In the Supreme Court of Nigeria Holden at Abuja
Friday, July 1, 2016
Suleiman Galadima; Mary Ukaego Peter-Odili; Kumai Bayang Aka’ahs; Kudirat Motonmori Olatokunbo Kekere-Ekun; John Inyang Okoro (JSCs)
FREEBORN OKIEMUTE…. Appellant
The State ……….. Respondent
(Delivered by Suleiman Galadima, JSC)
This appeal is against the judgment of the Court of Appeal, Benin Division, delivered on the 15th day of November, 2012 which affirmed the judgment of the High Court of Ozoro, (Delta State). Delivering its judgment on 14th July, 2010, the trial High Court convicted the appellant of the offence of conspiracy to commit armed robbery and robbery.
The appellant pleaded not guilty to the six counts charge. The trial proceeded. The prosecution called six witnesses, while the appellant testified for himself. At the conclusion of the trial, the trial court discharged and acquitted the appellant in respect of the counts II, III, IV and VI but convicted him in respect of counts I and V relating to the robbery committed against PW3 and held that the prosecution proved its case beyond reasonable doubt.
Dissatisfied with the judgment of the trial court, the appellant appealed to the court below which dismissed the appeal and affirmed the decision of the lower court. Both courts placed reliance on the oral evidence of PW3 and her extrajudicial statement Exhibit ‘C’.
“Whether the lower court was wrong in affirming the judgment of the trial court that the prosecution proved the count on the information beyond reasonable doubt.”
All the two issues formulated by the learned counsel for the appellant considered together boil down mainly to his complaint that the appellant was convicted on Counts, I and V on the incredible, inconsistent and unreliable evidence of PW3. But in reference to the findings of the learned trial Judge particularly, the portion dealing with his reasons to dispense with an identification parade, I must say, those reasons were in line with the laid down principles on identification by this court in a number of its decisions, notably, IKEMSON v THE STATE (1989) 6 SC (Pt.5), ADAMU v THE STATE (1991) 4 NWLR (Pt.187) 530; ALABI v STATE (1993) 7 NWLR (Ft.307) 24; ISIBOR v STATE (2002) 3NWLR (Pt.754).
It must always be borne in mind that an identification parade is not necessary in all cases.
It must be noted, however that an identification parade is not a sine qua non to a conviction. It has to be established or proved that the accused is guilty of the offence he is being charged with, beyond reasonable doubt.
In the instant case, the facts relied on by the learned trial Judge in convicting the appellant on the two-count offences of conspiracy to commit armed robbery are credible.
The evidence of PW3 at the trial during cross-examination, where she clearly identified the appellant was not challenged Let it be noted that the only issue raised by the Appellant at the court below which the trial Judge duly considered in his judgment is that the police did not conduct any identification parade. I agree with the learned counsel for the Respondent that the appellant did not make the findings of the trial court on the issue of identification parade an issue in the appeal before the court below.
In this case, one of the abiding principles of law regarding the identification parade is applicable. That an identification parade is not necessary when the witness claims that the perpetrator of a crime is a familiar or definite person by name or his abode who can be positively identified if the victim is given the opportunity to do so. See NDIDI v THES STATE (2007) ALL FWLR (Pt. 381) P.1617. The victims in this case, testified as eyewitnesses, and mentioned specific names of people previously known to them, thus clearly excluding the necessity of an identification parade.
I am of the firm opinion that the credibility of PW3 was properly evaluated to warrant the court coming to the conclusion that the conviction of the appellant based on the evidence of PW3 was proper.
Learned counsel for the appellant has urged this court to apply the consistency rule to the evidence of PW3 simply to discountenance both Exhibit ‘C’ the extra-judicial statement made to the police by him and the evidence made on oath at the trial on the basis of irreconcilable inconsistencies and contradiction in both statements from which this court cannot pick and choose.
What are the main inconsistencies, the appellant is agitating? One of these is PW3 had stated in Exhibit ‘C’ that she was informed that the appellant was the leader of the armed robbery gang but on oath she said she identified the appellant while the robbery was taking place. If the purpose of tendering Exhibit ‘C’ is to show inconsistency of PW3’s evidence that purpose is not served, in the circumstance of this case. Inconsistency rule does not apply to render the evidence of PW3 incredible and unreliable and to be discountenanced.
From the foregoing the court below did clearly take the same stance of the trial learned Judge when he placed reliance on the evidence of PW3 on oath at page 52 of the record. The extract of her evidence runs thus:
“I know their names (sic) of the one recognised. The armed robbers in the course of beating me dragged me outside where I recognised one of them who is black in complexion, short and black boy. I recognized others the short one I recognised told me that he came purposely because of me. I do not know the name of the short one. But the other one of the armed robbers I recognised is Freeborn who is slim and little bit tall in height. The Freeborn I recognised among the armed robbers is the accused person in the dock. I was able to recognise the accused person on that day because prior to the day of the armed robbery incident the accused person had come once before me in a group of armed robbers who came to the house, but the doors of the house were locked”
I agree with the court below that there was no significant inconsistency in the evidence of PW3 and Exhibit ‘C’ which she made about a month after the incident as to render the evidence unreliable. The appellant was recognized by PW3 as one of those who committed the armed robbery. I must say that it is preposterous for the learned counsel for the appellant to urge the court to totally discountenance the evidence of PW3 on oath vis-a-vis- Exhibit ‘C To do this is to lose sight of the fact that she had made an earlier statement to the police in which she claimed to have identified the appellant and mentioned his name. The extract of her earlier statement copied above referred.)
The conclusion of the learned trial judge, which the court below equally adopted is apt on this point. It reads thus:-
“The close contact the armed robbers had with the PW3 and the length of time spent at the house of PW3 was enough for PW3 to recognize the accused person in spite of the time of the robbery incident at night time.”
In affirming the judgment of the trial court on this issue, the court below concluded thus:
“The record and evidence of the prosecution witnesses clearly shows that the armed robbers who committed the offence were several in numbers. I cannot help but agree with the learned trial Judge that inference of conspiracy can be and must be made from these facts and irrefutable conclusion of conspiracy to commit armed robbery.
We must take into consideration the fact that both the learned trial judge and my humble self have found sufficient evidence on record to ground the substantive charge of armed robbery.”
Regarding Count 1 in which the offence of conspiracy was alleged, the learned trial judge having carefully reviewed the testimonies of PW1, PW2, PW3 and PW4 held at page 103 of the record thus:
“In Count 1, the accused person and others at large are charged with the offence of conspiracy to commit armed robbery at Ozoro on the 17th of November, 2006. In proof of the offence the prosecution called six witnesses who testified in these proceedings. I have already in this judgment reviewed the evidence of PW1, PW2, PW3 and PW4 in relation to the substantive offence of armed robbery on which the prosecution relies for the offence of conspiracy to commit armed robbery.”
There is no satisfactory evidence of self-defence as raised by the appellant to the charge of conspiracy to commit armed robbery. His defence at the trial court was that he was arrested for assault. According to him it was while he was in police custody for the offence of assault that he was identified by PW3 as one of the robbers that robbed her. He contended that the police did not investigate his defence. On this issue the court below in affirming the findings of the trial court held at page 187 of the records thus:
“On the issue regarding the failure of the police to investigate the defence raised by the appellant, it is pertinent to understand that the appellant’s insistence that he was arrested for assault and not armed robbery cannot be a defence to the charge. Admittedly, he denied the charge, but nowhere in his extra judicial statements. Exhibits G and F and his evidence on oath in his defence did he provide an alibi for the night of the robbery. The problem we have here is that the appellant was named by one of the complainants, PW3 in a statement to the police on 19th November, 2006, while on admission in hospital after the incident.”
PW5, the IPO explained why the statements of PW1 and PW3 were obtained late when he stated thus;
“The statements of PW1 and PW3 were recorded about a day or two after the complaint was reported at the police station because they were injured and were hospitalized. I recorded their statements in the hospital.”
I have quoted the evidence of PW3 extensively. Her evidence fixed the appellant at the scene of the crime is to allow him proffer credible alibi and not his defence that he was arrested for a different offence.
When the appellant was first arrested on 16th January, 2007 and he made Exhibit F he did not mention that he was arrested for assault. He came up with the story of how he was arrested in his statement on oath on 30th January, 2007. He claimed that he fought with one James who reported him for assault for which he was arrested. That the statements of PWI and PW3 were made on 16th January, 2006 but backdated to 19th November, 2006 in order to implicate him in the robbery. What an incredible tell-tale! Who really wanted to implicate him; PWI or PW3 if I may ask? I agree with the learned counsel for the respondent that “it would have taken a lot of collaboration to get the PWI and PW3 to the station at the time when the appellant was accused in order to set about implicating him in the dastardly manner suggested by the appellant.”
Learned counsel put up a valid argument in his brief. Indeed, if the appellant had not been identified by PW3 as one of the armed robbers and was accurately described in her statement to the police after the event, and the appellant had promptly and properly raised the defence of alibi, the police would have been obliged to carry out the investigation of his claim.
Having believed the evidence of IPO on oath as to the circumstances of the appellant’s arrest, I do not think that the defence set up by the appellant will avail him. Appellant’s counsel argued that the appellant should have been charged and convicted separately with offence of conspiracy to commit armed robbery because the facts upon which both counts were based are the same.
However, in the present appeal, I am in no doubt that the evidence, as clearly pointed out earlier, support the count of conspiracy to commit armed robbery as well as the count for actually carrying it out. The circumstances of this case when considered, then the charging of appellant with conspiracy along with the substantive charge does not render the information inherently bad in law.
For all the reasons which I have given above, lead me to conclude that the prosecution did prove its case against the appellant, beyond reasonable doubt. The appeal fails. I affirm the decision of the Court of Appeal which confirmed the conviction and sentence of the appellant to death by the High Court of Ozoro, Delta State in case No. HC2/13C/200S on 14th July, 2010.
Ayo Asala, Esq., with Charles Uzoka, Esq., for the appellant
P. Mrakpor, Esq., Attorney-General, Delta State, with B. O. Odigwe, Esq., D.P.P., O.F. Enenmo, Esq., Director, Civil Service/Appeals and C. O. Agbagwu, Esq., Assistant Director, Civil Service/Appeals, for the respondent.