OHAKPOUGWO v. STATE (2021)

OHAKPOUGWO v. STATE

(2021)LCN/15512(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, April 29, 2021

CA/OW/142C/2017

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

CHIJIOKE OHAKPOUGWO APPELANT(S)

And

THE STATE RESPONDENT(S)

 

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Hon. Justice U. D. OGWURIKE of the Imo State High Court delivered on 8th day of July, 2014 in charge No. HAM/3c/2003 which convicted the Appellant for the offence of armed robbery punishable under Section 1(2)(a) of the Robbery and Firearm (Special Provision Act, 2004) and sentenced him to death by hanging.

According to the charge sheet, the Appellant with one other person now at large were alleged to have on or about the 24th day of December, 2001, at Umugaragu Lagwa Road in Aboh Mbaise Judicial division being armed with gun, robbed one Bartholomew Ihenacho of his big travelling bag he was returning from Equatorial Guinea with, containing the sum of 500,000 CFA and some items.

Appellant pleaded not guilty. In proof of the case, the prosecution called two witnesses; the victim as PW1 and the motorcyclist conveying PW1 to his village, as PW2.

​The Appellant testified in his defence and called one other witness. At the end of trial, the trial Court found the prosecution’s case proved beyond reasonable doubt against the Appellant and accordingly convicted the Appellant as charged and sentenced him to death by hanging.

Dissatisfied with the decision, the Appellant has appealed to this Court by a Notice of Appeal filed on the 18th day of September, 2014 predicated upon two grounds as contained at pages 125-126 of the record of appeal.

In the Appellant’s brief of argument settled by NDIONYENMA NWANKWO ESQ. and filed on 30/04/2020, a sole issue was submitted for the determination of this Court, namely: –
“Whether the lower Court was right in holding that the prosecution has proved its case beyond reasonable doubt against the Appellant to warrant his conviction on the charge of armed robbery”.

The Respondent’s brief of argument filed on 30/06/2020 was settled by C. N. Akowundu Esq. Director Civil Litigation, and V E. Ekemgba Esq. Chief State Counsel the Ministry of Justice Imo State. In it, two issues were identified for determination to wit: –
1. Whether the prosecution proved its case beyond reasonable doubt against the Appellant.
2. Whether the Appellant was not properly identified as one of the robbers that robbed the PW1 of his property on the 24th day of December, 2001.

This appeal will be determined on the Appellant’s sole issue which comprehensibly encompasses the Respondent’s two issues.

APPELLANT’S SUBMISSION
Arguing the appeal, Learned Counsel for the Appellant conceded the prerogative of the prosecution to determine which witness to call but restated the law that the prosecution has the duty to call vital witnesses to prove its case beyond reasonable doubt by proving all the ingredients of the offence against an accused person, which he maintained, the prosecution herein failed to do, citing the cases of EKPENYONG vs. STATE (1993) 6 NWLR (PT. 2000) 683, ABOGEDE vs. STATE (1996) 5 NWLR (PT. 448) 270.

More particularly, he argued, referring to the evidence of PW2 that the prosecution woefully failed to prove that the Appellant was the person who robbed PW1 or that he was armed or was the person who shut PW1 or that the Appellant is the person referred to by PW2 as “Otio”, the Appellant’s name being “Chijioke Ohukpougwo”. He contended that a wrong person has been brought to Court, hence, the Investigating Police Officer stated in his conclusion that there may be a case of mistaken identity.

Similarly, and even more worrisome he submitted, is the unresolved question of the make of the motor-cycle used in the commission of the offence, whether a Grandking according to the prosecution or a Sanyong motor-cycle recovered from the Appellant. This question he said could only have been resolved by the IPO in whose custody the motor-cycle has been but who failed to testify or to produce the motor-cycle before the Court and also failed or resolve who “Otio” is, thus, fatal to the prosecution’s case, citing the cases of BAJULAIYE vs. THE STATE (2012) LPELR-7995 (CA), ELEGBEDE vs. STATE (LPELR 41131(CA) and EKPENYONG vs. STATE (1992) 6 NWLR (PT. 2000) p. 683.

It was his further argument that the failure to call the I.P.O. calls for the invocation of Section 167(d) of the Evidence Act, (2011) for if he had been called, his evidence would have been unfavourable to the prosecution, citing the cases of FRN vs. ABUBAKAR (2019) LPELR 46533 (SC), COP vs. UDE (2010) 8599 (CA), more so that the I.P.O. had stated in the conclusion of his report that there may be a case of mistaken identity.

Counsel reiterated that although, the prosecution has the prerogative of determining which witness to call and the number of witnesses to call, its omission to call the Investigating Police Officer as a witness is fatal as there are a lot of doubts on the identification of the Appellant and the motorcycle used during the commission of the offence.

FINALLY, learned Counsel insisted that an identification parade ought to have been conducted by the Police for the identity of the robber is in doubt. Failure to do so he argued is fatal to the prosecution’s case just as the failure of the Police and trial Court to consider the Appellant’s defence of alibi. He cited the cases of OKAFOR VS. STATE (2006) ALL FWLR (PT. 318) 719 C.A; ARCHIBONG VS. STATE (2006) ALL FWLR (PT. 323) 1947 urging us to resolve the issue in favour of the Appellant and allow the appeal.

RESPONDENT’S SUBMISSION
Responding and insisting that the prosecution proved all the ingredients of the offence beyond reasonable doubt, learned counsel for the Respondent referred to the evidence of PW1 from page 46 and that of PW2 at page 62 of the Record to argue that all the ingredients were proved beyond reasonable doubt that there was a robbery, that it was an armed robbery, that it was the Appellant and the other person now at large who blocked PW1 on his way to the village and robbed him of his valuables on the fateful day, the 24/12/2001. OGUDO VS. THE STATE (2011) 18 NWLR (PT. 1278) 23, BOZIN VS. THE STATE (1998) 1 A CLR 1 AT 11.

On the meaning of proof beyond reasonable doubt, the case of NDIKE vs. STATE (1994) 8 NWLR (PT. 360) 33 at 45 PARA D was called in aid.

On the eye-witness evidence, learned Counsel submitted that the identification evidence was never in issue or in doubt as PW2 who knows the Appellant as his customer for whom he used to repair the motorcycle, had ample opportunity to identify the motor-cyclist and properly identified the Appellant during the robbery as “Otio” the name the Appellant is popularly known in the village/community. AFOLALU VS THE STATE (2010)16 NWLR (PT. 1220) 584. To further buttress that fact, he added that the PW2 took PW1 and the Police to the house of the Appellant, thus, the identification evidence of PW1 and PW2, learned Counsel contented, remain unchallenged and unshaken in cross-examination and that there is nothing that stops the trial Court from accepting the evidence just as the Court is duty bound to find the Appellant guilty. He cited the cases of OKIEMUTE VS THE STATE (2016) 15 NWLR (PT. 1535) 297, 301–304, ANYANWU VS. THE STATE (1986) 5 NWLR (PT. 43) 615, IGBI VS. THE STATE (2000) 7 LRCN 23, OKOSI VS. THE STATE (1989) 1 A CLR 281, 295, EHOT VS. THE STATE (1993) 4 NWLR (PT. 290) 663.

On the failure of the IPO to testify, it was posited that the mere fact that the IPO did not testify is not fatal to the prosecution’s case as it has the discretion to call any witness. OLUWATOBA VS. THE STATE (1985) 1 NSCL 306. That the presumption in Section 167(d) of the Evidence Act, 2011, does not inure the Appellant since Counsel for the Appellant stated that he knew that the I.P.O. incidented a case of loss of his motorcycle and is therefore, available. The Appellant ought to have called him (the I.P.O) since the prosecution failed to do so. BUSARI VS. THE STATE (2016) 1 MJSC 101 AT 131 E–F.

​Moreover, he argued, an accused person can be convicted on the evidence of a single witness, more so here, on the evidence of two eye-witnesses, citing the case of NKEBISI VS. THE STATE 412 NSCQR 930 AT 949 and urging us to uphold the conviction and sentence of the Appellant by the lower Court.

RESOLUTION OF APPEAL
The crux of this appeal is whether the learned trial Judge was right in holding that the prosecution (now the Respondent) proved the charge against the Appellant beyond reasonable doubt.

It is elementary and merely restating the obvious that, in our adversary system of adjudication, the prosecution bears the unshifting burden of proving the guilt of an accused person in order to dislodge the presumption of innocence constitutionally guaranteed to every person by Section 36(5) of the CFRN 1999 (as amended). By Section 135(1) of the Evidence Act, 2011, such proof must be beyond reasonable doubt. See WOOLMINGTON VS. D.P.P. (1935) AC 462, NJOKU Vs. THE STATE (1993) 6 NWLR (PT. 299) 272 AT 285, ANI Vs. STATE (2003) 11 NWLR (PT. 830) PG. 142, IFEJIRIKA Vs. STATE (1999) 3 NWLR (PT. 593) PG. 59, OMOTOLA Vs. STATE (2009) ALL FWLR (PT. 464) 1490 AT 1600, OCHEMAJE Vs. STATE (2008) 15 NWLR (PT. 1109) 57, ODUNEYE Vs. STATE (2001) 2 NWLR (PT. 697) 311.

This burden is not discharged unless and until the prosecution proves by credible evidence, each and every ingredient of the offence beyond reasonable doubt and with no corresponding duty on the accused to prove his innocence. See OKOH V STATE (2014) 8 NWLR (PT1410) 502, AJAYI V THE STATE (2013) 9 NWLR (PT 1360) 589.

Failure to prove any of the ingredients beyond reasonable doubt means failure to prove the entire case, GALADIMA VS THE STATE (2017) LPELR 41909 (SC). Similarly, where at the end of assessment of the prosecution’s case there is any lingering doubt, the doubt must be resolved in favour of the accused. See STATE V. DANJUMA (1997) 5 NWLR (PT. 809)1 AT 35-36, ABDULLAHI V. STATE (2008) 17 NWLR.

It must however be stated that proof beyond reasonable doubt is not proof beyond all shadows of doubt or to the hilt. It only means the presence of evidence which leaves only a remote possibility in favour of the accused which can easily be dismissed by the phrase “of course it is possible, but not in the least probable”. SeeITODO VS STATE (2020) 1 NWLR (PT 1704) 1;  MILLER VS MINISTER OF PENSIONS (1947) ALL ER 373.

​As a settled principle of law, the prosecution may prove the guilt of an accused person either by relying on a confessional statement of the accused, or by circumstantial evidence or direct evidence of an eye witness. SeeOKUDO VS. THE STATE (2011) 3 NWLR (PT. 1234) 209, 236 PARA D, AKWUOBI VS. THE STATE (2016) LPELR–41389 (SC), EMEKA Vs. THE STATE (2001)14 NWLR (PT734) 668, UDE Vs. STATE (2016)14 NWLR (1531)122.

Now, the essential ingredients of armed robbery under the Robbery and Firearms (Special Provisions) Act Cap. R 11, Laws of the Federation of Nigeria, 2004, have been listed in a plethora of cases. These are: (a) that there was a robbery or series of robberies; (b) that the robbery was an armed robbery; and (c) that the accused person took part in the robbery. SeeAGUGUA VS. THE STATE (2017) LPELR–42021, BELLO vs. STATE (2007) ALL FWLR (PT. 396) 702 AT 719 PARAS B-C, BOLANLE vs. STATE (2005) 7 NWLR (PT.925) 431 AT 451 PARAS C-D and ISIBOR vs. STATE (2003) 3 NWLR (PT.754) 250 AT 278 PARAS D-E. All these ingredients must be conjunctively proved beyond reasonable doubt.

​Thus, the Courts have maintained the position that for the prosecution to secure a conviction for armed robbery it must prove (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused was the robber or one of the robbers.

Now, I shall consider the first and second ingredients together which are that: there was a robbery or series of robberies and the robbery or the series of robberies is/are armed.

Robbery generally, is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See Black’s Law Dictionary, Ninth Edition page 1443.

Section 1(2) of the Robbery and Firearms (Special Provisions) Act, 1990, states that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or is in company of any person so armed or at immediately before or immediately after the robbery, the said offender wounds or uses any personal violence to any person.
In EDET ASUQUO BASSEY v. THE STATE (2012) LPELR-7813 (SC) RHODES VIVOUR JSC defined the term thus:
“Armed Robbery simply means stealing plus violence used or threatened. While robbery is stealing without violence. Before there is a robbery, the suspect must steal something capable of being stolen. Any person in company of a person armed, or aiding or abetting in commission of the offence is also guilty of armed robbery. See OKOSUN VS. A.G BENDEL STATE (1985) 3 NWLR (PT.12) P. 283, NWACHUKWU VS. STATE 1985 3 NWLR (PT.11) P. 218.”

The evidence in proof of these two ingredients was proffered by PW1, the victim of the offence and PW2, the eye-witness to the commission of the offence.

Their evidence is that as Joseph Njemanze, a commercial motorcyclist (PW2) was conveying his passenger Bartholomew Ihenacho (PW1) returning from Equatorial Guinea, from Afor Enyiogugu to his village, Umuosi Lagwa Okwato, around 11:00pm, at the boundary of Umugaragu Enyiogugu and Lagwa another motorcycle from the opposite direction blocked them and the passenger of the other motorcycle (now at large) after struggling with PW1 for his big travelling bag at gun point and upon firing two shots, collected the bag from PW1 and the duo drove off. This evidence was not challenged.

Expectantly so, as the position of the Appellant is that of a total denial of being present at the scene of crime. Thus, the above evidence of PW1 and PW2 were not taken up in cross-examination.

The law is trite that a piece of evidence which is unchallenged and uncontroverted by the opposing party who had the opportunity to cross-examine on it but failed to do so, is entitled to be believed and acted upon by the Court as establishing the fact in issue except it is glaringly incredible and incapable of being believedDUROSARO VS. AYORINDE (2005) ALL FWLR (PT. 260) 167, BABA VS. NIG CIVIL AVIATION & ANOR (1991) 7 SC (PT.1) 58, GONZEE NIG. LTD. VS NERDC (2005) ALL FWLR (PT. 274) 25 AT 248.

The learned trial Judge was thus right when he held that the prosecution proved the two ingredients beyond reasonable doubt.

The 3rd ingredient of the offence is that the Appellant was the robber or one of the robbers or was in the company of the robbers who robbed PW1 while being armed with offensive weapons.

​This ingredient is the most contentious ingredient of the offence. The Appellant herein has vehemently denied being one of the robbers or being in the company of armed robbers.

In proof of this ingredient, the prosecution (now Respondent) relied on and the lower Court acted upon the direct evidence of PW2 as eye witness to the incident. PW2 was the motorcyclist whose passenger, PW1, was robbed.

The importance of evidence of credible eye-witness cannot be over emphasized in criminal trial. When such evidence is credible and meets the conditions of acceptability, it is accorded high probative value and ranks very high on the evidential scale.
Eye-witness account is one of the most dependable and reliable ways of proving the guilt of an accused person. It has been described as the best evidence in the hierarchy of evidence in our criminal justice system. It towers above other methods of prove and is next only to a voluntary confessional statement.
In OJO VS. GHARORO (1999) 1 NWLR (PT. 615) 374, 387 para D the probative value of eye-witness was stated thus:-
“It is the best evidence and attracts the most probative value. Such direct evidence towers high above hearsay evidence.”
Putting it simply, an eye-witness testimony is usually the finest evidence in a criminal trial with high probative value. See OYACHE VS. THE STATE (2006) ALL FWLR (PT. 305) 703 at 720, IDIOK VS. STATE (2008) 13 NWRL (PT. 1104) 225 and OKOSI VS. A.G BENDEL STATE (1989) 1 NWLR (PT. 100) 642.

Standing on this high pedestal therefore, it goes without saying that it must also carry along with it the requirement of great caution, for ascertainment of the truth of the evidence. Thus, Courts are enjoined to critically examine in detail, the eye-witness evidence, especially of identification of an accused person before relying on same, in order to avoid cases of mistaken identity. In BELLO SHURUMO VS. THE STATE (2010) 19 NWLR (PT 1226) 73, my Lord Rhodes Vivour, JSC, observed: –
“Eye-witness is one of the best evidence available in criminal trials, provided it is examined critically in detail by the trial Judge. This is important because victims of violent crimes, e.g. armed robbery etc. are always quick to implicate anyone shown to them by the Police as the culprit. The circumstances of the case, antecedents and close contact with the suspect must be comprehensibly examined by the Judge.”
Thus, the attitude of this Court and the apex Court to identification evidence is that it is not conclusive and the Court has to consider same in the light of the other evidence on record including the plea of accused person as the eye-witness may be mistaken in the identity of the accused person. See SANI VS. THE STATE 2015 LPELR–24818 (SC)
It is in the light of this that certain conditions have evolved as factors to guide the Court in ascertaining the probative value of an eyewitness on identification of an accused person. These are:
i. The circumstances in which the eyewitness saw the accused.
ii. The length of time the witness saw the accused.
iii. The lighting condition;
iv. The opportunity of close observation; and
v. The various contacts between the accused and the eyewitness.
In ABUBAKAR & ANOR VS. STATE (2016) LPELR–41547 (CA) this Court held: –
“Indeed, before ascribing value to identification evidence and basing a conviction upon it, the Court must meticulously consider certain factors in order to guard against cases of mistaken identity. These are: – Circumstances in which the eyewitness saw the suspect – was it in difficult condition.
The length of time the witness was the suspect or Defendant, a glance or long observation, the opportunity of close observation, previous contact between the two parties. The light condition, see OCHIBA VS. THE STATE (2011) LPELR-8245 (SC),…”

The learned trial Judge after evaluating the evidence of PW1 and PW2 held: –
“… I restate that I believe and accept the eyewitness account of PW1 and PW2 that the accused was one of the robbers who robbed PW1 on the said night of 24th December, 2001.”

On the other hand, the contention of the Counsel for the Appellant is that, none of the two prosecution witnesses identified the Appellant by name. That the Appellant who was at Lapech Hotel for a musical concert at the material time is not the “Otio” mentioned by the PW2 and that a wrong person was brought to Court.

​The real question to answer as between the position of the lower Court and that of the Appellant is whether the PW2 correctly identified the Appellant as the motorcyclist whose passenger robbed PW1 of his big travelling bag containing many items including the sum of five hundred thousand France Cefa. In other words, whether the prosecution proved beyond reasonable doubt that the person identified by PW2 and charged for the offence is the same person who committed the offence.

The need for proper identification of an accused person as the person who actually committed an alleged offence cannot be overemphasized. This is to ensure that a wrong person is not made to suffer for a crime he has not committed. The necessity is even more and in fact compelling where the conviction of the accused depends solely on his identity as the culprit. In such a case, the necessity will be absolute in order to dispel any doubt in the mind of the Court that the person being identified by the identification evidence is the one and the same person who was seen at the scene of crime committing the offence. This is of utmost importance in the administration of Criminal Justice if Justice is to be achieved, since it is the identification of the accused that creates a link between him and the offence. See STATE VS. SANI (2018) LPELR-43598 (SC).

Thus, the law is that the question of whether an accused person is properly identified as the one who committed the offence or was a party to the commission of the offence is a question of fact to be considered by the trial Court on the evidence placed before the Court, and this depends on the facts and circumstances of each case. The Court has to be satisfied that the identification evidence has sufficiently established the guilt of the accused person beyond reasonable doubt. See NDUKWE VS. THE STATE (2009) NWLR (PT. 1139) 43, DAIRO VS. STATE (2018) 7 NWLR (PT 1619) 399, UKPABI VS. STATE(2006) 6–7 SC 27 also reported as (2004) 11 NWLR CPT 884) 439.
​Therefore, whenever the case against the accused depends wholly on the correctness of his identification and he alleges, as is being alleged here, that the identification is mistaken, the Court must closely examine the evidence before acting on it and any weakness in the evidence must go to the benefit of the accused person. This is why the trial Court is enjoined to be guided by the factors laid down in several cases including the case of SUNDAY NDIDI VS. THE STATE (SUPRA).

In the instant case, the identification evidence of PW2 is that he recognised one “Otio” as the rider of the motorcycle used in the robbery since the head lights of his own motorcycle were on which he flashed on the rider to enable him see and recognise the person. That “Otio” according to him is the same person as the Appellant whom he has known for long as a customer whose motorcycle tyres he (PW2) used to patch and repair. That it was the same Grand-King motorcycle whose tyres he has been repairing for the Appellant that was used in the robbery.

Based on his recognition of “Otio”, PW2 together with PW1 reported the matter to the Police at the Afor Enyiogugu Police Station in the morning of the 25th December, 2001. The Appellant was arrested and a motorcycle recovered from his house. At the earliest opportunity, in his statement to the Police at Aboh Mbaise Police Station on 25/12/2001, (Exhibit C) the Appellant raised the defence of alibi, that he together with three of his friends, Okechukwu, Cyril and King Joe, were at Lapech Hotel at the material time watching a musical concert. The same alibi was raised in Exhibit C(1) made at the Police Headquarters on 3/1/2002 stating the particulars of his whereabout.

Now, the defence of alibi if found to be true is a complete defence. It simply means that when the offence was committed the accused person was somewhere else other than the scene of crime and thus could not have committed the offence since it is physically impossible for him to be at two different places at the same time. Alibi being a defence within the knowledge of the accused, he has the duty of providing the Police with the details of his whereabout at the earliest opportunity, as the Appellant did. The duty then falls on the prosecution to investigate the alibi. As it turned out here, none of the Investigating Police Officers (I.P.Os) testified to inform the Court whether the alibi was investigated and rebutted or falsified.

​The law on the issue of alibi is now settled. Once an alibi is clearly set up, whereby the accused person states where he was at the time of the commission of the crime in question, with persons who were with him at that place, or who were aware of his presence there, at a place well outside the locus criminis, the alibi must be investigated to ascertain its veracity or otherwise in order to confirm or disprove the claim. EZE vs. STATE (1976) JSC. 125. To simply dismiss an alibi properly set up with a wave of hand as unreliable, renders the alibi uncontradicted. In such situation, the story of the accused person must be believed and he will be entitled to a discharge and acquittal as the case would not have been proved beyond reasonable doubt. See ADEDEJI VS. STATE (1971) 1 ALL NLR 75, NWOSU VS. STATE (1986) 4 NWLR (PT. 35) 438.
It is imperative for the prosecution to investigate the alibi and make known the outcome of the investigation. Where the alibi is investigated and found to be false and rebutted, the prosecution goes ahead with further investigation to prosecute the accused person. If on the other hand the alibi is confirmed, the investigation should abate and the suspect be set free.
The effect of failure to investigate an alibi when duly raised is that the prosecution or a conviction obtained in disregard to the requirement may be vitiated, see IBRAHIM VS. STATE (1991) 4 NWLR (PT. 186) 131, ONAFOWOKAN VS. STATE (1987) 3 NWLR (PT. 61) 538, ONUCHUKWU VS. STATE (1998) 4 NWLR (PT. 547) 576.

However, this state of the law does not in any way derogate from another settled position of law that where an accused person is fixed at the scene of crime by cogent and credible evidence, failure to investigate the alibi raised by him will have no effect on his conviction as the alibi raised is of no moment. Alibi automatically fails, collapses, and crumbles, by strong and cogent evidence which positively, unequivocally and irresistibly point to the guilt of the accused and pins him to the scene of crime. See STATE VS. EKANEM (2017) 4 NWLR (PT. 1554) 85, NDUKWE VS. STATE (2009) 7 NWLR (PT. 1139) 43 AT 82, AFOLALU VS. THE STATE (2010) 16 NWLR (PT. 1220) 584.
In such case of compelling evidence fixing the accused at the scene as a participant in the commission of the crime, his alibi logically and physically is dislodged.

​Factors to be considered in the ascription of probative value to the evidence of PW2 as fixing the Appellant at the scene of crime as earlier stated includes the circumstances in which PW2 saw the Appellant, the length of time within which he saw the Appellant and the opportunity he had of close observation of the Appellant.

From the evidence on record, the offence was committed in the night, about 11:30pm. It was along a village road at the boundary between Umugaragu Enyiogugu and Lagwa. By his evidence, PW2 had only a brief opportunity of observing the motorcyclist before he (PW2) ran to the bush to hide. In his words:-
“… when they blocked our way, the other person the accused was carrying came down and brought out his gun and told PW1 to surrender the bag. I became afraid and I left PW1 and my motorcycle and ran into the bush because I saw that my life was in danger… When I ran into the bush, I did not know what happened anymore at the scene…”

It is clear that PW2 only had a fleeting glance at the motorcyclist and in a state of fear before he ran into the bush and remained therein until everything was over.

In such circumstances where the encounter with the accused is sudden, the sight brief, and in a state of fright the eyewitness can hardly have a proper observation of the features of the accused with a degree of certainty. There is always in such cases, the risk of mistaken identification. The type of identification evidence of PW2 based on alleged prior knowledge of recognition of the Appellant cannot be said to be full proof or trouble free as it is usual that many a time people experience seeing someone on the street that they know only to discover later that they were wrong.

Even where the witness knows the accused prior to the date of the incident, there is still the need to recognize that same person whom the witness knows to be the same person as the one he saw committing the offence. Whenever the case against the accused person depends wholly or substantially on the correctness of the identification of the accused, and the defence alleges the identification was mistaken, the Court must closely examine the evidence on it, it must view it with caution so that any real weakness discovered about it must lead to giving the accused the benefit of doubt. This is because, mistakes are sometimes made even in the identification of close relatives and friends. See UKPABI VS. THE STATE (2006) 14 NWLR (PT. 1000) 349 per Uwaifo JSC and NDIDI VS. STATE (2007) 19 NWLR (Pt. 1052) 6539.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Lord Widgeny, C.J in the case of R vs. TURNBULL (1976) 3 ALL ERP 549, at 55 I observed: –
“At what distance, in what light was the observation impeded in any way….. Had the witness ever seen the accused before? How often…. Recognition may be more reliable then identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quantity of identification evidence. lf the quality is good and remains good at the close of the accused’s case, the danger of mistaken identification is less and but the poorer the quality, the greater the danger……”
[emphasis is mine]
In EYISI & ORS VS. THE STATE (2000) 15 NWLR (PT. 691) 555, ONU, JSC also gave the same warning to trial Courts, thus:-
“What a trial Court must bear in mind in all cases of identification is that, care must be taken in accepting, and relying on evidence of such identification to convict more so where the Defendant contends (as in this case) that it is mistaken…. ”

​Though PW2 stated that he has a prior knowledge of the Appellant, the circumstances and the length of time within which he observed the Appellant, it cannot be said that he had a proper observation of the Appellant to exclude the possibility of mistaken identity of the person he saw for the person he knows. That uncertainty creates a weakness in the identification evidence of PW2 which lends credence to the alibi raised by the Appellant that he was not at the scene of crime but at Lapech Hotel and so could not have been the person seen and identified by PW2. As earlier stated, the I.P.Os did not testify.

However, the reports of their investigation and findings which forms part of the proof of evidence filed before the lower Court and forms part of the transmitted record to this Court (pages 12 – 16 of the record), shows that the alibi was investigated and not disproved. It also supports the fact that mistaken identity cannot be excluded.

​While not relying on the report as evidence admitted before the lower Court, this Court is not precluded from looking at it being part of the transmitted record to this Court. It is trite that the Court is entitled to look at the contents of its file or record and refer to it in consideration of any matter before it. It can make use of any information contained therein. See MUSA VS. STATE (2016) LPELR-40798, FAMUREWA VS. ONIGBOGI & ORS (2010) LPELR–9141,ITEIDU & ORS VS. OBI (2009) LPELR–8343 (CA), AGBALEH VS. MIMRA (2008) 2 NWLR (PT. 1071) 370. InPDP VS. BARR S. E. EZEONWUKA & ORS (2018) 3 NWLR (PT. 1606) 187 the apex Court per Kekere Ekun, JSC held:
“The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents… The inclusion of these processes in the record transmitted from the Court below presupposes that they form part of the record proceedings before that Court.”

In his investigation report, the I.P.O at the State Police Headquarters stated inter alias:-
“….. the three witnesses to the accused in their statements agreed that they attended night party together with the accused after church service at about 23:30 hours and departed to their respective homes at about 4:30am of 25/12/2001 together…”

​He concluded inter alia:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Element of mistake” of identity could not have been ruled out since the incident took place at night time but for Joseph Njimanze “the cyclist’s proof of identity” (pages 15 – 16 of the record).

The IPO at the Aboh Mbaise Police Station also concluded his findings as follows:-
“Njimanze Joseph “the cyclist” only has a proof of identity in this case of robbery else there could be mistake of identity since it was night.”(See p. 14 of the record).

The above is an indication that even the IPOs at the stage of their investigation could not rule out mistake of identity given the fact that the incident occurred in the night.

​Furthermore, the Appellant gave evidence and called a witness in support of his alibi. He testified as DW1 and called the witness as DW2. He was one of the three persons mentioned to the Police in whose company the Appellant said he was at the material time. The Appellant told the Court that he and his friends Okechukwu Njoku (DW2) Kingsley Njoku and C.Y Opara at about 9:00pm went to Lapech Hotel to watch a musical concert by the children of the musician called “Warrior” and left the Hotel at about 4:00am of 25/12/2001. He proceeded to his house.

DW2 testified that at about 8:00pm himself, Kingsley Njoku, C.Y Opara and the Appellant after leaving the compound of EzeIkeni went to St. Charles Catholic Church Enyiogugu for service which ended at 12:00 midnight. That after the church service, they went with their motorcycles to Lapech Hotel to watch musical concert by the children of “Warrior”. They left the Hotel at about 4:30am.

After evaluating their evidence the learned trial Judge held:-
“it is evident from the story or evidence of the accused and his witness Okechukwu Njoku (DW2) and the inconsistencies in both evidence that their evidence are very unreliable and cannot be accepted or believed. The story of the accused is definitely made up to avail himself of the alibi that he was somewhere else.”

First and foremost it must be re-echoed that there is no duty on the accused to prove or establish his alibi once he has furnished particulars of his where about lucidly to the Police. SeeOkosi vs. State (1989) 1 NWLR (Pt. 100) 642, YANOR VS STATE (1965) 1 ALL NLR 193.

Secondly, the standard of proof required to establish alibi is not the same required of the prosecution to establish the guilt of the accused person or to disprove the alibi. The standard of proof required to sustain an alibi is much lower than proof beyond reasonable doubt expected of the prosecution. The standard required is one based on balance of probabilities, a standard merely favourable to the accused person on the scale of probabilities. See GACHI VS. THE STATE (1965) NMLR 333; OBIODE VS. THE STATE (1970) 1 ALL NLR 35; ODIDIKA VS. THE STATE (1977) 2 SC 21.
In other words, alibi is established if the Court is satisfied or evidence on record shows that it is probable that the accused person was somewhere else on the date and time the offence was committed and not necessarily that the prosecution witnesses are liars. SeeBOZIN VS. STATE (1985) 2 NWLR (PT. 8) 465, SMART VS. THE STATE (2016) 6 NWLR (PT. 1517) 447, SANI VS. THE STATE (2015) 15 NWLR (PT. 1483) 522.

​The mere fact that there is a discrepancy between the evidence of the Appellant and that of DW2 as to whether they first went to the church before going to the Lapech Hotel or were in the Church or at the Hotel at the material time does not render the evidence unreliable or destroy the alibi. That discrepancy is not substantial to negative the defence of alibi. What is important and I dare say is sufficient is that the Appellant was not at the scene of crime at the material time, 11:30pm, when the robbery was committed. Whether in the Church or in the Hotel, the evidence removed the Appellant from the locus criminis when the offence was committed.

As observed by Coker, JSC in OKPENE VS. STATE (1997) 1 ANLR 1 AT 6–7, it has never been the law that the mere fact that a person told a lie is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused has told lies relieves the prosecution of its duty of proving the guilt of the accused of the offence charged beyond reasonable doubt. The learned trial Judge ought not to have dismissed the alibi with a wave of hand.

It is worthy of note that the incident occurred at about 11:30pm on a village road. PW2, the sole witness who identified the Appellant stated that he identified the motorcycle used by the Appellant in the robbery as the motorcycle whose tyres he had been patching and repairing for the Appellant, a Grand-King motorcycle. Appellant maintained that his motorcycle is a SANYANG 125 HONDA which was what the Police recovered from his house.

Regrettably, the motorcycle though in the custody of the Police was not tendered in evidence to affirm or rebut the Appellant’s claim and belie or confirm the evidence of Pw2. Thus, the identity of the motorcycle which PW2 said was used in the commission of the offence remain unresolved. The non-production of the motorcycle in evidence to link and tie same to the Appellant as the motorcycle which PW2 saw the Appellant used for the robbery, raises serious questions of credibility and creates some doubt on the identification evidence of PW2.
(1) Was it a Grand king motorcycle that PW2 saw was used in the commission of the robbery and therefore different from the motorcycle recovered from the Appellant
(2) Was the motorcycle recovered from the Appellant a Sanyang 125 Honda brand and therefore different from the motorcycle seen on the scene of the crime?
(3) Could the Sanyang 125 Honda motorcycle recovered from the Appellant’s house be the same with the Grand king motorcycle which PW2 knows the Appellant with, and without any explanation to that effect?
(4) Could the PW2 have been able, in the circumstance, to have properly recognized the motorcycle as the one (Grand king) he repairs for the Appellant?
(5) Why was the recovered motorcycle in the possession and custody of the Police not tendered in evidence?

The learned Counsel for the Appellant relied on Section 167(d) of the Evidence Act, (2011) to support his argument that had the motorcycle collected from the Appellant’s house been produced and the I.P.O the only person who would have resolved the issue called, the evidence would have been unfavourable to the prosecution. He also relied on BAJULAIYE VS. STATE (SUPRA) where this Court chastised the Police for the failure of I.P.O to testify.

Section 167 (d) provides:
“The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that:
(d) Evidence which could be and is not produced would, if produced, be unfavourable to the person who withhold it.”
The effect of this Section is that when a party withholds useful evidence on pleaded facts in his possession which he could have produced but failed to do so, the presumption is that the evidence if produced would have gone against him. The provision applies, generally, to failure to lead evidence on pleaded facts and not failure to call a particular witness, thus, where the party calls other evidence on the issue failure to call the particular witness to give evidence on that piece of evidence will not raise the presumption. See A.G ADAMAWA STATE VS. WARE (2006) 4 NWLR (PT. 970) 399, SMART VS. THE STATE (2016) ALL FWLR (PT. 826) 548, UDO VS. STATE (2006) 15 NWLR (PT. 1001) 179, EGBEYOM VS. THE STATE (2000) 4 NWLR (PT. 654) 579. In the instant, the case for the prosecution is that PW2 identified a Grand king motorcycle used by the Appellant in the robbery operation. A motorcycle was collected or recovered from the Appellant’s house as the said motorcycle used for the robbery, which was seen at the scene of crime and identified by PW2. Same was taken to the Police Station and has been in the possession and custody of the Police but was not produced and tendered in evidence. The I.P.O did not testify nor did any other prosecution witness. The Appellant’s fixed and rigid position is that he was not the person seen at the scene of crime (locus criminis) identified by PW2 as “Otio” and his motorcycle is not a Grand king, which PW2 saw at the scene of crime but a Sanyang make still in the custody of the Police.

It was for the prosecution to produce the motorcycle in its custody in order to support its case. Failure so to do and for the obviously unanswered questions, I cannot but reason along with Appellant’s Counsel that the non-production of the motorcycle recovered from the Appellant’s house and the failure to call the I.P.O or any member of the investigation team to testify and/or to tender in evidence, the motorcycle, calls for the invocation of Section 167 of the Evidence Act, (2011) and is fatal to the case of the Respondent. The presumption is that, if same had been produced, it would have been unfavourable to the prosecution and favourable to the Appellant.

Another puzzling aspect of this appeal is the evidence of PW1 that as the case was being reported at the police station at about 6.00am, he saw the Appellant patrolling around the police station with the same motorcycle used in the commission of the offence and when the Appellant saw him (PW1), the Appellant went home and started washing his clothes. (See pages 48 and 56 of the record). What an incredible evidence. A very difficult evidence to believe. This evidence does not flow with the tide of the natural course of events. It is most improbable that a person who has committed a very grievous offence as armed robbery instead of going into hiding would be hovering around the police station a few hours after the commission of the offence with the same motorcycle used for the robbery and when sighted by the victim reporting the matter, would return to his house. This piece of evidence is against common logic and an affront to reason and intelligence. It is indeed manifestly hostile to sound reasoning that it is not entitled to be believed. Such evidence is incapable of being believed.

Deliberating on a similar nature of evidence IGNATIUS CHUKWUDI PATS-ACHOLONU, JSC in the case of OSAREMWINDAN AIGUOKHIAN VS. THE STATE (2004) LPELR-269 (SC) at (P. 9, paras. E-G had this to say:
“I have said it before and I will say it again that when the statement or evidence of a witness is of such obvious exaggerated proportions that it enters into the realm of either fantasy or is an affront to intelligence or is reckless in its utterance, it should be ignored and consigned to a garbage and treated with utmost contempt, disdain and of course rejected in its entirety. Such evidence would be shown to be so manifestly hostile to reason and intelligence as to be nigh impossible that it should be believed by the Court”.

​Let me reiterate that that piece of evidence is anything but credible and it is not entitled to be accepted or believed by the Court. Evidence is credible when it is worthy of belief and for evidence to be worthy of belief and credit, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe – see AGBI VS. OGBEH (2006) 11 NWLR (PT. 990) 1, DIM VS. ENEMUO (2009) 10 NWLR (PT. 1149) 353, OGBORU VS. IBORI (2006) 17 NWLR (Pt 1009) 542.

The above testimony of PW1 at best can only be regarded as mere petulance and deserves to be treated with ignominy; it is impotent and only weakens the prosecution’s case.

It should be re-stated and re-emphasized that in a criminal trial of this nature where the prosecution’s case depends entirely on the evidence of eyewitness(es) whose evidence of identification is in issue or arises, the prosecution has the duty to ensure that the identification evidence is detailed and meticulous on the identification of the accused as to leave no one in doubt that it was the accused and no one else that was seen committing the crime. This duty extends to ensuring that no missing links are left unconnected, no loose ends are left untied and no gap is left but is filled, to safeguard against possible but avoidable mistakes of sending a wrong person to the grave. In the instant appeal, the prosecution did not go this far.

​The unfortunate feature of this case is that at the earliest opportunity the Appellant raised the defence of alibi. The police investigated same and did not completely disprove the alibi but none of the I.P.Os. testified in Court. Appellant called a witness who confirmed that they were together with the Appellant at the material time at a place different from the scene of crime. The prosecution failed to tender in evidence the motorcycle recovered from the Appellant which the Appellant consistently maintained is of Sanyang 125 Honda make as against the Grand king motorcycle identified by PW2 at the scene of crime and which allegedly he had been repairing for the Appellant.

The failure of the I.P.O to testify in order to resolve the crucial question of the identity of the motorcycle recovered from the house of the Appellant as against the motorcycle PW2 saw at the scene of crime allegedly used in the commission of the offence, not only weakens the prosecution’s case but also lends credence to the Appellant’s case that his motorcycle was neither the one used in the commission of the offence nor was he the rider of the motorcycle seen at the locus criminis. This further gives force to his alibi that he was not the person identified by PW2 as the person seen at the scene of crime. In all his statements to the police, the Appellant denied being the person identified by PW2 or being one of the robbers who robbed PW1.

The need for trial Court to be very circumspect in criminal trials and to exercise great care before convicting an accused person especially for a capital offence cannot be over-emphasised as it is one of the beacons of our criminal jurisprudence expressed in the maxim “it is better for ten guilty people to be set free than for one innocent person to be convicted.” See STEPHEN UKORAH vs. THE STATE (1977) 4 SC 167, 177.

In conclusion therefore, in view of the foregoing, this Court finds merit in the appeal and it is hereby allowed. The judgment of the Imo State High Court in Charge No. HAM/3c/2003 delivered by Honourable Justice U.D OGWURIKE on the 8th July, 2014, along with the conviction and sentence of the Appellant contained therein, is set aside. The charge of armed robbery against the Appellant is hereby dismissed. The Appellant is discharged and acquitted. These shall be the orders of this Court.

NB:
​This judgment was circulated to my brothers before the Easter break and was to be read on 19/4/2021, upon resumption. However, due to the ongoing strike action by JUSUN it could not be read earlier than today, virtually.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared in the instant appeal by my learned brother, AMINA AUDI WAMBAI JCA. I agree with the reasoning of his lordship in respect of the sole issue formulated by the Appellant for the determination of the appeal and the manner in which it has been resolved. Anything by me in the form of contribution is absolutely unnecessary.

Accordingly, I too find the appeal to be meritorious and hereby allow the same. The conviction and sentence of death passed on the Appellant in the judgment of the lower Court in Charge No. HAM/3c/2003, are hereby set aside and substituted therefor is an order acquitting and discharging the Appellant.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft, the judgment of my learned brother, Amina Wambai, JCA in which the facts in issue leading to the instant appeal and the contentions of counsel have been set out and determined. Where a doubt exists in the case of the prosecution, the same I hold, must be resolved in favour of the accused person, more particularly in a case involving the sentence of death. Sending a man to the gallows must only be done where, beyond reasonable doubt, the accused person is found to be guilty.

​I accordingly agree with my learned brother that this appeal be allowed and the Appellant discharged and acquitted. I so order.

Appearances:

NDIONYENMA NWANKWO, ESQ.
A.M OKORO, ESQ For Appellant(s)

C.N AKOWUNDU (DCL) IMO STATE
V.E. EKEMGBA (MRS.) ESQ (CSC) For Respondent(s)