Akinlo Ifedayo V The State (2017)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE, JSC
The Appellant and three others were arraigned before the High Court of Ondo State, Akure, on a Three-Count Charge of conspiracy to commit armed robbery, armed robbery and receiving stolen property. It was only first Accused that was charged with receiving “a Multilink Nokia cell phone, property stolen from Dr. Obanoyen Ademola by armed robbers”, including Appellant, who was the third Accused.
He pleaded not guilty to the charge against him and to prove its case, the Prosecution called three witnesses, and tendered nine Exhibits. The Accused Persons testified in their defence, and they did not call any other witnesses.
The Prosecution’s case is that the Appellant along with second and fourth Accused Persons and others at large, robbed the said Dr. Obanoyen on 12/11/2011 at his house in Owo, Ondo State, and carted away laptops, handsets and money while armed with guns and offensive weapons.
In his Statement to the Police, Exhibit A5, the Appellant confessed that they were armed with guns and robbed the said Dr. Obanoyen, who was PW3, of the aforesaid items. However, in his testimony as DW3, the Appellant denied the allegation against him, and said he only knew about a fight between his landlord’s son and two boys of his co-tenant.
The learned trial Judge, O.O. Akeredolu, J., delivered Judgment on 20/3/2013, wherein he observed as follows –
The oral evidence of the 3rd (Appellant) and 4th Accused is a far cry from their Statement to the Police. They did not lead any evidence to justify Inconsistency In the written and oral evidence. They did not call any evidence to buttress their oral evidence. In their extra-judicial Statement each named the other as members of the same robbery gang. Both 3rd and 4th Accused acknowledged that the items they stole from PW3 include phones and laptops. 3rd Accused stated in Exhibit A5 “Waidi left with phones and laptops. 4th Accused said he knew Adijat whom he described as the sister of Waidi. Adijat is the 1st Accused. One of the handsets of PW3 was recovered from her. Both the 3rd and 4th Accused Persons confessed that the wall of the house of PW3 was broken for them to gain entry into his house. PW3 said the robbers hit his wall before they gained access. When Police came and PW3 had the courage to come out he said he discovered that the robbers broke his wall and entered through the living room. One of the handsets was found on Adijat the first accused.
The learned trial Judge thereafter concluded as follows –
The 3rd and 4th Accused had opportunity to commit the crime. The contents of Exhibits A5 and A6 are consistent with the oral evidence of the Prosecution. In summary, the Prosecution has proved beyond reasonable doubt that the 2nd, 3rd and 4th Accused conspired to commit armed robbery and that they committed armed robbery contrary to Section I (2) (a) and Section 6 (b) of the Robbery and Firearms Act (Special Provisions) Act Cap 311, Vol. 14, laws of the Federation of Nigeria 2004. I find the 2nd – 4th Accused guilty as charged.
- I hereby sentence you Akinlo ifedayo to death by hanging by the neck until you be dead or by firing squad as may be prescribed by the Governor.
Dissatisfied with his conviction and sentence, the Appellant appealed to the Court of Appeal with a Notice of Appeal that was later amended. The Amended Notice of Appeal contained three Grounds of Appeal and he distilled two Issues for Determination in his Brief of Argument; that is –
- Whether the identification evidence in this case properly linked the Appellant to the two-count Charge of conspiracy and armed robbery preferred against him.
- Whether the Prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of the two-count Charge of conspiracy and armed robbery preferred against him and two others.
The Court of Appeal adopted his two Issues as formulated, and held as follows on Issue 1 touching on identification –
The Appellant identified himself in his confessional statement Exhibit A5, therefore, there is no need for further Identification parade as the Appellant by himself identified himself thereby removing any doubt of his involvement in the commission of the offence – – Having regard to the facts and circumstances of this case, no issue as to the identification of the Appellant was raised to warrant an identification parade. Put differently, an identification parade is not a sine qua non for a conviction.
On Issue 2, whether the Prosecution proved its case, it held:
The evidence of PW1 is to the effect that there was an armed robbery at the house of PW3. PW1 said he saw the 2nd Accused at the scene of the crime with the aid of moonlight. In support, PW2 said he investigated the case. He also investigated the Diamond Bank robbery that the 2nd – 4th Accused confessed they were also responsible for armed robbery at the house of PW3 among other robberies. The foregoing pieces of evidence as led by PW3, PW1 and PW2 are corroborative enough of the confession in Exhibit A5. The Appellant’s Statements admitted in evidence are dearly confessional and stated in comprehensive detail how the robbery was planned and executed, the evidence of PW1, PW2 and PW3 corroborated the confessional Statements as to how the robbery was carried out. I have no doubt that the confession is true. I confirm the finding of the trial Court that Exhibit A5 is a confession by the Appellant that he and other persons had a common purpose, which is to rob PW3 by violence. The Prosecution has, therefore, proved beyond reasonable doubt the offence of conspiracy to commit armed robbery against the 2nd – 4th Accused Persons and I so hold.
The Court of Appeal concluded as follows in its Judgment:
The Appellant had the opportunity of committing the offence of armed robbery with which he was charged along with other Co-Accused. – – I hold that the learned trial Judge properly and rightly placed evidential weight on Exhibit A5 In holding that the offence of armed robbery against the Appellant and other Co-Accused was proved beyond reasonable doubt. Issue No. 2 is resolved against Appellant – – – The Appeal lacks merit and it is accordingly dismissed. The conviction and sentence of the Appellant – – is hereby affirmed.
Further aggrieved, the Appellant filed a Notice of Appeal containing three Grounds of Appeal in this Court and he distilled one Issue for Determination there-from as follows –
Whether the trial Court and the Court of Appeal were right in holding that the Respondent proved the charges against the Appellant beyond reasonable doubt in view of the nature and quality of the evidence adduced before it by the Respondent?
The Respondent also formulated only one Issue as follows –
Whether the Prosecution proved beyond reasonable doubt, the offences of conspiracy to commit armed robbery and armed robbery against the Appellant.
The Issues formulated by the Parties are basically the same, and they question the concurrent findings of the trial Court and the Court of Appeal that the Prosecution established its case against the Appellant beyond reasonable doubt.
The Appellant argued that there was insufficient proof of ingredients of armed robbery and conspiracy to commit armed robbery. He referred this Court to the following –
-Section 135(1) of the Evidence Act, 2011;
-Chianugo V. State (2002) 2 NWLR (Pt. 750) 225 at 236;
-Isibor V. State (2002) 3 NWLR (Pt. 754) 250;
-John Olomo V. The State (2014) LPELR-225)7 (CA):
-Martin Egbufor V. The State {2013) LPELR-20688 (CA);
-Section 1 (2) (a) of the Armed Robbery and Firearms (Special Provisions) Act;
-Oyakhire V. State (2005) 15 NWLR (Pt. 947) 159 at 179 CA;
– Nwachukwu V. State (1985) 3 NWLR (Pt. 5) 218 SC;
And submitted that his being involved in any robbery and that the robbery was carried out using offensive weapons was not proved in relation to Count two of the said Charge. On the question of identification, he cited the following –
-Adisa V. State (1991) 1 NWLR (Pt. 168) 490 at 506
-Alabi V. State (1993) 7 NWLR (Pt 307) 511 at 524
-Bozin V. State (1985) 2 NWLR (Pt 8) 467
And argued that like in the case of Bozin V. State (supra) –
i. He was not arrested at the scene of the crime;
ii. None of the victims knew him before the crime; and that
iii The victims had fleeting encounters with the robbers.
Furthermore, that the undisputed facts of the case are that;
i)He pleaded not guilty and further testified that he did not commit any act of robbery;
ii)He was not “caught at the scene of the crime”; and that –
iii)His alleged confession was challenged as not being made.
He further argued that the Prosecution Witnesses did not in any way, or at any time links him with the commission of the offence, and there was no mention of him being involved; and that in such circumstances, an identification parade was required to ascertain identity of the armed robbers.
He also contends that the Prosecution failed to prove conspiracy to commit robbery, and citing FRN V. Ikedinwa (2013) LPELR-21132(CA), The State V. Olashelu (2011) 12 SC (Pt 10) 191 he submitted that the trial Court did not satisfy itself as to the ingredients of the offence of conspiracy; that contrary to its findings, the fact that none of the Accused denied the robbery at Diamond Bank, does not mean that he robbed the place, therefore, the conclusion it reached on this issue, was not supported by the weight of evidence.
He submitted that it is apparent that PW3’s testimony “had been carefully tailored to suit the robbery scenario, which had been set by the Respondent”, and to suit this, “all portions of previous statements that could cast a doubt on the charge of armed robbery were surgically expelled”, which is sufficient to cast substantial doubt on his testimony.
He argued that PW3 said in his Statement to the Police that the robbers were armed with “guns and cutlasses”; at the trial, he added “axes”, but the Charge specified that the offence was carried out with a “sharp knife”, which is a material contradiction; that the Court’s failure to consider inconsistencies in the evidence of Prosecution Witnesses occasioned a miscarriage of justice, citing William V. State (1975) 9-11 SC, Iregu V. State {2013) 12 NWLR (Pt. 1307) 92, Al-Mustapha V. State (2013) 17 NWLR (Pt. 1383) 350 CA, and Abogede V. State (1996) 4 NWLR (Pt. 448) 270. Furthermore, that no weapons were found on him, and even if they do not have to be tendered in Court, it is within contemplation that they would have been found either with the Accused Persons or located in the vicinity of the place of their arrest.
He further submitted that the trial Court relied on his alleged confessional Statement that had several problems, and referred this Court to the following cases on the issue:
-Adio V. State (1986) 2 NWLR (Pt. 24) 581, Nwaebonyi V. State (1994) 5 NWLR (Pt 343) 138, Adekanbi V. Att.-Gen., Western Nigeria (1966) All NLR 47, Auta V. State (1975) NNLR 60,
-R. v. Baldry (1852) 2 DEN 430,
-Daway V. State (1980) 8-11 SC7, Saidu V. State (1982) 4 SC 41,
-Ojeabuo V. FRN (2014) LPELR-22555(CA), Ogudo V. State (2011) 18 NWLR (Pt. 1278) 1, R. v. Sykes (1913) 8 Cr. AIP. 233,
-Kanu V. The King (1952) 14 WACA 30, Dawa V. State (1980) 8-11 SC 236, Nwachukwu V. State (2002) 12 NWLR (Pt. 782) 707,
-And R. V. Ajayi Omokaro (1941) 7 WACA 146.
He argued that having denied the confessional statement, the trial Court ought not to have admitted it in evidence, unless the Prosecution had proved its authenticity beyond reasonable doubt by some other corroborative evidence; that there was nothing to corroborate it, thus, the trial Court relied upon retracted confessional statements, which were expressly precluded from evidence by the provisions of Section 29 (2) (b) of the Evidence Act, to convict him.
He further argued that the only other evidence before the trial Court was the testimony of PW1., which is insufficient to ground a conviction; that in his [Appellant]’s testimony, he admitted he was asked if he knew anything about the robbery, and he answered that he knew nothing about it, therefore, there is no independent evidence to show that the confession is true; that PW3’s testimony compared with the said confessional statement, which the Court so heavily relied on, shows major discrepancies between them; and that these discrepancies should be decided in his favour.
He further submitted that a confessional statement is only evidence against an Accused, citing Fatilewa V. State (2008) 4-5 SC (pt. 1). 191; that this rule protects an Accused from malicious statements made against him by another Accused; and that the Court misdirected itself in law when it compared his statement with that of his co-accused.
The Respondent also referred to cases on conspiracy – Clark V. State (2007) 5 ACLR 100, Obiakor V. State (2002) 10 NWLR (Pt. 776) 612, Njovens V. State (1973) All NLR 371, Balogun V. A. G., Ogun State (2002) 6 NWLR (Pt. 763) 512, and submitted that in Exhibit A5, Appellant confessed that they were armed with guns, and robbed PW3 of different handsets, two laptops and money, which is consistent with
PW3’s evidence that he lost handsets, laptops and money to armed robbers, who broke the wall, before gaining entry into his sitting room, therefore, the Prosecution linked him and proved the said conspiracy to commit armed robbery.
On armed robbery, it cited Okanlawon V. State (2015) 17 NWLR (Pt. 1489) 445, which sets out the elements thereof, and submitted that from the evidence of PW1, PW2, PW3 and Exhibit A5. It proved that there was a robbery; that from evidence of PW1, PW2, PW3, Exhibits AI, A4, A5, A6, it proved that the robbers were armed; and that from the evidence of PW1 and PW2, and his confession in Exhibit A5, it proved that the Appellant was one of the armed robbers.
It further argued citing Nsofor V. State (2004) 18 NWLR (Pt. 905) 292, Nwaebonyi V. State (supra), Igri V. State (2012) All FWLR (Pt. 653) 1826, that his confessional statement – Exhibit A5, passed all the tests laid down in the said cases, and that it had proved its case beyond reasonable doubt.
It submitted, citing Kareem V. FRN No. 2 (2002) 8 NWLR (Pt. 770) 664, that Appellant did not deny that he was being investigated for another crime, and he did not explain why his oral evidence is inconsistent with Exhibit A5; and that he said his landlord’s son told the Police he was not involved .in the fight that led to his arrest, but one else was arrested, and the said landlord’s son did not testify in his defence, therefore, the Appellant failed to discharge the burden of explaining to the Court why his statements were different.
On the issue of identification, it cited Nwaturuocha V. State (20)1)6 NWLR (Pt. 1242) 170, and submitted that the Court below was right when it held that he approbated and reprobated since the Appellant first argued that the identification evidence was poor, and later argued that an identification parade ought to have been conducted.
Furthermore, that the Court below was right to hold that the Appellant identified himself in Exhibit A5, therefore, there is no need for identification parade as the Appellant by himself identified himself, thereby removing any doubt of his involvement in the commission of the offence, citing Ikemson V. State (1989) 6 SC (Pt. 5) 114. It further argued, citing Ayeni V. State (2016) 12 NWLR (Pt. 1526) 51, that he has not shown any convincing reasons why the concurrent Judgments of the two lower Courts should be set aside.
It is clear that Exhibit A5, Appellant’s statement to the Police, which is a confession, in the real sense of the word, had a profound effect on the decisions of the lower Courts, and a good starting point is to take a very close look at it.
To this end, PW2, Cpl. Orunage Irieme, a Police Officer attached to SARS, Akure, is a key witness because the said statement was tendered through him. The Appellant had retracted the statement, but the trial Court ruled that –
Retraction does not vitiate admissibility. The statement ofAkinlo Ifedayo (Appellant) is admitted as Exhibit A5.
PW2 testified that in addition to the armed robbery at the house of PW3 in November 2011 that his team investigated, he also investigated another armed robbery that occurred in December 2011, at a Diamond Bank, which is when the Appellant, the second and fourth Accused, were arrested, and during their interrogation, they confessed to a series of armed robberies, including the one at the house of PW3.
Under cross-examination by learned counsel for the Appellant, he admitted that the Appellant, and the others, “were not caught of the scene of the crime”; that “none of the stolen items were recovered from them”; and that “no arm was recovered from them at any point”. Hence, Exhibit A5, the said Appellant’s confessional Statement to the Police is the pivot of the whole case for the Prosecution.
But it is a well-established principle that the statement of the Accused to the Police is considered part of the case for the Prosecution, whether it contains a confession or not, and whether the Accused Person resiles it at trial or not – see Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383 SC.
In this case, Defence Counsel informed the trial Court when the Prosecution Counsel sought to tender Exhibit A5 that the Appellant “retracts the statement”. A retraction, as this Court observed in State V. Gwangwan (2015) LPELR-24837(SC), means to say that something that you have said earlier is not true or correct or that you did not mean it.
The Court can convict on the retracted confessional statement of the Accused Person, but before this is done, a trial Court is enjoined to evaluate the confession and his testimony at the trial as well as other evidence adduced. This would entail the trial Court examining the new version of events presented by the Accused Person that is different from his retracted confession, and then ask the following –
-Is there is anything outside the confession, which shows that if may be true?
– Is it is corroborated in anyway?
-Are the relevant statements of fact made in it most likely true as for as they can be tested?
-Did the Accused have an opportunity to commit the offence?
-Is the confession possible?
-Is the confession consistent with other facts, which have been ascertained and established?
These are tests to be applied to a confession, as suggested by Ridley, J., in Rex V. Sykes (1913) 18 CR. App. R. 233, and the tests approved in Kanu V. The King 14 WACA 30, have been applied by this Court in a long line of decided cases, including Ogudu V. State (2011) 18 NWLR (Pt 1278) 1 SC.
In effect, where a confessional statement is the only evidence the trial Court would find to convict, particularly where it has been retracted, the trial Court should at least advice itself as to that fact, and look for corroboration no matter how slight. More importantly, it must satisfy itself that the statement was free, voluntary and properly taken and that it passed the six tests laid down in Rex v. Sykes (supra).
In this case, the Appellant stated as follows in Exhibit A5 –
I am a native of irele Local Govt, of Ondo State. I was born in 1981 info the family of Mr. and Mrs. Akinlo Samuel I attended Adeolu Nursery & Primary School Owe I later preceded (sic) Unity Secondary School Ode-Aye, between 1993 -1999. I later gained admission into Owo Polytechnic to, study Accounting and finished 2004; I work with Pikolo Construction Company at Ore. In the month of February 2011, I stop working. I know Kayode through Mukaila – – sometimes in the month of August, 2011 Kayode introduced me into robbery, our gang is made up of six men including myself (2) Mukaila (3) Kayode (4) Waidi (5) Phillip] and Tayo. I have follow them robbed (sic) from difference (sic) places like Ondo Town, Oshovo area Ore, Owo, Bread betkry (sic) at Owo, Ofosu and so on. On the 12/11/2011 in the night I follow them to robbed (sic) Chief Dr. Obanoyan at Owo, when we got there, two people stand outside while four went in through the fence, we brake (sic) the wall and gained entrance into the parlour, we robbed him with differences (sic) handset two laptops and money- – -“
Before i go on with what he had to say, i must point out that one of the stolen “handsets” was found with first Accused, Adijat Ayejigbo, who was identified as the sister of Waidi, mentioned by Appellant in Exhibit A5. He further stated –
I did not know the amount but after the operation I was shared the sum of N25, 000, Waidi left with phone and laptops, purposely to sell and return the money for us, – – I know all of us that went for the operation of that day. I did not know Adijat. I did not (sic) if Waidi gave one of the phone to her, which later led to her arrest by the Police, we also collected Obanoyen barrel gun on that day, we have cut it to shot seized (sic), we once killed one man at Ore before during (sic) the operation. Phillip used the gun, Phillip is still at large. I know I have been committing the offence of robbery that is all.
On his part, PW3, Dr. Obanoyen, testified as follows –
At about 1.00am, some men came beside my bedroom, just by the window of my bedroom. One of them shouted my name and instructed that I should open the door. They further threatened that they were prepared for me. That even if I call the Police, it would not help me. .Under the moonlight that was very bright, I was only able to recognize one of them, who is my neighbour popularly known as Better Life. I summoned courage and called the Police. After making a distress call to the Police I advised the other occupants of the house to hide themselves. At this time, I was praying and hoping that-help would come from Police before the people would gain entry because they had started hitting the wall. Unfortunately for me, they entered the house before Police came. About 5 of them entered the house with cutlasses, guns, axes and some other dangerous weapons. Immediately they started beating me. Some asked for money, which I gave to them. Some of them asked for phones, I volunteered them. I explained to some of them the use of android phone. Some were searching the wardrobes, packing all they could pack. My little boy, who is about 10 years old, could not bear the beating and came out of his hiding and suggested that he kept proceeds of his puppies that I should give them.
PW3 further testified that after the robbers left when they heard gun shots, the Policemen came inside, and that was when he came out and “saw that they had broken the wall to the living room through where they entered the house”. As to the issue of identification, PW3 explained as follows –
While I was out of the country, I got a call from SARS that the armed robbers that came to my house had been arrested. I was told that they were arrested in connection with Diamond Bank robbery, because of this I had to change my flight booking and came back home. When I got to SARS, the boys were brought out, I could not recognize any of them because that was the 2nd time ever when I would come across them but I was surprised when they truly told the Police that this is the Doctor they robbed In November 2011, last year then. At that point I had to leave. It i see the Nokia customized Multilink phone stolen from me, I will recognize it. Exhibit A1 shown to me is the Nokia customized Multilink that was stolen from me.
The Appellant submitted that PW3 never linked him or any of the Accused with “the boys” brought out when he went to SARS to identify his assailants; that though PW3 said that he recognized his neighbor, who is known as “Better Life”, he did not anytime identify him as one of the perpetrators; that he could not specifically state if he (i.e. Appellant) was carrying any dangerous weapon; and that on that basis, an identification parade was required to ascertain identity of the armed robbers. The Appellant urged this Court to overturn his conviction since no identification parade was conducted after his arrest, and as none of the Prosecution Witnesses testified to seeing him at the scene of the crime.
Identification evidence is evidence tending to show that a person charged with an offence is the same as the person, who was seen committing the offence. However, as the Court below pointed out, identification parade is not a sine qua non for identification in all cases where there is other evidence leading conclusively to the identity of the perpetrators of the offence – see Ikemson V. State (supra), (1989) 3 NWLR (Pt. 110) 455 SC, wherein this Court held that an identification parade is only essential in the situations:
-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.
Karibi-Whyte, JSC, also explained in Ikemson’s Case that;
In such a situation, a proper Identification will take into consideration 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 his Judgment in that case, Oputa, JSC, aptly observed –
Where a witness first acquaintance with the Accused is during the commission of the offence, there, an Identification parade may be held. But such a parade is not fool proof. It is not a guarantee against the usual errors of observation, errors of recognition or errors in reconstruction. – – – Learned counsel, by purposeful cross-examination, should endeavor to expose the errors of observation, of recognition, of resemblance, etc. Identification parade is not just the answer. The trial Court should be satisfied that the evidence of identification proves beyond reasonable doubt that the Accused before the Court was the person, who committed the offence charged.
In this case, as I noted earlier, Exhibit A5 is the pivotal piece of evidence, upon which the Prosecution founded its case, and upon which the two lower Courts based their findings. In affirming the trial Court’s finding, the Court below held –
Identification parade should never be conducted for purely cosmetic reason; it should be limited to cases of real doubt or dispute as to the identity of an Accused or his connection with the offence charged. To insist that it must be conducted as in [this] case, in which the identity is clear and corroborated by other uncontroverted evidence, and the Accused confesses to his complicity in the crime, is to make a mockery of justice. – – The confessional statement of Exhibit A5 is an admission by Appellant that he was one of the persons, who robbed PW3. The victim of the offence charged gave uncontroverted evidence as to how he was robbed, so also PW1, who came to rescue the victim, stated how he encountered the culprits. The Appellant identified himself in his confessional statement Exhibit A5, therefore, there is no need for further identification parade as the Appellant by himself identified himself thereby removing any doubt of his involvement in the commission of the offence. In Ikemson V. State (supra), Oputa, JSC, stated –
“The 3rd Accused – the 2nd Appellant in this Court needed no further identification. By his confession, he identified himself. In his case, there was, thus, no need for any further identification. The 2nd Accused was identified by his brother thief – the 3rd Accused – – “.
Having regard to the facts and circumstances of this case, no issue as to identification of the Appellant was raised to warrant an identification parade. Put differently, an identification parade is not a sine qua non for a conviction of an Accused for an alleged crime. – – The evidence of the Prosecution coupled with Appellant’s confessional statement, Exhibit A5, constitute convincing, cogent and compelling evidence, which made an identification or identification parade irrelevant in this case. The identity of Appellant as one of the persons, who robbed PW3, was proved beyond reasonable doubt. The finding of the trial Court on this cannot be faulted.
Needless to say, the concurrent findings of the Court below and trial Court on this issue of identification must be upheld. As Ariwoola, JSC, aptly stated in Tirimisiyu Adebayo V. State (2014) LPELR-22988(SC), an identification parade is a Police identification procedure in which criminal suspect and other physically similar persons, are shown to the victim or witness to determine whether the suspect can be identified as the perpetrator or one of the perpetrators of the crime. It is otherwise called and referred to as “line up” – see also Folorunsho Alufohai V. The State (2014) LPELR – 24215 (SC).
The essence of the identification parade is, therefore, to enable an eye witness to the commission of the crime, 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”.
In this case, the Appellant argued vehemently that he was not arrested at the scene of the crime, and that none of the Prosecution Witnesses, including PW3, identified him as one of the armed robbers that operated in PW3’s house. PW2 confirmed he was not seen during the commission of the crime and was not arrested at the scene of the crime, and the question, therefore, is if nobody saw him that night, Who is to pick him out amongst other people in a “line up”?
As the Court below rightly said, identification parade should never be conducted for purely cosmetic reasons. An identification parade becomes a necessity when there is a need to establish the identity of a suspect, and the aim is to make sure that the actual offender is the one arrested.
There are many cases where an identification parade is of no use whatsoever, 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 Jua V. State (20)0) 4 NWLR (Pt. 1184) 217 SC, Archibong V. State (2006) 14 NWLR (Pt.1000) 349 SC, Eyisi V. State (2000) 15 NWLR (Pt 691) 555 SC.
In this case, the Prosecution Witnesses, including PW3, could not have picked the Appellant out from a “line up”, since he was not seen or arrested at the scene of the crime. However, the Appellant in Exhibit A5, which as I said earlier, forms part of the case for the Prosecution, identified himself as one of the perpetrators of the crime, therefore, the need for an identification parade, as argued by him, is fruitless.
In Exhibit A5, the Appellant gave a detailed account of how he and his gang conspired to rob and robbed PW3, and I agree with the Court below that his confession is so detained that no one can be left in doubt as to its truth.
His narration of events from the breaking of the wall by him and his gang to gain entry into PW3’s house to the items they took from PW3, including “handsets”, which they gave to one of them, Waidi, to sell for them, is in keeping with the evidence of PW3 and PW2, who was able to trace one of the “handsets” to the first Accused, who is Waidi’s sister.
The Appellant sought to hide behind the fact that PW3 never linked him to “the boys” that were brought out when he went to SARS to identify the perpetrators of the offence. He also contends that he was not arrested because of the robbery at the Diamond Bank but because of a mere fight.
It is settled that when a witness testifies on a material fact in controversy in a case, the other Party, if he does not accept that it is true, should cross-examine him or at least show that he does not accept the evidence as true, and where he fails to do either, the Court can, and will take his silence as acceptance that he does not dispute same – see Simon V. State (2017) LPELR – 41988 (SC) and Oforlete V. State (2000) 12 NWLR (Pt. 681) 515 SC where Achike, JSC, said –
The noble ad of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is, therefore, good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness, whose evidence is under fire.
In this case, the cross-examination of PW3 reads as follows –
When I got to SARS, the three Accused Persons were brought out. The Police asked whether I could recognize them but I could not. The Police now asked them whether they knew me they answered in the affirmative. That this is the Doctor we robbed at Owo.
Obviously, rather than demolish, contradict or water down the Prosecution’s case, and render his evidence doubtful or improbable, which is the essence of cross-examination, PW3’s response strengthened the case for the Prosecution, and negative the defence put forward by the Appellant.
The Appellant also submitted that there was material contradiction in the evidence of the Prosecution Witnesses, particularly PW3. He argued that if he could not recognize them at SARS, “how did he know that his meeting them was the 2nd time he had ever seen them”; which suggests that he had simply been told that they were the armed robbers; and that PW3 added “axes” at trial to “guns and cutlasses” specified in his Statement to the Police, therefore, this Court should regard the evidence of PW1 and PW3 as unreliable.
The position of the law on the issue of contradictions in the evidence of witnesses that testify in Court is well-settled; it is not every minor contradiction in evidence 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 SC.
And Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 57, where this Court per Tobi, JSC, eloquently explained that –
Although witnesses see and watch the same event they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not – – – mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not material or substantial, will go to no Issue. The main interest of the Court is that the witnesses are in union or unison as to the happening of the event but gave different versions in respect of the peripheral surrounding the event.
In this case, that PW3 could not have seen the Appellant a “2nd time” as he never saw him before, and that he added “axes” to “guns and cutlasses” is immaterial; they are minor discrepancies that do not cause any dent in the evidence given that the armed robbers recognized him at SARS, and the Appellant’s admission that they were armed with guns.
The bottom line is that the confession of the Appellant in the said Exhibit A5 solidified the case for the Prosecution, and since the Appellant has not presented this Court with any good reason to interfere with the concurrent findings of the two lower Courts, there is nothing this Court can do.
Thus, the Appeal lacks merit and it is hereby dismissed.
SC.62/2015
