OLUGBOYEGA DAVID v. THE STATE
(2019)LCN/13875(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of March, 2019
CA/EK/87C/2016
RATIO
IDENTIFICATION PARADE: THE DUTY OF THE TRIAL COURT IN IDENTIFYING AN ACCUSED
Howbeit, the question whether a person is properly identified as one of those who participated in a crime is a question of fact to be considered and determined by the trial judge having regard to the evidence in that regard. See Ukpabi v. State (2004) 11 NWLR (Pt 884) 439 at 442, Dairo V State (2018) ALL FWLR (Pt 928) 81 at 110. PER PAUL OBI ELECHI, J.C.A.
IDENTIFICATION PARADE: WHERE NECESSARY
The law is that identification parade should be limited to cases of real doubt or dispute as to the identity of the accused persons, nor is conducted for purely cosmetic reasons. See Ikemson v. State (1989) 3 NWLR (Pt 110) 455; Ogoala v. State (2010) 1991 2 NWLR (Pt 175) 509; Awosika v. State (2010) 18 WRN 149 at 178. PW1 and PW2 gave a vivid account of how their residences were robbed on the day of the incident. Their evidence was never challenged by the Appellant when he cross-examined them. PER PAUL OBI ELECHI, J.C.A.
IDENTIFICATION PARADE: WHERE NOT NECESSARY
Even on this issue of identification, same is not the only means by which the identity of person who committed the crime may be ascertained. See Dairo v. State (Supra). Where an accused is arrested at the scene of crime, identification parade would not be.
On the other hand, there are instances under our criminal justice system where the necessity of conducting identification parade will be dispensed with viz:
(a) Where there is good and cogent evidence linking the accused person to the alleged crime on the day of the incident.
(b) By the accused confessional statement, he identified himself. See Famuyiwa v. State (2017) ALL FWLR (Pt. 919) 1 at 20; Usung v. State (2009) ALL FWLR (Pt 462) 1203.
PER PAUL OBI ELECHI, J.C.A.
THE STRONGEST EVIDENCE OF GUILT IN A CRIMINAL TRIAL
It is a well-established principle of law that confession in criminal procedure, like admission in civil procedure is the strongest evidence of guilt on the part of the accused person. It is stronger than the evidence of an eye witness because the evidence comes from the horses mouth who is the accused person. There is no better evidence and there is no need for further proof since what is admitted needs no further proof. Therefore, where an accused person confesses to a crime in the absence of an eye witness to the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved and the Court is satisfied as to the truth of the confession. See Akpa v. State (2010) 22 WRN 111 at 131 -132; Mustapha Mohammed & Anor v. State (2007) 4 SCNJ 117; Olalekan v. State (2001)18 NWLR (Pt 793) 824; Nguma v. A/G Imo State (2014) 16 WRN 1 at 25.
By Exhibit E, the Appellant?s confessional statement, it is the best proof of the case against the Appellant. By so doing, he has adjudged himself, condemned himself and consequently placed himself at the mercy of the law. In the circumstance, the proof of identification of the Appellant is irrelevant.
Also in Olanipekun v. State (2016) 13 NWLR
Per AKA AHS, J.S.C. at page 122, paras. F-H: PER PAUL OBI ELECHI, J.C.A.
THE IMPORTANCE OF CONFESSIONAL STATEMENT IN IDENTIFYING AN ACCUSED
In the instant case, the Appellant having made a confessional statement, he identified himself as one of the robbers, that alone to my own considered view was sufficient identification of the Appellant. See also the case of Bolanle v. State (2004) 47 WRN 74, (2008)1 NCC 342, where the Court held that-
It is however noteworthy that it is not in all criminal cases that an identification parade is necessary where there is a good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary. Furthermore, where an accused person by his confession has identified himself, there would be no need for any further identification parade. Identification parade may take various forms such as visual identification, voice identification and identification parade.” PER PAUL OBI ELECHI, J.C.A.
CONSTITUTIONAL LAW: FAIR HEARING: BREACH OF FAIR HEARING VIOLATES PROCEEDINGS AND RENDERS SAME NULL AND VOID
The law is quite clear, firm and settled and replete in our law books with plethora of judicial authorities in that regard, that, fair hearing is a fundamental constitutional right guaranteed by the 1999 Constitution of Nigeria and breach of it violates proceedings, rendering same null and void. Miscarriage of justice is inherent where there is denial of right to fair hearing.
The question whether or not there was denial of fair hearing is in the procedure followed by the Court in the determination of a case and not in the correctness of the decision. An appellate Court will not save a correct decision in breach of fair hearing. See the cases of OLUFEAGBA V. ABDUR-RAHEEM 2009 40 NSCQR 684, SAMBA PETROLEUM LTD V. UBA 20110 43 NSCQR 119, NDUKAUBA V. KOLOMO2005 1 SC PT. 1, THE REGENCY COUNCIL OF OLOTA OF OTTA & ORS V. O.T. DADA & ORS 2013 LPELR-CA/1/34/97, SALEH V. MONGUNO 2003 1 NWLR PT. 801 221, BAMGBOYE V. UNILORIN 1999 10 NWLR PT. 622 270. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A
THE RIGHT TO FAIR HEARING IS BASED ON EQUAL OPPORTUNITIES THAT SHOULD BE GIVEN TO BOTH SIDES
It is important to state that right to fair hearing is hinged on the principle that equal and reasonable opportunity must be given by the Court to both sides in the case on all issues therein before a decision is reached. See further the cases of USANI V. DUKE 2004 7 NWLR PT. 871 AND FAGBULE V. RODRIGUES 2002 7 NWLR PT. 765 188, SECTION 36 (1) OF THE 1999 CONSTITUTION, NIGERIAN AGRICULTURAL CO-OP & RURAL DEVELOPMENT BANK LTD V. MBIO OKU IKOT OKU ODUNG MULTIPURPOSE CO-OP SOCIETY LTD & ORS2013 LPELR 20202 CA. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A
Before Their Lordships
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
OLUGBOYEGA DAVID Appellant(s)
AND
THE STATE Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Honourable Justice J. O. Adeleye of the High Court of Ekiti State delivered on the 2nd day of December, 2015. By the said judgment, the learned Trial Judge convicted and sentenced the Appellant to death for the offence of armed robbery.
According to the Appellant this appeal has been brought mainly on the following planks:
i. The refusal of the Learned trial Judge to allow the Appellant lead evidence in rebuttal of the Prosecutions? case on the ground that the said application, coming after the Appellant had initially stated his decision not to lead any evidence, was a ploy ?to further delay the hearing of the case?.
ii. The failure of the Learned Trial Judge, prior to or after the Prosecution?s final address, to invite the Appellant to Address the Court, despite the Appellant?s presence in Court.
Furthermore, the conviction of the Appellant was hinged upon a confessional statement which was relied upon by the Learned Trial Judge without any corroborative evidence as to make it credible.
By and large, the instant appeal is an invitation to reverse a decision of the Trial Court which was arrived at in breach of the Appellant?s constitutionally guaranteed right to a fair hearing.
FACTS OF THE CASE
The Appellant was arraigned before the High Court together with one Alabi Abiodun for the offence of conspiracy and ARMED Robbery. The Court could not proceed to trial for a very long time because the said Alabi Abiodun pretended to be deaf and dumb and also the Appellant persistently refused to engage the services of a Counsel.
The Prosecution Counsel, on the 19/6/2008 applied to withdraw the charge against the second defendant, Alabi Abiodun to enable the case proceeds to trial. The name of Alabi Abiodun was subsequently struck out and deleted from the charge at the instance of the Prosecuting Counsel.
The Respondent?s evidence before the Lower Court was to the effect that on 20/3/2002, a gang of Armed Robbers (including the Appellant) while armed with guns, cutlasses, sticks and other dangerous weapons invaded the house of Mr. Owolabi Kolade at Bamitale Street, Ikere Ekiti and was violently robbed by the Bandits and additional four houses were so robbed and the Occupants were dispossessed of their valuables during the dastardly acts. They escaped after the incidents. The case was promptly reported at Divisional Police Headquarters, Ikere Ekiti.
The Appellant with one Gbenga Adubi were arrested with two cut to size pistol and two cutlasses at No/15, Ojudo Street, Ado-Ekiti through an information volunteered to the Area Commander?s office, Ado Ekiti.
The matter was promptly transferred to the State C.I.D. for investigation by the Area Commander. It was during investigation that the Appellant confessed both orally and in writing to the commission of the offences and the Appellant and other arrested suspects led the investigating Team to where they have robbed at Bamitale Street, Araromi Quarters, Ikere Ekiti.
Subsequently, the Appellant and Abiodun Alabi were arraigned on six Counts of Conspiracy and Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.
?The Appellant was informed in clear terms of his right as entrenched in Section 287 of the Criminal Procedure Law since he was not represented by a Counsel. He elected to give evidence on oath but sought for an adjournment which was granted and the case was adjourned to 23/9/2014 but on the return date i.e. 23/9/14, the Appellant surprisingly informed the Court that he was not giving evidence and he was not calling any Witness. The case was adjourned for address following the indication of the Appellant. On the return date i.e. 30/10/2014, the Appellant indicated to give evidence. This Appellant?s application was objected to by the prosecuting Counsel and the objection was upheld. The Appellant became unruly which compelled the filling of written address by the Prosecution which was subsequently adopted.
The learned trial Judge after the adoption of the written address of Counsel, reviewed and evaluated the evidence led and found the allegation of Armed Robbery proved beyond reasonable doubt and thereby convicted and sentenced the Appellant accordingly.
The judgment is the s
