Can the identification of an accused person sustain a conviction without disclosing the fact of such identification?

CHUKWUMA IDOKO v. THE STATE (2019) LPELR-48957 (CA)

In the Court of Appeal
In the Owerri Judicial Division
Holden at Owerri

On Monday, 9th December, 2019
Suit No: CA/OW/63C/2018

Before Their Lordships:

AYOBODE OLUJIMI LOKULO-SODIPE, JCA
ITA GEORGE MBABA, JCA
IBRAHIM ALI ANDENYANGTSO, JCA

Between
CHUKWUMA IDOKO -Appellant(s)

And

THE STATE -Respondent(s)

LEAD JUDGMENT DELIVERED BY AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

FACTS OF THE CASE
The appellant and two others were charged with the offence of armed robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 1990. According to the respondent, the appellant and the two other accused persons, while armed with a locally made pistol, robbed one Justin Onuoha, the driver of a Mitsubishi Bus L300 with Registration No. XC 244 NNE of the sum of N4, 170 and the other passengers in the bus namely – Chinedu Njoku of the sum of N130, 000, Augustine Bakwe of the sum of N25, 000 and Emenike Paschal of the sum of N120, 000 on 24/7/2003, at Ihitte Junction Ngor Okpala LGA.

Upon their arraignment before the High Court of Imo State, Owerri, the appellant and the other two accused persons each pleaded not guilty to the charge preferred against them. At the close of the case for the prosecution, the accused persons (including the appellant), made a no case submission, which was overruled and dismissed. After a full-fledged trial, the High Court of Imo State found the appellant guilty of the offence of armed robbery and duly sentenced him to death. The 2nd and 3rd accused persons were acquitted and discharged of the offence of armed robbery, but each of them was found guilty of the offence of stealing and sentenced to five years imprisonment without option of fine.
Aggrieved, the appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The lone issue formulated by the respondent, as follows:
“Whether having regard to the quality of evidence adduced in this case, the conviction of the appellant was justified?”

APPELLANT’S SUBMISSION
The appellant began by submitting that it was wrong for the trial court to have found the 2nd and 3rd accused persons in the charge not guilty of the offence of armed robbery as charged but guilty of another offence which is entirely distinct from the offence with which the three accused persons were charged with. That PW1 even made his statements to the Police without identifying any of the said accused persons. That Justin (sic) Onuoha who claimed to have recognized the appellant before he was apprehended by some Okada riders, did not testify at the trial; yet the trial court convicted him (appellant) for armed robbery and discharged and acquitted the 2nd and 3rd accused persons contrary to the charge that all the three persons perpetrated the alleged armed robbery.

The appellant relied on the trite position of law that where there are several accused persons, the discharge of one accused person charged on same set of facts with other accused persons shall affect the discharge of the other accused persons, citing the case of Usufu v. State (2008) All FWLR (Pt. 405) 1731 at 1759; (2006) LPELR-11790 (CA).

On whether the material contradictions in the evidence of the prosecution witness do not generate doubts which could have been resolved in his favour, the appellant submitted in the main that there were inconsistencies in the statement of PW1 to the Police and his oral evidence regarding how the appellant came to be arrested. That from the statements of PW1 to the Police made on 24/7/2003 and 5/8/2003, PW1 never saw the appellant at the time he was arrested by Okada riders and at the time he was taken to the Police Station and even till the matter came to court. That PW1 had in his statement of 24/7/2003 to the police said “I can identify two of them if seen” and stated the same in his second statement to the Police dated 5/8/2003. That this statement of PW1 that he can identify the suspects if seen clearly implies that as at the time of making the statements, even the one PW1 made on 5/8/03, which is later in time, PW1 had not seen the appellant and neither did he identify him as one of those who allegedly robbed the bus conveying PW1 and others.

Dwelling on the aspect of the appeal as to whether the failure of the prosecution to call vital/material witnesses in the matter is fatal to the case of the prosecution, the appellant referred to the case of Babarinde v. State (2013) All FWLR (Pt. 662); (2012) LPELR-8367 (CA) as enunciating who qualifies as a vital witness and the effect of failure of prosecution to call such vital witness. It is the stance of the Appellant that in the instant case, the prosecution failed to call a material witness in the proof of its case and that the trial court erred by not resolving the doubt created thereby in the appellant’s favour.

That the evidence of PW1 was an unreliable hearsay evidence of identification that is most improper. That the failure of the prosecution to call the driver of the bus who is a very vital and material witness in this case, and who claimed to have recognized him as one of those that committed the robbery, is highly fatal to the case of the prosecution and generates a serious doubt as to whether the person prosecuted and convicted was really the person that committed the act complained of.

RESPONDENT’S COUNSEL SUBMISSION
The respondent in response to the appellant’s argument that he was entitled to be acquitted and discharged because the other two accused persons charged along with him were not found guilty of the offence of armed robbery, submitted that the contention of the appellant in this regard, is misconceived. That the respondent established each of the elements of the offence charged via clear, direct and positive evidence especially that of PW1, whose evidence fixed the appellant with the commission of the crime.

On the effect of the identification by PW1, the respondent submitted to the effect that the identification of the appellant was not in doubt in the instant case, given PW1’s account of the incident as presented before the lower court. That the prosecution proved its case against the appellant in the instant case, by evidence of an eye witness – PW1 and circumstantial evidence adduced through the other prosecution witnesses. That at the earliest opportunity, PW1 identified the appellant as one of the persons that robbed them and as the person, he saw holding gun behind the driver. On the issue of contradictions, the respondent submitted that this could not in any way hold water as whatever discrepancies were in the evidence of PW1, were minor and cannot be fatal to the case of the prosecution.

On the issue of the non-calling of “vital/material witnesses”, the respondent submitted that the prosecution is not bound to call all the persons that witnessed the commission of the crime by an accused person. That in the instant case, involving the appellant, all the prosecution needed to do, is to call enough material witnesses to prove its case and in so doing, it has discretion in the matter.

RESOLUTION OF ISSUES
In resolving the appeal, the Court began by saying a few words regarding the use to which the previous statement(s) made by a witness or witnesses, to the Police could be put. The Court relied on the positions of the law in the case of AKPABIO V. STATE (1994) LPELR-369 (SC) and OLAOYE V. STATE (2018) LPELR-43601 (SC) where the Supreme Court stated that the position of the law before any contradiction can be established between the evidence of a witness and the previous statement made by the witness, is that the statement must be brought to the attention of the witness for his explanation in accordance with Sections 199 and 209 (now Sections 232 and 235) of the Evidence Act.

In the instant case, the court perused the records of appeal and noted that the previous statements of PW1 was tendered and marked as an exhibit at the instance of the appellant’s counsel, yet he never put the said exhibit to any use for any purpose; either prior to, or after the admission of the said statements as an exhibit. Neither did he seek to resolve any inconsistency in the statements. According to the Court, since the appellant failed to do this at the trial court, this cannot now be done at this stage, i.e. in the appellate Court. This is because a prosecution witness when confronted with any aspect or part of his previous statement that is contradictory with his evidence in Court, can always explain the said inconsistency in question. This, PW1 obviously cannot do in the instant appeal.

Most importantly, the Court identified the Appellant’s grouse in the main to be against his conviction and the sentence passed on him by the trial court, because there is no credible evidence of identification linking him with or to the offence of armed robbery for which he was convicted and sentenced to death and whether the eyewitness account of PW1 established beyond reasonable doubt that the appellant was one of the robbers that carried out the armed robbery in question.

In resolving this, the Court perused the evidence of the prosecution witnesses and the judgment of the trial court. According to the Court, although the trial court in its judgment clearly stated the principles of law it relied on in the instant case correctly, but because it is the facts of a case that determine whether or not a given principle of law has been properly applied, the trial court cannot be said to have correctly applied the principles of law in respect of identification evidence; and the need to call vital witness or witnesses in the instant case, given the evidence of the said PWs 1 and 2 – INC V. NMA (2012) LPELR-20618(SC).

The Court noted that PW1 from his evidence was never at the scene of the initial apprehension and formal arrest of the appellant and there was nowhere in the testimony of PW1, that he stated that he identified the appellant to any other person amongst those that gathered at the point where the appellant was apprehended and subsequently arrested by the Police. Also that the initial or first identification of the appellant by PW1, could not have been done at a time when the Police were not present and where PW1 therefore could not have made any identification of the appellant to the Police.

The Court looked at the summary of PW1’s testimony recorded by the trial court and stated that it is not a correct or proper reflection of PW1’s testimony, but that the same was contrived by the prosecution to invoke the application of evidence of identification by recognition; and which gimmick the trial court clearly bought without paying attention to the evidence which it recorded itself. That the proper evidence of recognition that would have been credible in the circumstances of the instant case, is that of Justine (sic) Onuoha, who was clearly a vital witness and whose purported recognition of the appellant resulted or led to the initial apprehension of the appellant. That PW1 who from the facts before the trial court never identified the appellant to any known person or disclosed person, prior to his second contact with the appellant at the Police Station, cannot in the circumstances be said to have properly identified the appellant upon the said second contact.

The Court concluded that the evidence of identification of the appellant adduced by the respondent in order to link the appellant with the armed robbery of 24/7/2003, is not credible and the prosecution thereby cannot be said to have proved the commission of the offence of armed robbery against the appellant, beyond reasonable doubt.

HELD
In conclusion, the Court of Appeal allowed the appeal. The appellant was discharged and acquitted.
Appearances:
F.A. Onuzulike with him,
E.E. Igbokwe, N.A. Igbojekwe -For Appellant(s)
and U.R. Onuzulike
U.S. Chukwu (State Counsel, Imo State) – For Respondent(s)

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