Samuel Bozin V. The State (1985)
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OPUTA, J.S.C.
This appeal was heard on Thursday, 16th May, 1985. After carefully reading the records of proceedings, the Briefs of Argument filed on both sides. and listening to learned counsel, the Court decided to allow the appeal.
The appeal was then allowed, the judgments of the courts below set aside, as well as the conviction and sentence of the trial court. In their stead, a verdict of Not Guilty was entered and the appellant was accordingly acquitted and discharged. The Court then indicated that Reasons for Judgment would be given on the 11th July, 1985. Hereunder are my reasons.
The appellant was in the court of first instance charged with Armed Robbery punishable by death under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. He was on 29/9/83 found guilty by Ajuyah, J. sitting in the Warri Judicial Division of the Bendel State High Court, and sentenced to death. The appellant then appealed against his conviction and sentence to the Court of Appeal, Benin Division. In that court, the point was raised and seriously argued that “the evidence of witnesses of identity of the appellant is irregular, that it was the police who pointed the appellant to the witnesses as the armed robber.” “This,” it was submitted “is unsatisfactory.” The Court of Appeal holding “that this contention in my view is not valid in view of the evidence before the court,” dismissed the appeal and against that dismissal the appellant has now appealed to this Court.
The main ground canvassed before this Court was the omnibus ground that the decision cannot be supported, having regard to the totality of the evidence in general and particularly to the shaky and shady as well as improper and unorthodox evidence of identification; that the court below was wrong in allowing a finding of guilty based on such evidence to stand. It was also contended that the defence of the appellant was inadequately considered by the courts below.
I shall deal first with the crucial issue of identification. For the prosecution to succeed in this case, there ought to be proof beyond reasonable doubt:
(i) That there was a robbery or a series of robberies.
(ii) That each robbery was an Armed Robbery.
(iii) That the appellant was one of those who took part in the armed robberies.
There is here evidence galore that a series of robberies took place in the early hours of the 8th July, 1979 at Okumagba Layout Warri. It is common ground that force was used and guns were fired during and even after the robberies. No one can be in any doubt that what happened around the vicinity ofOkumagba Layout Warri on the night/early morning of 8th July, 1979, each amounted to armed robbery as defined by the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.
The victims of the various robberies testified for the prosecution as Prosecution Witnesses 1-6. From the totality of their evidence, the robbers were four in number; they were not masked; there was amply light inside as well as bright security lights outside. Each of the six prosecution witnesses identified the appellant the following morning as being one of the four armed robbers who invaded his house the previous night. Each witness testified that he knew the appellant before the night of the robberies. They knew him by name; they knew that he lived at No.6 Eboh Road, close by No. 8 Eboh Road where 1st P.W. Samuel Okorefe (one of the victims of the robberies) lived. No.8 was a kiosk or a barber’s shop where the appellant usually slept. This is admitted by the defence. Also the 2nd P. W. William Emeurude who lives at No. 38 Idama Street, Okumagba Layout and who was also robbed was emphatic in, and sure of, his identification of the appellant who like him comes from Isoko.
The learned trial judge reviewed the evidence identifying the appellant and connecting him with the series of robberies that took place in and around Okumagba Layout on the night of sn/79 and found as follows:-
“I am satisfied that there is a lot of variance in the evidence as to what happened after daybreak. I am of the view however that a clean line can be drawn between the evidence of the robbery and the evidence after the robbery. I am satisfied that P.Ws. 1-6 clearly recognised the accused person. They knew him before 8/7/79 and clearly saw him by means of the security light outside. The accused was unmasked and it was to him the 3rd, 4th, 5th and 6th P.Ws. gave money.”
The appellant in his defence denied taking part in any of the robberies. He set up an alibi which was disbelieved by the learned trial judge – Ajuyah, J.
The most important question facing this Court is – from all the facts and surrounding circumstances of this case, can it be safely said that the identity of the appellant as one of the four robbers was established up to that high degree required in criminal cases – that is – established beyond reasonable doubt Was the procedure and method of his identification proper The learned trial judge, with the greatest respect, flew off tangent when he observed “that a clean line can be drawn between the evidence of the robbery and evidence after the robbery.” To test not merely the veracity of the P.Ws. 1-6 but also the accuracy of their identification of the appellant as one of the four armed robbers, the whole incident will be considered together not separately. It will be of interest to find out whether at the earliest and first opportunity, these witnesses who knew the appellant so well either mentioned him by name (as would have been expected) or by his residence as the occupant of No.6 Eboh Road” or as “the person who usually slept in the barber’s shop” or “the Isokoman sleeping in a nearby kiosk”. It will be natural to expect this early identification not merely as a remote possibility but as compelling probability. It would be quite a strange and improbable story if this early identification was absent (as indeed it was).
It requires but little experience in court to arrive at the conclusion that a great majority of cases are composed of a few principal fact surrounded by a host of minor ones which may, in themselves and by themselves alone, look unimportant, but which in the final result may turn out to be the weak links that prove the strength of the chain. The principal facts of this case are the robberies, while the minor facts are the earliest reactions of each witness as to who the robbers were, before there was time for reconstruction, before leading questions were asked and before the appellant was obviously paraded as an armed robber – a short step to his being identified as the armed robber. These minor facts may, and often do, form the possibilities and probabilities which on the whole of the evidence, it is natural to expect and which may then drive conviction into the mind, which will in turn make the trial judge say – “I am satisfied” or “I believe.”
, All men stamp as probable that which they would have said or done C under similar circumstances and as improbable that which they themselves would not have said or done under the same set of similar circumstances. Things inconsistent with human knowledge and experience are properly rated as improbable.
This seems to be the purport and intendment of Section 148 of the Evidence Act. Where therefore the principal facts look improbable when considered against the background of their surrounding circumstances, they cannot induce belief – and it will be wrong for a trial court in such circumstances to say “I believe” or “I am satisfied ” There is neither magic nor sanctity in the words and expression “(believe” or “I am satisfied” and they should not therefore be used as a sanctuary. Belief and satisfaction should represent the court’s reaction towards facts and possibilities and probabilities based on those facts.
When, as in this case, the evidence of the identity of the appellant is punctured with improbabilities and so many questions remain unanswered and unexplained, the trial Court should have hesitated a lot before being satisfied and if it were in doubt, (a doubt which any impartial view of the evidence in this case should induce), it was its duty to give the benefit of that doubt to the appellant.
Let me now consider the evidence of the prosecution witnesses on the vital issue of the identification of the appellant. The 1st P.W. Samuel Okorefe, living at No. 8 Eboh Road and therefore next door neighbour of the appellant who lived at No.6 Eboh Road testified inter alia: “At day-break some policemen came to tell us that some armed robbers were arrested and that the tenants in the premises should come to identify them.”
One would ask at this juncture why did the witness and in fact the other witnesses not tell the police there and then that they recognised one of the robbers whom they had known all along and who is their next door neighbour living at No.6 Eboh Road Why Why did they not give the Police the name of the appellant Why did William Emeurude, 2nd P.W. merely tell the police at that earliest opportunity that “the robbers moved in the direction of Upper Erejuwa Road.” Why did he not tell the police that one of the robbers lives at No. 6 Eboh Road nearby Why did he not tell the police that one of the robbers was an Isokoman like himself Why These unanswered questions constitute the minor facts, the “multitudinous little things” which surround this case and create the possibilities and probabilities that will induce either belief or disbelief; satisfaction or dissatisfaction; conviction or acquittal. If they existed, it would be safe to believe or to be satisfied. If they were absent (as they were in this case) the belief or satisfaction would not be well grounded or well founded and so would the conviction and sentence be unreasonable and wrong. Again why did the witnesses wait to go to the police station to see the appellant tendered, as it were, as an exhibit, before they could recollect that the appellant was one of the robbers But did these witnesses really recollect Not real. They were asked a leading question. The evidence of the 1st P.W. was – “when we got to the police station the policeman asked us” – “Is this the man” We answered “yes.” What type of identification is this
There is a world of difference between – “I have known the appellant before, he was among those who robbed me” and “I saw one of those who robbed me and if I see him again I will recognise and identify him. ” It is only in the latter instance that an identification parade becomes necessary and is thus usually conducted. But such a parade should be properly and fairly conducted. In the case of William Goss (1923) 17 CR. App. R. 196 at p. 197 an improper use of photographs to help identify an accused person was held to be unfair and improper and a subsequent conviction was quashed. In the case of John James Haslma (1925) 19 CR. App. R. 59 the Court of Criminal Appeal per Hewart, L.C.J. maintained that the police are not entitled to assist the identification of a suspected person already under arrest. Here the appellant was under arrest after being beaten up by members of the Civil Defence as an armed robber. The prosecution witnesses were then brought to the police station and asked “Is this the man” What will be the natural answer but “yes” – another case of res ipsa loquitur – but now in the criminal law. The impropriety of the method used in the identification of the appellant was reduced into a farce when one considers the evidence of the 2nd P.W. William Emeurude about what happened on the night of the robbery:-
” …. policeman …. came in a beetle car and asked if we knew Samuel Bozin and we replied “yes.” They asked if we could identify him if we saw him We replied “yes.”
What was it that was being identified The robber or Samuel Bozin The identification of a suspected person must be very carefully conducted and it is very wrong to point out the suspected person and ask “Is that the man” The usual and proper way is to place the suspected person with a sufficient number of others and to have the identifying witness pick out the accused without any assistance – the case of Thomas Chapman (1911) 7 CR. App. R. 53 at p. 54 refers. This is what is called an Identification Parade. I simply cannot put into any legal compartment what was done in this case. A G parade with only the appellant on parade is definitely not an identification parade ‘known to the law: see the case of George Harold Williams (1912) 8 CR. App. R. 84 where the suspected person was alone on parade. The conviction was quashed. Also it is highly improper to invite witnesses to identify the appellant not mixed up with other people: see John Smith and W. Evans (1908) 1 CR. App. R. 203 at p. 204 where Phillimore, J. castigated the police H and remarked:
“Such methods as were resorted to in this case make this particular identification nearly valueless, and police authorities ought to know that this is not the right way to identify.”
I agree but will add that in this case, the courts below ought to have known that since the one and only crucial issue in this case was the correct and proper identification of the appellant as one of the four armed robbers, the farcical drama conducted in this case fell far short of the requirement of the law. It was not proof beyond reasonable doubt. The courts below then had a duty to quash the conviction and sentence of the appellant as was done in the case of Waller William Chadwick & 2 ors. (1917) 12 CR. App. R. 247 where at p. 249 Reading L.C.J. observed:
“This is a singular case. The guilt or innocence of the appellants depends entirely on the effect of the evidence of identification.”
Since the evidence of identification was unsatisfactory, the convictions in Chadwick and 2 ors. above were quashed. In this case on appeal, the guilt or innocence of the appellant depended entirely on what I earlier on called the shaky and shady evidence of improper and unorthodox identification. This appeal therefore ought to be allowed on the ground that the conviction cannot be supported by the evidence – the evidence of an identification prompted by a leading question, an identification that was anything but proper and fair.
The second ground argued before us was that the defence of the appellant was not adequately and properly considered. His alibi might well have been established if it had been investigated. But unfortunately it was not investigated. Had the appellant a brother called Emmanuel Odoni living at Olodi Street Did the said Emmanuel Olodi hear any heavy pounding at his door on the night of 8/7/79 Had the appellant an in-law called Joseph Akingbade living at Irebrighe in the vicinity of Upper Erejuwa Road or did he just invent all these names There are some strong circumstantial evidence tending to support the alibi of the appellant:-
- No gun was found on the appellant when he was arrested by the Civil Defence Guards during the early hours of the morning of 8/7/79, almost during the time that the robberies were taking place.
- The robbers took away the jacket of Samuel Okorefe called as 1st P.W. No such jacket was found on the appellant.
- The total amount removed from the houses of the prosecution witnesses amounted of N89. These witnesses testified (and the courts below so found) that each gave his money to the appellant. Now when the appellant was arrested and the amount found on him was not N89 but N52. He said he had N63 and that the police took N10 therefrom allegedly for his hospital treatment.
Quite apart from the improper identification, the complete absence of any of the circumstantial evidence linking the appellant with these robberies would have at least created a doubt in the mind of any fair-minded jury and the law is that nay such doubt ought to have been resolved I favour of the appeallant. It is easy to say, as the trial judge said “J do not believe that he did not participate in the robbery,” but the issue is not as simple as that. What were the reasons for this disbelief None was given except it be what the learned trial judge observed that “the defence is strange and does not support innocence.” There is no onus on the defence to establish the innocence of an accused. The law presumes him innocent and one does not set out to prove what is presumed in his favour. The standard of proof required to establish an alibi is much, much lower than proof beyond reasonable doubt expected of the prosecution. That standard is merely the favourable balance of probabilities which in this case is more on the side of the appellant:- Okputu Obiode & ors. v. The State SC. (1970) 1 All NLR. 35 at p. 40. I hold that the defence of the appellant was not dispassionately and properly considered. If it were, it could have at least raised a doubt, the benefit of which would have gone to the appellant.
In the final result, this appeal is bound to succeed as the prosecution case founded on the rock of improper identification of the appellant as one of the armed robbers. He was arrested on mere suspicion and suspicion however grave does not amount to proof. It was ‘for the reasons given above that 1 allowed this appeal on 16/5/85.
OBASEKI, J.S.C. (Presiding): After carefully studying the record of proceedings and judgments of the High Court and the Court of Appeal and hearing counsel for the parties on Thursday, the 16th day of May, 1985, I allowed the appeal of the appellant, set aside the decision of the High Court convicting him and sentencing him to death as well as the decision of the Court of Appeal affirming the conviction and sentence of death and entered, instead, a verdict of ‘Not Guilty’ in favour of the appellant. I accordingly acquitted and discharged the appellant and reserved till today, my reasons for the judgment. I now proceed to give the reasons.
The main question for determination in this appeal is one of identification, i.e. whether appellant was properly identified by the complainants, P.Ws. 1 – 6 or not in circumstances making the identification an identification by the police. The appellant’s contention is that he was pointed out by the police to the P.Ws. 1- 6who had been robbed before they accused him of being one of those who came to rob them in their houses and apartments of their monies. He is well known to the residents of the adjoining houses in the area as he resides in a barber’s kiosk in the yard or premises of one of the houses in the neighbourhood. Indeed, the evidence shows that all the witnesses knew him very well and could identify him by day or by night without assistance from anyone.
It is therefore a surprise that in the light of the evidence that the robbers were not masked and that the appellant played an active part in the robbery for it was to him the 3rd, 4th, 5th and 6th P.W.’s gave money. Not one of the prosecution witnesses 1 – 6 mentioned his name to the police at the earliest opportunity. Not even when the 1st batch of policemen came to the scene of robbery and asked whether they knew Samuel Bozin did any of them jump up and say “Ah! he was one of the four persons who came to rob us.” It was not until they saw him in police custody before the P. Ws. 1-6 identified him and accused him of being one of the robbers. The logical deduction or inference from such identification in the circumstances described, is that the identification is faulty and unsatisfactory. Its evidential value is reduced to nil. The wrong person in police custody may have been identified as the robber. Such faulty identification must create reasonable doubt in the minds of the tribunal on a proper view of the evidence adduced. The appellant is entitled to the benefit of that doubt and the High Court should have given him that benefit.
My learned brother, Oputa, J.S.C. has dealt in admirable detail with the question in the Reasons for Judgment just delivered the draft of which I had the privilege of reading in advance. I adopt them as my own.
It was for the above reasons and the reasons so ably set out in the Reasons For Judgment of my brother, Oputa, J.S.C. that I allowed the appeal and acquitted and discharged the appellant.
ESO, J.S,C.: I will agree with the reasons for judgment so lucidly given by my learned brother Oputa, J.S.C. in this case. The appeal of the appellant was summarily allowed by this Court on 16th May, 1985.
I find it difficult to understand the attitude of the police to the investigation of so grave a charge against the appellant. I find it more difficult to understand the attitude of both the trial Court and more especially that of the Court of Appeal having regard to the evidence led in this case by the prosecutor and the non investigation of the defence of alibi put up by the appellant.
There is no doubt that there was a series of robberies in the night of the incident. The question was whether the appellant was one of the robbers. There were four robbers, so the evidence went. These four were not masked. There were six eye witnesses and they all professed to have known the appellant intimately and even by name before the day of the incident. They even knew that he lived at 6 Eboh Road and this was close to 8 Eboh Road the house of one of the victims of the robbery. Not one of the witnesses mentioned the appellant by name at the first opportunity after the robbery. Common sense demands that if a victim knows a robber ~s well as those witnesses had claimed, he would without being prompted mention his name. But that was not the case here
It was a theatrical show at the cell that the police relied upon for the identification of this appellant. What happened This is best related in the evidence of the 2nd prosecution witness. The policemen, having come to the scene in a car asked questions of the witnesses if they knew Samuel Biozin. Of course they all knew Samuel Bozin and no hat trick had been scored by eliciting this from the witnesses. The next question was whether they could identify Samuel Bozin if they saw him. What answer was being expected to this not very brilliant question And of course the police had concluded Samuel Bozin was the culprit – without evidence – and they only sought confirmation for their conclusion.
Against this petty second rate drama was the alibi put up by the appellant. He said he went to see his brother. He gave the name of the brother as Olodi. He said he pounded at his door. The police would not investigate this.
To say the least the investigation was questionable. The appellant was wrongly convicted by the High Court. The Court of Appeal failed to investigate the matter properly when the matter came before them. The appeal must be allowed and it was allowed, and it was for these reasons and the reasons given by my learned brother Oputa, J.S.C. that I allowed the appeal on 16/5/85.
Other Citation: (1985) LCN/2251(SC)
