Supreme Court – July, 2016

Appeal No: SC. 501/2012

Areas Of Law:

APPEAL, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

Summary Of Facts

The Appellant was charged and convicted on a six counts charge of conspiracy to commit armed robbery and robbery contrary and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria, 2004.  The Appellant pleaded not guilty to the counts and trial commenced. At the conclusion of the trial, the court discharged and acquitted the Appellant in respect of the counts II, III, IV and VI but the court relying on PW3’s evidence of  identification of the Appellant as one of the armed robbers convicted him in respect of counts I and V relating to the robbery. Dissatisfied with the judgment of the trial court, the Appellant appealed to the Court of Appeal which dismissed the appeal and affirmed the decision of the trial Court.  The Appellant has further appealed to this Court.

Held

Appeal Dismissed

Issues For Determination

• Whether the lower court was right in upholding the finding of the trial court that the PW3 gave positive evidence of identification/recognition of the appellant as one of the armed robbers that robbed PW3.
• Whether from the totality of the evidence on the record, the lower court was right in affirming the conviction of the appellant by the trial court for the offences of conspiracy to rob and armed robbery.

Rationes

IDENTIFICATION PARADE – CIRCUMSTANCES WHEN IDENTIFICATION PARADE WILL BE NECESSARY AND WHEN IT WILL BE UNNECESSARY

“It must always be borne in mind that an identification parade is not necessary in all cases. It is however, necessary in the following circumstances; where;-

(a)  The victim did not know the accused before and his first acquaintance with him was during the commission of the offence;

(b)   The victim or witness was confronted by the offender for a very short time; or

(c)    The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.                                             

However, the instances, where identification parade is not necessary are as follows:-

where

(a) there is a clear and un-contradicted eye witness account and identification of the person who allegedly committed the crime;

(b) witness knew the accused previously;

(c) the defendant is linked to the offences by convincing, cogent and compelling evidence; and

(d) the accused in his confessional statement identified himself with the crime.

It must be noted, however that an identification parade is not a sine qua non to a conviction. It has to be established or proved that the accused is guilty of the offence he is being charged with, beyond reasonable doubt.” PER S.  GALADIMA, J.S.C

IDENTIFICATION PARADE- PRINCIPLE OF LAW REGARDING IDENTIFICATION PARADE

“In this case, one of the abiding principles of law regarding the identification parade is applicable. That an identification parade is not necessary when the witness claims that the perpetrator of a crime is a familiar or definite person by name or his abode who can be positively identified if the victim is given the opportunity to do so. See Ndidi v The State (2007) ALL FWLR (Pt .381) Pg1617.” PER. S.  GALADIMA,  J.S.C

INCONSISTENCY IN THE EVIDENCE OF A WITNESS – WHETHER MINOR INCONSISTENCY IN THE EVIDENCE OF A WITNESS WILL RENDER SUCH EVIDENCE UNRELIABLE

“Inconsistency rule does not apply to render the evidence of PW3 incredible and unreliable and to be discountenanced. See Uwagboe v The State (2008) 12 NWLR (Pt.1102) Page 621; particularly when such inconsistency is a minor nature that does not affect the live issue. See Basil v The State (2008) 4 SCNJ 250; The State v Fatai Azeez 4 SCNJ 325; Ayo Gabriel v The State (1989) 5 NWLR (Pt.122) 457.” PER. S.  GALADIMA,  J.S.C

CRIMINAL CONSPIRACY- PROOF OF CRIMINAL CONSPIRACY

“Indeed the correct legal principles on evidence of criminal conspiracy is well considered and summed up by the two courts below. The conspiracy is either by direct evidence of how the conspiracy came about or by inference from certain criminal acts or omissions of the parties concerned, done in pursuance of an apparent criminal purpose common to them. Ozaki v State (1990) 1 SC 109; Onyenye v State (2012) 15 NWLR (Pt. 1324) 586; Njovens v The State (1973) 5 SC 7 at 10; Balogun v Att. Gen. Ogun State (1992) 2 NWLR (Pt.763) 512.” PER S.  GALADIMA,  J.S.C

CONCURRENT FINDINGS OF FACT BY LOWER COURTS – GROUND UPON WHICH THE SUPREME COURT WILL INTERFERE WITH THE CONCURRENT FINDINGS OF FACT BY LOWER COURTS

“This court will not ordinarily disturb concurrent findings of fact by the two lower courts or even with findings based on evidence believed by the trial court, unless in very exceptional circumstances, for example where the findings or judgment appealed against are perverse: Karimu V State (1999) 13 NWLR (Pt.633) 1 At 4.”  PER S.  GALADIMA, J.S.C

CRIMINAL PROCEEDINGS – RATIONALE FOR DISAPPROVING THE PRACTICE OF INCLUDING A COUNT OF CONSPIRACY TO COMMIT AN OFFENCE IN AN INFORMATION AND THE COUNT FOR COMMITTING SUCH OFFENCE WHERE THE EVIDENCE TO SUPPORT BOTH COUNTS ARE SIMILAR

“This court has deprecated the practice of including a count of conspiracy to commit an offence in an information as well as a count for actually committing it, where the evidence to support the two counts are the same. The reason is obvious. This is because:

(i)evidence which otherwise would be inadmissible on the substantive charges against the accused becomes admissible, and

(ii)such a joinder of charges adds to the length and complexity of the case so that the trial may easily be well near unworkable and impose a quite intolerable strain on the court.

See R V Dawson v Wenlock (1960) 44 CR APP. R 87 Page 93 where the opinion of the Court of Appeal in England on the issue was adopted in the Nigerian case of Clark v State (Supra). See further Aiyeola & 2 Ors v The State SC/27/69 (Unreported) of 7/8/1970.” PER S. GALADIMA,  J.S.C

CONCURRENT FINDINGS OF TWO LOWER COURTS – ATTITUDE OF THE APPELLATE COURT TO CONCURRENT FINDINGS OF TWO LOWER COURTS

“In a situation such as this, there is a long line of authorities that when an appellate court is confronted with concurrent findings of two Lower Courts, the higher court does not decide off hand to go a contrary way as it must be guided by laid down principles. That is to say, that for an appellate court to overturn the concurrent findings, it must be first satisfied that the findings stemmed from a perverse route in arriving at or came from a miscarriage of justice or the wrong application of procedural law or the substantive law. When none of those occurrences are in place, the appellate court has no option than to stay its big stick but tow the line of the Lower Courts. See Attah v State (2010) 10 NWLR (Pt.1201) 190; Olaiya v State (2010) 3 NWLR (Pt.1181) 423 at 438”. PER M. U. PETER-ODILI, J.S.C 

OFFENCE OF ARMED ROBBERY –INGREDIENTS THE PROSECUTION MUST PROVE IN ESTABLISHING THE OFFENCE OF ARMED ROBBERY BEYOND REASONABLE DOUBT

“On this offence of armed robbery, the burden of proof on the prosecution to establish the offence beyond reasonable doubt has been stated to be that;

(a)        There was theft by the accused person;

(b)        Hurt was caused or unlawful restraint on the victims by the accused person;

(c)        The said acts complained of were done in the process of committing the theft and/carrying away the property obtained by theft;

(d)        That the accused person (s) did the act complained of voluntarily/ and

(e)        That the accused person(s) was/were armed with dangerous weapons while committing the offence in question.

I place reliance on the dictum of Onnoghen JSC in Abdullahi v The State (2008) Vol.164 LRCN 97 at 113 – 114.” PER M. U. PETER-ODILI, J. S. C.

GUILT OF AN ACCUSED PERSON – INGREDIENTS THE PROSECUTION MUST PROVE TO ESTABLISH THE GUILT OF AN ACCUSED PERSON

“In order to establish the guilt of the appellant beyond reasonable doubt, the prosecution must prove:

1. That there was a robbery or series of robberies.

2. That each robbery was an armed robbery; and

3. That the appellant was one of those who took part in the armed robbery or robberies.

See: Bozim Vs The State (1985) 2 NWLR (Pt.8) 465: Suberu Vs The State (2010) 8 NWLR (Pt.1197) 586: Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 561”. PER K.M.O. KEKERE-EKUN, J.S.C

PROOF – MODE OF PROVING A CASE AGAINST AN ACCUSED PERSON

“The prosecution may prove its case against an accused person in several ways:

I.By direct evidence;

II.By circumstantial evidence; and/or

III.By the confession of the accused 

 See: Adio Vs The State (1986) 5 SC 194 219 – 220; Emeka Vs The State (3002) 14 NWLR (Pt.734) 666: Olabode Abirifon Vs The State (2013) 13 NWLR (Pt.1372) 587 @ 596 F – G” PER K.M.O. KEKERE-EKUN, J.S.C

IDENTIFICATION OF AN ACCUSED PERSON – PURPOSE OF IDENTIFICATION OF AN ACCUSED PERSON

“Issue of identification of an accused person is very crucial in criminal proceedings, and the real purpose of identification is to ensure that there is no miscarriage of justice.   Identification of an accused person can be done by the victim of the crime if he is alive or by witnesses who saw when the offence was committed.   An accused can also be identified under Section 167 (a) of the Evidence Act 2011. This has to do with doctrine of recent possession”. PER J.I.OKORO,J.S.C

Statute Referred To:

Evidence Act 2011