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IN THE SUPREME COURT OF NIGERIA
11TH JULY, 1985.
(1985) 2 NWLR (Pt.8)465
BEFORE THEIR LORDSHIPS:
Dr. D. D. Mowoe – for the Appellant
Mr. Ayodeji J. Alufohai, Senior State Counsel Grade 1 – for Respondent
CRIMINAL LAW AND PROCEDURE – Identity of person suspected of crime – Identification parade – Proper way to conduct – Effect where accused is identified by the prior suggestions and promptings of police – Accused standing alone in place of identification witnesses identified by being asked leading questions – Effect. – Defence of alibi – Meaning and effect of – Onus and standard of defence on accused – Duty of prosecution to investigate all defences suggesting alibi – Effect of failure to.
PRACTICE AND PROCEDURE – Evidence – Standard of proof in criminal cases – Where there is doubt in prosecution’s case – Effect – Evaluation of evidence – Duty of court – Need to make actual findings and not escape in the phrase: “I believe, “I do not believe” – Proof beyond reasonable doubt – Whether discharged where no proper findings made and where defence of alibi is neither investigated nor rebutted
OPUTA, J.S.C. (Delivering the Lead Judgment):
This appeal was heard on Thursday, 16th May, 1985. After carefully reading the records of proceedings, the briefs of argument filed on both sides, and listening to learned counsel, the court decided to allow the appeal. The appeal was then allowed, the judgments of the courts below set aside, as well as the conviction and sentence of the trial court. In their stead, a verdict of not guilty was entered and the appellant was accordingly acquitted and discharged. The court then indicated that reasons for judgment would be given on the 11th July, 1985. Hereunder are my reasons.
The appellant was in the court of first instance charged with armed robbery punishable by death under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. He was on 29/9/83 found guilty by Ajuyah, J. sitting in the Ward Judicial Division of the Bendel State High Court, and sentenced to death. The appellant then appealed against his conviction and sentence to the Court of Appeal, Benin Division. In that court, the point was raised and seriously argued that “the evidence of witnesses of Identity of the appellant is irregular, that it was the police who pointed the appellant to the witnesses as the armed robber’. This, it was submitted “is unsatisfactory’. The Court of Appeal, holding ‘that this contention In my view is not valid in view of the evidence before the court”, dismissed the appeal and against that dismissal the appellant has now appealed to this court.
The main ground canvassed before this court was the omnibus ground that the decision cannot be supported, having regard to the totality of the evidence in general and particularly to the shaky and shady as well as improper and unorthodox evidence of identification; that the court below was wrong in allowing a finding of guilty based on such evidence to stand. It was also contended that the defence of the appellant was inadequately considered by the courts below.
I shall deal first with the crucial issue of identification. For the prosecution to succeed in this case, there ought to be proof beyond reasonable doubt:
(i) That there was a robbery or a series of robberies. (ii) That each robbery was an armed robbery.
(iii) That the appellant was one of those who took part in the armed robberies.
There is here evidence galore that a series of robberies took place in the early hours of the 8th July 1979 at Okumagba Layout Ward. It is common ground that force was used and guns were fired during and even after the robberies. No one can be in any doubt that what happened around the vicinity of Okumagba Layout Ward on the night/early morning of 8th July, 1979, each amounted to armed robbery as defined by the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.
The victims of the various robberies testified for the prosecution as prosecution witnesses 1-6. From the totality of their evidence, the robbers were four in number; they were not masked; there was ample light inside as well as bright security lights outside. Each of the six prosecution witnesses identified the appellant the following morning as being one of the four armed robbers who invaded his house the previous night. Each witness testified that he knew the appellant before the night of the robberies. They knew him by name; they knew that he lived at No.6 Eboh Road close by No.8 Eboh Road where 1st P.W. Samuel Okorefe (one of the victims of the robberies) lived. No. 8 was a kiosk or a barber’s shop where the appellant usually slept. This is admitted by the defence. Also the 2nd P.W. William Emeurude who lives at No. 38 Idama Street, Okumagba Layout and who was also robbed was emphatic in, and sure of, his identification of the appellant who like him comes from Isoko.
The learned trial Judge reviewed the evidence identifying the appellant and connecting him with the series of robberies that took place in and around Okumagba Layout on the night of 8/7/79 and found as follows:
“I am satisfied that there is a lot of variance in the evidence as to what happened after day-break. I am of the view however that a clean line can be drawn between the evidence of the robbery and the evidence after the robbery. I am satisfied that P.Ws. 1-6 clearly recognised the accused person. They knew him before 8/7/79 and clearly saw him by means of the security light outside. The accused was unmasked and it was to him the 3rd, 4th, 5th and 6th P.Ws. gave money’.
The appellant in his defence denied taking part in any of the robberies. He set up an alibi which was disbelieved by the learned trial Judge – Ajuyah, J.
The most important question facing this court is – from all the facts and surrounding circumstances of this case, can it be safely said that the identity of the appellant as one of the four robbers was established up to that high degree required in criminal cases -that is – established beyond reasonable doubt? Was the procedure and method of his identification proper? The learned trial Judge, with the greatest respect, flew off at a tangent when he observed ‘that a clean line can be drawn between the evidence of the robbery and evidence after the robbery’. To test not merely the veracity of the P.Ws. 1-6 but also the accuracy of their identification of the appellant as one of the four armed robbers, the whole incident will be considered together not separately. It will be of interest to find out whether at the earliest and first opportunity, these witnesses who knew the appellant so well either mentioned him by name (as would have been expected) or by his residence as ‘the occupant of No. 6 Eboh Road” or as ‘the person who usually slept in the barber’s shop” or’ the Isokoman sleeping in a nearby kiosk”. It will be natural to expect this early identification not merely as a remote possibility but as a compelling probability. It would be quite a strange and improbable story if this early identification was absent (as indeed it was).
It requires but little experience in court to arrive at the conclusion that a great majority of cases are composed of a few principal facts surrounded by a host of minor ones which may, in themselves and by themselves alone, look unimportant, but which in the final result may turn out to be the weak links that prove the strength of the chain. The principal facts of this case are the robberies, while the minor facts are the earliest reactions of each witness as to who the robbers were, before there was time for reconstruction, before leading questions were asked, and before the appellant was obviously paraded as an armed robber – a short step to his being identified as the armed robber. These minor facts may, and often do, form the possibilities and probabilities which on the whole of the evidence, it is natural to expect and which may then drive conviction into the mind, which will in turn make the trial Judge say – “I am satisfied” or “I believe”.
All men stamp as probable that which they would have said or done under similar circumstances and as improbable that which they themselves would not have said or done under the same set of similar circumstances. Things inconsistent with human knowledge and experience are properly rated as improbable. This seems to be the purport and intendment of section 148 of the Evidence Act. Where therefore the principal facts look improbable when considered against the background of their surrounding circumstances, they cannot induce belief – and it will be wrong for a trial court in such circumstances to say “I believe” or “I am satisfied”. There is neither magic nor sanctity in the words and expression “I believe” or “I am satisfied” and they should not therefore be used as a sanctuary. Belief and satisfaction should represent the court’s reaction towards facts and possibilities and probabilities based on those facts. When, as in this case, the evidence of the identity of the appellant is punctured with improbabilities and so many questions remain unanswered and unexplained, the trial court should have hesitated a lot before being satisfied and if it were in doubt, (a doubt which any impartial view of the evidence in this case should induce), it was its duty to give the benefit of that doubt to the appellant.
Let me now consider the evidence of the prosecution witnesses on the vital issue of the identification of the appellant. The 1st P.W., Samuel Okorefe, living at No. 8 Eboh Road and therefore next door neighbour of the appellant who lived at No.6 Eboh Road testified inter alia:
“At day-break some policemen came to tell us that some armed robbers were arrested and that the tenants in the premises should come to identify them”.
One would ask at this juncture why did this witness and in fact the other witnesses not tell the police there and then that they recognised one of the robbers whom they had known all along and who is their next door neighbour living at No.6 Eboh Road? Why? Why did they not give the police the name of the appellant? Why did William Emeurude, 2nd P.W., merely tell the police at that earliest opportunity that ‘the robbers moved in the direction of Upper Erejuwa Road”. Why did he not tell the police that one of the robbers lives at No. 6 Eboh Road nearby? Why did he not tell the police that one of the robbers was an Isoko man like himself? Why? These unanswered questions constitute the minor facts, the “multitudinous little things” which surround this case and create the possibilities and probabilities that will induce either belief or disbelief; satisfaction or dissatisfaction; conviction or acquittal. If they existed, it would be safe to believe or to be satisfied. If they were absent (as they were in this case) the belief or satisfaction would not be well grounded or well founded and so would the conviction and sentence be unreasonable and wrong. Again why did the witnesses watt to go to the police station to see the appellant tendered, as it were, as an exhibit, before they could recollect that the appellant was one of the robbers? But did these witnesses really recollect? Not really. They were asked a leading question. The evidence of the 1st P.W. was -’when we got to the police station the policeman asked us” – Is this the man,” We answered “yes”. What type of identification is this?
There is a world of difference between “I have known the appellant before, he was among those who robbed me” and “I saw one of those who robbed me and if I see him again I will recognise and identify him”. It is only in the latter instance that an identification parade becomes necessary and is thus usually conducted. But such a parade should be properly and fairly conducted. In the case of William Goss (1923) 17 Cr. App.R. 196 at p. 197 an improper use of photographs to help identify an accused person was held to be unfair and improper and a subsequent conviction was quashed. In the case of John James Haslam (1925) 19 Cr. App.R. 59 the Court of Criminal Appeal per Hewart L.C.J. maintained that the police are not entitled to assist the identification of a suspected person already under arrest. Here the appellant was under arrest after being mercilessly beaten up by members of the Civil Defence as an armed robber. The prosecution witnesses were then brought to the police station and asked “is this the man?” What will be the natural answer but “yes” – another case of res ipsa loquitur – but now in the criminal law. The impropriety of the method used in the identification of the appellant was reduced into a farce when one considers the evidence of the 2nd P.W. Williams Emeurude about what happened on the night of the robbery:
‘… policemen… came in a Beetle car and asked if we knew Samuel Bozin and we replied ‘yes’. They asked if we could identify him if we saw him? We replied ‘yes’.”
What was it that was being identified? The robber or Samuel Bozin?
The identification of a suspected person must be very carefully conducted and it is very wrong to point out the suspected person and ask “is that the man?” The usual and proper way is to place the suspected person with a sufficient number of others and to have the identifying witness pick out the accused without any assistance – the case of Thomas Chapman (1911) 7 Cr. App.R. 53 at p. 54 refers. This is what is called an identification parade. I simply cannot put into any legal compartment what was done in this case. A parade with only the appellant on parade is definitely not an identification parade known to the law: see the case of George Harold Williams (1912) 8 Cr. App.R. 84 where the suspected person was alone on parade. The conviction was quashed. Also it is highly improper to invite witnesses to identify the appellant not mixed up with other people: see John Smith v. W. Evans (1908) 1 Cr. App.R. 203 at p. 204 where Phillimore, J. castigated the police and remarked:
“Such methods as were resorted to in this case make this particular identification nearly valueless and police authorities ought to know that this is not the right way to identify”.
1 agree but will add that in this case, the courts below ought to have known that since the one and only crucial issue in this case was the correct and proper identification of the appellant as one of the four armed robbers, the farcical drama con ducted in this case fell far short of the requirement of the law. It was not proof beyond reasonable doubt. The courts below then had a duty to quash the conviction and sentence of the appellant as was done in the case of Walter William Chadwick & ors. (1917) 12 Cr. App.R. 247 where at p. 249 Reading L.C.J. observed –
“This is a singular case. The guilt or innocence of the appellants depends entirely on the effect of the evidence of identification”.
Since the evidence of identification was unsatisfactory, the convictions in Chadwick and 2 ors above were quashed. In this case on appeal, the guilt or innocence of the appellant depended entirely on what I earlier on called the shaky and shady evidence of improper and unorthodox identification. This appeal therefore ought to be allowed on the ground that the conviction cannot be supported by the evidence – the evidence of an identification prompted by a leading question, an identification that was anything but proper and fair.
The second ground argued before us was that the defence of the appellant was not adequately and properly considered. His alibi might well have been established if it had been investigated. But unfortunately it was not investigated. Had the appellant a brother called Emmanuel Odoni living at Olodi Street? Did the said Emmanuel Odoni hear any heavy pounding at his door on the night of 8/7/79? Had the appellant an in-law called Joseph Akingbade living at Irebrighe in the vicinity of Upper Erejuwa Road or did he just invent all these names? There are some strong circumstantial evidence tending to support the alibi of the appellant:-
Quite apart from the improper identification, the complete absence of any of the above circumstantial evidence linking the appellant with these robberies would have at least created a doubt in the mind of any fair-minded jury and the law is that any such doubt ought to have been resolved in favour of the appellant. It is easy to say, as the trial Judge said, “I do not believe that he did not participate in the robbery”, but the issue Is not as simple as that. What were the reasons for this disbelief? None was given except it be when the learned trial Judge observed that ‘the defence is strange and does not support innocence’. There is no onus on the defence to establish the innocence of an accused. The law presumes him innocent and one does not set out to prove what is presumed in his favour. The standard of proof required to establish an alibi is much, much lower than proof beyond reasonable doubt expected of the prosecution. That standard is merely the favourable balance of probabilities which in this case is more on the side of the appellant:- Okputu Obiode & ors. v. The State (1970) 1 All. N.LR. 35 at p. 40. I hold that the defence of the appellant was not dispassionately and properly considered. If it were it could have at least raised a doubt, the benefit of which would have gone to the appellant.
In the final result, this appeal is bound to succeed as the prosecution case founded on the rock of improper identification of the appellant as one of the armed robbers. He was arrested on mere suspicion and suspicion however grave does not amount to proof. It was for the reasons given above that I allowed this appeal on 16/5/85.
OBASEKI, J.S.C.: After carefully studying the record of proceedings and judgments of the High Court and the Court of Appeal and hearing counsel for the parties on Thursday, the 16th day of May, 1985, I allowed the appeal of the appellant, set aside the decision of the high Court convicting him and sentencing him to death as well as the decision of the Court of Appeal affirming the conviction and sentence of death and entered, instead, a verdict of ‘Not guilty’ in favour of the appellant. I accordingly acquitted and discharge the appellant and reserved till today, my reasons for the judgment. I now proceed to give the reasons.
The main question for determination in this appeal is one of identification, i.e. whether appellant was properly identified by the complainants, p.w.s 1-6 or not in circumstances making the identification an identification by the police. The appellant’s contention is that he was pointed out by the police to the P.W. s 1-6, who had been robbed, before they accused him of being one of those who came to rob them in their house and apartments of their monies. He is well known to the residents of the adjoining houses in the area as he resides in a barber’s kiosk in the yard or premises of one of the houses in the neighbourhood. Indeed, the evidence shows that all the witnesses knew him very well and could identify him by day or by night without assistance from anyone.
It is therefore a surprise that in the light of the evidence that the robbers were not masked and that the appellant played an active part in the robbery for it was to him the 3rd, 4th, 5th and 6th P.W. gave money, not one of the prosecution witnesses 1-6 mentioned his name to the police at the earliest opportunity. Not even when the 1st batch of policemen came to the scene of robbery and asked whether they knew Samuel Bozin did any of them jump up and say “Ah” he was one of the four persons who came to rob us”. It was not until they saw him in police custody before the p.w.s 1-6 Identified him and accused him of being one of the robbers. The logical deduction or Inference from such Identification in the circumstances described, is that the Identification Is faulty and unsatisfactory. Its evidential value is reduced to nil. The wrong person In police custody may have been identified as the robber. Such faulty Identification must create reasonable doubt in the minds of the tribunal on a proper view of the evidence adduced. The appellant Is entitled to the benefit of that doubt and the High Court should have given him that benefit.
My learned brother, Oputa, J.S.C. has dealt in admirable detail with the question in the reasons for judgment just delivered, the draft of which I had the privilege of reading in advance. I adopt them as my own.
It was for the above reasons and the reasons so ably set out in the reasons for judgment of my brother Oputa, J.S.C. that i allowed the appeal and acquitted and discharged the appellant.
ESO, J.S.C.: I will agree with the reasons for judgment so lucidly given by my learned brother Oputa, J.S.C. In this case. The appeal of the appellant was summarily allowed by this court on 16th May, 1985.
I find it difficult to understand the attitude of the police to the investigation of so grave a charge against the appellant. I find it more difficult to understand the attitude of both the trial court and more especially that of the Court of Appeal having regard to the evidence led in this case by the prosecutor and the non-investigation of the defence of alibi put up by the appellant.
There is no doubt that there was a series of robberies in the night of the incident. The question was whether the appellant was one of the robbers. There were four robbers, so the evidence went. These four were not masked. There were six eye-witnesses and they all professed to have known the appellant Intimately and even by name before the day of the incident. They even knew that he lived at 6 Eboh Road and this was dose to 8 Eboh Road the house of one of the victims of the robbery. Not one of the witnesses mentioned the appellant by name at the first opportunity after the robbery. Common sense demands that if a victim knows a robber as well as those witnesses had claimed, he would without being prompted mention his name. But that was not the case here.
It was theatrical show at the cell that the police relied upon for the identification of this appellant. What happened? This is best related in the evidence of the 2nd prosecution witness. The policemen, having come to the scene in a car, asked questions of the witnesses ff they knew Samuel Bozin.
Of course they all knew Samuel Bozin and no hat trick had been scored by eliciting this from the witnesses. The next question was whether they could identify Samuel Bozin If they saw him. What answer was being expected to this not very brilliant question? And of course the police had concluded Samuel Bozin was the culprit – without evidence and they only sought confirmation for their conclusion.
Against this petty second-rate drama was the alibi put up by the appellant. He said he went to see his brother. He gave the name of the brother as Odoni. He said he pounded at his door. The police would not Investigate this.
To say the least the investigation was questionable. The appellant was wrongly convicted by the High Court. The Court of Appeal failed to investigate the matter properly when the matter came before them. The appeal must be allowed and it was allowed, and it was for these reasons and the reasons given by my learned brother Oputa, J.S.C. that I allowed the appeal on 16/5/85.
ANIAGOLU, J.S.C.: I also agree with the reasons for judgment just read by learned brother, Oputa, J.S.C., the draft of which I had earlier seen, but I have only to lay emphasis on two of the key issues which, in my view, did justify this appeal having been allowed.
One such key fact is the failure of the prosecution witnesses to call the appellant by name or by description or by reference to his place of abode that very night when police came in a police van to their residence, immediately after the robbery in their houses.
Section 148 of the Evidence Act entitles a court to:
“presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case…..” (Italics supplied).
The section continues and enumerates five matters which “in particular” the court may presume. Those five matters are neither exhaustive nor conclusive and do not derogate from the general statement of the section that the court may presume the existence of a fact which it thinks likely to have happened, having regard to the common course of natural events or having regard to the common course of human conduct.
Giving evidence about what the victims of the robbery did immediately after the robbers had left their houses that night, William Emerude (P.W.2) swore that:
‘They went from room to room in the premises before going away. A tenant close to P.W.1 went to Joscas to telephone the police. A short time after, a police van came with some policemen. They asked what happened. We told the police that we were invaded by armed robbers who had moved in the direction of upper Erejuwa Road. The police went after them”.
It is important to note the sentence:
“We told the police that we were invaded by armed robbers who had moved in the direction of upper Erejuwa Road…:’
In the normal course of human conduct, having regard to the previous intimate knowledge which the prosecution witnesses had of the appellant’s identity, and his place of abode which was next door to the house of Samuel Okerefe at 8, Eboh Road, one would have expected them to tell the police that night – not that they were invaded “by armed robbers” but that their next door neighbour living at No. 6 Eboh Road brought armed robbers to their houses.
It is significant that throughout that night (not until the police in the morning brought them face to face with a man who, they were told by the police, was arrested for armed robbery) these witnesses never mentioned the appellant as being one of the four armed robbers, that is to say, mentioned him by name, or by description, or by reference to his house at 6 Eboh road. One would naturally ask the question: If the appellant whom those witnesses knew very well before the incident took part in the robbery of those witnesses that night, would the witnesses not have mentioned him by name, or by description, immediately the police came in a van that night in answer to their telephone call? Would the course of human conduct not impel the witnesses to tell the police that night of the involvement of the appellant, who was said to be unmasked, in the robbery? I am firmly of the view that the failure of those witnesses to mention the appellant to the police that night at the first opportunity cast a grave doubt on their evidence that they saw the appellant that night in the act of robbery.
The next key fact which calls for emphasis is the failure of the police to pay even a cursory attention, by way of investigation, to the appellant’s claim of having gone to his relations that night when, as he said, he was escaping from the armed robbers. I do not think that that piece of evidence deserved the contemptuous disregard which the police accorded it. A check by the police of the persons and places mentioned by the appellant might have advanced the course of the truth either in the appellant’s or in the complainants’ direction and thus help to determine the issue whether or not the appellant took part in the robbery.
With these emphasis, I reiterate my agreement with those reasons for allowing the appeal given by my learned brother, Oputa, J.S.C. It was for the above and those other reasons that I allowed the appeal on 16th May 1985.
KARIBI-WHYTE, J.S.C.: On the 16th May, 1985, after argument in this appeal, I allowed the appeal, set aside the conviction and sentence of the Court of Appeal, and the trial court and indicated that the reasons for so doing will be given today. I have had the privilege of reading the reasons for judgment given by my learned brother Oputa, J.S.C. and I agree with him. I only add my own reasons for emphasis and amplification of his own where necessary.
The crux of the case of the appellant in this court was founded on the contention whether the Court of Appeal was right in accepting the identification of the appellant as the armed robber who robbed the prosecution witnesses; and secondly whether the Court of Appeal was right in not considering the defence of alibi by the appellant.
Although the prosecution and the two courts below treated the evidence of the prosecution witnesses as if they were unimpeachable, it is immediately clear and obvious on examination of the evidence relied upon, that this is hardly the case. The facts of this case are fairly straightforward and apart from the denials of the appellant that he was not the person involved in the armed robbery, it is only controverted from internal evidence by the witnesses themselves. I do not consider that relevant in the determination of this appeal.
Appellant was alone charged in seven counts with the offence of robbery with arms punishable under section 1(2)(c) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. The offence was alleged to have been committed on or about the 8th July, 1979 at Okumagba Lay Out Ward, in the Ward Judicial Division. He was alleged to have robbed with a gun from seven persons varying sums of money from N5 to N80. The victims were the prosecution witnesses at the trial. Appellant pleaded not guilty to the charge, but was after trial found guilty on the 29th September, 1983 and sentenced to death. His appeal to the Court of Appeal Division, Benin City was dismissed on the 21st September, 1984. The Court of Appeal in dismissing the appeal, dismissed all the four grounds of appeal argued. Counsel for the appellant relied on the unsatisfactory nature of the identification of the appellant as his main attack on the judgment of the High Court. It was pointed out that there was no identification parade, and besides, the police had already suggested the name of the appellant to the victims before the prosecution witnesses were taken to identify him.
Before this court, Dr. Mowoe, for the appellant sought leave to abandon the first ground of appeal filed. He argued ground 2 alone which is an omnibus ground, covering both the issues of identity of the appellant and the evaluation of the defence of the appellant. Summarily stated the contentions of Dr. Mowoe for the appellant suggest the following:
It is helpful to consider the appeal in this same order. As I have already stated all the facts apart from the identity of the person who committed the offence are not controverted. There is evidence that there was robbery or series of robberies in which the prosecution witnesses were the victims in the very early hours of the 8th July 1979 at Okumagba Lay Out Warri. That the robbers were four and unmasked. There was also evidence that force was used in each of these robberies including shooting of gun. The vicinity was well lit with electric lights. These incidents undoubtedly constitute the offence charged. There is also evidence that appellant was known to some of the victims of the armed robbery before that day, that he was occupying a kiosk at No. 8, Eboh road, adjacent to the house where the armed robbery took place. Again, it is admitted that appellant was around the vicinity of the armed robbery when the incident occurred; that he was apprehended by members of the Civil Defence that same night at Upper Erejuwa Road, some considerable distance away from the scene of the armed robbery and was handed over to the police. There was also the evidence of the appellant about his movement that night.
From these agreed facts one important question presents itself to the inquirer. First, can it be said on the evidence before the court with the requisite degree of certainty that appellant was one of the four unmasked armed robbers who robbed the prosecution witnesses? Before the degree required in criminal cases is accepted, the identity of the appellant must be established in accordance with the methods and procedure required and accepted in criminal trials.
It is important and relevant to observe, that none of the victims, who knew the appellant very well including P.W.2 William Emenrude, a fellow Isoko man, and Samuel Okorefe P.W.1, spontaneously mentioned the name of appellant as one of the four unmasked armed robbers who robbed them. Each of the witnesses 16 testified to knowing the appellant by name and that he lived at No. 8 Eboh Road, close by No. 6 Eboh Road, where Samuel Okorefe, 1st P.W., also a victim lived. No. 8 Eboh Road is the kiosk where appellant usually slept. The evidence of the prosecution witnesses discloses the unusual methods adopted by the prosecution to identify the appellant. William Emenrude 2nd P.W. in his evidence in chief said,
…… policemen …. came in a Beetle car and asked if we knew Samuel Bozin and we replied yes. They asked if we could identify him If we saw him? We replied yes”.
Now, none of these witnesses was able to tell the police promptly what Samuel Bozin who they know so well had done to them a few hours earlier. They did not tell the police even without going to identify him that Samuel Bozin was one of the armed robbers who had robbed them.
The evidence of P.W.1 Samuel Okorefe, who also knew appellant well and was his neighbour, was as follows:-
“At day break some policemen came to tell us that some armed robbers were arrested and that the tenants in the premises should come to identify them”.
It is interesting to observe that only the appellant was shown to the prosecution witnesses at the police station. This is clear from the evidence of P.W.1, that –
“…. when we got to the police station the policeman asked us. Is this the man? We answered ‘yes’.”
There is no evidence that each of the witnesses identified appellant independent of the other. Again appellant was the only object of identification. He was not in a group. There is no clearer insinuation, even if they did not want to say so, that appellant was the armed robber who attacked them. There was no evidence that any of the witnesses was in doubt as to the identity of the appellant at any time. But they were unable at the first opportunity to tell the police that it was appellant who was the armed robber who attacked them until they saw him at the police station. Knowing the appellant so well as the witnesses did, an identification parade was clearly unnecessary to identify him. However in such a situation it was for the victims to suggest the name of the appellant to the police and not the converse. It seems unarguable from the evidence in this case that the police were assisting in the identification of a suspect under arrest. – See John James Haslam (1925) 19 Cr. App. R. 59.
It is the practice in all criminal trials to ensure that the identification of the suspects must be so carefully conducted as not to lead to any suggestion that he is the person accused and not merely one of those suspected. The usual and accepted practice is to place the suspect among other suspects and for the identifying witness to pick out the alleged suspect without assistance. The witness is not allowed to see the suspect alone or his photograph previous to the parade. There should be no assistance of any kind. Where the identifying party is assisted by means other than his own independent method, or where the suspect is the only person in the parade, it seems clear that the suspect is not being identified as such, but is directly accused of the commission of the offence. It is clearly not an identification parade. In the Court of Appeal, counsel for the appellant criticised the conduct of the police towards the identification of appellant by the witnesses as prompting them. The Court of Appeal rejected the criticism. I am yet to know of a more successful prompting of Identification than has been disclosed by the evidence in this appeal. Where the police adopted a similar approach in Smith and Evans (1908) 1 Cr. App. R.203 at p. 204, Phillimore J said,
“Such methods as were resorted to in this case make this particular identification nearly valueless and police authorities ought to know that this is not the right way to identify’.
In George Harold Williams (1912) 8 Cr. App. R. 84 where the suspect was the only person in the parade the conviction was quashed.
Thus any suggestion, as in the instant appeal, enabling the witness to identify the suspect at a subsequent identification parade is regarded as improper. In Sunday Omega v. The State (1965) N.M.L.R. 58 at p. 59, where the photographs of the suspect were shown to the witness Coker, J.S.C., said,
…..unless it was clear that the photographs (of the accused) were shown to the witness in order to enable him identify the suspect at a subsequent identification parade, we cannot see how the propriety of the identification parade In the circumstances of the present case can be impugned”.
In this case it was not clear at what stage whether before or after the identification parade, was the photograph shown to the witness. There seems to have been no doubt that if it was before the identification parade, it would have been sufficient to impugn the identification parade.
The importance of the eye-witness acting promptly in identifications has been emphasised in several cases. Where such witnesses have not been prompt to volunteer evidence any such evidence thereafter should be accepted with caution. In C.O.P. v. Also (1959) W.N.L.R. 19 at pp. 39 Quarshie-Idun C.J., said,
11 ………when an eye-witness omits to mention at the earliest opportunity the names of persons whom he said he saw committing the offence, a court must be careful in accepting his evidence given later and implicating the persons charged, unless a satisfactory explanation is given”.
In ldahosa & ors. v. The Queen (1965) N.M.L.R. 85 an identification in such circumstances was regarded unsatisfactory. In this case Onyeama, J.S.C. reading the judgment of the Supreme Court, said at p.88 –
“In the view of this court, the identification by Margaret, the third prosecution witness, of the 2nd and 3rd appellants, was hardly satisfactory. It is difficult to understand her failure to identify 2nd appellant by name, especially as on her own admission, the 2nd appellant was very well known to her. She knew his name, his place of abode and nature of employment yet at the earliest opportunity she failed to give his name to the police and even in court she merely referred to him as a ‘tall man’. Equally her identification of the 3rd appellant – a complete stranger and to whom she merely referred to (sic) as ‘a man with a fat belly’ – was unsatisfactory’.
Similarly in the instant appeal, the identification of the appellant by all the prosecution witnesses, after promptings and positive suggestions by the police rendering the identification of the appellant as the armed robber inescapable, is clearly in the light of the authorities unsatisfactory and unreliable. In my opinion it has not reached the degree of proof required in a criminal trial. Dr. Mowoe is on very firm ground in his submission that this identification is likely to result in a miscarriage of justice. The other point canvassed by Dr. Mowoe was the contention that the Court of Appeal erred in failing to observe that the learned trial Judge failed to give sufficient consideration to the defence of the appellant. The learned trial Judge held that:
‘The defence is strange and does not support innocence. So also his statement to the police (Exhibit B). I am also of the view that the amount found on the accused lends some weight to the robbery’
Counsel contended that this view occasioned a substantial wrong or miscarriage of justice. I agree with this submission. It seems clear from the evidence of the appellant in court and his statement to the police, Exhibit B, that his defence was that he was somewhere other than where the offence was being committed, and definitely was not one of those who robbed the prosecution witnesses. He gave an account of his movements that night, and how he came by the money found on him. As the trial Judge regarded the defence of the appellant as ‘strange’, the Court of Appeal considered investigating the story as a wild goose chase. In fact, the Court of Appeal would appear to have shifted the burden of proof of the defence entirely on the appellant.
It is an essential principle of a criminal trial, that a defence however fanciful, stupid or doubtful is deserving of consideration. – See R. v. Barimah 11 W.A.C.A. 49. The net legal effect of the defence of the appellant is one of alibi. It is a well established principle that an alibi means that the accused was somewhere other than where the prosecution alleges he was at the time of the commission of the offence. Consequently he could not have committed or participated in the commission of the offence with which he is charged. – See Gachi & ors. v. The State (1965) N.M.L.R. 333! It is also well settled that the accused raises the defence of alibi by the introduction of evidence leading to that conclusion. Once an alibi has been raised the burden is on the prosecution to investigate and rebut such evidence in order to prove its case beyond reasonable doubt. See Adedeii v. The State (1971) 1 All N.L.R. 75. It is conceded that the prosecution does not have to investigate any defence however improbable. But where the story of the accused, if believed, is capable of providing a defence, there is in my opinion a duty to investigate such story. The failure of the prosecution to investigate the story tantamounts to an admission. See Yanor v. The State (1965) N.M.L.R. 337, Ozulonye v. State 1981 (1) N.C.R. 38. In Yanor v. The State (supra) at pages 341 342, Idigbe, J.S.C. said,
“(A) jury should be directed that they should not disregard evidence of alibi unless there is stronger evidence against it’.
Where the prosecution disregards a plea of alibi, does not investigate it and leads no evidence as to its rebuttal, and where the trial Judge disregards the evidence in his consideration of the guilt of the accused, the prosecution cannot in such circumstances be regarded as having proved its case beyond reasonable doubt. The onus on the accused to establish an alibi is merely one of introducing evidence. – See Yanor v. The State (1965) N.M.L.R. 341. Appellant has discharged this onus.
It is obvious from what has been said above that the two fundamental issues of the identification of the appellant, and his defence of alibi were not properly or at all considered by the court. In Ozigbe v. Aigbe (1977) 7 S.C. 1, it was stated that in making a finding it is not adequate evaluation merely to believe the prosecution and disbelieve the accused. The belief or its rejection must be based on good grounds.
In lkono v. The State (1973) 5 S.C. 231 at p. 255, it was clearly stated that –
“Failure on the part of the learned trial Judge to give adequate consideration to the appellant’s defence of alibi and the absence of a proper identification parade by the police are such fundamental errors that it is impossible for this Court to hold that the conviction of the appellants had not occasioned a miscarriage of justice”.
The trial Judge has failed to consider the plea of alibi of the appellant. The identification of the appellant was so unsatisfactory as to fall below the standard of proof beyond reasonable doubt required in a criminal trial. I have no doubt therefore that the Court of Appeal was clearly in error to have held that the appellant was properly identified as one of the armed robbers who attacked and robbed with arms the prosecution witnesses on the 8th July, 1979. The Court of Appeal was also in error to hold that the prosecution need not investigate the plea of alibi raised by appellant after he has led evidence of such alibi.
It is for the above reasons that I allowed this appeal set aside the conviction and sentence on the 16th May, 1985.