Morufu Bolanle V. The State (2004)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
This is an appeal against the judgment of the High Court of Justice, Oyo State, Ibadan Judicial Division, delivered on the 23rd of January, 2002.
The one count information preferred against the appellant and another dated the 29th of September, 1997 reads:-
“Morufu Bolanle
Gbolagade Alawode
On or about the 22nd day of October, 1996 at Olorunsogo, Oke-Itunu, Ibadan Oyo State of Nigeria, while armed with offensive weapons to wit: guns, bottles, knockout, robbed Mr. Emmanuel Fatundimu of N5,300, Mr. Bashir Ishola N12,000, Mr. Biodun Alaga of N4,700, Mr. Ikuesan Olajide of N2,500, Mr. Benjamin Akindoyin of N1,000 and other property such as clothes, jewelery, video, wrist watch etc. contrary to and punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Volume 22, Laws of the Federation of Nigeria, 1990.”
The brief facts of the case are that by the time the prosecution commenced trial in the case, of all those mentioned in the information alleged to have been robbed, only Mr. Emmanuel Fatundimu – who gave evidence as PW1 testified at the trial. It was his evidence that around 2.30 p.m. on the night of the 21st of October, 1996, some robbers visited his residence at No. 36 Olorunsogo Street, Oke-Itunu area of Ibadan. They forced the gate open and the door of his room, and those of his wife and other tenants in the house. They assaulted everybody with iron rod or broken bottle. An attempt to rape the 2nd PW, Ruth Fatundimu did not materialize because it was her menstrual period.
However, the 4th prosecution witness, Bolatito Ayilara was raped while her mother, Bosede Ayilara died of the wounds sustained during the robbery incident before the prosecution of the case. The robbers took away some money and other valuables belonging to these witnesses. The appellant was arrested at a relaxation joint named “Black Sport” at Ijokodo area of Ibadan, following a tip-off. As the victims of the incident claimed that they could identify the robbers due to the electricity that was on during the robbery operation – and the fact that the robbers spent some time with them, an identification parade was carried out nine days after the robbery incident.
The 1st-4th prosecution witnesses identified the appellant. The 5th prosecution witness was the Investigating Police Office. Photographs of the identification parade, though taken were not tendered. The defence of the appellant at the trial court was clearly based on mistaken identity.
At the close of the case of the prosecution and defence, counsel addressed the court. In his considered judgment, the court held in the last two paragraphs of the judgment as follows:-
“Looking at this case as it relates to the 2nd accused, I have no doubt in my mind that he has anything to do with this case. While the eye-witnesses gave detailed activities of the 1st accused as regards the robbery operation, no evidence was led on any role of the 2nd accused respecting the robbery. Having resolved the doubt I have in this case in favour of the 2nd accused, I hold that the prosecution have not proved any case against the 2nd accused. Accordingly, the 2nd accused is discharged and acquitted in this case.
The prosecutions have established their case against the 1st accused. Consequently, he is found guilty and convicted of the offence of armed robbery committed against Emmanuel Fatundimu on the 22nd of October, 1996 at Olorunsogo (otherwise called Kalejaiye) Street Oke-ltunu Ibadan contrary to and punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990 as amended. He is accordingly sentenced to death.”
The appellant was dissatisfied with the foregoing decision of the trial court, he appealed to this court.
He filed notice of appeal on 23/1/2002 – and this notice harboured five grounds. By order of this court made on 22/9/03, he filed an additional ground of appeal. Parties settled records and briefs were exchanged in accordance with the current rules of this court. At the time this appeal was argued, the appellant relied on the brief filed on 3/12/02. He distilled four issues for determination which issues emanated from his six grounds of appeal.
These issues read as follows:
“(1) Whether from the records, the robber could not have been another person but the appellant?
Or in the alternative,
Whether it is safe to hold that the identity of the appellant as robber was established beyond reasonable doubt?
(2) Whether in the circumstances, the failure of the prosecution to call the photographer who took snap shots of identification is fatal to this case.
In the alternative, whether the court was obliged to consider the appellant’s defence of mistaken identity. If the answer is in the affirmative, whether the court considered it at all?
(3) Whether the failure of the Judge to warn himself before convicting the appellant is fatal to the case?
(4) Whether the conviction of the appellant could stand when the 2nd accused was acquitted?”
The respondent relied on the brief filed on 19/9/2003 – where two issues were settled for determination as follows:
“1. Whether the identification of the appellant was not proved beyond reasonable doubt?.
2. Whether the acquittal of the 2nd accused or co-accused must necessarily or automatically lead to the acquittal of the appellant when dissimilar evidence were adduced against them?.”
I have a duty to comment on the quality of the appellant’s brief – which I regard as not precise or specific enough. The purpose of a brief is to assist the court in arriving at a just decision in a case. It must be brief, precise, specific and straight to the points in issue. An appellant must make up his mind as to the reliefs sought by him in his brief and must stay away from alternative issues for determination.
I endorse the observation of respondent that there are only two issues for determination in this appeal. Issues numbers 1 – 2 in the appellant’s brief can be compressed into one issue- and issues numbers 3 and 4 can make up another issue without doing any havoc to the substance of the appeal. The two issues will now coincide with the respondent’s two issues. The issues for the determination of the court shall now read:-
1 Whether it is safe to hold that the identity of the appellant as a robber was established beyond reasonable doubt?.
2. Whether the acquittal of the appellant could stand when the 2nd accused was acquitted?.
As regards issue No.1 – which is whether it is safe to hold that the identity of the appellant as a robber was established beyond reasonable doubt – I shall consider the argument proffered in respect of former issues numbers one and two by the appellant. The appellant submitted that the evidence of the prosecution witnesses particularly PW1-PW4 fixing the appellant at the scene of crime falls short of the standard required by section 8(1) of the Evidence Act, Cap. 112 Laws of the Federation, 1990. Secondly, that PW5, the DPO submitted at cross-examination that during the course of identification photograph of witnesses identifying suspects were taken but such photographs were not tendered during trial of this case. The condition of fear and apprehension pervading when the crime was committed did not make for proper identification.
There should be corroboration of the evidence of the PW5 as regards identification of the appellant – and the photographs, if tendered could have served the purpose. Failure of the prosecution to tender the photographs is fatal to the prosecution’s case as it is caught by the provision of section 149(d) of the Evidence Act. In support of this issue, the appellant cited the cases of Fatai Dosunmu v. The State (1986) 5 NWLR (Pt.43) 658; Idahosa v. The Queen (1965) NMLR 85 at 88; Adeyemi v. State (1991) 1 NWLR (Pt.l70) 679; Ogunsi v. State (1994) 1 NWLR (Pt.322) 583; Madagwa v. The State (1987) 4 NWLR (Pt.64) 172; Opayemi v. State (1985) 2 NWLR (Pt.5) 101; Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 – 471.
It was the reply of the respondent to the foregoing that the identification evidence adduced by the prosecution was cogent, unassailable, overwhelming, unimpeachable and sufficient to secure the conviction of the appellant. There was abundant evidence from the 1st – 3rd PWs on the issue of identification of the appellant. There was electric light while the robbers were not masked and they spent enough time with these witnesses – which made identification easier. Evidence of one credible witness is enough to ground conviction of an accused. The appellant was taken to the scene after identification so as to confirm the location of the robbery.
It is nowhere confirmed in any court decision that there is a need to tender photograph of the identification parade as an essential evidence to prove an identification parade. Whereas, it was stated in the case of Okosi v. State (1989) 1 NWLR (Pt.100) 642 – that an oral evidence is more superior and pungent than a photograph evidence; while the best evidence of identification of an accused is by the victim of the crime or witness to the crime.
Evidence of PWs 2 – 5, and exhs. C-C3, the extra judicial statements have satisfied the requirements of sections 75, 76(a) and (1b) of the Evidence Act on the law guiding the admissibility of identification parade. The respondent submitted further that the contradiction in the evidence of the prosecution witnesses were not material so as to be fatal to the case of the prosecution. This was supported by the case of Princent v. The State (2003) FWLR (Pt. 141) 1187.
The time lag of nine days between the robbery and the identification parade was not enough to rob witnesses of their impression of the person who attacked them. Sections 177 and 178 of the Evidence Act – do not provide for corroboration of the evidence of identification which is cogent and positive. It is not for the respondent to call evidence for the appellant and prove the case of the defence. He urged that this issue be resolved in favour of the respondent.
It is settled law and therefore trite that for the prosecution to succeed in proof of the offence of armed robbery there must be proof beyond reasonable doubt of the following:
1 That there must be robbery or series of robberies.
2 That the robbery or each robbery was an armed robbery.
3 That the accused was one of those who took part in the armed robbery.
Bozin v. State (1985) 2 NWLR (Pt.8) 465 at 469; Aruna v. The State (1990) 6 NWLR (PU55) 125 at 135; Okosi v. State (1989) 1 NWLR (Pt.200) 642; Nwachukwu v. The State (1985) 3 NWLR (Pt.11) 218; Ani v. State (2003) 11 NWLR (Pt. 83) 142.
There are facts before the court to sustain items (1) and (2) above in that the appellant is not disputing that there was a robbery incident in the house of Emmanuel Fatundimu at Olorunsogo otherwise, called Kalejaiye Street, Ibadan in the early hours of 22nd of October, 1996. Further, during the course of the robbery operation the robbers had encounters with the landlord and some tenants in the house, broke doors, forced their entry into the rooms, assaulted and caused injuries to their victims, took monies from their victims by force or threat of force, in particular, the PW 1 lost out a sum of N5,300 and his clothes, they took from the mother of PW2 a sum of 1,000 and her wristwatch, the 2nd PW was physically and indecently assaulted, an unspecified amount of money was also taken from the mother of PW4, – which was followed by sexually assaulting her.
During the trial, there was evidence that the robbers used offensive weapons such as guns, butt of guns, coca-cola bottles, iron rods, cutlasses and stones on PW1 and PW4. Stones were used to break all the bedroom doors in the house open. The grouse of the appellant was that his defence of innocence was not properly considered, while there was a mistaken identity on his part. His identification with the robbery lacked substance. The court is left to consider whether the identification parade conducted as an outcome of which the appellant was linked with this robbery was proper and it complied with all the norms of an identification parade in respect of a grave offence like robbery. I shall begin to answer these questions by throwing or shedding light on what in the circumstance of the commission of a crime is identification parade and when it is necessary.
Going by a plethora of cases in our law reports, an identification parade is rich in definition. In the case of Archibong v. State (2004) 1 NWLR (Pt.855) pg 488 at 509-510 paragraphs C-D and H-A, it was held that:
“An identification evidence is one tending to show that the person charged with an offence is the same person who committed the offence… Where an identification parade is necessary, then, if the identification evidence is poor, the Judge should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification.
Although an identification parade is not sine qua non to a conviction for a crime alleged, it is essential in the following instances –
(a) where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) where the victim or witness 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.”
It is however noteworthy that it is not in all criminals cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary. Furthermore, where an accused person by his confession has identified himself there would be no need for any further identification parade. Identification parade may take various forms, such as visual identification, voice identification and identification parade. If there is no dispute about the identity and identification of an accused person by a witness, there will be no reason why his evidence alone if believed cannot ground or sustain a conviction, even on a charge of murder.
The evidence of identification can be poor, even though it is given by a number of witnesses – as the witnesses may only have had the opportunity of a glance or a longer observation made in difficult conditions.
It is erroneous in law to impugn the identification of a suspect by a witness merely because the witness does not know the names of the suspect, although, knowing the suspect’s name will strengthen the credibility to such testimony Chukwu v State (1996) 7 NWLR (Pt.463) 686; Khaleel v. State (1997) 8 NWLR (Pt.516) 237; Eyisi v. State (2000) 15 NWLR (Pt.691) 555; Okosi. State (1989) 1 NWLR (Pt.100) 642; Alonge v I.G.P.(1959) SCNLR 516; Onafowokan v. State (1987) 3 NWLR (Pt.61) 538; Otti v. State (1993) 4 NWLR (Pt.290) 675; Adamu v. State (1991) 4 NWLR (Pt.187) 530; Ikemson v. State (1989) 3 NWLR (Pt.100) 455; Ugwumba v. State (1993) 5 NWLR (Pt.296) 660; Anyanwu v. State (1986) 5 NWLR (Pt.43) 612; Ukorah v. State (1977) 4 SC 167.
The proper thing for the police to do is to shield an accused person from members of the public before an identification parade is conducted. In the instant case there was need for an identification parade because the victims did not know the appellant before and their first acquaintance with him was during the commission of the offence. The parade took place after a time lag of nine days after the robbery incident. I must chip in however that in cases depending substantially on evidence of identification of the accused and particularly where the punishment relates to a capital offence, there is need for the court to act with caution where evidence of identity of the accused is based on identification.
There is no known law that evidence in respect of the identity must be subjected to closest scrutiny where the opportunity for a clear and positive identification is good. In this case, the PWs. 1 – 4 had the opportunity to see the appellant as there was electric light available – while the robbers were not masked. I will not agree that the identification was poor as the witnesses only had the opportunity to glance at the accused under difficult conditions or because they were being attacked then. The appellant at the time of the incident went from one room to the other leaching out the same attack on the occupants in the house.
The evidence of the incident was given by four people who were subjected to the same attack and who gave a full oral account of the attack to court. Where such evidence of identification is taken together with other circumstances prevailing on that day which point to the guilt of the accused to the exclusion of every other hypothesis, then the court can convict. The accused not only attacked the victims physically – he sexually assaulted one of the women. By way of analogy, if there is no dispute about the identity and identification of an accused person by a witness, there will be no reason why his evidence alone, if believed, cannot ground or sustain a conviction even on a charge of murder Eyisi v. State (2000) 15 NWLR (Pt. 691) pg 555, Alonge v. I.G.P. (1959) SCNLR pg 516.
The learned trial Judge considered the issue of identification of the appellant on pages 97 – 106 of the record. He considered all the shortcomings and gaps in the process of identification complained of by the appellant. He finally arrived at the conclusion at the last paragraph of page 105 and the first paragraph of page 107 as follows:
“From the cross-examination, the defence failed to expose any error in the observation, recognition and identification of the accused by the prosecution witnesses, whether during the robbery operation or at the identification parade. I do not believe the two accused persons, neither do I agree with the defence that the accused were shown to the witnesses before the identification as alleged or that he was chained or that the 1st accused was mistakenly identified or that the identification parade was improperly conducted. In my view, the prosecution has established the identity of the accused persons beyond doubt and held that the 1st accused took part in the robbery in the early hours of 22nd of October, 1996 in the house of PW 1.”
The evidence in support of the foregoing observation of the learned trial Judge is overwhelming from the records. It is the conclusion of this court that the accused was properly identified with the armed robbery of the 22nd of October, 1996. The appellant raised in his issues the matter of inconsistencies, conflictions or discrepancies in the evidence of the respondent. It is the reply of this court that before any conflict, contradiction or discrepancy in the evidence of the witnesses for the prosecution can be fatal to the prosecution’s case, the conflict or contradiction must be substantial or fundamental to the main issue in question before the trial court.
This is because it is only when the inconsistencies or contradictions are substantial and fundamental to the main issue in question before the trial court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom – we do not have such evidence before us in the record in this appeal. This court agrees with the respondent that the overall oral evidence in support of the identification parade held by the police to identify the appellant is stronger than the production of the photographs to prove the parade.
This issue is therefore resolved in favour of the respondent. Issue No.2 asks whether the conviction of the appellant could stand when the 2nd accused was acquitted. The appellant submitted that the prosecution must prove its case beyond reasonable doubt. Where the defence of the appellant is that of mistaken identity and innocent explanation, it is the duty of the court to consider the defence, no matter how stupid or improbable.
The trial court recognized the need to warn himself of the special regard for caution and the risk of accepting evidence wholly on identification to establish guilt, yet he failed to apply the warning as prescribed in the case of R. v. Turnbull 7 Ors. (1976) 3 All ER pg 549. Failure of the court to warn himself before convicting is fatal to the judgment going by the cases of Mbenu v. State (1988) 3 NWLR (Pt.84) 615; Abudu v. State (1985) 1 NWLR (Pt.1) 55.
The appellant held that having regard to the totality of the evidence and particularly the doubtful credibility of the evidence of the star witness PW 1, the trial Judge should, with the same yardstick with which he weighed the evidence of PW5 – the IPO against the 2nd accused, have found the same evidence against the appellant equally unreliable and unsafe. Abudu v. State (1985) 1 NWLR (Pt. 1) 55 at 65; Shittu Layiwola & 7 Ors. v. The Queen (1959) SCNLR 279; (1959) WRNLR at 195.
The refusal of the trial Judge to accept evidence of PW1 and PW5 against the 2nd accused means the case against the appellant could not have been and was not proved beyond reasonable doubt. The respondent however replied that when there are two accused persons standing trial for the same offence the mere fact that one accused is acquitted does not mean that the 2nd accused will be acquitted particularly where the evidence adduced against them were not similar.
It is the duty of the trial Judge to ensure that while evaluating the totality of evidence against the two accused persons the evidence as it relates to each of the two accused persons must be dispassionately considered. The learned trial Judge understood the position and performed it creditably well. The prosecution was able to prove the case against the appellant beyond reasonable doubt, while it failed to do so in the case of the 2nd accused.
This court holds that on page 103 of the records, the trial court adequately warned himself by holding as from line 1 that:-
“It is trite that in the circumstance of this case, where evidence of identification is to a large extent relied upon to establish the identities of the accused persons, the court should accept the identification exercise with caution and that the court should warn himself of the danger of such identification evidence and attaching weight to it.”
The learned trial Judge there and then made reference to the observation of the Court of Appeal in England in the case of R v. Turnbull 7 Ors. (1976) 3 All ER pg 549 at 557 and the case of Idahosa v. Queen 1965 NMLR pg 85 – before concluding further that:-
“I shall scrutinize the evidence of the identification with care and will appreciate that I have to be sure about accuracy and reliability of the visual identification, before convicting and that there is the special need for caution in believing and relying on the identification evidence as basis for conviction in this case.”
By virtue of section 138 of the Evidence Act, Cap. 112, Laws of the Federation 1990, the commission of a crime by a person must be proved beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The burden of such proof lies on the prosecution and it never shifts. If on the entire evidence, the court is left with no doubt that the offence was committed by the accused person, that burden is discharged and the conviction of the accused person will be upheld even on the evidence of a single witness. If on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed to discharge the onus of proof which the law vests upon it and the prisoner is entitled to an acquittal. Alonge v. I.G.P (1959) SCNLR 576; Fatoyinbo v. A.G., Western Nigeria (1961) WNLR 4; State v. Danjuma (1997) 5 NWLR (Pt. 506) 512.
Any person who commits the offence of robbery with a firearm or any offensive weapon or is in company of any person so armed is liable upon conviction to be sentenced to death. Ogidi v. State (2003) 9 NWLR (Pt. 824) 1.
When the evidence against two or more accused persons in a criminal case is in all material respect the same, and a doubt is resolved in favour of one of the accused persons, the same doubt should be resolved in favour of the other or others. If one is discharged and acquitted, the other or others should also be discharged and acquitted. In this case, the reason for the acquittal of the 2nd accused was failure of the prosecution witnesses to properly identify him with this robbery. The evidence against the appellant – particularly his identification was overwhelming. The evidence of the identification of the 2nd accused could not be held as reliable in the circumstance of this case. The reason for the acquittal of the 2nd accused, going by printed record was his doubtful identification, particularly by none of the witnesses, except PW1, who was a victim in the robbery incident, and investigation as regards his involvement was not satisfactorily carried out by the IPO.
The evidence on which the conviction of the accused person was based came from the 1st – 5th prosecution witnesses. Such evidence against the 2nd accused was not cogent and strong whereas, the opposite was the case as regards the appellant. The evidence relied upon for their conviction by the trial court was not similar vide pages 105-107 of the record. Abudu v. State (1985) 1 NWLR (Pt. 1) 55; Kalu v. State 1988 4 NWLR (Pt.90) 503; Akpan v. State (2002) 12 NWLR (Pt.780) 189 sc. It is trite that in all cases attracting capital punishment, it is incumbent upon the trial court to consider all the defences put up by the accused person, express or implied in the evidence before the court. No matter the level of the defence, whether it is full of figments of imagination, fanciful, bereft with porous lies or doubtful, the court must not be wary to give it the consideration it deserves Ani v. State (2003) 11 NWLR (Pt.830) 142; Njoku v State (1993) 6 NWLR (Pt 299); R v. Barimoh (1943) 9 WACA49.
Finally, the assessment of credibility of a witness is a matter within the province of the trial court as it is only the court that has the advantage of seeing, watching and observing the witness in the witness box. The court also has the liberty and privilege of believing him and accepting his evidence in preference to the evidence adduced by the defence. On the issue of credibility of witnesses the appraisal of evidence and the confidence to be reposed in the testimony of any witness an appellate court cannot, on printed evidence usurp the essential function of the trial court which saw, heard and watched the witnesses testify. An appellate court does not believe or disbelieve evidence. However, if the sole question to be determined by an appellate court is the inference made from admitted or uncontested facts an appellate court can evaluate such evidence. In this case, the 1st – 4th PWs testified on what each of them saw, heard and experienced during the robbery.
The trial court was right in believing the prosecution witnesses and convicting the appellant on their evidence.
Where an appeal revolves around issues of fact and there is nothing on the record to show that the findings of the trial court is erroneous or perverse, it ought not to be disturbed or interfered with by the Court of Appeal. Khaleel v. State (197) 8 NWLR (Pt.516) 237; Sugh v. State (1988) 2 NWLR (Pt.77) 475; Babuga v. State (1996) 7 NWLR (Pt.460) 279; INCAR Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 453; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; Archibong v. State (2004) 1 NWLR (Pt.855) 488.
After a painstaking consideration of the two issues involved in this appeal, this court resolves them in favour of the respondent. There is therefore no apparent reason for this court to interfere with the findings and the decision of the lower court. The appeal therefore lacks merit and it is dismissed accordingly. Judgment of the lower court is hereby affirmed, particularly, the order that the appellant be sentenced to death.
Other Citations: (2004)LCN/1570(CA)