CORAM

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PARTIES

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OGHENEMARO KESENA

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THE STATE

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AREA(S) OF LAW

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SUMMARY OF FACTS

On the night of 24-08-2004, three armed men held up and robbed PW1 at gun-point in his Chemist shop at about 7.30pm. After robbing him of a Samsung R220 handset and cash of more than N18,000.00, the three assailants took to their heels with the PW1 in hot pursuit, raising an alarm and was assisted in apprehending the Appellant by patrons at a nearby eatery at a place called Ayaba. The PW1’s handset was found in the assailant’s pocket which he retrieved and then proceeded to lodge a report at the Police Post at North Bank Makurdi then went back home to nurse injuries he sustained during the robbery. Two days later, he went to the Police Area Command Makurdi to lodge another report of the robbery. Thereafter, he was invited to the Police State CID to identify the Appellant who had been arrested while receiving medical treatment at the Federal Medical Centre Makurdi. Thereafter the Appellant in the Benue State High Court sitting in Makurdi was arraigned on a two-count Charge for the offences of criminal conspiracy and armed robbery punishable under Sections 6 (b) & 1(2) (a) of the Robbery and Firearms (Special Provisions Act) Cap. R11, Laws of the Federation of Nigeria, 2004 to which he pleaded not guilty. During the trial, the Respondent adduced evidence in proof of the charge through two witnesses and tendered three exhibits. On his part, the Appellant tendered one exhibit through the PW2, testified in his defence and called one witness. The defence of the Appellant was that his arrest was based on a case of mistaken identity as he insisted that he was not the perpetrator of the offences charged as he was nowhere near the scene of the robbery on the date in question. He explained that he had been the victim of a cult attack as a result of which he sustained machete cuts all over his body, was hospitalized and underwent surgery. At the end of the trial, the Appellant was convicted and sentenced to death. Aggrieved by the decision, the Appellant filed an Appeal vide his Notice of Appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the Appellant was properly identified as the person who committed the robbery for which he was charged, convicted and sentenced? Whether having regards to the circumstance of this case, it was mandatory for the prosecution to have held an identification parade and if so, the legal consequence of its failure to do so? Whether it was proper for the Trial Court to have used Exhibit 1, the purported confessional statement of the Appellant, to “settle” the question of whether Appellant was properly identified, and if not, whether the trial Court’s use of Exhibit 1 in the said manner, occasioned a miscarriage of justice? Whether the trial Court adequately considered the several issues raised by the Appellant in his defence, and if not, whether its failure to do so violated the Appellants right to fair hearing as guaranteed by the Constitution? Whether the trial Court was right in its decision to admit Exhibit 1 on the ground that it was voluntarily made? Whether it was proper for the trial Court to have used Exhibit 1 in determining the case against the Appellant when it had not properly tackled the several issues challenging the authenticity thereof? Whether the prosecution discharged the legal burden on it to prove the charge against the Appellant beyond reasonable doubt as required by law?

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RATIONES DECIDENDI

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IDENTIFICATION PARADE – MEANING AND PURPOSE OF AN IDENTIFICATION PARADE

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“Identification’ means a whole series of facts and circumstances by which a witness associates a person with the commission of the offence charged. The need for identification arises, for instance, where the offender was seen committing the offence and a witness (who could also be the victim), is given an opportunity to identify the suspect via an identification parade, a video identification, or any similar procedure. The purpose of the identification procedure is dual, to wit:
a) To test the ability of the witness to identify the person he saw on a previous occasion; and
b) To provide against mistaken identity.
It is a prerequisite of identification that a person who claims to have witnessed the commission of an offence should be able to give a description of the culprit to the Police. Following such description, the Police are then equipped to go in search of the culprit. When any suspect is apprehended and he denies committing the offence, contending (as in this case) that it is a case of mistaken identity, one of the ways to establish the identity of the culprit is by holding an identification parade. Thus, generally, an identification parade is necessary only when the identity of a suspect is in doubt. See Alufohai V State (2015) ALL FWLR (Pt. 765) 198; &Ikemson V State (1989) 3 NWLR (Pt.110) 455. Therefore, Courts have reiterated that identification evidence is evidence tending to show that the person charged with an offence is the same person who was seen committing the offence. It may consist of or include evidence in the form of fingerprints, handwriting, voice, identification parade, photograph, identikit or the recollection of the features of the culprit by the witness who saw him in the act of commission of the crime, or even a combination of two or more of these. See: Archibong V State (2006) ALL FWLR (Pt. 323) 1747 at 1762; & Alufohai V State (supra). –

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IDENTIFICATION PARADE – CIRCUMSTANCES WHEN AN IDENTIFICATION PARADE IS UNNECCESSARY

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“As aforesaid, it is only warranted where the circumstances so dictate. It is recognized that there are some instances where it is absolutely unnecessary. Instances of such are as follows: where the accused is shown to be known to the witness before the incident; or where there is no reasonable possibility that the witness would be able to make an identification; or where the suspect is apprehended in circumstances where the suspect is caught at the scene of crime or at a place so connected with the scene of crime; etc. See Abudu V State (1985) 1 NSCC 78; Ogoala V State (1991) 2 NWLR (Pt.175) 509 at 523 per NnamaekaAgu, JSC; Otti V State (1993) 5 SCNJ 143 at 147-148 per Karibi-Whyte, JSC. –

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IDENTIFICATION EVIDENCE – DUTY OF COURT IN CIRCUMSTANCES WHEN THE CASE AGAINST AN ACCUSED PERSON RESTS SUBSTANTIALLY ON THE CORRECTNESS OF THE IDENTIFICATION OF THE ACCUSED

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“Where mostly the evidence against an accused is hinged on identification evidence, it is not uncommon for the accused to allege that it is a case of mistaken identity. Consequently Courts have laid it down as a rule that whenever the case against an accused person rests wholly or substantially on the correctness of the identification of the accused, which the defence alleges to be mistaken, the Court must closely examine and receive the evidence with caution before convicting on the said evidence. See: Ndidi V State (2007) ALL FWLR (Pt.381) 1617 at 1640, paras E-H, and 1641, paras A-D & G Per Aderemi, JSC. –

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IDENTIFICATION PARADE – CIRCUMSTANCES WHEN AN IDENTIFICATION PARADE IS NECCESSARY

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The Supreme Court in Ikemson V State (supra) held that identification would be necessary in the following circumstances:
i) Where the victim/witness did not know the accused before and his first acquaintance with him was during the commission of the offence;
ii) Where the victim was confronted by the accused for a short time;
iii) Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the suspect.
Thus, the factors to be considered when faced with the question as to whether to conduct an identification parade in any given case are as follows:
a) The culprit was not caught at the scene of crime;
b) There is an eyewitness to the incident;
c) The witness volunteered a statement to the Police wherein he gave the Police a description of the culprit;
d) He indicates to the Police that if he sees the culprit again, he could recognize him;
e) The culprit is subsequently apprehended by the Police or any other person having the power of arrest in the circumstance.
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IDENTIFICATION PARADE – CIRCUMSTANCES WHEN AN IDENTIFICATION PARADE IS NOT NECCESSARY

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“On the other hand, an identification procedure would not be necessary:
i) Where, by his confession, an accused person identifies himself as the offender;
ii) Where the offender is apprehended at the scene of crime or pursued immediately thereafter and apprehended (Otti V State(supra); & Ogoala V State (supra) );
iii) Where the offender is well known to the witness before the incident (Aichhenabor V State (2015) ALL FWLR (Pt.763) 1986; Williams V State (1992) 10 SCNJ 74; &Abudu V State (supra) );
iv) Where the circumstances of the case have sufficiently and irresistibly married the offender to the crime and the crime scene (Ugwumba V State (1993) 6 SCNJ (Pt.II) 217; Otti V State (supra); &Ogoala V State (supra) Where a clear case of alibi has been put forward by the suspect (Abudu V State (supra); and
vi) Where there is clear and incontrovertible eyewitness account and identification of the person who committed the offence (Ibrahim V State (1991) 5 SCNJ 129).
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IDENTIFICATION EVIDENCE – DUTY OF COURT WHEN CONVICTING AN ACCUSED PERSON BASED ON THE EVIDENCE OF IDENTITY WITHOUT CORROBORATION

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“The learned author, J.A. Agaba, in his book, “Practical Approach to Criminal Litigation in Nigeria” (Third Edition) at page 128, from an indepth consideration of the position of the law as articulated in decided authorities, states that where a witness to the commission of an offence makes a report of such to the Police, a record shall be kept of the suspect’s description as first given by the witness. The record must be kept in a form which enables details of that description to be accurately produced from it. The necessity for such steps is to reduce the risk of mistaken identity because identification evidence is basically evidence of opinion. It is therefore not infallible. Thus, a Court taking action on such evidence must be cognizant of the fact that such evidence is fraught with human errors. In appreciation of the presence of such danger, the Supreme Court in Okosi V State (1989) 1 NWLR (Pt. 100) 642 at 665 per Oputa, JSC held thus:
“Identification evidence has been a thorn in the flesh of a many judicial system as there is always that lurking danger of mistaken identity. Evidence of identity may be quite honest but still mistaken. In such a process, there may exist the possibility of error either of observation or of reconstruction or both.”
In indirectly calling for corroboration in such cases, the erudite jurist admonished:
“As mathematical and absolute certainty is seldom to be attained in human affairs, reason and public utility both require that Judges (in fact, all mankind) in forming their opinion of the truth of facts should be governed and regulated by the superior number of probabilities on one side or the other.”
Consequently, a Court trying a case where the only evidence against an accused is the evidence of identity, should be cautious and should warn itself of the danger of convicting on the uncorroborated evidence of such identification because of the rather serious consequences that such would occasion. –

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CONTRADICTION IN EVIDENCE –WHETHER IT IS LOGICAL TO ACCEPT AND BELIEVE CONTRADICTORY EVIDENCE OF WITNESSES

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“The law is settled on the issue of contradictions and inconsistencies in the evidence of a party before the Court. Where two or more witnesses testify and their evidence is irreconcilable, it would be illogical to accept and believe the evidence of such witnesses. A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated. Two pieces of evidence contradict one another when they are by themselves inconsistent. See the decisions of the Supreme Court in Agbo v State (2006) ALL FWLR (Pt.309) at 398, Paras G-H; Gabriel V State (1989) 5 NWLR (Pt.122) 457 at 467; Ikemson V State (supra); & Sunday V State (supra). –

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IDENTIFICATION PARADE – EFFECT OF FAILURE OF POLICE TO UNDERTAKE A PROPER IDENTIFICATION PARADE

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“I agree that the failure of the Police to undertake an identification procedure, such as an identification parade, raised some doubt as to whether the Appellant was indeed one of the assailants who attacked and robbed the PW1 on the night of the incident. Therefore, the learned trial Judge erred in relying on the scanty evidence of identification proffered by the prosecution to convict the Appellant. I reiterate my holding in Omopupa v State (2008) ALL FWLR (Pt.445) 1617, paras A-B, where I stated as follows:
“When therefore a Court is faced with making a finding on the identification evidence before it, it is obliged to ensure and to be well satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was the same person to the exclusion of any other who actually committed the offence with which he is charged.”
Also in Ghohar v State (2013) ALL FWLR (Pt.709) 1061, it was held thus:
“Where identification evidence is poor, the trial Court should return a verdict of not guilty … the best identification is the prompt one by the victim or other persons who witnessed the commission of the offence… But where there is more of suspicion rather than some concrete evidence against an accused, an identification parade becomes very necessary…”
See also Bozin v State (1995) 2 NWLR (Pt.8) 465; Abudu v State (1985) NWLR (pt.1) 55; &Uche-Willams V State (1992) 8 NWLR (Pt.261) 515. Again in dealing with a similar scenario in Orok V State (supra) at 1750, paras E-F, this Court stated as follows:
“given the weakness 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 was not arrested at the scene of the crime.
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DEFENCES – DUTY OF COURT TO CONSIDER THE DEFENCE OF AN ACCUSED PERSON EVEN WHERE SAME SEEMS WORTHLESS

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“It is indeed the law that no matter how worthless the defence set up by an accused person at his trial may be, the trial Court still has a duty to consider it dispassionately before dismissing it. See Ogunye v State (1999) LPELR-2356(SC); &Onuoha V State (1988) 3 NWLR (Pt. 83) 460. –

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CONFESSIONAL STATEMENT – BASIS UPON WHICH A COURT CAN CONVICT ON THE RETRACTED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

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“It is the law that although a Court can convict on only the retracted confessional statement of an accused person, it is desirable to find some independent evidence. In other words, it is desirable to have outside the confession some evidence, be it slight, of circumstances, which make it probable that the confession was true. Where the corroborative evidence does not show beyond reasonable doubt that the accused is guilty, he should be given the benefit of the doubt. This is the state of the law as expounded by the Apex Court in Ogudo V State (2011) LPELR-860 (SC) 1 at 18-21, per Rhodes-Vivour, JSC:
“A Court can convict on the retracted confessional statement of an accused person, but before this can be properly done, the trial Judge should evaluate the confession and testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking himself the following questions:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Did the accused person have the opportunity of committing the offence charged?
(e) Is the confession possible?
(f) Is the confession consistent with other facts which have been ascertained and proved?”
Thus, having retracted the confession, some evidence outside the said confession should have been sought before the trial Court proceeded to convict the Appellant of the offences charged. –

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SUSPICION – WHETHER SUSPICION CAN SUSTAIN A CONVICTION

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“The law is trite that suspicion no matter how strong, cannot sustain a conviction. See Shehu V State (2010) ALL FWLR 1841 at 1861, paras B-C. In the celebrated case of Abacha V The State (2002) LPELR-16 (SC) at 35, the Supreme Court admonished strongly in the words of Belgore, JSC (later CJN) as follows:
“See Ikomi V The State (supra). As D.O. Coker, JSC said in Ikomi’s case: – It is the suspicion which leads to investigation and discovery of evidence against the suspect. Suspicion alone is not enough to justify preferring a charge against a person, there must be evidence linking the suspect with the offence. There ought to be some evidence however remote, which calls for some explanation from the suspect. At the stage of deciding whether to prefer a charge the prosecutor is not obliged to decide, as a trial Judge should, whether the available evidence is cogent enough to justify a conviction. But there must be evidence to meet all the essential elements of that offence.
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STANDARD OF PROOF – STANDARD OF PROOF REQUIRED IN CRIMINAL PROSECUTION

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“On the standard of proof imposed on the prosecution by law, the Supreme Court per Musdapher JSC (later CJN), in Attah V State (2010) ALL FWLR 1224 at 1245-1246 stated thus:
“Now it is trite in all criminal prosecution that it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Thus, where there are substantial contradictions on material points in the evidence of the prosecution witnesses or witness, or between the evidence of a witness, the accused will be discharged and acquitted on the premise that it cannot be said that there was proof beyond reasonable doubt … Where there are conflicts, discrepancies or contradictions that are material in nature, that go to the root of the case so as to raise doubts in the mind of the Court, the Court should not convict.”
Yet again, in Ndidi V State (supra) at 1617 the Apex Court admonished thus:
“Although the offences with which the Appellant was charged was a serious one i.e. robbery, which has now become 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 commands confidence. A Judgment which sends a man to the gallows and awaits the hangman to execute him at any 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.”
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IDENTIFICATION OF AN ACCUSED PERSON – WHAT DOES THE IDENTIFICATION OF AN ACCUSED PERSON ENTAIL?

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“Correct identification of an accused person is very crucial in order to ensure that there is no miscarriage of justice. Proper identification is a question of fact to be considered by the trial Court on the evidence adduced for that purpose; Ukpabi v. State (2004) 11 NWLR (Pt.884) 439. Identification of an accused person means a whole series of facts and circumstances for which a witness or witnesses can associate an accused person. These may include evidence in the form of finger prints, handwriting, voice, identification parade, photographs or the recollection of the features of the accused person by a witness who saw him in the commission of a crime or a combination of two or more of these; Archibong v. State (2006) 14 NWLR (Pt.1000) 349; Anyanwu v. State (1986) 5 NWLR (Pt.43) 612. –

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IDENTIFICATION PARADE – WHETHER AN IDENTIFICATION PARADE IS A SINE QUA NON TO CONVICTION

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“An identification parade is however not a sine qua non to conviction; Ukpabi v. State (supra); Igbi v. State (2000) 2 S.C. 67. The Supreme Court, per Olatawura, JSC (of blessed memory) in Adeyemi v. State (1991) 2 SCNJ 60, (1991) LPELR-165(SC), put it this way:
“It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross examined nor shaken under cross examination, does nothing stop a trial Judge from accepting his evidence.”
There must be real doubt as to who was seen in connection with the offence to require an identification parade; Balogun v. AG Ogun State (2002) 6 NWLR (Pt.763) 512. –

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IDENTIFICATION PARADE – INSTANCE WHEN IDENTIFICATION PARADE WILL BE UNNECESSARY

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“Therefore, where an accused person is promptly identified by an eye witness or by the victim without any prodding, or where the accused person was well known to the eye witness or the victim before the incident, an identification parade will not be necessary; Adamu v. State (1991) 4 NWLR (Pt.187) 530; Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43; Eyisi v. State 12 S.C. (Pt.1) 24; Ochiba v. State (2011) LPELR-8245 (SC)”. –

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IDENTIFICATION PARADE – CIRCUMSTANCES WHEN IDENTIFICATION PARADE IS ESSENTIAL

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“In her concurring opinion in Nwaturuocha v. State (2011) LPELR-8119 (SC), Adekeye, JSC listed circumstances when an identification parade is essential as follows:
1. Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
2. Where the victim of witness was confronted by the offender for a very short time.
3. Where the victim due to time and circumstance might not have had full opportunity of observing the features of the accused.
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STANDARD OF PROOF – WHETHER ‘PROOF BEYOND REASONABLE DOUBT’ MEANS ‘PROOF BEYOND A SHADOW OF DOUBT’

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“It is well settled that in a criminal trial, the prosecution has a duty to prove the guilt of the accused person for the offence for which he is charged beyond reasonable doubt. The expression ‘proof beyond reasonable doubt’ does not however mean proof beyond a shadow of doubt. It simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness; Afolalu v State (2010) 6-7 MJSC 187. But when there are doubts created in the mind of the Court as to the culpability of the accused person, these doubts should be resolved in favour of the accused person; Ibeh vs. State [1997] 1 NWLR (Pt. 484) 632; Effia vs. State [1999] 8 NWLR (Pt.613) 1”. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Evidence Act, 2011

Robbery and Firearms (Special Provisions Act) Cap. R11, Laws of the Federation of Nigeria, 2004

 

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