Utto V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.
Appellant together with three other persons were alleged to have robbed Esman Fazubazic (PW2) of the sum of N2,000.00 and a Nokia 7250 mobile phone valued at N60,000.00 while armed with a gun. The incident took place at about 8 am on 4th April, 2004 at Pyramid Hotel and Conference Centre, Calabar. PW2 was at the material time, a guest at Pyramid Hotel and occupied room 205. At about 7.30 am on 4th April, 2004, the day of the robbery, PW2 left his hotel room to meet with his workers downstairs and returned to his room after the meeting which lasted approximately twenty minutes. Shortly after, PW2 had a knock on the door and sought to know who was at the door and a voice retorted housekeeper. PW2 opened the door and was confronted by a man wielding a gun.
The man pushed PW2 to the ground and told him to lie on the floor then a second man entered the room and tied PW2’s hands behind his back. Both attackers asked PW2 for money. PW2 told them that he had some money in his pocket the men hurriedly searched PW2’s room for about 5 minutes after which they took PW2 into the bathroom and told him to lie face down on the floor. From the bathroom, PW2 sighted a third man outside the door of his room. As soon as the robbers left, PW2 untied his hands and he immediately ran to the balcony of his room from where he saw his attackers walking out of the hotel premises, he raised an alarm which caught the attention of the hotel security.
On hearing the alarm, the robbers took to their heels but were hotly chased by the hotel security. In the course of the pursuit, PW3 – John Ekereobong Effiong, one of the hotel security staff purportedly heard his colleague, Okoi Arikpo, PW5 call the name of the Appellant. The Appellant was arrested a few days later at Ugep, along with the co-accused persons.
The accused persons were arraigned and tried on an information containing a charge of armed robbery contrary to Sections 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act.
At the trial, the prosecution called 6 (six) witnesses and tendered ten (10) exhibits. In his defence, the Appellant raised the defence of alibi and did not call any witnesses. At the conclusion of the trial, the learned trial Judge in a judgment delivered on 23rd June, 2008 found all the accused persons guilty and sentenced them to death by hanging.
Dissatisfied with the decision of the trial Court, the Appellant appealed to the lower Court via a Notice of Appeal filed on 20th June, 2014 containing five grounds of appeal. The appeal was heard and judgment delivered on 13th May, 2015, whereat the lower Court affirmed the decision of the trial Court and dismissed the appeal.
The Appellant being dissatisfied with the judgment of the lower Court filed a notice of appeal on the 14/7/2015. The Appellant amended brief of argument was filed on the 6/11/2018 while the Respondent’s brief of argument was filed on the 12/1/2019 but was deemed properly filed on 09/05/2019.
The parties adopted and relied on their respective brief of argument at the hearing of the appeal.
From the five (5) grounds of appeal, the following four (4) issues are distilled for determination:
“1. Were the Justices of the Court below right to affirm the trial Court’s finding that Exhibits B and B1, the Appellant’s statement to the police were confessions notwithstanding the Appellant’s vehement denial in the statements that he participated in the armed robbery? (“improper treatment of statements issue”) Ground 1
- In view of the unchallenged evidence of the Appellant that he was at Ugep on the day the armed robbery took place, did alibi not avail the Appellant as a defence in the circumstance. (Alibi issue) Ground 2
- Is this not a proper case for the conduct of an identification parade especially against the backdrop of the conflict in the evidence of the prosecution witnesses regarding the identity of the Appellant? (“Identification evidence issue”) Ground 3
- Whether, on the totality of the evidence adduced at the trial, the Court below was right to confirm that the prosecution proved the guilt of the Appellant beyond reasonable doubt? (“Proof beyond reasonable doubt issue”) Grounds 4 and 5.
The Respondent adopted the issues for determination as raised in the Appellant’s amended brief of argument.
On issue 1, learned counsel for the Appellant submitted that a confession by virtue of Section 28 of the Evidence Act is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime and in other to sustain a conviction, a confession must be free, voluntary, direct and unequivocal and must leave no room for doubt as to the admission of guilt by an accused which in this case neither Exhibit B nor B1 is a confession because both did not directly, positively and unequivocally admit, state or remotely suggest that the Appellant took part in the alleged armed robbery.
It was further submitted that the Appellant admitted that he knew of the plans to rob Pyramid Hotel but vehemently denied taking part in the actual robbery and that cannot be said to be an admission to committing the crime which in this case makes Exhibits B and B1, not a confession.
On issue 2, learned counsel argued that when an accused person raises a defence of alibi, he means that he was elsewhere at the time the offence was committed and since the facts constituting the defence are within the peculiar knowledge of the accused, the evidential burden of proving the defence is on the accused. He added that an accused must raise the defence of alibi promptly and properly and in so doing, the burden of disproving the offence is transferred to the prosecution who is then under the obligation to adduce evidence in proving beyond reasonable doubt that the accused was at the scene of the crime. On this, he relied on OZAKI V. STATE (1990) 1 NWLR (PT. 124) 92, ADEDEJI V. STATE (1971) 1 ALL NLR 75, ANYANWU V. STATE (2012) 16 NWLR (PT. 1326) 221.
While referring to Exhibits B and B1, it was argued that the Appellant raised the defence of alibi at the earliest opportunity as was seen in Exhibit B, the very first statement he made to the police in the aftermath of his arrest and also the Appellant was specific as to his whereabouts which on the day of the robbery he was at a church service.
On issue 3, it was submitted that identification evidence is mainly used to show that a person charged with an offence is the same as the person who committed the offence wherein such evidence must be closely examined and received with caution as shown in the case of ABUDU V. STATE (1985) 1 NWLR (PT. 1) 55, and WAKALA V. STATE (1991) 8 NWLR (PT. 211) 552. He added that PW2 was the victim of the offence and a regular guest at Pyramid Hotel where he claimed he was robbed in his room and then identified the Appellant and two other accused persons as the robbers meanwhile, he admitted that prior to the incident, he did not know the Appellant.
He further submitted that apart from the weaknesses in the evidence of PW2, PW3 and PW5, there are noticeable conflicts in their evidence and this raises serious questions as to the credibility of the alleged identification of the Appellant by PW2 and PW5 as no evidence was adduced by the prosecution to explain the conflicts in the evidence of the witnesses which makes the quality of identification evidence adduced by the prosecution poor.
On issue 4, learned counsel submitted that PW6 of his own volition converted a complaint of housebreaking and stealing into one of armed robbery which from the report made to the police, the incident was not perceived as armed robbery by the complainant, and even if such was the case, a case of armed robbery would have been reported at the first instance.
It was further submitted that the circumstantial evidence used to convict the Appellant is so weak and unconvincing that it seems the Appellant’s conviction was based on mere suspicion rather than hard facts. He added that mere suspicion is not sufficient enough to justify a conviction, and a suspicion however strong cannot take the place of legal proof.
Arguing on issue 1, learned counsel for the Respondent submitted that Exhibits B and B1 are confessional in nature and confession is defined in Section 28 of the Evidence Act 2011 as an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime.
He further stated that the only criteria for assessing a confessional statement is that it must be free, voluntary, and unequivocal as this criteria was met by Exhibit B and B1. Also, the Appellant throughout the trial never mentioned that he was coerced to make the statement which makes the fact that he denied participating in the robbery a non-issue. He added that the Appellant was well vast with the facts of the armed robbery at which point amounts to an admission. On this, he relied on OGUDO V STATE (2011) 18 NWLR (Pt 1278).
On issue 2, it was submitted that the defence of alibi does not avail an accused whose identity is fixed to the scene of the crime by credible witnesses like PW2 and PW5 in their statements vividly identified the Appellant at the scene of the crime on the 4th of April, 2004. He added that when the Prosecution adduces evidence which fixes the presence of the accused to the scene of the crime, this effectively destroys the alibi as he relied on the case of ADETOLA & ORS V. THE STATE (1992) 4 NWLR (Pt 233) 267 and UKWUNNENYI & ANOR V. THE STATE (1989) 3 NSCC 44.
It was further submitted that the alibi raised by the Appellant does not avail him since the police investigated and found it to be false along with the fact that the Appellant was seen at the place and time the armed robbery took place.
While relying on the case of MOHAMMED V STATE (2014) 12 NWLR (PT 1421) 207- 434 and OZAKI V STATE (1990) 1 NWLR (PT 124) 92, learned counsel defined alibi as a plea/defence where an accused person alleges that the time the offence charged was committed he was elsewhere while the onus of raising the defence is on the Appellant to do so timeously with particulars of his whereabouts at the time of the incident to enable the police investigate and confirm his assertions. He added that though the Appellant raised an alibi early, he did not furnish the police with enough particulars to enable them confirm his assertion through their investigation.
On issue 3, learned counsel submitted that the Court below was right when it decided that the Appellant was positively identified by the Prosecution witnesses as one of the armed robbers which was made clear by the testimonies of PW2, PW3, and PW5. He added that the law states that where the identity of the accused is not in issue, there is no need for an identification parade.
It was further submitted that an identification parade should be conducted where the victim’s first acquaintance with the accused was during the commission of the crime which renders the evidence at hand explicit as a result confirms the fact that the Prosecution witnesses (PW3 and PW5) knew the Appellant before the commission of the offence.
Still on evidence adduced by the prosecution witnesses, it was also submitted that PW3s evidence is credible and tangible and suffice as an eye witness account while PW5 in his evidence identified the Appellant at the scene of the crime as person he knew before the date of the incident and even called his name as this corroborates the evidence of PW3 who identified Appellant as one of the robbers he was chasing at the scene of the crime. He added that there is no iota of conflict on the evidence adduced by the prosecution witnesses as each separate statement elucidates what transpired at various time of the incident which when put together gives a clear picture of what happened.
On issue 4, it was contended that the prosecution had proved the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt and evidence gathered during investigation revealed armed robbery which gives the Prosecution liberty to charge for the offence of armed robbery.
It was further contended that there was no iota of suspicion as the Appellant and his cohorts were identified at the scene of crime by three eyewitnesses, two of which had a prior existing relationship with him. He added that the Appellant and his cohorts narrated the events that preceded the armed robbery and the part each of them played as confession is the strongest piece of evidence against an accused, as the trial Court rightly observed.
RESOLUTION OF ISSUES
On issue no. 1, the Appellant challenged the correctness of the lower Court’s decision to affirm the finding of the trial Court to the effect that Exhibits B and B1 (Extra-judicial statement of the Appellant) were confessional in nature despite his denial herein that he did not participate in the armed robbery.
Now, Section 28 of the Evidence Act 2011 provides that:-
“(28) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
Confession under Section 28 of the Evidence Act supra is an admission made at any time by a person charged with, a crime stating or suggesting the inference that he committed the crime. To sustain conviction, the confession therefore must be free, voluntary, direct and positive, whether judicial or extra-judicial, provided the Court believes it is the truth. Therefore, once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. See THE STATE VS USMAN ISAH (Supra).
The duty of the Court is to consider the circumstances under which it was given and to decide what weight to be attached to it.
I have read the judgment of the lower Court with particular reference to its findings on the status of Exhibits B and B1 as a confessional statement. At pages 219 to 220 of the record of appeal, the lower Court stated as follows:-
“The evidence of PW2, PW3 and PW4 established beyond reasonable doubt that the Appellant had the capacity of committing the crime. There is also evidence outside Exhibits B and B1 both direct and circumstantial that shows its contents to be true. PW2 gave evidence that the Appellant knocked at his Hotel room door, at Pyramid Hotel, Calabar. When he opens the door, a gun was pointed at him. This culminated in the robbery of 4th April, 2004.
There is therefore overwhelming evidence from the prosecuting witnesses in corroboration of the Appellant’s statements in Exhibit B and B1. These pieces of corroborative evidence are fully set out in the judgment of the lower trial Court. Therefore, agree with the trial Judge that Exhibit B and B1 by virtue of their contents are confessional statements of the Appellant. On my own part, I have searched assiduously for any possible defence that may be open to the Appellant without success. On the accepted facts of this case, I am satisfied that the trial Court was fully justified in convicting the Appellant based on Exhibit B and B1 as confessional statements on the offence of Armed Robbery. I shall and hereby resolve issue no. 1 against the Appellant.”
To my mind, the above set out portion of the Judgment of the lower Court runs contrary to the provisions of Section 28 of the Evidence Act which categorically defined confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.
The Appellant’s statement as contained in Exhibit B and B1 did not in any way state or suggest that he committed the offence charged. He merely stated how he met some friends discussing about Pyramid hotel.
He denied going to the said hotel with the others on the day of the robbery on 4/4/2004 but that he went to Ugep on 3/4/2004.
This in my view, does not constitute a confession within the meaning of Section 28 and the numerous authorities on the subject.
THE CASE OF GBADAMOSI VS THE STATE (1992) 9 NWLR (PT. 266) 465 also relied on by the Appellant is quite instructive wherein this Court per Uche Omo JSC (now of blessed memory) held inter alia by stating:-
“In his judgment, the learned trial Judge held Exhibit J., which is the statement of the 2nd Appellant to the police to be a confession… What the 2nd Appellant admitted in that statement is being a party to the attempted sale of a stolen car.
That is not the offence for which he was charged. To constitute a confession a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in doing so be clear, precise and unequivocal.”
See also NWEZE VS STATE (2018) 6 NWLR (PT. 1615) 197, where this Court referred to Gbadamosi case with approval in defining the nature of a statement that will constitute a confessional statement.
The lower Court seems to have erred by relying on corroborative evidence of PW2, PW3 and PW4 as a justification to agree with the view of the trial Court that Exhibits B and B1 are confessional statements even in the absence of portion therein admitting the involvement of the Appellant as one of those who went to rob PW2 in Pyramid Hotel on the morning of 4/4/2004.
This misunderstanding about what constitutes a confessional statement is further amplified in the Respondents brief of argument wherein at page 9 paragraph 35, it was submitted that:-
“Elechi JCA, rightly found that the evidence of PW1 stating that the Appellant knocked at his hotel room corroborated Exhibits B and B1. The evidence was disclosed to the police immediately after the incident. PW2 had the time to interact with the Appellant before the armed robbery incidence and during the robbery.”
The above submission can only be relevant where the Appellant actually confessed to robbing, the PW2 on 4/4/2004 in his extra-judicial statement but later denies or retracts the said confession. In that regard, the search for corroborative evidence to ascertain the truth of the confessional statement before relying on it for conviction becomes necessary and not when the Appellant never in Exhibit B and B1 admitted to partaking in the offence charged.
A confessional statement made by an accused person, just like an admission in civil procedure is the strongest evidence of guilt on the part of the accused person. It is even stronger than the evidence of an eye witness because it came from “the horse’s mouth” who is the accused person himself stating that he actually committed the offence charged.
In the instant case, the particulars of the offence was that the Appellant and other accused persons, on the 4th April, 2004 at Pyramid Hotel and conference centre, Calabar, while armed with guns robbed one Esman Fasubazic of the sum of N2,000 and one Nokia handset valued at N60,000. The Appellant never admitted in his statement “Exhibits B and B1” that he participated in any robbery. Confession should be direct and positive and not circumstantial. Even the evidence of PW6, the investigating police officer stated clearly that the Appellant denied in his statement that he was among the robbers. See BASIL AKPA VS THE STATE (2008) 4-5 SC (PT. 11) page 1.
Indeed, a confessional statement makes the work of the police and even the trial Court easy as it reduces the burden of investigation and evaluation of evidence but great caution should be exercised in assessing whether or not the extra-judicial statement of an accused person constitutes a confession especially where grievous offences are involved.
In the instant case, I hold that Exhibits B and B1 do not constitute confessional statements. This issue is therefore resolved against the Respondent.
On issue no. 2, the Appellant’s contention is that he was at Ugep on the day the armed robbery took place at Pyramid Hotel and conference centre, so he could not have been one of the culprits. That is to say that he raised an Alibi in his extra-judicial statement Exhibits B and B1.
The law is that, once an alibi is raised, the burden shifts on the prosecution to investigate the alibi. See OGOALA VS THE STATE (1991) 3 SCNJ 61.
Alibi, as is now firmly established means “somewhere else.” That is to say that the person accused of committing a particular crime was somewhere else when the crime was committed. See OZAKI VS THE STATE (1990) 1 NWLR (PT.124) 92; GACHI VS THE STATE (1965) NWLR 333; SHEHU VS THE STATE (2010) LPELR-3041 (SC) ADIO VS THE STATE (1986) 3 NWLR 714; ADEDEJI VS THE STATE (1971) 1 All NLR 75. OKOSI VS THE STATE (1989) CLRN 29 at 48; OLATINWO VS THE STATE (2013) 8 NWLR (PT. 355) 126.
An accused person who pleads alibi must of necessity furnish sufficient particulars of some.
He must therefore explain his whereabout and those present with him at the material time. He must not raise the defence at large but must give adequate particulars of his whereabout at the time of the commission of the offence to assist the police to make a meaningful investigation of the Alibi. See FABIAN NWATURUOCHA VS THE STATE (2011) 6 NWLR (PT.1242) 170.
However, where the evidence of prosecution witnesses specifically and unequivocally pins down an accused person to the scene of the crime and says that he committed the offence, failure to investigate the Alibi by the police will not result in an acquittal of the accused person. In other words, if the prosecution adduces sufficient evidence to fix the accused at the scene of the crime at the material time, notwithstanding his claim that he was somewhere else, surely his alibi is thereby logically and physically demolished. See MICHAEL HAUSA VS THE STATE (1994) 7-8 SCNJ 144; EMMANUEL EBRI VS THE STATE (2004) 5 SCM. 48.
In his extra-judicial statement, Exhibits B and B1, the Appellant stated that on 3/4/2004, he travelled from Calabar to Ugep and on Sunday 4/4/2004 he attended Church service at winners Chapel Ugep. However, I observe from the record that the Appellant merely stated that he went to Ugep to see his palm fruits and also attended winner’s chapel Church on Sunday 4/4/2004, he did not mention anybody that saw him or was with him in Ugep either on 3/4/2004 in the Church on Sunday 4/4/2004. As earlier stated in this Judgment an accused person must not raise the defence of alibi at large. An accused person relying on an alibi has a duly to let the police know at the earliest opportunity where and when he was at all material times. See UDO AKPAN VS THE STATE (1986) 5 SC 301.
He must give adequate particulars of his whereabouts at the time the offence was committed to assist the police to make meaningful investigation and where they fail to so investigate, it creates an opportunity of acquittal in the absence of superior evidence fixing the accused at the scene of crime. Albeit, the PW6 in his evidence at page 51 of the record testified that to investigate the alibi raised by the Appellant in Exhibits B and B1 he took a statement from the Appellant’s father who stated that the Appellant left the house at the early hours of Sunday 4/4/2004 and not on Saturday 3/4/2004. This definitely weakens the defence of alibi raised by the Appellant to the effect that he left Calabar for Ugep on 3/4/2004.
He testified at page 51 of the record as follows:-
“We brought Godwin to our station and took his statement under caution. Godwin denied the allegation and alleged that he left Calabar for Ugep on Saturday before the crime on Sunday morning.
To investigate the alibi, we took statement from his father. His father told us that his son left house at the early hours at the early hours of Sunday and not Saturday on (Sic) Godwin at (Sic) alleged.”
More devastating to the defence of alibi is the testimony of PW5 which fixed the Appellant at the scene of crime at Pyramid Hotel on the said 4/4/2004. He stated in his evidence at page 48 of the record as follows:-
“On 4th April, 2004, I was on security duty at Pyramid Hotel at the staff gate. There is another gate for visitors. As I was trying to change my clothing I saw first accused coming out of the hotel. He was my friend before the incident I called out to him since but he did not turn forwards men I went outside and called him again. He would still not answer. He started running and I saw other security guards running after him. John Ekwere, Eno tom, Imeobong Udoh and Ronald Efa, all of the security men were running after the first accused.
They asked me if I knew him and I told them he was my friend. They told me that first accused stole from Mr. Esman’s room.
I was taken to Police Station where I told the IPO that first accused was my friend, but that I did not know where he was living.
I used to see first accused along Akai Street, Ikot Ishie where I was living before. When I was working with Bolaji Anani first accused told me he was schooling a college of Education (COE), Akamkpa. I also used to see first accused at Abuja Bus stop where palm wine is sold. I also used to see first accused at Beebabsco Hotel.
On that day, first accused was in a green shirt and milk coloured trouser made a statement to police.”
The fact of the pursuit of the 1st accused with his cohorts from the hotel on the 4/4/2004 and that the PW5 saw the 1st accused and shouted his name in the course of pursuing them was also corroborated by the evidence of PW3 at page 40 of the record.
The conclusion of the matter is that, firstly the alibi raised by the Appellant was investigated by the police who contacted his father and he told them that the Appellant left his house in the morning of 4/4/2004 as against the statement of the Appellant that he left the house for Ugep on 3/4/2004. This punctured his defence of alibi. Secondly, the evidence of PW5 and PW3 fixed the appellant at the scene of crime at Pyramid hotel on the morning of 4/4/2004.
If the prosecution adduces sufficient evidence to fix the accused at the scene of the crime at the natural time, surely, his alibi is deemed logically and physically demolished. Thus, where, as against the defence of alibi raised by an accused person there is a visual identification evidence of the accused by the prosecution witness which the Court believes, such evidence will effectively destroy the defence of alibi as raised. See MICHAEL HAUSA VS THE STATE (Supra) and AFOLALU VS THE STATE (2010) 5-7 SC (PT.11) 93. Consequently, this issue is resolved against the Appellant.
On issue no.3, the Appellant’s complaint is on the need for a proper identification parade given the conflicting evidence of the prosecution witnesses regarding the identity of the Appellant.
In order to ascribe any values to the evidence of an eye witness identification of a criminal, the Court in guarding against cases of mistaken identity must meticulously consider the following issues:-
- Circumstances in which the eyewitness saw the suspect, was it in difficult conditions?
- The length of the time the witness saw the suspect at a glance or longer observation?
- The opportunity of close observation
- Previous contact between the two parties
- The lighting conditions.
See EMMANUEL OCHIBA VS THE STATE (2011) 17 NWLR (pt.1277) 663 and ORE-OFE ADESINA (aka Alhaji) & ANOR VS THE STATE, (2012) SC (PT. 111) 114.
Where the case against an accused person depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the Court must closely examine and receive with caution the evidence alleged before convicting the accused on the correctness of the identification vide ARCHIBONG VS THE STATE (2006) 5 SCNJ 202.
In addressing these issues, the lower Court held at pages 226 to 227 as follows:-
“Also the evidence of PW5 clearly identified the Appellant at the scene of the crime. A look at his evidence will further boost the truth of the matter when said:-
“As I was trying to change my clothing, I saw the 1st accused (Appellant) coming out of the Hotel. I called out to him but he did not turn towards me. He was my friend before the incident. I then went outside and called him again. He would still not answer. He started running and I saw other security guards running after him.”
“This account evidence of PW5 actually and specifically fix the Appellant at the scene of crime and further demolishes the need for any sort of identification parade. So the 3rd ingredient to be proved in an offence of Armed Robbery has been established and that the Appellant took part in the robbery at Pyramid Hotel Calabar on the 4th April, 2004.
This issue no. 3 is hereby resolved against the Appellant. The alleged contradictions of the evidence of PW2, PW3 and PW5 as adumbrated in the Appellant’s brief of argument are not material enough to demolish the case of the prosecution. In addition to that, it is noted that it is not every contradiction in the evidence of the prosecution that is fatal save where such contradiction goes to the substance and materially of a fact or facts in issue in the charge as to raise doubt in the mind of the Court. Unequivocally, such doubt must be resolved in favour of the accused. This is not the case here and the trial Judge duly considered these contradictions before he rightly convicted the Appellant on the basis of the identification evidence given by the PW2 and PW5, this issue 3 is hereby resolved in favour of the Respondent.”
Indeed, the evidence of PW5 was clear and unequivocal with respect to his prior knowledge about the Appellant whom he saw in the hotel that morning and even called out his name but the Appellant did not turn to respond, and at a stage started running out of the hotel and he (the PW5) saw other hotel security guards running after him.
The PW3 also gave strength to the evidence of first knowledge of the Appellant wherein he stated in his evidence at page 40 of the record that:-
“As I was running, I overheard one of our security operatives, Okoi Arikpo shouting the name “Godwin Egbe” (1st accused) as one of those who were running ahead of me. He got on a motorcycle and they rode away.”
What is more, the PW2 who was the victim of the armed robbery in the morning of 4/4/2004 also testified on oath that the Appellant and two others were the persons who attacked him and he had known the 2nd accused person before the incident as a security staff of Pyramid hotel.
The facts as detailed above gives no room for the need to organise an identification parade given the positive recognition of the Appellant by the PW5 who had known him long before the day of the incident.
It is settled principle of criminal jurisprudence that identification parade is not obligatory where there is good and cogent evidence linking the accused person to the crime on the day of the incident. In other words, 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 or where the witnesses knew the accused person or persons.
See OGOALA VS THE STATE (1991) 3 SCNJ 61; OLAYINKA AFOLALU VS THE STATE (2010) 16 NWLR (PT.1220) 5 84.
As was held by this Court in OCHIBA VS THE STATE (2011) 17 NWLR (PT.1277) 663, it is now well established that recognition, or visual spontaneous evidence of identification in most instances is more reliable than an identification parade, and is acceptable to ground a conviction if believed by the Court. On this premise, issue 3 is resolved against the Appellant.
On issue no. 4, which deals with whether the lower Court was right to affirm that there was proof beyond reasonable by the prosecution.
Now the essential ingredients for the offence of armed robbery have been stated by this Court in a host of authorities. I wish to restate them here as follows:-
(1). That these was a robbery
(2). That the robbery was an armed robbery
(3). That the accused person was one of those who robbed.
All of the above must be provided beyond reasonable doubt before a conviction can be sustained and proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. See OLAYINKA AFOLALU VS THE STATE (Supra); FATAI OLAYINKA VS THE STATE (2007) 4 SCNJ 53; CHUKWUKA OGUDO VS THE STATE (2011) 12 SC (PT.1) 71.
A perusal of the record of appeal shows clearly that there is no dispute or uncertainty on whether there was robbery at Pyramid hotel on the 4th day of April, 2004 and that the robbery was an armed robbery. Evidence indeed abound in this regard. The bone of contention is the 3rd ingredient, which is, whether the Appellant herein was one of the armed robbers.
Ordinarily, it will not be out of place to conclude that resolution of issues 2 and 3 answers the question of whether there was proof of the charge of armed robbery against the Appellant but for emphasis, I need state that the evidence PW2, PW3 and PW5 which suffered little or no challenge during cross-examination points clearly to the fact that the Appellant was one of the robbers who attacked the PW2 on 4/4/2004 at Pyramid hotel, Calabar.
Evidence of PW2 is to the effect that after the robbery he was pushed into the toilet before the robbers left his room, but as soon as they left he was able to extricate himself and ran to the balcony of his room where he saw the robbers leaving the gate of the hotel and he shouted for the security men and when the robbers heard his shout they started running and the hotel security men pursued them. He was able to pinpoint the Appellant and the 2nd and 4th accused persons as the persons that attacked him in his hotel room on 4/4/2004.
PW5 was one of the security men who pursued the escaping robbers and in the course of running after them he heard the PW5 (OKOI, ARIKPO) shouting the name of “Godwin Egbe” (first accused) as one of those who were running ahead of him and he got on a motorcycle and they rode away. He further stated under cross-examination that he knew the Appellant before the day of the incident.
The testimony of PW5 is quite clear and unequivocal as to the presence of the Appellant in Pyramid Hotel on the day and time the robbery was carried out and I am inclined to reproduce the relevant portion herein below:-
“On 4th April, 2004, I was on security duty at Pyramid Hotel at the staff gate. There is another gate for visitors. As was trying to change my clothing I saw first accused coming out of the hotel. He was my friend before the incident I called out to him since but he did not turn forwards me. I went outside and called him again. He would still not answer. He started running and I saw other security guards running after him. John Ekwere, Eno tom, Imeobong Udoh and Ronald Efa, all of the security men were running after first accused.
They asked me if I knew him and I told them he was my friend. They told me that the first accused stole from Mr. Esman’s room.
I was taken to Police Station where I told the IPO that first accused was my friend, but that I did not know where he was living.
I used to see first accused along Akai Street. Ikot Ishie where I was living before. When I was working with Bolaji Anani first accused told me he was schooling a college of Education (COE), Akamkpa. I also used to see first accused at Abuja Bus stop where palm wine is sold. I also used to see first accused at Beebobsco Hotel.
On that day, first accused was in a green shirt and milk coloured trouser made a statement to police.”
From the above set out testimony of the PW5, it is glaring that he did not only see the Appellant at the scene of crime, he knew him before that day as a friend with whom he worked together at Bolaji Anani compound.
He even described clearly the type of clothes worn by the Appellant on that fateful day.
In order for a trial Court to determine whether the legal duty imposed on the prosecution has been duly discharged, the trial Court must consider the totality of the evidence before the Court after which the Court determines the issues as to whether or not the case against the accused person was made out or established beyond reasonable doubt. See ORJI VS THE STATE (2008) 3-4 SC 198.
From the evidence adduced by the prosecution as contained in the record of appeal, I am of the view that the prosecution proved its case against the Appellant beyond reasonable doubt and I have no cause to disturb the decision of the lower Court. This issue is also resolved against the Appellant.
On the whole, notwithstanding the resolution of issue one in favour of the Appellant, I hold that this appeal lacks merit and it is hereby dismissed.
The judgment of the Court of Appeal, Calabar Division delivered on the 13th day of May, 2015 is hereby affirmed.