Sunday Ndidi V. The State (2007)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

The appeal here is against the judgment of the Court of Appeal, Benin Judicial Division delivered on the 4th of March 2005 upholding the conviction and sentence of death passed by the High Court of Delta State, Agbor Judicial Division on the 28th of November 2001.

The appellant had been charged before the High Court sitting at Agbor with a three-count charge of conspiracy and armed robbery under sections 1(2)(a) and 4(b) of the Robbery and Firearms (Special Provisions) Decree 1984 as Amended. And the third count is the second charge of armed robbery committed against one Helen Onyeije.

To establish their case, the prosecution called five witnesses while the appellant personally gave evidence but called no witness. PW1, PW2 and PW3 were eye-witnesses called by the prosecution. In its judgment delivered on the 4th of March 2005 aforesaid, the High Court discharged and acquitted the appellant on count 3 but pronounced him as guilty on counts 1 and 2 and accordingly sentenced him to death by hanging.

Being dissatisfied with the judgment, the appellant appealed to the court below (Court of Appeal) after hearing the appeal, the court below, in a considered judgment delivered on the 4th of March 2005, dismissed the said appeal and affirmed the judgment of the court of trial. Again, being dissatisfied with the judgment of the court below, the appellant appealed to this court via a notice of appeal dated 7th April, 2005 with three grounds of appeal incorporated into it.

Distilled from the said three grounds of appeal and set out in the appellant’s brief of argument is only one issue which is in the following terms:

“Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant on the basis of the evidence PW1 only in the circumstances of this matter.”

The respondent identified two issues for determination and as set out in their brief of argument, they are as follows:-

“(1) Whether from the totality of the evidence on record, the lower court was right in affirming the conviction and sentence passed on the appellant for the offences of conspiracy to rob and armed robbery.

(2) Whether the appellant was properly identified as the person involved in the armed robbery committed against Mrs, Comfort Apokueze, PW1.”

When this appeal came to us for argument on the 15th of February 2007, Mr. Alegeh, learned counsel for the appellant referred to and adopted his client’s brief of argument dated 26th October 2005 and while urging that we should allow the appeal, he submitted that PW1’s testimony is not credible to warrant conviction, Mr. Ogbogu, Assistant Director, Ministry of Justice, Delta State for the respondent, also referred to and adopted his client’s brief deemed to have been properly filed on 15th February 2006 and urged that the appeal be dismissed.

I have carefully read the issues formulated by the parties; issue No. 1 on the appellant’s is materially similar to issue No 2 on the respondent’s brief, while issue No. 1 on the respondent’s brief dovetails into the other two issues afore-mentioned. I shall therefore take all of them together.

In his brief of argument, the appellant submitted that the conviction and sentence handed down to him were based solely on the evidence of PW1 – Comfort Apokueze – but went ahead to submit that there was no physical evidence linking him with the crime. The evidence of PW1, it was further argued, was not credible, cogent, compelling nor did it irresistibly point to his guilt. Evidence of identification is of no value as, according to him, it did not meet the required conditionalities laid down by the law: pieces of evidence adduced by PW1 were reviewed to buttress the argument while reliance was placed on the decision in Abudu v. State (1985) 1 NWLR (Pt. 1) 55; Mbenu v. State (1988) 3 NWLR (Pt.84) 615; Abodundu v. The Queen (1959) SCNLR 162 and Onubogu v. State (1974) 9 SC

1. It was also his argument that there being an eye witness to the commission of the crime in this case, question of alibi does not arise; it was conceded while the decision in Ntam v. State (1967) NSCC (Vol.5) 1, (1968) NMLR p. 86 was cited. Though the trial Judge reviewed the evidence in support of alibi as presented by the appellant and rejected same, it was submitted that the rejection of same would not make the evidence of PW1 credible. Referring to the evidence of PW 1 that she used a small lantern and that the alleged armed robbers made use of torchlight to pack her things points conclusively to the fact that there was no light at Abavo at that time of the night – 1 a.m.; judicial notice of the fact that it is always dark at that hour ought to have been taken; he further argued – this, it was finally argued on this point that doubt as to the credibility of the evidence of identification ought to have been created in the mind of the trial Judge; the court below, it was again argued, fell into that serious error in not appreciating the incalculable damage to justice which the evaluation of this crucial piece of evidence had done to the case. It was finally urged that this appeal be allowed, the judgments of the trial court and the court below be set aside while the conviction and sentence of the appellant be quashed.

On issue No.1 in the respondent’s brief, it was submitted that the case against the appellant which was that he committed the offence of armed robbery against PW1 on the 4th of January 2000 was proved beyond reasonable doubt. It was further argued that the findings of the trial Judge that at about 1 a.m. on 4th January 2000, armed robbers assaulted and robbed PW1 in her house were not appealed against; adding that the grounds of appeal were limited to the identification of the appellant by PW1 as one of the armed robbers. These findings can only be set aside by this court if there was an appeal against it: it was further argued while relying on the decision in Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298. It was again contended that credible evidence to sustain the appellant’s conviction was laid before the trial Judge: the trial court and the court below made concurrent findings of fact that there were ample and favourable circumstances from which PW1 could identify the appellant as one of the armed robbers who robbed her on the night of 4/1/2000: arguing further, the respondent submitted that the identification of the appellant by PW1 was at the earliest opportunity, the trial court was therefore right, in law, in believing the testimony of PW1 on the issue of identification citing in support the decision in Abudu v. The State (1985) 1 NWLR (Pt.1) 55. The defence of alibi raised by the appellant, it was argued, would not avail him here in that it was not raised promptly and properly prior to the trial, indeed, it was during the trial that the appellant raised it for the first time: the decision in Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt.763) 512 was relied upon for this submission. It was finally urged that this appeal be dismissed.

A reading of the judgment of the trial court and the court below leaves me in no doubt that the two courts below held the view that the conviction and the sentence of the appellant was predicated on the evidence of PW1 – Comfort Apokueze. The trial court had on the issue of identification held:

“Now, having dealt with these issues, as between the credibility of the PW1 and the accused, the court believes the evidence of PW1 and disbelieves that of the accused person. There was ample opportunity and favourable circumstance from which she could identify the accused person as one of those, who while armed robbed her on the night of 4/1/00. The court accepts as satisfactory her identification of the accused and the circumstances under which she could identify him. The court therefore finds count II of the charge proved beyond reasonable doubt.”

The court below, in its judgment, held in an unequivocal words, that the above findings of the trial court justified the conviction of the appellant solely on the evidence of PW1. The findings of the two courts are, therefore, concurrent. This court (the Supreme Court can only interfere with the concurrent findings if the findings can be shown to be perverse or illegal or that they are a product of improper use of the opportunity of the trial court having heard and watched the witnesses testify. See (1) Sobatan v. The State (1981) 5 SC 75: (2) Oladiran v. The State (1986) 1 NWLR (Pt.14) 266, (1986) 10 SC 165 and (3) Mbenu v. The State (1988) 3 NWLR (Pt.84) 615. I pause to say that I have read the testimonies of PW2 and PW3 both of whom in addition to PW1 gave evidence of identification of the appellant. I am in agreement with the two courts below that the testimonies of these two witnesses (PW2 and PW3) are of no value but I shall examine their testimonies and test them against the testimony of PW1. I shall now reproduce the salient portions of PW 1 upon which the conviction was founded. PW 1 – Comfort Akopueze said inter alia under examination-in-chief: –

“I know the accused person. I know Charles and Helen Onyeije. They are my neighbours. I recall 4.1.00. I was sleeping and around 1 a.m., I heard voices shouting ‘open, open’ my protector was broken and the door too, and some people entered my house. The first person I saw was the accused. He entered my house holding a gun, 3 others followed him …

The accused and I should see he is armed (sic). He asked me to bring out money. He said he would shoot me if I refused. I gave them N4,900 the other ones carried all my clothes…

…the accused said they were going to the next house and that if I made any noise he would come back and shoot me …

At day break I raised alarm and our Community member came around, I reported the matter to the Police. I told the Police that I saw the accused person.”

Under cross-examination she said: –

“I made two statements, one at Abavo and the other one at Agbor. … I knew accused before this incident occurred. It is not true that there was no light in Abavo on the night in question. I told the Police there was light. It is true I told the Police I carried a small lantern. The robbers told me to put the small lamp down and quench it. They used torchlight to pack the things… It is not true that I hate the accused person. It is true that the accused person and I had a quarrel earlier.”

In her statement made on the 27th of January 2000 to the Police as a complainant and which written statement was tendered as exhibit A. she said inter-alia:

“I raised my lantern and saw Sunday Ndidi carrying a gun. They ordered me to bring the lamp down and asked me whether I knew them. I told them that I did not know them. Sunday Ndidi told me to give him money or he would shoot me. I ran to my room and brought N4,900.00 and handed over the money to him because he was following me with gun … Three years ago, the same Sunday Ndidi who brought the other armed robbers came to my house and stole my fowls. The case was reported to the Police at Abavo.”

PW2 – Charles Onyeije in his evidence-in-chief said: –

“I know the accused. I recall 4.1.00. On that day the accused came with his gang to rob me in my house.

They came at about 2 a.m. When I asked who it was, they just shouted ‘open, open’ and forced my door open. The accused was the first to enter my house.

He was armed (sic) with a gun. When I saw him, I forced myself outside the house …..

I was in the bush till daybreak when I went to the house. We raised alarm and people gathered. We narrated our experience and told them the accused was one of the robbers …

They abandoned an axe in my house. I reported the matter to the Police Station and made a statement. I learnt later that the accused was taken to the Police station by his mother. I know Helen Onyeije. She is my wife.”

Under cross-examination, he said:-

“It is not true that there was no electricity on the night in question. I made a statement on 5.1.00. It is not true that I made a statement on 27.1.00.

I have seen the document shown to me.

I have seen my signature. The statement is dated 27.1.00. It is the 2nd statement. The first one was made on 5.1.00.”

PW3 – Helen Onyeije, the wife of PW2 said in her evidence: –

“I know the accused person very well. I remember 4.1.00. at about 2 a.m. on that day some armed robbers came and were making noise at the window. I saw the 1st accused through the window. They broke the door and came into the house. I saw the 1st accused among them. They asked us to lie face down on the floor, which we did. I was later asked to stand up and show them where we kept money. The 1st accused was armed,…

It was when the accused asked me to bring out money that I recognised him as Sunday.”

PW2 made two statements to the Police, the first on 5.1.2000 tendered as exhibit C and the second on 27.1.00 tendered as exhibit B. In exhibit B the statement made to the Police PW2 said inter alia: –

“By the time the first person entered my house, he pointed his gun at me. I tried to know (sic) him and later recognised him to be one Sunday Ndidi and I recognised him, he hit me on the head with his gun. It was Sunday Ndidi that brought other armed robbers to our house on 4.1.2000.”

In exhibit C – the statement she made on 5.1.2000, she said the armed robbers came to attack her at 2300 hours when she was sleeping they were three in number and she claimed to recognise one of them as Sunday Ndidi – the appellant.

In holding that the evidence of PW2 and PW3 was not credible, the trial court said of PW2’s evidence: –

“… in view of his answers to other question (sic) regarding whether or not the accused was masked or wearing a cap, can it be said that he has sufficiently identified the accused as one of the robbers who attacked him and his wife at their home on the date and time material to this charge I think not. If the accused was wearing a mask, how could the witness have identified him. If he was not, how could the witness fail to observe this. In view of this, the court holds that the evidence of identification of the accused by the PW2 is unreliable.”

On the evidence of PW3, particularly on the issue of identification, the trial court, after reviewing same, held:

“It is a well known or notorious fact that it is always pitch dark at 2 a.m. in the morning, unless there is a moon. This witness has not told this court that there was a moon from which light he could identify the accused, even when they were outside his (sic) window or that there was a security light by which light he (sic) could have seen the accused in a group outside the window. He has not told the court that he had a light inside his room by whose light he could identify the accused person at that time of the night. Since she does not know whether the accused was wearing a cap on the day of the incident, coupled with the above circumstances which would make identification of the accused difficult, the court is of the view that the identification of the accused by this witness as one of the robbers who invaded her house on the night in question is unsatisfactory, Having found that the circumstances under which the accused was identified and that the evidence of identification is weak, the court is of the view that the prosecution has not proved count III of the charge against the accused beyond reasonable doubt In the result, he is entitled to a discharge and acquittal on that count and so I hold.”

I cannot fault the above findings of the trial court sequel to the review of the testimonies of PW2 and PW3, As I have said and it is commonly agreed by all the parties that the conviction and sentence of the appellant arc founded on the evidence of identification proffered by PW1. The appellant, has in his brief of argument, attacked the two judgments of the two courts below on the ground that the evidence of identification as given by PW1 was not credible and could therefore not sustain the conviction and sentence handed down on the appellant Generally in criminal cases, the crucial issue is not ordinarily whether or not the offence was committed. More often than not, the controversy always rages over the identification of the person or persons alleged as the actual perpetrators of the offence charged. It follows therefore that identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. To ascribe any value to the evidence of an eye-witness re identification of a criminal, the courts in guarding against cases of mistaken identity must meticulously consider the following issues: –

(1) circumstances in which the eye-witness saw the suspect or defendant.

(2) the length of time the witness saw the subject or defendant

(3) The lighting conditions

(4) The opportunity of close observation.

(5) The previous contacts between the two parties.

Whenever the case of an accused person depends wholly (as in the instant case) or substantially on the correctness of the identification of the accused or defendant which defence alleges to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identification: the locus classicus on the issue of identification is the English case of R v. Turnbull & Ors (1976) 3 A.E.R 549 – a decision of the Court of Appeal (England) Criminal Division presided over by Lord Widgery C.J. and written by him. Suffice it to say that our courts have cited it with approval. The Supreme Court in Ikemson v. The State (1989) 3 NWLR (Pt.110) 455 at page 472 paras. E-G, Karibi-White, J.S.C. (1989) 6 SC (Pt. 5) 114 gave approval to the decision of Lord Widgery C.J. in Turnbull supra when at page 126 it was said: –

“It seems to me that counsel to the appellants was under the impression that identification parade is a sine qua non in all cases where there has been fleeting encounter with the victim even if there is other evidence leading conclusively to the identity of the perpetrators of the offence. I do not think so. I agree with the submission of counsel to the respondent that an identification parade is only essential in the situations enunciated in R. v. Turnbull & Ors. (1976) 3 A.E.R. 549 at 551. These are cases where the victim did not know the accused 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 the features of the accused. In such a situation, a proper identification will take into consideration the description of the accused given to the police shortly after the commission of the offence, the opportunity the victim had for observing the accused, and what features of the accused noted by the victim and communicated to the Police marks him out from other persons.”

In the case at hand, PW1 in her oral testimony said she had known the accused before this incident occurred. It seems to me that the guidelines laid down in R. v. Turnbull (supra) will not apply hook, line and sinker in this case. Her (PW1) evidence, as it relates to the appellant, must be examined in the light of her saying that she recognised the appellant in the early hours of that day, Her evidence must clearly demonstrate acquaintance with the appellant that is, admitting acquaintance with the appellant by certain signs and/or factors. This is because she said she had seen him before the date of the incident. Whereas if her testimony is examined in the light of identification, all one would be doing is to see whether the testimony of PW1 is credible enough to convince the trial Judge that the appellant now standing trial is the same person PW1 saw for the first time on the day of the incident. Recognition therefore presupposes prior knowledge of the appellant before 4.1.00. But identification connotes knowledge of the person of the appellant acquired by PW1 for the first time on the day of the incident; that is 4.1.00.1 must be quick in saying that “recognition” (which translates to evidence of visual observation) is regarded as one of the guidelines laid down in R. v. Turnbull (supra). In Archbold Criminal Pleading, Evidence and Practice (1993) Volume 1 Paragraph 14 – 4 which is a confirmation of what I have said, reads: –

‘The following guidelines which are to be observed by trial Judges when ‘identity’ is an issue, were laid down by the Court of Appeal (England a five-Judge court) in R. v. Turnbull & Ors 63 CR. APP. P.132 at 137 – 140.

[The paragraph, letters and numbers have been added for case of reference]

A. …….

B. …….

C. Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

These guidelines constitute what the Judge must sum up for the Jury in England where jury trial still obtains. Jury trial is no longer in vogue in Nigeria. When it was, it was only limited to Lagos territory. Therefore a trial Judge in Nigeria must not only warn himself but must meticulously examine the evidence proffered to see whether there are any weaknesses capable of endangering or rendering worthless any contention that the accused was sufficiently recognised by the witness. PW1 said the time they came was 1 a.m. The trial Judge, it must be remembered, took a judicial notice that it was always dark at that very early hour of the morning. So visibility would normally be blurred at that time. Under cross-examination, she said it was not true that there was no light in Abavo at that time in question. She claimed she told the Police that there was light and that she also told the Police that she carried a small lantern at that material time. According to her, the robbers ordered her to put the small lantern she was carrying down and to quench it. It was her further evidence that at that time and place, the robbers used their own torchlight to pack her belongings. These pieces of evidence by PW1 go to support the findings of the trial Judge that it was dark at that material time. Visibility was blurred. There was definitely a need for the provision of lighting aid to make everything around to be visible. Also waking up by force at that time of the night, one would not immediately gain consciousness and as such one’s ability to be able to recognise things around one would be considerably reduced. There is no evidence as to the time she woke up from her sleep and the time the appellant appeared to her. It is a great surprise that the trial court did not avert its mind to the above crucial issues and neither were any findings made thereon. Tragically, the court below fell into that grave mistake. The quality of evidence proffered in support of the prosecution’s case that PW1 actually saw the appellant at that material time is very poor; it is not reliable. And the poorer the quality of such pieces of evidence, the greater the danger in convicting on them. Indeed, the quality of evidence at the end of the prosecution’s case on the issue of identity or even recognition of the appellant by PW1 was very low and poor that no reasonable tribunal could be heard to convict on it. I am not unmindful that what is now before us is a concurrent findings of facts by the two courts below and being an appellate court, the apex court for that matter, it is none of our business to ordinarily disturb the findings of facts made by a trial court and affirmed by the intermediate appellate court except in exceptional circumstances (as in the instant case) where the inferences from established facts are clearly wrong or where the findings just do not now or follow from the evidence led. There has been no proper appraisal of the oral testimony of PW1 and of course, there was serious error on the ascription of probative values of the said evidence. The result, in my humble view, is that the evidence of PW1 cannot sustain the conviction and sentence of the appellant. Consequently, the only issue formulated by the appellant is answered in the negative. By the same token, issue No. 2 is answered in the negative. For all have been saying, the totality of the tenuous evidence led by the prosecution which I have reviewed above cannot ground the conviction and sentence of the appellant, therefore issue No. I on the respondent’s brief is answered in the negative.

In the final analysis, it is my judgment that this appeal is meritorious. It is hereby allowed. The judgments of the two courts below are hereby set aside. The conviction and sentence passed on the appellant by the High Court of Delta State sitting at Agbor on the 28th of November 2001 are hereby set aside. The appellant is hereby discharged and acquitted.

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SC.128/2005