Felix Anthony Orok V. The State (2009)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE J.C.A:

This is an appeal against the judgment of Honourable Justice E. E. Ita of the High Court Cross River State, Calabar, wherein he convicted the Appellant on a one count charge of Armed Robbery and sentenced him to death. The facts of the case are that on the 24th day of July, 2004, Chike Okpa, in company of Alfred Ekpeyong (PW 2) and one Bassey Orok came to meet the complainant Chief Archibong Archibong (PW 1) in a social gathering at No. 19 Abasi Obori Street, Calabar. They were to deliver PW 1 the sum of N150,000.00 being proceeds from the sale of the motorcycles in PW1 ‘s shop. The trio followed PW1 to the address because they had waited in the shop for too long for him to come for the proceeds. He (PW 1) directed them to return to the shop and wait for him. The trio left Abasi Obori Street through Mayne Avenue and, PW1 left through Uwanse. PW1 got to his shop before the three boys. He opened the shop and waited. When they eventually arrived, they were tattered with torn cloths. Chike who was in possession of the money reported that they were robbed by a gang, PW2 told him (PW1) that he knew one of the gang members by name Sento. (Accused / Appellant). Eventually, PW1 and PW2 made complainants and witness’s statements to the Police on 9/8/2004. PW2 led the Police to the arrest of the Appellant. The Appellant made two statements on different dates to the Police in both of which he denied the charge and in the first raised a plea of alibi.

At the trial, the accused pleaded not guilty to the charge, the prosecution called three witnesses that is PW1 Chief Archibong Archibong (the complainant) PW2 Alfred Ekpenyong one of those who accompanied Chike Okpa and PW3 the IPO. The Appellant testified for himself and called no other witness. His defence was an alibi, which the Respondent conceded could not be investigated because he did not furnish any or sufficient particulars.

At the conclusion of the evidence and the addresses, the trial court convicted the Appellant and sentenced him to death. It is against the said conviction and sentence that the Appellant has appealed to this court. Originally, the Appellant filed five grounds of appeal and was granted leave by this honourable court to file and argue additional ground of appeal.

The Appellant’s brief of argument was dated and filed on 5/5/08. The Respondent’s brief was dated and filed on 4/6/08. Appellant’s Reply brief was dated and filed on 27/10/08.

The Appellant formulated four (4) issues for determination:

1. Whether the evidence of the alleged victim of the Armed Robbery Mr. Chike was not material in the resolution of the material point and trial at the court below.
2. Whether in a case that attract death sentence the trial Judge was right to convict the accused on evidence of one witness whom the accused denied knowing and where the accused made no confessional statement.
3. Whether the judgment was unwarranted and unreasonable.
4. Whether it is an offence for an accused person to know the name of the officer investigating his matter.

The Respondent on the other hand formulated the following issues:

1. Whether the evidence of Chike Okpa one of the alleged victim of the armed robbery attack was a sine qua non in the determination of the Appellant’s guilt.
2. Whether the prosecution proved the guilt of the Appellant as required by law.
3. Whether the observation of the learned trial Judge at page 55 lines 13 – 16 that the Appellant was quite conversant with Police Station and their working, influenced his f
4. finding of the Appellant guilty of the charge.

I have carefully gone through the records of appeal in this case and I am of the opinion that the following three (3) issues in their order taken from the issues formulated by the parties would suffice for this appeal.

1. Whether the evidence of the alleged victim of the Armed Robbery Mr. Chike, was not material in the resolution of the material point and trial at the court below.
2. Whether the observation of the learned trial Judge at page 55 lines 13- 16 that the Appellant was quite conversant with Police Station and working influenced his finding of the Appellant guilty of the charge.
3. Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt as required by the law.

On Issue No. 1 learned Counsel for the Appellant quoted the count against the Appellant from the particulars of offence in the information and submitted that the person allegedly robbed was Chike Okpa. And that there is no where in the record of proceedings that Chike testified at least as to the identity of the Appellant as one of the robbers and the role he played. He furthered that another victim of the robbery, Bassey Orok, was also not called as a witness. And submitted that while it is not necessary for the prosecution to call every available witness to prove his case, it is incumbent on the prosecution to call a particular witness whose evidence is material for the resolution of the point in issue.

Relying on the case of Archibong vs. The State (2004) 1 NWLR (Pt. 855) 488 at 495, Appellant’s Counsel submitted that the evidence of Chike Okpa and Bassey Orok the alleged victims of the robbery would have gone a long way to establish whether the Appellant was one of the robbers especially as the Appellant was not arrested at the scene of crime. Also, relying on the case of Okonofua vs. State (1981) 1 NCR 145 at 147, Counsel submitted that the learned trial Judge ought to have considered the proof of evidence as same would have made him to consider Chike Okpa and Bassey Orok as vital witnesses.

Appellant’s Counsel referred to the statement to the Police of Bassey Orok at page 33 of the record as follows:

“One person who was not with the robbers was talking to the armed robbers in a familiar tone later, that boy whose name I don’t know told us to come the following morning that he will take us to one of the robbers – I was not chanced to follow them to the boy’s house that very morning but when I got time I asked Chike Okpa whether they did see the boy and he said yes. He said that the boy told them that he knows one of the robbers.”

On this, Appellant’s Counsel submitted that the presence of Bassey Orok as witness would have assisted the trial court to determine the boy that Bassey Orok mentioned in his statement and whether it is the same with PW2. As it is the not enough to hold that the boy referred to in Orok’s statement is same as PW2. Counsel to the Appellant submitted that the boy referred to by Bassey Orok is not the same as PW2 because both PW2 and Bassey Orok knew themselves before the incident.

Counsel referred to page 28 of the record, lines 10- 11 where PW2 said in chief:

“Chike came to meet PW1 who asked me and Orok to accompany Chike to get a motorcycle.”

And also to page 26 lines 13 to 14, of the record where PW1 said “Chike came with the other boys Alfred Ekpenyong (my cousin) (PW2) and the other Bassey Orok, I advised them to go back to the store with the money.”

Appellant’s Counsel submitted that both PW2 and Bassey Orok knew themselves before the incident and by no act of imagination should the boy referred to in Bassey Orok’s statement be same with PW2. And that on that note, the evidence of Bassey Orok is very material to determine whether it was PW2 who recognized the Appellant or another boy who Bassey Orok did not know his name. Appellant’s Counsel submitted that the evidence of Chike Okpa was also material in order to confirm whether the boy took them to another boy who eventually showed them the Appellant. That the failure to call Chike Okpa and Bassey Orok is fatal to the prosecution’s case as the identity of the robber was in doubt. This is not a case, Counsel said where an accused person can call the witnesses where the prosecution failed to call because the Appellant did not know the witnesses and he denied the crime. Appellant’s Counsel urged the court to hold that if Chike Okpa and Bassey Orok, the victims of the alleged robbery were called to testify, they would have given a favourable evidence in favour of the Appellant and submitted that it was wrong for the trial court to rely on the sole evidence of PW2 to convict the Appellant and sentence him to death. PW2 is the cousin of PW1, the alleged owner of the money and it is on record that PW1 was not at the scene when the alleged robbery took place and PW2 being his cousin, the evidence of PW2 is tainted as he has his own purpose to serve.

Finally on Issue NO.1 relying on the cases of Alabi vs. State (1993) SCNJ 106 at 109 and Ukpabi vs. State (2004) 11 NWLR (Pt. 884) 439 at 442. Appellant’s Counsel submitted that the Appellant was not arrested at the locus in quo and the Police ought to have had an identification parade particularly where the Appellant never confessed and some doubt created as to the identify of the robber in the absence of material witnesses.

In reaction to Issue NO.1, Respondent’s Counsel reminded us that the victims of the alleged robbery of 24th July, 2004, for which the Appellant stood trial were three – namely, Chike Okpa, Alfred Ekpenyong (PW2) and Bassey Orok.

He submitted that there is no law that requires the prosecution to call a particular number of witnesses. On the other hand, the prosecution is required to call only material witnesses to proof the charge. In the instant case, said Respondent’s Counsel, the prosecution called PW2, who was not only a victim, but who also recognized one of the robbers, whom he had known before the day of the incident.

The prosecution was not required to call Chike Okpa or Bassey Orok as the evidence of PW2 had established that there was a robbery and that the Appellant was one of the robbers. Respondent’s Counsel submitted that the cases of Archibong vs. State (2004) 1 NWLR (Pt. 855) p. 488 at 495 and Okonufua vs. State (1981) 1 BCR 145 at 147 cited by the Appellant, are good authorities and are in support of the Respondent’s position. Respondent’s Counsel relied on the said authorities and urged us to hold that the prosecution needed not call Chike Okpa and Bassey Orok. Respondent’s Counsel submitted that Section 149(d) of the Evidence Act deal with the presumption concerning the failure to produce evidence and not witnesses and that if the Appellant had found their evidence necessary for his case, he was at liberty to call them as defence witnesses. And it is to the Appellant’s peril if he chose not to call them.

In deciding Issue No. 1 it goes without saying that as a general rule the discretion as to what witnesses to call in proof of its case lies entirely with the prosecution. The suggestion of the learned Counsel for the Appellant, which as it were an invitation to the learned trial Judge “to have considered the proof of evidence as same would help him to consider that Chike Okpa and Bassey Orok as vital witnesses” is an invitation to the exalted and supposedly impartial judicial arbiter to prey into the arena of contesting parties. This can only lead to judicial anarchy. A trial is not an investigation and investigation is not the function of a court. A trial is the public examination and demonstration of the evidence produced by the contesting parties. The duty of a court is to decide on the evidence produced and articulated by the contesting parties.

See e.g. Ouruminiya vs. C.O.P. 1962 1 ALL NLR 70

In the case of State vs. Olatunji (2003) 4 NWLR (Pt. 839) 139 at 171, the Supreme Court stated categorically that:

‘In the Nigerian Criminal justice system, there is no duty ……………. on the prosecution to call a particular person as a witness. The duty of the prosecution is to prove the charge against the accused person and the moment that duty is discharged, the court can convict the accused person. The choice of witnesses is the discretion of the prosecution and that discretion is unfettered. It is not within the province or power of an accused person to dictate the witness or witnesses to prove the charge against him. This is because the prosecution of the case is not his and so he cannot dabble into it.”

Issue NO.1 is decided as against the Appellant.

Issue No. 2 which the Appellant treated as Issue No, 4 concerns the observation of the learned trial Judge at page 65 of the record lines 13 – 15 that:

“I observed the accused person in the witness box as a person is quite conversant with Police Stations and their workings. He was at home with Police terms and use them in court freely, for example he knew D5 office of SCID whatever that means”

Of the above statement, learned Counsel for the Appellant submitted that it goes to confirm that the learned trial Judge had already considered the case before the conclusion of evidence of the defence which greatly influenced his judgment. And that there is no offence known in law for an accused person to state that he was beaten at D5 office of the SCID.

In response to Issue NO.2 learned Counsel for the Respondent submitted that the Appellant’s assertion that the trial Judge concluded the case before conclusion of evidence by the defence is uncharitable. That it is in evidence that the defence closed its case on the 11th of November, 2005 and the case was adjourned to 1st December, 2005 for address. Oral address was taken on the 1st December, 2005 by the defence.

The prosecution addressed the court on the 28th March, 2006 and rejoinder was on the 5th April, 2006.

Respondent’s Counsel furthered that at the conclusion of addresses, the learned trial Judge from page 45 of the record started by reviewing the evidence before him and the addresses of Counsel. He aligned these side by side, with the three ingredients required to proof the offence of armed robbery, one after the other.

He held that the prosecution proved each ingredient against the Appellant. He went ahead to review the various defenses open to the Appellant, i.e. alibi, lack of proper identification and the absence of the evidence of the victim (Chike), and resolved each of these against the Appellant (pages 45 – 55 of the record).

Respondent’s Counsel said that it was in addition to all the findings above that the trial Judge made the observation at page 55 of the record from which Issue NO.2 revolved. Counsel added, the observation was a mere obiter which did not only influence the judgment but cannot be a ground of appeal. The observation at page 55 of the record, said Respondent’s Counsel did not amount to a decision within the contemplation of Section 243 of the 1999 Constitution.

Relying on the case of Joseph Ikwen Agwugwu vs. Chief Julius Akpo (2001) 5 NWLR (Pt. 706) 280 at 294 – 295, Respondent’s Counsel submitted that the learned trial Judge did not convict the Appellant, because the Appellant was conversant with the Police and their working and use Police term freely, as observed by him at page 55 of the record. The Appellant was convicted between the evidence put across by the prosecution witnesses was overwhelming and pointed at no other person than the Appellant, as being one of the gang that committed the offence of armed robbery. The trial Judge, Counsel said was not influenced whatsoever by the alleged comment and the Appellant was thus not prejudiced howsoever.

The comment of the learned trial Judge at page 55 of the record which forms the fulcrum of Issue No. 2 was unnecessary perhaps undesirable. This however does not tantamount to bias or any evidence of it as the learned Counsel for the Appellant would want us to believe. In the instant case, there is nothing in or outside of the record or proceedings to suggest that the learned trial Judge was biased in his judgment. In any event allegation or bias must be external to the judgment itself.

I agree with the learned Counsel for the Respondent that the observation of the learned trial Judge at page 55 of the record is an obiter not capable of being appealed against as the ratio decidendi of a decision. An obiter in contrast to the ratio decidendi of a case is something by the way, in passing incidentally or collaterally.

The 6th Edition of the Black’s Law Dictionary at page 1072 explains obiter dictim as “words of an opinion entirely unnecessary for the decision of the case. Noel vs. Olds 78 U.S. App. D.C 155, 138 F. 2d. 501, 588. A remark made, or opinion expressed by a Judge in his decision upon a cause, “by the way” that is incidentally or collaterally and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument.

Such are not binding as precedent.”

A ‘decision’ on the other hand is a determination of the court and includes judgment, decree, order, conviction, sentence or recommendation. See Section 318 (1) of the 1999 Constitution.

The right of appeal does not exist in a vacuum. It can only be invoked when there is in existence, against the person wishing to exercise the right of appeal a decision of the court. AG. Federation vs. AN.P.P. (2003) 15 NWLR (Pt. 844) 600 at 644.

The Appellant’s additional ground of appeal from which Appellant’s Issue NO.4 that is the present Issue NO.2 was distilled is an appeal against obiter dictum. Neither the ground of appeal nor the issue that derived therefrom is maintainable in law.

Appellant’s additional ground of appeal as well as Issue NO.2 are accordingly struck out.

Issue No. 3 is whether the crime charged in the instant case was proved beyond reasonable doubt. Learned Counsel for the Appellant dealt with this issue in his original issues 2 and 3 although without expressly saying so, his argument on the other issues also touch on the question of burden and standard of proof.

Appellant’s Counsel noted that it is on record that as against the evidence of PW2 who claimed to have identified the Appellant, the Appellant under cross examination at page 37 of the record said:

“I don’t know PW2. I have never had any problem with him”

Learned Counsel for the Appellant submitted that there was no other evidence that confirmed that of PW2 as to his knowledge of the Appellant before the alleged robbery and that the case at the trial was the evidence of PW2 on oath and that of the Appellant (DW1) on oath as it concerns knowledge of the DW1 by PW2. Further, that as other facts and I or circumstances on record create doubt as to the identification of the Appellant by PW2, the issue should be resolved in favour of the Appellant because in a criminal trial, it is proof beyond reasonable doubt as there is no ground for the court to belief the prosecution and disbelief the evidence of the Appellant.

It is on record, said the Appellant’s Counsel that the Appellant never confessed to the crime and there are conflicting statements as to the person identified. He submitted that whereas PW2 claimed that it was the Appellant, Mr. Bassey Orok in his statement to the Police contained in the proof of evidence at page 6 said it was another person and not PW2 who claimed that he knew the Appellant. Appellant’s Counsel relied on the cases of Alabi vs. State (1993) SCNJ 106 at 109 and Ukpabi vs. State (2004) 11 NWLR (Pt. 664) 439 at 442, the first to show that proof of the identity of a robber is an essential requirement in a charge of robbery and where the accused person was not arrested at the locus in quo, the proper method of proving the identity of the robber is by identification parade. The second, that whenever the case against an accused person depends wholly or substantially on the correctness of his identification and it was mistaken, the court must closely examine the evidence and must view it with caution, so that real weaknesses discovered about it must lead to giving the accused the benefit of doubt.

Learned Counsel for the Appellant submitted further that the evidence of PW2 as an eye witness is further desecrated when considering the date he made statement to the Police because if he (PW2) lived in the same environment, he would have taken the Police or the alleged owner of the money to the house of the Appellant immediately after the incident and made a statement immediately the incident happened on the 20th July, 2004, rather, he made statement to the Police on the 9th day of August, 2004.

Appellant’s Counsel relied on the case of Nnunakwe vs. State (2003) 14 NWLR (Pt. 840) 219 at 224 and said that the court will not rely on evidence of a witness who testified that he was an eye witness but who failed to report what he saw to the Police until after two months. Appellant’s Counsel added that it was not proved that Appellant knew PW2 before the incident.

The PW2, said Appellant’s Counsel in his statement to the Police at page 5 of the record as contained in the proof of evidence stated that it was dark when the incident took place, but at page 29 of the record under cross-examination he said there was moonlight. Counsel submitted that the Police would have carried out identification parade particularly when the Appellant was not arrested at the locus in quo and the PW2 did not take the PW1 to the house of the Appellant. Finally on the question of proof Counsel submitted that the Police failed to tender Chike’s shirt as exhibit even when he (Chike) did not testify.

Learned Counsel for the Respondent on the other hand reiterated the ingredients of the offence of armed robbery and submitted that the prosecution has through the evidence of PW2, established the three ingredients of armed robbery against the Appellant.

To meet the Appellant’s case on the issue of identification, Respondent’s Counsel submitted that where an accused person’s identity is not in doubt, having been identified by one of the victims at the scene of crime, the conduct of an identification parade is unnecessary. Relying on the case of Isibor vs, State (2002) 3 NWLR (Pt. 754) 250 at 283, Respondent’s Counsel submitted that it is not in every criminal case that an identification parade is necessary.

Each case would depend on its facts and circumstances. And that the conduct of an identification parade is only essential in situation where;

1. The accused was not arrested at the scene and he denies taking part in the crime, or,
2. The victim did not know the accused before the offence, or
3. The victim was confronted by the accused for a very short time, and or
4. The victim due to time and circumstances must not have had full opportunity of observing the feature of the accused.

Respondent’s Counsel submitted that an identification parade was not necessary in the instant case because PW2 knew the Appellant before the offence was committed and reported to PW2 that he recognized one of the robbers to be Appellant (Sento) and that he lives at a certain place where Indian hemp is sold.

Respondent’s Counsel conceded that there is no evidence that the prosecution investigated the alibi raised by the Appellant. But that it is the law that where there is strong evidence that fixed the accused at the scene of crime, the non investigation of the alibi cannot vitiate a conviction. Relying on the cases of Yanor vs. State (1985) NMLR 337 at 338, State vs. Ozaki (1986) 1 NWLR (Pt. 40) 258 at 271, Ebri vs. State (2004) 3 NWLR (Pt. 806) 367 at 400, and Onuchukwu vs. State (1998) 4 NWLR 507 at 576. Respondent’s Counsel submitted that the rule that alibi must be investigated is in applicable in the face of evidence of credible eye witness.

It is clear that Issue NO.3 is the fulcrum of the instant appeal as the question of proof resolves around the identification of the Appellant. In this respect, I must quickly point out that the attempt first in the judgment of the learned trial Judge and before us in this court in the Respondent’s brief to treat the evidence of PW1 as corroborative of the evidence of PW2 on the identification of the Appellant at the scene of crime is not acceptable.

At page 54 of the judgment the learned trial Judge gave the impression that the evidence of PW1 did not weigh so much on her mind in arriving at his conclusion when he said:

‘The defence has urged me, to discountenance all the evidence of PW1 being hearsay. In these proceedings I take the evidence of PW1 for what it is. What explanations those who had his money gave to him regarding his money which they say they lost and nothing more ”

The learned trial Judge must have forgotten that earlier on at page 52 of the record, he had actually utilized the evidence of PW1 on the issue of identification when he quoted him (PW1) to have said:

“I asked them whether they knew the people my cousin Alfred (PW2) told me he knows one of them who lives where Indian hemp is sold. That he even confronted him during the attack and he shunned him. That he could take me to the boy’s house. He told me that the boy’s name is Sento. That he saw him and talked to him during the attack.”

Here, unlike the situation at the court below, I am not concerned with whether or not the evidence of PW1 was hearsay or not. Rather, I am concerned with the fact that the evidential value of the report made to PW1 by the PW2 cannot be higher than the evidence of the person (PW2) who was at the scene of crime and who in addition was called as a witness. In fact, strictly speaking, having called PW2 to give evidence in the case, the evidence of PW1 is worthless. The logic is that the part cannot be better or greater than the whole.

By the same token, the report by PW2 to PW1 of the incident cannot corroborate PW2 at least on identification; otherwise all that PW2 would have required was to make 15 reports to secure 15 corroborations. In other words, corroboration means confirmation, of an existing evidence coming from another independent witness or witnesses where a piece of evidence requires corroboration, the corroboration evidence should consist of any independent testimony which must confirm in some material particular the evidence in need of corroboration and, in criminal cases implicates the accused The test applicable to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. Edhioere vs. State (1996) 8 NWLR (Pt. 464) 1.

In the instant case, if we accept as I do that the evidence of PW1 in relation to that of PW2 is worthless on the question of identification of the Appellant, then, we are left in the words of the learned Counsel for the Appellant on the question of identification with the oath of the PW2 as against the oath of the Appellant. The Appellant not only denied knowledge of the offence but also knowledge of PW2.

Moreover, some of the weaknesses and / or inconsistencies in the case of the prosecution that are apparent from the record are as follows

1. The Appellant was not arrested at the scene of crime
2. The Appellant denied knowledge of the offence and of PW2 his only identifier.”
3. The robbery took place on 24th July, 2004, both PW2 and PW1 made statements to the Police, some 2 weeks after on 9th August, 2004.
4. The Police did not conduct any identification parade
5. At page 6 of the record in the statement of Bassey Orok one of the victims of the robbery to the Police he stated inter alia thus;

“We did not retaliate because those armed robbers were armed while we were not. I did not know any of the robbers but I can remember that as we were being robbed, one person who was not with the robbers was talking to the armed robbers in a familiar tone. Later that boy whose name I don’t know told us to come the following morning that he will take us to one of the robbers. I was not chanced to follow them to the boy’s house that very morning but when I got time I asked Chike Okpa whether they did see the boy and he said yes. He said that the boy told them that he knows one of the robbers that is all I can say for now.”

This statement by Bassey Orok shows first, that they were to see a boy that would identify one of the robbers, which PW2 never saw. And also that the claim of identification of the Appellant by PW2 could not be right, because they never for once saw the boy that would assist them, Thirdly, the statement also reveals that PW2 never identified the Appellant at the scene of crime otherwise they would not have needed any other person to assist them. Fourthly, the statement shows that the boy who was to assist them was amongst the crowd and not any of the victims as PW2 would want us to believe.

The assertion by PW2 that he knew the Appellant very well before the incident cannot be said to be proved by mere evidence that they live in the same environment.

There was no evidence that PW2 reported to PW1 at the earliest opportunity that it was the Appellant that stabbed Chike.

In the statement of PW2 to the Police at page 6 of the record his knowing the Appellant very well was dependent on the fact that they “were staying in the same environment. There was at that stage no mention of moonlight to brighten the darkness of the night. Thus he said:

“The armed robbers are many but it is only one that I can identify very well. The one I know is popularly called Sento.

He is tall, fair in complexion and not too fat or thin. I know him because we are staying in the same environment” underlining emphasis supplied)

At Examination-in-Chief at page 29 of the record the emphasis on the pattern of recognition consistent with PW2’s statement to the Police was still on living in the same area. PW2 said:

“I knew accused before that day. He was staying/living at Okpo Ene Street, Calabar.”

But at cross-examination on the same page 29 of the record the emphasis of PW2 on how he recognized the Appellant changed from living in the same area to the ability to recognize because there was moonlight. Thus PW2 said:

“Accused is living close to me. There was moonlight that night so I saw accused. Even in the dark I can recognize somebody I know properly.”

At page 5 of the record, in his statement to the Police PW2 denied any confrontation with the Appellant. Thus he said:

“I was not able to talk to him at that time because I was afraid. I don’t know whether he recognized me at the time because I believe he saw. At that particular time the place was dark but I was able to recognize him because he is somebody I know very well. I don’t know what he dose (sic) does for a living. That is all I can remember for now.”

In contrast, PW1 must have exaggerated and/or lied as to the report of PW2 to him when he witnessed at Examination-in-chief at page 27 of the record that:

“I asked them whether they knew the people. My cousin Alfred told me he knows one of them who lives where Indian hemp is sold. That he even confronted him during the attack and he shunned him (Underlining emphasis supplied)

That he could take me to the boy’s house. He told me the boy’s name is Sento. That he saw him and talked to him during the attack …. ”

Ordinarily, where as in the instant case an accused person was not arrested at the scene of crime, the evidence of identification would require caution by a trial Judge before acting on it to convict the accused person. This is because, as was pointed out by the Supreme Court per Aderemi JSC in the case of Sunday Ndidi vs. The State (2007 13 NWLR (Pt. 1052) 633 at 653 “a trial Judge in Nigeria 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 was sufficiently recognized by the witness” The rational for the above could be found in the judgment of the Court of Appeal (England) in the case of R.V. Turnbull & Ors 63 CR App. R. 132 at 137 – 140 that “Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

In the instant case, given the weaknesses in the prosecution’s case which includes the fact that the Appellant was not arrested at the scene of crime, a report to the Police was not made immediately or on time, that there was no identification parade and the poor quality perhaps unreliable evidence of identification offered by PW2, the learned trial Judge would have required not only warning as a matter of practice as to the danger of convicting the Appellant on account of the fact that he (Accused / Appellant) was not arrested at the scene of crime but also corroboration of the evidence of identification of PW2.

See, Aminu Tanko vs. The State (2008) 16 NWLR (Pt. 1114) 507 at 632.

In the instant case, the quality of evidence at the end of the prosecution’s case on the issue of identity or even recognition of the Appellant by PW2 is poor and no reasonable tribunal could be heard to convict on it. We are reminded here of the words of Tanko Muhammed JSC in the case of Sunday Ndidi vs. The State (supra) at pages 657 – 658 that:

“This is a criminal appeal in which the Appellant was sentenced to death by hanging or by firing squad. Although the offence with which the Appellant was charged was a serious one i.e. robbery which now becomes a cankerworm in the Nigerian Society and which of course requires drastic, urgent and effective solution to curb it, we should not forget that in criminal trials, particularly in capital offences, the trial court must arrive at its decision through a process of reasoning which is analytical and commends confidence. A judgment which sends a man to the gallows and awaits the hangman to execute him at any single minute, must be punctuated by logical thinking based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inferences carefully drawn. It can hardly be allowed to stand if founded on scraggy or a perfunctory performance.”

In the instant case, in spite of the noticeable weaknesses in the prosecution’s case the learned trial Judge did not find any independent testimony to corroborate the evidence of identification offered by PW2 neither did he warn himself of the danger of convicting the Appellant of such a serious offence as armed robbery without corroborative evidence or warning.

In those circumstances, it could not be said that the prosecution did in fact discharge the burden of proving the guilt of the Accused / Appellant beyond reasonable doubt.

Issue NO.3 is resolved in favour of the Appellant.

Accordingly the appeal is allowed.

The judgment of E. E. Ita, J. in Suit No. HC/11C/2005 wherein the Appellant was convicted and sentences to death is hereby set aside. The Appellant is hereby discharged and acquitted.

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Other Citations: (2009)LCN/3240(CA)