Christopher Okereke Ukpabi V. The State (2002)
LawGlobal-Hub Lead Judgment Report
AKPIROROH, J.C.A.
This is an appeal against the decision of Imo State High Court, Aba Judicial Division (now Abia State High Court, Aba Judicial Division) delivered on the 30th day of March, 1982 in charge No. A/11C/80 wherein the appellant was convicted of the offence of Robbery contrary to section 1(2)(a) of the Robbery and Fire-arms (Special Provisions) Act No.47 of 1970.
The facts of the case put briefly are as follows:
On 11/7/78 at about 5 a.m., PW2 Samuel Sunday, was on his way to market carrying some goods. At a point along Ngwa Road, someone whom he later knew to be the appellant stopped him and ordered him to search himself. He resisted the order and suddenly two other persons emerged at the scene, one of them was wearing a face mask and holding a gun on his hand. At this stage, the appellant asked him to choose between searching himself and death and he surrendered his goods which included eight dozens of headties valued N315.00, fifty pieces of gowns valued N200.00 and other personal effects and the sum of N25.00. He was ordered to continue going on the direction he was coming from without looking backwards.
As he was going to report his experience on the road to his people, he saw and recognized the appellant as one of those who robbed him buying some cigarettes at a small store at the park along Ngwa Road. He arrested him and held him until the Police arrived.
He stated that the electric light in front of the store where he was robbed enabled him to see the face of the appellant clearly and recognized the way he walked.
The prosecution also called Sunday Olori PW1 and Police Sergeant Oto Ebere who testified as PW4 and tendered the statement of the appellant as exhibit 1.
The defence of the appellant is a total denial of the charge. He gave evidence that he was a beggar and that he was sitting by the side of the road begging when PW2 passed by and asked him if he saw two men who passed the road where he sat and he said no. PW2 then informed him that some people had carried his goods and they were running towards Ngwa Road. He then held him saying that he was the leader of the men who robbed him and a fight ensued between the two of them. He was later taken to the Police Station were PW2 lodged a complaint against him and he was eventually arrested by the Police.
At the end of the trial, the learned trial Judge found the appellant guilty and convicted him accordingly. Dissatisfied with the decision, the appellant has appealed to this court and filed a brief of argument and raised two issues for determination.
“Issues For Determination”
Whether the learned trial Judge was right in holding that the PW2 saw the face of and recognized the appellant at the scene of the incident having regard to the doubtful circumstances of recognition and identification existing in this case and failure to advert to the special need for warning and caution before convicting the appellant in reliance on the correctness of the identification.
Whether the learned trial Judge was right in convicting the appellant of the offence as charged and sentencing him to death when the prosecution failed to prove the charge against the appellant beyond reasonable doubt?
Learned counsel for the respondent also filed a brief of argument and adopted the two issues raised by the respondent.
On issue one, learned counsel for the appellant submitted that the learned trial Judge was wrong in holding that PW2 saw the face and recognized the appellant at the scene of the incident having regard to the doubtful circumstances of recognition and identification. He argued that failure to conduct proper identification is fatal to the case of the prosecution. He further contended that there is doubt whether PW2 recognized the appellant having regard to his evidence under cross-examination when he said that he was pre-occupied with how to save himself stressing that under such circumstances, he could not have the opportunity of close facial examination out of fear he expressed himself on how to save his life. Learned counsel further argued that the learned trial Judge failed to recognize that as the case against the appellant was based principally on the facial identification by PW2, his evidence should have been very closely examined and received with caution after warning himself. Reliance was placed on the cases of R. v. Turnbull & Anors. (1976) 3 All ER 549 at 551-552; Nathaniel Mbenu & Anor v. The State (1985) 3 NWLR (Pt.84) 615 and Zekeri Abudu v. The State (1985) 1 NWLR (Pt.1) 55 (1985) 1 SC 222. He referred to the inconsistent evidence of PW2 at page 17 lines 23 – 24 of the records where he said that he first saw the accused when he dragged him to the Police Station and page 17, lines 24 – 26 where he said that the first time he saw the accused was when he stopped him on the road, and submitted that the learned trial Judge was silent on this evidence and no explanation was furnished for the inconsistency in the evidence of PW2 as to the time he saw the appellant for the first time on the day of the incident and relied on the cases of Joshua v. The Queen (1964) 1 All NLR 1 at 2-3; Onubogu v. The State (1974) 9 SC 1 and Williams v. The State (1975) 9 – 11 SC 139 at 150.
In reply, learned counsel for the respondent submitted that an identity of the appellant is not in issue in the case. It was unnecessary to conduct identification parade and relied on the case of Igbi v. The State (2000) 3 NWLR (Pt. 648) 169; (2000) 75 LRCN 303 and Okosi & Anor v. The State (1989) 1 NWLR (Pt. 100) 642; (1989) ANLR 170 at 178. He also relied on the evidence of PW2 who said that he saw and recognized the appellant by the light in front of the store which enabled him to recognize his face. It was also his submission that the issue as to whether the appellant was properly identified by PW2 or not is a question of fact which the trial court meticulously resolved at page 52 lines 17 – 30, page 53 lines 1 – 25 and page 54 lines 1 – 29 to the effect that the appellant was properly identified by PW2. Reliance was placed on the case of Orimoye v. The State (1984) 10 SC 138. He further argued that the submission of learned counsel for the appellant that the trial Judge relied on the dock identification of the appellant by PW2 is not correct because PW2 said under cross-examination that he saw the appellant before he was saddled with how to save himself from him. He further argued that the circumstances relating to the identity of the appellant by PW2 are not suspicious and as such the learned trial Judge had no obligation to warn and caution himself before accepting the evidence of PW2 as his identification of the appellant is not doubtful. On the submission of learned counsel to the appellant that there is conflict in the evidence of PW2 as to when he first saw the appellant in view of his evidence at page 17 lines 23 – 24 of the records to the effect that the first time he saw the appellant was when he dragged him to the Police Station and his evidence at page 17 lines 24 – 26 of the records to the effect that the first time he saw the appellant was when he stopped him on the Ngwa Road is not fatal to the case of the prosecution because the evidence of PW2 at page 17 lines 24 – 26 of the record explained any ambiguity that arose in his evidence as to the first time he saw the appellant. Reliance was placed on the cases of Eze v. The State (1997) 1 SCNJ 257 ratio 2; Ibe v. The State (1992) 5 NWLR (Pt. 244) at 642 and Adetola v. The State (1992) 4
NWLR (Pt. 235) 267. He further contended that substantial justice in this case requires the court to hold that there is no inconsistency or conflict in the evidence of PW2 as to the first time he saw the appellant on the day of the incident. It was the contention of learned counsel for the appellant that the circumstances of recognition and identification of the appellant by PW2 were doubtful as there was no proper identification parade for the appellant to be identified by PW2 and as such the learned trial Judge was wrong in relying on the dock identification of the appellant by PW2, stressing that failure to conduct an identification parade was prejudicial to the appellant resulting in a substantial miscarriage of justice.
The issue as to whether the appellant was properly identified by PW2 is a question of fact which was meticulously resolved by the learned trial Judge in his judgment. At page 32 lines 17-30 of the records, the learned trial Judge held:
“The next issue is this, was the accused person Christopher Okereke Ukpabi, in the company of those who, being armed with gun, robbed the PW2. Samuel Sunday on the 11th of July, 1978 along Ngwa Road, Aba? In other words, who did the PW2 see and recognized as one of those who robbed him? The issue is of identity of the accused person. Did the PW2 see the accused and recognized him? On this issue, the evidence of the accused person as DW 1 is that he was the person the PW2 saw if he saw anybody at all.”
Continuing at page 53 lines 9 25, he said:
” … There is however the evidence of the prosecution that the PW2 saw and recognized the accused as one of those or among those who robbed him (PW2) on 11th July, 1978. It was the accused who first stopped the PW2 and asked him to search his person before the other armed men joined him. There is evidence also before the court that the PW2 saw and recognized the face of the accused person with the help of electric light in front of the store along Ngwa road where the PW2 was stopped and accosted and robbed.”
The evidence elicited from the cross-examination of PW2 is:
“I recognized him by his face and by the way he walked.”
The PW2 demonstrated in court how the accused walked. There is further evidence too under his cross-examination. At page 54 he continued:
“There was an electric light in front of the store. I was halted by the accused in front of the store where there was light.”
Pressed still under cross-examination, the PW2 said:
” The light at the store was enough to enable me recognize the accused.”
There is also the evidence in chief of the PW2 that:
” As I went back home to report my experience to my people, I saw and recognized one of those who robbed me buying some cigarette at a small store at the park along Ngwa Road. 1 arrested him then …”
At page 56 lines 20 – 23 he said:
“I find it as a fact that the accused was in their company and that they were engaged in the robbery as comrades In crime.”
The above findings are supported by the evidence led before the learned trial Judge. PW2 said in his evidence that there was electric light where the appellant halted him and that the light at the front store enabled him to recognize the appellant. He also said that he recognized him by the way he walked. The learned trial Judge who saw PW2 when he testified before him believed him and disbelieved the evidence of the appellant. It is well settled in a long line of decided cases that once a trial court or a Tribunal properly evaluate evidence adduced and makes a finding which is reasonably supported by the evidence, an appellate court is precluded from interfering with such findings. See Ezike v. Ezeugwu (1992) 4 NWLR (Pt. 236) 462 at 476; Ayua v.Adasu (1992) 3 NWLR (Pt. 231) 598 at 609. Suffice therefore to say that PW2 sufficiently identified the appellant as held by the learned trial Judge and as such the submission of learned counsel for the appellant that failure to conduct an identification parade was prejudicial to the appellant and resulting in a miscarriage of justice is untenable in the circumstance of this case where the identification of the appellant is not in issue. See Igbi v. The State (supra).
The submission of the learned counsel for the appellant that failure on the part of the learned trial Judge to warn and caution himself before convicting the appellant on the suspicious identification of the appellant by PW2 is misconceived, because the identification of the appellant by PW2 is not suspicious and as such, the learned trial Judge is not bound to warn and caution himself before convicting the appellant on the evidence of PW2.
It was also the submission of learned counsel for the appellant that the conflict in the evidence of PW2 at page 17 lines 23 -24 of the records where he said that the first time he saw the appellant was when he dragged him to the Police Station and his evidence at page 17 lines 24 – 26 where he said that the first time he saw the appellant was when he stopped him on Ngwa Road is fatal to the case for the prosecution as no explanation was furnished for the conflict.
At this stage, I would like to reproduce the evidence of PW2 at page 17 lines 23 – 24 of the records:
“The first time I saw the accused was when I dragged him to the Police Station.”
At page 17 lines 24 – 26 he said:
“The first time ever that I saw the accused was when he stopped me on the road. Ngwa Road.”
While I agree with the submission of learned counsel for the appellant that no explanation was given for the two versions of PW2 as to when he first saw the appellant on the day of the incident. It is my view that this minor contradiction in his evidence is not sufficient to vitiate the case presented by the prosecution in the lower court. It is now settled law that for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to the prosecution’s case, the conflict or contradictions must be substantial and fundamental to the main issues in question before the court. see Ibe v. The State page 463 (supra); Onubogu v. the State (1974) 9 SC 1.
In Enahoro v. The Queen (1965) NMLR 265 at 281- 282. The Supreme Court observed as follows:-
“In the case of OMISADE, we pointed out that where the ground of Appeal relied upon was that of contradictions in the evidence of witnesses, it is not enough to warrant a reversal of judgment merely for the appellant to show the existence of those contradictions without showing further that the trial Judge did not advert to, and consider the effects of these contradictions. Besides, we take the view that for the appellant to succeed on the ground of contradictions in the evidence of witnesses for the prosecution, the contradictions must be shown to amount to substantial disparagement of the witness or witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses …”
It is my view that the conflict as to when PW2 first saw the appellant on the day of the incident is a minor contradiction having regard to the evidence led before the court by PW2 and as such, it can safely be ignored as it does not result in a miscarriage of justice. This issue is also resolved in favour of the respondent against the appellant.
On the second issue, learned counsel for the appellant submitted that whether the learned trial Judge was right in convicting the appellant of the offence as charged and sentenced him to death when the prosecution failed to prove the charge against the appellant beyond all reasonable doubt.
In reply, learned counsel for the respondent submitted that the onus on the prosecution to prove the charge beyond reasonable doubt does not imply proving the case beyond shadow of doubt. He further argued that what the appellant is complaining against is a mere shadow of doubt that is of no substance in law, stressing that the prosecution has proved the guilt of the appellant beyond all reasonable doubt. Reliance was placed on the case of Aheke Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538; (1987) 7 SCNJ 238.
With respect to learned counsel for the appellant, I am of the view that the guilt of the appellant was proved beyond reasonable doubt considering the evidence and findings of facts made by the learned trial Judge based on the evidence led before him.
In the final result, the appeal fails on the two issues upon which it was argued. I accordingly dismiss it and affirm the judgment of the court below.
Other Citations: (2002)LCN/1112(CA)
