Daniel Kekong V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

On 19th January, 2013, at about 8.00p.m., one Perpetua Ubua (PW.1) a GSM recharge card dealer, was attacked and robbed of her handbag containing recharge cards worth N128,000.00 plus the sum of N285,000.00 cash and two (2) mobile cell phones (a Nokia and a Techno) by three men on motorcycles The PW.1 was a passenger on another motor-cycle. She was returning home from her shop after the day’s business. The three boys on their motor-cycle followed the motor-cycle conveying the PW.1.

The motor-cycle from behind was ridden into that conveying PW.1. The three boys allegedly started beating the PW.1 and the person conveying her. One of the boys snatched the PW.1’s hand bag. The PW.1 struggled with him over the hand bag. She was overpowered. She was shouting for help. The boys then started shooting gun to scare people away, and thereafter fled with PW.1’s handbag. The recharge cards in PW.1’s handbag included GLO recharge cards of N100.00 denomination. The PW.1 later testified that the person she struggled with, who took her hand bag was the 2nd Accused/Appellant.

On 22nd

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January, 2013 one girl (identified later as Elizabeth Ajah Obu. who testified as the PW.2) brought 30 pieces of N100.00 GLO recharge cards worth N3,000.00 to PW.1’s salesgirl. The girl (PW.2) wanted to sell them. She claimed that she wanted to sell the 30 GLO recharge cards to enable her buy her book.

The PW.2 pleaded with the PW.1 to give her anything for the recharge cards. While the PW.1 was haggling with the girl (PW 2) she sent her sales girl to the nearby Police Station to get Police officers to her shop. PW.1 in a ploy to delay the PW.2, told the PW 1 that she needed to use her ATM card to withdraw cash from the bank. In the meantime the Divisional Police Officer (DPO) was contacted. The police arrived and they were all taken to the police station.

In the course of investigation, the PW 2, Elizabeth Ajah Obu, named a driver, Promise Bassey Inyang, as the person who gave the recharge cards to sell. Promise Bassey lnyang (later charged and prosecuted as the 1st Accused) named the Appellant (charged as the 2nd Accused) as the person who gave him the 30 GLO recharge cards to sell them for him. The 1st Accused did not know how the 2nd Accused came

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about the recharge cards. He assisted the police to arrest the 2nd Accused.

The 1st and 2nd Accused were jointly charged and tried for armed robbery contrary to Section 1(2)(a) & (b) of the Robbery and Firearms Act. Cap R.11 of the Laws of the Federation, 2004. The High Court of Cross River State (Coram: Ashai A. Ewah J) in a considered judgment after the conclusion of evidence and counsel addresses, convicted and sentenced the 2nd Appellant as the 2nd Accused, to death for the offence of armed robbery charged. The 1st Accused was discharged and acquitted.

The Appellant’s appeal against his conviction and sentence was dismissed by the Court of Appeal, Calabar Division (hereinafter called the Court below) on 28th October, 2014. This further appeal is against the decision of the Court below affirming the conviction and sentence of the Appellant. From a total of four (4) grounds, two (2) issues have been formulated for the determination of this appeal. They are:-

1. Whether the non-admission in evidence of the Police investigation Report (PIR) dated 22/01/2013 by the learned trial Judge and the subsequent affirmation of that finding by

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the Court below was proper in law having regard to the principle governing admissibility of documents and whether the rejection of PIR did not cause injustice to the Appellants (Ground 1)

2. Was the Court below right to have affirm (sic) the Appellants conviction for armed robbery for the reason that the learned trial judge properly and correctly evaluated the evidence adduced at the trial (Ground 2, 3, & 4)

ISSUE 1: EXCLUSION OF THE PIR

The application, culminating in the learned trial Judges refusal to admit the PIR in evidence, was orally made by the counsel for the 1st Accused. The said counsel had sought to tender the PIR, in evidence for the purpose of contradicting the PW.3, a police investigating officer. The learned counsel had alleged that in the PIR it was recorded that the PW.1 had told the police that she could not identify those who stole her recharge cards. The application was apparently brought under or pursuant to Section 232 of the Evidence Act, 2011 that provides –

“232. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in

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question in the suit or proceeding in which he is cross-examined without such statement shown to him or being proved, but if it is intended to contradict such witness by the writing, his attention must before such writing can be proved, or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him;

Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purpose of the trial, as it deems fit.

In a short bench ruling on the application which neither the Appellant (2nd Accused) nor his counsel associated themselves with, the learned trial Judge held inter alia-

“It is the view of this Court that the said Police Investigation Report cannot be tendered through the IPO i.e., PW3 who did not make any use of such report. He cannot answer any question from such report.

Counsel for the 1st Accused person has failed to point out any specific point in which he wish (sic) to contradict the PW3 as per the report. The essence of having such documents is for the parties to be

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asked questions or make use of some to bring out any area of contradiction before the application for it being tendered is made.

The 1st Accused did not appeal this ruling. He was eventually discharged and acquitted after full trial. There is no doubt the 1st Accused accepted the ruling on his application.

For the 2nd Accused/Appellant only two questions were asked concerning the police investigation report; and they are at page 85 of the Records

Q: You said that you did not make any investigation report in this case.

PW.3: For the 2nd accused person I made investigation report.

Q: Did you tendered the report

PW.3: It is with the State.

The Court below affirmed the trial Court’s rejection of the PIR in evidence on the grounds that the PW.3 was not the maker of the PIR, and therefore, it was not admissible in evidence through him. The Court below further held that since the rejection of the PIR was on the application of the 1st Accused; the Appellant, as the 2nd Accused, was therefore not affected by its rejection or exclusion.

The contention of the Appellant before us in this Court is that the PIR is a relevant

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piece of evidence; and that on authority of KARUMA v. QUEEN (1955) AC 197 at 203 cited with approval in IGBINOVIA v. THE STATE (1981) 12 NSCC 63 at 68 – 69, once any piece of evidence is relevant it does not matter how it was produced or obtained.

It appears the principle espoused inKARUMA v. QUEEN (supra) adopted as part of Nigerian Jurisprudence in IGBINOVIA v. THE STATE (supra) is what has now been enacted as Section 14 of the Evidence Act, 2011, that provides –

14. Evidence obtained

a) Improperly by or in contravention of a law; or

b) in consequence of an improperly of or contravention of a law.

Shall be admissible unless the Court is of the opinion that the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence that has been obtained in the manner in which the evidence was obtained.

For this appeal the issue is not whether evidence illegally or improperly obtained which thereby flouts the provisions of any other Statute, including a Constitutional provision, is admissible in evidence. That situation, in which a constitutional provision is flouted is likely to attract the

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invocation of the supremacy provision of the Constitution contained in Section 1(3) thereof which is to the effect that “any other law including Section 14 of the Evidence Act is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”. As the blacksmith beats only the iron from the foundry, let me concentrate on the issue at hand.

A careful perusal of Sections 14 and 15 of the Evidence Act, 2011, reveals that the trial Court has enormous discretion in admitting or refusing to admit in evidence any piece of evidence improperly produced or procured in contravention of the law.

The learned counsel for the Appellant has submitted, in general terms, that the simple principle of law is that relevancy governs admissibility of document; that once a document is relevant, it is admissible in evidence, and that it does not matter how the document was procured. The learned counsel, with all deference to his knowledge of the law of evidence, is not too correct in this over generalization. For instance, under Section 83(1) of the same Evidence Act, only the original

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copy of a document produced by its maker, if it is relevant to the facts in issue, is admissible in evidence. There are, however, other qualifications to the rule in Section 83(1) of the Evidence Act. While Section 88 of the Act directs that documents shall be proved by primary evidence it makes allowance for exceptions including secondary evidence of the existence, condition or contents of a document e.g. as in Section 89 thereof. A secondary evidence of the contents of a document which is not produced in accordance with the material provisions of the Act, though relevant to the issue in the proceedings, will not be admissible in evidence.

Section 1 of the Evidence Act is to the effect that evidence may be given of the facts in issue and relevant fact. Proviso (b) thereto is categorical that the Section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force. There is no doubt that by virtue of Section 2 of the Evidence Act that a piece of evidence excluded either by the Act itself or any other legislation validly in force in Nigeria cannot be admissible in evidence. It

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is therefore, not only relevancy that governs admissibility. A piece of evidence may be relevant and yet could, by operation of law, be inadmissible.

There is a procedure in Section 232 of the Evidence Act, 2011 for admitting in evidence the previous statement in writing of a witness who is under cross-examination, if it is intended thereby to contradict him and impeach his credibility. Section 232 of Act gives the person cross-examining a witness two options. Bello, JSC, in AJIDE v. KELANI (1985) 3 NWLR (pt.12) 248 at 200 – 261, (1985) 16 NSCC (pt.2) 1298 at 1309, stated the options thus –

“He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness or to prove the writing. But if the cross-examiner intends to contradict the witness by the writing, then he must show the writing to witness and call his attention to those part of the writing which are to be used for the purpose of contradicting the witness. It is only after this condition has been complied with that the writing can be admitted in

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evidence.”

It is the duty of the person cross-examining a witness to comply with the conditions set out in Sections 232 of the Evidence Act, 2011 in order that the previous statement in writing of the witness becomes admissible in evidence for the purpose of contradicting the witness and thereby impeach his credibility. See KWAGSHIR v. THE STATE (1995) 5 SCNJ 222 at 228; BALOGUN v. A.G. OYO STATE (2002) FWLR (pt. 100) 1287 SC.

Section 232 of Evidence Act, 2011 is intended to check the double-speak of a witness, who is prevaricating on an issue that he had made previous statement in writing on. There are essential requirements of the Section that the party cross-examining a witness, who intends to impeach the credit of the witness by showing that what the witness is presently saying contradicts his previous statement in writing, must comply with. That is, (a) the attention of the witness must be specifically drawn to those parts or portions of his previous statement in writing which are to be used for the purpose of contradicting him; (b) the witness must be reminded of what he had stated in the previous statement, and (c) he must be given an

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opportunity of making explanation on the apparent contradictions. From the authoritative stance of this Court those are the templates the cross-examiner shall comply with before he tenders any previous statement in writing by a witness for the purpose of contradicting the witness and impeaching his credibility. See MADUMERE v. OKAFOR (1996) 4 NWLR (pt.445) 637; AMODU V. THE STATE (2010) 2 NWLR (pt.1177) 47.

What one finds at pages 82 and 83 of the Records is a far cry from the requirements of Section 232 of the Evidence Act. The PW.3, an Investigating Police Officer (IPO), cross-examined by counsel for the 1st Accused, averred that he did not make any report on his investigation and findings to the Court in respect of the 1st Accused. The Police Investigation Report (PIR) sought to be tendered was not made by the PW.3. The witness was in fact not confronted with any previous statement he had made in writing. It is for these reasons the learned trial Judge, correctly in my view, rejected the 1st Accused’s “application for the tendering of the Police Investigation Report through the PW.3 who did not make any such report”. The 1st Accused did not appeal this

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adverse finding or ruling on his application. He is therefore taken to have accepted it.

The Appellant, as the 2nd Accused, who made no such application nor did he associate himself with, is the one complaining that the application of the 1st Accused, under Section 232 of the Evidence Act, had been wrongly dismissed or rejected. At page 85 of the Records, after the PW.3 admitted that, in respect of the 2nd Accused (Appellant), he “made investigation report” and that the report “is with the State”, his cross-examiner made no further effort under Section 232 of the Evidence Act. He had elected not to pursue the matter any further.

He did not satisfy the requirements of Section 232 of the Act, and he made no application thereunder.

My Lords, this Appellant, being tried jointly with the 1st Accused, may be a party interested in the outcome of the 1st Accused’s application. He cannot, however, appeal against the ruling in that application without leave of Court first sought and obtained. Doing otherwise, as he has done in this appeal, the Appellant in my view is a busybody meddling in the affairs of the other. See SOCIETE GENERALE BANK (NIG.) LTD. V.

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AFEKORO (1999) 11 NWLR (pt.628) 521; (1999) 7 SC (pt. iii) 95. This is what makes this ground issue 1 and the ground(s) from where it is formulated incompetent. Even if the issue were competent I have shown that, on the merits, it lacks substance, the requirements of Section 232 of the Evidence Act, 2011 having not been satisfied. The Court below, on the merits, was right in affirming the trial Court’s rejection of the PIR which the 1st Accused sought to tender in evidence.

Issue 2, argued in this appeal, turns on whether the prosecution proved the active elements in the offence charged beyond reasonable doubt. At the Court below the Appellant’s counsel submitted correctly on the authority of BOZIN v. THE STATE (1985) 2 NWLR (pt. 8) 465; THE STATE v SALAWU (2011) 8 NWLR (pt.1279) 580; BELLO v THE STATE (2007) 10 NWLR (pt.1043) 564, that the following facts must be proved beyond reasonable doubt for the charge of the offence of armed robbery to be sustained against the Appellant to warrant his conviction and sentence. That is

“i. there was robbery

ii. the robbery was an armed robbery: and

iii. the accused person took part in robbery.”<br< p=””

</br<

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The learned Appellant’s counsel further submitted correctly that Section 135 of the Evidence Act, 2011 enjoins the prosecution (herein the respondent) to prove each of the 3 ingredients, aforestated, beyond reasonable doubts. See BAKARE v. THE STATE (1987) 1 NWLR (pt.52) 579; BANJO v. THE STATE (2013) 38 WRN 1: SHOFOLAHAN v. THE STATE (2013) 49 WRN 172.

In this further appeal, issue 2, as argued has been formulated from ground 2 (that complains that there were material contradictions in the prosecution’s case), ground 3 (complaining that the Court below wrongly found that PW 1 had properly identified the Appellant) and ground 3 (an omnibus complaint that the judgment cannot be supported by the available evidence). Under issue 2, Appellant’s counsel raised and argued the following 7 sub-issues, namely:

i. identification of the Appellant (2nd Accused) by the PW.1

ii. that the PW.1 originally reported theft and not robbery to the police:

iii. the report of robbery was made promptly to the police:

iv. alteration of the Appellants statement, Exhibit, to the police:

v. there being no logo on the recharge cards:

vi. no

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evidence of other recharge cards; and

vii. that Appellant was convicted on circumstantial evidence that was not cogent and compelling.

I cannot see how the allegation that the PW.3, the investigating Police Officer (IPO), altered or attempted to alter the Appellant’s extra-judicial statement, Exhibit C, can come under issue 2 as arising from any or all the three grounds subsumed in the said Issue 1. Much as I concede to the Appellant that, because he is facing death sentence he should be given a lot of latitude by ignoring some technical defects in his appeal; there, are or, should be some limits.

The allegation that the PW.3 altered or attempted to alter Exhibit C, extra judicial statement of the Appellant is too serious a charge against the PW.3 and the prosecution to be allowed to be whimsically struggled into issue 2 without a ground of appeal putting the respondent on notice of this very serious charge that is criminal, as well as unethical, in nature. The sub-issue iv will accordingly be discountenanced.

One of the issues resolved by the learned trial Judge is whether the alleged stolen cards are the same with the cards picked

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from the road by the 2nd Accused person (the Appellant) The resolution of this issue posed no difficulty at all to the learned trial Judge. At pages 108- 109 of the Records, the learned trial Judge in his judgment, after evaluation, found that the PW.1 recognised and described her cards vividly and there is no doubt that she owns the cards found with the PW.2, which the 2nd Accused has admitted that he picked at a road junction. The PW.1 had testified unscathed that her recharge cards had peculiar logo which nobody in Obudu had. I do not think, from the evidence of PW.1, PW.2, DW.1 and DW.2 (the Appellant), that there is any dispute about the GLO recharge cards found with PW.2 being the recharge cards the Appellant, DW 2, gave the 1st Accused (DW.1) to assist him sell. The finding of the trial Court affirmed by the Court below, that the GLO recharge cards found with the PW.2 were among the items the PW.1 was robbed of, is not perverse. The submission for the Appellant that the recharge cards, Exhibit A, cannot be linked to the robbery is therefore one that cannot be sustained.

The Appellants counsel, the learned Godwin Omoaka, had made so much fuss about

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the fact that the PW.1 initially reported the case of stealing”, and not armed robbery, and that at the Magistrate’s Court, Obudu, the accused persons were charged for stealing. He cited the case of FELIX EDODI OKA v. THE STATE (2014) LPELR – 23137 CA decided at the Court of Appeal, Calabar, to submit that since the initial report was stealing and not armed robbery, the subsequent substitution of stealing for armed robbery was an after-thought; and that the doubt should be resolved in favour of the Appellant.

The facts of the FELIX EDODI OKA case (supra) are quite distinct, and not on all fours with the instant case. In that case it was alleged that there was armed robbery. The complainant however reported a case of wounding to the police before he was taken to the hospital for treatment. In the instant case, the PW.1 testified unequivocally that on 19th January, 2013, She was attacked and her handbag containing valuable items were snatched from her by the 3 assailants who at the same time were shooting gun and this scared away people she was shouting to for rescue. The bag was, in the process, carried away. The PW.3, an investigating Police

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Officer, also testified that the PW.1 “reported a case of armed robbery against some group of boys”. When the Appellant was arrested he was confronted with the allegation of armed robbery. In Exhibit C, his extra judicial statement, he responded to the allegation thus –

“I do not have anything to do with the armed robbery attack on (the PW.1) at Obudu on 19/1/2013. I did not steal the GLO recharge card. I only picked it.

I have read the submissions of the Appellant’s counsel, both at the trial Court and the Court below and it is clear to me that this issue of afterthought in the offence reported at the police station was not raised in the two Courts below. Even if the issue was raised there, I am of the firm view that at the earliest opportunity, upon investigation, the Police confronted the Appellant with the allegation of armed robbery.

He reacted to it in Exhibit C. The evidence-in-chief and the cross-examination of the PW.1 reveal her consistency that she reported robbery to the police. The FELIX EDODI OKA case (supra) is clearly distinguishable and therefore inapplicable to the instant case.

The prosecutorial powers of the

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office of the Attorney-General of any State in the Federation, by dint of Section 211 of the 1999 Constitution, as amended, include taking over, at any stage, the case and the case file from the police and filing an information in the High Court in respect of any offence which, in their discretion, has been disclosed by the police investigation. This discretion cannot be denied to the office of the Attorney-General.

The Appellant submitted that the PW.1’s extra-judicial statement contained in the PIR contradicted her testimony in open Court that she reported robbery and not mere stealing at police station. The PIR is not in evidence. The attempt to put it into the body of legal evidence before the trial Court was rejected by the trial Court. A fact that never forms part of legal evidence before the Court cannot be used nor relied upon by a Court of law to hold that it contradicts an existing legal evidence. I agree with the Respondent’s submission. relying on EKPO v. KANU (2012) 12 WRN 132 at 155 that only documents tendered as exhibits are evidence before the Court, and that the Court cannot act on or utilise any document or fact that is not evidence

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before it in the determination of any disputed facts or matter before it. The PIR, having been rejected, is no longer any credible evidence on which the trial Court could act on. See TERAB v. LAWAL (1992) NWLR (Pt. 231) 569.

In any case, robbery is aggravated stealing. Section 11 of the Robbery and Firearms (Special Provisions) Act defines robbery as meaning-

stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain it or retain the thing stolen or retained.

In my considered view the report of stealing made by the PW.1 which was accompanied with actual violence and shooting of gun to overcome any resistance to the PW1’s handbag being stolen, snatched or retained by the assailant is consistent with armed robbery. I hold therefore that the Court below was not wrong when in its judgment particularly the portion at page 179 of the Record, it affirmed the trial Court’s finding, relying on the PW.1’s evidence, that there was a robbery.

The big question – Has the Appellant been linked to the alleged armed robbery The PW.1’s

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evidence, which is evidence of identification, has linked the Appellant to the alleged armed robbery. Cross-examined the PW.1 maintained that apart from the day of robbery, when she struggled over her handbag with the Appellant, she had never met the Appellant. She testified that the Appellant “was wearing a face cap”, trousers and black short sleeve shirt. Part of her evidence under cross examination is that when she was hit she fell from the motorcycle and there on the ground the Appellant “was dragging with” her over the retention of her handbag.

Mr. Omoaka of counsel to the Appellant submits that since the time of the robbery was unequivocally stated to be 8.00pm., in the dark, and the prosecution did not adduce sufficient evidence on the state of the lighting condition the identification of the Appellant by the PW 1 was not reliable. Proper identification of the accused person as the person who took part in the commission of the alleged crime, is one of fact. See OKOSI v. THE STATE (1989) 1 NWLR (pt. 100) 642; STATE v. AIBANGBEE & ANOR. (1988) 7 SCNJ 128.

For the Appellant Mr. Omoaka cited several cases, including NDIDI v. THE STATE

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(2007) 13 NWLR (pt.1352) 633 at 653 – 654 SC; ADISA v. THE STATE (1991) 1 NWLR (pt.168) 490 CA; MUSA v. THE STATE (1996) 8 NWLR (pt.468) 610; IKEMSON v. THE STATE (1989) 3 NWLR (pt.110) 455 at 472 & 473 SC; CHUKWUEKE v. THE STATE (1991) 7 NWLR (pt.205) 604. In all these cases it was emphasized that it would be dangerous for a Court to convict without bearing in mind the circumstances under which the culprit was identified. In THE STATE v. AIGBANBEE (supra) Nnaemeka-Agu JSC stated that the “questions which go to the credibility of a witnesss testimony on the evidence of identification usually involve the crucial question as to the opportunity which the witness had at viewing the act of the accused person which he is testifying about”.

The law is settled that on issues of facts, evaluation of evidence and the credibility of witnesses are matters within the exclusive competence and domain of the trial Court. See CHIEF FRANK EBA v. CHIEF WARRI OGODO & ANOR. (1984) 12 SC 133 at 176; DANIEL SUGH v. THE STATE (1988) NWLR (pt.77) 475. Where the trial Court finds a witness credible and believable, unless the appellant shows evidence that renders that

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stance perverse the appellate Court rarely interferes with that finding. In DANIEL SUGH v. THE STATE (supra) Wali, JSC, restating the law on this held that the belief can only be questioned on appeal if the belief is obviously against the logical drift of the evidence considered as a whole or against the impact of the wave of probabilities disclosed by the evidence. See also Oputa, JSC in ADELUMOLA v. THE STATE (1988) 1 NWLR (pt.73) 682 at 690.

It was the trial Court which has the advantage of seeing, watching and observing the PW.1 testify in the witness box that can exercise its discretion, upon evaluation of the evidence before it, to believe or disbelieve her. That liberty and privilege of believing the PW.1 and accepting her evidence on the identification of the Appellant with whom she struggled over her bag, in preference to any other evidence per contra were completely within the discretion of the trial Court. On this issue of the credibility of the PW.1 there are concurrent findings of the two Courts below. This Court, therefore has very limited, if any scope to interfere. See AGBONIKO v. AIWEREOBA (1988) NWLR (pt.70) 325; FATOYINBO & ORS. v.

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WILLIAMS (1956) 1 FSC 87.

I quite agree with Aderemi, JSC, when he stated in NDIDI v. THE STATE (supra) that a trial Judge must not only warn himself but must meticulously examine the evidence proffered to see whether there are any weaknesses capable of endangering or rendering worthless any contention that the accused person was sufficiently recognised by the witness.

Now, where, or what, is the evidence on which this Court can come into agreement with the Appellant that the concurrent findings of the two Courts below were perverse The emphatic and unequivocal evidence of the PW.1 is to the effect that the Appellant was one of three (3) robbers and that she struggled over her bag with him that night. It was also her evidence that at the material or particular time the Appellant wore a face cap, trousers and black short sleeve shirt. The PW.1 had close contact with the Appellant. She had the opportunity of that close contact to watch him and take note of him including his wearing apparels. Her evidence was not discredited by the cross-examinations. It is not enough to speculate that because the time of the incident was 8.00pm., the scene of crime

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was therefore dark and that the Appellant could not be identified by the PW.1. Courts of law act on empirical evidence and not on speculations. See OKOKO v. THE STATE (1964) 1 ALL NLR 423 at 425; IGABELE v. THE STATE (2006) 6 NWLR (pt.975) 100 SC.

The learned Appellants counsel seems to hold a strong impression, though erroneous, that without a proper identification parade the identification of the Appellant by the PW1 was faulty. There is nothing magical about identification parade. It also has human errors associated with it. And it is for this reason that Oputa, JSC, stated in lKEMSON v. THE STATE (supra) at page 478 that identification parade itself, is not foolproof nor is it a guarantee against the usual errors of observation, errors of recognition or errors of reconstruction. His Lordship in the judgment cited two cases: of The Trial of Adolf Beck ed E.R. Watson (Edinburgh 1924); and Walter Graham Rowland (1947) 32 C.R. App. 29. There was identification parade in the Rowland’s case. Rowland was identified by three independent witnesses as the murderer. However, subsequently Mr Ware

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confessed that he, and not Rowland, was the actual murderer. Identification of offenders, whether through witness(es) or identification parade: because of its importance to criminal law justice or jurisprudence; trial Courts are admonished to be satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the Court was the person who actually committed the alleged offence. It is the duty of the defence counsel, through purposeful cross-examination, to cast reasonable doubt on the witness’s identification of the accused person by exposing errors of observation, of recognition, of resemblance etc. See Oputa, JSC in IKEMSON v. STATE (supra) at page 479.

The Appellant’s criticism of the identification of the Appellant by the PW.1 is predicated on the counsel’s conjecture that “it was dark at this time”. This bare statement from the Bar has no force of evidence. See ONU OBEKPA v. C.O.P. (1981) 1 NCR 113. The same counsel, who submitted that the prosecution led no evidence regarding the lighting conditions, also did not elicit any evidence through cross-examination of the PW.1 that “it was

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dark at this time”. The evidential burden of casting reasonable doubt on the prosecution’s case is on the defence. See AKINMOJU v. STATE (2000) 6 NWLR (pt 352) 608 at 629: IGBABELE v. STATE (supra). The defence, in this case, failed to discredit the PW.1 . The trial Court was therefore entitled to believe her and act on her evidence.

In NDIDI v. THE STATE (supra) the fatal lacuna in the prosecution’s case was that there was no proper identification through the necessary description of the accused’s features. In the instant case, the PW.1 had close contact with the Appellant when they struggled over her handbag and she described what the Appellant wore at the material time. The evidence was unchallenged and undiscredited. None of the numerous cases on the necessity for identification parade, cited by the Appellants counsel, including ALABI v. THE STATE (1993) 7 NWLR (pt.307) 511; ADISA v. THE STATE (supra); MUSA v. THE STATE (supra) etc, laid down any sacrosanct or immutable rule that in every robbery case it is only by or through identification parade that the accused person can be properly identified as the person who participated in or committed the

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robbery charged.

The Court of Appeal, in OMOPUPA v. THE STATE (2008) ALL FWLR (pt.445) 1648 at 1671 stated and I agree that as identification parade is not a sine qua non for the identification of suspects in every case where there has been a fleeting encounter between the victim of crime and the suspect, if there is any other piece of evidence leading overwhelmingly to the identity of the perpetrator. See alsoNDUKWE v. STATE (2009) 7 NWLR (pt.1139) 43 SC. Where, notwithstanding that the encounter was a fleeting one and the victim did not previously know the assailant, the victim, like the instant PW.1. had a struggle encounter with the accused and thereby an opportunity of the close encounter to observe features of her attacker which she described unscathed, there is, in my view no need for identification parade.

Earlier in this Judgment I found and held that the evidence of PW.1, PW 2, DW.1 and DW.2 (the Appellant) had linked the Appellant to the GLO recharge cards violently stolen from the PW.1 when she was robbed on 19th January 2013. The Appellant had thus come to be in possession of stolen goods. Thus a proper foundation had been laid for the

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invocation of the presumption under Section 167(a) of the Evidence Act, 2011 to the effect that a man who is in possession of stolen goods soon after the theft or robbery is either the robber or a receiver of stolen goods knowing them to have been stolen, unless he could give good account for his possession. The Appellant’s account that he found the GLO recharge cards on the road was not believed by the trial Court, which rather preferred the PW.1’s account that the recharge cards were stolen from her in an armed robbery operation.

Counsel for the Appellant had opined that the conviction of the appellant for the armed robbery charged was upon circumstantial evidence. He did not seem to appreciate that the evidence of the PW.1, found credible by the two Courts below, was direct evidence which fixed the Appellant to the armed robbery charged. That direct evidence has been corroborated by the fact that the Appellant, soon after the robbery was in possession of the stolen recharge cards, if the presumption under Section 167(a) Evidence Act, 2011 should be invoked. Thus even I should apply the test, that in employing circumstantial evidence to ground a

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conviction the totality of the same must be cogent, compelling and unequivocal: that it must point only at the direction of the accused and no other person, and that it must lead conclusively and indisputably at his guilt; my answer on the totality of evidence in the printed record is that there is no reasonable doubt about the guilt of the Appellant for the offence of armed robbery charged. The trial Court found him guilty, holding that his guilt was proved beyond reasonable doubt. The finding was affirmed by the Court below. No good cause has been shown why I should disturb the concurrent findings of the two lower Courts. Accordingly, I resolve issue 2 also against the Appellant.

On the whole, there is no substance in this appeal, and it is accordingly dismissed in its entirety. The decision of the Court below delivered in the appeal No CA/C/108/2014 on 28th October, 2014 affirming the conviction and sentence of the Appellant by the High Court of Cross-River State is hereby affirmed.

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SC.884/2014