Effect of prosecution’s failure to establish identity of an accused person

RASAQ OGEDENGE v. THE PEOPLE OF LAGOS STATE
(2019) LPELR-48850(CA)

In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos 
On Friday, 22nd November, 2019
Suit No: CA/L/100C/2017
Before Their Lordships:
TOM SHAIBU YAKUBU, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA

Between
RASAQ OGEDENGE -Appellant(s)
And

THE PEOPLE OF LAGOS STATE -Respondent(s)

LEAD JUDGMENT DELIVERED BY ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.
FACTS OF THE CASE
This appeal is against the judgment of the Lagos State High Court delivered by Coram O. A. Akinlade, J. on 5th of January, 2016, wherein the Appellant was convicted for offences of conspiracy to commit armed robbery and armed robbery and was thereby sentenced to death. The Appellant, dissatisfied with the decision, appealed to the Court of Appeal. 

ISSUES FOR DETERMINATION
The appellant formulated the following issues for determination:
1. Whether from the facts and circumstances of this case, the lower Court was right in holding that there was armed robbery in the house of PW2 on 27th February, 2011 and that the Appellant was one the robbers.
2. Whether from the facts and circumstances of this case, the learned trial judge denied the Appellants his constitutional right of fair hearing.
3. Whether from the facts and circumstances of this case, the Respondents proved their case beyond reasonable doubt by legally credible and admissible evidence.

The Respondent formulated the following issues:
1. Whether from the facts and circumstances of this case, the learned trial judge was right in holding that there was an armed robbery in the house of PW1 on 27th February 2011 and that the appellant was one of the robbers.
2. Whether from the facts and circumstances of this case, the learned trial judge denied the appellant his constitution right to fair hearing.
3. Whether the trial Court was right to have held that the prosecution had proved its case beyond reasonable doubt.

APPELLANT’S COUNSEL SUBMISSIONS
The Appellant submitted that the Court breached the right of fair hearing of the Appellant by not allowing him re-examine new fact introduced in cross-examination. The Appellant submitted further that the Court convicted the Appellant on a faulty conclusion; that the evidence of PW1 of what he experienced and what his wife told him amounted to hearsay. That Pw1 did not make any statement after identifying the Appellant nor did he make any additional statement; that he also waited to identify the properties and money and that these facts were stated after three weeks of the event. He relied on Walda v Maizare (2001) 4 Nwlr PT 704 PG 557. That the identification of Appellant by PW1 in his statement at SCID PANTI, Yaba, on 23/03/2011 was carried out almost a month after the incident and that the officer who took down the statement did not set up an identification parade as required by law.

Also, that the evidence of PW1 is a contradiction when put against evidence and that the whereabouts of the gun, why the gun was brought from his drawer and that a gun was used at the crime or that it was this same gun which was tendered, was not proved beyond reasonable doubt. He submitted that the charge sheet read a locally made double barred gun while that tendered was a locally made pistol and posited that the kind of weapon used is an important part of the proof, especially as it cannot be carried about during the day and nothing links the Appellant to the gun in proof that he handled it, nor was there a report of the house robbery or that was it investigated, neither a report of who arrested him and if arrested by OPC, a report or investigation of same was not tendered.

It was submitted that the Court ignored evidence when it sentenced the Appellant to death for the alleged robbery at Alapere while he was yet in the custody of the police. That this created doubts in the veracity of the Appellant’s evidence; that the alleged communication between the Appellant and his co-gang members was not proved, no phone was tendered. Therefore, evidence was not proved beyond reasonable doubt. He cited I.F.A. International LTD v Liberty Merchant Bank Plc (2005) 9 NWLR PT 930 PG 274.

Furthermore, that the evidence of PW1 and PW2 were speculative and speculation is a breach of constitutional right to fair hearing as he was unjustly convicted to hanging. He placed reliance on Wankey V State (1993) 5 NWLR PT 295 PG 542; Orji V State (2008) 10 NWLR PT 1094 PG 31 to the effect that evidence adduced are not credible to warrant the conviction of the Appellant.

RESPONDENT’S COUNSEL SUBMISSIONS
The Respondents submitted that the evidence of PW1 that the Appellant pointed the gun at him was his experience and not his wife’s and this was not hearsay; that it arose from cross-examination and it is in line with the law and the defendant could not reexamine at that point, he cited Dinyadi v INEC (2010) 6-7 MJSC.He submitted that the issue of the weapon produced from the drawer is an administrative incompetence and the important issue is that the stolen items were found on the accused and this clearly established the case. That there was no inconsistency in the evidence that goes to the root of the matter as the evidence of PW1 was direct evidence. He posited that prosecution can prove its case through the evidence of an eye witnesses which is direct evidence, he relied on Sunday V State (2013) ALL FWLR (PT 6820) 1812 AT 182 PAR G-H. He referred to Section 36 of the constitution and submitted that the breach of fundamental right to cross-examine PW1 a second time after re-examination by the prosecution does not amount to a breach. Reliance was placed on the case of S & D Construction Co Ltd v Ayoko (2011) (PT11) MSC; Pam v Mohammed (2008) 16 NWLR (PT 112) 1 to the effect that the essence of Section 36 is fair hearing to both sides and the Section does not contemplate a standard of justice which is biased in favour of one party to prejudice of another. Finally, that the evidence of PW1 & PW2 was to direct identification, that one of the robbers were arrested and PW1 identified him at the dock, that the accused was not masked which made it easier to recognize him and he was arrested close to the scene.

RESOLUTION OF ISSUES
In resolving the issues, the Court observed that the evidence of PW2 was not directly on the arrest or robbery in the house but that a case of armed robbery was transferred from Ejigbo police to SCID and was assigned to him on 14/3/11. That aside taking the statement of PW1 and signing it, the locally made pistol, two cartridges, ring, wrist watches and case file were transferred to him. That PW2 was not at the scene when the robbery occurred, he was not the first arresting officer, and although he visited the scene with the defendant, he volunteered no information, the link and who else identified the defendant he went with, even the security man at the gate on the day of the event he did not mention. Thus, the Court relying on the case of Aderounmu v FRN (2019) LPELR – 46923 CA, Ankpegher vs. State (2018) LPELR-43906 (SC), and Ugboji Vs. State (2017) LPELR-43427 (SC), stated that he who asserts must prove and in criminal cases, the burden is entirely on the prosecution to prove the guilt of the Defendant and that this burden does not shift if the Respondent must secure conviction. Therefore, the evidence of how PW1 linked the items found in possession of defendant is not direct but hearsay because he could not categorically say that they were found on him but “reportedly” found in his possession and it is in this vain that evidence of PW1 is doubtful and unreliable in proof of the robbery and that the defendant was one of those who robbed.

Also, considering that the statement of PW1 was taken some weeks after the event, the view of the Court was that the prosecution trivialized the burden of proof and the procedures for investigation of criminal matters were taken for granted. That there are several pistols which are generally black in colour and each has number identification and if it is locally made, it is tagged but nothing was done in this case.

The complainant also did not mention any firing of gun in or around the vicinity while the event took place, no clue was supplied in the evidence, the time of robbery was not supplied, only a gun and two live ammunition was mentioned in this statement. The Court wondered where the other items surfaced and that since this statement was not subject to cross-examination, it is unreliable and cannot be evidence of an arrest.

According to the Court, from all accounts, the robber was not arrested at the scene of the event and apart from PW2, no other identification was made. The statement that he recognized the shirt was not sufficient to pin down the fact that it was him. That the Court in Ikemson v State (1989) 3 NWLR (PT 110) 455 has stated the instances where identification must be held and that all three circumstances are present from the evidence of the complainant. That the statement of the PW1 that he knew the defendant in the dock is not a parameter for identification, he was in the Court when he mounted the dock and took his plea. Therefore, failure to conduct an identification parade falls short of expectation and is fatal.

That the prosecution failed to show that it complied with Section 9(3) of the Administration of Criminal Justice Law 2011 in taking the statement and the onus was on the prosecution to prove voluntariness. On this note, the evidence of the Defendant/Appellant was not shaken in cross-examination; the statements were not taken in the presence of any legal practitioner, nor were it counter-signed by any superior officer.

That the charge sheet in its particulars of offence stated a “locally made double barred gun”, yet, throughout the evidence, the word used was a pistol taken from the pocket in a drawer, in a black Nylon bag. According to the Court, there is a difference between a double barrel gun and a locally made pistol. The trial Court did not resolve this conflict, if it was one and the same gun. This issue according to the Court occasioned a miscarriage of justice. In conclusion, the Court resolved that there were doubts as to the identity of the robber and incidents of arrest and possession of item and therefore, resolved the appeal in the Appellant’s favour.

HELD
In conclusion, the Court found the appeal to be meritorious and allowed same. The appellant was subsequently discharged and acquitted.
Appearances:
Emmanuel Umola with him, Grace Alaba and Ugochukwu Nnaji -For Appellant(s)
Olusegun Fabumi with him, Ifeabu Onyejepu and David Okwara -For Respondent(s)
Compiled by LawPavilion