Adegbeyiro Seun V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appellant and two others were arrested on 15 September, 2012 in an uncompleted building close to the house of Hon Justice Agbelusi Micheal Ayowole of the High Court of Justice, Ekiti State who was the victim of armed robbery which took place around 3 am on the same date. After the robbery, he reported to the Police who made arrest in the uncompleted building. In the morning of the incident the Police called him to the Police Station and on reaching there he pointed at the appellant and two others seated on the bench in the Police Station, New lyin Road, Ado Ekiti as those who robbed him. The arrested persons were later transferred to the Special Anti-Robbery Squad (SARS) of the Criminal Investigation Department (SCID) for further investigation. During the course of investigation an identification parade was conducted and the victim of the robbery who testified as PW1 identified the appellant and the other two accused whom he had earlier identified at the Police Station, New lyin Road Ado Ekiti. He also made a Statement concerning the robbery incident.

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At the conclusion of Investigation by the Police, a two count charge of armed robbery was proffered against the appellant and three others, one of whom was the driver of PW1 who did not report for work on the day of the robbery. The three accused who were allegedly involved in the robbery were found guilty of the offence, convicted and sentenced to death by hanging. They lost the appeal to the Court of Appeal and decided to further appeal to the Supreme Court.

The Notice of Appeal containing 5 grounds of appeal was filed on 25/1/2016 from which learned counsel for the appellant distilled two issues for determination as follows:-

1. Whether the learned Justices of the Court of Appeal were correct when they held that the identity of the appellant as one of the robbers that robbed PW1 was established by the prosecution (distilled from grounds 1 and 2 of the Notice of Appeal)
2. Whether the Court of Appeal was correct when it held that the prosecution indeed proved its case of armed robbery against the appellant beyond reasonable doubt (distilled from grounds 3 and 4 of the Notice of Appeal).

The respondent also formulated two issues for determination from its

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brief which was deemed filed on 11/4/2018. The issues are: –

1. Whether the identity of the appellant as a member of the armed robbery gang was established by the prosecution in the instant appeal.
2. Whether on the totality of the evidence before the Court, the prosecution has proved the case of armed robbery against the appellant beyond reasonable doubt.

The formulation of issues by the respondent encapsulates the complaints made in the grounds of appeal. Although ground 5 seems to have been abandoned when the appellant was formulating the issues for determination, the complaint in that ground is also to be found in ground 4 from which issue 2 has been distilled.

The gravamen of this appeal centres on the appellant’s identification as one of those who participated in the robbery that took place in PW1’s residence on 15 September, 2012. Learned counsel of the appellant is not disputing the robbery which occurred in PW1’s house in the wee hours of 15 September, 2012 whereby the PW1 was dispossessed of N35,000.00 case handsets and other items at gun point. What learned counsel is quarrelling about is the method used in identifying the

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appellant as one of the robbers. Learned counsel argued that the way and manner the appellant was identified after arrest by PW1 was faulty in law. Learned counsel pointed out that PW1 had the opportunity to see the appellant prior to the time he identified him to the Police Investigators at SARS during the identification parade. He contended that such identification parade is unknown to law as the usual and accepted practice is to place the suspect among other suspects so that the identifying witness will pick out the alleged suspect without assistance. Relying on Bozin v. State (1985) 2 NWLR (Pt. 8) 465 learned counsel submitted that since there was a violation of the laid down rules and procedure relating to identification parade and also lack of evidence to support the correctness of the identification, the appropriate thing was for the two lower Courts to have acquitted the appellant of the charge and discharge him from the trial. He also cited the case of Godspower Asakitikpi v. State (1993) 5 NWLR (Pt. 296) 641 at 655 where Uwais JSC (as he then was) stated that where the identification evidence is poor, the trial Court should return a verdict of not

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guilty unless there is other evidence which goes to support the correctness of the identification.

Learned counsel for the respondent conceded that PW1 saw and identified the appellant and the two other suspects before the identification parade was carried out at the State CID but submitted that identification parade at the State CID was only a confirmation of what had taken place earlier at the New lyin Road Police Station. Learned counsel argued that identification parade is not necessary in circumstances where the victim or witness recognised the accused person as the person who committed the alleged crime when the matter was still fresh in his mind and placed reliance on Mbenu v. State (1988) 3 NWLR (Pt. 84) 615 and Ukpabi v. State (2004) All FWLR (Pt. 218) 814. He maintained that PW1 who was the victim of the crime gave evidence that he saw the appellant and his co- accused on 15/9/2012 and the trial Judge believed and convicted him and the co-accused and so the lower Court was right in upholding the judgement of the trial Court.

Justice Agbelusi Michael Ayowole (PW1) narrated the ordeal that he and some of his children went through when the

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robbers invaded his residence at Egbewa Housing Estate opposite NTA Ado-Ekiti on 15/9/2012 at 3am armed with guns. When they entered the house, the 1st accused switched on his (PW1’s) reading lamp which was very bright. None of the accused wore a mask. He said the 2nd accused (now appellant) was standing at the door and pointed his gun at him. He described him as a young boy, charcoal black. He said that the 1st accused whispered to his ears demanding for money and handsets. He took the Ist accused to where he kept his valuables where he collected N35,000.00, the handsets and other valuables. While the 1st accused was collecting the money and the other items, the 2nd accused stood alert with his gun. When the 1st accused was done, they (i.e. 1st and 2nd accused) led him out of the room. It was when he came out of the room that he saw the 3rd accused standing with his gun. The accused later locked PW1 and other occupants of the house inside toilets and took two of the female children somewhere. They were inside the toilet for between 40-45 minutes and one of the children told him the robbers had left because they heard the sound of motor cycle. After regaining

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his freedom he ran to the New Iyin Police Station where he shouted I am a victim of armed robbery. He said that immediately he shouted, the police on duty opened their gate where he narrated his story and they contacted the Divisional Police Officer. He made a statement at New lyin Road Police Station which was tendered in evidence as Exhibit A. He was taken to the Police Station and on getting there many suspects were lined up and a policeman asked him if he could identify those that went to this house and he pointed to the 1st and 3rd accused. On 19/9/2012 an identification parade was organized at the Police headquarters where he and his daughter, Temitope Agbelusi identified the 1st-3rd accused.

The oral evidence of PW1 confirms the statement he made immediately after the robbery which was admitted as Exhibit `A’ under cross-examination. He made Exhibit A on 16/9/2012 when the incident of the robbery was still very fresh in his memory. His description of the 2nd accused now appellant was: –

“The 2nd man was dark in complexion, charcoal black. He also wore no mask.’

In his oral evidence he said: –

“The 2nd accused was

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standing at the door pointing his gun at me and I was wondering that this small boy could be an armed robber. A young boy, charcoal black.” (underlining mine for emphasis).

In his brief of argument in paragraph 4.4, learned counsel for the appellant maintained that no mention was made of PW1 recognizing or identifying the appellant in Exhibit “A”. This is far from the truth. The only thing PW1 did not do was to call the appellants name. Learned counsel for the respondent argued that the appellant was properly identified by PW1.

It was stated in Eyisi v. State (2000) 15 NWLR (Pt. 691) 555 following the dictum of Lord Widgery CJ in R v. Turnbull (1976) 3 All E.R. 547 of the warning the Judge should give to the jury whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, that recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made

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and everything depends on the quality of the identification evidence. if the quality is good and remains good at the end of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality the greater the danger. Where, in the instant case the witness described the accused as dark in complexion, charcoal black, the trial Judge should examine closely how long PW1 had the appellant under observation; at what distance; in what light and how much time elapsed between the original observation and the subsequent identification to the Police See: Anyanwu v. State (1985) 5 NWLR (Pt. 43) 612; State v. Aibangbee (1988) 3 NWLR (Pt.84) 548; Mbenu v. State (1988) 3 NWLR (Pt.84) 615.

There are circumstances when identification parade is not necessary. One of such circumstances is where the victim or witness recognized the offender or accused person while the matter was still fresh in his mind as the person who committed the offence alleged. See: Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439; Ndukwe v. State (2009) 7 NWLR (Pt. 1139) 43.

PW1 wrote Exhibit A on 16/9/2012 which was a few hours after the robbery incident and gave his

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evidence a year later. In Exhibit “A” he stated: –

I say that in the morning of Saturday 15th September 2012 at about 3am I was woken up from my sleep by armed robbers. Two of them entered my room. One was light complexion man of the two woke me up with his pistol and asked me where I kept my money. He did not wear any mask so I could see him very well. In any case he was so close to me putting his orders in a whisper. They used my torchlight which was very bright. They also put on my rechargeable lamp. The 2nd man was dark in complexion, charcoal black. He also wore no mask. He stood at the door pointing his gun at me.”

It is the appellant that PW1 described as charcoal black. From the account of PW1 both in his written statement and oral evidence in Court, it is clear that the PW1 had a good view of his traducers. The interval between the robbery and when PW1 sited the appellant at the Police Station was quite brief and since the appellant did not wear a mask, he could not be faulted in his recognition of the appellant. Moreover the lighting condition was quite good. It was therefore needless to conduct a formal identification parade. So

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applying the parameters set out in Anyanwu v. State supra, it will be safe to conclude that an identification parade was unnecessary and if the one conducted was faulty, it should not affect the finding made by the learned trial Judge that the appellant was one of the robbers who robbed PW1 and his family in their home in the early hours of Saturday, 15th September, 2012. PW1 recognised the appellant as one of the robbers who robbed him and his family when the matter was still fresh in his mind and so the identification was not necessary. See: Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439 where Uwaifo JSC stated at page 450 that identification parade is not necessary where the witness recognised one of those who robbed him while the matter was still fresh in his mind and the man was still in the neigbourhood and within easy reach See also Mbenu v. State (1988) 3 NWLR (Pt. 84)615 and Abudu v. The State (1985) 1 NWLR (Pt.1) 55 at 61 – 62.

As the arguments in the appeal turn on lack of proper identification parade to confirm that the appellant was one of those who participated in the robbery of 15th September, 2012, I find that the appeal is completely

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devoid of merit and I accordingly dismiss it.

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SC.601/2016