ONYEBUCHI CHUKWUDOZIE v. THE STATE (2019)

ONYEBUCHI CHUKWUDOZIE v. THE STATE

(2019)LCN/12941(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/E/14C/2018

RATIO

CRIMINAL LAW AND PROCEDURE: THE BURDEN OF PROOF ON THE PROSECUTION

The law is long settled that in a criminal trial, the prosecution is duty bound to prove his case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See DANBABA V. THE STATE (2018) 11 NWLR PART 1631 AT PAGE 444-445; IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO vs. THE STATE (1989) 4 NWLR (Pt. 113) 57.PER ABUBAKAR SADIQ UMAR, J.C.A.

ARMED ROBBERY: INGREDIENTS THAT MUST BE PROVED

It has been established in a long chain of judicial authorities that to secure a conviction for the offence of armed robbery, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a. That there was robbery or series of robberies
b. That the robbery was armed robbery; and
c. That the accused was one of those who took part in the armed robbery.
See AWOSIKA V STATE (2010) 9 NWLR PT 1198, P.49 AT 53-54 RATIO 5; BELLO VS STATE (2007) 10 NWLR PART 1043, P.563. PER ABUBAKAR SADIQ UMAR, J.C.A.

IDENTIFICATION EVIDENCE: WHAT IT MEANS

In consideration of the above, it therefore follows that identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. To ascribe any value to the evidence of an eye-witness identification of a criminal, the Courts in guarding against cases of mistaken identity must meticulously consider the following issues:
1) Circumstances in which the eye-witness saw the suspect or defendant.
2) The length of time the witness saw the suspect or defendant.
3) The lighting conditions.
4) The opportunity of close observation.
5) The previous contacts between the two parties.

IDENTIFICATION EVIDENCE: THE DUTY OF THE TRIAL COURTS IN DEALING WITH SUCH EVIDENCE
It was stressed that whenever the case of an accused person depends wholly or substantially on the correctness of his identification which the defence alleges to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identification. See the English case of R V. TURNBUL & ORS. (1976) 3 All ER 549 – a decision of the Court of Appeal (England) Criminal Division presided over by Lord Widgery CJ. This decision has not only been cited by our indigenous scholars but has been adopted over the years by the Supreme Court. See IKEMSON V. STATE (1989) 6 SC (PT. 5) 114.PER ABUBAKAR SADIQ UMAR, J.C.A.

WITNESS EVIDENCE: HOW THE COURT SHOULD TREAT AN INCONSISTENT EVIDENCE OF A WITNESS

The trial Court therefore, should have been weary of which side of the story to believe with respect to identity of the Appellant. If a witness makes a statement before trial, which is in consistent with the evidence he gives in Court and does not explain the inconsistency to the satisfaction of the Court, the Court should regard his evidence as unreliable. See NWANKWOALA v. FRN (2018) 11 NWLR Pt. 1631 @ 414.PER ABUBAKAR SADIQ UMAR, J.C.A.

IDENTIFICATION PARADE: INSTANCES WHEN IT IS NECESSARY TO BE CARRIED OUT

The law is that where an accused was not arrested at the scene of crime and is not named by the eye witness at the earliest opportunity, proper identification parade should be conducted unless the accused voluntarily confessed to the commission of the crime. See ADEYEMO VS STATE (2010) LPELR 3622 (CA). SADIKU V. THE STATE (2013) LPELR 20588 (SC) AT 15, 16 (AA) where the Supreme Court held that:
An identification parade is useful and indeed essential whenever there is a doubt about the power of a witness to recognize an accused person or when the identity of the accused person is in dispute, it is not necessary where the witness knew or was familiar with the accused suspect well before the alleged crime was committed. In OROK VS THE STATE (2009) 13 NWLR (PART 1052) 633, the Court of Appeal enumerated the circumstances under which an identification parade is necessary. They are:
1. The accused was not arrested at the scene and he denies taking part in the crime; or
2. The victim did not know the accused before the offence; or
3. The victim was confronted by the accused for a very short time; and/or
4. The victim due to time and circumstances must not have had full opportunity of observing the feature of the accused.”PER ABUBAKAR SADIQ UMAR, J.C.A.

WHAT THE PROSECUTION MUST PROVE IN CRIMINAL CASES

The law is trite that in the process of establishing the guilt of an accused person, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence, vital witnesses must be called to testify during the proceedings. Before a trial Court comes to the conclusion that an offence hadbeen committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused person comes within the confines of the particulars of the offence charged. See FABIAN NWATURUOCHA V. THE STATE (2011) 6 NWLR p. 1242 at P. 188. Per Adekeye, J.S.C. PER ABUBAKAR SADIQ UMAR, J.C.A.

JUSTICES:

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

ONYEBUCHI CHUKWUDOZIE – Appellant(s)

AND

THE STATE – Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of V.N. Agbata J., of the High Court of Anambra State sitting at Ogidi delivered on the 9th day of October, 2017. By an information presented by the Attorney General of Anambra State, the Appellant and one Chikaodinaka Unigwe were charged on a lone count charge of armed robbery contrary to Section 1 (2) (3) of the Robbery and Firearms (Speci

al Provisions) Act Cap R11, Laws of the Federation of Nigeria 2004.

BRIEF FACTS
The prosecutions case was that in the early hours of 3/12/2012, at Akwukwu Village along Onitsha-Owerri Express Way, the Appellant and others while armed with machetes and dagger robbed one Mr. Victor Nwakama of his dollars and other valuables. The victim who was said to be in an unnamed bus coming from Lagos to Awommama, Imo State initially thought the armed robbers were co-passengers because they were in the same bus alongside other passengers. According to the victim who testified as PW1, the driver and other passengers in the bus took to their heels as soon as the bus stopped but the robbers caught up with him because he stayed back to protect some of his valuable possessions.

It is also the case of the prosecution that at that material time, PW1 had his telephone hand-set torchlight switched on. Also, the armed robbers had their own touch-light, which they flashed indiscriminately. PW1 alleged further that there was a fluorescent light in the nearby house which provided the improved visibility of the environment thereby affording him the opportunity to clearly identify the accused person. It is also the case of the prosecution that while the armed robbers were frantically searching the bags of the PW1, one of the armed robbers screamed Oil Minister, we have seen dollars here and that as the armed robbers continued to search the bus thereby concentrating on the dollars and cash possessions of PW1, PW1 then seized the opportunity to escape from the scene of crime.

After the armed robbers had duly executed their illegal operation and left, PW1 and other passengers found their way back to the vehicle and came to the realization that the he had lost about One Thousand Dollars in $20.00 denomination, the sum of One hundred and Forty Thousand

Naira, a Nigerian passport with visa, Swiss Marriage Certificate and other valuable properties. PW1 in his evidence stated that he reported the matter to various police stations and organizations leading to the arrest of the 1st accused person and with the assistance of the 1st accused person, the police equally arrested the 2nd accused person.

PW2, who is a trader at Akwukwu and also the chairman of Akwukwu Youths Association, testified that he knows the accused persons because they all reside in Akwukwu and that during one of their regular meetings, PW1 and one Tony were there to solicit their assistance in apprehending the accused persons. PW2 testified further that he saw the 1st accused person in a drinking joint spending money lavishly and at that material time, he was in possession of some dollar boasting that he now spends hard currency. One Ifedi Nnoli who testified as PW3 also reported to have seen the 2nd Defendant as he was spending dollars in the fish market.

PW4 is the I.P.O who investigated the matter at the Police Zone 9 headquarters Umuahia. In his testimony, he stated that investigation revealed that the 1st accused person was

seen spending some foreign currencies and upon the arrest of the 1st accused person, he informed the police of the participation of the 2nd accused person in the armed robbery incident and went further to reveal that the 2nd accused person was as a matter of fact the leader of the gang. According to the evidence of PW4, the 1st defendant refused to reflect in his statement to the police the fact that the 2nd defendant was the leader of the gang because according to him, doing that will put his life in danger as the 2nd accused person was going to kill him.

The case of the Appellant who testified as DW2 on the other hand was that he is not an armed robber and did not participate in any armed robbery attack on Mr. Victor Nwakamma or any person on 3/12/2012. The Appellant in his testimony stated further that sometimes in May 2013, after taking his lunch in his house at Akwukwu Village, police came to his house, arrested him and took him to Ojoto Police Station from where he was taken to Special Anti-Robbery Squad (SARS) of the Nigerian Police, Awkuzu where he was detained for over three months.

The Appellant went further in his testimony to state that while in the custody of the Special Anti-Robbery Squad (SARS) of the Nigerian Police, Awkuzu, he was confronted with a petition allegedly written against him with no specific allegation contained therein that he robbed one Victor Nwakamma. He stated further that after over three months of his detention at Special Anti-Robbery Squad (SARS) of the Nigerian Police, Awkuzu, another group of policemen took him to Nigerian Police Zone 9, Umuahia where he was for the first time accused of robbing one Mr. Victor Nwakamma, an allegation he promptly denied.

It is also the case of the Appellant that he was not the leader of the gang that robbed PW1 and he also denied ever spending any dollars which was said to be the alleged proceed of the robbery neither did he give DW1 some dollars to spend. The Appellant in his testimony also stated that he saw PW1 for the first time in Court and that he was nick name Oil Minister when he was a palm wine tapper in the Village because palm mine was regarded as one of the mineral resources.

At the conclusion of the hearing, the trial Judge at page 139 of the record, found the Appellant together with the other accused person guilty as charged and sentenced them 15 years in prison.

The Appellant, naturally aggrieved with the judgment appealed against it by the Notice of Appeal dated 6th December, 2017 and filed on 7th December, 2017. The Appellants Grounds of Appeal without their Particulars are:
GROUND ONE
The learned trial judge erred in law when he held that the prosecution has proven the guilt of the defendant/appellant beyond reasonable doubt
GROUND TWO
The learned trial judge erred in law when he held that the failure of the police to conduct an identification parade with respect to the proper identity of the appellant as culprit was of no consequence.
GROUND THREE
The learned trial judge erred in law and fact when regarding the possession of dollars by the appellant he held that the appellant did not deny being in possession of dollars and did not explain the source of the dollars he possessed.
GROUND FOUR
The learned trial judge erred in law and fact when he held in present circumstances, therefore throughout the length and breadth of the testimonies

of the prosecution witnesses, I find no contradictions which are remotely material to the issues in controversy.”
GROUND FIVE
The judgment is unreasonable, unsupported and unwarranted having regard to the evidence adduced.

The record of Appeal was compiled and transmitted to this Court on 19th January, 2018 all settled by CHIEF JOHN. O. NSO ESQ. and in line with the rules of this Court, the parties filed and exchanged their respective briefs of argument. The Appellants brief dated 26th March, 2018 and filed on the same date was settled by CHIEF JOHN. O. NSO ESQ., while the Respondents brief dated 1st June, 2018 and filed on 19th June, 2018 was settled by T.C. IKENA ESQ., Deputy Director of Public Prosecution, Ministry of justice, Anambra State.

The Appeal was taken on 2nd February, 2019 when the counsel for the parties adopted their respective briefs of argument and made adumbrations on the issues and arguments in support of their positions in the appeal.

Learned counsel for the Appellant distilled the following issues for determination of this appeal to wit:

i. WHETHER AS REGARD THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY, THE GUILT OF THE APPELLANT HAS BEEN PROVED BEYOND REASONABLE DOUBT;
ii. WHETHER THE FAILURE OF THE POLICE TO CONDUCT AN IDENTIFICATION PARADE WITH RESPECT TO THE PROPER IDENTITY OF THE APPELLANT AS CULPRIT IS NOT FATAL TO THE PROSECUTIONS CASE IN THE CIRCUMSTANCE;
iii. WHETHER THE ALLEGATION THAT THE APPELLANT WAS SEEN IN POSSESSION OF DOLLARS HAS BEEN PROVED BEYOND REASONABLE DOUBT; AND
iv. WHETHER THERE ARE NO CONTRADICTIONS IN THE CASE WHICH ARE RATHER MATERIAL.

It is important to state that the Respondent adopted the four issues formulated by the Appellant for the determination of this appeal. In the view of that, all the submissions and arguments canvassed by both counsel shall be considered together in the subsequent paragraphs.

ISSUE NO.1
On this issue, learned counsel to the Appellant submitted that the law is trite that to secure a conviction for armed robbery the prosecution must prove the following:
a. That an act of robbery was committed.
b. That the in the process of the robbery the accused was armed with firearms or any offensive weapon.

c. That accused committed the robbery while armed or if not armed was in the company of any other person so armed while the acts of robbery were being committed. He cited AMOSHIMA V STATE (2009) 4 NCC AT 343.

On whether as regard the ingredients of the offence of armed robbery, the guilt of the appellant has been proved beyond reasonable doubt, learned counsel to the Appellant submitted that the evidence of the four prosecution witnesses at trial failed woefully to establish without any reasonable doubt the three ingredients of armed robbery.

Counsel while referring this Court to the testimony of PW1 at pages 107-108 of the records made further submissions that the PW1s testimony on the circumstances surrounding the alleged robbery are manifestly, amorphous and unreliable creating too many doubt as to their veracity such that no reasonable Tribunal can safely act on it to secure a conviction. It is submission of counsel that under cross-examination of PW1, more havoc was unleashed on the prosecutions case because PW1 stated in his statement to the police that he did not tell the police he identified the defendants with his telephone touch light

despite the fact that the incident was still very fresh in his memory when he made his statement to the police.

Counsel submitted further that under cross-examination and for the first time, PW1 stated that apart from his touch light, there was fluorescent light in the nearby building which added to the visibility.

It is the submission of counsel to the Appellant that on the issue of light, PW1 made three inconsistent statements and that in his statement to the police, there was nowhere it was stated that he used his telephone touch light to identify the appellant while in his evidence in chief, he said he used his telephone touch light to identify the Appellant. Counsel submitted further that for the first time and as an after-thought under cross-examination, PW1 said something about a fluorescent light in a nearby building adding to visibility.

Still on the testimony of PW1, learned counsel to the Appellant submitted that more havoc was caused on the evidence of PW1 when in his evidence-in-chief, he stated that In the process of robbing, one of them exclaimed Oil Minister, we have dollars here but under cross-examination

at page 110 of the records, PW1 stated that he did not say in his statement that one of them answered Oil Minister because he did not think that it was an important aspect of the story.

On the strength of the above submissions, counsel argued relying on the case of NWANKWOALA V STATE (2006) 46 WRN 43 that the law is that where the evidence of witness is materially contradictory of his earlier statements to the police, the witness should be regarded as unreliable and his evidence ignored and such evidence can however be accepted and relied upon if the contradiction is explained to the satisfaction of the Court. Counsel further urged this Honourable Court to DURU V STATE (1993) 3 NWLR (PT 281) 283; ONUBOGU V THE STATE (1974) 9 S.C.I; AGWU V THE STATE (1965) NMLR 18.

It is also the submission of counsel that in order to establish to the satisfaction of the Court that there was a robbery, the driver of the bus in which PW1 was allegedly robbed including one or all of the passengers need as of necessity to give evidence in corroboration of what PW1 said because after all, going by the testimony of PW1, the driver and the passengers together with PW1 entered

Onuma Police station and other police stations where the robbery incident was reported. Counsel submitted that by so doing, their statements would or ought to be recorded by the Police and even if not so recorded, they ought to be in Court to back up PW1s testimony on the robbery incident. On the essence of corroborative evidence, counsel referred this Honourable Court to the case of ALHAJI J.A. ODUTOLA V INSPECTOR (1994) 2 SCJN 21.

Finally on this issue, counsel submitted that the driver of the bus and other passengers are essential witnesses to confirm what PW1 said and that the essential witnesses or at least one of them, having not been fielded by the prosecution, will irresistibly lead to the presumption of withholding evidence under Section 167(d) of the Evidence Act, 2011.

In response to the above submission and arguments of counsel to the Appellant, learned counsel to the Respondent submitted that from the totality of the evidence adduced at the trial, the prosecution proved beyond reasonable doubt the guilt of the Appellant by establishing all the elements of the charge.

Regarding the first ingredient of the offence of armed robbery, i.e. that there was a robbery, counsel submitted that going by the evidence of PW1 at pages 107-110 of the record, evidence which was not controverted under cross-examination.

On the position of law regarding evidence unchallenged and how the Court react to same, counsel relying on the case of AYODEJI V AJIBOLA (2013) ALL FWLR (PART 660) 1327 AT 1373 argued that it would be right of a trial Court to act on an unchallenged evidence adduced at trial.

On the second ingredient of the offence of armed robbery, i.e. that the robbers were armed, counsel submitted that going by the testimony of PW1 at page 107 of the record wherein he testified thus:..I know the two defendants. They robbed me on 3/12/12 at Akwukwu in Anambra statethat day; the two defendants were with machetes and daggers.

Counsel submitted again that the above piece of evidence led by the Respondent at the Court below in proof of the second element of the charge was again not controverted by the Appellant.

Regarding the last ingredient of the offence for which the Appellant was charged, i.e. that the accused person participated in

the robbery, counsel to the Respondent submitted that evidence adduced during trial clearly shows that the Appellant and others conspired and robbed PW1 of one thousand dollars in $20 bills, One Hundred and Forty Thousand Naira, two expired Nigerian passports, Swiss marriage certificate, diary and other valuable items.

It is also the submission of counsel that PW1 testified that during the robbery, one of the robbers shouted oil minister, we have seen dollars here and that the Appellant in his statement which was admitted in evidence as Exhibit D2 confirmed that he is known as oil minister. Counsel submitted further that PW1 was explicit that he saw the Appellant and his co-defendant with his phone touch light when they robbed him and that a fluorescent light in a nearby building aided his visibility.

Also on this issue, counsel submitted that although PW2, PW3 and PW4 are not eye witnesses, but that the facts and circumstances of the case and the evidence adduced at the trial points to nothing but the conclusion that the Appellant and the co-defendant were the culprits. He argued that the law is settled that where there is

enough unequivocal circumstantial evidence that points to the guilt of the accused person, the Court can convict.
On a final note, counsel urged this Honourable Court to resolve this issue in favour of the Respondent.

ISSUE NO. 2
On the second issue, learned counsel to the Appellant submitted that the only eye witness to the offence i.e. PW1 testified in his evidence-in-chief at page 107 of the record and stated that the robbery incident took place in the early hours of the day and that it was with the aid of his telephone touch light that he saw the two defendants. Counsel submitted further that same PW1 under cross-examination stated thus:
By that time it was still dark. Before that day I had not seen any of the defendants. The incidence happened in about 5-10 minutes before I ran away. I cannot remember how long I laid down. Immediately I got up from where I laid face down, I ran away.”

On how PW1 identified the Appellant to the police, Counsel to the Appellant submitted that PW1 stated under cross-examination at page 110 of the record stated thus:

After his arrest, I identified the 2nd defendant to the police. Earlier, someone else was brought as Oil minister and I told the police that that person was not the one. I saw him well that day because apart from my touch light, there was also a fluorescent light in a nearby building which added to the visibility.”

Flowing from the foregoing submission, it is the contention of counsel that an identification parade was required in law and that when an eye witness is called upon to re-identity an accused person, the Courts usually guard against mistaken identity by considering a number of issues as enumerated by the Supreme Court in the case of IKEMSON V. THE STATE (2009) 4 NCC 226 AT 239.

In response to the submissions above, learned counsel to the Respondent submitted that it is not in all cases where the victim (witness) did not know the accused before and his first acquaintance with him is during the commission of the offence or where the victim (witness) was confronted by the defendant for a very short time or where the victim die to the circumstance might not have the opportunity of observing the features of the accused person that identification parade is necessary.

In substantiating the above, counsel referred this Honourable Court to the case of BANJO V STATE (2014) ALL FWLR (PART 715) 222 AT 229.

Finally on this issue, counsel submitted that where the Appellant was found with robbed item (dollars) and he could not explain how the money got to him, there is a presumption that he was one of the robbers or that he participated in the robbery therefore there would be no need to conduct any identification parade.

ISSUE NO. 3
On this issue, learned counsel to the Appellant submitted that the testimonies of the prosecution witnesses vis-a-vis their statements made to the police, particularly which of PW2 and PW3 were full of stark contradictions regarding the fact that the Appellant was found with some hard currencies which circumstantially makes him one of the robbers who robbed PW1.

Counsel submitted that considering the attendant contradictions and inconsistencies in the testimonies of PW2 and PW3, there was no ground upon which the trial Court could hinge its holding at page 136 of the records when he held thus:
PW1 and PW3 gave a vivid account of how they both saw the two defendants as they were

lavishly spending dollars for fish and beer. Again, throughout the length and breadth of their respective testimonies before the Court, neither the defendants denied ever been found in possession of the said dollars. They made no attempt at explaining the source of the dollars they possessed, assuming they were not stolen dollars of PW1.
I say so because the testimonies of PW2 and PW3 with respect thereof appear unassailable and unimpeachable.

Counsel submitted that the trial Court was total in error for there were visible contradictions in the testimonies of PW2 and PW3 and that it was the duty of the prosecution to prove beyond reasonable doubt the allegation that the Appellant was seen in possession of dollars and not for the Appellant to prove his innocence.

Counsel submitted that the police despite having the knowledge of the allegation of dollar spending by the Appellant, failed to unravel this part by conducting thorough investigation rather PW4 relaxed and relied on the enquiries made by PW2 from an undisclosed source. It is the submission of counsel that the fish seller or the beer palour

owner could have been called to testify as a witness to prove this vital point but that was not the case. Counsel argued that although a prosecution is not duty bound to call a particular number of witnesses to sufficiently prove its case, however where a witness is vital to the case of the prosecution, failure to call such witness would amount to withholding evidence as provided under Section 167(d) of the Evidence Act (2011).
On a final note, counsel submitted that from the statements of the four prosecution witnesses together with their testimonies in during trial, they merely believed that the Appellant committed the offence because he was a notorious person in the village and so, based on that belief, they easily suspected that the Appellant and his boys committed the offence. Counsel relying on the case of OBIAKOR V STATE (2002) 10 NSCQR argued that the law is sacrosanct that suspicion however strong cannot constitute a crime or ground a conviction.

Finally on this issue, counsel submitted that the issue of spending dollars in the circumstances cannot constitute circumstantial evidence against the Appellant. He argued that the law is settled that

evidence of surrounding circumstances can only support the case of the prosecution if such surrounding circumstance can by undersigned coincidence prove the case with the accuracy of mathematics. Counsel referred this Honourable Court to of UBANI V THE STATE (2003) 18 NWLR (PT 851) 224; EKPO V THE STATE (2003) 17 NWLR (PT. 849) 392.

On a final note, counsel submitted that in the instant appeal, there are many ways in which the arrows are pointing away from the Appellant as a culprit and there is no way the arrows point at him save the unfounded suspicion of the prosecutions witnesses.

In response to the submissions and arguments of counsel to the Appellant, learned counsel to the Respondent on this issue submitted that the prosecution led evidence through PW2 and PW3 that the accused persons were seen in possession of dollars after the robbery incidence. Counsel referred this Honourable Court to the testimony of PW3 at page 114 of the record.

Also relying on the case of BANJO V STATE (2014) ALL FWLR (PART 715) 222 argued that the law is trite that a man in possession of stolen goods soon after the theft is either the thief or has

received the goods knowing them to be stolen. Counsel further argued relying on the provisions of Section 167(a) of the Evidence Act and finally submitted that the Appellant is presumed to be the thief. He therefore urged this Honourable Court to resolve the issue in favour of the Respondent.

ISSUE NO. 4
On this issue, learned counsel to the Appellant only restated his submissions and arguments regarding the contradictions in the case of the prosecution as extensively considered in issue one above.

In response to the said submissions, learned counsel to the Respondent submitted that the question was whether there are inconsistencies and contradictions in the evidence of Prosecution witnesses that are material to warrant the resolution of this issue in favour of the Appellant. Counsel referring this Honorable Court to the testimony of PW1 at page 107 of the records submitted further that there no contradictions in the case of the Prosecution whatsoever. On the issue of the failure of PW1 to state in his statement to the police that there was a fluorescent light which aided his visibility and that one of the robbers shouted the name oil

minister in the process of the robbery, learned counsel to the Respondent submitted that there was no contradiction whatsoever and the failure of PW1 to state those facts was a simple omission on his part when he made Exhibit P1.

With respect with the evidence of PW2 and PW3, counsel submitted that their evidence in Court is not different from their statements to the police i.e. Exhibits P2 and P3 as contended by the Appellant. Counsel submitted further that even if there were contradictions in the prosecutions case, the contradictions are not material or substantial and therefore will not tilt the appeal in favour of the Appellant. Counsel referred this Court to JIMMY V STATE (2014) ALL FWLR (PART 714) 103 and finally urged this Honourable Court to resolve this issue in favour of the Respondent.

RESOLUTION:
I have perused the record of appeal compiled and duly transmitted in this case; the briefs of argument filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the evidence adduced at the trial which was relied upon by the trial Judge in reaching his decision that is being challenged now.

Thus; having considered the issues so formulated by the parties and after a holistic study of the case leading to this appeal and the grounds of appeal duly filed by the Appellant, I think the understated issue would suffice in determination of this appeal.
WHETHER THE PROSECUTION PROVED ITS CASE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT TO JUSTIFY HIS CONVICTION BY THE TRIAL COURT

The law is long settled that in a criminal trial, the prosecution is duty bound to prove his case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See DANBABA V. THE STATE (2018) 11 NWLR PART 1631 AT PAGE 444-445; IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO vs. THE STATE (1989) 4 NWLR (Pt. 113) 57.

It has been established in a long chain of judicial authorities that to secure a conviction for the offence of armed robbery,

the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a. That there was robbery or series of robberies
b. That the robbery was armed robbery; and
c. That the accused was one of those who took part in the armed robbery.
See AWOSIKA V STATE (2010) 9 NWLR PT 1198, P.49 AT 53-54 RATIO 5; BELLO VS STATE (2007) 10 NWLR PART 1043, P.563

A fastidious consideration of the submissions and arguments of both Counsel would reveal that the parties are not at loggerheads as to whether or not there was truly a robbery incident on the 3rd day of December, 2012. Equally, parties have not joined issues as to whether the robbery was an armed robbery or otherwise. I am of the opinion that the only issue vehemently joined by parties is whether or not the Appellant was among the Armed Robbers, who allegedly perpetuated the act of armed robbery at Akwakwu along Onitsha/Owerri road on the 3rd day of December, 2012, wherein in the said operation, PW1 (Nwakanma Victor) was said to have been robbed off his valuables to wit, One Thousand Dollars in $20.00 denominations, the sum of One hundred and forty thousand Naira, a Nigerian passport with visa, Swiss Marriage Certificate and other valuable properties.

The trial Court after reviewing evidence before it found that the Appellant was properly identified as one of the armed robbers that robbed PW1 on the said date hence; his conviction and sentence by the lower Court. The Court at page 138 of the record held that:
It seems to me also that the failure of the police to conduct an identification parade, with respect to the identities of the defendants as the culprits, is of no consequence. Even if, for purposes of argument only, the suggestion of counsel with respect thereof is to be taken seriously; it seems to me that the fact that the 1st defendant gave information which led to the recovery of the stolen international passport of PW1, and that the two defendants were seen as they were spending dollars, put paid(sic) to any speculation with respect thereof. To my mind, therefore, the identity of the defendants as perpetuators of the heinous crime is not, and had never been in doubt.”

Now, whether the findings of the lower Court were right or wrong is a question to be answered after revisiting the

record of appeal and studying the evaluation of evidence led at the trial. It is pertinent therefore to begin by reviewing the extra judicial statement of the relevant witnesses with a view to ascertaining truly if the Appellant was properly identified as one of the armed robbers that committed the act on the fateful day.

Flowing from record, it is safe to conclude that PW1 was the only eye witness and the fulcrum of the prosecutions case rests majorly on the veracity of his testimony. It is on this premise that I shall at first, consider his extra judicial statement made to the police vis-a-vis his testimony during trial with the aim of ascertaining whether truly or otherwise, the Appellant was properly identified as one of the armed robbers perpetuated the act of armed robbery on that faithful day.

The statement of PW1 to the police of the Zone 9 Headquarters, Umuahia shortly after the incident can be found at pages 17-18 of the records while the graphic of his testimony at the Court below can be gleaned at pages 107-110 of the records before this Honorable Court. PW1 stated in his statement that:

At that point, one of the robbers came over to the bus with a touch light, communicated with our driver and showed him where to park and he did park thereafter. The driver immediately ran away leaving the bus open and our calls on him to come back and close his bus for safe keep fell on deaf ears.
Realizing that I had valuables in the bus, I decided to close the doors and glasses before taking cover. On this process, three people armed with machetes and daggers approached the bus. They were five in number all armed with machetes and daggers.
Before they started searching our bus, they ordered me to lie face down but I ran when they got so busy robbing the buses. When they left, I returned to the bus and discovered that my valuables have been carted away.”

The next thing to be considered is PW1s testimony during trial. PW1 testified during examination in chief at page 107 of the records that:
I know the two defendants. They robbed me on 3/12/12 at Akwukwu in Anambra State. That day, I was coming from Lagos to Awommamma when the incidence took (sic) at the early hours of the day. I was in the bus with other passengers.

That day, the two defendants were with machetes and daggers. Initially, I thought they were co-passengers. With the aid of my telephone touch light I saw the two defendants. They asked me to lie down after they started robbing. By that time, other passengers had run away.
The driver also ran away. I wanted to close the windows of the bus because of the valuables I had in the bus. In the process, the defendants as robbers caught up with me.
In the process of the robbing, one of them exclaimed Oil minister, we have see dollars here. As they continued searching for valuables in bus, they paid less attention to me and I ran away.

The same PW1 under cross-examination at page 110 of the record stated that:
The 2nd defendant is also known as Oil Minister. On that day during the robbing incidence, one of the robbers referred to him as Oil Minister and he answered.
When I wrote my statement to the Police at Umuahia, the incidence was still fresh in my memory.
I did not state in my statement that one of them answered Oil Minister: I did not say so because I did not think that aspect was important

aspect of the story. The incidence happened in the early hours of 3/12/12. By that time, it was still dark. Before that day, I had not seen the defendants.
After his arrest, I identified the 2nd defendant to the police. Earlier, someone else was brought as the Oil Minister and I told the police that that person was not the one. I saw him well that day because apart from my touch light there was also a fluorescent light in a nearby building which added to the visibility.”

See NDIDI V. THE STATE (2007) 13 NWLR (PT. 1052) 633 PAGE 651, paras. G-H; IKEMSON V. The STATE (1989) 3 NWLR (pt.110) 455; OGOALA V. The STATE (1991) 2 NWLR (pt. 175) 509; BASHAYA V. STATE (1998) 5NWLR (Pt.550)@351.
It was stressed that whenever the case of an accused person depends wholly or substantially on the correctness of his identification which the defence alleges to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identification. See the English case of R V. TURNBUL & ORS. (1976) 3 All ER 549 – a decision of the Court of Appeal (England) Criminal Division presided over by Lord Widgery CJ. This decision has not only been cited by our indigenous scholars but has been adopted over the years by the Supreme Court. See IKEMSON V. STATE (1989) 6 SC (PT. 5) 114.
Another case on identification evidence is that of SEGUN BALOGUN V. ATTORNEY-GENERAL OF OGUN STATE (2002) 6 NWLR (PT. 763) 512.

In that case, dwelling on the principles governing the need for identification parade, the Supreme Court per Uwaifo, JSC; made it clear at page 534 that an identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness’s power of recognition based on the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubt as to who was seen in connection with the offence to require identification parade. An identification parade, His Lordship further disclosed was absolutely unnecessary, when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.

Premised on the forgoing, I am of the considered opinion that a close look at the extra judicial statement of PW1 to the Police and his testimony during trial are closely related only

that PW1 during trial added that in the process of the robbery, he heard one of the robbers calling one of them Oil Minister but he admitted that he failed to provide this information to the police because he felt that same was not important.

I find it hard to come in terms with the claim of PW1 because what could be more important at that point than providing the police with every material information that would aid its investigation. I rather consider this as an afterthought conjured after PW1 came in contact with PW2 and PW3 who were not eye witnesses. The omission of this vital information in my opinion is not a mere coincidence.

his extra judicial statement, their bus took off from Jibowu, Lagos around 7p.m, being a night bus. I am amazed at anyone who had the guts made of steel to flash a touch light in the face of an armed robber during a robbery incident perpetuated in the dark hours and if that were to be the case, I am in doubt whether PW1 would have had enough time to pay close observation to the robbers whom he admitted never to have had contacts with before the date of the incident.

Based on this reasoning, the only thing, save for a confessional statement that could have assisted the case of the prosecution was proper police investigation of carrying out an identification parade. On this note I entirely agree with the Appellant Counsel that the identification parade was necessary in the circumstances of this case. Identification parade is useful when an eye witness did not know the suspect prior to the crime incident. See ADEBIYI v. THE STATE (2016) 8 N.W.L.R (pt.1515) @ 477; See AFOLALU v. STATE (2010) 16 NWLR (pt. 1220) 584, 616, paras. A-C.

Assuming that was truly the case i.e. PW1 had the temerity to get a glimpse of the face of his robbers through the aid of

his phone touch light; who should suffer or benefit from that lapse in investigation? I think that the law has not changed that in criminal prosecution, every doubt are still resolved in favour of the Accused person. See BOTU. THE STATE (2018) 3 NWLR Part 1607 @ 430; IDEMUDIA V. The STATE (2015) 17 NWLR (PT. 1488) 375.

I have painstakingly perused through the extra judicial statements of PW2, PW3 and their testimonies in Court together with that of PW4 who was the I.P.O and all could not sum up to fix the Appellant as one of the armed robber who attacked PW1 and dispossessing him of his valuables.

PW2 and PW3 stated that they were eye witnesses to the possession and spending of dollars by the Appellant in their evidence in chief at page 112 and 114 of the records respectively. However in their statements in Exhibits P3 and P4, they failed to make reference to this material fact. I agree with learned counsel to the Appellant that PW2 and PW3 believed that the Appellant committed the offence because of his antecedents in Akwukwu community. His antecedents stirred them into suspecting and believing that no one but the Appellant was capable of committing the offence.

It should be stressed at this point that, suspicion undermines the real essence of justice leaving it at the mercy and realm of conjecture and trial and error, above all, makes administration of criminal justice seen as a game of jackpot which in common language could be viewed as the more you look the less you see. Suspicion ought to fuel investigation and result in proof. Suspicion not turned to proof by proper investigation remains suspicion and cannot be elevated to the status of proof beyond reasonable doubt as required by law. Anything to the contrary would detract from the quality of justice envisaged by the Constitution as prerequisite for the conclusion of guilt. IDOWU V. THE STATE (1998) 11 NWLR (Pt. 574) 354.

The prosecution witnesses, PW2 and PW3 in particular, staggered and struggled to implicate the Appellant by merely alleging that they saw him while spending some dollars shortly after the incident. Considering the nature of the area coupled with the dark time of the incident; the trial Court was expected to act with every reasonable circumspect in arriving at its decision considering the nature of offence and weight of the sentence upon conviction.

I cannot but agree with the submission of the learned counsel for the Appellant that none of the prosecution witnesses properly identified the Appellant as one of the armed robbers. Proper identification of the person who committed the offence is a condition precedent to returning a verdict of guilt.

the Court of Appeal enumerated the circumstances under which an identification parade is necessary. They are:
1. The accused was not arrested at the scene and he denies taking part in the crime; or
2. The victim did not know the accused before the offence; or
3. The victim was confronted by the accused for a very short time; and/or
4. The victim due to time and circumstances must not have had full opportunity of observing the feature of the accused.”
The Appellant confessed to the commission of the crime and not only that he was arrested shortly after the commission of the offence and the stolen goods were found with him. It was therefore unnecessary to conduct an identification parade and also investigate alibi set up by the Appellant.

been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused person comes within the confines of the particulars of the offence charged. See FABIAN NWATURUOCHA V. THE STATE (2011) 6 NWLR p. 1242 at P. 188. Per Adekeye, J.S.C.

In view of the findings of this Court after reviewing the records and submission of Counsel in the determination of this appeal, I am of the view that the prosecution did not prove its case beyond reasonable doubt as required under the law.

Thus, the sole issue formulated by this Court as derived from the issues submitted before it by the parties is resolved wholly in favour of the Appellant. The appeal is hereby allowed.

On the strength of the foregoing, this Court therefore holds that the appeal is meritorious.

The conviction and sentence of the Appellant on 9th of October, 2017 by V.N. Agbata J., is hereby set aside. The consequential Orders of the Court below pursuant to the said judgment are hereby quashed. The Appellant is hereby discharged and acquitted and shall be released from custody.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading the very erudite and well considered Judgment of my Learned Brother ABUBAKAR SADIQ UMAR, JCA in advance and I am in complete agreement with his reasoning and conclusion that the prosecution did not prove all the essential ingredients of the offence of Armed Robbery with which the Appellant was charged.

I am on all fours with my Lord that the evidence or testimonies of the PW2 and PW3 were fraught with inconsistencies and at best were based on the mere suspicion that they found the Appellant spending some dollars after the incident and because of his antecedents in Akwukwu Community whereas suspicion no matter how strong cannot take the place of legal proof.

My Lord was also on a very solid ground when he reasoned that the PW1 and Complainant having testified that the armed robbery allegedly committed by the Appellant occurred in the night there was need for identification parade. In the very recent case of Olasehinde V. State (2019) 1 NWLR (PT. 1654) 555 at 575 – 576 paras. H – C and 577 paras. E – F, Augie, JSC; relied on the dicta of Karibi-Whyte and Oputa, JJSC in

Ikemson v. The State (1989) 3 NWLR (PT. 110) 445 (SC); where the Apex Court laid down the conditions under which identification parade is as sine qua non to wit as:
(1) Where the victim did not know the Accused before;
(2) Where the victim was confronted by the offender for a very short time;
(3) Where the victim, due to the time and circumstances might not have had opportunity of observing features of the accused.
All the circumstances above stated existed in this case such that the Police ought to have conducted identification parade that ought to have taken into consideration the description of the Appellant as given to the police shortly after the commission of the offence alleged, the opportunity the victim had for observing the Appellant and what features of the Appellant were noted by the PW1 and communicated to the police, which marked him out from other persons.
Having failed to conduct such identification parade in the face of the inability of the PW1 to name him at the earliest opportunity and the fact that he was not arrested at the scene of crime, the Appellant ought to have been discharged and acquitted.

Accordingly, I also allow this Appeal and set aside the Judgment of the Lower Court. Accused is accordingly discharged and acquitted.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA.

I agree with his reasoning and conclusion that the appeal is meritorious. I too allow the appeal. I abide by the consequential orders made therein.

Appearances:

For Appellant(s)

For Respondent(s)

Appearances

For Appellant

AND

For Respondent

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