Godwin Pius V. The State (2016)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the High Court of Justice, Ondo State, Akure Judicial Division, the respondent herein filed information against the appellant and one Johnson Adeyemi for the offences of conspiracy to commit armed robbery and armed robbery contrary to Sections 5 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990. Upon their arraignment on December 6, 2006, each of the accused persons pleaded not guilty to the charges.
Thereafter, the case went to trial.
The Prosecution’s case was erected on the testimonies of its two witnesses, namely, PW1, the victim of the crime, one Folabi Fayemi and PW2, one Corporal Michael Isichei of the Anti Robbery Section, SCID, Akure. The appellant (as first accused person) testified in his defence.
In its judgment of May 21, 2008, the said High Court (hereinafter, simply, referred to as “the trial Court”) convicted the accused persons and sentenced them to death by hanging or by firing Squad “as the Governor may direct.” Aggrieved the first accused person (appellant in this
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appeal) approached the Court of Appeal, Akure Division, henceforth, simply, called “the Lower Court”) with his complaint against the said judgment of the trial Court entreating it [the Lower Court] to allow the appeal and set aside his conviction and sentence.
The Lower Court, having dismissed his appeal, he further appealed to this Court to set aside the concurrent findings of the Lower Courts and to acquit and discharge him. He formulated three issues from his Notice and Grounds of Appeal
These issues were expressed thus:
- Whether the learned Justices of the Court of Appeal were in error when they held that identification parade was not necessary in the appellant’s case on the ground that the appellant did not contradict PW1 on his evidence of identity at trial
- Whether the learned Justices of the Court of Appeal were in the same error as the trial Court when they affirmed the conviction of the appellant based on Exhibit P5 without making any finding as to whether or not the appellant made the statement
- Whether Section 9 of the Robbery and Firearms Tribunal (Special Provisions) Act conferring power of prosecution on the
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Attorney General of Ondo State is inconsistent with Section 174 of the 1999 Constitution (as amended) which confers exclusive powers on the Attorney General of the Federation for prosecution of federal offences
When this appeal was heard on December 3, 2015, counsel for the appellant, Chinonye Obiagwu, who appeared with Melissa Omene, adopted the brief of argument filed on October 4, 2012. He relied on the arguments therein in urging the Court to allow the appeal. On his part, counsel for the respondent, Gboyega Oyewole, who appeared with A. O. Adeyemi -Tuki (Mrs), DPP, Ondo State and A.A. Oladunmiye, PLO, Ministry of Justice, Ondo State, adopted the brief of argument filed on February 12, 2012 in arguing that the appeal, being unmeritorious, should be dismissed.
My Lords, for reasons that would be made obvious anon, the only live issue in this appeal is the first issue. In the first place, it is not possible to wish away the fact that the Lower Court made a specific finding on the crux of the complaint with regard to issue two:
an issue which was, extensively, argued on pages 11 – 17 of the appellant’s brief of argument.
According to
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the appellant’s counsel “the appellant at the trial Court raised the defence of non est factum in respect of Exhibit P5, i.e, Exhibit P5 was not his act or that the act of signing Exhibit P5 was not accompany (sic) by his mind at the time of signing same because he did not know the content,” (page 11 of the brief). He, then, proceeded to adumbrate on the nuances of the said plea of non est factum, (pages 11 -17 of the brief).
With profound respect to Chinonye Obiagwu, the altruistic counsel for the appellant, who, from his numerous appearances evident in the Law Reports, appears to be one of the most consistent advocates of causes of indigent accused persons in this Court and other superior Courts of record in Nigeria, seems to have underrated the findings of the Lower Court on this point. At page 255 of the record, the Lower Court, (as per the leading judgment of Adumien, JCA) agreed “that the question of non est factum was not raised by the appellant in the trial Court and I find further that it does not arise from the Judgment of the Lower Court [that is, the trial Court…” (italics supplied).
The appellant did not challenge that finding which
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is, therefore, subsisting, Onibodu and Ors v Akibu and Ors (1982) 13 NSCC 199; Okuoja v Ishola (1982) 7 SC 314; Ejiwhono v Edet-Eter Mandilas Ltd [1986] 5 -9 SC 41, 47; Adejumo v Ayantabe (1989) 6 SC (pt 1) 96; Kraus Thomson Org Ltd v. UNICAL (2004) 9 NWLR (Pt.879) 631, 642; Awote and Ors v. Owodunmi and Anor [1986] 12 SC 294, 309.
It is immaterial whether it is wrong or right, Okuoja v Ishola (supra) 349; Onibodu and Ors v. Akibu and Ors (supra); Ejiwhomo v Edet-Eter Mandilas Ltd (supra); Olarenwaju v. Governor of Oyo State and Ors (1992) 11 12 SCNJ 1; LSBPC v. Purification Tech Ltd (2012) 52 NSCQR 274, 309; Adeyemi v. Olakunmi (11999) 12 SC (Pt.11) 92. The net effect is that, while the appellant cannot canvass that issue before this Court without more, Queen v Ohaka (1962) 1 All NLR 505, on its part, this Court cannot interfere with the said finding, Udegbunam v. FCDA (2003) FWLR (Pt.165) 435.
That is not all! In his third issue, the appellant posed the question:
Whether Section 9 of the Robbery and Firearms (Special Provisions) Act conferring power of prosecution on the Attorney General of Ondo State is inconsistent with Section 174
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of the 1999 Constitution (as amended) which confers exclusive powers on the Attorney General of the Federation for prosecution of federal offences
In arguing this issue, learned counsel for the appellant contended that the information upon which the appellant was tried for the offence created by an Act of the National Assembly was incompetent. This argument was premised on the fact that; in preferring the said information, the Attorney General of Ondo State neither sought nor obtained the fiat of the Attorney General of the Federation.
My Lords, this issue does not need to delay us here. Indeed, this sort or argument was canvassed Aminu Tanko v. State (2009) 1 2SC (Pt.1) 198. The first issue in that case was the question:
Whether the Honourable Court of Appeal was right to have held that the offence of robbery created under the Robbery and Firearms (Special Provisions) Act, Cap 393, not being in the Exclusive and Concurrent Legislative List is a State offence and can be prosecuted by the Attorney General of Niger State
(page 209 of the Report)
Like the counsel for the appellant in the instant appeal, counsel for the appellant
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in Aminu Tanko v. State (supra) contended that the offence of robbery, as created under the robbery and Firearms (Special Provisions) Act (supra), is a Federal offence and, therefore, any charge of robbery under it can only be instituted and prosecuted by the ( ) Attorney General of the Federation by virtue of Section 174 of the 1999 Constitution.
This Court did not have any hesitation in rejecting this submission. It held, inter alia, that:
… not only does a State High Court have the jurisdiction to try cases relating to armed robbery, the officials of the Ministry of Justice of a State are eminently qualified to prosecute the offence of armed robbery in any High Court of a State …. it will even be incongruous to the concept of Federalism, which we practise, to contend otherwise…
(page 217, italics supplied)
It is against this background that I deride this attempt to broach this question again in this appeal as academic and, as such, will not delay us here, Plateau State v AG, Federation[2006] 3 NWLR (Pt.973) 346, 419; Gbadamosi v Aleshinloye [2000] 4 SCNJ 264, 294; Global Transport Oceanic and Anor v. Free Enterprise (Nig)
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Ltd (2001) 2 SCNJ 222; Saraki v. Kotoye (1992) 11 -12 SCNJ (Pt.1) 26, 44. I have no reason for departing from the position in Aminu Tanko v. State (supra).
In all, therefore, it is only the first question that is outstanding. I, now, turn to it. The appellant posed the question:
Whether the learned Justices of the Court of Appeal were in error when they held that identification parade was not necessary in appellant’s case on the ground that the appellant did not contradict PW1 on his evidence of identity at trial
ARGUMENTS ON THE SOLE ISSUE
APPELLANT’S CONTENTION
As noted above, when this appeal was heard on December 3, 2015, learned counsel for the appellant.
Chinonye Obiagwu, adopted the appellant’s brief filed on October 4, 2012. He contended that there was no credible evidence linking the appellant [as accused person] to the commission of the offence. In his submission, the appellant was not, positively, identified as one of those who committed the offence. He pointed out that no identification parade was conducted for the witness to properly identify the appellant.
Counsel maintained that the Lower Court, wrongly,
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held that identification parade was unnecessary because the appellant did not challenge PW1’s identity evidence given orally in Court. He canvassed the view that the Prosecution had the burden of proving the identity of the appellant as one of those who committed the offence. As such, it does not depend on whether or not he (the appellant) challenged the Prosecution’s evidence in that respect. He, therefore, contended that the relevant question is whether the Prosecution proved the appellant’s guilt beyond reasonable doubt.
He prayed in aid the decision in Ikemson v. State [1989] 6 SC (pt 5) 114, which, approvingly, adopted the guidelines in R v Turnbull and Ors (1976 3 All ER 549. The crux of his complaint here was that the PW1 did not, positively, identify the appellant when he gave his statement to the Police and that when the appellant was arrested the witness was not brought in to identify him (the appellant) in an identification parade. He, then, contended, on the authority of Ikemson v State (supra), that identification parade was mandatory in the circumstance.
RESPONDENT’S SUBMISSIONS
On his part, Counsel for the respondent, Gboyega
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Oyewole, drew attention to page 18 of the record where the PW1 narrated his encounter with the appellant on the fateful day He, equally, cited pages 25 -26 of the record for the PW2’s evidence on the events that linked the appellant with the offence and how he was arrested. He submitted that, as the above represented a direct, positive and credible identification of the appellant as one of the persons who robbed PW1, a formal identification parade was unnecessary, citing Attah v The State [2010] 10 NWLR (Pt.1201) 190, 225 -226 on situations necessitating an identification parade.
He maintained that the testimony of PW2 on how the appellant was named by the late Michael Amudipe, a member of the gang that robbed PW1; the recovery of some of the stolen items which the appellant had sold to one Alhaji Dauda Mohammed in Ibadan; the release of those items to the PW1 on bond upon his application, Exhibits P3 and P4 etc rendered, further, identification parade a surplussage.
He, therefore, canvassed the view that R. v Turnbull and Ors, approvingly, adopted in Ikemson v State ( Supra) was inappliacable.
RESOLUTION OF THE ISSUE
My Lords, what prompted the complaint in this
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issue was the Lower Court’s finding that “during cross-examination of PW1, no issue was made of the identity or identification of the appellant or how PW1 was able to recognise the appellant,” page 248 of the record.
As indicated earlier, the crux of the complaint of the appellant’s counsel was that the PW1 did not, positively, identify the appellant when he gave his statement to the Police. With profound respect to Mr Obiagwu, one of the most ardent advocates of the rights of convicts, this is one of those examples where defence counsel have sought to convert the Turnbull Guidelines into some sort of magical wand or adversarial mantra to enfeeble the case which the Prosecution wove against the accused persons at the Court of trial. As it is often the case, this is not borne out by the facts.
Now, the Turnbull Guidelines, so called after the eloquent formulation of Lord Widgery, CJ, in R. v Turnbull (1916) 3 All ER 549, 551- 5521 do not support the proposition that an identification parade is a sine qua non in all cases where there has been a fleeting encounter with the victim even if there is other evidence leading conclusively to the identity of
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the perpetrators of the offence.
On the contrary, an identification parade is only essential where the victim did not know the accused person before and was confronted by the offender for a very short time, and in which time and circumstances he might not have had full opportunity of observing his features.
In such a situation, a proper identification will take into consideration the description of the accused person given to the police shortly after the commission of the offence, the opportunity the victim had of observing him, and what features of his [the accused person], which the victim noted and communicated to the Police, which mark him out from other persons.
This formulation in R. v. Turnbull and Ors (supra) has been approvingly, adopted by this Court in several cases, Ikemson v. The State [1989] 3 NWLR (pt 110) 455, 472, E-G; Mbenu v. The State (1988) 3 NWLR (Pt.84) 615, 628; Ukpabi v. The State (2004) LPELR-3346 (SC) 9, A C; Ndidi v. The State (2007) LPELR 1970 (SC); Abudu v. The State (1985) 1 NWLR (Pt.1) 55, 61-62; Fatai v The State (2003) LPELR -20182 (SC) 19, A – C; Ibrahim v The State [1991] 5 SCNJ 129; Ajayi v The State
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(2014) LPELR -23027 (SC) 20 -21.
Thus, the rationale of the Turnbull Guidelines is that whenever the case against an accused person depends wholly or substantially on the correctness of his identification, and the defence alleges that the said identification was mistaken, the Court must closely examine the evidence. In acting on it, it must view it with caution so that any real weakness discovered about it must lead to giving him the benefit of the doubt, Ndidi v The State (supra); Ukpabi v The State (supra); Abudu v. The State (supra) 61 62; Mbenu v. The State (supra) 615, 628.
However, identification parade would be unnecessary if there are yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence, Agboala v The State (supra); Adebayo v State (2014) LPELR – 22988 (SC) 36 37, E C; Alufohai v. The State (2014) LPELR 2415 (SC) 24 25.
WHAT WAS THE PROSECUTION’S CASE
At page 18 of the record, PW1’s testimony, with regard to the identity of the appellant [as accused person], went thus:
There was no light in the vicinity but our generator was on. I was
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able to recognise the first accused person. As soon as I came out, I was leaning on the balcony of the office when I saw the first accused (person) with a bag that was taken from my office with another smaller bag that belonged to one of the girls in the office which (sic) had just arrived from a journey. The first accused looked up and told me that I do not go in he would come back to deal with me with his gun. At that point, one Okada arrived, the Okada took the two of them away (see, page 247 of the record where the Lower Court set out this evidence; my italics)
Still at page 18 of the record, he gave indication as to how he concluded that he knew the appellant:
…I came to the conclusion that the first accused was one of the persons who robbed me on that day because my generator was on and everywhere was well-lit. I am an adult I can recognise him. He spoke to me. I did not lie down, I saw him clearly and I was able to recognise him at the Police station on the day of his arrest.
(Italics supplied)
At page 19 of the record, he averred that:
When the first accused was arrested, the officer in charge of SARS now called me. When I
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got there, there were about five or six people behind the ‘counter.’ As soon as I got there, the O. C. SARS asked me if I recognise one of the people there as a person who came to my shop and I painted him. The O. C. SARS asked if Godwin [appellant] could recognise me. He said yes… ”
(Italics supplied)
On his part, in Exhibit P5, the appellant’s extra-judicial statement to the Police, he wrote thus:
On 3-1-2004, Michael Ajibola Amudipe brought an (sic) information that there is an handset shop at Oshinle Quarters to rob. Four of us, namely, Michael Amudipe (2) Desmond (3) Johnson and myself went for the robbery operation at about 8pm.
On the strength of this, the Lower Court opined that the “confessional statement – Exhibit P5 is an admission by the appellant that he was one of the persons who robbed PW1, Having regard to the facts and circumstances of this case no issue as to the identification of the appellant was raised to warrant an identification parade. Put differently, an identification parade is not a sine qua non to a conviction of an accused for an alleged crime…,”
(page 249 of the record, italics supplied).
These
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were not the only pieces of evidence on which the Prosecution hinged its case. There was, also, the testimony of the PW2, who was detailed to investigate the case. Listen to this insightful account:
When we started the investigation through our intelligence gathering we arrested one Michael Amudipe on 22nd January, 2004 along (sic) Isikan Road, Akure; by our informant one Policeman. He was arrested and brought to the station. During interrogation, on the 22nd January, sorry, 23rd January, 2004, A call came into his handset. I picked the handset. When I picked the handset, the first accused was the person on the line. I pretended to be Michael Amudipe. I told him I had an accident on 22nd January, 2004 night around 9pm and that I was admitted at General Hospital, Akure. He told me he would come there to greet me…Before we left for the hospital, we had obtained the statement of Michael Amudipe where he mentioned the names of the first and second accused persons and others as members of his gang…
(Italics supplied)
The other pieces of evidence which, firmly, roped in the appellant were, graphically, highlighted by the trial Court, and affirmed
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by the Lower Court:
Exhibit P5 reveals that two robbers entered the shop and both carried guns. The name of Michael Amudipe featured in Exhibit P5 as member of the gang of robbers that invaded the shop….Exhibit P5 shows that the first accused sold some of the stolen handsets at Ibadan, PW2 testified that in the course of investigation first accused said he sold his share of the stolen handsets at Ibadan and that they went to Ibadan to recover them. PW1 said in his evidence- in -chief that he was robbed of handsets and money, by Exhibit P5, the first accused said they stole handsets and money…PW2 told the Court that PW1 applied doe the recovered handsets and they were released to him. Exhibit P3 is the application made by PW1. Exhibit P4 is the bond to produce the exhibits, PW1 said his shop was lit because he put on his generator and therefore could identify the first accused. He was not cross examined on this fact. No contradictory evidence was adduced by the accused. PW5 shows that Desmond and the fist accused keep the two guns used for the robbery operation. Exhibits P1, P1a- P2 were recovered from the first accused.
(pages 116 -117, italics
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supplied)
Against this background, the Lower Court found that in the present case, “the identity of the appellant as one of the persons who robbed PW1 was proved beyond reasonable doubt…the evidence of the Prosecution coupled with the appellants confessional statement, Exhibit P5, constituted convincing, cogent and compelling evidence which made an identification or identification parade irrelevant in this case,” [pages 250 -251 of the record].
In one word, there were concurrent findings on this question. Yet the appellant did not deem it fit to show that they were not borne out of the records or that the Lower Courts applied the wrong principles of the law in arriving at those findings; put simply, that they were perverse. I am, therefore, unable to interfere with them, Adeyeye v The State (2013) LPELR 19913 (SC) 46; Akpabo v. State (1994) 7 NWLR (Pt.359) 635; Ogbu v. State (1992) 8 NWLR (Pt.295) 255; Igago v. State (1999) 14 NWLR (Pt.637) 1 Adeyemi v. The State (1991) 1 NWLR (Pt.170) 679; Ejikeme v. Okonkwo (1994) 8 NWLR (Pt.362) 266.
In the circumstance, therefore, I endorse the above concurrent findings. This must be for as
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indicated earlier, where the identity of an accused person was not in doubt [as in the instant case] there was no need to embark on identification parade; that is, identification parade was not a sine-qua-non to his conviction and sentence by the trial Court, as affirmed by the Lower Court, Ukpabi v. The State [2004] 34 WRN 133;Ikemson v The State (1959) 3 NWLR (Pt. 110) 455, Abubakar Ibrahim v The State (supra); Ajayi v State (supra); Ndukwe v. State(2009) 7 NWLR (Pt 1139) 43; Nwaturuocha v. State (2011) Vol 6 NSCC 462; Agboola v State (supra).
In all, therefore, I find that this appeal must fail for being unmeritorious. I, hereby, enter an order dismissing it. I affirm the trial Court’s conviction of, and sentence on, the appellant in its judgment of May 21, 2008 affirmed in the Lower Court’s judgment of June 28, 2012.
SC.346/2012