CORAM

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PARTIES

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MOSES EDE OGBONNA

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INSPECTOR GENERAL OF POLICE

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant was arraigned along with two others at the High Court of the Federal Capital Territory, Maitama, Abuja, on a seven-count charge of Armed Robbery punishable under Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap 398, LFN, 1990. The facts of the case was that the Appellant along with two other accused persons and three female companions on 23rd of March, 2006 were arrested and taken to Utako Police Station on their way back from a Night Club in Abuja. They were not able to provide their Driver’s licenses and particulars of their vehicle when the security men requested it from them. Thereafter, the Appellant was taken to Special Anti-Robbery Squad (SARS) where he was tortured into making a statement admitting that he committed armed robbery. At the conclusion of the trial, the Appellant was convicted of the offence in Count No. 5 of the charge only and thereafter sentenced to death. Dissatisfied with the trial court’s judgment, the Appellant filed an appeal before this court contending that the evidence before the trial court that the identification parade that produced the Appellant was poorly conducted and not according to law.

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HELD

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Appeal Allowed

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ISSUES

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Whether having regard to the extant requirement of the law, the mode of identification/identification parade employed by the Police in identifying the appellant was proper and ought to have been relied on at all by the learned trial judge in convicting the appellant. Whether upon proper evaluation of the evidence adduced by the Prosecution, the extant elements of the offence of Armed Robbery were established against the appellant and proved beyond reasonable doubt Whether given the circumstances of this case and the Orders of the learned trial judge relating to the non-participation on of the Prosecution in the conduct of the proceedings, the learned trial judge was not wrong when he failed to discharge and/or strike out the case against the appellant

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RATIONES DECIDENDI

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BRIEF OF ARGUMENT – WHETHER THE FAILURE TO FILE A RESPONDENT’S BRIEF OF ARGUMENT IS MATERIAL IN DETERMINING THE APPELLANT’S SUCCESS IN AN APPEAL

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“It is firmly established however, that failure to file a Respondent’s Brief is immaterial as an appellant must succeed or fail in his appeal on the strength of his own brief or case. Such a failure though may amount to the respondent being deemed to have admitted the truth of everything stated in the appellant’s brief in so far as such is borne out by the record of proceedings. See Ogbu & Anor. v. State (2007) 5 NWLR (Pt. 1028) 635, Echere & Ors. v. Ezirike & Ors (2006) 12 NWLR (Pt. 994) 386; Okelola v. Adeleke (2004) LPELR – 2438 (SC).

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BRIEF OF ARGUMENT – PURPOSE OF A RESPONDENT’S BRIEF OF ARGUMENT

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“The main purpose of a respondent’s brief is to demonstrate, in appropriate case, that no error was committed by the court below in the judgment and to defend, within the limits of the law, the decision appealed against. See Ogunye & Ors. v. State (1999) 5 NWLR (Pt. 604) 548. The bottom line is that the success of an appeal largely depends on the argument and facts put forward against the judgment appealed upon by the appellant”.

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IDENTIFICATION PARADE – INSTANCE WHEN AN IDENTIFICATION PARADE IS NECESSARY AND WHEN IT IS UNECESSARY

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“Let me start by pointing out that our law is settled on the fact that identification parade is not the only way acceptable by the law establishing the identity of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused, a parade so called is not necessary. See Ugwu v. State (2020) LPELR – 49375 (SC). However, where the facts and circumstances suggest that the identity of the accused is in doubt, an identification parade must be carried out for the proper identification of the accused person. Where there is evidence of a fleeting encounter between the victim and the accused, there is probably no need for a parade but where the prosecution itself believed a parade is needed to clear or verify the identity of the accused, the parade must be carried out in a worthy or opaque manner if not it will not be an acceptable exercise. Identity of an accused is very fundamental to successful prosecution of an accused person”.

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IDENTIFICATION PARADE –MEANING AND PURPOSE OF IDENTIFICATION PARADE – INSTANCES WHEN AN IDENTIFICATION PARADE SHOULD BE CONDUCTED

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“The Supreme Court in the case of Famiyiwa v. State (2018) 5 NWLR (Pt. 1613) 515 had held that identification is a whole series of facts and circumstances for which a witness or witnesses associate a Defendant with the commission of the offence charged. An identification parade is usually set up in case of a real doubt or dispute as the identity of an accused or his connection with the offence. This in Police circle is known as “line-up” which is an identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the accused can be identified as the perpetrator of the crime. See Alufohai v. The State (2014) LPER – 24215 (SC).
In the case of Agbola v. State (2013) 11 NWLR (Pt. 1366) 619, Ariwoola, JSC, held that:
“An identification parade would become necessary only in the following situations of visual identification: (a) where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence; (b) where the victim was confronted by the offender for a very short time; and (c) where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused. See R. v. Turnbul (1976) 3 All ER 549 or (1977) QB 224 at 228 – 231, Ikemson v. State (supra)”
Similarly, in Attah v. State (2010) LPELR – 592 (SC), Adekeye, JSC, expatiated on the circumstances where an identification parade will be conducted as follows:
“In the case of Archibong v. State (2004) 1 NWLR Pt. 855 page 488 at pages 509 – 510 paragraphs C – D and H – A has this to say about identification – An identification parade is one tending to show that the person charged with an offence is the same person who committed the offence. When an identification evidence is poor, the trial court should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification. Although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential in the following instances: – (a) Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence. (b) Where the victim or witness was confronted by the offender for a very short time and (c) Where the victim due to time and circumstance might not have had the full opportunity of observing the features of the accuse. (1) An identification parade is unnecessary where there is clear and uncontradicted eyewitness account and identification of the person who allegedly committed the offence, Ibrahim v. The State (1991) 5 SCNJ pg. 129, Balogun v. A.G. Ogun State (2002) 6 NWLR Pt. 763 page 512 at page 534. (2) It is unnecessary where witnesses knew the suspects previously, Eyisi v. The State (2001) 8 WRN pg. 1, Williams v. The State (1992) 10 SCNJ pg. 74 (3) Where the accused is linked to the offence by convincing, cogent and compelling evidence, an identification parade is not a relevant fact. Ugwumba v. The State (1993) 6 SCNJ pt. 11 pg. 217. The case of Walaka v. The State (1991) 8 NWLR Pt. 211 pg. 522 distinguished between identification and recognition. Recognition of an accused person arises when a person sees or acknowledges the identity of a man or woman well-known to him committing a crime. Such recognition dispels any shadow of doubt about his commission of the crime”.
In another case, the case of Osuagwu v. The State (2013) 5 NWLR (Pt. 1347) 360, Rhodes-Vivour, JSC, concluded that:
“An identification Parade should be conducted: 1. When the offence was committed in the dark and the victim only had a fleeting encounter with the robber. 2. When it is clear that the victim was traumatised when the offence was committed. 3. Where the eyewitnesses/victim fail of the earliest opportunity to name the person known to him who he claims committed the offence. 4. When the robber was not arrested of the scene of the robbery, but was arrested after the robbery. The above is not exhaustive. Where on the other hand the victim of the crime or a witness promptly identifies the suspect there would be no need for an identification parade.”

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IDENTIFICATION EVIDENCE – IMPORTANCE OF IDENTIFICATION EVIDENCE

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“In criminal trial, the requirement is that the person accused of committing an offence is presumed innocent until the guilt is proved by the prosecution beyond reasonable doubt. The first hurdle is dismantling the presumption of innocent offered by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in establishing beyond reasonable doubt the identity of the person accused of the offence charged before the court. The evidence to establish the fact that the person connected with the crime is no other person but the accused/appellant must be presented before the court. Such evidence must not leave any room for doubt. Where there is doubt created that the person accused may not probably be the offender, the case of the prosecution would be out rightly defeated on that note. The circumstances of the commission of the offence of robbery which was night time and where the appellant was not identified. There is no gain saying the fact that our law does not ordain an innocent person to be condemn for an offence he did not commit. That precaution is inherent in our law. That is what informs the fact that identification evidence is necessary to show or prove the fact that the person charged with an offence is the same as the person seen committing the offence charged”.

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IDENTIFICATION EVIDENCE – DUTY OF COURT IN RELYING ON IDENTIFICATION EVIDENCE

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“In the case of Ikemson v. State (1989) LPELR – 1473 (SC), the Supreme Court per Oputa, JSC, held as follows:
“Where the witness first acquaintance with the accused is during the commission of the offence, there, an identification parade may be held. But such a parade is not fool proof. It is not a guarantee against the usual errors of observation, errors of recognition or errors in reconstruction. The criminal law is full of cases of mistaken identity – See The Trial of Adolf Beck ed. E.R. Watson (Edinburgh 1924); the case of Walter Graham Rowland (1947) 32 C.R. App. R. 29. In Rowland’s case supra, there was an identification parade and Rowland was identified by three independent witnesses. Yet later on, Ware confessed that he and not Rowland was the actual murderer. The courts have therefore got to guard against cases of mistaken identity. Learned counsel by purposeful cross-examination should endeavour to expose the errors of observation, of recognition, of resemblance etc. Identification parade is not just the answer. The trial court should be satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the court was the person who actually committed the offence charged.”
Eko, JSC, applying this decision in the case of Kekong v. State (2017) LPELR-42343 (SC) expatiated as follows:
“There is nothing magical about identification parade. It also has human errors associated with it. And it is for this reason that Oputa, JSC, stated in Ikemson V. The State (supra) at page 478 that identification parade itself, is not fool proof nor is it a guarantee against the usual errors of observation, errors of recognition or errors of reconstruction. His Lordship in the judgment cited two cases: of The Trial of Adolf Beck ed E.R. Watson (Edinburgh 1924); and Walter Graham Rowland’s cases Rowland was identified by three independent witnesses as the murderer. However, subsequently Mr. Ware confessed that he, and not Rowland, was the actual murderer. Identification of offenders, whether through witness(es) or identification parade: because of its importance to criminal law justice or jurisdiction; trial courts are admonished to be satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the court was the person who actually committed the alleged offence. It is the duty of the defence counsel, through purposeful cross-examination, to cast reasonable doubt on the witness’s identification of the accused person by exposing errors of observation, of recognition, of resemblance etc. see Oputa, JSC, in Ikemson V. State (supra) at page 479”.
From these authorities and more, the goal of our law in criminal justice is that no one is punished for an offence he did not commit. In criminal law, the underlining doctrine known as Blackstone ratio (as expressed by the English jurist William Blackstone in his Seminal Work Commentaries on the Laws of England, published in the 1760s), which is:
“It is better that ten guilty persons escape than that one innocent suffer”.
The court must therefore, exhibit caution and prudence in ensuring that it is proved beyond reasonable doubt that the accused or appellant was the person who actually committed the offence charged.

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OFFENCE OF ARMED ROBBERY – INGREDIENTS A PROSECUTION MUST PROVE IN ESTABLISHING THE OFFENCE OF ARMED ROBBERY

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“In our law, the prosecution is required to prove the offence of armed robbery by establishing:
(a)that there was in fact a robbery;
(b)that the robbery was an armed robbery. In other words the robbers must be armed with dangerous weapons;
(c)that the accused was the armed robber or one of the armed robbers.
See the cases of Anyim v. State (2019) 8 NWLR (Pt. 1675) 513, Ayinde v. State (2019) 12 NWLR (Pt. 1687) 410, Ofuadorho v. State (2019) 1 NWLR (Pt. 1654) 538.

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ACADEMIC ISSUES – ATTITUDE OF COURT TO ACADEMIC ISSUES

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“The issue of whether the trial court should have struck out the case of the prosecution when the prosecution delayed in coming to prosecute this case or should have rescued himself has become academic. The court cannot engage its time in dealing with academic issues. In our clime, courts are not to engage in academic issues/exercise. Courts are to spend valuable judicial time on live issues. In the case of Daniel v. INEC & Ors. (2015) 9 NWLR (Pt. 1463)113, the Supreme Court per Rhodes-Vivour, JSC, held that academic issues lead nowhere, they only satisfy counsel that he has resolved trivial issue or no issue at all but with great expense to the litigant and exhausting the energy of judicial officers. See also – Abraham v. Akeredolu & Ors. (2018) LPELR – 44055 (SC), Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531, Amanchukwu v. FRN (2009) LPELR – 455 (SC).

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Robbery and Firearms (Special Provisions) Act Cap 398, LFN, 1990|

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