Edward Ojukwu & Ors V. The State (2001)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
The appellants along with 3 others were hitherto charged and tried for armed robbery said to have been committed in the night of 29th August, 1980 at Ogbaku in Owerri. At the end of the trial, 3 of the 6 accused were acquitted and discharged while the appellants were found guilty, convicted and sentenced to death, whereupon the prisoners appealed to the court. The original grounds of appeal were withdrawn and so the appellants’ counsel relied solely on the new grounds which were added later and from which issues were distilled from. The issues to be determined and as framed by the counsel are as follows:
“(1) Whether the learned trial Judge was right when having condemned the manifestly irregular identification of the appellants in a van after arrest still convicted them upon the same identification-evidence led by PW2 and 5 at the same trial?.
(2) Whether the learned trial Judge was right to have convicted the appellants on the prosecution’s evidence, which was fraught with irregularities in the identification of the appellants said material contradictions and conflicts in the evidence of the prosecution witnesses which was therefore unreliable?.”
The respondent filed no brief. The centrepiece of the appellants’ case rests squarely on the issue of identification and the alleged parlous unreliable and contradictory evidence of some of the witnesses on the matter of identification. The appellants’ counsel submitted that the identification made by the complainant was flawed. He referred to Okosi v. The State (1989) 1 NWLR (Pt.100) 642; Adamu v. The State (1986) 3 NWLR (Pt.32) 865 and Mbenu v. The State (1988) 3 NWLR (Pt.84) 615. He referred to the judgment of Onu, J.S.C in Tajudeen Alabi v. The State (1993) 7 NWLR (Pt.307) 511 where he said:-
“The proper and only valid way by which the prosecution can prove the identity of an accused person when it is in issue and thereby prove its case beyond reasonable doubt is to prove that an identification parade was conducted in the proper way as a result of which a witness identified the accused….An identification parade is carried out spontaneously and at a most auspicious moment and the earliest opportunity whereby a group of persons of identical size and common physical features are assembled by the police from where a witness identifies a suspect or suspects unaided and untutored.”
The evidence of PW 1 in relation to the identification of the 1st and 2nd accused persons is important in that it would help to unravel what really transpired and whether he was able to figure out and was able to identify the real people who robbed him with mathematical accuracy. In that evidence he said:-
“There was no time the police called me to identify any person on an identification parade. My statement to the police on this matter was not needed on the night I reported the incident. I later returned to my house. The police post at Eziamam was near my filling station. I drew the attention of the police when I saw the 1st and 2nd accused persons at the police station some 4 to 5 days after the incident when I visited the police station. I had made my statement to the police before the day I saw the accused person at the police station. Later, I heard that the people who robbed me had been arrested by the police and then I set out to the police station Nworieubi. On reaching there, I saw a number of persons in a lorry (police truck) parked at the police Station Nworieubi, which was near a court. I looked into the lorry and saw many people were (sic) the 1st and the 2nd accused persons. I saw one P.C. I know to be Amadi. I told him that those were the people who robbed me. I was then pointing to the police truck parked in the premises some 10 – 15 metres away from us. He confirmed that they were arrested at Oguta. I did not specifically point to the 1st and 2nd accused persons. That same day I made a written statement to the police after I had seen the two accused persons.” I chose to underline these sentences.
From that evidence he said that:
(a) There was no time he was called by the police to identify any person.
(b) He drew the attention of the police when he saw the 1st and 2nd accused persons at the police station four days after the incident.
(c) He saw some people in a police truck. He looked in and saw the 1st and the 2nd accused persons.
(d) He then started pointing at the police truck but he was not pointing at the 1st and 2nd accused persons.
(e) It was after he saw the appellants at the police station that he made his statement to the police.
It is difficult to state how the witness arrived at the conclusion that the 1st and 2nd appellants were amongst those who robbed him. First, he said there was no identification. Next, he said he was pointing at police lorry in which the 1st and 2nd accused as well as others were, but that he was not pointing at them. Then finally, he said that it was after he saw them that he made his statement to the police. This is a travesty of identification and I must add an ignoble way to conduct an investigation. The whole episode appears to me very melodramatic. There is almost an inescapable lingering belief that apart from the fact that witness was not sure who robbed him the police seemed to have helped him. Moreover, it is surprising that he only made a statement to the police after he saw the people whom he said robbed him. There is almost an irresistible feeling that whether one calls it identification of pointing out done by the PW1 or showing who perpetrated the act, the identification was done with the aid of the police having regard to the inelegant manner the whole show was conducted.
In a statement made by Miller Obinna on 1/9/80, he said he had the lantern on and therefore was in a position to recognise the people who robbed him. In the 1st statement of that day, he did not make mention of (a) that he had lantern on (b) that of the 2 men one was tall and that other was short (c) that he could recognise them. While in his evidence, P.W.1 said that there were 3 people who confronted him on the day of that incident, PW1 said that there were two of them. Then he said that the “lit up electric bulb directly under my head was removed by the 2nd accused.” In his evidence court below PW2 had said;
“On 9th September, (1980), I was invited to the police station where I was shown a vehicle with people inside. After seeing the people in the van and the electric generating plant, I made a second statement dated September 1980. I told the police what I saw.”
In all the first statements of PW1 and PW2, there was no mention of the ability to recognise any of the armed robbers who attacked them that night. PW3 the Superintendent of Police in his evidence stated that the accused persons were with the police at Oguta for 5 days before the Mbaitoli Police came to take them and then he further added thus:
“The accused persons were not identified with other offence than being in unlawful possession of the I.Ds before they were taken by Mbaitoli Police.”
The issue in this case is the alleged sloppy manner the so called identification was made. It appeared to be sort of tailor made by the police to suit a particular purpose. In Dosunmu v. The State (1986) 5 NWLR (Pt.43) 664, Ademola J.C.A. said:
“The time is now ripe to say firmly and without equivocation that in cases depending wholly or substantially on evidence of identification, a Judge must as a matter of law look for evidence of corroboration before conviction. This would help to reduce the number of cases where miscarriage of justice has occurred on evidence of mistaken identification.”
Also in Ajibade v. The State (1987) 1 NWLR (Pt.48) 205 at 210, Kolawole, J.C.A., said:-
“In a capital case, I am of the view that the police should exercise extreme care and diligence before an accused is brought to trial. Where an offence of robbery as in the instant case has been committed and the offenders are not apprehended at the scene of the crime, prudence demands that the usual and proper way of identification be followed. The suspected person should be placed with a sufficient number of others and have the identifying witness pick out the accused without an assistance.”
That practice to ensure adequate measure for the identifying witness to pick without any form of aid or help was not followed in this case. Instead as the learned counsel for the appellant had stated, the accused were handcuffed when the identification was made by the prosecution witnesses. However, several authorities have held the view that identification needs not be based on recognition of accused facial features but may be based on other peculiarities such as general appearance, size, clothing or voice. When such identification is taken in conjunction with other circumstances which point to the accused as the guilty person to the exclusion of every other reasonable hypothesis, then the court can convict.
It is important though to emphasise that testimony as to the identity of an accused should be considered with caution. However, there is no known rule of law that an evidence in respect of the identity of an accused should be subjected to that closest scrutiny where the opportunity for clear and positive identification is good. In this case, one witness talked of lanterns used in his petrol station and the other talked of a lit electric bulb. On the issue of identification made, the court below said it was unnecessary as there was enough light on the night to depict the features of the person who were supposed to have robbed them. At the first opportunity to make statements, the witnesses never said that they could recognise their assailants. They obviously made their 2nd statements after they had been invited by the police to identify the people they arrested. To my mind, the whole episode was a charade.
In his judgment, the court below had quipped thus:-
“In fact where the identity of the accused persons as regards the commission of an offence is not in doubt, the police is not bound to conduct any identification parade.”
This generalised statement by the learned trial Judge cannot with greatest respect apply where the witnesses did not know before the incident who their tormentors were. It may perhaps apply where the witnesses have at all times known the thieves before the incident in which case they could tell the police the fact that they knew who robbed them.
What baffled me in this case is why the State refused or failed to file any brief when the sole issue is that of identification alleged to have been improperly conducted. The inference is that they have nothing to submit against the issue of wrong identification. The evidence of the prosecution witnesses are replete with stories that will not do justice to the finding of the court below. PW5 had said in his evidence:
“Before the robbery incident, I had not met the 2nd accused before. I was never called upon by the police to identify any of the accused persons at any identification parade or otherwise. I did not tell the police that I was ordered to lie facing down.”
What is disturbing about this case is the cavalier manner the prosecution handled this case.
Where suspicion is strong, the court should not equate to guilt. There must be proof beyond all reasonable doubt. Where the issue in an appeal is one of irregular identification by which the police is indicted as helping the witnesses to identify the culprit, then baring other evidence linking the appellants with the crime, if the prosecution does not contest it, and the appellate court doubts the methodology of approach used, then the appellants should be given the benefit of doubt. The respondent refused to contest the issues raised. The implication is that if this court finds that the identification method used was wrong, it should allow the appeal.
I most certainly find the identification wrong. The police appeared to have aided the people who never gave a hint in their first statement that they would recognise those who robbed them. That being the case, I will allow the appeal and acquit and discharge the accused persons.
Other Citations: 2001)LCN/0979(CA)
