IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 17th day of January, 2014
CA/AK/66C/2011
BETWEEN
ALABA OLAGUNJU ............ Appellant
V.
THE STATE ........................................ Respondent
REPRESENTATION
AWONIYI A. ALABI, ESQ. for Appellant
ADEWALE AFOLABI, Esq. Attorney General & Commissioner for Justice, Osun State appearing with DR. J. O. ANWO, Senior Special Assistant, TIJANI ADEKILEKUN, Assistant Chief State Counsel, Ministry of Justice, Osun State, O. A. APESO (Mrs.) (Principal State Counsel); and IDAYAT ALARAPE (Miss), State Counsel, Ministry of Justice, Osun State for Respondent
MAIN JUDGMENT
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Falola J. of the Osun State High Court sitting at Osogbo and delivered 29th September, 2010.
The appellant as 2nd accused, on a four count amended charge dated and filed 30th December, 2009, stood trial before the trial court alongside his co-accused for the offences of conspiracy and armed robbery contrary respectively to sections 6(b) and 1(1) and 2(a) of the Robbery and Firearms (Special Provision) Act. Cap. R11, Laws of the Federation of Nigeria, 2004.
In doing their case the prosecution called five witnesses and tendered exhibits marked A-A3, B, C1-C3, D, E, F, G, H and J respectively.
On the side of the defence, the appellant alone testified for it. At the close of hearing the learned trial Judge ordered counsel on both sides to file written addresses. In a considered judgment delivered 29th September, 2010, the appellant was found guilty on each of the four count charge and was convicted on all the counts and sentenced to death by hanging.
Being dissatisfied with the judgment the appellant has now appealed to this court vide Notice of Appeal dated 8th October, 2010 and filed 15th October, 2010 containing two grounds of appeal and from which he has formulated two issues for determination of the appeal. The issues are:
1) Whether the offences of conspiracy and armed robbery were proved against the appellant beyond reasonable doubt. (Ground 1)
2) Whether the finding of the learned trial Judge that the appellant was one of the persons who committed the offence of armed robbery was justified in law?
The learned counsel for the respondent submitted to the above issues as distilled by the appellant and thus the appeal shall be determined based on the foregoing issues.
In arguing issue (1) one, the learned counsel for the appellant submitted that by virtue of sections 6(b), 1(i) and 2(a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria, 2004, the prosecution was expected to establish the meeting of minds of the conspirators to commit the armed robbery complained of in this case. Relying on Abacha vs. State (2003) 3 ACLR 333 at page 389, para. 15, counsel argued that there is nothing in the evidence of all the five (5) prosecution witnesses nor in the exhibits tendered, to prove any agreement by the appellant and the 1st accused person to commit the offence charged herein. He said that the best evidence is usually obtained from one of the conspirators or from inferences. Counsel argued on that there is no evidence of conspiracy from the statements of both the 1st accused and the appellant and that both of them denied knowing each other until they met at the Police Station in respect of this case.
On the armed robbery aspect of the charge, the learned counsel for the appellant contended that contrary to the decision of the learned trial Judge, the prosecution failed to prove the offences of armed robbery against the appellant. That none of the prosecution witnesses or a combination of them was able to prove that there was a robbery or series of robberies. Counsel relied upon the authorities of Nwachukwu vs. The State (1985) 3 NWLR (pt. 11) C. A. 218 at 224 para. G; and Emenogor vs. The State (2010) All FWLR (pt.511) C. A. 884, 918 paras. A-B.
Further in his contention the counsel said that if the appellant was the offender and he was the one who made away with the day's sales proceed of N83,790 and the sum of N60 (in N20 denomination) was found at the scene of the crime inside a grey coloured polythene bag i.e. Exhibit D on the following day but the N83, 790 was not found, then the reasonable inferences that could be drawn therefrom are:
a. It was either that the appellant was not the alleged robber, or
b. that the story of the alleged armed robbery was cooked up, or better still,
c. that the alleged actual robbers were never arrested.
Counsel opined that whichever inference one draws, the only reasonable conclusion is that there are doubts in the account of the prosecution's case and such doubts should necessarily be resolved in favour of the appellant. See Clerk vs. The State (2007) 5 ACLR 100, 105, lines 5-10.
The learned counsel also submitted that where two accused persons were charged before a court and one was released based on the element of doubt, the other accused person should also be freed. For this principle he cited the authority of Bolanle vs. The State (2010) 4 WRN 16, 29 ratio 1, page 33, lines 30-40.
Furthermore in his argument, the learned counsel submitted that heavy weather was made of inconsistencies in the evidence of the appellant to the effect that he said that the amount actually recovered from him was N6,000 whereas he had earlier said in his extra-judicial statement (Exhibit H) that the sum of N900 was found on him when:
(1) the appellant denied making the statement (Exhibit H) because he said he volunteered his statement in Yoruba language and he denied that the denominations of the money found on him after his arrest were N500 and N200.
(2) He denied being the owner of a pair of sunglasses (Exhibit E) said to have been found inside a black cellophane bag (Exhibit B).
He even denied making the statement credited to him since he volunteered his statement in Yoruba language but the prosecution decided to tender only English version for reasons best known to them. (Page 87 of the record).
(3) That the appellant denied being the owner of the dane gun (Exhibit J).
(a) He said four (4) persons were arrested in the mist of the crowd on the day of the incident and only he the appellant and the 1st accused were eventually charged to court while the two others were let go. (See generally page 87 of the record).
It was the submission of the learned counsel for the appellant that a combination of the above facts deserved more self-warning on the part of the learned trial Judge than the issue of how much was recovered from the person of the appellant upon his arrest. The learned trial Judge should have been interested in why the prosecution decided to keep away the Yoruba version of the appellant's extra-judicial statement, if they had nothing to hide.
Counsel went on to submit that the normal practice is to obtain the statement of a suspect who cannot be said to be literate, in his native language first and then translate same to English and to tender both at the trial. He went further to submit that it is unsafe to assume, as both the prosecution and the learned trial Judge appeared to have done that simply because the appellant said that he read up to primary six leaving certificate, then he is literate. This assumption according to the counsel is rather unconscionable in this age of clear apparent fall in the standard of education when even some self acclaimed university graduates find it difficult to defend their so-called certificates by their output. If the prosecution had tendered the Yoruba version of the appellant's extra-judicial statement the issue of how much the police actually recovered from the appellant would have been settled. He argued that as it is there are still doubts on the case of the prosecution and same should be resolved in favour of the appellant. He further argued that if the appellant was sufficiently literate why was he not allowed to write his statement himself. See pages 80, last paragraph and 81, 1st paragraph of the record.
Learned counsel went on with his contention that from the totality of the evidence of all the prosecution witnesses, it has not been proved that:
1. The appellant was armed with a firearm or offensive weapon, or
2. That he was in company of any person so armed. Hence, the prosecution failed woefully to prove the offences as contained in counts 2, 3 and 4.
The learned counsel also contended that there was no proper identification of the appellant. That though the PW3 claimed to have seen the appellant at the petrol station, but the appellant was not arrested at the petrol station (scene of the crime) but rather in the midst of the crowd. Yet, when the appellant was to be identified it was at the police station where the appellant and the 1st accused person (who never knew each other before) were put side by side, with another lady and man who were not charged and when the PW1, PW2 and PW3 got to the police station, they asked: where are the armed robbers? And the police pointed at the appellant and others as the "armed robbers!"
Counsel opined that that was a mockery of how identification should be done. While placing reliance on the authority of Emenogor vs. State (2010) All FWLR (511) C. A. 884 at page 918, paras. A-B, the learned counsel submitted that the prosecution's evidence is neither cogent nor compelling, nor even credible, thus the learned trial Judge was in error to have convicted the appellant on it. See further section 138 (1) and (2) of the Evidence Act, 2004, and Onafowokan vs. State (2008) 6 ACLR 461 at page 471, para. 5.
In further submission the learned counsel for the appellant said that the appellant's evidence in his own defence is substantially unassailable and the prosecution could not discredit it under cross-examination and with doubts having been cast on the prosecution's case, such doubts should be resolved in favour of the appellant and therefore he is entitled to an acquittal. While referring to Shekete vs. Nigerian Airforce (2000) 2 CLRN 290, 305 paras. D, 309 paras. G-H., and Akogwu v. The State (2000) 2 CLRN 27, 39 paras. D-F; and R vs. Lawrence (1932) 11 NLR. 6, counsel urged on us to so hold.
In reaction to issue 1 (one), the learned counsel for the respondent submitted that the essential ingredient of the offence of conspiracy which the prosecution was expected to prove was as stated in Abacha v. The State (supra) at 389, para. 15 which provides for ".....the meeting of the mind of the conspirators......." This meeting of mind as contended is hardly capable of direct proof but must be inferred from certain criminal acts of the parties and it is the duty of the court to ascertain as best it could the evidence of the complicity of any of those charged with the offence. Counsel submitted that it is not important to prove that the conspirators know each other before it can be held that prosecutor had succeeded in discharging its burden of proof as far as the offence of conspiracy is concerned. He relied on Bello vs. The State (2010) 12 (Pt. 2) SCM, page 52, paragraph C where it was held that:
"The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreement can be inferred by what each person does, or does not do in furtherance of the offence of conspiracy."
Regarding the counts on armed robbery, the learned counsel for the respondent submitted that under sections 1(i) and 2(a) of the Robbery and Firearms Act, Laws of the Federation of Nigeria, 2004, that the prosecution successfully proved the three ingredients of armed robbery namely:
1. That there was robbery or series of robberies;
2. That the robbers were armed with firearms or any offensive weapon;
3. That the robber was in the company of any person so armed.
See Olayinka v. The State (2007) 8 SCM 193 at 208; and Ikemson vs. The State (1998) 1 ACLR 80 at 103.
Finally on issue one, the learned counsel for the respondent submitted that the trial Court acted correctly to have acted on the clear and cogent testimonies of all the prosecution witnesses in holding that the prosecution successfully and effectively proved the three ingredients of robbery against the appellant.
RESOLUTION OF ISSUE (1) ONE
Now, in dealing with the offence of conspiracy, the court ought to satisfy itself that there was a meeting of the mind of the conspirators to commit the offence charged. Being that the envisaged meeting of the minds is more often than not shrouded in secrecy the best evidence is usually from one of the conspirators or from the actus reus.
In the instant case the PW2 at the trial court identified the two accused persons which included the appellant as the two people who burst in on them at their petrol station on the day of the incident. She said:
"I can see the people standing in the dock. I know the two of them well. On the 4th of November, 2008, they came to our Petrol Station at night around 9.00 p.m. They just burst in. We were in the office that time at the Petrol Station. We have counted the sales proceeds from the day- N83, 790.00.... The two accused just burst into the office. (The witness identified the two accused as those who attacked them that night). As they came they said we should give them their own share of the money..... They now brought out gun from a nylon bag. Indeed the second accused was the one who brought out the gun. His name is Alaba Olagunju-he brought out the gun from a nylon bag."
The PW3 on her part testified as follows:
"I know the two accused persons. I was at the AA Petrol Station, Okefia. I was there with PW2. We had finished the day's sales. We sat in the office and started to count the day's sales money.... The total sum realized was N83,790.00. We had packed the money and tied it with the hope of keeping it inside. Suddenly we saw two men who burst in-(the two accused identified as the two men that forced their way into the office) with a nylon in their hand...... and asked us to give them their share. We started to argue with them, but suddenly, the second accused Alaba Olagunju drew out a gun from the nylon bag...." See page 62 of the record.
From the foregoing testimonies of the PW2 and PW3 it is not in doubt that the appellant and the 1st accused were acting out in concert their pre-meditated act. Both of them burst in on PW2 and PW3 at the Petrol Station on the date in issue. In furtherance of their agreement, the appellant and the 1st accused went on to demand for the proceeds realized from the day's sales. When they saw that the PW2 and PW3 were arguing with them they followed their said demand by pulling out the dane gun which was admitted before the trial court as Exhibit J. As far as I can infer from the circumstances of their acts at the scene, it is obvious to me that the appellant and his co-accused did not burst into the filling station accidentally at the time. They had both set out well agreed and prepared to commit an unlawful act. Their acts at the scene were acts done and aimed at achieving their common purpose which was to commit armed robbery. See also the authorities of Alatise vs. The State (2012) LPELR-9459 (CA); and Aje vs. The State (2006) 8 NWLR (982) 345 at 363. The denial by both the appellant and the 1st accused that they did not know each other until they met at the police station holds no water in the circumstance. This is even more so because the Supreme Court in Abacha vs. The State (supra) held thus:
"The overt act of omission, which evidence conspiracy is the actus reus and the actus reus of each and every conspiracy must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators like those who murdered Julius Caesar were seen together coming out of the same place at the same time and know each other. See R. vs. Meyrick Ribuff (1929) 21 C. A. R. 94."
Again in Kaza vs. The State (2008) 5 SCM 70, 104 it was held that:
"In the offence of conspiracy, the mens rea is not easy to locate as it is mostly, if not invariably, buried in secrecy. And so, the actus reus of the offence which is easier to locate can draw the mens rea to the open and make it possible for the court to find inculpatory evidence."
Indeed and I so hold, the acts of both the appellant and the 1st accused when they burst in on the PW2 and PW3 at the petrol station on the night of the incident brought to the fore the mens rea of their conspiracy to commit a crime. There was therefore a conspiratorial agreement by them to commit crime.
Regarding the offence of armed robbery and whether it was proved, section 1(i) and 2(a) of the Robbery and Firearms (Special provision) Act, Cap. R11, Laws of the Federation of Nigeria, 2004 provides that for armed robbery offence to be successfully established it must be proved:
i. That there was robbery or series of robberies;
ii. That the robbers were armed with firearms or an offensive weapon;
iii. That the accused while with the arms participated in the robbery.
See also Okosi vs. AG Bendel State (1989) 1 NWLR (pt. 100) 642; Alabi vs. State (1993) 7 NWLR (Pt. 307) 511; and Oseni vs. The State (2012) LPELR-7833 (SC).
The PW2 and PW3 whose evidence material to the proof of the robbery incident has earlier been reproduced in this judgment, gave eye witness account of what transpired at the scene. Their said evidence disclosed that they were rendered powerless at gun point consequent upon which they were dispossessed of the sum of N83, 790 (Eighty Three Thousand, Seven Hundred and Ninety Naira) being proceeds of the sales they made that day as well as the sum of N900.00 (Nine Hundred Naira) which their boss the PW1 gave to them as taxi fare. The PW1 in his evidence lent credence to this fact when he testified thus:
"I gave N500.00 to Kike and N400.00 to Blessing. The five hundred is a single currency, but the N400.00 is 2 currencies of N200.00 a piece...."
This tallies with Exhibit A1-A3 being part of the sum of money recovered from the appellant's pocket.
When the appellant and the 1st accused burst into the petrol station and demanded that the proceeds from the day's sales be handed over to them, the two attendants PW2 and PW3 resisted. However, they were rendered powerless when their assailants produced a gun from the polythene bag (Exhibit D) which the appellant had in his hand and he used same to hit the PW3 on her left arm. This caused her to lose her strength and she let go of the appellant who at the time had collected the money and put same in the polythene bag (Exhibit D). PW2 on her part and in the course of their struggle was equally injured with the gun on her right fourth finger. See pages 58-65 of the record. When PW3 mustered courage again she held on to the shirt of the 1st accused but he immediately yanked it off himself as they both made for their escape.
Although the learned counsel for the appellant is leaning on the fact that whereas the PW2 and PW3 claimed that they were robbed of the sum of N83,790.00 being proceed from their sales for that day and their transportation fare of N900.00 and yet that only N900.00 was allegedly recovered from the appellant. Counsel also pointed out that the cellophane bag (Exhibit B) which the PW5 claimed to have recovered from the scene where the appellant was arrested and which contained the sum of N60.00 in N20.00 denomination (Exhibit C1-C3), was the same bag that was said to contain the N83,790.00 thus raising a question as to the where about of the said sum of N83,790.00. To my mind the said sum of N83, 790.00 which I believe was also removed in the course of the robbery may seem to be at large, yet that does not remove from the fact that the PW2 and PW3 were robbed with the force of firearm (Exhibit J). Anything could have happened to part of the money in the course of the attempt by the appellant and his co-accused to escape arrest. The unaccounted part of the money robbed off the PW2 and PW3 has not in any way affected the clear, cogent and compelling inculpating evidence of the prosecution in this case.
The PW1 and PW4 on their part corroborated the evidence of the PW2 and PW3 in every material respect. Though he was not present at the scene at the time of the incident, yet the PW1 confirmed that when he was alerted about the incident and he rushed back to his petrol station he noticed that money had been removed from where they keep it. He also testified that he saw the ash coloured shirt (Exhibit F) on the ground at the scene of the incident which has already been established to belong to the 1st accused.
Undoubtedly the prosecution effectively and successfully proved the three ingredients of armed robbery against the appellant. Accordingly issue one is resolved in favour of the State and against the appellant.
This takes me to issue two which is whether the finding of the learned trial Judge that the appellant was one of the persons who committed the offence of armed robbery. The issue derives from Ground 2 of the grounds of appeal upon which the learned counsel for the appellant submitted that the finding of the learned trial Judge thereon was not justified in law. He adopted his submissions on issue nos. one as part of his argument herein.
Furthermore, the learned counsel submitted that the basis of the finding of the learned trial Judge that the appellant was one of those who committed the offences was based largely on circumstantial evidence. He contended that in the instant case, it cannot be said that from the totality of the evidence adduced before the trial court that the circumstantial evidence against the appellant is cogent and compelling as there are coexisting circumstances which had weakened or destroyed the so-called circumstantial evidence against him such as:
i. The fact that the appellant was not arrested at the scene of crime but in the midst of a crowd;
ii. The facts that 4 (four) persons were initially randomly arrested before the prosecution settled for only two for trial;
iii. The facts that the appellant was alleged to have robbed the victims of the sum of N83, 790.00 but the said sum was not recovered from the person of the appellant even though he was alleged to have been arrested immediately after the alleged armed robbery incidents.
iv. The appellant did not make any confessional statement, and
v. The appellant said he gave his statement to the police in Yoruba which the police confirmed, yet the police, for the reasons best known to them, recorded the statement in English language.
Counsel argued that all the above pieces of damaging missing links in the evidence of prosecution had cumulatively weakened and destroyed the circumstantial evidence relied upon by the prosecution, hence the appellant's conviction cannot stand and he urged on us to so hold.
In reaction to issue 2 (two) the learned counsel for the respondent submitted that the finding of the learned trial Judge herein was justified in law for the singular reason that the evidence relied on in reaching the decision was a direct one; the eye witnesses account of PW2 and PW3 and to a large extent that of "PW2" (sic). Counsel recounted the authority of Ahmed vs. State [2003] 3 ACLR 145, 159 para. 30, where the apex court made a distinction between direct evidence and circumstantial evidence. Counsel further referred to section 6 of the Evidence Act, Laws of the Federation of Nigeria, 2004.
Learned counsel for the respondent concluded that because the PW2 was present right from the time of the armed robbery incidence to the time when the appellant was arrested she positively identified the appellant; hence rendering any identification parade unnecessary. He referred to the case of Ibrahim vs. The State (2003) 3 ACLR 474 at 486.
RESOLUTION OF ISSUE 2 (TWO)
Now, pursuant to section 6 of the Evidence Act (supra):
"Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and or such other facts as are hereinafter declared to be relevant and of no others; provided that:
a) The court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and
b) This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force"
"Contrasted with circumstantial evidence, direct evidence is evidence of fact in issue. When it is testimonial evidence, it is evidence of the witness who claims personal knowledge of the fact he testified about. Circumstantial evidence on the other hand is evidence of relevant fact from which the existence or nonexistence of facts in issue may be inferred."
From the foregoing authorities it is clear that evidence may be given of either facts in issue or relevant facts from which the existence or otherwise of the fact in issue can be inferred.
In the instant case, it is the direct evidence of the PW2 and PW3, even at the risk of repetition that they both chased after the appellant as he ran out of their office which was the scene of the armed robbery. PW2 said that the one she was chasing after ran towards the Government House Annex and so she took a motorcycle and continued the chase. PW2 went on to say as follows:
"When we got to PHCN office at Okefia, I got him and asked people to help me arrest him. He attempted to deny but I identified him, because there was light where the incident happened at our office. I arrested Alaba Olagunju, the second accused. I gripped him. People searched him and discovered gun by the waist of his trousers. Those who helped me to arrest him include policeman and civilian. They then asked us to phone to the Police Station. But I still hold unto him. The police took us in their vehicle and drove us to the Police Station."
The PW4 a Police Corporal with the State CID gave direct evidence as to how he was on duty that day at Okefia Roundabout with some other policemen. He said that when he noticed some members of the public running after the appellant and shouting thief! thief!, he immediately jumped down from his vehicle and joined in the pursuit. Before they could get to old NEPA Office they got the appellant arrested. There and then he searched and recovered from the pocket of the appellant a short locally made pistol. The girl that was robbed also identified the appellant. Subsequently the PW4 took them to the State CID and handed the appellant over to the Officer on duty.
The sequence of events as enumerated above creates an unbroken chain of actions which are linked with the commission of the offences charged. It is therefore immaterial whether the appellant was arrested within the precincts of the Petrol Station where the robbery took place or in the midst of the crowd who were chasing after him when he tried to escape from the scene of robbery. That he was finally arrested at the old NEPA Office is a relevant fact being that it is so very closely related to or linked with the fact in issue. Evidence of this relevant fact is clearly the direct evidence of the PW2, PW3 and PW4 who testified from their own personal knowledge of the fact. To my mind, the pieces of evidence as given by them are highly cogent, compelling and unequivocal that the learned Judge of the trial court took the best step in the circumstance which was to convict the appellant as one of the two who committed the offences charged.
Furthermore, from the evidence available to the court, the PW2 and PW3 were present being the victims of the robbery right from when the robbery took place till the appellant was arrested. PW2 and the PW3 not only saw eye to eye with their assailants at the time of the robbery but they also engaged in a squabble to a certain extent with them. With all the close brush and contact with the robbers their images became registered in the memory and psyche of the victims. Again the chain of events was continuous and unbroken. Formal identification parade as conducted by the police to my mind was therefore a surplusage and as such unnecessary given that the appellant was positively identified by the PW2. In the Supreme Court's case of Ibrahim vs. The State (supra) it was held that:
"...... where the accused person was caught in trying to escape during the commission of the offence and the victim of the crime was present and positively identified the accused, there will be no need for the formality of holding an identification parade...... Thus not in all cases is identification parade necessary and once the victim has immediately after the commission of the offence seen the accused or arrest him or joins in any way in identifying him, it will be superfluous to line people up for identification."
See also Ukpabi vs. The state (2004) 11 NWLR (Pt. 884) 439; Abubakar Ibrahim vs. The State (1991) 1 NWLR (Pt. 18b) 399; and Bolanle v. State (2005) 7 NWLR (Pt. 925) 431 at 453 paras. G-H.Again the fact that four persons were initially randomly arrested before the prosecution settled for only two for the trial, has not in any way watered down the direct, cogent and credible evidence of the prosecution. As rightly submitted by the learned counsel for the respondent, the essence of arresting many people at the scene of a crime is so that the wheat can be sifted from the chaff. The police in the course of investigation are authorized by law to arrest persons even on mere suspicion of having committed a crime. On conclusion of the investigation only those who they feel have a question to answer are then charged to court. To my mind, for as long as justice is met at the end of the day it does not matter how many persons are arrested by the police on mere but genuine suspicion of their having committed a crime. Hence, the police acted within the law when at the initial stage they randomly arrested four persons but ended up charging only two of them to court.
Again, that the appellant made or did not make a confessional statement is neither here nor there. Irrespective of the statement (Exhibit H) made by the appellant, the respondent was still able to discharge the burden of proof as laid on it by law. It is in evidence that the appellant is not an illiterate. According to the PW5 the appellant can read and write. The appellant may have given his statement in Yoruba, it was nevertheless recorded for him in English language and he signed same. I have no cause to believe that the appellant did not understand what he signed, more so as no evidence was led to show that he suffered a miscarriage of justice as a result of Exhibit H as it were. The said Exhibit H was duly admitted and acted upon by the learned trial Judge.
Thus and in reaction to issue 2 (two) which is whether the finding of the learned trial Judge that the appellant was one of the persons who committed the offence of armed robbery was justified in law; I am positive that it was justified.
I dare not end this judgment without commending the extra ordinary courage of both the PW2 and the PW3 who in the face of threat to their lives stood their ground all through their ordeal. I want to believe that their boss the PW1 is appreciative of them.
The end result of all that I have said above is that the respondent effectively proved the offence of conspiracy and armed robbery as brought against the appellant beyond reasonable doubt. The appeal therefore lacks merit. It is refused and dismissed while the conviction and sentence of Falola J. sitting at Osun State High Court delivered Wednesday, 29th September, 2010 is hereby affirmed.
SOTONYE DENTON-WEST, J.C.A.:
I have read in advance the judgment delivered by my learned brother Cordelia Ifeoma Jombo-Ofo, JCA and I agree with the reasons and conclusions adduced.
By way of emphasis, the identification of the offender in criminal trials is of paramount importance and often forms a fact in issue in the case. On the shoulder of the prosecution rests the burden of proving beyond reasonable doubt that the accused committed the offence with which he is charged and if there exists reasonable doubt as to the identity of the offender, the accused must be acquitted. Therefore any evidence that establishes the identity of the offender becomes relevant and admissible. See: Section 7 (c) of Evidence Act, 2011.
There are three ways to establish the identity of the offender in a criminal trial.
(a) Visual identification of the offender by the victim or a witness to the offence.
(b) Circumstantial evidence which proves the identity of the offender.
(c) By the opinion of an expert who was real or documentary evidence to prove the identity of the offender.
Under (a) i.e. visual identification, we have:
- Dock identification
- Spontaneous identification
- Identification in police custody; and
- Use of photographs.
The spontaneous identification of the offender by the victim or a witness to the offence (as in this instant case) is a satisfactory and acceptable mode of visual identification and in such cases it is not necessary to conduct an identification parade.
It is pertinent to note that for the spontaneous recognition of the offender by a victim or a witness to be acceptable it must be established that there was adequate opportunity under satisfactory condition to observe the physical features of the person such that subsequent spontaneous recognition was possible. In this instant case PW2 and PW3 were present right from when the robbery took place; they did not only see eye to eye with their assailants at the time of the robbery but even engaged them in a squabble, chase and subsequent arrest.
Agreeably, my learned brother has dealt succinctly with the issues but I would however seek for the conviction and the attendant death sentence be commuted to a life imprisonment, this is in line with global trend of events which has seen to the abolishment of the death sentence statutes in many climes. Human life is valuable, so valuable that even the most murderous in my humble opinion should not be deprived of the value of their lives, moreso it is enshrined in the Universal Declaration of Human Right that everyone has an alienable human right to life, even those who commit murder; sentencing a person to death and executing them however violates that right. According to Archbishop Desmond Tutu of South Africa "To take a life when a life has been lost is revenge, it is not justice. I therefore order for a committal to a life imprisonment.
MOJEED ADEKUNLE OWOADE, J.C.A.:
I read in draft the judgment delivered by my learned brother Ifeoma Jombo Ofo, JCA. I agree with the reasoning and conclusion. I also find that the appeal lacks merit. Accordingly the appeal is dismissed and the conviction and sentence of the Appellant is affirmed.