Christopher Okereke Ukpabi V.the State (2004)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

The appellant was arrested on 11th July, 1978 along Ngwa Road, Aba and later charged for the offence of armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended. He was arraigned before the High Court, Aba and tried for the said offence. On 30th March, 1982, the learned trial Judge (Nsofor, J.) found him guilty of the charge and convicted him. He was sentenced to death. His appeal to the Court of Appeal, Port Harcourt Division, was dismissed on 21st March, 2002.

The appellant has appealed to this court on two grounds of appeal. I shall state them without their particulars as follows:

“(i) The learned Justices of the Court of Appeal erred in law in affirming the conviction and sentence of death against the appellant when the evidence upon which he was convicted depended wholly or substantially on the correctness of one or more identification of the appellant which the defence alleged to be mistaken and in the absence of a valid identification parade and warning contrary to the guidelines laid down in R. v. Turnbull (1976) 3 All ER 549 as approved by the Supreme Court in the case of Zekeri Abudu v. The State (1985) 1 NWLR (Pt. 1) 55, 61, 62.

(ii) The learned Justices of the Court of Appeal erred in law in affirming the conviction of the appellant of the offence of armed robbery and sentencing him to death when the guilt of the appellant was not proved beyond reasonable doubt by the prosecution.”

As will be noticed, the first ground complains of the nature of identification of the appellant while the second ground complains of the insufficiency of the evidence. But the appellant raised only one issue for the determination of the appeal. It reads thus:

“Whether or not the learned Justices of the Court of Appeal were right in affirming the conviction and sentence of death on the appellant when the only thing linking him to the offence of armed robbery was his alleged identification by the victim of the crime, which identification the appellant strongly disputed.”

This issue covers only ground 1. However, the respondent relying on the two grounds of appeal, raised also a single ground which appears to cover the two grounds. The issue reads:

“Whether the learned Justices of the Court of Appeal were right in affirming the conviction and sentence of the appellant in the circumstance.”

The facts of this case were clearly narrated by the two courts below. Briefly, one Samuel Sunday (P.W.2), a petty trader, was taking his wares to the market on 11th July, 1978 along Ngwa Road, Aba in the early hours of the morning. At about 5 a.m. he was accosted by a man whose name he later knew to be Christopher Okereke Ukpabi. He is the appellant. The said P.W.2 was carrying a bag on his head and holding a hand bag. The appellant stopped him and ordered him to search his own person. The first instinct of the appellant was to resist. At that stage, two other persons appeared on the scene. One of them who wore a mask held a gun. The appellant asked P.W.2 to choose between searching himself and death. This frightened P.W.2 and he surrendered his wares together with N25.00 in cash to the men. The wares were 80 dozen of headties valued at N315.00 and 50 pieces of gowns valued at N200.00. Also taken from him were his wrapper cloth, a pair of trousers, one shirt, a towel, a portfolio and some documents.

The men gave P.W.2 a warning to continue in the direction he was going and not to look back. He did as he was directed and after some distance he hid somewhere along the said Ngwa Road. Later, he retraced his steps to go home to report his experience. It was on his way back that he recognised the appellant buying some cigarettes at a small store at the park along Ngwa Road. He gripped him and a crowd of people gathered. One of the people called in the police. The P.W.2 said he was able to recognised the appellant from his face and the way he walked with his lame leg.

The appellant in his testimony claimed to be a beggar who had come from Arochukwu to Aba and that he did not live on Ngwa road. He admitted that on 11th July, 1978, the P.W.2 came round to lay hands on him and both began to fight. He said P.W.1 was one of those who came to intervene. In the testimony of P.W.1 he confirmed that he saw P.W.2 and appellant exchange words. He said P.W.2 demanded from the appellant to return his property but the appellant asked whether P.W.2 had come to take advantage of his deformity.

The appellant made a statement to P.W.3, Sgt. Oto Ebere. In it he said he was having a drink with two other boys in a hotel along Ngwa Road on 11th July, 1978 around 6 a.m. when he had an encounter with the appellant. He claimed that the two boys worked and lived in that hotel. He added:

“Then one man brought a bag and a water proof bag. He said we should guard the bags for him and he was going to bring another bag. Immediately he was going one of the workers whom I was chatting with carried the portfolio and the bag and said that he was going to keep them for upstairs.”

He said further in the statement that he had gone out to change his dress and that it was –

“when I came out the boy who brought me to the Police Station gripped me when I demanded whether he had collected his bags from the upstairs because I saw the boy when he carried it (sic) upstairs and said that he was going to keep it for safe.” (sic)

The learned trial Judge considered the evidence carefully and made findings of fact (1) that P.W.2 was indeed robbed of those items, as enumerated, on 11th July, 1978 along Ngwa Road; (2) that one of those who robbed him wore a mask and held a gun; (3) that the appellant was the first person who accosted P.W.2; (4) that P.W.2 saw his face. The learned trial Judge held that although the appellant did not himself hold a gun, he was caught by the principle of common intention and common purpose as stated in section 7(a) of the Criminal Code [section 8 of the Criminal Code of Western Nigeria] and as applied in Digbehin v. The Queen (1961) 1 All NLR 388 at 391 per Brett, JSC. The Court of Appeal concurred with those findings and the law as applied.

Mr. Ukiri, learned counsel for the appellant, made a spirited argument that the identification of the appellant by P.W.2 was not free from criticism and danger. He cited R v. Turnbull (supra) approved in Zakari Abudu v. The State (supra) by this court to support his contention to the effect that the appellant had little time to observe who accosted him. Mr. Onyeka, learned counsel for the respondent, argued that it was about 2 hours from the time P.W. 2 was accosted that he saw appellant and so his memory of the facial look of the appellant together with his peculiar features was still fresh. He drew attention to the statement (exhibit 1) which the appellant made to the police.

I think it must be recalled from the evidence that when the P.W.2 was confronted and was asked to search himself, he at first refused. I think it might be fair to say he did not then feel afraid but looked at the appellant straight in the face. He might have thought he could stand up to the person who so ordered him. It was when the man in mask showed up with a gun to request the appellant to choose between searching himself and death that he knew the danger he faced and so surrendered. I think he had enough time to observe the face of the appellant who was the man that first confronted him. Besides, the appellant’s lame condition could hardly be mistaken by P.W.2.

It is true that whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused, and the defence alleges that the identification was mistaken, the court must closely examine the evidence. In acting on it, it must view it with caution, so that any real weakness discovered about it must lead to giving the accused the benefit of the doubt. This is the principle laid down in R. v. Turnbull (supra). It has been approved in this country: see Abudu v. The State (1985) 1 NWLR (Pt.1) 55 at 61-62; Mbenu v. The State (1988) 3 NWLR (Pt.84) 615 at 628. In my view, the principle is more appropriate in circumstances where identification parade was considered necessary and had been conducted.

In the present case, there was no question of a formal identification parade. It was not necessary. What happened here was that P.W.2 recognized one of those who robbed him while the matter was still fresh in his mind and, incidentally, the man was still in the neighbourhood and within easy reach, as it were. As said by Lord Widgery, C.J. in R v. Turnbill (supra) at page 552:

“Recognition may be more reliable than identification of a stranger.”

Although it must be conceded that even the act of recognition is not completely immune from mistake being made sometimes, I do not think that, in the circumstances of this case, the P.W.2 would have been mistaken when he recognized the appellant in whose hands, in the company of other two men, he had just suffered loss of his properties. It was a spontaneous recognition: see Eyisi v. The State (2000) 15 NWLR (Pt.691) 555 at 595.

Mr Ukiri had argued that the P.W.2 could not have seen the face of the appellant because, according to him, he was backing him. I do not feel able to accept that. There is nothing in the printed record that the P.W.2 was backing the appellant. In fact to suggest that would fly in the face of what the appellant said his initial reaction was when the appellant ordered him to search himself. He said he refused. It is most improbable that he would have dared to defy such an order without taking a view of the person who had given it. He must have seen that the appellant was not armed and did not constitute a threat he could not meet. It was when the masked man with a gun appeared that the P.W.2 appreciated the futility and danger of resistance.

It is at this stage I ought to recall that the identification or recognition asserted by the P.W.2 does not stand alone in this case. As shown by Mr. Onyeka, the appellant implicated himself in the written statement (exhibit 1) he made to the police. It is true he denied that exhibit 1 was the statement he made to the police. The two courts below disbelieved that denial. Before us, Mr. Ukiri attempted to give a different meaning to what is recorded in exhibit 1. But I am afraid he did not quite succeed in this because the statement is not ambiguous. It shows that the appellant had attempted to concoct a story as to what happened to the P.W.2’s properties. The investigating police officer, Sgt. Oto Ebere (P.W.3), said he tried to follow up that story but that it collapsed. He gave details of that but I do not need to go over them. It is enough for me to say that there are concurrent findings based on the facts as accepted by the two courts below. The said concurrent findings of fact are not in any way perverse. This court will not in principle interfere with concurrent findings of fact unless special reasons justify such interference. That is where there is a miscarriage of justice arising from a violation of some principles of law or procedure, or if the findings are perverse: see Ugwumba v. The State (1993) 5 NWLR (Pt.296) 660; Ogunlana v. The State (1995) 5 NWLR (Pt.395) 266; Effia v. The State (1999) 8 NWLR (Pt.613) 1. I cannot find any special reasons in this case to interfere with the concurrent findings of fact.

I have come to the conclusion that there is no merit in this appeal. I accordingly dismiss it and affirm the decision of the court below.

SC.237/2002