CORAM

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HELEN MORONKEJI OGUNWUMIJU, JUSTICE COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, JUSTICE COURT OF APPEAL

MISITURA OMODERE BOLAJI-YUSUF, JUSTICE COURT OF APPEAL

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PARTIES

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AFAM OKEKE

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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AREAS OF LAW: ACTION, COURT, CRIMINAL LAW AND PROCEDURE, EVIDENCE

 

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SUMMARY OF FACTS

This is an appeal against the judgment of the High Court of Anambra State delivered on 21/2/2012 coram Hon. Justice Peter J. Umeadi, wherein the Appellant was convicted for armed robbery and sentenced to death by hanging or firing squad. The case of the Prosecution was that the Appellant in the company of others had robbed at gunpoint, P.W.1 of her vehicle and other valuables on their way to Nkpor through Ugwunabankpa Road, Inland town, Onitsha. P.W.2 gave evidence that she knew the Appellant very well and she was in the company of P.W.1 and others in P.W.1’s vehicle when the Appellant and some other people riding on motorcycles blocked their path and forced the passengers out of the car. The passengers fled into a nearby slaughter market, while the robbers collected the car, robbed P.W.2 of her Samsung handset and made off with the car. P.W.2 said she was very familiar with the Appellant as she had seen him on several occasions.

In his defence the Appellant testified that he is a panel beater and was arrested on the 11/7/08. On that day, he had prepared to go into the bush on his motorcycle where he went to guard his land when he was hit by a red sports car belonging to members of the SARS squad. He was arrested by these men and taken to SARS unit Awkuzu. Appellant swore that he was handcuffed, tortured and asked to confess his crimes and say where he had kept the vehicle. Appellant confessed to selling and using hard drugs but denied that he had ever stolen anything. Upon consideration of the evidence of both sides, the trial judge convicted the Appellant of armed robbery and sentenced him to death accordingly. Dissatisfied with the judgment of the trial Court, the Appellant initiated this appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether Exh B, Exh C, Exh J, Exh H were admissible and credible in view of material contradictions in the case of the prosecution witnesses.

Whether there was correct and admissible identification of the Appellant by the Complainant.

 

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RATIONES DECIDENDI

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OFFENCE OF ARMED ROBBERY – INGREDIENTS NECESSARY TO PROVE THE OFFENCE OF ARMED ROBBERY

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“In cases of armed robbery, there are three essential ingredients to be proved by the prosecution. They are set out below:

That there was robbery

That the robber or robbers were armed with offensive weapons

That the accused person(s) was the robber or one of the robbers.” – Per OGUNWUMUJI, JCA

 

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WITNESS(ES) – ON WHAT A WITNESS NEEDS TO DO TO BE SEEN AS A WITNESS OF TRUTH

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“Witnesses have the duty to tell the police as much as they know of a crime at the earliest opportunity in order to be seen as witnesses of truth and a Court of law must be careful in accepting delayed evidence when no satisfactory explanation is given. See Ani v. State (2002) 5 S.C; (2002) 10 NWLR (Pt. 776) 644; (2002) LPELR- 489 SC Ndidi v. State (2005) 17 NWLR (Pt. 953) 17; (2005) LPELR-7550 CA.”- Per OGUNWUMIJU, JCA

 

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CONFESSIONAL STATEMENT – WHETHER EXTRA JUDICIAL STATEMENT OF A WITNESS WILL BE ADMISSIBLE

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“The extra judicial statement of a witness in a criminal trial is inadmissible as evidence for either side. The admissible evidence is the evidence on oath in open Court by the witness which is subject to cross examination by the adverse party. The only time when an extra judicial statement of a witness is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath. The defence witnesses will ask for the statement and give reasons to the Court for doing so. On production by the Prosecution, the defence counsel must seek to tender it and refer to specific passages which contradict the evidence of the witness. After it has been admitted in evidence, the specific portions of the statement of the witness made to the Police must be shown to the witness to read out or counsel may read it out to the witness. The witness must be given an opportunity to explain the contradiction. Failure by the witness to explain the contradiction in the evidence on oath of the witness and the contents of the extra judicial statement can then be used to make an issue during defence counsel’s address. See S. 232 and 233 of the Evidence Act 2011. The Court is not allowed to pick and choose between the two statements. See State v. Fatai Azeez & Ors (2003) 4 SCNJ 325; Igenti v. State (2013) LPELR-2086 (CA).” – Per OGUNWUMIJU, JCA

 

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CHARACTER EVIDENCE – INSTANCES WHERE EVIDENCE OF BAD CHARACTER OF A DEFENDANT WOULD BE ADMISSIBLE

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“It is clear that the learned trial judge erroneously relied on the extra judicial statement of PW5 in Exh J to convict the Appellant. This is in clear violent disregard of S. 82 of the Evidence Act which provides as follows:

Except as provided in this Section, evidence of the fact that a defendant is of bad character is inadmissible in criminal proceeding.

The fact that a defendant is of bad character is admissible-

When the bad character of the defendant is a fact in issue; or

When the defendant has given evidence of his good character

A defendant may be asked questions to show that he is of bad character in the circumstances mentioned in paragraph c of the provision to Section 180.

Whenever evidence of bad character is admissible, evidence of a previous conviction is also admissible.

In cases where Subsection 4 of this Section applies, the Court shall only admit evidence of previous convictions which are related in substance to the offence charged.

Evidence of a previous conviction shall be proved in accordance with Part XIII

See Kunle Shonubi v. People of Lagos (2015) LPELR-24807 (CA).” – Per OGUNWUMIJU, JCA

 

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CONFESSIONAL STATEMENT – POSITION OF THE LAW WHERE A WITNESS MADE A PRIOR EXTR JUDICIAL STATEMENT WHICH IS INCONSISTENT WITH HIS EVIDENCE ON OATH

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“Where a witness in a criminal trial made a prior extra judicial statement materially inconsistent with his evidence on oath, the trial judge is not permitted to pick and choose which evidence to believe and must disbelieve both and put no probative value on either. For the rule to be activated by the defence, during the cross examination of the witness, the defence counsel is obliged to demand a copy of the said extra judicial statement from the prosecution which should be part of the proofs of evidence. The material portion of the extra judicial statement would then be put to the witness to give him the opportunity to explain, the extra judicial statement should then be tendered and admitted as evidence. The point should then be made an issue during defence counsel’s address. See S. 232 & 233 of the Evidence Act 2011.”

 

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IDENTIFICATION PARADE – NATURE OF IDENTIFICATION PARADE – CIRCUMSTANCES WHEN IT IS NECESSARY TO CONDUCT AN IDENTIFICATION PARADE

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“Let us examine the nature of identification parade and when it is deemed necessary. An identification parade is the process by which an accused person is identified out of a number of people with identical features as the accused person, by a witness. It was defined in Alabi v. State (1993) 7 NWLR (Pt.307) Pg. 511 at 527 per Onu, J.S.C as follows:

“Identification parade means a group of persons of identical size and common physical features assembled by the police from whom a witness identifies a suspect or suspects unaided and untutored.”

Needless to say, the identity of an accused person must be established by credible evidence beyond reasonable doubt in accordance with Section 135 (1) of the Evidence Act. It is well settled that it is not in all criminal matters that identification parade is necessary. There are certain circumstances where identification parade would not only be needless, but would be a complete waste of time. However, there are also circumstances where conducting an identification parade is essential to the prosecution’s case. There are several judicial authorities on this point. In Aliyu v. State (2007) ALL FWLR Pt. 388 Pg. 1123 at Pg. 1147, this Court per Ariwoola JCA (as he then was) held as follows:

“An identification parade is not sine qua non to a conviction for a crime alleged, it is essential in the following instances –

where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.

where the victim or witness was confronted by the offender for a very short time.

where the victim due to time and circumstance might not have had full opportunity of observing the features of the accused. See R v. Turnbull (1976) 3 ALL ER 549, (1977) QB 224; Ikemson v. State (1989) 1 CLRN 1.”

Also, in Balogun v. A-G. Ogun State (2002) 6 NWLR (Pt.763), Pg. 512 at 534, the Supreme Court per Uwaifo JSC held thus:

“An identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness’s power of recognition based upon the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubts as to who the witness claims he saw in connection with the offence to require identification parade.”

See also Ukpabi v. State (2004) 11 NWLR Pt. 884 Pg. 439; Ebiri v. State (2004) 11 NWLR Pt. 885 Pg. 589; Sunday Ndidi v. The State (2007) All FWLR Pt. 381Pg. 1617; Archibong v. The State (2006) 14 NWLR Pt.1000 Pg. 349; Ogoala v. The State (1991) 2 NWLR Pt.175 Pg. 509.

Thus, an identification parade would be necessary where the accused was not arrested at the scene of the crime; the witness did not know the accused before; witness was confronted with the accused for a short time, the witness, because of the peculiar circumstances did not have the opportunity to see fully the features of the accused.” – Per OGUNWUMIJU, JCA

 

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IDENTIFICATION PARADE – ON PROPER PROCEDURE FOR CONDUCTING AN IDENTIFICATION PARADE

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“The proper procedure in identification parade is to shield the accused from members of the public before the identification parade is conducted. See Jerome Akpan & Ors v. The State (2002) 12 NWLR Pt. 780 Pg. 189. The usual way to conduct identification parade is to put the accused with other persons for the witness to pick. The police are not entitled to assist the identification of an accused person or suspect under arrest by bringing out the accused in handcuffs. See Waidi Ajibade v. The State (1987) 1 NWLR Pt. 48 Pg. 205. Identification parade would not be properly conducted when the witness is asked leading questions like “Is this the person?” or when a police officer nods in the direction of the accused person. Since the Appellant was identified by PW1 at the police station where he was taken after being arrested for the crime PW1 complained of, there was no identification parade. The identification parade must be considered with the description of the accused person given to the police shortly after the offence was committed which should have been given by PW2 who allegedly knew the Appellant well immediately after the offence was committed. See Isibor v. The State (2002) 4 NWLR Pt. 758 Pg. 741.”- Per OGUNWUMIJU, JCA

 

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IDENTIFICATION EVIDENCE – NEED FOR COURT TO EXERCISE CAUTION WHEN DEALING WITH CASES OF DISPUTED IDENTITY

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“The judge must be cautious and carefully examine identification evidence before acting on it. The parade must meet certain standards to be credible and acceptable. Where the identification parade is improper, the accused must be given the benefit of the doubt. See Ojukwu & Ors v. State (2002) 4 NWLR Pt. 756 Pg. 80.” – Per OGUNWUMIJU, JCA

 

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IDENTIFICATION PARADE – PURPOSE OF IDENTIFICATION PARADE

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“The object of an identification parade is to make sure that a witness can positively and clearly identify the accused person. It is to make sure that no mistake is made in the identification of an accused person. See Abusu v. State (1985) 1 NWLR (Pt. 1) 5 SC where the Supreme Court relied on the decision in R v. Turnbull (1976) 3 WLR 28 445, as follows:

“Recognition may be more reliable than identification of a stranger; but 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. All these matters go to the quality of the identification evidence. If the quality of the evidence is good and remains good at the close of the accused person’s case, the danger of mistaken identification is lessened but the poorer the quality, the greater the danger.”

 

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DOUBT – EFFECT OF DOUBT IN CRIMINAL TRIAL

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“It is my humble but firm view that the identification of the Appellant by PW1 and PW2 as one of the armed robbers who dispossessed PW1 and other victims of her car and other valuables was improper and should have created reasonable doubt in the mind of the trial judge. It is trite that where there is doubt in a criminal matter, the doubt should be resolved in favour of the accused. In Ahmed v. The State (1999) 7 NWLR Pt. 612 Pg. 641 at Pg. 673, the Supreme Court held as follows:

“It is a cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution who should prove such fact beyond reasonable doubt. In criminal cases, any doubt, as to the guilt of the accused arising from the contradictions in the prosecution’s evidence of vital issues must be resolved in favour of the accused.”

 

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WITNESS(ES) – ON WHETHER A COURT CAN CONVICT ON THE EVIDENCE OF A SINGLE WITNESS

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“A man may be convicted on the evidence of a single witness. However such evidence must be credible and cogent. In The State v. Aibangbe (1988) 3 NWLR Pt. 84 Pg. 548 the Supreme Court held per Craig, JSC at page 592 as follows:

“…it is just as well to state that there is no law or rule of practice specifying that a man may not be convicted on the evidence of a single witness…What is important is that the evidence given must be credible and be of such quality and cogency that a Court would safely rely on it in coming to a decision in a case. Thus, if such evidence has been thoroughly discredited under cross-examination or is otherwise open to doubt in the light of other supporting evidence then, it would be wrong to rely on it in convicting the accused person.”

 

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SUSPICION – WHETHER SUSPICION CAN TAKE THE PLACE OF LEGAL PROOF

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“Suspicion no matter how strong cannot amount to evidence beyond reasonable doubt. See Isah v. State (2007) NWLR (Pt.1049) 582; Onah v. State (1985) 3 NWLR (Pt.12) 236; Omolara Bajulaiye v. The State (2012) LPELR-7995 (CA); Oguno & Anor v. The State (2013) LPELR-20623 (SC).” – Per OGUNWUMIJU, JCA

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Evidence Act 2011

 

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