Sampson Ebenehi & Anor V. The State (2008)

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PETER-ODILI, J.C.A.

This is an appeal against the decision of Honourable Justice S. I. Husseni of the High Court of Justice Anyigba. Kogi State dated 4th June, 2004 convicting both 1st appellant and the 2nd appellant for terms of imprisonment of eight years in count 1 for the offence of conspiracy and one year imprisonment or N5,000.00 fine in lieu of imprisonment for the offence of mischief under section 327 of the Penal Code and a term of imprisonment of eight years and N10,000.00 fine each for the offence of Armed Robbery under section 298 of the Penal Code. The terms were ordered to run concurrently.

Statement of Facts:

On the 16th August, 2001 at about 2.00 am, Joel Ibrahim Okolo, Dupe Joel, David Abimaje and Alani Joel were sleeping in their various rooms and houses at Ojiapata village in Dekina Local Government Area of Kogi State when a group of persons who were dangerously armed with short guns and hammers broke into their houses and forced Joel Ibrahim Okolo and other occupants to give them the sum of N130,000.00. also broke the windscreen of a Mercedes Benz car, damaged the video player, television set, tape recorder and an ecolag box all belonging to Joel Ibrahim Okolo, Dupe Joel and other occupants.

The appellants were later arrested in connection with the incidents and taken to Dekina Police Station where they made confessional statements under caution to the effect that they and other accused persons currently at large were responsible for the robbery incident. The trial Judge convicted the appellants for the offences of criminal conspiracy, mischief and armed robbery. The appellants were dissatisfied with the decision of the trial Judge hence this appeal.

The two appellants through counsel filed a joint appellants’ brief on 16/2/07 which was deemed filed on 12/6/07 in which was formulated five issues which are:-

1. Whether from the evidence adduced by the prosecution, PW3 and PW4 had the opportunity to positively identify and actually identified the appellants thereby rendering it unnecessary to organise an identification parade so as to ensure the proper identification of the attackers of PW3 and PW4.
2. Whether from the evidence adduced the learned trial Judge could be said to have properly convicted and sentenced the appellant for the offence of conspiracy and armed robbery upon the evidence of PW6 having relied on exhibits P7- 18 not identified by PW3 and PW4 and despite discharging the 3rd accused person.
3. Whether the trial Judge properly admitted exhibit P5 and P6 and could rely on same to convict the appellants.
4. Whether the appellants’ defence was properly considered by the trial court
5. Whether having regard to the weight of evidence adduced by the prosecution the decision of the trial court is reasonably supported and warranted.

The respondent through their counsel filed respondent’s brief of argument on 16/7/07 and framed two issues which are as follows:-

1. Whether the prosecution proved its case beyond reasonable doubt.
2. Whether the trial court considered and rightly rejected the defence of alibi put up by the appellants.

I have opted to use the issues as couched by the respondent since they are apt and concise for the purpose of the consideration of the facts and circumstances in this appeal.

Issue 1

Whether the prosecution proved it’s case beyond reasonable doubt.

Learned counsel for the appellant contended that it is trite law that in criminal proceedings, the prosecution must prove its case against an accused person beyond reasonable doubt in accordance with section 138 (1) of the Evidence Act and such burden of proof does not shift from the prosecution to the defence. That where the identity of the accused person in relation to the commission of the alleged crime is in doubt the prosecution is under duty to take appropriate steps by identification parade to ensure that the accused person is the person connected with the alleged crime. He referred to Obakpolor v. The State (1991) 1 SCNJ 91 at 108; (1991) 1 NWLR (Pt. 155) 113.

That where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence. He cited Adeyemi v. The State (1991) 2 SCNJ 60 at 71; (1991) 1 NWLR (Pt. 170) 679; Ogoala v. The State (1991) 3 SCNJ 61 at 70; (1991) 2 NWLR (pt.175) 509.

Learned counsel for appellants further stated that the question of identification is an issue of fact for the trial court to make a finding on. State v. Ogbubanjo (2001) 12 SCNJ 4; (2001) 2 NWLR (Pt.690) 526; Dosunmu v. The State (1986) 5 NWLR (Pt. 43) 658 at 664; Ajibade v. The State (1987) 1 NWLR (Pt. 48) 205 at 210; Ojukwu v. The State (2002) FWLR (Pt. 98) 943 at 951; (2002) 4 NWLR (Pt.756) 80.

Mr. Ameh for the appellants contended that it is important to emphasise that testimony as to the identity of an accused should be considered with caution and so the identity of an accused should be subjected to the closest scrutiny when the opportunity for clear and positive identification is good. He cited Ukpabi v. The State (2004) 18 NSCQR 774; (2004) 11 NWLR (Pt. 884) 439; Bashaya v. The State (1998) 58 LRCN 3596 at 3597; (1998) 5 NWLR (Pt. 550) 351. He referred to the evidence of PW3 and PW4 on their inability to identify the accused persons and they were not caught at the scene of crime and so the learned trial Judge was in error when he said the 2nd accused especially had been sufficiently linked with the robbery Learned counsel further stated that it is trite law that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue and if it is relevant it is admissible and the court is not concerned with how the evidence was obtained and in this there is no difference in principle between a civil and criminal case. He referred to Kuruma v. R (1955) AC 197 at 203; Torti v. Ukpabi (1984) 1 SCNLR 214; Agbahomovo v. Eduyegbe (1999) 2 SCNJ 94 at 102 – 104; (1999) 3 NWLR (Pt. 594) 170; Elegushi v. Oseni (2005) All FWLR (Pt. 282) 1837 at 1857; (2005) 14 NWLR (PI. 945) 348; Sadau v. The State (1968) NMLR 208 at 212; Nsofor v. The State (2005) FWLR (Pt. 153) 271 at 286 – 287; (2004) 18 NWLR (Pt. 905) 292.