SEUN v. STATE

CITATION: (2019) LPELR-47549(SC)

In the Supreme Court of

ON FRIDAY, 25TH JANUARY, 2019 Suit No: SC.601/2016

Before Their Lordships:

WALTER SAMUEL NKANU ONNOGHEN Justice of the Supreme Court MUSA DATTIJO MUHAMMAD Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court Justice of the Supreme Court SIDI DAUDA BAGE Justice of the Supreme Court

Between

ADEGBEYIRO SEUN - Appellant(s) And THE STATE(2019) LPELR-47549(SC)- Respondent(s) RATIO DECIDENDI 1. CRIMINAL LAW AND PROCEDURE -IDENTIFICATION PARADE: Circumstances where an identification parade will not be necessary "The oral evidence of PW1 confirms the statement he made immediately after the robbery which was admitted as Exhibit `A' under cross-examination. He made Exhibit A on 16/9/2012 when the incident of the robbery was still very fresh in his memory. His description of the 2nd accused now appellant was:- "The 2nd man was dark in complexion, charcoal black. He also wore no mask.' In his oral evidence he said: - "The 2nd accused was standing at the door pointing his gun at me and I was wondering that this small boy could be an armed robber. A young boy, charcoal black." (underlining mine for emphasis). In his brief of argument in paragraph 4.4, learned counsel for the appellant maintained that no mention was made of PW1 recognizing or identifying the appellant in Exhibit "A". This is far from the truth. The only thing PW1 did not do was to call the appellant's name. Learned counsel for the respondent argued that the appellant was properly identified by PW1. It was stated in Eyisi v. State (2000) 15 NWLR (Pt. 691) 555 following the dictum of Lord Widgery CJ in R v. Turnbull (1976) 3 All E.R. 547 of the warning the Judge should give to the jury whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, that recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made and everything depends on the quality of the identification evidence. if the quality is good and remains good at the end of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality the greater the danger. Where, in the instant case the witness described the accused as dark in complexion, charcoal black, the trial Judge should examine closely how long PW1 had the appellant under observation; at what distance; in what light and how much time elapsed between the original observation and the subsequent identification to the Police? See: Anyanwu v. State (1985) 5 NWLR (Pt. 43) 612; State v. Aibangbee (1988) 3 NWLR (Pt.84) 548; Mbenu v. State (1988) 3 NWLR (Pt.84) 615. There are circumstances when identification parade is not necessary. One of such circumstances is where the victim or witness recognized the offender or accused person while the matter was still fresh in his mind as the person who committed the offence alleged. See: Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439; Ndukwe v. State (2009) 7 NWLR (Pt. 1139) 43. PW1 wrote Exhibit A on 16/9/2012 which was a few hours after the robbery incident and gave his evidence a year later. In Exhibit "A" he stated:- "I say that in the morning of Saturday 15th September 2012 at about 3am I was woken up from my sleep by armed robbers. Two of them entered my room. One was light complexion man of the two woke me up with his pistol and asked me where I kept my money. He did not wear any mask so I could see him very well. In any case he was so close to me putting his orders in a whisper. They used my torchlight which was very bright. They also put on my rechargeable lamp. The 2nd man was dark in complexion, charcoal black. He also wore no mask. He stood at the door pointing his gun at me." It is the appellant that PW1 described as charcoal black. From the account of PW1 both in his written statement and oral evidence in Court, it is clear that the PW1 had a good view of his traducers. The interval between the robbery and when PW1 sited the appellant at the Police Station was quite brief and since(2019) the appellant did not LPELR-47549(SC) wear a mask, he could not be faulted in his recognition of the appellant. Moreover the lighting condition was quite good. It was therefore needless to conduct a formal identification parade. So applying the parameters set out in Anyanwu v. State supra, it will be safe to conclude that an identification parade was unnecessary and if the one conducted was faulty, it should not affect the finding made by the learned trial Judge that the appellant was one of the robbers who robbed PW1 and his family in their home in the early hours of Saturday, 15th September, 2012. PW1 recognised the appellant as one of the robbers who robbed him and his family when the matter was still fresh in his mind and so the identification was not necessary. See: Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439 where Uwaifo JSC stated at page 450 that identification parade is not necessary where the witness recognised one of those who robbed him while the matter was still fresh in his mind and the man was still in the neigbourhood and within easy reach See also Mbenu v. State (1988) 3 NWLR (Pt. 84)615 and Abudu v. The State (1985) 1 NWLR (Pt.1) 55 at 61 - 62."Per AKA'AHS, J.S.C. (Pp. 7-11, Paras. D-E) - read in context 2. CRIMINAL LAW AND PROCEDURE - IDENTIFICATION PARADE: Guiding principles for proper identification parade "I have read carefully the briefs of argument of the appellant and the respondent. It is apparent that appellant is in agreement that there was indeed, a robbery operation on the day in issue, that is 15th September, 2012 and that PW1 is the victim of the said robbery. His contention in this appeal, however, is that he was not properly and legally identified as one of the robbers that robbed PW1 of his valuables that day. Respondent's case, however, is that appellant was positively identified by PW1 who was the victim and an eyewitness to the crime committed by appellant and his co-accused persons. It has been argued by learned counsel for appellant that it is a fundamental rule of identification, that the identifying witness must not have any opportunity, to see the people to be identified before the day of the identification parade. In the case of Okosi vs. The State (1989) 2 SC (pt 1) 126 the Supreme Court stated as follows:- "The object of an identification parade is to make sure that a witness can identify the criminal he saw and such identity shall be tested fairly and adequately during the trial. Such identification should be fair and seen to be fair, so that it will not be seen that the attention is being directed to the suspected person instead of equally to all persons paraded. It is for this purpose witnesses are not allowed before hand to see the suspected persons before the parade." There is no evidence on record to show that the above requirement was breached in the instant case. The respondent's counsel submitted that PW1 who was the victim of the crime and an eye-witness, properly identified appellant and his co-accused persons."Per ONNOGHEN, J.S.C. (Pp. 17-19, Paras. F- B) - read in context

3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Ingredients that must exist to prove the offence of armed robbery "Appellant was charged with the offence of armed robbery contrary to and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provision) Act Cap. R11, Laws of the Federation of Nigeria. 2004. It is settled law, and therefore trite, that for the prosecution to succeed in proof of the offence of armed robbery, there must be proof beyond reasonable doubt of the following: (a) that there was a robbery or series of robberies, (b) that such robbery was an armed robbery, (c) that the accused person was one of those who took part in the armed robbery - see the case of Okosi vs. The State."Per ONNOGHEN, J.S.C. (P. 19, Paras. C-F) - read in context

4. CRIMINAL LAW AND PROCEDURE -IDENTIFICATION PARADE: Circumstances where an identification parade will not be necessary "It is not in all cases that an identification parade is necessary. Where there is good and cogent evidence, linking the accused to the crime on the day of incidence, a formal identification is unnecessary. In the case of Emeka vs. State (2001) 14 NWLR (pt. 666) 683 paras G - 4, the Court laid down three basic ways of proving the commission of crime: (a) Confessional Statement (b) Circumstantial evidence (c) Evidence of Eye-witness I agree with(2019) the learned counsel forLPELR-47549(SC) the respondent who submitted that the eye-witness account of PW1 as regard the circumstances in which he saw the appellant and his co-accused is similar to the facts in the case of OSUAGWU vs STATE (2009) ALL FWLR (PT. 460) 700 @ 712. In the instant case, there was no need for a formal identification parade, it was not necessary. What happened in this case was that PW1, the victim of the robbery, recognized the three accused persons at the Police Station, a few hours after the robbery incident, when it was still fresh in his mind and the robbers were still in the neighbourhood when they were apprehended. This Court will not, in principle, interfere with the concurrent findings of fact by the lower Courts particularly as the circumstance in which this Court could have so intervened had not been made out."Per ONNOGHEN, J.S.C. (Pp. 20-21, Paras. A-A) - read in context 5. EVIDENCE - IDENTIFICATION EVIDENCE: Position of the law on identification evidence "Evidence on record reveals that the PW1 was robbed at around 3 a.m. on 15th September, 2012. He reported the matter to the Police and in the morning of that same day he was invited to the Police Station where he identified the Appellant and two others as those who robbed him. On 19th September, 2012, just four days after, an identification parade was organized at the Police headquarters where he and his daughter again identified the Appellant and the other two accused as those who robbed them. The position of the law regarding identification is that where the evidence of visual identification of an accused person is not destroyed by credible evidence to the contrary, the Court is entitled to accept and act on it. The Court would not be wrong if it acts on evidence of identification of an accused where such identification is spontaneous and natural. See the case of Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) P.1. See also Adeyemi v. State (1991) 1 NWLR (Pt.170) 679. I agree that at the time the PW1 identified the Appellant at Police Station for the first time, the incident of the robbery was still very fresh in his memory. At that point he was able to recognize the Appellant without any hesitation. At that circumstance, the identification-parade was no longer necessary. The trial judge had sufficient evidence to convict the accused even without the identification parade. It should not be forgotten that the statement of the PW1 in Exhibit "A" and his testimony in Court were not discredited by the Appellant. He stated clearly in Exhibit "A" that the Appellant did not wear any mask so he could see him very well. I am therefore of the considered view that the Appellant was properly identified by the PW1 who was able to give a detailed account of how he was robbed by the Appellant."Per OKORO, J.S.C. (Pp. 22-23, Paras. A-D) - read in context

(2019) LPELR-47549(SC) KUMAI BAYANG AKA'AHS, J.S.C. (Delivering the Leading Judgment): The appellant and two others were arrested on 15 September, 2012 in an uncompleted building close to the house of Hon Justice Agbelusi Micheal Ayowole of the High Court of Justice, Ekiti State who was the victim of armed robbery which took place around 3 am on the same date. After the robbery, he reported to the Police who made arrest in the uncompleted building. In the morning of the incident the Police called him to the Police Station and on reaching there he pointed at the appellant and two others seated on the bench in the Police Station, New lyin Road, Ado Ekiti as those who robbed him. The arrested persons were later transferred to the Special Anti- Robbery Squad (SARS) of the Criminal Investigation Department (SCID) for further investigation. During the course of investigation an identification parade was conducted and the victim of the robbery who testified as PW1 identified the appellant and the other two accused whom he had earlier identified at the Police Station, New lyin Road(2019) Ado Ekiti. LPELR-47549(SC)He also made a Statement concerning the robbery incident.

1 At the conclusion of Investigation by the Police, a two count charge of armed robbery was proffered against the appellant and three others, one of whom was the driver of PW1 who did not report for work on the day of the robbery. The three accused who were allegedly involved in the robbery were found guilty of the offence, convicted and sentenced to death by hanging. They lost the appeal to the Court of Appeal and decided to further appeal to the Supreme Court.

The Notice of Appeal containing 5 grounds of appeal was filed on 25/1/2016 from which learned counsel for the appellant distilled two issues for determination as follows:-

1. Whether the learned Justices of the Court of Appeal were correct when they held that the identity of the appellant as one of the robbers that robbed PW1 was established by the prosecution (distilled from grounds 1 and 2 of the Notice of Appeal) 2. Whether the Court of Appeal was correct when it held that(2019) the prosecution LPELR-47549(SC) indeed proved its case of armed robbery against the appellant beyond reasonable doubt (distilled from grounds 3 and 4 of the Notice of Appeal). ​ The respondent also formulated two issues for determination from its

2 brief which was deemed filed on 11/4/2018. The issues are: -

1. Whether the identity of the appellant as a member of the armed robbery gang was established by the prosecution in the instant appeal. 2. Whether on the totality of the evidence before the Court, the prosecution has proved the case of armed robbery against the appellant beyond reasonable doubt.

The formulation of issues by the respondent encapsulates the complaints made in the grounds of appeal. Although ground 5 seems to have been abandoned when the appellant was formulating the issues for determination, the complaint in that ground is also to be found in ground 4 from which issue 2 has been distilled.

The gravamen of this appeal centres on the appellant's identification as one of those who participated in the robbery(2019) that took LPELR-47549(SC) place in PW1's residence on 15 September, 2012. Learned counsel of the appellant is not disputing the robbery which occurred in PW1's house in the wee hours of 15 September, 2012 whereby the PW1 was dispossessed of N35,000.00 case handsets and other items at gun point. What learned counsel is quarrelling about is the method used in identifying the

3 appellant as one of the robbers. Learned counsel argued that the way and manner the appellant was identified after arrest by PW1 was faulty in law. Learned counsel pointed out that PW1 had the opportunity to see the appellant prior to the time he identified him to the Police Investigators at SARS during the identification parade. He contended that such identification parade is unknown to law as the usual and accepted practice is to place the suspect among other suspects so that the identifying witness will pick out the alleged suspect without assistance. Relying onBozin v.

State (1985) 2 NWLR (Pt. 8) 465learned counsel submitted that since there was a violation of the laid down rules and procedure relating to identification parade and also lack of evidence to support the correctness of the identification, the appropriate thing was for the two lower Courts to have acquitted the appellant of the charge and discharge him from the trial. He also cited the case of Godspower Asakitikpi v. State (1993) 5 NWLR (Pt.

296) 641 at 655 where Uwais JSC (as he then was) stated that where(2019) the identification LPELR-47549(SC) evidence is poor, the trial Court should return a verdict of not

4 guilty unless there is other evidence which goes to support the correctness of the identification.

Learned counsel for the respondent conceded that PW1 saw and identified the appellant and the two other suspects before the identification parade was carried out at the State CID but submitted that identification parade at the State CID was only a confirmation of what had taken place earlier at the New lyin Road Police Station. Learned counsel argued that identification parade is not necessary in circumstances where the victim or witness recognised the accused person as the person who committed the alleged crime when the matter was still fresh in his mind and placed reliance on Mbenu v. State (1988) 3 NWLR

(Pt. 84) 615 and Ukpabi v. State (2004) All FWLR (Pt. 218) 814. He maintained that PW1 who was the victim of the crime gave evidence that he saw the appellant and his co- accused on 15/9/2012 and the trial Judge believed and convicted him and the co-accused and so the lower Court was right(2019) in upholding LPELR-47549(SC) the judgement of the trial Court.

Justice Agbelusi Michael Ayowole (PW1) narrated the ordeal that he and some of his children went through when the

5 robbers invaded his residence at Egbewa Housing Estate opposite NTA Ado-Ekiti on 15/9/2012 at 3am armed with guns. When they entered the house, the 1st accused switched on his (PW1's) reading lamp which was very bright. None of the accused wore a mask. He said the 2nd accused (now appellant) was standing at the door and pointed his gun at him. He described him as a young boy, charcoal black. He said that the 1st accused whispered to his ears demanding for money and handsets. He took the Ist accused to where he kept his valuables where he collected N35,000.00, the handsets and other valuables. While the 1st accused was collecting the money and the other items, the 2nd accused stood alert with his gun. When the 1st accused was done, they (i.e. 1st and 2nd accused) led him out of the room. It was when he came out of the room that he saw the 3rd accused standing with his gun. The accused later locked PW1 and other occupants of the house inside toilets and took two of the female children somewhere. They were inside the toilet for between 40-45 minutes (2019)and one of theLPELR-47549(SC) children told him the robbers had left because they heard the sound of motor cycle. After regaining

6 his freedom he ran to the New Iyin Police Station where he shouted ‘I am a victim of armed robbery’. He said that immediately he shouted, the police on duty opened their gate where he narrated his story and they contacted the Divisional Police Officer. He made a statement at New lyin Road Police Station which was tendered in evidence as Exhibit A. He was taken to the Police Station and on getting there many suspects were lined up and a policeman asked him if he could identify those that went to this house and he pointed to the 1st and 3rd accused. On 19/9/2012 an identification parade was organized at the Police headquarters where he and his daughter, Temitope Agbelusi identified the 1st-3rd accused.

The oral evidence of PW1 confirms the statement he made immediately after the robbery which was admitted as Exhibit `A' under cross-examination. He made Exhibit A on 16/9/2012 when the incident of the robbery was still very fresh in his memory. His description of the 2nd accused now appellant(2019) was: - LPELR-47549(SC) "The 2nd man was dark in complexion, charcoal black. He also wore no mask.' In his oral evidence he said: - "The 2nd accused was

7 standing at the door pointing his gun at me and I was wondering that this small boy could be an armed robber. A young boy, charcoal black."(underlining mine for emphasis). In his brief of argument in paragraph 4.4, learned counsel for the appellant maintained that no mention was made of PW1 recognizing or identifying the appellant in Exhibit "A". This is far from the truth. The only thing PW1 did not do was to call the appellant’s name. Learned counsel for the respondent argued that the appellant was properly identified by PW1.

It was stated in Eyisi v. State (2000) 15 NWLR (Pt. 691)

555 following the dictum of Lord Widgery CJ in R v.

Turnbull (1976) 3 All E.R. 547 of the warning the Judge should give to the jury whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, that recognition may be more reliable than identification of a stranger; but even when the(2019) witness is purportingLPELR-47549(SC) to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made

8 and everything depends on the quality of the identification evidence. if the quality is good and remains good at the end of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality the greater the danger. Where, in the instant case the witness described the accused as dark in complexion, charcoal black, the trial Judge should examine closely how long PW1 had the appellant under observation; at what distance; in what light and how much time elapsed between the original observation and the subsequent identification to the Police?

See: Anyanwu v. State (1985) 5 NWLR (Pt. 43) 612;

State v. Aibangbee (1988) 3 NWLR (Pt.84) 548; Mbenu v. State (1988) 3 NWLR (Pt.84) 615. There are circumstances when identification parade is not necessary. One of such circumstances is where the victim or witness recognized the offender or accused person while the matter was still fresh in his mind as the person who committed the offence alleged. See:Ukpabi v. State

(2004) 11 NWLR (Pt. 884) 439;Ndukwe v. State (2009) 7(2019) NWLR (Pt. LPELR-47549(SC) 1139) 43. PW1 wrote Exhibit A on 16/9/2012 which was a few hours after the robbery incident and gave his

9 evidence a year later. In Exhibit "A" he stated: - “I say that in the morning of Saturday 15th September 2012 at about 3am I was woken up from my sleep by armed robbers. Two of them entered my room. One was light complexion man of the two woke me up with his pistol and asked me where I kept my money. He did not wear any mask so I could see him very well. In any case he was so close to me putting his orders in a whisper. They used my torchlight which was very bright. They also put on my rechargeable lamp. The 2nd man was dark in complexion, charcoal black. He also wore no mask. He stood at the door pointing his gun at me." It is the appellant that PW1 described as charcoal black. From the account of PW1 both in his written statement and oral evidence in Court, it is clear that the PW1 had a good view of his traducers. The interval between the robbery and when PW1 sited the appellant at the Police Station was quite brief and since the appellant did not wear a mask, he could not be faulted in his recognition of the appellant. Moreover(2019) the lighting LPELR-47549(SC) condition was quite good. It was therefore needless to conduct a formal identification parade. So

10 applying the parameters set out in Anyanwu v. State supra, it will be safe to conclude that an identification parade was unnecessary and if the one conducted was faulty, it should not affect the finding made by the learned trial Judge that the appellant was one of the robbers who robbed PW1 and his family in their home in the early hours of Saturday, 15th September, 2012. PW1 recognised the appellant as one of the robbers who robbed him and his family when the matter was still fresh in his mind and so the identification was not necessary. See: Ukpabi v. State

(2004) 11 NWLR (Pt. 884) 439 where Uwaifo JSC stated at page 450 that identification parade is not necessary where the witness recognised one of those who robbed him while the matter was still fresh in his mind and the man was still in the neigbourhood and within easy reach

See also Mbenu v. State (1988) 3 NWLR (Pt. 84)615 and Abudu v. The State (1985) 1 NWLR (Pt.1) 55 at 61 - 62.

As the arguments(2019) inLPELR-47549(SC) the appeal turn on lack of proper identification parade to confirm that the appellant was one of those who participated in the robbery of 15th September, 2012, I find that the appeal is completely

11 devoid of merit and I accordingly dismiss it.

WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: Learned Counsel for appellant formulated two issues for determination of the appeal and these are:

"ISSUE Whether the learned Justices of the Court of Appeal were correct when they held that identity of appellant as one of the robbers that robbed PW1 was established by the prosecution (distilled from grounds 1 and 2 of the Notice of Appeal). ISSUE 2 Whether the Court of Appeal was correct when it held that the prosecution indeed proved its case of armed robbery against the appellant beyond reasonable doubt (distilled from grounds 3 & 4 of Notice of Appeal)."

Learned counsel for respondent Director of Public Prosecution(2019) Ministry LPELR-47549(SC) of Justice, Ado Ekiti, similarly formulated two issues for determination of the appeal thus:

"ISSUE 1 Whether the identity of appellant as a member of the Armed Robbery Gang was established by the prosecution in the instant appeal. ISSUE 2 Whether on the totality of the evidence before the Court, the prosecution has proved the case of armed robbery against the appellant beyond 12

(2019) LPELR-47549(SC) reasonable doubt."

ISSUE 1 The contention of the appellant is on the manner in which appellant was identified, which was done in violation of the laid down and settled principles of law.

Learned counsel for appellant noted that the process of identifying a suspect (identification parade) is necessary where the accused person was not arrested at the scene of the crime neither is there a confessional statement pinning the accused person to the scene of the crime.

He submitted that appellant was not properly and legally identified as one of the robbers that robbed PW1 of his valuables on 15th September, 2012. According to counsel, the case against his client - that he is one of the robbers that invaded PW1's residence but PW1, had never met the applicant before the incidence and had no dealing with him whatsoever.(2019) Upon the LPELR-47549(SC) report of the alleged robbery at the police station, PW1 was brought in to meet face to face with a group of boys arrested around PW1's residence. It was there that the prosecution alleged appellant was identified. Learned Counsel referred to Evidence in Chief of PW1 at the trial Court at page 27 line 5 - 6 of the record as

13 follows: - “Upon getting to the police station many suspects were line up and a policeman asked me if I could identify those that came to me that Morning."

Also, PW2 during cross examination further reinforced PW1 evidence at page 32 lines 3 - 6 of the records as follows: - “When the second team of the patrol came with the other suspects, my DPO made a call to judge to see the face of those that were arrested because they were too many on that day the judge could only identify three among those who robbed him that night."

Learned counsel for appellant argued that in the course of police investigation at SARS (SC.ID) Ado Ekiti, the police conducted identification parade without any confessional statement being extracted from appellant; that the above exercise shows that the way and manner appellant was identified after his arrest by PW1 was faulty in law, relying on the case(2019) of Henry LPELR-47549(SC) Otti vs. the State (1993)4 NWLR part 290 @ pgs 675 & 680.

Learned counsel for appellant finally submitted that since there was a violation of the laid down rules and procedure relating to the identification parade as adopted by the police in

14 this case and also for lack of evidence that supports the correctness of the identification, the appropriate thing to do was for trial Court and the Court below to have discharged and acquitted appellant. Counsel referred to the case of Godspower Asakitikpi vs. The State (1993) 5

NWLR (pt. 296), 641 at 655.

In response, learned counsel for the respondent submitted that appellant was positively identified by the PW1 who was the victim and an eye-witness to the crime committed by appellant and his co-accused. Learned counsel further submitted that in Criminal Jurisprudence, there are three basic ways of proving the commission of crime cum the guilt of the accused person as laid down in the case of

EMEKA v. STATE (2001) 14 NWLR (pt. 666) 683 paras G - H they are:- (a) Confessional statement

(b) Circumstantial Evidence (c) Evidence of Eye witness (2019) LPELR-47549(SC)

Learned counsel opined that in the instant case, the prosecution vide the evidence of the PW1 who was an eye witness of the robbery incident, gave a vivid and accurate account of what happened on 15th September, 2012.

PW1, while giving his evidence in Court - pages 25 - 26 of

15 record of appeal; stated: "I know the 1st - 3rd accused persons on the 15/9/2012 while the 4th accused was my driver, on 15th September 2012 a Saturday, around 3am, I was woken from my sleep by the 1st accused with the pistol of his gun, he tapped me and when I woke, he gestured to me to keep quiet and pointed the gun at my ear, upon their entering, the 1st accused person put on my reading lamp which was very bright so I could see him vividly. None of the 1st - 3rd accused wore any mask that morning. They were as they were standing. The 2nd accused was standing at the door pointing his gun at me and I was wondering that this small boy could be an armed robber. A young boy charcoal black. The 1st accused put his mouth near my ear and asked where is your money? Where are your handsets? They say you are a lawyer? I took him to where my valuables are at gun point. As he was collecting it an going about the 2nd accused stood alert with his gun. He collected a SUM N35,000:00,(2019) my handsets LPELR-47549(SC) and other items. When the 1st accused was done, both the 1st and 2nd accused persons led me out of the room, upon my coming out of the room was the 3rd

16 accused standing with his gun. None of the accused wears mask. When I came out of my room, he pushed me up. They led me inside the toilet and locked the door, they went and gathered all that were in the house and locked others in the toilet."

Learned counsel further submitted that appellant was properly identified by PW1 and that in the instant case, there was even no need for an identification parade; that the trial Court rightly convicted the appellant based on the evidence. He cited the case of Ibrahim v. State (1991) 5

SCJN 129 this Court held that: - “The position of law is that where there is clear and uncontradictory eye witness account and identification of the person who committed the offence, then identification parade will not be necessary."

Learned counsel for the respondent finally submitted that the prosecution’s case is case is anchored directly on the eye-witness(2019) evidence LPELR-47549(SC) of the Pw1 and urged the Court to resolve the issue in favour of respondent and dismiss the appeal as lacking in merit. ​ I have read carefully the briefs of argument of the appellant and the respondent. It is apparent that appellant is in

17 agreement that there was indeed, a robbery operation on the day in issue, that is 15th September, 2012 and that PW1 is the victim of the said robbery. His contention in this appeal, however, is that he was notproperly and legally identified as one of the robbers that robbed PW1 of his valuables that day. Respondent's case, however, is that appellant was positively identified by PW1 who was the victim and an eyewitness to the crime committed by appellant and his co-accused persons. It has been argued by learned counsel for appellant that it is a fundamental rule of identification, that the identifying witness must not have any opportunity, to see the people to be identified before the day of the identification parade.

In the case of Okosi vs. The State (1989) 2 SC (pt 1)

126 the Supreme Court stated as follows: - “The object of an identification parade is to make sure that a witness can identify the criminal he saw and such identity shall be tested fairly and adequately during the trial. Such identification should be fair and seen to be fair, so that it will not be(2019) seen that LPELR-47549(SC) the attention is being directed to the suspected

18 person instead of equally to all persons paraded. It is for this purpose witnesses are not allowed before hand to see the suspected persons before the parade." There is no evidence on record to show that the above requirement was breached in the instant case. The respondent’s counsel submitted that PW1 who was the victim of the crime and an eye-witness, properly identified appellant and his co-accused persons.

Appellant was charged with the offence of armed robbery contrary to and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provision) Act Cap. R11, Laws of the Federation of Nigeria. 2004. It is settled law, and therefore trite, that for the prosecution to succeed in proof of the offence of armed robbery, there must be proof beyond reasonable doubt of the following: (a) that there was a robbery or series of robberies, (b) that such robbery was an armed robbery, (c) that the accused person was one of those who took part in the armed(2019) robbery LPELR-47549(SC) - see the case ofOkosi vs. The

State.

Counsel for the prosecution had made submission that this case is not only on identification parade but also on the

19 eye-witness evidence of the PW1.

It is not in all cases that an identification parade is necessary. Where there is good and cogent evidence, linking the accused to the crime on the day of incidence, a formal identification is unnecessary. In the case of Emeka vs. State (2001) 14 NWLR (pt. 666) 683 paras G - 4, the Court laid down three basic ways of proving the commission of crime: (a) Confessional Statement (b) Circumstantial evidence (c) Evidence of Eye-witness I agree with the learned counsel for the respondent who submitted that the eye-witness account of PW1 as regard the circumstances in which he saw the appellant and his co- accused is similar to the facts in the case of OSUAGWU vs

STATE (2009) ALL FWLR (PT. 460) 700 @ 712. In the instant case, there was no need for a formal identification parade, it was not necessary. What happened in this case(2019) was that LPELR-47549(SC) PW1, the victim of the robbery, recognized the three accused persons at the Police Station, a few hours after the robbery incident, when it was still fresh in his mind and the robbers were still in the neighbourhood when they were apprehended. This Court will not, in

20 principle, interfere with the concurrent findings of fact by the lower Courts particularly as the circumstance in which this Court could have so intervened had not been made out.

In conclusion, I agree with the reasoning and conclusion of my learned brother, AKAAHS, JSC that the appeal lacks merit and should be dismissed and order accordingly. Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother KUMAI BAYANG AKAAHS JSC just delivered. I agree with the reasoning and conclusion therein which I hereby adopt as mine in dismissing the unmeritorious appeal. I abide by the consequential orders made in the lead judgment.

JOHN INYANG OKORO, J.S.C.: My learned brother,

Akaahs, JSC, obliged me in advance the judgment just delivered. I agree with him that this appeal has no merit and deserves(2019) to be dismissed. LPELR-47549(SC) The facts and circumstances leading to this appeal have been meticulously discussed in the lead judgment and I shall not repeat the exercise. I am of the considered view that this appeal is hinged on the first issue argued by both the Appellant and the

21 Respondent, to wit:

"Whether the identity of the appellant as one of the robbers that robbed PW1 was established by the prosecution."

Evidence on record reveals that the PW1 was robbed at around 3 a.m. on 15th September, 2012. He reported the matter to the Police and in the morning of that same day he was invited to the Police Station where he identified the Appellant and two others as those who robbed him. On 19th September, 2012, just four days after, an identification parade was organized at the Police headquarters where he and his daughter again identified the Appellant and the other two accused as those who robbed them. The position of the law regarding identification is that where the evidence of visual identification of an accused person is not destroyed by credible evidence to the contrary, the Court is entitled to accept and act on it. The Court would(2019) not beLPELR-47549(SC) wrong if it acts on evidence of identification of an accused where such identification is spontaneous and natural. See the case of Ilodigwe v.

State (2012) 18 NWLR (Pt. 1331) P.1. See also Adeyemi v. State (1991) 1 NWLR (Pt.170) 679.​ I agree that at the time the PW1 identified

22 the Appellant at Police Station for the first time, the incident of the robbery was still very fresh in his memory. At that point he was able to recognize the Appellant without any hesitation. At that circumstance, the identification-parade was no longer necessary. The trial judge had sufficient evidence to convict the accused even without the identification parade. It should not be forgotten that the statement of the PW1 in Exhibit “A” and his testimony in Court were not discredited by the Appellant. He stated clearly in Exhibit "A" that the Appellant did not wear any mask so he could see him very well. I am therefore of the considered view that the Appellant was properly identified by the PW1 who was able to give a detailed account of how he was robbed by the Appellant.

I hold that the Court below was right in affirming the judgment of the trial Court. This appeal is without merit and is hereby dismissed by me. I affirm the decision of the Court below.(2019) LPELR-47549(SC) Appeal dismissed.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Kumai Bayang Akaahs, JSC, just

23 delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit, and it is accordingly dismissed by me.

(2019) LPELR-47549(SC)

24 Appearances:

D. A. Awosika, Esq. with him, R. E. Michael, Esq. For Appellant(s)

Gbemiga Adaramola (D.P.P. Ekiti State) with him, A. A. Moshood (Legal Officer)For Respondent(s)

(2019) LPELR-47549(SC)