Court must consider any defence open to an accused – Court of Appeal

In The Court of Appeal (Lagos Judicial Division) On Friday, the 5th day of June, 2015 Suit No: CA/L/916/2014 Before Their Lordships UZO I. NDUKWE-ANYANWU  (JCA); CHINWE EUGENIA IYIZOBA (JCA); YARGATA BYENCHIT NIMPAR    (JCA) Between HARUNA TIMOTHY –  Appellants And PEOPLE OF LAGOS STATE  –  Respondents   UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): […]

In The Court of Appeal (Lagos Judicial Division) On Friday, the 5th day of June, 2015 Suit No: CA/L/916/2014 Before Their Lordships UZO I. NDUKWE-ANYANWU  (JCA); CHINWE EUGENIA IYIZOBA (JCA); YARGATA BYENCHIT NIMPAR    (JCA)
Between
HARUNA TIMOTHY –  Appellants
And
PEOPLE OF LAGOS STATE  –  Respondents
 
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment):

Furthermore, the PWs identified the two other accomplices with their passport photographs.
 The appellant did not file adequate particulars of his alibi even though DW1 and DW4 claimed they were with him. However, DW1 said he was not with him throughout the whole day of the robbery. The appellant was required by law to raise his defence of alibi at the earliest opportunity, so that it may be investigated. In Iheonunekwu Ndukwe vs. The State (2009) 2-3 SC pg. 7; (2009) 7 NWLR pt.1139 pg. 43, the Supreme Court per Mohammed stated as follows:
 “It is not enough for the accused person to say to the court, that he was not at a particular place away from the scene of the crime. That he has to prove his assertion. That even if the Police have failed to investigate such an assertion, the accused person, has the onus of adducing evidence on which he relies for his defence of Alibi. See Yanor and Anor vs. The State (supra). It can be seen that failure of the police to investigate, does not, automatically, mean failure of the prosecution’s case. There is a rider which places such onus, on the accused person on the balance of probability. See Ime David Idiok vs. The State (2008) 13 NWLR pt.1104 pg.223”
 In sum, what the above means is that where the accused raises the defence of alibi and it is not investigated, he can still be convicted if there is a stronger and credible evidence before the court. See Aiguoreghian vs. The State (supra), Nwosisi vs. The State (1976) 6 SC pg.109.
 The appellant though he raised a defence of alibi did not give adequate particulars and, therefore, the Police could not investigate.
However, the appellant was positively fixed to the scene of crime. The prosecution adduced credible, cogent, unassailable, admissible and adequate evidence to pin the accused to the crime scene.
 The appellant was positively identified by PWs because he was wielding the gun at the first interaction with the PWs. He was also said to be the one commanding the operation. The telephone number given at the scene of the crime to facilitate payment of what the appellant demanded was one number that connected him with the other accomplices and used in tracking him down. He did not deny this fact. The appellant and the Nigeria Navy vehicle used in the operation were positively identified by the PWs.
 The trial court in her judgment rejected the so-called confessional statement Exhibit P5 as the appellant resiled on it. There was no trial within trial conducted as to the authenticity of Exhibit P5.
Therefore, the trial judge was right in not placing reliance on it.
However, the evidence of the PWs are identical to what was in Exhibit P5. The trial judge rejected the Alibi of the appellant and accepted the evidence of the PWs as being credible.
 This issue is, therefore, resolved against the appellant.
ISSUE 2
The learned appellant’s counsel in his brief made heavy weather about the identification parade conducted by the police. Counsel submitted that the PWs did not identify the appellant as their assailant in Panti Police Station. This is not so as the appellant was arrested after he had been lured to the Mr. Biggs in Alakija with the telephone number they left at the scene of crime. He escaped from the police station the very next day. He was rearrested about six (6) weeks later by the Nigeria Navy and taken to their barracks. It was there that an identification parade was conducted with the Police IPO in attendance.
The evidence of the identification parade conducted revealed that it was done according to law. More than 20 uniformed Naval officers were paraded. All the three PWs identified the appellant positively.
The Naval vehicle used in the operation was also identified.
It is important to note that the PWs also identified the two accomplices now at large with passport photographs of over forty [40] Naval officers. 
The PWS in their evidence (examination in chief and cross examination) that the appellant with his two (2) accomplices accosted them twice, molesting and terrorising them with weapons. This gave the PWs the opportunity of observing their physical features well. The PWs said that the scenes were illuminated by the vehicle lights. They were also, at one point, in front of an industry that had security lights illuminating the scene.
 In total, the PWs spent enough time with the appellant and his two (2) accomplices. This gave them ample time to really observe their physical features.
 The PWs positively, therefore, identified the appellant from a group of Naval officer paraded at the Nigeria Navy barracks. The PWs also identified the other two (2) accomplices now at large from a host of passport photographs. It is important to state here the appellant alleged that the PWs did not identify him at the police station. It is in evidence that when the appellant was arrested he was taken to Panti Police Station from where he escaped the very next day. When he was re-arrested about six (6) weeks later, he was taken to the Nigeria Navy barracks.
 The PWs never saw him again after their ordeal until they positively identified him at the identification parade conducted in the Nigeria Navy barracks.
The identity of the appellant cannot be said to be in issue as the PWs had knowledge of the accused person. See Archibong vs. State (2004) 1 NWLR pt.855 pg. 488, Aladu vs. State (1998) 8 NWLR pt.563 pg.618, Igbi vs. State (2000) 2 SC pg. 67.
 The courts have re-iterated that identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused like in this case. The PWs had ample opportunity to observe the features of their assailants which led to a positive identification of them. The PWs recognised the appellant and his accomplices. 
Eyisi vs. The State (2001) 8 WRN pg. 1.
Although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential in the following instances:
a. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
b. where the victim or witness was confronted by the offender for a very short time; and
 c. where the victim due to time and circumstance, might have had full opportunity of observing the features of the accused. See Ukpabi vs. State (2004) 11 NWLR pt.884 pg.439, Ebri vs. State (2004) 11 NWLR pt.885 pg.589.
Identification evidence is generally to show that the person charged with an offence is the same person who committed the offence. Where the trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Ukpabi vs. State (supra); Archibong vs. State (supra).
In the instant case, the trial Judge satisfied itself about the identity of the appellant.
 The PWs recognised and identified the appellant and his other two (2) accomplices. The PWs were able to recognise them because they had a prolonged encounter with them. The area they were confronted was properly illuminated by the light from the factory and the head lamps of the vehicles.
The telephone communication with the appellant by one of the PWs positively placed the appellant at the scene of crime since the telephone number was given at the Scene of crime. The appellant had not denied the telephone number and the way he was lured to the Mr. Biggs in Alakija where he was arrested for the first time. Even though he denied making the statement Exhibit P5, its content was in tandem with the evidence of the PWs. Exhibit P5 does not become inadmissible because the appellant denied making it or retracts the confession on oath. The confessional statement cannot also be regarded as unreliable by the mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Dibie vs. State (2007) 9 NWLR pt.1038 pg.30, Oche vs. State (2007) 5 NWLR pt.1027 pg.214, Okpong vs. Queen (No.1) (1961) 1 SCNLR pg.53.
 This was what the trial Judge stated. She did not accept that Exhibit P5 was a confessional statement. However, Exhibit P5 was taken into consideration to decide what weight could be attached to it; Dibie vs. State (supra), Ukpong vs. State (supra). In this case, the evidence of the PWs were reliable and goes to no other conclusion other than the identity of the appellant was not in doubt.
It was also not in doubt that he participated in the robbery whilst carrying a weapon – military rifle.
The appellant had alleged some contradictions in the evidence of the PWs. The courts have held that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case.
It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court while also creating some doubt in the mind of the trial court that an accused is entitled to benefit therefrom. See Theophilus vs. The State (1996) 1 NWLR Pt.423 pg.139, Chukwu vs. State (1996) 7 NWLR pt.463 pg.686.
 This issue is, therefore, resolved against the appellant. The issues articulated and determined are all resolved against the appellant.
This appeal is unmeritorious and, therefore, dismissed. I affirm the judgment of the trial court and the sentence passed. 
    Appearances:
Eubena Amedu, Doris Okosi, Oliver Eyan   –  for the appellants
 E. I. Alakija (Mrs) – DPP, O. Akin-Adesomoju [Mrs) – CSC, O. A. Olugasa (Mrs) CSC, A. Omolua (Miss)  –  for the respondents
Concluded