Kenneth Ogoala V. The State (1991)

LawGlobal-Hub Lead Judgment Report

P. NNAEMEKA-AGU, J.S.C. 

This is a further appeal from the judgment of the Court of Appeal, Lagos Division, which had dismissed the appeal of the appellant from his conviction by Desalu, J., of the Lagos High Court of the offence of robbery punishable under Section 402(2)(a) of the Criminal Code (Amendment) Law of Lagos State, 1980.

The facts of the case are not complicated. On the 6th of October, 1980, one Dr. Osborn Olumide Phillips (P.W.2) was to travel abroad from their house at No.72 Okepopo Street, Lagos. He was travelling to the airport in a Peugeot 504 Car of his friend, Olumuyiwa Ayanbule (P.W.1) which was actually driven by P.W.2 and his wife, Mrs. Phillips (P.W.3), sat beside him in the front seat. P.W.1 sat on the back seat.

On their way to the airport, Dr. E. Phillips stopped at No.25 Sylvia Street, in Anthony Village to see a friend, one Mr. Odukoya. As the car radio was on, he left the car engine running with the key in the ignition hole while P.W. 1 and P.W.3 were sitting in the car. Mrs. Odukoya came down from their house and started talking to Mrs. Phillips. She stood near the driver’s seat of the car, while conversing with P.W.3. Within five minutes, a Toyota car came from the opposite direction and stopped behind P.W.1 ‘s car. Then two persons; one said to be the appellant, armed with a cutlass and the other with a knife, emerged from the Toyota car.

The two women, P.W.3 and her friend, got frightened and managed to escape to a nearby house. The appellant also brandished a matchet on P.W.1 and he managed to make good his escape. Shouts of “ole! ole!” (thief! thief!) alerted Dr. Phillips on what was happening and he came down from his friend’s apartment. But before he could do anything, in a flash, the appellant’s companion, apparently still at large, got on to the driver’s seat of P.W.1’s Peugeot car and the appellant joined him and they drove away towards lkorodu Road. As the place was well-lit, Dr. Phillips as well as P.W.1 and P.W.3 each saw clearly a good part of the dramatic episode.

Not far from the scene of the robbery, the culprits ran out of luck. For they had run into and caused a chain collision around the junction of Anthony Village Road and lkorodu Road. In the meantime, P.W.1 and P.W.2 who had borrowed another friend’s car and set out in pursuit of the bandits arrived at the scene and found P.W.1’s car, snatched from them a short while before, badly damaged and among one of the cars in the chain collision, which involved three other cars. Then they observed that a man who was being beaten at the scene was the appellant, the same man who was brandishing a matchet beside P.W.1’s car a short while before. They, too, joined in beating him.

Later, the appellant was rescued and arrested by a policeman who took him, the drivers of the other three cars involved in the accident as well as P.W.1 and P.W.2 to Ilupeju Police Station where they made statements. The case of the appellant was later referred to Panti Street C.I.D. for further investigation. There Sergeant John Ibrahim, who testified as P.W.4, investigated the case. The appellant made a confessional statement under caution which he later confirmed before a superior police officer. This was tendered as Exhibit “B.”

After trial, the appellant was convicted. His appeal to the Court of Appeal, coram; Ademola and Kalgo, JJ.C.A. and Akpata, J.C.A. (as he then was) was dismissed. He has appealed further to this Court. Four grounds of appeal were filed by his counsel, Chief Milton Paul Ohwovoriole. Counsel on both sides duly filed their briefs. Arising from those grounds of appeal learned counsel for the appellant formulated the following issues for determination:

“1. Whether the learned Justices of the Court of Appeal were right in upholding the conviction and sentence of death on the appellant when they failed to properly consider the defence of alibi set up by the appellant as laid down in Yanor v. State (1965) 1 A.N.L.R. 193; (1965) N.M.L.R. 337.

2. Whether the learned Justices of the Court of Appeal were right in confirming the conviction and sentence of death passed on the appellant in the face of irreconcilable and contradictory testimonies of the prosecution witnesses in disregard to the principle of law enunciated by the Supreme Court in Arueyee v. State (1967) N.M.L.R.209 at 211.
3. Whether the learned Justices of the Court of Appeal were right in upholding the conviction and sentence of death passed on the appellant when the prosecution had failed to produce necessary and vital witnesses for the proof of its case at the trial.
4. Whether the learned Justices of the Court of Appeal were right in upholding the conviction and sentence of death on the appellant when infact the accused/appellant was not linked with the crime as no proper identification parade was ever conducted.
5. Whether the learned Justices of the Court of Appeal were right in confirming the conviction and sentence of death passed on the appellant when only a part of the alleged confessional statement Exhibit was relied upon without the other statement of the appellant obtained on the 6th of October, 1980 being tendered at the same time by the prosecution.
6. Whether the learned Justices of the Court of Appeal were right in confirming the conviction and sentence of death passed on the appellant when the evidence at the trial was not properly evaluated and the purported conviction and sentence were based on same.”

At the hearing, Chief Ohwovoriole adopted his client’s brief of argument. Miss T.O. Clark also adopted her brief for the respondent. On the defence of alibi, the learned counsel for the appellant submitted that the appellant had successfully established his defence of alibi particularly as the standard required of him is to do so beyond a balance of probabilities (Obiade v. The State (1970) 1 N.L.R.35). The Court of Appeal was further in error to have rejected the defence when they did not ask the appellant, as laid down in the case of Auzinawa v. Kano N.A. (1956) 1 F.S.C.26; (1956) SCNLR 77 whether he had any witness to call.

In my respectful opinion, the so-called defence of alibi said to have been raised by the appellant is a non-issue on the true facts of this case. The appellant stated that he left Ojota for Kirikiri town at about 7.30p.m. On the evidence of P.W.1, P.W.2 and P.W.3 the car in question was snatched from them in Anthony Village sometime between 8.30 p.m. and 9 p.m. the same day. Taking notice of the distance between Ojota and Anthony Village, as I am entitled to, it is quite possible and easy for one who leaves Ojota about 7.30 p.m. to arrive Anthony Village between 8.30 and 9 p.m. when the offence was committed. His statement, Exh. B., of course shows that that was the case.

Now the word “alibi” literally means “elsewhere.” When an accused person’s defence to a criminal charge is alibi he is saying that he was at another place at the time material to the charge: see Gachi & Ors. v. The State (1965) N.M.L.R.333. It is no proper way of raising a defence of alibi for an accused person to show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed unless he can show that, because he was at that place at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed.

It is of course when the defence of alibi has been duly raised and the accused person additionally discharges the evidential burden incumbent on him by giving the particulars of that other place where he was at the time when the crime was committed and of persons who can testify to his being there at the time that the duty to investigate and, at the trial disprove, the alibi is cast on the prosecution.

Once the alibi is duly raised and the evidential burden is discharged, the accused person has no duty to prove the alibi: it is part of the onus cast on the prosecution to disprove the alibi. See on these – Abudu v. The State (1985) 1 N.W.L.R. (Pt. 1) 55; Esangbeda v. The State (1989) 4 N.W.L.R. (Pt. 113) 57; and Ukwunnenyi v. The State (1989) 4 N.W.L.R. (Pt. 114) 131.

Once the duty of the prosecution to disprove the alibi arises in the manner I have stated, they can do that by showing directly that the accused person was wrong in his claim to have been at another place during the commission of the offence or by calling evidence so strong and connecting the accused person with the commission of the offence charged that his defence of alibi cannot be true: see Ortese Yanor & Ors. v. The State (1965) N.M.L.R. 337.

In the instant case in which the appellant had not even duly raised his defence of alibi, as I have shown, and did not discharge the evidential burden on him, the duty of the prosecution to investigate or disprove the alibi did not arise.

So, the cases cited by the learned counsel for the appellant are not in point. The case of Auzinawa v. Kana N.A. (supra) did not lay down a general principle of law that once an accused person says that his defence to the charge is alibi he must be asked whether he had witnesses, failing which the appeal must be allowed and a retrial ordered. After all, a failure to accord an accused person the opportunity to call a witness can only avail him as a ground of appeal if, inter alia, the witness has been shown to be material: see Yanor v. The State (supra) at p.341. As the defence of alibi was not duly raised as required by law, the question of the requisite standard to discharge the appellant’s evidential burden does not yet arise. This issue must therefore be resolved against the appellant.

I shall consider the fourth issue which complains of the absence of a formal identification parade next.

I believe that, as pointed out by the learned counsel for the respondent, it is basic that whether or not a formal identification parade is necessary in any particular case to link an accused person with the commission of an offence charged must depend on the circumstances of each case. A formal identification parade becomes necessary only when the identity of the accused person in relation to the offence charged is in dispute. The question in this case is whether the connection of the appellant with the offence charged or his identity in relation thereto was ever in dispute. In my view, on the evidence before the court, these were never in dispute. The unchallenged evidence of the 1st, 2nd and 3rd prosecution witnesses shows that the scene of the crime was well-lit and that the witnesses were able to observe the appellant very well. At the scene of the multiple collision, they also identified the appellant and the matchet (Exh. C) which he had brandished on P.W.1 a short while before the same matchet was found hidden under the seat of P.W.1’s 504 car snatched from them. Above all, under caution the appellant made a confessional statement, Exh. B. which was also confirmed before a superior police officer, Mr. Adesoro, an Assistant Superintendent of Police.

That statement runs as follows:

“On the 6.10.80 at about 1600 hours which I was at Mucheche fishing Industry at Kirikiri town. I was carried by one Dogo Rashidi he convey me on his motor-cycle that I should go and know his house at Alaba. When I reached there I saw four people and I only know one man out of them called Kenneth but I do not know the remaining three names I met them discussing that they were to go to town together with me they asked me to join them in a Datsun 180B I do not know the registration Nos. of the vehicle but its white in colour the vehicle is driven by one Kenneth. When we were approaching Anthony Village bus stop Kenneth parked the vehicle then Dogo and others came out including me and harassed the occupant at the people inside the 504 white with cutlass and the people ran away before Dogo entered the vehicle drove it out. We were inside the 504 as Dogo was about to turn he collided with the concrete along on the express road before other people ran to the scene then. Dogo told me that we should take a bus to Ajegunle then one soldier came and held me and asked me are you not from this vehicle that is on the pavement. I said yes then people started shouting “ole – ole” meaning thief – thief. I was taken to the military police office before I was brought to Ilupeju police station. One of the cutlasses we used was recovered inside the car by the police who followed them to the place where the car got accident and the cutlass was taken to the station and it was that Dogo and other people used.

Kenneth Ugoala

17.10.80

Recorded by me (Sgd) 17.10.80

I have read the statement of the suspect in the presence of his IPO No.43404 Cpl. J. Ibrahim. The suspect confirmed that the statement was correct and made without duress or intimidation.

Sgd) A.S.P. 17.11.80

Cpl. Ibrahim 17.11.80 Kenneth Ugoala 17: 10:80

Interpreted by me:

Kenneth Ugoala 17.11.80

Signature/Mark of Accused

Signed Cpl. J. Ibrahim

17.10.80

This statement was taken in the English language read over and translated to the Accused in English language in the presence and hearing.

Recorded by Cpl. J. Ibrahim.

17.10.80.”

The statement was tendered and admitted in evidence without objection by the learned counsel for the appellant in the court of trial. It was not impugned in any way throughout the trial. On the face of this voluntary statement and other pieces of evidence referred to above, I cannot see how it could now be urged in favour of the appellant either that his identity and connection with the crime were in dispute or that there was any need for a formal identification parade. An identification parade is not required where a suspect is caught at the scene of crime or at a place so closely connected with the scene of crime, as in this case. An identification parade should never be conducted for purely cosmetic reasons. It should be limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged. To insist that it must be conducted in cases like the instant in which the visual evidence of identity is clear and corroborated by other evidence and the accused person confesses to his complicity in the crime is to make a mockery of criminal justice.

I must pause here to make some observations on the import of this voluntary statement, Exh. B., on the whole case. It must be noted that, in law, a voluntary confession of guilt, if fully consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the court can convict: see Phillip Kanu & Anar. v. R. (1952) 14 W.A.C.A.30, at p.32; R. v. Abraham Erumesi (1959) N.R.N.L.R.258; where, as in this case, the prosecution has proved some facts and/or circumstances outside the confession which made it probable that the confession was true, then there is a clear ground for conviction. See R. v. Obiasa (1962) W.R.N.L.R.354; (1962) 2 SCNLR 402; Paul Onachie & Ors. v. The Republic (1966) N.M.L.R. 307. In this case, the statement, Exh. B. was tendered and admitted without objection. The appellant was represented by counsel. In the witness box he admitted that the signature on Exh. B. was his own. Exhibit B shows that it was read over to, and confirmed by, him before a Superior Police Officer. Although, in the witness box, he made a feeble denial of the confirmation of Exh. B., he admitted he signed it in two places: this was an implied admission of the confirmation. In any case, the learned trial Judge did not believe the denial of the confirmation of the statement. Outside the confession, Exh. B., there was the evidence of P.W.1, P.W.2 and P.W.3 who observed the incident in a well-lit street. In particular, there was the evidence of the appellant brandishing a matchet: the matchet found under the seat of the snatched car was identified by P.W.1 and P.W.2 as the one the assailant was brandishing at P.W.1 a short time before the multiple collisions. Important, too, is the fact that the appellant was shortly after the robbery found at the scene of the multiple collision which involved the snatched car and three other cars. So, putting all these together, it cannot be doubted either that the statement was duly proved and was consistent and probable but also that there were also proved other facts and circumstances which go to show that the confession was probably true. These are very satisfactory grounds for the conviction.

In the above state of the facts, I shall make rather short points of other issues raised on behalf of the appellant. He complained that there were “irreconcilable contradictions” in the evidence of principal prosecution witnesses, i.e. P.W.1, P.W.2, and P.W.3, for which the Court of Appeal ought not to have confirmed the conviction of the appellant. The case of Arueyee v. The State (1967) N.M.L.R. 209 at p.211 was relied upon. What he regarded as “irreconcilable contradictions” in the evidence of P.W.1 and P.W.2 were summarized by the learned counsel for the appellant, as follows:

“i. That there were three men or at least more than two men who drove away with the alleged stolen Peugeot car.

ii. That the actual person who “brandished” a cutlass at P.W.3 was not the accused but the “OTHER MAN”, according to P.W.1, who “Struggled with Mrs. Phillips at the door in front.”

iii. The appellant did not brandish any cutlass, nor anything for that matter at P.W.3 for, according to P.W.1:-

“The accused was by the side of the car near me” whilst…. the other man struggled with Mrs. Phillips at

the door in front.”

iv. In corroboration with the views of P.W.1, P. W.2 stated as follows:-

“Another man whom I cannot recognise sat at the back.” this implying that more than two men committed the alleged offence.

v. In the views of both P.W.1 and P.W.2 the men metamorphosed into two men in which one of them suddenly turned out to be the accused person (appellant).

vi. That the alleged accident, according to P. W.2, took place at a “street nearby” and the car alleged stolen was found after a distance “at Ikorodu Road.”

vii. According to P.W.1 the appellant was being beaten up by a crowd, whilst P.W.2 insisted that “the accused was being held by a soldier and a policeman.”

I think the so-called contradictions as to the number of persons who took part in the robbery was amply explained by the appellant himself in his statement, Exh. B. According to him in Exh. B. those who accompanied him in the car which brought him to the scene of the robbery included not only Dagogo and Kenneth but also three others whom he did not know their names. They were supposed to play different roles at different stages in the nefarious operation. For obviously frightened, incensed, and shocked observers like P.W.1 and P.W.2 what each could observe in the entire episode would depend on the stage and the point from which he made his/her observation. It would be idle to expect that such frightened observers in a charged and fleeting scene as in an armed robbery would notice exactly the same thing with mathematical consistency. Some minor discrepancies must be expected. Indeed, when in such a situation such consistency has been achieved, it is often looked upon with suspicion as it may be indicative of the fact that the witnesses have been schooled and tutored. Also the appellant himself in Exh. B admitted that a soldier appeared at the scene of the multiple collision. It was also admitted that a policeman took the appellant, the drivers of the other cars involved in the collision and P.W.1, P.W.2, and P.W.3 from the scene of the collision to Ilupeju Police Station. What purpose will be served now by the learned counsel for the appellant trying to show that according to P.W.2, the appellant was being held by a soldier and a policeman whereas P.W. did not say so

On the whole, from the nature of what learned counsel for the appellant has referred to as “contradictions” it appears to me that he did not quite appreciate what in law constituted contradictions in evidence. The word “contradiction” comes from two Latin words – contra, which means opposite, and dicere, which means to say. So, in ordinary parlance to contradict is to speak or affirm the contrary. Hence in the law of evidence, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies in, say, details between them. As I see it, contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details. It is apt to recall what I had to say about this situation in Ayo Gabriel v. The State (1989) 12 S.C.N.J.33 at p.42; (1989) 5 N.W.L.R. (Pt. 122) 457.

“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. It is useful to bear in mind the fact that the word “contradict” comes from two Latin words – contra (opposite) and dicere (to say). Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than, what the other piece of evidence says or contains some minor differences in details. I think the law also looks at the two different situations differently. If a witness gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable: See Onubogu v. The State (1974) 9 S.C.1. On the other hand, minor discrepancies between a previous written statement and subsequent oral testimony are to be expected and do not destroy the credibility the witness. Indeed when such occur, it may lead to a suspicion that the witness has been tutored.”

From the totality of evidence of P.W.1, P.W.2, P.W.3 and Exh. B. it is clear that:

1. P.W.1, P.W.2 and P.W.3 stopped over at No. 25 Sylvia Street, Anthony Village, on the day in question, having arrived there in P.W.1’s 504 car;
2. A car pulled up at the scene out of which two or more persons emerged and snatched the 504 car from them by brandishing a matchet and a knife at P.W.1 and P.W.3;
3. The appellant was observed by them as one of the assailants during the operation in the clearly lit street;
4. The 504 car which was subsequently driven towards Ikorodu Road was involved in a multiple collision involving three other vehicles somewhere around the junction of Anthony Village Road and Ikorodu Road, a short distance away;
5. P.W.1 and P. W.2 who set out in pursuit of the bandits in a borrowed car arrived at the scene of the collision afterwards and saw the appellant whom they instantly recognized as one of those who snatched the car from them being beaten by some people. At one time or the other a soldier and a policeman were present at the scene; and
6. On searching, they found the matchet which was being brandished at them by appellant moments earlier hidden under the seat of the 504 car.

I do not agree that there were any contractions in these essential facts, and they are sufficient to sustain the conviction. Assuming that the minor discrepancies that there were could be promoted to the realm of contradictions, a point I do not concede, they do not in the circumstances of this case entitle the appellant to an acquittal. For the law is that for contradictions in the evidence of witnesses for the prosecution to affect a conviction, they must be sufficient to raise doubt as to the guilt of the accused. See: Nwosisi v. The State (1976) 6 S.C.109; Ejigbadero v. The State (1978) 9 & 10 S.C. 81; and Atano v. Attorney-General of Bendel State (1988) 2 N.W.L.R. (Pt.75) 201. But in this case, for the reasons I have given, there can be no doubt about the guilt of the appellant. It is when there are substantial contradictions on material points in the evidence called by the prosecution that an acquittal will result on the premises that it cannot be said that the case has been proved beyond reasonable doubt. See: Akosile v. The State (1972) 5

S.C.332; Ngwo Kalu v. The State (1988) 4 N.W.L.R. (Pt. 90) 503, at p.510. I should resolve this issue against the appellant.

There is the further complaint that the prosecution failed to call some witnesses who from the testimonies of P.W.1, P.W.2, and P.W.3 witnessed the incident. In particular, it was contended that they should have called-

(i)Mrs. Odukoya who was chatting with P.W.3 when the robbery incident commenced;

(ii)Mr. Odukoya who witnessed the incident and whose car was borrowed for the chase of the robbers;

(iii)The policeman and the soldier who were present at the scene of the multiple collision and initially arrested the appellant; and

(iv) The drivers of the other three vehicles involved in the collision.

Learned counsel for the appellant therefore submitted that it was the duty of the prosecution to place before the court all available evidence. As they failed to do so, this court ought to hold that they did not prove their case beyond reasonable doubt, he submitted.

I agree with the learned counsel for the respondent that the above contention is misconceived and fallacious. For it is based on the assumption that the prosecution is bound to call every eye witness to the offence and to place every available evidence before the court. This, however, is not the law. The duty of the prosecution in such a case is not to call every eye witness, but to call enough witnesses to enable them discharge the onus of proof incumbent on them – to prove their case beyond reasonable doubt. See on this:

Inusa Saldu v. The State (1982) 4 S.C41, pp.68-69.

Udofia v. The State (1981) 11-12 S.C. 49; and

Okpulor v. The State (1990) 7 NWLR (Pt. 164) 581 at p.593.

In performing that duty, the prosecution has the duty only to prove facts in issue, and for the purpose is not obliged to call every or any number of witnesses or, indeed, save where by law corroboration is necessary, or a fact is seriously in contention, to call more than one witness on any particular point. Prosecution will in fact be a very laborious exercise and the task of the trial court unduly cumbersome if every person whose name has been mentioned in the testimony or statement of every witness will be regarded as a material witness whom the prosecution must call. That is fortunately not the law. In the instant case, I am satisfied that the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and Exh. B cover all the facts which the prosecution was required to establish in order to discharge its burden of proof.

Also learned counsel to the appellant complains that only that part of the appellant’s statement made at Panti Police Station was tendered as Exh.B, and that the statement said to have been made at Ilupeju Police Station was not tendered. He therefore invited the court to invoke the provision of section 148(d) of the Evidence Act and presume that if the evidence was produced it would have been unfavourable to the prosecution; Opolo v. The State (1977) 11-12 S.C 1.

To begin with, that the appellant made any written statement at Ilupeju Police Station on the 6th of October, 1980, was his Ipse dixit. P.W.3 stated that she made statement and that the appellant was questioned about the offence and he “confessed” in her presence. She did not suggest that the confession was in a written statement and’, as the learned counsel for the respondent has pointed out, the learned trial Judge did not find that the appellant made any written statement on that day, much less one under caution.

Moreover, it was never suggested to the P.W.4 who received the case file from Ilupeju Police Station and investigated the case at Panti that such a statement was in existence or was one of the materials transferred to him for investigation. In the circumstances, as there is no satisfactory proof that such a statement was ever made there is no basis for invocation of section 148(d) of the Evidence Act. I shall, therefore, not presume anything against the prosecution.

Because of what I have said above, particularly with respect to the appellant’s confessional statement, Exh.B, the quality of other evidence before the court and the concurrent conclusions of the two courts below, the complaint against the evaluation of evidence deserves no serious consideration. In particular, I have to advise myself about the law in a case of concurrent findings of facts by two courts below. It is settled rent findings of facts by two courts below.

It is settled that where there is sufficient evidence to support concurrent findings of fact by two lower courts, such findings should not be disturbed unless there is a substantial error apparent on the record: that is, the findings have been shown to be perverse, or some miscarriage of justice or some material violation of some principle of law or of procedure is shown. See: Sobakin v. The State (1981) 5 S.C. 75; Nasamu v. The State (1979) 6-9 S.C. 153; Nwiboko v. The State (1985) 4 S.C. (Part II) 183; Ikem v. The State (1985) 1 NWLR (Pt. 2) 378, p. 388. As no such circumstances have been shown to exist in this case, I cannot interfere. In any event the case against the appellant has not only been proved to the hilt; it has also been admitted in his confessional statement, Exh.B.

As all the issues have been resolved against the appellant, his appeal fails and is hereby dismissed. I affirm his conviction and the sentence passed on him.

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Other Citation: (1991) LCN/2470(SC)