CORAM

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Kudirat Motonmori Olatokunbo Kekere-Ekun JSC

Mohammed Lawal Garba JSC

Helen Moronkeji Ogunwumiju JSC

Adamu Jauro JSC

Tijjani Abubakar JSC

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PARTIES

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THE STATE

APPELLANTS 

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USMAN SHEHU

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, JUDGMEN

 

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SUMMARY OF FACTS

The prosecution claimed that the Accused (2nd accused at trial) was among a gang of armed robbers who robbed a 14-seater passenger bus along Jebba/Bode Sa’adu Road on 10th day of December, 2007. That on the aforesaid date, one Bode Samson was robbed along with other passengers in the bus, of his SAGEM MY X telephone handset after the bus was stopped at Aderan Junction. The 2nd accused person with others ordered the passengers to disembark from the bus and further directed that all of them should lie down flat on the ground while the robbery operation lasted.

The robbery occurred between 5.00 pm and 5.30 pm. About a month thereafter and specifically on the 7th day of January, 2008, the 1st accused took the stolen handset to one Oloye Ajayi (PW5) to assist him to buy sim card and recharge the handset, upon checking the handset, Mr. Ajayi discovered that the handset already had its sim card. PW5 removed the sim card and put it in his own handset and dialed some numbers. One of the numbers dialed Informed PW5 that he knows the owner of the said handset and that the owner was robbed between Jebba/Bode Sa’adu by armed robbers who collected handset and money. While the PW5 asked the 1st accused to sit down, he sent one Suraju to call the police. The police came and arrested the 1st accused in PWs’s shop. The 1st accused informed the police that he purchased the handset from one Hassan. The police consequently got the owner of the handset PW3 and the driver of the passenger bus PW4 to attend the Jebba/police station.

Before PW3 and PW4 got to the police station, the police officers who were directed to arrest the said Hassan led the 1st accused in search of Hassan and other accused persons. Immediately Hassan saw the police, he opened fire and attempted to run away. He was shot together with one other accused person, and both died instantly. The 2nd accused was arrested and taken to the police station with the corpses of the two accused persons.

Following the arrest of the Appellant, he denied knowledge of the offence for which he was arrested, he pleaded Alibi. In his statement to the police, and his testimony at the trial, he said he lives in Lagos at a place called Alabarago. He is a motorcyclist in Lagos and he only came to Kosa Village where he was arrested on a visit to his father some five days before his arrest.

He claimed that he was not arrested in the company of the other accused but at a restaurant.

The respondent was charged alongside another person, Bunu Jaja, before the High Court of Justice Kwara State presided over by I. A Yusuf, J. on a three (3) Count charge for the offences of conspiracy to commit armed robbery and armed robbery contrary to Section 1(2) of the Armed Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990. Upon arraignment, the Respondent pleaded not guilty to both counts of charge and trial commenced thereafter.

The Trial Court delivered judgment and found the Respondent guilty of the 2nd count of armed robbery, Respondent was therefore convicted and sentenced to death by hanging.

The Respondent became nettled by the decision of the trial Court and therefore filed a notice of appeal at the lower Court containing four grounds of appeal. The Lower Court in its judgment allowed the appeal and set aside the conviction and sentence. The decision of the trial Court was therefore in effect set aside by the lower Court.

The Appellant, miffed by the decision of the Lower Court, appealed to this Court via notice of appeal dated the 22nd day of March, 2018 containing two grounds of appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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 Whether learned Court of appeal Justices were wrong in setting aside the conviction and sentence of the respondent for the offence of conspiracy and armed robbery contrary to Section 97 of the Penal Code and Section 1(2) of the Armed Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 for failure of the prosecution to establish the identity of the respondent as one of those who participated in the robbery incident in question?

 

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RATIONES DECIDENDI

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IDENTIFICATION PARADE – MEANING OF IDENTIFICATION PARADE AND WHEN IT BECOMES NECESSARY TO ESTABLISH THE GUILT OF THE ACCUSED

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I entirely agree with the findings of the lower Court that none of the witnesses had the opportunity to identify the Respondent at the time the incident occurred. I also agree with the learned counsel for the Respondent that since the evidence of PW3 and PW4 is not sufficient to fix the Respondent as one of those who participated in the robbery, the desirable thing was to conduct identification parade, failure of which was fatal to the case of the prosecution.

This Court in a recent decision in UDO V. STATE (2023) LPELR-59741 (S.C) (Pg. 12-13 paras. D) held as follows:

“With regard to the offence of armed robbery, the appellant is not contesting the concurrent findings of the two lower Courts that in the early hours of 17th February, 2012, there was an armed robbery at 158 MCC Road, Akai Effa, Calabar and that in the course of the robbery, certain valuables belonging to PW1 along with several handsets were stolen. The sticking point is the finding by the trial Court and affirmation by the lower Court that the appellant was one of the robbers. There is no gainsaying that the third ingredient of the offence is often the most crucial in securing a conviction for the offence of armed robbery. Being an offence which carries the death penalty, it is imperative that the Court must be fully satisfied that the accused person was the one who committed the offence or that he was among those who did. If there is any doubt in the mind of the Court as to his culpability, it means the prosecution has failed to discharge the onus of establishing his guilt beyond reasonable doubt and he must be given the benefit of such doubt. As the saying goes, it is better for 10 guilty men to walk free than for an innocent man to be convicted of an offence he did not commit. See State Vs Sani (2018) LPELR -43598 (SC) @ 17 A – D; Ogoala vs The State (1991) 12 NWLR (Pt. 175) 509; Nwaturuocha vs The State (2011) 6 NWLR (Pt. 1242) 170 @ 193 D – E; Atto Maba vs The State (2020) LPELR – 52017 (SC) @ 20-21 F- B.” Per KEKERE-EKUN, J.S.C in UDO v. STATE (2023) LPELR-59741(SC) (Pp. 12-13 paras. D)”

See also the decision of this Court in AKEEM AGBOOLA v. THE STATE (2013) LPELR-20652(SC) where it was held also on the need to conduct identification parade as follows:

“Identification parade, otherwise known as lineup, is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See Black’s Law Dictionary, Ninth Edition page 1014.

Ordinarily, identification parade is said not to be a sine qua non for identification in all cases where there have been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence. 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).” Per ARIWOOLA, J.S.C in Agboola v. State (2013) LPELR-20652 (SC) (Pp. 27-28 paras. F)”. – Per Tijjani Abubakar, JSC

 

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ARMED ROBBERY – THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

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For the Appellant to successfully establish the substantive offence of armed robbery, it must lead credible evidence beyond reasonable doubt that (i.) there was a robbery or series of robberies; (ii.) the robbery or each of the robberies was an armed robbery; and (iii.) the accused person was one of those who committed the robbery. See IGABELE V. STATE (supra). – Per Tijjani Abubakar, JSC

 

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ALIBI – THE EFFECT OF FAILURE OF THE POLICE TO PROPERLY INVESTIGATE ALIBI

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On the effect of failure of the police to properly investigate Alibi, this Court in STATE V. ABDULLAHI ALIYU (2022) LPELR- 59477(SC) held as follows. And I quote:

“The general position of the law is that where an alibi is not investigated, it goes to the root of the case of the prosecution because doubt is thrown on the identity of the perpetrator of the crime who may not be the Defendant in the dock. See Aliyu v. State (2013) LPELR-20748(SC) Pg. 14 -15 para. E, (2013) 12 NWLR Pt. 1368 P. 403, Queen v. Turner (1957) WRNLR 34, Bello v. Police (1956) SCNLR 113, Yanor v. The State (1965) NMLR 337, Gachi v. The State (1973) 1 NMLR 331 and Odu & Anor v. The State (2001) 5 SCNJ 115 at 120; (2001) 10 NWLR (Pt.772) 66S.” Per OGUNWUMIJU, J.S.C in State v. Aliyu (Pp. 12-13 paras. E). – Per Tijjani Abubakar, JSC

 

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PROOF – MEANING OF PROOF BEYOND REASONABLE DOUBT

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The duty of the prosecution in a criminal charge is to establish the guilt of the accused beyond reasonable doubt. See Section 135 of the Evidence Act, 2011.

This Court has stated times without number that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. It means establishing the guilt of the accused with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Nwaturuocha Vs The State (2011) LPELR -8119 (SC) @ 25 C – D; (2011) 6 NWLR (Pt.1242) 170; Smart Vs The State (2016) LPELR – 40827 (SC) @ 27 A – F; Akinlolu Vs The State (2015) LPELR – 25986 (SC) @ 38 B – C.

Conversely, where the Court entertains any doubt, it must be resolved in the accused person’s favour. See FRN Vs Mohammed Abubakar (2019) LPELR – 46533 (SC) @ 22 C – D; State Vs Ajie (2000) 11 NWLR (Pt.678) 435; Aiguoreghian & Anor. Vs The State (2004) 1 SC (Pt.1) 65. – Per K. M. O. Kekere-Ekun, JSC

 

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IDENTIFICATION PARADE – CIRCUMSTANCES THAT DETERMINE WHETHER AN IDENTIFICATION PARADE IS NECESSARY

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While an identification parade is not a sine qua non in every case, the facts and circumstances of each case will determine whether it ought to be conducted or not. It will not be necessary where:

(a) There is clear and uncontradicted eye witness account and positive identification of the perpetrator;

(b) The witness knew the accused previously;

(c) There is convincing, cogent and compelling evidence linking the accused to the offences;

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

An identification parade is necessary where:

(a) The victim did not know the accused previously 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;

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

See Okiemute Vs The State (2016) LPELR – 40639 (SC) @ 11 B – G; Maba Vs The State (2020) LPELR – 52017 (SC) @ 21-22 D – E; Udo Vs The State(2023) LPELR – 59741 (SC) @ 15-16 A – B. – Per K. M. O. Kekere-Ekun, JSC

 

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COURTS – CONDUCT OF COURTS TO INVALID IDENTIFICATION PARADES

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See Adisa Vs The State (1991) 1 NWLR (Pt.168) 490 @ 507 B – C, cited by the Court below, where His Lordship Niki Tobi, JSC in reversing the judgment of the Court of Appeal held thus:

“There is yet another aspect and it is this. The law will certainly frown upon a situation where a suspect is paraded before or strolls into the hands of the already suspecting mind and brains of the identifying witness who makes quick use of the opportunity and grab(s) the victim saying “This is the person who robbed me”… That is not right. That should not be the situation”. – Per K. M. O. Kekere-Ekun, JSC

 

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PROSECUTION – WHERE THE PROSECUTION FAILS TO PROVE ESSENTIAL INGREDIENTS OF AN OFFENCE

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The law is elementary in criminal jurisprudence that any reasonable doubt left by the prosecution in the attempt to prove all the essential ingredients of an offence, should be resolved in favour of an accused person. See Okonji v. State (1987) 1 NWLR (pt. 52) 659 (SC), Shurumo v. State (2010) 19 NWLR (pt. 1226) 73 (SC), Alo v. State (2015) 9 NWLR (pt. 1464) 238 (SC), Esseyin v. State (2018) 14 NWLR (pt. 1640) 491 (SC), State v. Ahmed (2020) 14 NWLR (pt. 1743) 1 (SC). – Per M. L. Garba, JSC

 

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IDENTIFICATION PARADE – MEANING AND ESSENCE OF IDENTIFICATION PARADE

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The essence of an identification parade is to make sure that a witness can positively identify the defendant. It is to make sure that no mistake is made in the identification of a defendant.

In AGBOOLA V. STATE (2013) LPELR-20652(SC) (PP. 27-28 PARAS. F) this Court held thus:

“Identification parade, otherwise known as lineup is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See Black’s Law Dictionary, Ninth Edition page 1014. – Per H. M. Ogunwumiju, JSC

 

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IDENTIFICATION PARADE – WHEN IDENTIFICATION PARADE BECOMES NECESSARY

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Ordinarily, identification parade is said not to be a sine qua non for identification in all cases where there have been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence. 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).” – Per H. M. Ogunwumiju, JSC

 

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ARMED ROBBERY – DUTY OF THE PROSECUTION IN A CASE OF ARMED ROBBERY

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For the prosecution to succeed against an accused person charged with the offence of armed robbery, the following must be proved:

a. That a robbery in fact took place.

b. That the robbery was an armed robbery.

c. That the accused person committed the armed robbery or was one of those who participated therein.

See AKINKUNMI V. STATE (2022) 9 NWLR (PT. 1836) 553; MABA V. STATE (2021) 1 NWLR (PT. 1757) 353; BABATUNDE V. STATE (2018) 17 NWLR (PT. 1649) 549; PEDRO V. STATE (2018) 17 NWLR (PT. 1649) 463; NWOKOCHA V. A.G., IMO STATE (2016) 8 NWLR (PT. 1513) 141; BUSARI V. STATE (2015) 5 NWLR (PT. 1452) 343. – Per Adamu Jauro, JSC

 

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QIDENTIFICATION PARADE – WHERE AN IDENTIFICATION PARADE BECOMES NECESSARY

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The evidence led by the Appellant’s witnesses showed that the victims of the armed robbery were asked to face down and were in fact facing down while the incident took place. There was no evidence whatsoever as to how the PW3 and PW4 who were victims, were able to identify the Respondent. In essence, the identity of the Respondent as one of the armed robbers was in doubt. This is one of such instances where identification parade was necessary in order to avoid a situation of mistaken identity and same would have been of immense help in ascertaining whether the Respondent participated in the armed robbery. See OPEKE V. STATE (2021) 1 NWLR (PT. 1758) 570; UGWU V. STATE (2020) 15 NWLR (PT. 1746) 1; SALAU V. STATE (2019) 16 NWLR (PT. 1699) 399; ADESINA V. STATE (2012) 14 NWLR (PT. 1321) 429; OGOALA V. STATE (1991) 2 NWLR (PT. 175) 509. – Per Adamu Jauro, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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1. Armed Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990

2. Penal Code

3. Evidence Act, 2011

 

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