USEN OKON EKANEM V. THE STATE (2012)

USEN OKON EKANEM V. THE STATE

(2012)LCN/5812(CA)

In The Court of Appeal of Nigeria

On Monday, the 9th day of July, 2012

CA/C/205C/2010

RATIO

CRIMINAL LAW: MEANING OF AN IDENTIFICATION PARADE

An identification parade is a police procedure in which suspects and other physically similar persons are shown to the victim(s) or a witness(s) to determine whether the suspect(s) can be identified as the perpetrator of the crime. In Ikemson V. The State (1989) 3 NWLR (Pt. 110) 455 Karibi-Whyte, JSC set out at page 472 paragraphs “F”-“H” to page 473 paragraph “A-C” what to look for at an identification parade to wit:

“I agree with the submission of Counsel to the respondent that an identification parade is only essential in the situations enunciated in R. V. Turnbull & Ors. (1976) 3 All E.R. 549 at p.551. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstances he might not have had full opportunity of observing the features of the accused. In such a situation a proper identification will take into consideration the description of the accused given to the police shortly after the commission of the offence, the opportunity the victim had for observing the accused, and what features of the accused noted by the victim and communicated to the Police marks him out from other persons. PER JOSEPH TINE TUR, J.C.A.

CRIMINAL LAW: ON WHOM LIES THE BURDEN TO INVESTIGATE ALIBI RAISED

The law does not require an accused person to prove his alibi, rather the onus is on the prosecution to disprove the alibi. Consequently, once there is the slightest defence of Alibi the plea must be investigated. Failure of the prosecution, therefore, to investigate the alibi raised, is fatal to the prosecution’s case, Sowemimo v. State (2004) 11 NWLR pt 885 page 515, Aiguoreghian v. State (2004) 3 NWLR pt 860 page 367, Nsofer v. State (2002) 10 NWLR pt 775 page 274. PER UZO I. NDUKWE-ANYANWU, J.C.A.

CRIMINAL LAW: WHETHER AN ACCUSED WHO RAISES THE DEFENCE OF ALIBI CAN STILL BE CONVICTED

EVIDENCE: BURDEN OF PROOF IN CRIMINAL CASES

In all criminal cases, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt and it never shifts. Igabele v. State (2006) 6 NWLR pt 975 page 100. PER UZO I. NDUKWE-ANYANWU, J.C.A.

Before Their Lordships

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria

Between

USEN OKON EKANEMAppellant(s)

AND

THE STATERespondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): On the 4th day of May, 1999 the Honourable Attorney-General and Commissioner of Justice, Akwa Ibom State arraigned Usen Okon Ekanem (appellant) and Eteyen Okon Offiong before the Robbery and Firearms Special Tribunal sitting at Ikot Ekpene on two counts of armed robbery.
The arraignment under count one was under section 1(2)(a) and count two under Section 2(1) of the Robbery and Firearms (Special provisions) Act No.5 of 1984 Laws of the Federation of Nigeria, 1990.
In count one the prosecution alleged that on 16th day of October, 1994 the suspects, armed with offensive weapons to wit, a locally made pistol, entered into the house of one Ekan Okon Ekanga (Pw1) at No.150 Inyang Utono Street, Ibiaku Offot Uyo, in Uyo Judicial Division and robbed him, carting away the following items (i) Video machine and video cassettes valued at N60, 000.00 (ii) Car radio and equalizer valued at N51,000.00 (iii) clothing valued at N10,000.00 (iv) shoes valued at N1,000.00 (v) N2,500.00. The total value of the items stolen was put at Seventy-eight thousand, five hundred and sixty Naira (N78, 560.00). In count two it was alleged that on the same 16th day of October, 1994 at use, Offot village, Uyo in Uyo Judicial Division while so armed attempted robbing Mrs. Affiong Akpan (pw2) contrary to Section 2(1) of the Robbery and Firearms (special provisions) Act, 1990.
The prosecution called three witnesses. The suspects testified without calling witnesses. Each pleaded alibi. At the end of the trial learned Counsel submitted written addresses. The learned trial Judge considered the addresses before arriving at the following decision on 28th day of May, 1999 to wit:
“From the totality of the evidence before me, the accused persons are not guilty of an attempted robbery as contained in count 2 on the information. I therefore acquit and discharge them on that count I find the 1st and 2nd accused persons guilty of armed robbery contrary to section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federal Republic of Nigeria, 1990. They are hereby convicted accordingly.”
After allocutus the two suspects were each sentenced to suffer death in a manner to be determined by the Military Administrator or Governor of Akwa Ibom State.
Being aggrieved with the conviction and sentence Usen Okon Ekanem (1st accused) filed a Notice of Appeal on 7th May, 2010 challenging the judgment on four grounds. There is no evidence that Eteyen Okon Effiong (2nd accused) appealed against the decision of the learned trial Judge. A brief of argument was filed on behalf of the appellant on 8th December, 2011. Respondent’s brief was filed on 6th March, 2012 with a deeming order on 23rd April, 2012. Upon being served, the learned Counsel to the appellant filed a Reply Brief on 7th May, 2012. All the briefs were adopted by Counsel when the appeal came up for hearing on 12th June, 2012.
ISSUES FOR DETERMINATION
The appellant’s learned counsel set out the following issues for determination in the Brief of Argument:
“1. Whether the Tribunal below was not wrong in rejecting the defence of alibi raised by the Appellant even when same was not investigated? (Distilled from ground 1).
2. Whether the trial Tribunal was not wrong in holding that the onus was on the Appellant to tender statements made to the police by a victim of the alleged crime? (Distilled from ground 2).
3. Whether the Tribunal below was right in holding that the accused person was positively identified as one of the robbers having regard to the irregularities that attended the identification parade? (Distilled from ground 3).”
The following issues were submitted for determination by the Respondent’s learned Counsel:
“1. Whether the Tribunal below was wrong in rejecting the defence of alibi raised by the Appellant.
2. Whether or not the prosecution is bound to call all witnesses to establish its case.
3. Whether having regard to the evidence in this case, the tribunal was right in holding that the accused persons were positively identified as the robbers.”
Before attempting to answer the questions set down for determination it is pertinent to know that the questions for determination must arise from the grounds of appeal; the grounds of appeal must arise from the facts presented at the trial coupled with the judgment of the trial Judge. In that wise I shall have to capitulate the facts that led to the arrest, trial, conviction and sentence of the appellant to death.
The evidence of Pw1 (Ekon Okon Nkanga) of No.150, Inyang Utono Street, Ibiaku Offot, Uyo is that on 16th October, 1994 at about 1:45 a.m. he heard water coming out of the tap. He called his house maid and opened the door for her to go and lock the tap only to see the second accused (Eteyen Okon Effiong) and one other man at, his door post. The 1st accused (Usen Okon Ekanem) held a gun and demanded to see the owner of the house. Pw1 identified himself as the owner of the house. Then they marched him inside the house where they informed him that someone had sent them. On getting into the house Pw1 put on halogen lamp which was brighter than their torchlight. Pw1 saw the accused persons since they were not masked. The accuseds pushed Pw1 into the room and ordered him to face the ground. When he refused they ordered him into the toilet, the 1st accused pointing a gun at him. While in the toilet the robbers went away with Pw1’s property set out in count one. Pw1’s testimony was that his wife had gone to be with her mother because she had delivered. The culprits raped his house maid. They locked the toilet door and left. Upon their leaving pw1 raised an alarm and the villagers came out in search of the robbers. While searching for them Pw1 heard another alarm from the neighbouring village of Use Offot. The robbers had been apprehended at Use Offot. The villagers sent for Pw1 who went and was able to identify them. At Use Offot Pw1 saw and identified his wife’s gold bangle on the hand of the 2nd accused. Thereafter the villagers sent for the police who came and took them to the police station at Ewet Housing Estate, Uyo.
The case was transferred to the police Headquarters, Ikot Akpan Abia. At State CID, an identification parade was conducted. Out of about nine persons, Pw1 was able to identify the two accused persons. The police took his wife’s gold bangle from the accused persons but Pw1 did not see the other stolen items.
Pw1 admitted during cross-examination he never knew the accused persons before the date of the incident. He could not tell if at the time the house maid was raped the robbers were masked. At this stage learned Counsel for the defense applied and put in the extra-judicial statement of Pw1 of 16th October, 1994. The learned trial Judge marked same as Exhibit “A”. Confronted with Exhibit “A” during cross-examination Pw1 testified thus:
“The date on Exhibit “A” is 16th October, 1994. I cannot find where I told the police in my statement that I went to use to identify the accused persons. I cannot also find where I told the police that I identified my wife’s bangle with the 2nd accused person. I cannot find in exhibit “A” where I stated that, the robbers were not masked. It is not in Exhibit “A” that, as the robbers marched me into the house; I put on my halogen lamp.”
Thereafter the initial charge was substituted. Upon substitution Pw1 was recalled and he testified as follows:
“My names are Ekon Okon Nkanga. I testified on 29th April, 1999. On that day, I saw my wife’s gold bangle with the 2nd accused. I have seen the said gold bangle. It is the one saw with the 2nd accused.”
The gold bangle was put in and marked Exhibit “1D”. Dr (Mrs.) Affiong Akpan who lived at Use Offot, Uyo testified that on the 16th day of October, 1994 at about 3:00 a.m. she heard gun shot outside her house and a voice commanding her husband to open the door. When the late husband who died in 1995 inquired, one of the robbers answered that they wanted to kill him. Pw2 then opened the window screaming for help. Soon after that the robbers broke the front door, came into the room, and switched on the light. As Pw2 heard their footsteps she shouted. The robbers broke the louver blades and gained entrance into her husband’s room. While standing there Pw2 saw that there were three robbers. One held a gun, another, a matchet and the third a sword. They attacked Pw2’s husband. One stabbed him on the head and shoulder near the neck and also cut one of his fingers. On seeing this, Pw2 fell on her husband to shield him. In the process one of the robbers gave her a cut on the head. Pw2 screamed. The robbers did not ask her for anything; neither did they take anything from her house. The villagers responded to the shouts from pw2’s compound.
Pw2’s evidence is that the village of Ibiaku Offot from where Pw1 hails and Use village where she comes from share a common boundary. That where pw1 and pw2 live is not far; it is a walking distance. Pw2 further testified as follows:
“By the time we returned the accused persons were caught by the villagers. I now say that we were told that the villagers had caught the accused persons. The police later visited our house and invited us to the Police Headquarters, Ikot Akpan Abia. An identification parade was conducted and I was able to identify the 1st accused person. I was able to identify the 1st accused person from the many suspects on parade because on the night of the incident, I saw him through the electric light that was on. They were not masked.”
Cross-examined by defence Counsel, Pw2 denied knowing pw1 and 1st accused before the date of the incident. That upon her return from the Medical centre where she had taken her wounded husband her servant by name Anwanabasi Ananaenyin informed her, the robbers had been caught. She denied seeing any of the robbers with torchlight on the night of the armed robbery. That she knew the name of the appellant only on the day of the incident.
Pw3 (Owor Ekpeni) was the second Police Investigating officer. He admitted taking over investigation from Corporal Alexander Elekwa on 18th October, 1994. Through him the prosecutor tendered the gold bangle (Exhibit “B”); Mobile Police trouser allegedly found with the appellant (Exhibit “C”); Wall clock (Exhibit “D”); measuring tape (Exhibit “E”); ring (Exhibit “F”); sharp radio (Exhibit “G”); Pw3 testified that apart from the gold bangle which Pw1 identified, no other person came to identify other items tendered at the trial. When Pw3 visited Pw1’s house the house girl showed him the position she was when the accused persons raped her. From there Pw3 proceeded to Pw2’s house where he recovered items tendered at the trial as follows: broken pieces of louver blades (Exhibit “H”); pieces of damaged door (Exhibit “J”); damaged door bolts (Exhibit “K”, “K1” and “K2”. Pw3 gave evidence that the houses of Pw1 and Pw2 were not close as they live in different villages. But it was possible for operations to be carried out in the two houses within a short interval of the other. The prosecution then tendered the Statement of the 1st accused (Exhibit “L”); the 2nd accused (Exhibit “M”) which Corporal Alexander Elekwa had recorded. Pw3 next tendered the Statement he recorded from the 1st accused (Exhibit “N”) and 2nd accused (Exhibit “O”) when he took over from Corporal Alexander Elekwa. Pw3 testified that he was informed by the first Investigating Police Officer that it was the villagers at Use Offot that caught the accused persons and brought them to the Police Station. But those who arrested them refused to come to Court to testify for fear of being harmed by the accused persons. However, on the intervention of the village head at Use Offot some later came to make statements. Pw3’s evidence was that the 2nd accused took them to three places he claimed he was residing but in each place the residents would drive them away that they did not know him. Even the woman at Mbak Etoi the 2nd accused claimed was his relation denied him. Finally, 2nd accused claimed that on the night of the robbery he had put up with the appellants.
Pw3 gave evidence that it was ASP Christian Udensi that conducted the identification parade; he was not part of the team. That Pw1, pw2 and the housemaid that was raped identified the accused persons. After the parade Pw3 again recorded the statements of the 1st accused on 9th November, 1994 (Exhibit “I” and the 2nd accused on 16th November, 1994 (Exhibit “Q”). The forms used at the identification parade by ASP Christian Udensi where put in and marked Exhibit “R”, “R1” and “R2” respectively. The interim report made by the first investigation Police Officer was marked Exhibit “S”. Pw3 testified that in the course of investigation he found out that it was the same gang that robbed Pw1 and Pw2 that night. That the accused persons admitted they were properly identified by Pw1 and Pw2. Under cross-examination Pw3 admitted recording a statement from Mfon Johnson Obong the housemaid of Pw1 that was raped. According to Pw3 the housemaid told him that the robbers that operated that night in the house of Pw1 wore masks. During investigation the wife of the 1st accused confirmed that 2nd accused squatted with the 1st accused that night. That the two accused and the wife of 1st accused all slept together in the same house that night though he was not satisfied. The prosecution closed her case.
The appellant testified as Dw1. He admitted knowing the second accused in Cameroon when he was trading there. That they were friends. One day he met the 2nd accused along Oron Road in Uyo and persuaded him to spend a night with him which he did. This was on 15th October, 1994. The 2nd accused slept in the room where the 1st accused used to sell food with his children. Dw1 slept in another room with his wife. Dw1 said he did not know why he was in court: because he never went out that night to commit any offence. He only heard of the robbery incident at the police station.
According to Dw1 one Christopher, a neighbour of his told him that whenever he went on a business trip his wife used to go prostituting with a palm wine taper by name Asuquo Ekerete. As a result Dw1 quarreled with his wife out of ignorance. When he discovered the falsity of the allegation he warned Christopher to desist as he wanted to spoil his business. Dw1 quarreled with Christopher who vowed that he will not see the Christmas of 1994 as he will incriminate him. That night Christopher led pw1 and about thirty people who came with sticks and matchets to ransack his house. They threw his radio on the ground which was tendered as an exhibit in the Court. They beat him and later took him to the police station where for the first time he saw Pw2. On that day they were taken out for identification parade. When the police took him to his house, nothing was recovered.
Eteyen Okon Effiong testified as Dw2 to the effect it was at the police station that he first knew Pw1. He knew Pw2 only at the Tribunal. He admitted knowing Dw1 in Cameroon. He eventually met Dw1 at Uyo along Oron Road. He spent a night with Dw1 only to hear a bang in the morning. Dw1 and the wife were arrested. In sympathy he went to enquire from the neighbours what was responsible for their arrest only to be also arrested and beaten. Those who arrested him sent for the police who took him to their station. Dw2 met Dw1 who told him he did not know the reason of his arrest. Dw2 further told the police that he had slept in his house the night of the robbery. Dw2 denied that he was seen with the gold bangle (Exhibit “B”). Indeed, nothing incriminating was recovered from him by the police upon a search conducted in the house. That the police lined them up and asked Pw1 to identify them. Because Pw1 was in the police van he took that opportunity to recognize him. Pw2 who was not in the police van could not identify him during the identification parade.
The defence closed her case.
From the evidence adduced before the tribunal it became crystal clear that the prosecution did not call any of the villagers at Use Offot who allegedly arrested the accused persons that night to testify. Thus pw1 and pw2’s evidence that the accuseds were arrested at Use Offot was based on hear say. Anwanabasi Ananaenyin who informed Pw2 that the accused persons were arrested that night at Use Offot was not called to testify. Mfon Johnson Obong the house girl to Pw1 whom the robbers raped was not called to testify. While Pw1 and Pw2 testified that the robbers were not masked, Pw3 testified that Mfon Johnson Obong told him they were masked. The impression created by Pw1 in his testimony was as if two robbers entered his house and had torchlight but Pw2 said there were three; that they had torch light.
ASP Christian Udensi who conducted the identification parade where Pw1 and Pw2 identified the accuseds was not called to testify as to how the identification parade was conducted. Throughout the evidence of Pw1 and pw2 they did not show by what evidence they were able to identify the accused persons as those that robbed them that night, example through tribal marks, the shirts or clothes they wore that night, etc. Corporal Alexander Elekwa who was first to investigate the alleged crime did not testify though Pw3 told the Tribunal he was on transfer to Imo State. Pw1 did not show how he was able to identify the gold bangle as belonging to his wife. The wife was not called to testify that truly the gold bangle (Exhibit “B”) belonged to her. Pw3 admitted that apart from the gold bangle, no body identified exhibits as belonging to them. Indeed, Pw1 admitted he never wrote in his statement to the police (Exhibit “A”) that he was able to recognize the gold bangle as belonging to his wife, nor that the robbers were not masked. Pw1’s evidence in Court was a bundle of contradiction with his extra-judicial statement (Exhibit “A’).
The fact is that the accused persons were not arrested in the house of Pw1 or Pw2 nor at Use Offot village. The pw1 and pw2’s evidence is hearsay. The evidence of the accuseds who pleaded alibi was never disparaged under cross-examination. The evidence by Dw2 that he slept in the house of Dw1 and the wife confirmed this came from Pw3 to affirm the Plea of alibi.
In view of the quality of evidence adduced at the trial can it be said that the prosecution proved her case against the appellant beyond reasonable doubt? I do not think so.
As rightly submitted by learned Counsel to the appellant on issue three, there was no evidence to dislodge the appellant’s plea of alibi. In Patrick Njovens & Ors. V. The State (1973) NNLR 76 at 95 Coker, JSC held that:
“…There is nothing extra-ordinarily or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished. The Supreme Court had had the occasion to consider this point in Hemyo Atam & Anor v. The State, SC 632/66 decided on the 11th January, 1967 and had observed on this point as follows:
“Each of the appellants made a statement under caution after his arrest, setting up an alibi. The police officer who took the statements was asked whether he had done anything to check their truth and said that he had not and it was submitted that for this reason justice had been denied to the appellants and there should at least nave been a reasonable doubt as to their guilt. There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution but in a case such as this where the appellant were identified by three eye-witnesses there was a straight issue of credibility and we are not able to say that the judge’s findings of fact were unreasonable or cannot be supported having regard to the evidence. If the alibis had been true it would have been open to the appellants to call witnesses in support of them and neither of them did so.”
There is no evidence that Pw1 went to Use Offot that night to identify the accused persons. Neither did pw2 do so. How was the identification parade conducted to enable pw1 and pw2 to identify the accused persons? How were they able to identify them? There was no evidence. An identification parade is a police procedure in which suspects and other physically similar persons are shown to the victim(s) or a witness(s) to determine whether the suspect(s) can be identified as the perpetrator of the crime. In Ikemson V. The State (1989) 3 NWLR (Pt. 110) 455 Karibi-Whyte, JSC set out at page 472 paragraphs “F”-“H” to page 473 paragraph “A-C” what to look for at an identification parade to wit:
“I agree with the submission of Counsel to the respondent that an identification parade is only essential in the situations enunciated in R. V. Turnbull & Ors. (1976) 3 All E.R. 549 at p.551. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstances he might not have had full opportunity of observing the features of the accused. In such a situation a proper identification will take into consideration the description of the accused given to the police shortly after the commission of the offence, the opportunity the victim had for observing the accused, and what features of the accused noted by the victim and communicated to the Police marks him out from other persons.
In the instant case, Pw1 had described the special features of the 1st appellant, as fair in complexion and wearing a beard. He was quite close to him during the encounter. It was with no difficulty he recognized him when 1st appellant was arrested and brought following information by the third appellant.
The 2nd accused was arrested on the information offered to the police by the 3rd accused/2nd appellant, 2nd appellant had confessed taking part in the commission of the crime. 4th Accused/3rd appellant was seen by pw3 driving the vehicle stolen from the Pw1 and Pw2 on the same day and only less than two hours after the offence was committed. 4th accused/3rd appellant was apprehended when he abandoned the vehicle and was trying to run away. It was the 4th accused/3rd appellant who gave the name of the 1st appellant as one of those who took part in the crime. The confession of the 3rd appellant which was repudiated at the trial is clearly in conflict with the alibi raised for the first time at the trial it has always been held that where the statement of an accused made before the trial is inconsistent with his testimony at the trial the Court should reject both as unreliable – R V. Ukpong (1961) 1 All NLR 25. This is however not the same with the evidence obtained through confession. The evidence relating to the identity of the appellants as those who took part in the robbery remains admissible.”
Again in Alabi V. The State (1993) 7 NWLR {Pt.307} 511 Onu, JSC held at page 524 that:
“…the proper and only valid procedure by which the prosecution could have proved by the identity of the appellant and its case beyond reasonable doubt was to prove that an identification parade was conducted in the proper way as a result of which Pw1 identified the appellant. See Madagwa v. The State (1988) 5 NWLR (Pt.92) 60 SC where an identification parade properly held and accepted by the trial Court and approved on appeal by the Court of Appeal, was upheld as validly carried out by this Court amongst other circumstances considered, in dismissing the appellants’ appeal. The circumstances that warranted an identification parade may therefore be deciphered inter alia as follows:
“1. The appellant was not arrested at the scene of crime.
2. The fact that by the time of the attack by the armed robbers it was already dark or near so although evidence adduced through Pw1 showed that the gates at which his car stopped was lit by lights.
3. The discrepancy between what pw1 said in his evidence in chief at page 46, lines 11-17 of the record to the effect that…”
Pw1’s evidence is that the armed robbery occurred in His house on 16th October, 1994 “at about 2am” (Exhibit “A”). In his oral testimony it was “about 1.45am”. Pw2 testified that the robbery occurred in her house on 16th October, 1994 “at about 3.am”. Definitely, this was in the night. Whether the armed robbers were not masked according to Pw1 and pw2 is contradicted by what Mfon Johnson told Pw3, namely, that they were masked. Pw1 and Pw2 admitted that prior to this incident they had not known the accused persons. All these called for a proper identification parade to determine whether the two accused persons actually robbed Pw1 and Pw2 on the night of 16th October, 1994. In Alabi v. The State supra Onu, JSC held at page 525 paragraph “B-C” thus:
“The logical corollary of the foregoing propositions is that the prosecution, in my view, should have established that a proper identification was a sine quo non, namely that by holding a proper identification parade wherein pw1 should be made to identify in unmistakable terms the appellant, who after all in the circumstances of this case, was to him a complete stranger. By the police bringing the appellant and the deceased into the police station together with pw1 at the same time as Pw3 admitted under cross-examination, any purported identification of the appellant thereafter by pw1 was a mere sham or a mockery of identification to bolster some non-existent administrative requirements in the investigation of the crime. Hence, the testimony of pw1 at page 47, lines 20-30 to the effect that:
“There was an identification parade, at where I identified the 1st and 2nd accused (the appellant) amongst the men on the line. I confirmed to the Police 1st and 2nd accused (the appellant) were those who robbed me and seriously attacked me.”
In my opinion, failed woefully even to prove the case on the balance of probabilities, let alone that of beyond reasonable doubt. Failure on the part of the appellant to cross-examine pw1, the latter’s evidence which it is submitted went unchallenged, would not in my judgment still relieve the prosecution from proving beyond reasonable doubt his (appellant’s) participation in the commission of the crime.
What then are the considerations that govern a proper identification, one may ask? The answer may be derived from the principles enunciated in Ikemson V. State (supra), quoted in extenso above which would include inter alia:
“(a) The description of the accused given to the police shortly after the commission of the offence;
(b) The opportunity the victim had for observing the accused; and
(c) What features of the accused noted by the victim and communicated to the police marks him out from other persons.”
In my humble view the conviction of the accused persons based on a sham identification parade meant the prosecution did not prove beyond reasonable doubt the guilt of the appellant. In Idahosa & ors. v. The State (1965) NMLR 85 at 88 Pw3 identified the 2nd accused person as “a tall man” and the 3rd accused as “a man with a fat belly.” The Supreme Court held that this was hardly a satisfactory identification parade. The learned trial Judge took into account the gold bangle allegedly found on the 2nd accused as sufficient evidence to convict and sentence him to death. His lordship held as follows:
“On the gold bangle, Exhibit “B”, the pw1 said he was able to identify it with the 2nd accused person as the property or one of his wife’s property stolen by the robbers. The 2nd accused person who stated in his statement, Exhibit “M” made on the 16th October, 1994, that is, on the date the pw1 alleged his wife’s bangle was stolen, that he bought the said bangle from a Hausa man turned around in his evidence before this Tribunal that he knew nothing about the gold bangle. Since the 2nd accused person cannot satisfactorily state how he came by the gold bangle, I hold that the gold bangle was the one stolen from the Pw1’s house….”
I think his Lordship is palpably wrong in coming to this conclusion, what evidence did the pw1 adduce to prove that the bangle belonged to his wife? For instance, was the wife’s name on it? Was there any special mark by which it could be said the gold bangle belonged to pw1’s wife?
Gold bangles are common items that can be purchased from the markets or any Hausa man or trader just like turkeys, poultry etc. Their ownership must be proved beyond reasonable doubt, see Ogunsola v. The State (1979) 2 LRN 300.
On the whole I am of the humble view that there is not an iota of evidence adduced by the prosecution to have warranted the conviction and sentence of the accused persons to death. The appeal of the appellant succeeds. He is discharged and acquitted.
Eteyon Okon Effiong (2nd accused) did not appeal against his conviction and sentence to death. However, as there is no credible evidence for the Tribunal to have convicted and sentenced him to death I make bold to hold that the convict has a right to life under section 33(1) of the constitution of the Federal Republic of Nigeria, 1999. Accordingly, I recommend that His Excellency the Governor of Akwa Ibom State do invoke his executive powers under section 212(1)(a) of the constitution supra to grant Eteyen Okon Effiong free pardon as a matter of urgency, that the young man may once again enjoy and breath the air of freedom as a citizen of Nigeria. This judgment should be served on the Honourable Attorney-General and Commissioner for Justice, Akwa Ibom State.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with his reasoning and conclusion. However, where the identity of the accused person is in issue, the Court must closely examine the evidence. The PW1 and PW2 stated in their evidence that the accused persons were not masked that was how they could identify them. However, Mfon Johnson who was raped told PW3 that the robbers that raped her were masked. There is already doubt created by the evidence of the so called eyewitnesses.
Identification evidence is evidence tending to show that the person who committed the offence is the same person charged with the offence. Where a trial court is faced with identification evidence, it should satisfy itself that the evidence of identification establish the guilt of the accused beyond reasonable doubt. Where an identification evidence is however weak, the trial court should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification.
Ukpabi v. State (2004) 11 NWLR Pt 884 page 439, Archibong V. State (2004) 1 NWLR pt. 855 Page 488. The accused persons set up on alibi during the investigation of this crime. However the investigating Police Officer did not investigate it before the trial, so that, where appropriate, results of the investigation would be used to rebut the defence of Alibi. Christopher Okolo V. C.O.P. (1977) NNLR page 1.
The law does not require an accused person to prove his alibi, rather the onus is on the prosecution to disprove the alibi. Consequently, once there is the slightest defence of Alibi the plea must be investigated. Failure of the prosecution, therefore, to investigate the alibi raised, is fatal to the prosecution’s case, Sowemimo v. State (2004) 11 NWLR pt 885 page 515, Aiguoreghian v. State (2004) 3 NWLR pt 860 page 367, Nsofer v. State (2002) 10 NWLR pt 775 page 274.

However, where an accused raises the defence of alibi and it is not investigated, he can still be convicted if there is a stranger and credible evidence before the Court. See Aiguoreghian v. State (supra), Nwosisi v. State (1976) 6 SC page 109.
The 2nd accused as DW2 gave in evidence that he slept in the house of the 1st accused DW 1. The wife of DW1 confirmed this. The accused persons raised a defence of alibi and offered evidence as to where they were and with whom, at the material time. Onyegbu v. State (1995) 4 NWLR pt 391 page 510, Ifejirika v. State (1999) 3 NWLR pt 593 page 59, Isiekwe v. State (1999) 9 NWLR pt 617 page 43, Eyisi V. The State (2000) 12 SC pt 1 page 24, Njiokwuemeni v. State (2001) 14 WRN page 96.
Having failed to investigate the defence of alibi raised it would be resolved in favour of the accused.
In all criminal cases, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt and it never shifts. Igabele v. State (2006) 6 NWLR pt 975 page 100.
In the instant case, the prosecution failed to establish the guilt of the accused persons beyond reasonable doubt. For this and the more robust reasoning of my learned brother, this appeal succeeds totally.
I abide by all the consequently orders contained in the lead judgment and adopt them as mine.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read in advance the judgment of my learned brother, Joseph Tine Tur, JCA just delivered. I agree with the reasoning and conclusion therein. I allow the appeal and abide by the consequential orders.

Appearances

Obong Iniabasi Udobong & Sifon Amoi (Mrs.)For Appellant

AND

Essien Udom & Samuel AkpabioFor Respondent