellant was rightly and properly convicted for the single count charge and correctly sentenced accordingly. Counsel cited the cases of OKASHETU vs. THE STATE (2016) LPELR-40611; FRN vs. UMEH & ANOR (2019) 19 WRN 117 AT 123; ABDULLAHI vs. STATE (2019) 16 WRN 145 and Section 135(1) and (2) of the Evidence Act, 2011 as Amended.

Learned Counsel further submitted that there are three (3) ways of proving the guilt of an accused person, which are;
1. Direct evidence of the witness/eye witnesses,
2. Circumstantial evidence,
3. By reliance on a confessional statement of an accused person voluntarily made. Counsel cited the case of NKEM vs. STATE (2018) LPELR-46720.

Learned Counsel also submitted that the concept of proof beyond all reasonable doubt does not mean proof beyond every shadow of doubt or that proof must attain certainty, rather that proof beyond reasonable doubt is accomplished when the evidence adduced establishes the essential ingredients of the offence charged and that it is the defendant who is standing trial that committed the offence.

See AKHILOMEN vs. STATE (2017) LPELR-42668; IGABELE vs. STATE (2006) 6 NWLR (PT. 975). It was further submitted that if the evidence adduced by the Prosecution is strong against the accused as to leave only a remote possibility in his favour, which can be dismissed, then the case be said to have been proved beyond reasonable doubt as in the instant case.

According to learned Respondent’s Counsel the offence of Kidnapping for which the Appellant is charged is provided for under Section 2(1) and Punishable under Section 3(2) of the Edo State Kidnapping (Prohibition) Law, 2009, which provides thus:
“Section 2(1) – Any person who kidnaps or abducts or any other means of instilling fear or tricks another person with intent to demand or compels another to do anything against his or her will commits an offence.”

Against the backdrop of the foregoing, Counsel contended that the ingredients of kidnapping are therefore two (2) fold as follow;
A person who kidnaps or abducts or instills fear or through tricks takes another person with intent to demand or compel that person to do anything against his will commits the offence of Kidnapping. Counsel cited the cases of AKHILOMEN vs. STATE (Supra) and OKASHETU vs. STATE (Supra) where the apex Court per OGUNBIYI, JSC stated the ingredients of kidnapping as follows;
1. That the victim was seized and taken away by the accused person,
2. That the victim was taken away against his consent,
3. That the victim was taken away without lawful excuse.
Learned Counsel further contended that the offence of kidnapping is complete when the victim is carried away against his wish and cited the case of R. vs. ACORT (2004) 4 ALL ER 137 in support.

According to Counsel, in the instant case, the Prosecution provided direct, cogent and believable evidence that the PW2 was kidnapped by the Appellant. For this, Counsel referred Court to pages 11 – 16 of the printed record. To this end, Counsel submitted that the PW2 gave a step by step account of her kidnap on the 17-1-2011, when she stated thus;
“On that day, I was returning from the market as I drove into my compound, five (5) boys rushed at me, dragged me out of the car, dragged out my daughter from the passenger seat, pushed me inside and drove off.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned Counsel also contended that the PW2 gave account of her experience with the kidnappers, their actions while she was with them and how they told, her that she had been kidnapped and how a demand for the payment of ransom from her husband was made, leading to negotiations made with her phone in her presence. Learned Counsel further argued that the PW2’s evidence was corroborated by the PW1 in his evidence. (See pages 6-10 of the record) who also gave direct, cogent and believable evidence of the PW2’s kidnap, the steps he took in trying to make a report to the police; the call demanding for ransom and his attempt with the SSS officials to pay the ransom culminating in the arrest of the Appellant and the 2nd Accused person.

Counsel also brought to the attention of this Court the evidence of the PW3, the SSS officer and Exhibit C, the voluntary confessional statement of the Appellant. The argument of learned Counsel is that these pieces of evidence show clearly that the PW2 was seized without her consent and without lawful excuse and that this was followed by a demand for ransom from the kidnappers. The argument of Counsel on this issue is that the ingredients of the offence of kidnapping were therefore established but that the salient question which the learned trial judge answered is: “were the accused persons the people that kidnapped the 2nd PW, Mrs. Mariam Ozonuwe on 17-1-2011?”

On account of this question, learned Counsel submitted that from the evidence adduced by the prosecution and the voluntary confessional statement of the Appellant, in Exhibit C the answer to that question is in the affirmative.

On the question of whether there was proper identification of the Appellant and his co-accused person, learned Counsel submitted that the Appellant and his co-accused were properly identified by the PW2 and victim of the Kidnap and that he evidence on the issue of identification were never controverted by the Appellant. Counsel urged this Court to resolve this issue in favour of the Respondent citing plethora of decided cases in the process.

ISSUE TWO;
Whether the learned trial judge was right in his decision to convict the Appellant on the direct evidence of the Prosecution witnesses, which evidence was corroborated by the confessional statement of the Appellant without observing the six fundamental tests prescribed by law? (Ground 5)

Learned Counsel in arguing this issue, contended that the confessional statement of the Appellant was rightly admitted into evidence by the Court below and properly relied upon by the trial Court in corroborating the evidence of the prosecution witnesses. Counsel referred the Court to page 116 of the record and submitted that the learned trial judges’ observations in convicting the Appellant and his co-accused person on the direct evidence/eye witness account of the Prosecution witnesses is just one of the legally approved methods by which the Prosecution can establish the guilt of an accused person. Counsel added that the learned trial Court believed the evidence of the Prosecution as to how the accused persons were identified and arrested and rejected the evidence of defence on oath.

The contention of learned Counsel is that the law is clear on the fact that the Court can convict on the evidence of a single credible witness and that in the instant case, the Court found the evidence of the Prosecution witness, particularly, the PW2 who was an eye witness and a victim to be credible. Counsel also submitted that the evidence of a single witness, if found to be cogent, credible and his or her evidence proves the essential issue in dispute, is sufficient without more to secure the conviction of a person accused of committing a crime once the Court believes such evidence. Counsel cited the case of OGU vs. COP (Supra); BASSEY vs. STATE (2016) LPELR- 41229.

Learned Counsel further contended that the Appellant’s confessional statement relied upon by the learned trial judge merely corroborated the evidence of the Prosecution witnesses. Counsel also argued that even if the learned trial judge had decided to rely on the confessional statement of the Appellant alone as the basis for conviction, that it is well settled in law that a confessional statement made by an accused person, if voluntarily made is the best guide to the truth of the part played by him in the commission of the offence. Counsel cited the cases of OKASHETU vs. STATE (Supra); UMAR vs. STATE (2018) vol. 49 WRN 89 AT 101.

According to learned Counsel, the defence of Alibi raised by the Appellant is an afterthought as same was never raised at the time of giving his statement to the police. See the case of NDIDI vs. STATE (2007) LPELR-197. Counsel finally urged this Court to dismiss the Appeal and affirm the judgment of the Court below.

RESOLUTION OF APPEAL
This Appeal is one that has been fought mainly on two fronts, namely the question of the voluntariness and the veracity of the confessional statement of the Appellant admitted as Exhibits “C” on the one hand and the question of the accuracy and/or reliability of the identification by which the Appellant was implicated as one of the gang of Kidnappers who abducted the PW2 on the 17-1-2011 in Benin City.

In beginning with the issue of the Appellant’s identification by the PW2, the question to be addressed here is whether the learned trial judge was right to have relied on the said identification to convict the Appellant of the offence of Kidnapping? Learned Appellant’s Counsel had contended that there was nothing on the records to show that an identification parade was conducted the learned trial or that the learned trial judge followed meticulously a number of guidelines which a trial Court must observe if any value is to be ascribed to the eyewitness identification of an accused person. For instance, did the Court take into consideration the circumstances under which the eyewitness identified the accused person? In addition, what length of time was available for the eyewitness in identifying the suspect? Was it at a glance or had he a longer period of observation? Was there an opportunity for a close observation? Had there been a prior contact between the duo and lastly, what was the lightening condition at the time of identification? Appellant’s Counsel cited a number of cases, some of which, are KALU UKEJE vs. THE STATE (Supra); OKAFOR vs. THE STATE (Supra); IDRIS vs. THE STATE (Supra); JONATHAN NNADI vs. THE STATE (Supra); AYENI vs. PEOPLE OF LAGOS STATE (Supra). See also OCHIBA vs. STATE (2011) 17 NWLR (PT. 1277) 663; EYISI vs. STATE (2000) 15 NWLR (PT. 555); OKOSI vs. STATE (1989) 1 NWLR (PT. 100) 642. See the English case of R. vs. TURNBULL (1976) 3 CAR 549 @ 551 for added measure where the English Court of Appeal per LORD WIDGERY, C.J stated the guidelines for the evaluation of the evidence of visual identification to avoid the risk of mistaken identity of an offender by a victim or witness.
The universality of the application of the rules or guidelines enunciated in the case of R. vs. TURNBULL (Supra) cannot be doubted. The guidelines are indeed applicable to all cases involving identification. It is proper to note that these guidelines have been adopted in a number of cases in Nigeria, some of which learned Counsel have already cited in this matter. See the cases of ALABI vs. THE STATE (1993) NWLR (PT. 307) 511, BASHAYA vs. THE STATE (1998) NWLR (PT. 550) 351; CHUKWU vs. STATE (1997) NWLR (PT. 463) 685 AT 792. In the case of ABUDU vs. THE STATE (1985) [PT. 1]55, the Supreme Court held amongst others that whenever the case of the accused depends wholly or substantially on the correctness of the identification of the accused person, which the defense alleges to be mistaken, the Judge should warn the jury of the special regard for caution before convicting the accused in reliance to the correctness of the identification. In that case, the star witness who was the victim of the robbery testified that she identified the Appellant, but did not at the earliest opportunity mention the names of the Appellant and his co-accused as two of a gang of four armed robbers who committed the robbery. Before that time she knew the Appellant and his co-accused. At the trial the Appellant put up a defense of alibi, which was not contradicted by the prosecution. The trial judge convicted the Appellant and discharged the co-accused on the same evidence. Appellant’s Appeal was dismissed by the Court of Appeal. But the Supreme Court saw things differently. It was observed that the evidence identifying the Appellant as a robber was too suspicious to be acceptable and the Appeal was allowed.
However, in the case of LAWRENCE ODIDIKA vs. THE STATE (1977) 2 SC 21, the Supreme Court dismissed the Appeal of the Appellant on the ground that the Tribunal, which convicted the Appellant was satisfied that the Appellants were recognized by Sylvanus Mba, the victim of the robbery on the night in question and further identified both Appellants during the identification parade made up of 15 persons. No evidence was called by the Appellants in support of their defence of alibi. The Supreme Court was therefore satisfied that the findings of the Tribunal were supported by the evidence adduced at the trial.
In a similar matter the Supreme Court also held the view in the case of MATHEW ORIMOLOYE vs. THE STATE (1984) 10 SC. 138, which was also a case of robbery in which the PW1 and PW2 recognized the Appellant at the time of the commission of the offence and gave evidence to that effect. The PW1 who had received treatment after the robbery for his gunshot wounds was taken by the police to the police station and as soon as he caught sight of the Appellant he pointed at him as the robber who fired at him in the early hours of the day. A spent cartridge was recovered by the police at the scene of robbery. The Supreme Court was satisfied that the Appellant was rightly convicted.
It will be recalled that in the instant Appeal, the PW2 and victim of the offence of Kidnap at pages 11, 13 and 14 of the printed record, clearly identified the Appellant and his co-accused person in the following manner;
“…they said that they were approaching the Police and I should sit up as a passenger until we passed. It was then I managed to look at them and saw them until I was made to bend down again”…
“I saw the two of them in the Police Vehicle. They are the two of them in the dock. I was afraid to sit with them in the same vehicle so the Police put me in a second vehicle…”
“At the time I was made to sit up in the vehicle, I was as I was being taken away and I saw my abductors, the two accused persons were among them”…
Not only these, it would be further recalled that even under cross examination by learned Appellant’s Counsel, when the PW2 was asked whether she saw the Appellant amongst the Kidnappers, she answered in the affirmative in the following manner;
“Your colleagues were hailing you ‘Pilotee’, Pilotee” as you were driving the car”… (Page 13 of the record)
Arising from the foregoing, it is all too glaring that learned Appellant’s Counsel just chose to make a mountain out of molehill as far as the issue of identification is concerned. Evidence is clear that the PW2 was asked to sit up at some point when she was being abducted as the Kidnappers approached a Police check point and which gave her the opportunity of taking a good and hard look at her abductors. She also saw them once again at the Police Station and further identified them in the dock when they were arraigned.
It is important to note that the spontaneity with which the PW2 had recognized the Appellant, not once, not twice and even in open Court is an occurrence that cannot be easily waved away with the back of the hand as one of the gang members who abducted her on the fateful day. The settled position of the law is that a spontaneous and positive identification is better than a formal identification parade by the police. The best identification therefore remains the prompt one by the victim or the people who witnessed the commission of the crime. See the case of ADAMU vs. THE STATE (1991) 4 NWLR (PT. 187) 530.

As it is rather glaring from the lower Court’s judgment, the Court did not rely on the question of identification alone in reaching its decision. The Court relied on the Appellant’s confessional statements in Exhibits “C” as well. It is settled point of law that a confession alone is sufficient to support a conviction without corroboration so long as the Court is satisfied with the truth of the confession. See JAMES OBI ACHABUA vs. THE STATE (1976) 12 SC 63. The truth of the matters admitted in the statement should as a matter of importance, be established by some other evidence no matter how slight. The locus classicus on the subject is the case of R. vs. SYKES (1913) 8 C.A.R. 233, which has been applied in several Nigerian cases on the subject. What should perhaps, be noted with this case, is that it would have been unsatisfactory to have convicted on the evidence of identification alone had it not been assisted by the confessional statement and would also probably have been unsatisfactory if the conviction had rested solely on the confession without the circumstances, which make it probable that the confessions were true. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?

In any event, it is within the province of the trial Judge to determine the admissibility of a confession on proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case where there has been a retraction by the accused, it is desirable for the trial judge to find some corroboration in the evidence tending to show that the statements of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20. Perhaps, the question to address here is whether there are any such corroborating circumstances, which makes the confessions true in this case? To begin with the trial Court referred to the PW1 and PW3 who stated that the Appellant and the other accused person were arrested jointly or together when the phone rang with the 2nd accused person. The evidence of the PW3 specifically stated that the Appellant and his co-accused person where on the verge of fleeing the scene on a motorcycle when their motorcycle ran out of fuel and were apprehended by persons in the Community.

That learned Appellant’s Counsel had produced a very incisive and formidable brief of argument in challenging the lower Court’s decision is not in doubt. But the failure to have challenged and confronted material points in an opponent’s case is a major setback to the Appellant’s appeal even at this stage of this case. See the case of OKOSI vs. THE STATE (Supra) where the Supreme Court per BELGORE, JSC delivering the lead judgment in the case, had this to say;
“In all criminal trials, the defence must challenge all the evidence it wishes to dispute by cross examination. This is the only way to attack any evidence lawfully admitted at the trial. For when evidence is primary, opinion and not that of an expert and an accused person wants to dispute it, the venue for doing so is when that witness is giving in the witness box. The witness should be cross examined to elucidate facts disputed, for it is late at the close of the case to attempt to negotiate what was left unchallenged.”

In the final analysis, this Appeal fails. The mere fact that the Appellant did subsequently retract his Exhibit “C” as the facts and circumstances of this case has shown, does not necessarily mean that the learned trial Court could not have acted on the statements more so when the Court successfully tested the truth in the confessions against the guidelines issued by the Court in the case of R. vs. SYKES (Supra). On the question of whether the offence of Kidnapping was proved against the Appellant, it is important to note that the three constituents of the offence of Kidnapping were proved to the hilt against the Appellant, beginning from when he had the misfortune of being spontaneously identified by the PW2 and until when he made a confessional statement, which the trial Court found to be true.

This Appeal is moribund and it is therefore dismissed. The judgment of the High Court Edo State of Nigeria delivered on the 13-4-2016, wherein the Appellant and one (1) other were convicted of the offences of Kidnapping punishable under Section 3(2) of the Edo State Kidnapping (Prohibition) Law, 2009 is hereby affirmed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: The lead judgment prepared by my learned brother FREDERICK OZIAKPONO OHO, JCA was made available to me in draft.

My Lord exhaustively dealt with the issues in contention and I am in complete agreement with the reasoning and conclusion contained therein.

I need however emphasize, albeit briefly that it is not in every case that an identification parade is necessary, once there is direct and positive evidence identifying the accused person. See ADEYEMI & ORS V. THE STATE (1991) 1 NWLR (PT. 170) 679; PETER ADEWUNMI V. THE STATE (2016) 10 NWLR (PT. 1521) 614.
The question whether or not the Appellant was properly identified is a question of fact to be considered by the trial Court. See ORIMOLOYE V. THE STATE (1984) NSCC 654. In the instant case, the learned trial Judge made a finding of facts to the effect that the PW2 who was the victim of the kidnap had every opportunity of identifying and did infact identify the Appellant as one of the kidnappers to the extent that she testified that he was the driver of the vehicle with which they abducted her and how she was asked to sit up properly in the car when they approached a police check point in order to avoid any suspicion. This also gave her a good opportunity to take a good look at her abductors. Where there is a good and cogent evidence linking an accused person to the commission of a crime on the day of the incident, a formal identification parade becomes unnecessary. See THE STATE V. SALAMI (2011) 8 NWLR (PT. 1279) 883. See also OGOALA V. THE STATE (1991) 2 NWLR (PT. 175) 509. The Supreme Court per Nnaemeka-Agu (JSC) posited that:-
“An identification parade should never be conducted for purely cosmetic reasons. It should be limited to cases of real doubt or dispute as to the identity of an accused person on his connection with the offence charged. To insist that it must be conducted in cases like the instant case in which the visual evidence of identity is clear and corroborated by other evidence and the accused person confesses to his complicity in the crime is to make a mockery of criminal justice.”

For this and the fuller reason contained in the lead judgment, I also hold that this appeal lacks merit and it is hereby dismissed.

The judgment of the High Court of Edo State delivered on 13-4-2016 is hereby affirmed.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother F. O. OHO, J.C.A., and I am in agreement with him that the appeal lacks merit. In the event, I also dismiss it.

Appearances:

OLAYIWOLA AFOLABI, ESQ. For Appellant(s)

FIFI OMAGE-DIMOWO (MRS.) For Respondent(s)