SEUN v. STATE CITATION: (2019) LPELR-47549(SC) In the Supreme Court of Nigeria 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 JOHN INYANG OKORO 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.