Abudu v State (1985)

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Abudu v. State
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ZEKERI ABUDU ….. APPELLANT

V.

THE STATE ……RESPONDENT

SUPREME COURT OF NIGERIA

SC. 35/1984

AYO GABRIEL IRIKEFE, J.S.C. (Presided)

ANDREWS OTUTU OBASEKI, J.S.C.

BOONYAMIN OLADIRAN KAZEEM, J.S.C.

DAHUNSI OLUGBEMI COKER, J.S.C. (Delivered lead Judgment)

SAIDU KAWU, J.S.C.

FRIDAY, 18TH JANUARY, 1985

CRIMINAL LAW – Onus of Proof – Identification by. Single Witness – Need for Caution – Earliest Opportunity – Charge against Two Accused – Interwoven Evidence – Acquittal of One – Impropriety of Conviction of the Other.

Issues:

1.
Whether the Appellant was properly identified as one of the robbers that attacked and robbed a woman of her money at 5.30 a.m. on the 30th of January, 1981, near Ukpilla Cement Factory in Bendel State.

2.
Whether the defence of Alibi put forward by the Appellant has been disproved by the prosecution.

Facts:

There was a robbery. It took place on the 30th January, 1981, at 5.30 a.m. near Ukpilla Cement Factory in Bendel State. It involved a van travelling to Minna. A lady lost N640.00 in the robbery. Two persons were charged with the robbery. The Appellant was the first accused. Four persons were said to have taken part in it. The two accused persons were identified by the lady as two of the four robbers. She omitted to mention at the earliest opportunity the names of the two accused persons as participants in the robbery. She knew the two very well before the robbery. The driver of the van did not identify them. No one else did except the lady.

The two accused denied being present. They set up an Alibi. The police failed to investigate the Alibi. They proved their Alibi. Witnesses supported it. The trial Court rejected the Alibi of the Appellant but accepted that of the other accused. It was a joint trial. The Appellant was convicted by the High Court of Bendel State sitting at Auchi presided over by Hon. Justice Amissah. The Court of Appeal, Benin Division (Omo-Eboh, J.C.A. dis-

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senting) dismissed his appeal.

Held: (Unanimously allowing the appeal)

1.
The evidence identifying the Appellant as a robber was too suspicious to be acceptable (applying the warning of Lord Widgary C.J. in R. v. Turnbull (1976) 3 W.L.R. 445 at page 447).

2.
Whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special regard for caution before convicting the accused in reliance on the correctness of the identification.

3.
Where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence, a court must be careful in accepting his evidence given later, and implicating the person or persons charged, unless a satisfactory explanation is given. This is because such delay makes the evidence of identity suspicious and reduces the truth content of the evidence below acceptable and probative level;

4.
In order to establish the defence of Alibi, all that the accused needs do is merely to put forward evidence accordingly; the onus is not on him to prove such defence but on the prosecution to disprove it.

5.
When the sole defence is an Alibi, great care must be taken in relying on identification by a single witness and the facts of such identification must be carefully dealt with in the summing up.

6.
Where appellant was jointly tried with the 2nd accused and the former’s case was closely interwoven with and inseparable from that against the 2nd accused, the conviction of the Appellant could not stand where the 2nd Accused was acquitted. (Anthony Okobi v. The State: SC.85/1983 followed).

7.
Having regard to the doubtful credibility of the evidence of the star witness, the trial judge should, with the same yard stick with which he weighed her evidence against the other accused, have found her evidence against the Appellant equally unreliable and unsafe. (Layiwola v. Queen: (1959) WRNLR. 194 followed).

Nigerian Cases Referred to in the Judgment: –

C.O.P. v. Tijani Alao & Ors. (1959) WRNLR. 39

Ikono v. State (1973) 5 SC. 231

Layiwola & Ors. v. Queen (1959) WNRLR. 194

Nwosisi v. State (1976) 6 SC. 109

Okobi v. State SC.85/1983 delivered on 5th July, 1984

Yanor & Anor. v. State (1965) NMLR. 337

Foreign Cases Referred to in the Judgment:

R. v. Anthony H. Johnson (1962) 46 C. A.R. 45

R. v. Turnbull (1976) W.L.R. 445

Nigerian Statute Referred to in the Judgment:

Robbery and Fire Arms (Special Provisions) Decree No. 47 (1970) Section l (2)(a)

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Appeal:

This was an appeal from the decision of the Court of Appeal -Benin Division (Ikwechegh, J.C.A., Okagbue,J.C.A., Omo-Eboh, J.C.A. dissenting), upholding the decision of Hon. Justice Amissah sitting at Auchi High Court convicting the appellant of armed robbery punishable under Section l(2)(a) of the Robbery and Fire Arms (Special Provision) Decree No. 47 of 1970.

The Supreme Court allowed the appeal and quashed the conviction and sentence. He was found not guilty and was discharged accordingly and acquitted.

History of the Case:

Supreme Court:

Appeal No: S.C. 15/1984

Date of Judgment: 18th day of January, 1985

Names of Justices in the Appeal: Irikefe, J.S.C., Obaseki, J.S.C., Kazeem, J.S.C., Coker, J.S.C., (Read the lead judgment); Kawu, J.S.C.,

Court of Appeal:

Division of the Court of Appeal from which the appeal was brought – Court, of Appeal, Benin City.

Names of Justices in the Appeal:- Hon. Justice Ikwechegh, J.C.A. (Read the lead judgment), Hon. Justice Okagbue, J.C.A., Hon. Justice Omo Eboh, J.C.A.(Dissenting).

Date of judgment: 7th day of February, 1984.

Appeal No: FCA/B/18/83.

High Court:

Name of the High Court: High Court Auchi – Bendel State Name of Judge: Hon. Justice Amissah Date of Decision 24th day of May, 1982

Charge No: HAU/13C/81

Counsel:

Mr. Shola Rhodes, (with him F.O. Inneh) for the Appellant.

Mr. D. E. Hayble, Deputy Solicitor-General, Bendel State – for the

Respondent.

COKER, J.S.C. (Delivering the Lead Judgment): On the 25th day of October 1984, the appeal of Zekeri Abudu, was allowed and I promised to give my reasons today, I now do so.
The appellant, as the 1st accused, was charged along with one Aliyu Sumaila before the High Court of Bendel State, sitting at Auchi, with the offence of armed robbery, punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. At the end of the trial during which the two accused persons gave evidence and called witnesses the appellant alone was found guilty of the offence, while the other co-

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accused person, was discharged and acquitted. His appeal to the Court of Appeal, was dismissed by a majority decision delivered by Ikwechegh, J.C.A. (Okagbue, J.C.A. agreeing), while Omo Eboh, J.C.A. dissented.

He has further appealed to this court. The substance of the appeal lies on the issue of his identification by the star witness, 1st P.W. Cecilia Aighasubho, who testified that she identified both the appellant and Aliyu Sumaila on the 30th January, 1981, as two of a gang of four armed robbers, who waylaid the vehicle conveying her to Minna, after assaulting her robbed her of the sum of N640.00. The incident according to her testimony, took place near the Ukpilla Cement Factory at about 5.30 a.m. on the 30th of January, 1981. She was able to identify the two accused through the aid of the bright electric light from the nearby Cement Factory and the head light of the van conveying her. Before the date, she knew both accused persons. The appellant was a motor driver, who conveyed her on about six occasions in the same Peugeot pick-up van, bearing the registration No. BD 6326 C, which was conveying her to Minna on that day. Apart from her evidence, there was no other witness who identified any of them. The driver of the van, D.W. 3 testified that he did not know, nor could he identify, any of the robbers, although he knew appellant before that day. In their statements to the police during the investigation, each of them denied the charge, and gave a detailed account of their movements on that morning. Each of them also called witnesses to substantiate his defence. During the trial, and before the commencement of case for the defence, the trial court suo moto, called one Phillip Okhumale, a transporter and distributor of beer and soft drinks, as a witness of the court. He testified that on 30/1/81, the 2nd accused person was in his employment as a motor driver, and between 5.30 and 6.00 a.m., drove his tipper lorry to Warri. He testified the police did not contact him during the course of investigation of the case even though in his statement to the police, the 2nd accused mentioned the name of Phillip Okhumale as his employer and that he got to his (master’s) place after 5.00 a.m. before driving his employer’s tipper to Warri. He testified that he employed the appellant to drive his personal vehicle BD 4371 G, and that before going to work that morning, he went to appellant’s house to give him money to effect repairs on the vehicle. His evidence was not challenged or contradicted by the prosecution. The trial judge summed up the issue for determination as follows:-

“(a) Whether the identity of the accused persons have been established beyond doubt as persons who participated in the robbery:

(b)
Whether the defence of alibi has been successfully rebutted or disproved by the prosecution.

(c)
Whether as a matter of law the eye witness account of the incident as stated by P.W. 1 requires corroboration from D.W. 3 Sedi Kadiri, the driver who was in at the time of the robber.”

He then proceeded to state the principle of law applicable. It reads:- “It is pertinent at this stage to examine the law as it applies to (a) and (b) above. With regards to (a), it is settled law that where an eye witness (and in the instant case P.W. 1) omits to mention at the earliest opportunity the name or names of the person or persons

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whom she saw committing the offence, a court must be careful in accepting her evidence given later and implicating the persons charged, unless a satisfactory explanation is given. See Commissioner of Police v. Tijani Alao & Others (1959) WRNLR 39.

I agree with this statement of the law. He also stated the law as regards alibi, citing amongst other cases. Yanor & Anor. v. The State (1965) NMLR. 337, and Christian Nwosisi v. The State (1976) 6 SC. 109, Akpan v. The State (1973) 5 SC. 231. He concluded by stating: page. 55

“From the foregoing, it is clear that the person who puts forward an alibi as his answer to a charge does not undertake upon himself any burden of proving that answer, and it is a mis-statement of the law or in fact a misdirection to refer to any burden of proof resting on an accused in such a case. See R. v. Anthony Hugh Johnson (1962) 46 C.A.R. 45.”

I also agree that that is correct statement of the law.

He further proceeded to consider, in my view irrelevant, the issue of corroboration of the testimony of P.W. 1, but again quite rightly, and came to the conclusion that what is required is for the court to evaluate the evidence of P.W. 1, and to decide whether or not to believe her eye witness account of the incident. In the result, however, he found only the appellant guilty of offence, by accepting the evidence of P.W. 1 against him, while holding her evidence identifying 2nd accused unreliable and doubtful. The relevant part of her evidence reads:

“The 2nd accused and one other came to me and stood by either side of me. 2nd accused asked me to produce all the money I had with me. I replied that I had no money on me. 1st accused who was inside the blue Peugeot car replied that I had money with me because I was going to the market. It was at this juncture that 2nd accused pointed a gun at me and insisted that I should bring all my money. As 2nd accused engaged me in a struggle to look for the money on me, I loosed my wrapper. He then got hold of the money I had tied round my waist. It was N600. 2nd accused then put the money inside their vehicle. 1st accused at that stage further stated that I still had more money on me. It was then that 2nd accused came back to me and asked for more money. I then brought out the N40 I had in my brassier and gave same to the 2nd accused. 2nd accused then hit me on the back with the butt of his gun and I fell down”

Further in her evidence, she testified:

“Although I did not in my statement say that it was 2nd accused that stole my money I did say it was a yellow man who drives vehicle for Bawak. I made a statement to the police in connection with this case in Ishan language. My husband was the interpreter.”

Later, she said:-

“I do not know Alhaja Afisietu Musa. I do not know if she is the owner of vehicle No. BD 6326 C.”

If her evidence connecting the 2nd accused the principal character, was doubtful and unreliable, how could the same judge say in another breath,

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her evidence against a minor character of the same incident was reliable and certain?

It will be shown that the evidence of this witness, was materially contradicted by the evidence of P.W. 2, Isa Dania, Police Sergeant who conducted the investigation, and further, the alibi put forward by the two accused persons was not investigated much less rebutted by the prosecution. Further still, Sedi Kadiri, D.W. 3. the person who drove the vehicle conveying her to Minna, knew the appellant before the day, yet did not identify him at the identification parade as one of those persons who attacked them.

The trial judge relied heavily on her evidence in arriving at his decision to convict the appellant. He said:

“In the case in hand there is evidence from P.W. 1 that 1st accused was among the robbers. She was sure of his identity because he had conveyed her to Minna in a pick-up van on previous occasions. She infact gave his name “Zekeri” in her statement. In other words, the name of 1st accused was mentioned by P.W. 1 at the earliest opportunity after the robbery. This was not the case with 2nd accused who was referred to simply as a “Yellow man” in Exhibit “E”. Part of Exhibit ‘E’ reads:- “One was pointing his gun to my chest, one pointing to my back while the third was searching me until he recovered the money I tied to my waist and the one I put under my brassier. As they left me and went back to their vehicle with the first money they took from me, this Zekeri told them again that I have more money. It was then they came back and when they searched me again, they removed the remaining N40 I was having.”

The judgment continued:

“In his testimony before me, 1st accused in cross examination admitted that P.W.l could, with ease, identify him. This is what he said:

“It was Alhaja Afiesetu Musa who took me to the house of P.W. 1 for the first time. I have taken P.W. 1 thrice to Minna. I also know that each time she travelled to Minna she carried money for the purchase of yams. I am certain that P. W. 1 can easily recognise me having travelled thrice with me”.

“There is evidence before me that SEDI KADIRI (D.W. 3) who was with P.W. 1 at the time of the robbery was ordered by the robbers to run into the bush thereby leaving P.W. 1 in the pick-up van where she remained throughout during the operation. It follows therefore that she had the singular opportunity of watching the robbers at a close range. I therefore believe her when she said she was able to recognise 1st accused among the robbers. Considering how he was manhandled and subsequently made to run into the bush, I am of the view that D. W. 3 (SEDI KADIRI) could not, in the circumstance, have been able to identify, with certainty, those who attacked them. If D.W. 3 was unable to identify the robbers, that per se does not destroy the probative value of the evidence of P.W. 1 that she saw 1st accused and the 2nd accused whom she could only describe as “yellow man”.

With due respect to the trial judge. D.W. 3 did not say he was unable to identify the appellant because he had not sufficient time to recognise him.

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His evidence was that three of the robbers attacked and manhandled him before he was asked to run into the bush after which they demanded the key of his car. He said:

“I am unable to recognise any of the robbers in the parade. I had known the 1st accused (the appellant) before as a driver.”

He said clearly under cross-examination:

“I never knew any of the robbers that attacked us.”

If P.W. 1 was able to recognise the appellant, when, according to her,

“The head lights of my pick-up van was on at the time …………………… there was also some bright light from-the Cement Factory near the area. With this, I was able to see clearly the faces of the accused persons.”

The point here is not that of corroboration of P.W. l’s evidence regarding identification of the appellant, but evidence of D.W. 3, the only other eye witness, contradicting her evidence, identifying appellant as one of the robbers. Corroboration and contradiction are not synonymous, but antitheses. The trial judge was considering whether the evidence of P.W. 1 identifying appellant required corroboration of any other witness while the important point in this case was that the evidence of the other eye witness, D.W. 3, contradicted her evidence that appellant, whom he (D.W. 3) knew before the date of the attack and could recognise was not one of the robbers.

The Court of Appeal, in its lead judgment, (Ikwechegh, J.C.A.) stated the facts not quite correctly, as follows:

“The D.W. 3, that was the driver with P.W. 1 in the van at the time of the robbery, confirmed the robbery of the morning of 30/ 1/81 at about the Ukpilla Cement Factory area along the Benin Okene Road. He too, said the robbers were four men who came to the scene in a car. He said it was about 5.30 a.m. at the time of robbery. He, however, did not identify any of the four robbers, and this is not to be marvelled at; he was attending to the tarpaulin of the van when the men arrived; three of them beat him up and damaged the door of his van, and made him run into a bush. He did not identify any of the robbers at any time. He said he had heard P.W. 1 shouting at the scene that the man had taken N640 from her.” (Italics mine)

The error lies in the fact that it is not correct the driver, D.W. 2 was attending to the tarpaulin of the van when the men arrived. P.W. 1 said “My driver was in the vehicle” when the three men came. The important point is that D.W. 3 knew the appellant before that day, and had the opportunity to identify him for, besides the head light of their Vehicle, there was also the bright light from the Ukpilla Cement Factory.

Another important point of misdirection is that there was no evidence that P.W. 1, called the name of the appellant when she first saw him. It was in her statement later to the police that she first mentioned his name. P.W. 1 said appellant was the first person who came out of the blue car. One would have expected that P.W. 1 or D.W. 3 will call his name and speak to him before the other three persons emerged from the vehicle.

As the case against the appellant was based principally on the usual

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identification by the P.W. 1, her evidence should have been very closely examined and received with caution and weighed against that of D.W. 3. In this regard, I recall the warning given by Lord Widgery, C.J. in R. v. Turnbull (1976) 3 W.L.R. 445 at page 447, where he said:

“Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years. The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the courts, including this court, to reduce that number as far as is possible. In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.

First, 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, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications ”

“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”

In this case, the evidence of P.W. 1 ought to have been more critically examined than the trial court appeared to have done. For instance, the trial judge said P.W. 1 mentioned the name of the appellant at the earliest opportunity after the robbery, whereas she did not. The first time she mentioned his name was in her statement to the police. In her evidence, she denied knowing Alhaja Afisetu Musa whereas, investigation revealed that both of them were friends. P.W. 1 also lied in her testimony when she said her statement to the police was made in Ishan through her husband, as interpreter; 2nd P.W., testified that P.W. 1 made her statement in English. On the first day of her evidence in court, she spoke in pidgin English, but later said she preferred to speak in Etsako language and still later, she was critical of the interpretation of her evidence. It seemed the trial judge had reservation about her veracity, for he did not wholly accept her evidence, hence, he, suo motu, called 3rd P.W. Philip Okhumale. He testified that on 30/1/81, he (the 2nd accused) went to Warri with a tipper between 5.30 and 6.00 a.m. Bearing in mind that in her evidence, she said, it was the 2nd accused that actually assaulted and robbed her. The alibi of the Appellant was never disproved by the prosecution, he even called witnesses at the trial to establish that he could not have been present at the scene of robbery at the time.

These are some of the many reasons why her evidence identifying the appellant should be viewed with suspicion. Besides, the case against the

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Appellant was closely interwoven with and inseparable from that against the 2nd accused person. The case was that they jointly committed the offence.

A similar situation arose in SC.85/1983 Anthony Okobi v. The State delivered on 6th July, 1984 unreported. Obaseki, J.S.C. asked the question.

“Having regard to the fact that the conviction of the Appellant for the offence of robbery was founded on the use of threat of violence on P.W.l, P.W.4 and others by Levy Nwosu, the 1st accused, can his conviction for robbery still stand when that of the 1st accused was quashed by the Federal Court of Appeal and a verdict of acquittal entered in his favour?”

The evidence in this case was that the 2nd accused was the person who asked P.W.l to produce all the money she possessed, it was 2nd accused who pointed the gun at her, it was 2nd accused who struggled with her, it was to him that she surrendered first N600.00 and later N40.

The trial judge found her evidence of doubtful credibility, at least against 2nd accused. This was what he said:

“I will now consider the case of the 2nd accused. It was during the evidence in chief of P.W. 1 that he was mentioned as one of those who robbed her. In her statement to the Police on 30/1/81 (Exhibit ‘E’) P.W.l did say that out of the four men that took part in the robbery, she recognised two. She gave the name of the one she was very familiar with as ZEKERI. The second man was simply described by her in Exhibit ‘E’ as “yellow man” and no more. She testified in court that the 1st accused was ZEKERI. According to her testimony, it was someone who gave her the name of the 2nd accused as ‘ALIYU’. Looking at Exhibit ‘E’ it is difficult to say that mere description of a man as “Yellow man” equivocally (sic) referred to the 2nd accused. P.W.l did not in her statement to the police (Exhibit ‘E’) describe 2nd accused with clarity so as to leave nobody in doubt that she was referring to 2nd accused. And neither in the said statement did she give the address of residence or place of work of the 2nd accused. It was in her testimony before me that she said that the “Yellow man” she was referring to drives vehicles for BAWAK MOTORS and that she had been seeing him there. Had this formed part of her statement then, the Police would have got some data to work on during the investigations. It is clear from the evidence of Sergeant ISA DANIA that it was after P.W. 1 had made Exhibit ‘E’ that she furnished the name and address of the 2nd accused. The questions are who gave P.W. 1 the name and address of 2nd accused? If she previously knew the name and address of 2nd accused as well as his place of work, why did she omit them in her statement to the police (Exhibit ‘E’)? Neither her testimony nor the testimony of Sergeant Isa Dania (P.W.2) has put forward an answer to the two questions. Part of the evidence of Sergeant Isa Dania reads as follows:-

“It was on 1st February, 1981 that the 1st P.W. gave me the name and address of 2nd accused. It was also on that day that she told me that 2nd accused was among the persons who robbed

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her on 30/1/81. On 2nd February, 1981, I arrested the 2nd accused in his house.” (Italics supplied)

The defence of 2nd accused is an alibi and complete denial. According to him he could not and was not at the vicinity of the robbery because he travelled to Warri early on the day of the robbery to discharge some gravel.

The vague description of the 2nd accused by P.W.l as well as the testimony of Chief Philip Okhumale (witness called at court’s instance) have raised some doubt with regards the identity as well as the complicity of the 2nd accused in robbery. That being the position I am satisfied that the subsequent identification parade is not completely free from doubt. What is required here is proof beyond reasonable doubt that the 2nd accused committed the offence charged in the information and not the likelihood of his having committed it.”

There is no doubt that the prosecution’s case against the 2nd accused was stronger than that against the Appellant. For P.W.l had possible motive for lying against him. For why should she deny knowing his former employer Alhaji Afisatu Musa, who was proved to be her friend? she testified that the Appellant had driven her about six times to Minna in the pick-up van No.BD.6326C, owned by her said friend. The question might be asked, was there any evidence that Appellant had foreknowledge that 1st P. W. was proceeding to Minna that morning? With the knowledge that P.W.l knew him so well and could identify him, would he proceed to the scene, undisguised to rob her? The evidence of alibi, led by the Appellant was not rebutted by the prosecution, 2nd accused testified that he went to the house of the Appellant at about 5.00 a.m. and gave him money to repair his water pick up van and that he left his house about 5.40 a.m.; D.W.l Shaibu Aruna, a bricklayer, testified that at about 5.00 a.m. he went to the house of Appellant and requested him to supply him with water. Appellant told him his pick-up was faulty and needed repairing, that after effecting necessary repairs, he would make the supply, and in fact delivered water to his house that morning. His evidence was corroborated by that of the bricklayer’s mate, Suberu Abudu, D.W.2, who said that Appellant “first went to a mechanic’s place to repair the pick-up van thereafter, went and fetched the water”. The trial judge did not reject the evidence of these witnesses.

There is no doubt that his decision was unduly influenced by the fact that Appellant knew it was usual for P.W.l to carry large sum of money whenever she went to Minna to buy yam. But equally, there was no sugges- tion that Appellant knew that the P.W.l was travelling that morning to Minna. More important still, there was no evidence that the Appellant was at my time seen with or near any blue Peugeot car before, at or after or anywhere or anytime outside his house between 5.30 a.m. to 7.00 a.m. The evidence of D.W.3 Sedi Kadiri was that he knew Appellant before that day; he knew there were four persons in the blue Peugeot car and that he never knew any of the robbers that attacked them. His evidence was not only that he could not identify the robbers, but also that he never knew any of them. The witness D.W.3 never said, as the trial judge seemed to have thought, that he could not identify them because he was manhandled and subsequently made to run into the bush. In my view, the trial judge was not entitled to hazard

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reason for D.W.S’s failure to identify the Appellant as a member of the gang.

Having regard to the totality of the evidence and particularly the doubtful credibility of the evidence of the star witness, P.W.l, the trial judge should, with the same yard stick with which he weighed her evidence against the 2nd accused, have found her evidence against the appellant equally unreliable and unsafe. See Shittu Layiwola & Ors. v. The Queen (1959) W.R.N.L.R. 194, p.195. I agree with the dissenting judgment of Omo- Eboh, J.C.A., that the case against him was not proved beyond-all reasonable doubt, and therefore is entitled to that benefit. For these reasons, I allowed the appeal, quashed the conviction and sentence, and substituted a verdict of not guilty, discharged and acquitted.

IR1KEFE, J.S.C. (Presiding): We delivered a summary judgment and. made consequential orders in this matter on 25th October, 1984, it being one touching upon the liberty of a subject, and indicated then that we would give fuller reasons for the said judgment today.

I now adopt as my own the lead reasons just read by my learned brother COKER, J.S.C. a preview of which I had had before today.

OBASEKI, J.S.C.: On the 25th day of October, 1984, 1 allowed the appeal of the appellant, quashed his conviction and sentence and reserved my reasons till today. I now proceed to give my reasons.
The main question for determination in this appeal is whether the evidence of Cicilia Aigbusobho (p.w.l) on which the conviction of the appellant rested was credible in view of the fact that the appellant whom she knows very well and who had driven her in the car she was travelling in on six different previous occasions was not identified by her at the 1st and earliest opportunity as being one of the robbers who robbed her. The law on the issue is well settled and it is that such delay makes the evidence below acceptable and probative level.

The question has been admirably dealt with in the reasons for judgment of my learned brother, Coker, JSC. delivered a short while ago, the draft of which I had the pleasure of reading in advance. I agree with it and I adopt the opinions contained therein as my own. It was for the reasons so ably stated therein that I allowed the appeal, quashed the conviction and sentence, entered a verdict of acquittal and discharge of the appellant.

KAZEEM, J.S.C.: On 25th October, 1984 when this appeal came up for hearing, it was discovered from the evidence tendered at the trial of the appellant that serious doubt was raised about his involvement with the charge of armed robbery of one Cecilia Aigbasabho brought against him.

His appeal was therefore allowed; and his conviction and sentence were quashed.

At the trial of the appellant with another person who was later discharged and acquitted (hereinafter referred to as the “2nd accused”) two main issues came up for determination, namely:-

66
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1 Oct. 1985
(Kazeem J.S.C.)

A

B

C

D

E

F

G

H

(a)
whether the appellant was properly identified as one of the robbers that attacked and robbed Cecilia of her money; and

(b)
whether the defence of alibi put forward by the appellant was destroyed by the prosecution witnesses.

The learned trial judge at the conclusion of the trial duly considered those two issues and he not only found that the appellant was properly and clearly identified by Cecilia (P.W. 1) the victim of the robbery, but he also said that the alibi raised by the appellant as a defence was an after-thought and a ruse. He therefore rejected the alibi and consequently he convicted and sentenced the appellant to death. On an appeal to the Court of Appeal in Benin, the appeal was dismissed by a majority of two Justices while the third Justice dissented. The appellant has again appealed to this Court against his conviction and sentence; and those two issues have again been raised here.

I have had the privilege of reading in draft the reasons for judgment just delivered by my learned brother Coker, JSC. wherein he had exhaustively considered those two issues; and I agree with his conclusions and the reasons therefore. I only wish to add that the identification of the appellant by P.W. 1 cannot be satisfactory and completely free from doubt for the following reasons:-

(i)
P.W: 1 had previously known the appellant very well as the driver who had driven her on many occasions on her journeys from Auchi to Minna in a car belonging to one Alhaja Afusetu Musa; and yet on the day of the robbery she did not see much of the appellant, because she said that as soon as the appellant came out of the car that brought the robbers and saw her, he immediately returned to the car;

(ii)
Even though P.W. 1 duly identified, at an identification parade, the appellant and the 2nd accused as two of the robbers, it was successfully proved at the trial that the 2nd accused was elsewhere at the time P.W. 1 said that he attacked her and robbed her of N600.00.

(iii)
It was proved that the appellant had previously driven P.W. 1 in the Peugeot pick-up van belonging to Alhaja Afusetu Musa and that the same van was used on the day of the robbery, yet P.W. 1 denied being friendly with the Alhaja and knowing her as the owner of the vehicle.

(iv)
It might well be that P.W. 1 denied knowing Alhaja Afusetu Musa as the owner of the car because it was proved that Alhaja Afusetu had sacked the appellant as the driver of her Peugeot pick-up van probably at the instigation of P.W. 1 and because the appellant’s father had shot one Dirisu, an armed robber who was a relation of Alhaja Afusetu’s Husband.

(v)
Sedi Kadiri – D.W 3 the driver who drove P.W. 1 in Alhaja Afusetu’s pick-up van on the day of the robbery and who was present and attacked by the robbers could not identify both the appellant and 2nd accused at an identification parade as two of

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(Kazeem J.S.C.)
67

A

B

C

D

E

F

G

H

the robbers.

(vi)
What really put the credibility of the P. W. 1 in doubt and nullified her identification of the appellant as one of the robbers, was the appellant’s defence of alibi. He had testified that at the material time he was in his house where the 2nd accused came and gave him a sum of N10.00 with which to repair the 2nd accused vehicle which he was driving at that time; and that he later drove the 2nd accused to the house of his master Chief Okhumale at about 5 – 5.30 a.m. The 2nd accused also corroborated that testimony in his own evidence and he said further that he left for Warri thereafter at about 5.35 a.m.

(vii)
The learned trial judge accepted the alibi of the 2nd accused who was equally identified by P.W. 1 at an identification parade as one of the robbers and found that his identification was not completely free from doubt.

If the learned trial judge could so hold, I am of the view that by the same token he should have held that the identification of the appellant too by P.W. 1 was not also free from doubt because it was proved that at the time when the alleged robbery was taking place at about 5.30 a.m. the appellant and the 2nd accused were together at Chief Okhumale’s house.

KAWU, J.S.C.: Having had the privilege of reading in draft the reasons for judgment just delivered by my learned brother, Coker, J.S.C. I am in complete agreement with them and respectfully adopt them as my reasons for allowing the appellant’s appeal and quashing his conviction and setting aside the sentence imposed. It was for the same reasons that I entered a verdict of acquittal and discharge.

Appeal Allowed.

Conviction and Sentence quashed

Verdict of not guilty entered.

Discharged and Acquitted

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