OLUFEMI BABATUNDE v. THE STATE (2014)

OLUFEMI BABATUNDE v. THE STATE

(2014)LCN/7257(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of June, 2014

CA/IL/C.7/2014

RATIO

WHETHER AN ACCUSED PERSON CAN CONFESS ON BEHALF OF HIS CO- ACCUSED PERSONS OR ACCOMPLICES

The law is settled that an accused person who makes a confessional statement to his participation in a crime speaks only for himself. The law does not allow an accused person to confess for and on behalf of his co-accused persons or his accomplices. An accused person’s confession is only evidence against him and not against his co-accused or accomplices. It is therefore an error in law which will lead to the quashing of a conviction for an accused person to be convicted and sentenced based on the confession of a co-accused to the Police unless the former adopts the confession. See: Mbang V. State (2010) ALL FWLR (Pt. 508) 379; Suberu V. The State (2010) 1 NWLR (Pt. 1176) 494. per UCHECHUKWU ONYEMENAM, J.C.A

WHEN IDENTITY PARADE IS ESSENTIAL

Identification parade is not a sine qua non in all cases where there have been fleeting encounter with the victim if there is other evidence conclusively identifying the accused person. Rather identification parade is essential where the victim did not know the accused person before and was confronted by the offender for a very short time. See: R V. Turnbull & Ors. (1975) 3 A.E.R. 549. per HECHUKWU ONYEMENAM, J.C.A

WHETHER THE OFFENCE OF CONSPIRACY IS DEDUCIBLE FROM THE CONDUCT OF PARTIES

It is an elementary principle of law that conspiracy as an offence is deducible as a matter of inference from the conduct of parties to a criminal conspiracy. In Abacha v. State (2002) 11 NWLR (Pt. 779) 437 Per Onu J.S.C. observed thus:
“The best evidence of conspiracy is usually obtained from one of the conspirators or from inferences.” per UCHECHUKWU ONYEMENAM, J.C.A

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

OLUFEMI BABATUNDE Appellant(s)

AND

THE STATE Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellant who was sentenced to death with one Joseph Olarewaju for armed robbery in Offa by the High Court of Kwara State, Ilorin Division on 4th October, 2013; has brought this appeal against his conviction and sentence.
The Appellant with the other were brought before the lower Court on a two count charge that read as follows.:
COUNT ONE
“That you Olufemi Babatunde and Joseph Olanrewaiu on or about 3rd day of June 2011 at Alhaja Sariyu Olorunnisola’s House Opposite Damson Hotel, Offa, Kwara State within the jurisdiction of this Honourable Court conspired together to commit an illegal act to wit; dispossessed the said Alhaja SARIYU OLORUNNISOLA of her Nissan Murano Jeep with Reg. No. Abuja BS 456 KUJ valued at N3.5m, jewelleries valued at N250,000.00, cash sum of. N273,300.00, two Nokia phones (Nokia 1202 and Nokia 2700) values at N18,000.00, POE Model No P168 Bluetooth Handset, Chaoba clipper valued at N4,500 and one Tecno handset valued at N7,500 and you thereby committed an offence punishable under Section 6(a) of the Robbery and Firearms (Special Provision) Act. LFN 2004.

COUNT TWO
That you Olufemi Babatunde and Joseph Olanrewaju on or about 3rd day of June 2011 at Alhaja Sariyu Olorunnisola’s House Opposite Damson Hotel, Offa, Kwara State within the jurisdiction of this Honourable Court while armed with gun and other dangerous weapon dispossessed the said Alhaja Sariyu Olorunnisola of her Nissan Murano Jeep with Reg. No. Abuja BS 456 KUJ valued at N3.5m, jewelleries valued at N250,000.00, cash sum of N273,300.00, two Nokia phones (Nokia 1202 and Nokia 2700) values at N18,000.00, POE Model No P168 Bluetooth Handset, Chaoba clipper valued at N4,500 and one Tecno handset valued at N7,500 and you thereby committed an offence punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision) Act. LFN 2004.”

At trial the prosecution called 5 witnesses and tendered some Exhibits while the Appellant gave evidence in his defence and called no witness. The case of the prosecution as presented before the trial Court is that the Appellant in the company of other people robbed one Alhaja Sariyu Olorunnisola of her Nissan Murano Jeep, Jewelleries, money and phones. The prosecution alleged that the Appellant was armed with gun when the offence was committed. It was the prosecution’s case that on 3rd June, 2011; a traffic warden officer brought an 18 – seater passenger bus into the Nigeria Police Divisional Headquarters, Owode, Offa for searching. In the course of the search, the Appellant and another passenger who were passengers in the bus were arrested trying to escape with a black sack containing 3 guns – 2 locally made pistols and one double barrel with 14 cartridges. The Appellant was subsequently identified as one of the people who robbed Alhaja Olorunnisola on an identification parade. The Appellant made a confessional statement which was so admitted in evidence after trial within trial.

The Appellant’s defence before the trial court is that some people who boarded that same bus had alighted along the way before the search of the bus. He gave evidence that the guns were not found on him and that it was a policeman at the station that pointed at him and told the complainant (PW2) that he was the person that robbed her.
In his judgment, the learned trial Judge found the Appellant guilty as charged. He convicted and sentenced him to death by hanging.
Dissatisfied, the Appellant has now appealed to this court via Notice of Appeal filed on 20th December, 2013 with 9 Grounds of Appeal.

The appeal was heard on 7th May, 2014. Mr. Olasope identified, adopted and relied on the Appellant’s brief filed on 18th February, 2014; and settled by him to urge the Court to allow the appeal. On its own, the Respondent by a brief settled by Kamaldeen Ajibade, the learned Attorney General of Kwara State; and filed on 17th March, 2014 urged the Court to dismiss the appeal.
Mr. Olasope distilled 5 issues for the determination of the appeal.
He argued issues 1, 3 and 5 together, while issues 2 and 4 were argued separately. The learned Attorney General adopted the issues as formulated by the Appellant and argued them the same way. The issues as agreed by parties that call for the determination of this appeal are as follows:
1. “Whether the learned trial judge was right in relying on Exhibits 11 and 12 which were the so called confessional statements in convicting the accused of the offence of armed robbery. Grounds 1 and 2.
2. Whether there was proper identification of the accused as required by law. Ground 4
3. Whether prosecution was able to establish proof beyond reasonable doubt of armed robbery as required by law. Ground 5
4. Whether the Learned trial Judge was right in not considered (sic) the defence put up by the accused. Ground 6
5. Whether the offence of conspiracy was established. Ground 3 and 9”

The issues raised above are appropriate for the determination of this appeal. I therefore adopt them. Issues 1, 3 and 5 argued together will be resolved together, while issues 4 and 2 will be separately resolved as argued in the Appellant’s brief.

ISSUES 1, 3 AND 5
The learned counsel for the Appellant referred to Exhibits 11 and 12 which are confessional statements of the Appellant and his co-accused person. He noted that the respective confessions implicated each other co-accused person. He also referred to: Mbang V. State (2010) ALL FWLR (Pt. 508) 379 at 395; Ojo V. Federal Government of Nigeria (2009) ALL FWLR (PT. 494) 1461 at 1506. He then submitted that the learned trial Judge was in error and came to a wrong conclusion by convicting and sentencing the Appellant based on the confession of his co-accused at the trial Court even when the Appellant did not adopt said confession of his co-accused person.

Mr. Olasope also submitted that the Appellant and his co-accused person at the lower Court who did not know themselves could not be held to have had common intention to commit an offence as to be convicted for the offence of criminal conspiracy. He cited: Onochie V. State (1966) All MLR 86; Gbadamosi v. State (1991) 5 NWLR (Pt. 196) 182.
The learned Counsel urged the Court to resolve the issues in favour of the Appellant.

In reply, the learned Attorney General of Kwara State conceded to the principle of law that a man’s confession is only evidence against him and not against his accomplice unless where the accomplice adopts same. He cited: Suberu V. The State (2010) 1 NWLR (Pt. 1176) 494 at 512.
He however, contended that the scenario in the instant appeal is wider in the sense that it is not just that a co accused person made a confession implicating the Appellant, but both the Appellant and his cohort made confessions that not only implicated each other but went further to confirm that both of them were actually involved in the conspiracy leading to the robbery incident of 3rd June, 2011 at Offa.

Mr. Ajibade, the learned Attorney General submitted that the offence of conspiracy can always be inferred from the circumstances of each case and things said or done by a conspirator in reference to a common intention. He relied on: Osuagwu v. The State (2009) 1 NWLR (Pt. 1129) 523 at 544; Abacha v. State (2002) 11 NWLR (PT. 779) 437
He referred to the findings of the learned trial Judge at pages 112 – 114 of the record to contend that the trial court was right in convicting and sentencing the Appellant as charged.

Furthermore, it was argued for the Respondent that the evidence of PW2 and PW3 who were victims of the armed robbery attack are direct, cogent and compelling enough to sustain an irresistible inference that the Appellant conspired with others to rob them of their properties at the scene of the crime.
The learned Attorney General urged the Court to resolve the issues in favour of the Respondent.

In the instant appeal, both the Appellant and his co-accused made confessional statements respectively. Upon an objection by the Appellant’s Counsel to the admission of the confessions a trial within trial was conducted after which the learned trial Judge in my view rightly admitted the confessions as statements voluntarily made. The Appellant’s confessional statement, Exhibit 11 and Exhibit 12 his co-accused’s confessional statement implicated each other. Exhibits 11 and 1-2 respectively gave detailed account of how the robbery of 3rd June, 2011 was conceived and hatched by 5 persons, mentioning individuals that played respective roles including the role played by the Appellant and his co-accused. The account in both exhibits did not in any way contradict nor challenge each other. Rather both supported, confirmed and can rightly be said to have adopted each other. The confession of the Appellant in Exhibit 11 is compatible with that of his co-accused in Exhibit 12.

I have read the findings of the learned trial Judge at pages 112 – 124. I have made serious but unfruitful struggle to grasp the substance in the argument of the Appellant that his conviction was based on the confession of his co-accused. On record is the confession of the Appellant which is Exhibit 11. Exhibit 11 was admitted in evidence and believed by the learned trial Judge where upon he ascribed probative value on it. There was also before the trial Court a confession of the Appellant’s co-accused which in every material particular supported and or confirmed the confession of the Appellant that there was a common intention by the duo and others at large to commit the offence of armed robbery for which the Appellant was convicted. The settled position of the law stated above does not work in favour of the Appellant owing to the facts and, circumstances of the instant case. I agree with the learned trial Judge that the scenario of the instant case is wider and distinguishable from the cases upon which the existing position of the law stands. Exhibit 11 by all necessary implications admitted and adopted Exhibit 12 to the extent that it applies to the Appellant’s involvement with the planning and commission of the offence as charged. Accordingly, I hold the findings of the learned trial Judge unassailable on this issue. I uphold his conclusion that the general rule stated above is not applicable in the instant appeal where not only that the confession of the Appellant’s co-accused implicated him but the Appellant’s own confession confirms the confession that implicated him.

However, even when I hold that the learned trial Judge was wrong in making reference to Exhibit 12 in convicting the Appellant, the conviction of the Appellant will still not be quashed by reason of his own confession (Exhibit 11).

Generally, a Court can convict on a retracted confessional statement of an accused person. The Apex Court; Per Iguh J.S.C. (as he then was put it thus:
“The fact that the accused did subsequently retract his confession does not mean that the court cannot act on it and convict him accordingly as the circumstances of the case justify it. See: Nkwuda Edamine v. The State (1996) 3 NWLR (Pt. 438) 530; Dapere Gira v. The State (1996) 4 NWLR (Pt. 443) 375 at 388. It is, however desirable particularly if the confession is subsequently retracted that there should be some corroboration, no matter how slight, but a conviction will not be quashed merely because it is based entirely upon the evidence of a confession by the Appellant. See: R v. Ajayi Omokaro (1941) 7 WACA 146”

In the instant, since the, learned trial Judge held that the confession was voluntary, the Appellant’s denial of the confession during his defence amounted to the retraction of his confession. From the record, the evidence of PW2 and PW3 and their identification of the Appellant as one of the armed robbers that robbed them on 3rd June, 2011, joined forces to confirm the irresistible inference that the Appellant conspired with others to rob PW2 as charged.

The evidence of PW2, PW3 and PW5 which the learned trial Judge believed adjudging same as credible and probable corroborates the Appellant’s confession that he committed the offences as charged.
Assuming this does not clearly answer the issue that the learned trial Judge did not solely rely on the confession of the Appellant’s co-accused in convicting him, the under reproduced portion of the record shall speak for itself. The learned trial Judge said:
“It is in evidence also that when the Accused persons were arrested, items recovered from them were in Exhibits 4, 5, 6 and 7 which PW2 and PW3 had reported to the Police both at Offa and Ilorin as being part of what were carted away by their assailants on 03/06/2011. Apart from the copious evidence led by PW2, PW3 and PW5 to establish that robbery took place on 03/06/2011, Exhibits 11and 12 which are the confessional statements of the 2 Accused persons buttressed the fact that robbery was committed at Offa on that 03/06/2011 and around the same time of 7.pm or thereabout as given by the evidence of PW2, PW3 and PW5.
The law is that once confessional statement has been admitted as in this case, it ends the need to prove the guilt of the Accused person. See: Solota vs. State (2005) All. F.W.L.R. (Pt. 269) 1751 at 1770, 1771 and 1782.
I therefore hold that on the strength of evidence before the Court as well as the Exhibits 4, 5, 6, 6A, 7 and 8, there was indeed robbery on the 3rd day of June, 2011, and that the conclusion of this court, on that point, is ably buttressed by Exhibits 11 and 12.”

From the above, nothing can be added to the fact that, the learned trial Judge based his decision on the oral and documentary evidence before him, the confession of the Appellant and his co-accused Exhibits 11 and 12 were mere surplusage.
It is an elementary principle of law that conspiracy as an offence is deducible as a matter of inference from the conduct of parties to a criminal conspiracy. In Abacha v. State (2002) 11 NWLR (Pt. 779) 437 Per Onu J.S.C. observed thus:
“The best evidence of conspiracy is usually obtained from one of the conspirators or from inferences.”

From the facts and circumstances of this case, the learned trial Judge was right in concluding that the Appellant conspired with others to commit armed robbery as charged. There is no doubt in my mind that the offences as charged were proved against the Appellant. I therefore resolve issues 1, 3 and 5 in favour of the Respondent.

ISSUE 4
The learned counsel for the Appellant contended that the learned trial Judge did not consider the defence put forward by the accused in his evidence at pages 76 – 77 of the record. He referred to: Ahmed v. State (1999) 2 NWLR (Pt. 612) 641; to submit that failure of the trial court to consider, not only the defence of the accused person but every defence that surfaced in his defence while relying solely on the prosecution’s case led to a miscarriage of justice for which the conviction and sentence should be quashed. He relied on: Akpabio v. State (1994) 7 NWLR (Pt. 359) 571; Oguntola v. State (1996) 2 NWLR (Pt. 432) 503

Mr. Olasope referred to the Appellant’s evidence that although a bag containing guns was recovered when he was arrested; that the bag was not his own and that the two passengers who had alighted from the bus on the way could have been the owners of the bag. He therefore submitted that where a matter is capable of being both favourably and unfavourably interpreted in relation to an accused person, the Court should lean on interpreting it to be favourable to the accused person. He cited: Godwin Anyiam V. State (1951) 1 SC NLR 78.
The learned counsel urged the Court to resolve the issue in favour of the Appellant.

The learned Attorney General for Kwara State in his response for the Respondent started with the holding of Obaseki J.S.C. (as he then was) in: Manawa Ogbodu V. The State (1987) 3 SC 497. He then referred to the holding of the learned trial Judge at pages 128 – 129 to submit that the learned trial Judge considered the defence of the Appellant and went ahead to give reasons why such defence could not stand.
He urged the court to resolve the issue in favour of the Appellant.

“The defences open to an accused person which a Court whether trial or Appellate, has a duty to consider, in my respectful view, must be, the defences or such defence or defences that appear or are contained in the evidence before the Court or that appear or are contained in the Record of Proceedings. In other words, the duty of the Court, is to consider all defences raised in evidence in the record of proceedings even if the accused person did not specifically raise them and this is regardless of whether such defence or defences is or are hopeless, weak, or stupid”.
See: Per Ogbuagu, J.S.C. in Suleiman Danta Annabi V. The State (2008) 13 NWLR (Pt. 1103) 179; (2008) 4-5 S.C (Pt. 11) 229.
Further in the case of Annabi (supra), Per Onnoghen J.S.C. stated:
“It is settled law that while the trial Court or any Court for that matter is under an obligation or has the duty to consider all the defences possible or available to the accused or Appellant on the facts; even though they may appear to be stupid, improbable or unfounded, the court cannot give the accused or Appellant the benefit of defences which were not supported or reflected by the evidence on record.”

The Appellant’s grouse in the present appeal is that the trial Court did not consider both the defence he raised and the defences available to him. Referring to the evidence of the Appellant at pages 76 – 77 of the record particularly, Mr. Olasope for the Appellant urged this court to quash the decision of the trial court for failure to consider the referred Appellant’s defence.

The defence as referred, is that the Appellant denied ownership of the bag that contained the guns. He gave evidence that two people had alighted from the bus on the way before the bus was directed to the police station for the search. The learned counsel argued that the trial court should have resolved the fact that the bag containing the guns most probably belonged to the two people that had alighted from the bus before the search. Although this sounds stupid, the law is that the court should consider the defence. I said the defence sounds stupid because there was no immediate danger of arrest, no evidence that there was a security man around when the said two people alighted the bus neither was there any suspicion whatsoever; so one wonders why the two people would have alighted without the bag containing their guns.

On whether there was armed robbery, after considering the evidence, the learned trial Judge held thus:
“I am therefore bound to accept, from the materials before the Court, which material evidence are probable, believable and not in any way destroyed under cross examination, that the robbery that took place at PW2’s house at Offa on 03/06/2011 was indeed armed robbery.”

Then again after considering the evidence before him on whether the Appellant took part in the armed robbery, he concluded thus:
“It is further the decision of this Court that the offence of armed robbery in Count II of the charge against the 1st Accused person has been proved by the prosecution and in the same vein the prosecution has indeed established offence of armed robbery against the 2nd Accused person in this case. I rule, further that, the defence of denial in evidence raised by the 2 Accused persons are mere afterthought and same becomes no issue in the face of the accounts of PW2 and PW3 and the contents of Exhibits 11 and 12 accepted by this noble Court.”

From the holdings of the trial Court, there is no gainsaying that the learned trial Judge believed the evidence of the prosecution and disbelieved the evidence of the Appellant. The learned trial Judge rejected the defence of denials in the evidence of the Appellant. The trial Court considered the evidence before the Court particularly at pages 119 – 129. The evidence of the prosecution on record apart from being overwhelming was described by the learned trial Judge as probable, believable and not destroyed in any way under cross examination. This is as against the defence of the Appellant which he described as an afterthought denial.

From the available evidence before the Court, the belief of the learned trial Judge of the evidence of the prosecution is not perverse although he did not specifically address the evidence of the defence that the bag containing the guns did not belong to him.

“It is settled law that where a lower Court failed to consider the defences available to an accused Appellant, the appellate Court is in as good a position as the lower Court to consider the said defences provided there are facts available on record to support same. The omission of a lower Court to consider any defence open to an accused/Appellant can only be fatal to the decision of that Court if there are available evidence on the record evidence of facts in support of the alleged defences.”
Per Onnoghen, J.S.C. in Suleiman Danta Annabi & the State (2008) 13 NWLR (PT. 1103) 179.

At page 60 of the record lines 13 – 22 of the PW4’s evidence, PW4 gave evidence as follows:
“Thereafter, on the same day, I was of the station when one of the Traffic Warden Officers brought an 18 passenger bus into the station for searching. I was with him conducting the searching when one of the passengers took to his heels with one black sack. I ran after him and got him arrested. When I searched the said sack, I saw 3 guns, 2 locally made pistols and one double barrel with 14 cartridges. I took him to the D.P.O with one other passenger that was arrested with him. During the interview of the D.P.O, the 2 passengers claimed to be cultists and that they went to Ilesha to purchase the guns. The D.P.O later gave the case to other IPO for investigation. I can identify the 2 passengers. The 2 accused persons are the 2 passengers”

The evidence of PW4 that the Appellant was arrested with guns was not attacked nor challenged under cross examination . The learned trial Judge was right in deeming any denial of said evidence by the Appellant which is part of his defence denial evidence as not probable, believable and an afterthought. The defence that the Appellant may not have been the owner of the bag that contained the guns does not avail him and as such the conviction of the Appellant cannot be quashed on this ground.

Let me note here that while it is the responsibility of a court to consider every defence open to an accused person raised in evidence before the Court; it is not the duty of any Court to go on a wild goose chase of exculpatory defence that is not borne out of the evidence before the court or in the records. See: Annabi V. The State (supra).

The learned Counsel for the Appellant just made a bare submission that the learned trial Judge is under the duty to consider every defence that could have been available to the Appellant which he alleged the trial court failed to do. He did not bring to bear any of such defence that the learned trial Judge ought to have considered which he failed to do. I do not see any defence available to the Appellant from the record before this court for which the court should quash the decision of the trial court for failure to consider same.
In all therefore, I resolve issue 4 in favour of the Respondent.

ISSUE 2
Mr. Olasope conceded that where the first acquaintance with the accused is during the commission of the offence, then identification parade may be necessary. He however, contended that the identification of the Appellant at the Police station was faulty and cannot be relied upon as reliable. For this argument he referred to the evidence of PW2 at page 52 lines 12 – 17 and at page 54 lines 10 – 11.
Also he referred to the evidence of PW3 at page 54 lines 37 – 38. He submitted that from the evidence referred to above, the eye witnesses could not have properly identified the Appellant and as such doubt is cast in their evidence which calls for serious caution on the weight attached to the evidence. The learned counsel cited; Ndidi V. State (2007) ALL FWLR (Pt. 381) 1617; R V. Turnbull (1976) 3 ALL FWLR 549; Ikemson V. State (1989) 6 SC (PT. 5) 144.
He urged the Court to resolve the issue in favour of Appellant and set aside his conviction and sentence.

Mr. Ajibade, the learned Attorney General submitted that the issue of proper identification of the Appellant by PW2 and PW3 is a non issue by reason of the evidence on record. He referred to page 54 lines 11 – 14 of PW2’s evidence under cross examination. Also to page 58 lines 27 – 30 in support of his argument.
On the authority of the case of Ndidi V. The State (2007) 5 SCNJ 274 cited by the Appellant’s counsel, the learned Attorney General submitted that the lighting conditions of the scene of crime in the instant case which was bright was appropriate for the victims to identify the Appellant and his brothers in crime.
He urged the Court to resolve the issue in favour of the Respondent and to dismiss the appeal.

Identification evidence is the evidence which seeks to show that the accused person is the same person who was seen committing the offence.

To attach weight to the evidence of an eye witness in the identification of a criminal, the court must meticulously guard against cases of mistaken identity by considering the following issues:-
(a) Circumstances under which the eye witness saw the accused person.
(b) The length of time the witness saw the accused person.
(c) The lighting conditions.
(d) Close observation opportunity.
(e) The previous contacts between the two parties.
See: Ndidi V. The State (2007) 5 SCNJ 274.

In the present case, in examing the testimony of PW2 and PW3 in the light of identification of the Appellant, all that was required of the trial court was to see if the evidence of the two witnesses was credible enough to convince the Court that the Appellant now standing trial is the same person PW2 and PW3 saw for the first time on the day of the incident. The Appellant referred to portions of the evidence adduced by the prosecution to show that the Appellant’s identification was not credible while the prosecution referred to portions of its witnesses’ evidence to assert that the identification of the Appellant was credible.
I shall hereunder reproduce the references made by the parties in support of their submissions as seen at pages 52, lines 23 – 25, 27 – 28; 54 lines 10- 14, 16-17, 37 – 38; 58 lines 27 -32.
PW2 “They pointed the guns at me that I should produce the key to the Murano Jeep and that if I wasted time, they would shoot me. I was so nervous looking for the key … I was seized with fear because of the guns.”

Under cross examination, PW2 continued:
“When 4 men entered and pointed guns at me. I was scared; even I urinated on my body. There was light and I saw their faces. They stared at me and I stared back at them. They pointed the guns at me but I looked at them very well. The accused persons behind the counter were many but I could identify the 2 accused persons as people who come to rob me. … they wore shirts and trousers and they did not cover their faces.”
PW3 “One of them whom I knew before the incident, he is called T.J., when he entered and saw me, he quickly went back.”

Under cross examination the PW3 said:
“It was at night around 9 pm. It was easier for me to recognize the 4 accused persons because the one that pursued me later brought me back to the house. I was not immediately locked up in the room when I was brought back to the house. The 4 of them did not cover their faces… The 1st accused person asked me to tie face down and to stop looking at them.”

In appraising the evidence of PW2 and PW3 as it relates to the identification of the Appellant, the learned trial Judge went thus:
“PW2 narrated in her evidence in chief and under cross examination that she was able to recognize the Accused persons when identification parade was conducted because when she was robbed, the assailants did not cover their faces and that there was light that day. PW3 also gave account of the fact that there was light during the robbery operation and that she was at a stage ordered to lay face down and told not to look at them again when the assailants realized that she was looking at them.
PW2 gave detailed account of how guns were pointed at her and one of the assailants held her neck in order to remove her neck lace, that the 2 rings in her hand were removed while she pleaded to them not to kill her, that her ear rings were also removed. She then stated that though, guns were pointed at her, she was able to see their faces as they stared at her. That though they pointed guns at her, she was able to look at them very well.
She stated further that she was able to identify the Accused persons at the Police Station despite the fact that the people there were many. She gave account of how the 2 Accused persons bowed down their heads avoiding facial contact with her when she saw them at the Police Station.
The line of evidence PW2 gave in her evidence in chief was not derogated from during the cross examination. She maintained that the Accused persons wore shirts and trousers and left their faces uncovered.
From the evidence on record, the submission of the learned counsel for the Defence that giving (sic) the timing of the incident, the victims could not recognize the assailants because it was dark has no foundation with due respect to the said learned counsel for the Defence. There is no contrary evidence before this noble Court that the assailants faces were not covered and that there was lightness.
I have carefully considered the issue of identification in this case vis-a-vis the decision relied upon by the Defence in Ndidi’s case.
it is my considered view that the evidence of identification is probable and plausible. The Circumstances of the encountered (sic) between the PW2 and PW3 and their assailants and the length of time, the lighting conditions and opportunity of close observation weigh against the Accused persons.
It is probable, in my firm view, that in a place with lightness, removal of neck jewelleries, ear rings and hand ring from the PW2 while her neck was being held by assailants who left their faces uncovered in the process will, no doubt, provide opportunity of close contacts even though it is not denied that PW2 was frightened or terrified. PW3 also gave account that they removed her two wedding rings in her hand even though she did not claim to have known them prior to the robbery incident.
It is my decision that from the available materials before the court, the ingredient of robbery dealing with establishing that the Accused persons, now before the court, actually took part in the robbery at Offa on 03/06/2011 has been proved.”

From the evidence on record and the findings of the learned trial Judge that the Appellant was properly identified by credible evidence of PW2 and PW3 premised on his evaluation of the evidence or the prosecution, I do not find any legal support to interfere with his findings. I can only add that the fact that Exhibits 4, 5, 6 and 7 which PW2 and PW3 had reported to the Police both at Offa and Ilorin as being part of what were carted away by armed robbers that robbed them on 3rd June, 2011 were recovered from the Appellant and his co-accused when they were arrested without any contrary explanation of how they came in possession of those items further confirms the identity of the Appellant as one of the armed robbers who robbed the PW2 and PW3 on the said date.

In all, l hold that the learned trial Judge was right in reaching the conclusion that the Appellant was properly identified by the PW2 and PW3.
Issue 2 is resolved in favour of the Respondent.

All the issues having been resolved in favour of the Respondent, appeal fails and is hereby dismissed.
I uphold the conviction and sentence of the High Court of Kwara State, Ilorin Division in case No. KWS/44C/2011 as it relates to the 1st Accused OLUFEMI BABATUNDE.
May God have mercy on your soul.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of previewing the judgment of my learned brother Uchechukwu Onyemenam, JCA and agree with the reasons therein and the conclusion that the appeal is totally devoid of merit. The appeal therefore cannot but be dismissed for completely lacking in substance. It is hereby dismissed.

The judgment of the lower Court delivered on 4th October 2013 is affirmed.
I adopt the consequential orders made in the lead judgment.

MUSA HASSAN ALKALI, J.C.A.: I had the opportunity of reading in draft the well written judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA.
I certainly agree and uphold the conviction and sentence of the High Court of Justice Kwara State, Ilorin Division in case No. KWS/44C/2011 Appeal hereby dismissed.

Appearances

O. A. OLASOPE with A. A MOMOHFor Appellant

AND

ABDULWAHAB BAMIDELEFor Respondent