SUNDAY EHIMIYEIN v. THE STATE
(2013)LCN/6733(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/B/154C/2007
RATIO
WHETHER AN IDENTIFICATION PARADE IS NECESSARY IN ALL CRIMINAL CASES
The law is that, it is not in all criminal cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incidence a formal identification may be unnecessary. Furthermore, where an accused person by the 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, etc. If there is no dispute about the identity and identification of an accused person by a witness, there will be no reason why his evidence alone if believed cannot ground or sustain a conviction. It is erroneous in law to impugn the identification of a suspect by a witness merely because the witness does not know the names of the suspect. Although knowing the suspect’s name will strengthen the credibility of such testimony. See:- Chukwu V. The State (1997) 7 NWLR (pt. 463) 686; Khalete v. The State (1997) 8 NWLR (Pt. 516) 237; Eyisi V. State (2000) 15 NWLR (Pt. 691) 555; Okosi V. State (1989) 1 NWLR (Pt. 100) 642; Alonge V. I.G. P. (1959) SCNLR 156; Onafowokan V. State (1987) 8 NWLR (Pt. 61) 538; Oti V. State (1993) 4 NWLR (pt. 290) 675; Adamu V. State (1991) 4 NWLR (Pt. 187) 530; Ikemson V. State (1989) 3 NWLR (Pt. 110) 455; Ugwumbe V. State (1993) 5 NWLR (Pt. 296) 660; Anyawu V. State (1986) 5 NWLR (Pt. 43) 612; Ukorah V. State (1977) 4 SC 167. Per SIDI DAUDA BAGE, J.C.A
Before Their Lordships
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
Between
SUNDAY EHIMIYEINAppellant(s)
AND
THE STATERespondent(s)
SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This is an appeal against the conviction of the Appellant by his Lordship M.I. Edokpaiyi J. (as he then was) sitting at High Court No. 3 Benin City on the 26th day of September 2005 in Charge No. B/48C/2000. The State V. Sunday Ehimiyein and Another for the offence of Armed Robbery.
The Appellant who was the 1st accused person in the charge. At the conclusion of the case the learned trial Judge delivered Judgment on the 26/09/2005 convicted the 1st and 2nd accused person as charged and sentenced them to death by hanging. Being dissatisfied with his sentence and conviction, the Appellant who was the 1st accused person during the trial of the charge in the High Court filed this appeal which is contained at page 152 of the records, seeking a discharge and acquittal.
The Appellant was arraigned as the 1st accused person in Charge No. B/48C/2000 along with the 2nd accused person at the High Court of Justice Edo State Holden at Benin on the 10/12/2000 on a two count charge of conspiracy to commit armed robbery contrary to Section 5 (b) and punishable under Section 1(2)(a) of the Robbery and Fire Arms (Special Provision) Act Cap 398 of the 1990 Laws of the Federation of Nigeria. Subsequently the Appellant was charged as the 1st accused on information laid in the Robbery and Fire Arms Tribunal Holden at Benin by the Attorney-General of Edo State along with another in Charge No. B/48C/2000 in the case. The State V. Sunday Ehimiyein and Another conducted by his Lordship M.I. Edokpayi J. (as he then was). The charge at the lower court as contained at page 22 of the Record of Appeal reads as follows:
“COUNT 1: That you Sunday Ehimiyein (m) and Folorunsho Alufohai (m) on or the 5th day of January, 1998 at Oluku town in the Iguobazuwa Judicial Division triable in the Benin Judicial Division conspired with one other now at large to commit felony to wit: armed robbery and thereby committed an offence contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 of 1990 Laws of the Federation of Nigeria.
COUNT II: That you Sunday Ehimiyien (m) and Folorunsho Alufohai (m) and one other now at large on the 5th day of January, 1998 at Oluku town in the Iguobazuwa Judicial Division tirable (sic) in the Benin Judicial Division robbed one Raphael Addi (m) of his Video Machine, one Video Rewinder and one 14′ Colour Television and at the time of robbery, you were armed with offensive weapon to wit: gun, cutlass and acid and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (special Provisions) Act Cap 398 of 1990 Laws of the Federation of Nigeria.
Briefly the prosecution’s case at the High Court was that PW1 one Ige Aggi testified that she lived at Oluku Junction, Benin City and that she is a trader.
“2.01. The case of the prosecution is that PW1 one Ige Aggi testified that she lived at Oluku Junction, Benin City and that she is a trader. That on 5/01/98 she was at home at night when she heard gun shots. That some armed robber used hard objects and broke the door at the back of their house and entered their house, that the armed robbers stole their TV set, video set and video rewinder of his father one Raphael Aggi. That during the course of the robbery the robbers poured acid on her and that the robbers who were 3 in number after the robbery ran pass her through the back door of their house. PW1 also stated that one of the robbers carried her father’s video set and another one carried her father’s coloured television set and a rewinder.
2.02. Following the armed robbery attack on them PW1’s father Raphael Aggi went to the Ekiadolor Police Station to report and that when her father went to the station to make a report he met the 1st Appellant there and told the Police that he was one of the people who came to his house to rob him at night.
2.03. The 1st Appellant was arrested at his house on the 5/01/98 and brought to the Ekiadolor Police Station on the allegation that he burgled some one’s house. The case was initially investigated by the police at Ekiadolor before it was transferred to State CID Benin who finally arraigned the 1st Appellant and another accused person at the Magistrate Court from where they were remanded in prison Custody before being charged on information to the Armed Robbery and Fire Arms Tribunal Benin where it was tried and concluded.”
From the Amended Notice of Appeal dated and filed the 29/10/12 containing four (4) Grounds of Appeal, the Appellant distilled the following two (2) issues for determination namely:
(1) Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt.
(2) Whether the confessional statements is admissible against the Appellant.
On the side of the Respondent two (2) issues were formulated for the determination of the appeal namely:-
(1) Whether the case of the prosecution was proved beyond reasonable doubt as required by law.
(2) Whether the learned trial Judge was right in admitting Exhibits E & G, and considering same.
The two set of issues set out by the parties are in all respect the same, that being the case, I tend to be guided by the issues as formulated by the Appellant in the determination of the appeal.
ISSUE ONE (1)
Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt.
Learned counsel to the Appellant submitted that, it is settled beyond question that in criminal cases especially armed robbery offences which carries death penalty that the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See:- Morka V. State (1998) 2 NWLR (pt. 537) 294 at 301. See Section 138 (1) of the Evidence Act Cap 112 Laws of Federation of Nigeria 1990. See also:- Cyrracus Ogidi & Ors V. The State (2005) 1 SCNJ 67 at 85 – 86. The onus is static and does not shift.
Learned counsel further submitted that in discharging the proof of guilt against the Appellant, the prosecution relied on the evidence of PW1, who identified the Appellant as one of the armed robber who came to their house to pour acid on them. PW1 did not state how she was able to identify the Appellant she did not testify as to the clothes he was wearing or his appearance or his features or what struck her about the Appellant as one of the robbers she saw that night. Her evidence connecting the Appellant to the crime is her bare assertion (and without more) that the Appellant was one of the robbers she saw that night. The Supreme Court warned on the need for the court to be careful in convicting without proper identification in cases where the accused was not previously known to the witness. See – Sunday Ndidi V. The State (2007) 41 WRN 1 at 16 (2007) 5 CSNJ 274 at 287 – 288. Alabi v. The State (1993) 1 NWLR (pt 307) at 511.
Learned counsel further submitted that as to PW3 there was no identification parade carried out by the police in order to identify the Appellant as amongst the robbers that attacked them that night. That the PW1 and PW3 had not seen the Appellant before the incident, is the more reason why a formal identification should have been carried out by the police. See Sunday Ndidi V. The State (Supra).
Learned counsel further submitted that the only evidence that connects the Appellant with this offence was that of the PW4 a police officer, one Ola Jonathan. He stated that he received information from an informant who was not called to give evidence in court that some boys came to him and told him that they have some electronics to sell and that he suspected them to be robbers. Going by the evidence of PW4 it can be seen that at the time the informant gave him information of the so called boys who intended to sell stolen property to him, the robbery incidence of 5/1/98 had not taken place.
Learned counsel further submitted that this observation strengthens the defence of the Appellant that he was arrested for a different offence rather than the one of which he was charged to court for. The salient question still remains whether the two accused persons in allegedly attempting to sell a property which as at that time of the incident available to them, is sufficient to fix them with the crime charged. Can it also be said that the Appellant is making arrangement to sell a property which he intends to steal?
Learned counsel further submitted that, the only evidence of PW5 a police officer ASP Sunday Mofege that connected the 1st Appellant with the robbery case, was the transfer from Ekiadolor Police Station to SCID Benin for investigation. PW5 stated that he rearrested the two accused persons and later charged them to court for armed robbery.
His evidence did not fit the Appellant at the scene of crime. PW5 merely stated under cross-examination that he visited the scene of incident 6 days after the incident. He also said he did not recover any gun from the Appellant or that any gun was handed over to him during the course of the investigation.
In reply to this submission learned counsel to the Respondent argued that, it is trite law that the onus is on the prosecution to prove its case beyond reasonable doubt. See Bakare V. State (1987) 1 NWLR Page 5 at 10; Okputu Obiode & Ors V. The State (1970) 1 All NLR 35. It is also trite that under Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990; for one to be guilty of armed robbery he must either be armed with fire arms or any offensive weapon or be in company or any person so armed. See: – Samuel Aroture V. The State (1984) 5 SC 199 at 201.
Learned counsel submitted further that, the Appellant being charged with conspiracy the gist of it is the meeting of the minds of the conspirators which is hardly capable of direct proof. See:- Patrick Njovens V. The State (1998) 1 ACLR 224 at 237 ratio 2. It is the overt acts of the parties usually the only proof of the offence of conspiracy.
Learned counsel further submitted that conspiracy is a matter of inference from certain criminal act of the parties done in pursuance of an apparent purpose in common intention between them. The offence of conspiracy can even be inferred from the criminal acts of the accused persons as regards the actual commission of the offence of armed robbery. It is further submitted that the appellant being found with the robbed items within 24 hours and the positive identification of him is evidence of actual commission of the crime. This is direct evidence of conspiracy. The learned trial Judge after evaluating the total evidence before him at pages 122- 126 found at pages 127 lines 14 – 25 and pages 128 lines 1 – 6 that the offence of conspiracy has been proved beyond reasonable doubt. We urge this court not to disturb those findings of facts as it is not perverse and it is the result of proper exercise of judicial discretion. See: – Okwe V. Doba & Ors (1973) 5 SC 203 at 204; John V. State 1 SC 29 at 30.
Learned counsel submitted further that to succeed on charge of armed robbery the prosecution must prove (a) that there was robbery (b) that the robbers were armed and (c) that the accused persons took part in the armed robbery. See: – Bozin V. State (1998) 1 ACLR 1 at 2; Magic V. The State (1999) 1 LRCN 252 Ratio 1.
On the issue of identification parade learned counsel submitted that the prompt and spontaneous identification of the Appellant by PW3 and the late Raphael Aggi is sufficient act of positive identification which does not need any identification parade. Also it is trite that it is not in every case that parade is necessary to identify culprits. See Matthew Orimoloye V. The State (1984) 10 SC 138 at 139 – 140.
Learned counsel submitted that the Appellant being in possession of exhibits A & B within 24 hours of the robbery, he is presumed to be one of the armed robbers who robbed PW3. See Patrick Iyakwe (1944) 10 WACA 180; Isiaka Ayorinde V. The State (1984) 11 SC 44 at 48. See also Section 149 (a) of the Evidence Act.
Learned counsel further submitted that, in the instant case, PW3 did not go to the police station for the purpose of identifying the Appellant. Its identification was spontaneous and positive. The positive identification of the Appellant by PW1 and PW3 were further corroborated by the Appellant in his confessional statements in Exhibits E and G. The Appellant himself admitted that he was not masked during the operation. So there is no identity crisis in his identification.
Learned counsel submitted further that the Appellant did not and could not proffer any explanation as to exhibits A and B. His defence was a bare denial. There was no material contradiction in the evidence of the prosecution witnesses. See:- Sule Oladejo Asiriyu V. The State (1989) 12 SC 62 at 70. We urge this court to allow the finding and verdict of the lower court.
In dealing with the Issue No. 1 as to whether the prosecution proved the guilt the Appellant beyond reasonable doubt. Advisedly I find the famous decision of Hon. Justice Kalgo, JCA (as he then was) later JSC (as he then was) in Peter Nwomukoro & Ors V. The State (1995) 1 NWLR (Pt. 372) 432 at 443 a very convenient starting point. The legal giant stated as follows:-
“It is settled law and therefore trite that for the prosecution to succeed in proof of the offence of armed robbery there must be proof beyond reasonable doubt of the following:-
(1) That there must be robbery or series of robberies.
(2) That the robbery or each robbery was on armed robbery.
(3) That the accused was one of those who took part in the armed robbery, See:- Bozin V. State 2 NWLR (Pt. 8) 465 at 469; Amina V. The State (1990) 6 NWLR (Pt. 155) 125 at 135; Okosi V. Attorney-General Bendel State (1989) 1 NWLR (Pt. 100) 642; Nwachukwu V. The State (1985) 1 NWLR (pt. 11) 218; Ani V. State (2003) 11 NWLR (pt. 83) 142.”
Also the decision of yet another legal giant Adekeye JCA (as he then was) in Morufu Bolanle V. The State (2005) 1 N.C.C. 342 at 354. On ingredients of the offence of armed robbery, see also:- Segun Balogun V. A.G. Ogun State (2002) 6 NWLR (Pt. 763) 512; Safiu Balogun V. A.G. Ogun State (2002) 6 NWLR (Pt. 763) 512; Theophilus Eyisi V. The State (2000) 4 NSCQR 60; Audu Aruna V. The State (1990) 6 NWLR (Pt. 153) 125; John Nwachukwu V. The State (1996) ANLR 496; Sefiu Balogun v. A.G. Ogun State (2001) 30 WRN 123; Ogidi & Ors v. The State (2003) 9 NWLR (Pt. 824) 1; Ogunye V. The State (1995) 5 NWLR (Pt. 604) 548.
The learned trial Judge found as follows, that the prosecution had proved beyond reasonable doubt the offence of armed robbery against the accused person on page 146 of the record:
“It is my view, therefore, that the confessional statements were possible and that the accused person(s) also had the opportunities to make them and did make them. I hold that the confessional statements are true and corroborated. The 1st and 2nd accused persons had the opportunities of committing the offences with which they were arrested and charged. More than this, I further hold that the Exhibits ‘E’, ‘F’, ‘G’, ‘G1’, ‘H’ and ‘H1’, have successfully passed through all the tests laid out in R.V. Walter Sykes (Supra). In Danjuma Garba & Ors V. The State (1984) 9 SC 40 at 41 the Appellant self-confessed participants in the robbery, were hired to carry the loot of the robbery and this fact was held to be irrelevant as they accompanied those who hired them to the scene of robbery and saw action at the scene which sent one night guard Idirisu, fleeing away for safety. The appeal was dismissed. I hold that the confessional statements were made voluntarily by the accused persons.
The PW1 and PW3 positively identified the 2nd accused as the armed robber who poured acid on her face when she looked at him and then raised an alarm. See the following cases:
(1) Sunday Omega V. The State (1965) NMLR 58.
(2) Mark Okuone alias Michael Ozah V. D.P.P Ondo State (1979) 3 CA 288 at 294.
I hold that the prosecution has also proved the offence of armed robbery in court 2 of the charge beyond reasonable doubt. Finally and on the totality of the evidence adduced in this case before me, I have come to the irresistible and inevitable conclusion that the prosecution has proved the guilt of each of the 1st and 2nd Accused persons beyond reasonable doubt pursuant to Section 138 (1) of the Evidence Act. (1) Andrew Idemudia V. The State (1999) 9 LRCN 1043 at 1063.
(2) Ozoki V. The State (1990) 1 NWLR (pt. 124) 92.
The 1st and 2nd Accused persons are a bunch of heartless criminals who took delight in torturing and maiming their helpless victims as shown by the manner in which acid was poured on the face of the PW1 by the 2nd Accused person while they were armed with guns and offensive weapons, to wit acid and a cutlass.”
After a careful examination of the position of the learned trial Judge as contained on page 146 of the record just stated above, an inescapable fact has emerged i.e. that the issue No. 1 in the 1st Appellant’s brief of argument, cannot be effectively or effectually determined alone, its consideration must go pari passu with the issue No. 2. The issue No. 2 is whether the confessional statement is admissible against the Appellant.
In arguing issue No. 2, learned counsel to the 1st Appellant submitted that it is trite law that before a confessional statement can be admissible against an accused person certain conditions must be fulfilled. See Girka V. The State (1996) 4 SCNJ 94; Re Edamine V. The State (1996) 3 SCNJ 12; Patrick Njovens & Ors V. The State (1973) 5 SC 17; Gbadamosi & Anor V. The State (1992) 11 – 12 SCNJ 269.
Learned counsel further submitted that the question is, can it be said that the prosecution proved beyond reasonable doubt that the 1st Appellant voluntarily made the confessional statement? Could it also be right for the trial court to admit as an exhibit the purported confessional statement of the 1st Appellant in view of the fact that the 1st Appellant vividly described how he was tortured by PW4 who the 1st Appellant alleged made the statement and merely asked him to sign?
Learned counsel further submitted that from the evidence of PW4 in the trial within trial it is crystal clear that the 1st Appellant to the knowledge of the PW4 knows and understands English Language. One wonders why PW4 could not allow the Appellant to make his own statement instead of PW4 making the statement and asked the 1st Appellant to sign, this goes to support the evidence of the 1st Appellant that the statement was recorded by the PW4 who asked him to sign.
Learned counsel further submitted that the conviction of the 1st Appellant by the trial court was based on the evidence of PW1 and PW3 that the 1st Appellant was a party to the robbery of 5/1/98 and on other inadmissible evidence namely the purported confessional statement of the 1st Appellant. With due respect, the learned trial Judge cannot rely on the purported confessional statement of the 1st Appellant made under torture and beating as a proof of the content as the said purported confessional statement was not voluntarily made by the 1st Appellant.
Learned counsel further submitted that the trial Judge relied on evidence of PW1 and PW3 that they recognized the 1st Appellant at the scene of crime with adverting his mind to the fact that the 1st Appellant in his defence stated that he was arrested at his house on the 5/1/98 on the allegation that he burgled the house of someone. It is the primary duty of the prosecution to prove the guilt of the Appellant beyond reasonable doubt and that it does not lie on the Appellant to prove his innocence.
The Respondent adopts all summary of arguments for issues No. 1 & 2 as issues 1 and 2 were argued by her jointly.
From the above scenario three (3) areas emerge for the effective determination of this appeal, and they are as follows:-
(1) The confessional statement of the Appellant, whether its admissibility can ground a conviction.
(2) The identification of the Appellant, whether an identification parade was necessary.
(3) The doctrine of recent possession.
On the admissibility of the confessional statements of the Appellant Exhibits “E” and “G1”. The law is that in this country where criminal trials are usually held by a Judge sitting alone without a jury, a distinction is usually drawn as regards a practice and procedure in relation to the admissibility of a confession in evidence of trial proceedings between a confession objected to on the ground that it was not made at all by an accused person in which case such a confession may be said to have been retracted; and a confession objected to on the ground that it was not voluntary in that although an accused person agreed to have made the confession his complaint would be that he was forced or induced to make it.
In the latter case, what is attacked is admissibility in evidence of the confession and therefore a trial within a trial must be held. The confession having been challenged on voir dire so as to determine whether or not the confession was voluntary. If at the end of such trial, the court comes to the conclusion that the confession was not voluntary, then it is not admissible in evidence and the court should so rule.
In the former case, where the confession is wholly retracted the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial Judge is entitled to admit the confession in evidence as something which had occurred in the course of investigation conducted by the police into the case; and thereafter to decide or find a matter of fact at the conclusion of the case as to whether or not in all the circumstances, the accused person did make the statement as alleged by the police. See: – Godwin Ikpasa V. Bendel State (1981) 9 SC 7 at Pp 26 – 29; Inusa Saidu V. The State (1982) 4 SC 41 at 69; Igbineweka Owie V. The State (1985) 4 SC (pt. 2) 1 at 27; Alarape V. State (2001) 2 SC 114; Uche Obidiozo & Ors V. The State (1987) 12 SC 74 at Pp 93 and 100 – 102. Also reported in (1987) 4 NWLR 748.
In the instant appeal in paragraph 5.02 at page 10 of the 1st Appellant brief of argument it is contended as follows that:-
“From the evidence of PW4 in trial within trial it is crystal clear that the 1st Appellant to the knowledge of the PW4 knows and understands English Language. One wonders why PW4 could not allow the Appellant to make his own statement instead of PW4 making the statement and asked the 1st Appellant to sign, this goes to support the evidence of the 1st Appellant that the statement was recorded by the PW4 who asked him to sign.”
From the above, it is a wholly retraction or a denial of the confessional statement by the 1st Appellant. In that kind of situation, the law is that the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial Judge is entitled to admit the confession in evidence as something which had occurred in the course of investigation conducted by the police into the case, and thereafter to decide or find a matter of fact at the conclusion of the case as to whether or not in all circumstances, the accused person did make the statement as alleged by the police. See Godwin Ikpasa V. Bendel State (Supra). The confessional statement of the 1st Appellant was admissible in view of the law stated above, and was rightly so admitted as an Exhibit by the learned trial Judge.
Let me mention here that, the situation in the instant appeal is that, 1st Appellant denies the body of the confessional statement and also alleges that although he signed the statement, the signature was not voluntary, it was obtained by an inducement threat or promise, that is questioning the whole voluntariness of the whole statement, the trial within a trial as was conducted by the learned trial Judge in this appeal, was no longer necessary. The entire exercise had amounted to a mere surplusage. It is right to admit straight as he did the confessional statement of the 1st Appellant, without the labour of conducting a trial within a trial. See Uche Obidiozo & Ors V. The State (Supra).
After admitting the confessional statement of the 1st Appellant as was rightly done by the learned trial Judge, the next step for him is to decide or find a matter of fact at the conclusion of the case as to whether or not in all circumstances the accused person did make the confessional statement so admitted. This brings us to the aspect of the doctrine of recent possession, and the identification of the 1st Appellant by both the PW1 and PW3, as being part of the robbers that invaded their house on the fateful date.
On the doctrine of recent possession, the facts relied by the prosecution was the evidence of PW4 Sgt Ola Jonathan. PW4 stated that before the date of the incidence, he received a report from an informant that some boys came to him and approached him whether he would like to buy some electronics. “He told me that he had suspected them to be robbers. I arranged with him that he should go back to them and arrange with them to fix a date when they would bring the robbed items. He later came and told me to come with him on the 5/1/98. On the 5/1/98 I went to the road leading to his area as early as 4:00am to lay ambush. Around 5.00am on that day, I saw the two accused persons along with a third person now at large carrying one video machine and one video recorder. Those are Exhibits ‘A’ and ‘B’. The informant was with me. When the accused entered his house, we followed them. I managed to arrest one of them, and my colleague arrested the other and the third managed to escape. I caught them red handed with Exhibits ‘A’ and ‘B’.” On getting to the station PW1 and PW3 had reported the case of robbery in their house on the same early hours of 5/1/98. They reported amongst items stolen Exhibits ‘A’ & ‘B’. When Exhibits ‘A’ & ‘B’ was shown to them they identified them as their robbed items. The incidence happened in the early hours of 5/1/98. Around 5.00am of the same 5/1/98 the Appellant and the 2nd accused person were arrested with Exhibits ‘A’ and ‘B’.
Recent possession is covered by Section 149 (a) of the Evidence Act 2004 (as amended).
“149. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events human conduct and public and private business in their relation to the facts of the particular case, and in particular the court may presume:-
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he con account for his possession.”
The provisions in Section 148 (a) of the Evidence Act Cap 62 Laws of the Federation 1958 and Section 149 of the 1990 Laws of the Federation, the wordings remain the same. It is the section number that has changed. Since there is no change in the wordings the law remains the same.
One of the cases involving the doctrine of recent possession that came up before the Supreme Court is the case of Everest Eze V. The State (1985) 12 SC 4. Oputa JSC (as he then was) had this to say at pages 17 – 18.
“The above Section 148 (a) (now Section 149 (a) of the Evidence Law is thus the Nigerian equivalent of the English doctrine of recent possession of stolen goods. For the doctrine to operate there ought to be evidence.
(1) That the accused (here the Appellant) was found in possession of some goods,
(2) That those goods were recently stolen.
(3) That the Appellant failed to account for his possession.”
The expression “soon after the theft” – (in other words how soon will possession be to lead to the inference that the possessor was the thief and not merely the receiver with guilty knowledge will naturally depend on the goods and the facility and ease with which that type of goods can pass from hand to hand. See R.V. Palmer Iyakwe (1944) 10 WACA 180; Kwaishie V. The King (1950) 13 WACA 86.
In Everest Eze V. The State (Supra) His Lordship Oputa JSC (as he then was) at pages 19 – 20 added.
“The presumption of ‘recent possession’ as contained in section 148 (a) of the Evidence Act is not a presumption of law but a presumption of fact. If it were a presumption of law (presumption is juris et dey fure) it will be on absolute inference established by law and therefore irrebuttable. But being a presumption of fact, it is inclusion and rebuttable…”
In the instant appeal, facts have it that the Appellant and 2nd accused person were caught with Exhibits ‘A’ and ‘B’ on the same day 5/1/98 at about 5.00am. The robbery which resulted in the removal of Exhibits ‘A’ and ‘B’ occurred on the same 5/1/98 at about 1.30am. The requirement of the law on the soon after theft is therefore met. The Appellant and the 2nd Accused person failed in their defense to account for their possession of Exhibits ‘A’ and ‘B’. The only logical inference therefore is that Appellant and 2nd Accused person were amongst those who robbed the house of PW1 and PW3 on the 5/1/98. The evidence is positive, direct and unequivocal, the provision of Section 149 (a) of the Evidence Act is even a surplus to them. See Ukorah V. The State (1977) 4 SC 167; Sunday Madagwa V. The State (1988) 5 NWLR (Pt. 92) 60 at Pp. 84 and 89; Nwachukwu V. The State (1985) 3 NWLR (Pt. 11) 218; Mufutau Aremu & Anor V. The State (1991) 7 SCNJ 290; Monday Udoh & Anor V. The State (1993) 5 NWLR (Pt 295) 556 at 568.
Finally therefore the learned trial Judge was right in his application of provisions of Section 149 (a) of the Evidence Act in convicting the Appellant of the offence of robbery.
On the third aspect, that is, the identification of the Appellant and the 2nd accused, as the robbers of 5/1/98 by the PW1 and PW3. The resolution against the Appellant of recent possession has overwhelmed that done by this court.
This court despite this, may still examine in a short distance, the circumstance of this case, which led to the present appeal. The house of one Raphael Aggi (now deceased) was invaded by armed robbers. PW1 who first saw with the force used and gunshots to enter their house raised an alarm. As a result of this alarm she raised, the accused person came unto her and poured acid on her face. As she laid down to wash off her face of the effect of the acid, the accused person who had already removed her late father’s video machine and video recorder Exhibits ‘A’ and ‘B’ crossed over her chartering away those items. She and members of the family reported the incidence to the police. On the same dry, based on a tip up, the Appellant and the two others were caught red-handed in possession of those stolen items reported trying to dispose of them. The Appellant and the 2nd accused person were arrested with those items and brought to the police station. When invited back to the police station, the PW1, PW3, not only identified Exhibits ‘A’ and ‘B’ as part of the items that were carttered away by the robbers in their house, but identified the Appellant and the 2nd accused person as the robbers.
The law is that, it is not in all criminal cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incidence a formal identification may be unnecessary. Furthermore, where an accused person by the 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, etc. If there is no dispute about the identity and identification of an accused person by a witness, there will be no reason why his evidence alone if believed cannot ground or sustain a conviction. It is erroneous in law to impugn the identification of a suspect by a witness merely because the witness does not know the names of the suspect. Although knowing the suspect’s name will strengthen the credibility of such testimony. See:- Chukwu V. The State (1997) 7 NWLR (pt. 463) 686; Khalete v. The State (1997) 8 NWLR (Pt. 516) 237; Eyisi V. State (2000) 15 NWLR (Pt. 691) 555; Okosi V. State (1989) 1 NWLR (Pt. 100) 642; Alonge V. I.G. P. (1959) SCNLR 156; Onafowokan V. State (1987) 8 NWLR (Pt. 61) 538; Oti V. State (1993) 4 NWLR (pt. 290) 675; Adamu V. State (1991) 4 NWLR (Pt. 187) 530; Ikemson V. State (1989) 3 NWLR (Pt. 110) 455; Ugwumbe V. State (1993) 5 NWLR (Pt. 296) 660; Anyawu V. State (1986) 5 NWLR (Pt. 43) 612; Ukorah V. State (1977) 4 SC 167.
In the circumstances of this case, the evidence against the Appellant was quite overwhelming, which made the issue of identification parade as argued by the Appellant in this appeal, quite unnecessary.
In the final analysis, having resolved the two (2) issues in this appeal which were determined together, the appeal is unmeritorious, and it is hereby dismissed by this court.
The Judgment of Hon. Justice M.I. Edokpayi (as he then was) in Charge No. B/48c/2000 delivered on the 26th of September 2005, at Benin City, in the Benin Judicial Division of Edo State Nigeria, against the Appellant is hereby affirmed by this court.
AYOBODE OLUJIMI LOKULO-SODIPE J.C.A: I h.ave had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s reasoning and conclusions.
I agree that the appeal is unmeritorious and it is hereby dismissed. Accordingly, I too, affirm the judgment delivered on 26/9/2005 by the lower court.
TOM SHAIBU YAKUBU, J.C.A: I had the privilege of having read the draft of the judgment, just delivered by my learned brother, SIDI D. BAGE, JCA.
I am in total agreement with the meticulous and analytical consideration of all the issues thrown up by the appeal and their resolutions by my Lord. I have nothing more useful to add to it.
I, too found no merit in the appeal and the same stands dismissed.
Appearances
EMMANUEL ACHUKWU with him JIDE OKONGWUFor Appellant
AND
P.E. AZIEGBEMHIN DDPA Ministry of Justice, Edo State with MISS I.O. OKUNGBOWAFor Respondent
