Raheem Ayinde V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant, and one other Accused Person, Kehinde Ajumobi, were tried and convicted by the Kwara State High Court for the offence of armed robbery. They allegedly robbed the occupants of a compound at Budo-Nuru Area, Ilorin, and dispossessed them of valuables, including money, phone, and wrist watch, while “armed with a gun, cutlass, broken bottle, and dangerous weapons”.

The Appellant, who was the second Accused, denied the allegation and put forward a defence of mistaken identity. He claimed that he went to see the first Accused in his house, which is in the same vicinity as the scene of crime, and while first Accused was seeing him off, they were accosted and attacked by two men, who accused them of being the robbers that operated that night. The trial Court, in its Judgment of 11/7/2012, rejected his defence and found him guilty. He was sentenced to 14 years’ imprisonment without option of fine.

Aggrieved, the Appellant appealed to the Court of Appeal, Ilorin Division.

But the Court of Appeal, in its Judgment delivered on

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19/12/2013, affirmed the trial Court’s decision, including the conviction and sentence imposed on him. The Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, which was later amended with the leave of this Court, and the said Amended Notice of Appeal contains seven Grounds of Appeal.

However, the Appellant appears to have abandoned Grounds 1 and 2 of the Grounds of Appeal since he formulated two issues for Determination in his Brief of Argument from Grounds 3 to 7 of the Grounds of Appeal only; that is –

1. Whether the Learned Justices of the Court of Appeal came to a justifiable conclusion in law and equity when their Lordships held that the Appellant was sufficiently identified as one of the armed robbers that committed the offence in issue and that the discrepancies between the Appellants Extra, Judicial Statement and his oral testimony in Court relate to substance and not form such that the Appellants defence of mistaken identity may be thrown away with a wave of hand. (Grounds 3, 4 and 7)
2. Whether the Learned Justices of the Court of Appeal were correct in law and equity when their Lordship held that the Learned Trial

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Judge did not place reliance on the statement (oral confession) that the Appellant purportedly made to PW8 in coming to the conclusion that the prosecution proved its case beyond reasonable doubt. (Grounds 5 and 6).

Having not formulated issues from Grounds 1 and 2 of the Grounds of Appeal, the said Grounds 1 and 2 serve no purpose in this Appeal; they are abandoned and are accordingly struck out – Ekunola V. CBN (2013) LPELR-20391 (SC).

The Respondent adopted the issues formulated, but I find them verbose, and contrary to the principle that such issues must not only be clear and terse “but most also be hard and to the point” – see A.G., Lagos State V. Sowande (1992) 8 NWLR (pt. 261) 589, wherein Tobi, JCA (as he then was) added that:

The language should not be bombastic, fluid and vague. (It) should not be loaded. Short simple sentences have a way of presenting the issues to an appellate Court better than long and tedious sentences of a rigmarole nature.

Be that as it may, issue 1 raises the questions of whether the Appellant was sufficiently identified as one of the Armed Robbers, and whether discrepancies between his

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testimony in Court and statement to the Police were substantial.

On the first leg – whether Appellant was identified as one of the robbers, the Court of Appeal reviewed the evidence of PW2, PW3, PW4, PW5, PW7 and PW8 vis–vis the findings of the trial Court, and concluded as follows.

The Appellant was duly identified by all the victims of the armed robbery, Pw2, Pw3 and Pw4, when the facts were fresh in their minds. Their testimonies were direct and admissible in evidence.

Another victim of a similar nefarious incidence on the previous night, PW7, also identified the Appellant and his accomplice (the 1st Accused) as the people who attacked her in her fish store. PW5, who assisted in arresting the Appellant and his accomplice and handed them over to the Police also identified both the Appellant and accomplice as being the Accused Persons arrested on the spot immediately after the armed robbery in his neighborhood. PW8, a Police officer, who went to the scene of the crime with three other Police Officers testified that he met PW2 in a pool of blood at the scene of the crime and the two Accused Persons, including the Appellant herein

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were already arrested by the community members, who also recovered the weapons used by the two hoodlums in perpetrating their nefariousness. When he asked the Appellant and his accomplice about their motive, they told him and he heard them say that they were there to commit robbery but luck ran against them. The learned trial Judge rightly identified the ingredients of the offence of robbery and found proved beyond reasonable doubt from the evidence adduced, that: –

(a) There was robbery.

(b) The two Accused Persons (including the Appellant herein) were armed with gun and cutlass at the time of the commission of the offence, and

(c) The two Accused persons (including the Appellant herein) committed the robbery.

I am unable to fault the appraisal of evidence and the findings of the learned trial Judge. The evidence against the Appellant was so overwhelming that rules out any reasonable doubt on the guilt of the Appellant and his cohort in the nefarious act of armed robbery.

The identity of the Appellant was well established by the evidence adduced at the trial beyond reasonable doubt.

On the issue of discrepancies between the Appellant’s

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testimony in Court and statement to the Police (Exhibits P5 & P6), the Court of Appeal observed that:

The learned trial Judge juxtaposed the extra-judicial Statement of the Appellant with his testimony in Court before coming to the conclusion that they are contradictory. It was further submitted for the Respondent that a careful perusal of the extra-judicial statement of the Appellant on the one hand and his oral testimony in Court on the other will no doubt lead to the following salient conclusions:

a. While in Exhibit P5, the Appellant gave the impression that he was not allowed into the house of the 1st Accused Person because according to him, the mother of the 1st Accused Person does not allow strangers into their house. But, in his evidence before the Court he affirmed on oath that he was in the 1st Accused’s House where he even greeted his (1st Accused’s) mother and sat down in their parlour.

b. Neither the Appellant nor his cohort called the mother of the 1st Accused as a witness despite her being in Court at every adjournment of the case throughout proceedings. In his testimony before the Court, the Appellant denied the usage of Exhibit P1-P3

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but in his Statement admitted (at) the trial Court he submissively admitted thus: –

“The bottle that was found with me, I did not bring it from house, I saw it where I was standing waiting for Kehinde, but when they Shouted thief, I quickly threw the bottle on the ground and ran, I did not know if Kehinde was with anything”.

This glaring conflict in the evidence adduced by the Appellant was so incongruous that justifies the lower Court’s refusal to rely on same – – – Furthermore, the defence of mistaken identity could only have arisen where the Appellant was not caught at the scene of crime or where he was identified much later after the incident. In this case, the Appellant was caught immediately after the crime was committed and at the vicinity of the scene of the crime— The fact and circumstances of this case have not indicated any probability of mistaken identity.

Thereafter, the Court of Appeal categorically held as follows on the said issue:

The learned trial Judge rightly merely rejected the Appellant’s defence of mistaken identity because of the contradictions in his oral testimony and his extra-judicial Statements. A careful perusal of

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the evidence led by the Prosecution not only fixed the Appellant at the vicinity of the scene of the crime but adequately unveil the role played by the Appellant and the other Accused Person in the commission of the crime.

The Appellant devoted 29 pages of his 39-page Brief of Argument on this issue, and the gist of his nitpicking is that the discrepancies between his Statement to the Police (Exhibits P5 and P6) and testimony in Court are not substantial; that failure to tender the alleged stolen items is fatal to the Prosecution’s case; and that he had not been properly identified as one of the said armed robbers.

He submitted that the central defence in Exhibits P5 and P6 is one of mistaken identity as he did not deny being in the vicinity of the scene of crime, but gave his reason for being there; that he was arrested at the scene of crime because the people searching for the said robbers took them to be the robbers; and that the lower Courts were carried away by the sheer number of Witnesses, who said they saw him and his purported partner in crime at the scene of crime, but a critical evaluation of the testimonies

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shows that they were not really sure.

He also contends that the two lower Courts failed to appreciate that the Prosecution’s failure to account for the items allegedly stolen is a corroboration of his story that he was a victim of mistaken identity. Citing Adelumola V. State (1988) 1 NWLR (PT. 73) 683, he argued that for the story of PW2 to “command and commend” belief, he ought to explain what happened to the stolen items; that though the Prosecution does not have to tender every item stolen but where it goes to credibility or otherwise of a robbery story, the items must be tendered or its whereabouts accounted for; and that these questions beg for answers:

1. What are the antecedent and subsequent facts of this case
2. What are the surrounding circumstances of this case

He submitted that the antecedent facts of this case are as follows –

i. some robbers came into the premises of PW2 and PW3;

ii. One of them stabbed PW2; PW2 said he stabbed him with a broken bone;

iii. PW2 said that he (the Appellant) took a wallet and 3 other items

iv. PW2, PW3 and PW4 said that he was arrested at the scene of crime.

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PW5 said that he met him (the Appellant) and his partner in crime already arrested by the neighbors.That the subsequent facts are –

i. At the point in which he was already arrested by the neighbours, the Police (i.e. PWA took him to the Police Station.

ii. At the Police Station, he told the Policemen that he was arrested while coming from the house of his purported partner in crime and he denied participating in any robbery. He made it very clear that his partner in crime lived within the neighbourhood where PW2 and PW3 were robbed.

iii. On 16/08/09, he volunteered that he was a victim of mistaken identity.He pointed out that the antecedent facts fixed him at the scene of the crime while the subsequent facts took him away from there, and he further submitted:

As at 16/08/09 that he volunteered Exhibit P6, he had not been tried by any Court of law. [He]was first taken to Court on 30/09/2010 while he testified on 30/04/2012 [He] was taken to Court a period of 1 year, 1 month and about 17 days after he had volunteered Exhibit P6 while he testified in a period of 2 years 8 months and about 17 days. When [he] volunteered Exhibit P6 to

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PW6 i.e. Augustina Onuke, it ought to be obvious to him [i.e. PW6] that [his] defence ought to be investigated.

He set out PW6’s testimony and submitted that the facts to be investigated are:

1. Did [his] purported partner in crime live in same neighbourhood with PW2 and PW3
2. Where precisely was [he] arrested and who were the people that arrested him
3. Since [he] said he did not steal anything as at 16/08/09 what happened to the items that were stolen from PW2, PW3 and PW4.

He further argued that the failure of the Police to investigate these facts as at when necessary led to the confusion that arose in this case; that the society is paying PW1 to conduct investigation and not to merely obtain statement; citing Maiyaki v. State (2008) 3 NWLR (PT 1075) 429, The Queen v. Obiasa & ors (1962) NSCC 412; that though PW1 said he was arrested “very far” from where the 1st Accused lived, “the duty to define how far the words “very far” signifies, lies with the Prosecution and not the defence”, but even then it is clear that his purported partner in crime lived in the same neighbourhood as PW2 and PW3; that he maintained the

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same defence at the trial and in Exhibit P6 that he was inadvertently arrested as the thief; and that he testified that at the hospital the said victim first denied that he was one of the robbers and he stopped there, but in Exhibit P6 he explained that the victim later came back to identify him.

As I said, the Appellant’s arguments on this issue covered 29 pages, and he had a lot more to say on the question of discrepancies. He disagreed with the findings of the lower Courts that they are enough to throw away the defence of mistaken identity, and citing Bozin V. State (1985) 2 NWLR (PT 8) 405 SC, he enumerated three factors that “pulls the wave of probabilities in [his] favour”.

He argued that the discrepancies do not go to the substance of whether “he was inadvertently arrested as a robber in the course of being accompanied by his partner in crime to the road or whether he was one of the robbers”; that the focus on these minor discrepancies even when the central message is that he was a victim of mistaken identity, “is like chasing shadow at the expense of substance”; and that the substance is that he was a victim of mistaken identity.

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He cited Omopupa V. State (2008) All FWLR (PT 445) 1648 at 1681 and Adisa V. State (1991) 1 NWLR (PT 168) 490 at 510, and submitted that-

The difference in the number of days [he] claimed he spent in the hospital in the extra-judicial statement and oral testimony, goes to show how “meticulously and mathematically accurate” he was. The substance is, was he in the hospital or not For if he was, the fact that he made a mistake in the number of days he spent in the hospital is not a ground to crucify him. Equally, the fact that he said in the extra-judicial Statement that he did not enter Kehindes house but stayed outside and to claim in oral testimony that he entered the house, goes to show mathematical accuracy and how meticulous he is. The substance is whether he was or was not within the premises of that house at all. For if he was, his story could not and ought not to have been rejected because he contradicted himself in the point whether he entered the house or he stated outside the house. The proper thing is to examine the substance and see whether it corroborates his story that he was a victim of mistaken identity. For if truly he was in that house

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be it inside or outside and if truly he was a victim of mistaken identity, it could be a serious crime against humanity to send him to the gallows or prison simply because he contradicted himself on whether he stayed outside the house or he entered the house. The only way to know the truth is to have on record the evidence of one of the neighbours that arrested them. More importantly when they were not arrested with the items stolen – – it is obvious that the items stolen could not have been destroyed, spent, exhausted or even thrown away in the presence of a diligent and honest assessment of the testimonies of PW2, PW3 and PW4.

He submitted, citing Ekwunife V. Wayne (W/A) Ltd. (1989) 5 NWLR (pt. 122) 422 and Bozin V. State (supra) that evidence is not about quantity but quality; that although PW2, PW3 and PW4 testified that he stole some items and was arrested immediately or almost immediately by some neighbours, none of them “said a word about what happened to the items stolen” even when he stated at the earliest possible time that he was a victim of mistaken identity, therefore, their testimonies that he was arrested at the scene of crime, are not credible.

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He further argued that there is a clear difference between being caught at the scene of crime and being identified as a criminal; that being caught at the scene requires no other evidence other than credible testimony that the criminal was caught at the scene of crime, but identification requires credible evidence and most often by identification parade; that there is clear difference between ability to identify and ability to recognize; that identifying a criminal presupposes that the person identifying has never come in contact with the supposed criminal other than the day he/she saw him committing the crime, while recognition presupposes that the person claiming to have the ability to recognize has met with the criminal in previous occasion(s) prior to seeing him in the process of committing the crime in issue, citing Bozin V. State (supra).

Furthermore, that in this case, it was not the case of the Prosecution that any of the witnesses had previously met him such that he could be recognized, and none testified that he/she could recognize his Co-Accused who claimed to live in that neighborhood; that the Police did not even deem it fit to question the complainants as to

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whether they knew if his Co-accused lived there or not; and that the Prosecution did not put in evidence that he or his Co-Accused could be recognized prior to when they allegedly committed the crime in issue.

He further argued that although it can be inferred from the testimonies of PW2, PW3 and PW4 that they identified him but no identification was done; that the first piece of evidence of a purported identification was given by PW7, who identified them as the people that robbed her the day before, but in law, “it is recognition that may be done in the manner stated by PW7 but, certainly, not identification”; that this type of identification is unknown to law, citing Bozin V. State (supra), Adisa V. State (supra); that the testimony of PW7 failed the test of recognition when she admitted under cross-examination that she did not know him and his Co-Accused prior to the day that she was robbed; and that:

Worst still, there is nothing on record to show that when PW7 reported the purported robbery of 11/08/09, the Police requested her to describe the robbers such that the society would have been able to know whether the description she gave on

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11/08/13 fit the outlook of (him) and his co-accused – – The identification evidence of PW7 aside from being unknown to law, is also contrary to equity.

He further submitted that it must be remembered that “the attribute of a mob is irrational” and the way and manner all the Witnesses referred to the arresting neighbours indicates that the neighbours may be nothing but a mob, therefore, a careful assessment of the totality of evidence tilt the scale in favour of their being arrested in the neighbourhood of the scene of crime and taken to the scene of crime, and that this submission is anchored on the following reasons:

1. The failure to account for the items stolen created a credible doubt on the story of the Prosecution that he was arrested at the scene of crime and/or that he was pursued and arrested.
2. They testified that they were taken to the hospital upon being arrested, and the testimony of PW2 that they were informed by the Police that the Accused would be transferred to SARS after being “well a bit” is the corroboration of his story that he was taken to the hospital, which gives credibility to his Extra Judicial Statement that one of the

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complainants could not identify them at the hospital.

3. The confirmation by PW6 that his co-accused told him at the earliest possible time that the two of them were arrested at the time of escorting him (Appellant) reveals that they were arrested by a mob that was searching for the robbers without proper investigation as regards whether they were the robbers or not.

Based on the reasons enumerated above, it is the Appellant’s contention that:

If the proper cause (sic) of event is that [he] and his Co-Accused were arrested by a mob or neighbours and brought to the scene of crime for the purpose of identification, such identification is unknown to law. For the proper identification to be done, [he] and his Co-accused ought to be shielded by their arrestors. They ought to be put in the midst of other people who look like them and PW2, PW3 and PW4 ought to be called upon to identify them in the midst of these people. By taking them to the scene of crime, their arrestors had already held them out to be the robbers. This type of identification lacks objectivity.

He referred this Court to the observation of Ariwoola, JSC,

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in Agboola V. State (2013) 11 NWLR (PT. 1366) 642, on identification evidence/parade, and argued that the Appellant in that case was recognized as he had been met previously by his victim, but in this case, no such evidence of recognition was led by the Prosecution; that there is nothing on record to show that the two of them were known to any of the complainants, rather there is evidence that they met them for the first time, and the incident occurred around 9pm, which is at night; and that the circumstances of this case do not show that the victims of the robbery, PW2, PW3 and PW4 had ample opportunity to be able to identify the robbers.

Furthermore, that even if they did, the Prosecution did not demonstrate that they had because none of them was called upon to identify him, therefore, he and his Co-accused were not identified as required by law, citing Afolabi V. State (2013) (pt. 1371) 292 (sic); that he denied committing the crime at the earliest opportunity, and due to deficiencies in the testimonies of the witnesses that he was arrested at the scene or he was pursued and arrested, there is no credible evidence linking him to the crime, citing

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Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 300, Adesina V. State (2012) 14 NWLR (PT 1321) 429, Bozin V. State (supra), Adisa V. State (supra); and that in the circumstances of this case, the said “defence of mistaken identity is real and it is probable”.

But the Respondent urged this Court to resolve this issue affirmatively and hold that the Court of Appeal was right to affirm the trial Court’s decision that the Appellant was sufficiently identified as one of the armed robbers, and that discrepancies between his extra-judicial Statement and his oral testimony relate to substance and not form, such that his defence of mistaken identity cannot vitiate the direct, cogent and compelling evidence of the Prosecution witnesses that he and 1st Accused were fixed to the scene of the crime that day.

It noted that there are concurrent findings of the two lower Courts on the identity of the Appellant as one of the robbers fixed to the scene of the crime, and submitted that there is sufficient evidence before the trial Court that he was not only at the scene of the crime but that he participated in the robbery attack. It set out evidence of PW2, PW3 and PW4, and commented thereon as follows:

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– It is crystal clear from the testimony of PW2 that the Appellant was the one that robbed PW2 while armed with a broken bottle; that he did not only rob him but also stabbed him, which led to his bleeding; that there was lighting in the room where the robbery incident took place because PW2 said that the Appellant switched off the TV after the robbery; and finally that the Appellant was arrested at the scene.

– The evidence of PW4 corroborated that of PW2 and actually fixed the Appellant to the scene of the crime; that PW4 gave graphic account of how the Appellant was arrested inside the building where the armed robbery took place, and she also said the 1st Accused person attempted to escape but he was also arrested, therefore, the issue of mistaken identity never arose in view of their overwhelming evidence.

– The evidence of PW3. who is also a victim of the armed robbery and occupant of the same building with PW2 and PW4, corroborates their testimonies at the trial.

– There are no contradictions as to the identities of the Appellant and the 1st Accused Person by the Prosecution Witnesses, particularly PW2, PW3 and

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PW4. PW3 also corroborated the evidence of PW2 that there was electricity on the particular night.

– PW3 and PW4 testified as to how the Appellant was caught in the act and arrested within the building by the neighbours, who came to the rescue that particular night. – And that the evidence of the Prosecution Witnesses was coherent, unswerving and reliable, therefore, the Court of Appeal was right to affirm the decision of the trial Court when it held that the Appellant’s oral testimony in Court and his extra-judicial statements are contradictory and inconsistent, citing Umani V. The State (1988) 1 NWLR (PT. 70) 274.

It further argued that notwithstanding the incontrovertible evidence of the said Prosecution Witnesses and victims of the crime, the trial Court went ahead to consider the Appellant’s defence, and found that there are irreconcilable facts between his oral testimony and extra-judicial Statements to the Police; and that “the trial Court held that the defence of the Appellant is full of contradictions and inconsistencies, which are unworthy of positive consideration of the Court”.

Furthermore, that in a criminal trial, the Accused is neither

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bound to give a defence nor prove his innocence but when he chooses to give evidence as to his whereabouts or role played or defence of mistaken identity, as in this case, the burden is on him to prove same, citing Emeka V. State (2001) 14 NWLR (pt. 734) 666 at 680 and Arogundade V. State (2009) 2 MJSC (PT. 1) 1 at 12; and that the Court of Appeal was, indeed, right to conclude as it did in this case.

In reaction to the Appellant’s argument that it ought to have tendered the items stolen by the Appellant to prove its case against him, it submitted that this amounts to an invitation to prove its case beyond all shadow of doubts; that it is not one of the essential ingredients of the offence of armed robbery to tender the items stolen in the course of the robbery, citing Miller V. Minister of Pension (1947) 2 All ER 371, Lori V. State (1980) 8 – 11 SC 81, and Akalezi V. State (1993) 2 NWLR (PT. 273) 1 at 13. As to the said discrepancies, it submitted that it is not all discrepancies that can lead to the discharge of an Accused, except where such discrepancy or contradiction are material to Prosecution’s case and such scenario is not applicable to

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this Appeal, citing Tanko V. State [2009] 1-2 MJSC 209 @ P. 240; and that the defence of mistaken identity, as alleged by the Appellant, cannot avail him in view of the overwhelming evidence that he was arrested in the course of the robbery and at the scene of the crime.

The detection of crime, which is the responsibility of the Police, falls into three distinguishable phases: the discovery that a crime has been committed; the identification of a suspect; and the collection of sufficient evidence to indict the suspect before a Court – Britannica.com. So, criminal identification is not only the most potent factor in securing the apprehension of the criminal, but its establishment enables the Judiciary to sentence the guilty equitably – Jstor.org.

In this case, three Police Officers testified for the Prosecution at the trial. The items recovered at the scene of the crime, a cutlass, one short black wood, and piece of broken bottle were admitted in Evidence as Exhibits P1, P2 & P3 respectively, through PW1, Opaluwa Yakubu Corp., who was an Exhibit Keeper.

PW6 is Insp. Augustine Onuika, of Special Anti-Robbery

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Squad [SARS], and the “cautionary statement” of the Appellant was admitted through him as Exhibit P5. The Statement itself was admitted as Exhibit P6 through another witness, PW8, PC Onoghise Timothy, who was at the Adewole Police Station, where the case was initially reported to, before it was transferred to the SARS.

It is settled that the statement of an Accused Person to the Police forms part of the case for the Prosecution – Ikpa v. State (2017) LPELR-42590(SC). In this case, Appellant stated as follows in Exhibit P5 that he made at SARS:

Three days before on 11/08/09, I was in the house when Kehinde (1st Accused) came to me at about 1400-1500hrs to assist him in producing stools, and that his own mother wants to open a car wash at Airport Area and myself can come closer to the area so that we can be working near the car wash. Then Kehinde directed that I should come to Airport Road around 6pm on 11/18/09 to meet him. Immediately I got there the boy Kehinde sighted me and called me. When he now came he showed me the area they wanted to cite the car wash. After that I demanded for transport fare from him because I was not having money on me. Kehinde asked me to

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follow him to their house but on getting to their house, Kehinde asked me to stop somewhere because his mother doesn’t want strange visitors in the house. Kehinde now went home and brought over N100 and gave to me to go. As Kehinde was seeing [me] off people started shouting Ole! Ole!!

That we are thief so I took to my heels. And people started pursuing me and later matched (sic) me on the head. I don’t know how I find myself in the hospital the second day I saw Police Men by my bed in the hospital, from the hospital I was taken to Adewole Police after staying in the hospital for 2 days. I was later transferred to SARS office – – – I have not been to the house I was arrested before I was arrested in frontage of complainant’s House where I was matched (sic). Why I ran was when I heard Ole! Ole! Kehinde (1st Accused) took to his heels first before I now ran. That day was the 1st time I am coming to Airport Road, Ilorin. I never stood by any of the complainant freezer. I dont know the woman before. That the day – – the woman was brought to the hospital to identify us. The woman denied knowing us as the thieves that came to her house but

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later the woman came back and identified me. What happened outside before she came back the second time is not to my notice. I did not conspire with Kehinde or any other persons to rob the complainant. I am the person they arrested at the complainant house. I did not steal money and handset from the complainant. I don’t smoke Indian hemp. I don’t belong to any cult. I am not an armed robber. I don’t have gun. It was the Police Men that brought out cutlass, plank and bottle and showed to us as our exhibits. I don’t know where Police brought out the cutlass, plank and bottle. I am not lieing (sic) to the Police.

So, on 16/8/2009 when the Appellant made the said Exhibit P5 at the SARS, he clearly stated that he was arrested at the scene of the crime on 12/8/2009.

PW8, who was at the Adewole Police Station, confirmed this fact when he said:

On 12/8/09, at about 2230hrs, one Ganiyu Rahman [PW5], a member of Nigeria vigilante group came to Adewole Police Station and reported a case of armed robbery at Budu Nuhu Area. Immediately I and 3 other Police Officers went to the scene and met the victim by name Ismail Kolawole (PW2) of Budo Nuhu

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area in a pool of blood and the two Accused Persons already arrested by the Community members and some exhibits (Exhibits P1-P3) were also recovered.

In that moment I put up a question to the 2 Accused Persons i.e. their motive of coming to the area and they said they came to rob but luck ran against them.

Notwithstanding this piece of evidence that fixes him to the scene to the crime, Appellant insists that the Prosecution did not establish where he was arrested and who were the people that arrested him, therefore, it failed to prove that he was one of the robbers, who robbed Ismail Kolawole, his wife, Rashidat Ismaila and Sa’adu Garuba that night of 12/8/2009. The three testified as PW2, PW4 and PW3 respectively, and this is where a scrutiny of their evidence comes in.

PW2 testified that at about 9pm that day, his wife went out to throw away water used after he finished eating. He heard her shout and when he opened the door to see what happened, he saw the first Accused holding his wife, and the Appellant, who was shielded by the door, hit him on the head with a bottle, and holding the broken bottle, he then asked PW2 to lead him to his bedroom.

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He further testified as follows on the role played by the Appellant in the robbery:

In my bedroom, he was asking me for the money I brought in and I said I have no money and did not bring in any way (sic) and as I said, he used the broken bottle he was holding to stab me in the stomach. The scar is here, here are the two scars – – I said I have no money at home, he should pity me and not kill me and I said all the money I have is in the wallet i.e. N34, 000 and the 2nd Accused (the Appellant) picked the wallet containing the N34, 000, which contained my I.D. Card and other documents. He also took my wife’s Nokia Handset and my own double SIM Luna handset and my wristwatch. The 2nd Accused then put off the TV we were watching and locked the door on me inside the house. When the 2nd Accused was going out of my house, he told me that if I was to show that I am strong and stubborn, they will kill me because they are many. As he went out I was hearing noise in my neighbour’s house. I think passersby heard my shouting of I don’t have money and they raised the alarm of thief, thief. By the time I was able to open the door, I saw that the 2nd Accused had been

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arrested, later the 1st Accused was chased and arrested too. The Police was called thereafter.

PW4, corroborated her husband, PW2’s story that they had just finished eating and she was about to throw away the water they used, when she was accosted by the two Accused Persons. she testified as follows on the Appellant’s role –

He raised a cutlass to me i. e. 2nd Accused [the Appellant] and I shouted. He pushed me and ordered me to not to shout and I was telling him that I was pregnant and he should handle me carefully. It was my shouting that my husband heard that made him to want to come out and the 2nd Accused hit him with a broken bottle on the head and pushed him into the house. I was shouting when I was hearing my husbands voice and the 2nd Accused came out of the room, pulled me to the toilet and told me not to come out and if I do I will be killed. I was inside the toilet shouting and I saw people, who forced the door to our house open, and arrested the 2nd Accused. I was able to come out and continued shouting, the 1st Accused was trying to run away and he too was caught and arrested by people.

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The testimony of PW3, who lives in the same compound as PW2 and PW4, relates to only the 1st Accused, who entered his room, and not to the Appellant.

As it is, PW2 and PW4 identified the Appellant as the one, who attacked PW2 with a broken bottle, and robbed him of money, handsets, and wristwatch. Another victim, PW7, Mrs. Shade Popoola, also testified that she was attacked by the same Accused Persons the day before on 11/8/2009. In her own words:

On 11/8/09, I was in my house with my children around 9pm, the 2nd Accused (i.e. the Appellant) came to our house and said he wanted to buy fish, as I went in and went to the freezer to take fish for him, that was how himself and 1st Accused came into the house. The 2nd Accused slapped me and ordered me to lay down on the floor, while the 1st Accused pointed a gun at me and said I should go inside and bring money, as I was saying I don’t have money, they checked my purse, saw N10, 000,00 and took it and in my bag, saw N4,000.00 and took it. They beat me and my children very well that day and took away my VCD and DVD and my two handsets, I shouted and before my neighbours came, the Accused Persons had left.

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The following day I heard that thieves came to the neighbours’ house and I went there and saw the 2 Accused Persons because they were not masked or covered their face when they came to our house the previous day.

To round up evidence of the Prosecution Witnesses, PW5, Ganiyu Rahman, who reported the incident at the Adewole Police station, testified as follows –

On 12/8/09, I was at home eating in the night and I saw neighbours in the area shouting thief, and I was preparing for patrol as at that time. I quickly ran to Police Station at Airport to report and I was given a Police. I called one Tunde Mohammad, who is also a vigilante, and we went together to the place of the incident. On getting there, we saw that the 2 Accused Persons had been arrested and we called Adewole Patrol Police, and they took away the 2 Accused Persons.

The issue here is whether the Appellant was identified as one of the robbers, and despite his insistence that an identification parade was needed to prove it; it is settled that such a parade is not a sine qua non for identification where there is other evidence leading to the identity of the perpetrators of the offence-see Ikemson V. State (supra),

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(1989) 3 NWLR (Pt. 110) 455 SC, where this Court held that an identification parade is only essential in such situations as:

– Where the victim did not know the Accused before;

– Where the victim was confronted by the offender for a very short time;

– Where the victim, due to time and circumstances, might not have had opportunity of observing features of the Accused

The essence of an identification parade is therefore, to enable an eye witness, who never knew the person accused of the crime before, but had some degree of encounter with the person during the commission of the crime or at the scene of the crime, to pick him out from amongst other people in the “line up” – see Adebayo V. State (2014) LPELR-22988(SC) and Alufohai V. The State (2014) LPELR-24215 (SC), wherein Ariwoola, JSC, aptly observed as follows:

Generally, identification parade, otherwise known as “line-up” is a Police identification procedure in which a criminal suspect and other physically similar persons, are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime – – – Generally,

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identification evidence is evidence tending to show that the person charged with an offence is the same person, who was seen committing the offence. Therefore, whenever a trial Court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the Accused before the Court was the person, who actually committed the offence with which he is standing trial – – It is trite law that identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an Accused Person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender.

In other words, an identification parade becomes a necessity when there is a need to establish the identity of a suspect, and the aim thereof is to make sure that the actual offender is the person arrested. There are many cases where an identification parade is of no use

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whatsoever in the scheme of things; such as when a suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or Witness; and when evidence adduced is sufficient to establish that the suspect is, indeed, the person that committed the crime – see Moses Jua V. State (2010) 4 NWLR (Pt. 1184) 217 SC Bassey Akpan Archibong V. State (2006) 14 NWLR (pt. 1000) 349 SC and Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors. V. State (2000) 15 NWLR (Pt. 691) 555 SC.

In this case, PW2 and PW4 may not have known the Appellant before, but from their narration of what transpired that night, it is clear that they had the opportunity of observing the two men, who robbed them, at very close quarters, and they identified the Appellant as the one that stabbed PW2 in the head with a broken bottle, before leading him to the bedroom, where the same Appellant stabbed PW2 in the stomach, with the broken bottle he was holding in his hand.

Not only that; PW4 also narrated how the same Appellant accosted her, locked her up in the toilet, and threatened to kill her if she came out of there. In such circumstances, is it possible that PW2 and PW4, who were face

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to face with the Appellant, could be confused as to who attacked and robbed them

I think not; none of the witnesses said that the Appellant was masked. Thus, he did not cover his face, and he came close enough to PW2 to stab him in the stomach, and close enough to PW4 to push and lock up her in the toilet. PW2 and PW4 also made it clear that their neighbours heard their shouting, and were able to arrest the Appellant there, before they came out of the house.

If the Appellant was an innocent passerby in the vicinity, as he claimed, would PW2 and PW4, after their painful encounter with him, not have said so They did not say anything that gives the impression that he was not the culprit. PW2 said that by the time he was able to open the door, he had been arrested, and PW4 said that while she was shouting in the toilet, she saw some people, who forced the door to their house open, and arrested the Appellant right there.

In the face of that cold and hard fact, the Appellant’s contention that PW2 had to explain what happened to the stolen items, to add credibility to his story, pales into insignificance. As he himself submitted, the Prosecution

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does not have to tender stolen items or account for their whereabouts, to prove its case.

The Appellant also argued that contrary to the concurrent findings of the two lower Courts, the said discrepancies between his Statement to the Police and his oral testimony in Court, were not substantial. The position of the law is that it is not every minor contradiction in evidence of Witnesses that matters. For a trial Court to disbelieve a witness for the said reason, the contradiction in his evidence must be on a material point – see Kalu V. The State (1988) 4 NWLR (PT. 90) 503, and Ochemaje V. State (2008) 15 NWLR (pt. 1109) 57.

In this case, the Appellant argued that the discrepancies analyzed by the lower Courts, do not go to the substance of whether he was one of the robbers. But the Appellant has missed the point completely. The discrepancies between his Statements to the Police and his oral testimony in Court go to the issue of his credibility as a Witness, and that is whether he should be believed or not.

Yes, it is elementary law that the burden on the Prosecution to prove the guilt of an Accused Person beyond reasonable doubt never shifts

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but rests on the Prosecution throughout the trial. However, the law does not impose on the Prosecution, the duty or function of both the prosecution and the defence – see Ogbodu V. State (1987) 2 NWLR (Pt. 54) 20. Its duty is limited or restricted to prosecution and does not extend to putting up any defence for the Accused.

So, where the evidence adduced by the Prosecution conclusively points at the Accused as the perpetrator of the crime for which he is charged, and the “evidence is duly tested, scrutinized and accepted by the Court”, the onus is on the Accused Person to rebut the presumption of guilt or to cast a reasonable doubt on the case of the Prosecution by preponderance of probabilities – see Akinmoju V. State (2000) 6 NWLR (Pt. 662) 608 at 629 SC, Kalu V. State (1993) 6 NWLR (pt.300) 385 at 397 SC and Moses Jua V. State (supra).

See also Igabele V. The State (2006) 6 NWLR (Pt. 975) 100 at 131 SC wherein this Court per Onnoghen, JSC (as he then was) observed as follows:

Generally speaking, there is no duty on the Accused to prove his innocence. However, where circumstances arise, as in this case, some

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explanation may be required from the Accused Person as the facts against him are strong. Where he fails to offer such explanations, as happened in this case, his failure will support an inference of guilt against him.

So, the position of the law is that the primary onus of establishing the guilt of the Accused is on the Prosecution, and this burden does not shift. What does shift is the secondary onus or the onus of adducing evidence, which renders the Prosecution’s case improbable and unlikely to be true, and thereby, create a reasonable doubt – see Bakare V. State (1987) 1 NWLR (Pt. 52) 579 SC, wherein Oputa, JSC, aptly observed as follows on this principle of the law –

The learned trial Judge compared the accounts of the incident as told by the Prosecution and defence and was not in any doubt that the Appellant was not a truthful witness. He described his evidence as “an afterthought designed to hide the truth”. Evidence that is not accepted cannot possibly create a doubt in the mind of a fair minded Jury. If the defence account of the incident is disbelieved, then that is the end of the matter and there will be no evidence on which to consider the existence of a reasonable doubt.

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In this case, the learned trial Judge, Ajayi, J., analyzed the Statements made by the Accused Persons to the Police and their testimonies in Court, and held:

The question is, who is to be believed amongst the two Accused Persons Is it the first or second Accused Person, the Court would rather choose not to believe any of the two Accused Persons. In his Statement, Exhibit P5 the second Accused (i.e. the Appellant) states that quote –

“I have not been to the house I was arrested before I was arrested in frontage of complainant’s house where I was matched (sic)”.

This totally contradicts his evidence in chief that while he was running when some men were fighting with Kehinde, the 1st Accused, while Kehinde was escorting him to take a Taxi, he took to his heels and was shouting help, help and that was all he saw. The 2nd Accused (Appellant) states in Exhibit P5 that he does not have a gun and that the Policemen brought out cutlass, plank and bottle and showed it to then as their Exhibits, that he does not know where the Police brought out the Exhibits from. I am of the view that the two Accused Persons have not shown

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themselves to be witnesses of truth.

The learned trial Judge did not believe the Appellant; it concluded as follows:

The evidence of the two Accused Persons as adduced before the Court contradicts their Statements, Exhibits P4, P5 & P7, and thus cannot be believed or manifestly relied upon. The evidence of the Prosecution in my view is direct, cogent, corroborative and has proved or fulfilled the ingredients of the offence of Armed Robbery charged and I hereby hold that the Prosecution has proved its case beyond reasonable doubt and the two Accused Persons are hereby convicted accordingly.

In affirming the decision of the learned trial Judge, the Court of Appeal held –

The defence of mistaken identity could only have arisen where the Appellant was not caught at the scene of crime or where he was identified much later after the incident. In this case, the Appellant was caught immediately after the crime was committed and at the vicinity of the scene of the crime. The fact and circumstances of this case have not indicated any probability of mistaken identity. The incumbent duty on the Respondent is to prove the guilt of the

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Appellant beyond reasonable doubt. Where, however, the Appellant proffers any reason why some evidence adduced by the Respondent ought not be relied upon, the burden shifts to him to convince the trial Court in that regard. The burden of proof is on the party who asserts – – -The learned trial Judge rightly merely rejected the Appellant’s defence of mistaken identity because of the contradictions in his oral testimony and his extra-judicial statements. A careful perusal of the evidence led by the Prosecution not only fixed the Appellant at the vicinity of the scene of the crime but adequately unveil the role played by the Appellant and the other Accused Person in the commission of the crime.

Obviously, the concurrent findings of the two lower Courts cannot be faulted. The Appellant testified in his own defence, and he put his credibility on the line when he entered the Witness Box. The evidence that he adduced, having not been believed by the trial Court; the burden of proof on him was not discharged. What is more, since the story he narrated in the witness Box was not believed, there was no evidence upon which to compare, and to consider the existence of a reasonable doubt with

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respect to his guilt – see Bakare V. State (supra). In the circumstances, the Court of Appeal was right to affirm the decision of the trial Court that the case against him was proved beyond reasonable doubt.

Issue 2 is based on the testimony of PW8 that when he asked the two Accused Persons “their motive of coming to the area and they said they came to rob but luck ran against them”. The Court of Appeal commented as follows:

The learned trial Judge did not rely on the Statement made by the Appellant to the Police. Instead he found it to be in conflict with his evidence in Court – – – The issue of placing reliance on the statement of the Appellant made to PW8 is therefore, (a) non-starter and misconceived. It is accordingly discountenanced being unrelated to the decision under review.

The Appellant’s contention is that the Court of Appeal, which pronounced the oral confession to be a non-issue equally made use of same, when it stated –

PW8, a Police Officer, who went to the scene of crime with three other Police Officers testified that he met PW2 in a pool of blood at the scene of the crime and the two Accused Persons, including the

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Appellant herein, were already arrested by the community members, who also recovered the weapons used by the two hoodlums in perpetrating their nefariousness. When he asked the Appellant and his accomplice about their motives, they told him and he heard them say that they were there to commit robbery but luck ran against them.

He argued that in one breath, Court of Appeal used the oral confession to fix him at the scene of crime, and in another breath, it described it as a non-issue; that the Court of Appeal erred gravely when it held that the said oral confession is a non-issue; and that if the Court of Appeal had read the Judgment of the trial Court as a single document, it would have been obvious to that Court that the learned trial Judge actually made use of the said purported oral confession.

He canvassed more arguments ranging from PW8 not confronting him with the oral confession, to whether the Court can rely on oral confession given without caution, and the distinction between this case and Jua V. State (supra), which spans across 9 pages of his Brief, from paragraphs 5.5 to 5.18 thereof.

But the Respondent submitted that the said

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finding is a mere comment, which did not go to the root of the Court of Appeal’s decision; and that the issue does not change the Appellant’s case, as rightly held by the Court of Appeal.

I agree with the Respondent completely; the reference to the testimony of PW8 that the Appellant and his Co-Accused confessed to him that they came “to rob but luck ran against them”, is nothing but a mere scratch on the surface. It has no depth, no meaning and is of no significance of any kind in this Appeal.

The two lower Courts found as a fact that the Prosecution proved its case against the Appellant beyond reasonable doubt, and the question of whatever the Appellant told PW8, had no bearing at all on the decision of the trial Court to reject his defence of mistaken identity, which the Court of Appeal affirmed.

In the circumstances, the two issues are resolved against the Appellant. As it is, the Appellant failed to give very good reasons why this Court should interfere with the findings of fact arrived at by the two lower Courts. “It is not a matter of course” – Muhammad V. State (2017) 13 NWLR (Pt. 1583) 386 SC. Besides, there is sufficient evidence

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established by the Prosecution to support the concurrent findings of the two lower Courts and this Court cannot intervene.

In the final analysis, this Appeal lacks merit and it is hereby, dismissed. I affirm the Judgment of the Court below upholding the trial Court’s decision.

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SC.129/2014