Spontaneous Recognition as Proof of Identification of an Offender

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 21st day of June, 2024

Before Their Lordships

Uwani Musa Abba Aji

Helen Moronkeji Ogunwumiju

Stephen Jonah Adah

Abubakar Sadiq Umar

Mohammed Baba Idris

Justices, Supreme Court 

SC/861C/2018

Between

TOPE ADESOYE       APPELLANT 

               And

THE STATE     RESPONDENT

“….the spontaneous identification of the offender by the victim or a witness to the offence is a satisfactory and acceptable mode of visual identification, and in such cases, it is not necessary to conduct an identification parade….”

(Lead Judgement delivered by Honourable Mohammed Baba Idris, JSC) 

Facts

The Appellant was charged before the High Court of Kwara State on a three count charge of criminal conspiracy, armed robbery and illegal possession of firearms contrary to Sections 6(b), 1(2) and 3(1) of the Robbery and Firearms (Special Provision) Act, CAP R11, Laws of the Federation of Nigeria, 2004. The case of the Respondent which it led through eight witnesses, was that on 5th September, 2014, the Appellant who had in the past worked for one Mrs Ogundipe as a block moulder, in the company of two other persons at large, invaded the house of the said Mrs Ogundipe and her family, and robbed them of their money and valuables while armed with guns. 

The Appellant pleaded not guilty to the charge. After the conclusion of trial and final addresses, the trial court delivered its judgement in which it convicted the Appellant for criminal conspiracy and armed robbery, and sentenced him to death.

Aggrieved, the Appellant appealed to the Court of Appeal. However, the Court of Appeal dismissed the Appeal for lacking in merit, and affirmed the judgement of the trial court. Consequently, the Appellant lodged a further appeal at the Supreme Court.

Issues for Determination 

The Supreme Court distilled the following issues as being germane, for the overall determination of the appeal: 

1. Whether the trial court was right when it convicted the Appellant, for the offence of criminal conspiracy.

2. Whether the trial court was right when it convicted and sentenced the Appellant to death for the offence of armed robbery contrary to Section 6(b) and Section 1(2) of the Robbery and Firearms (Special Provisions) Act without an identification parade, and without considering the defence of alibi raised by the Appellant. 

Arguments

On the 1st issue, Counsel for the Appellant submitted that the lower court failed to consider the argument of the Appellant that the other two alleged conspirators were never found and neither were they tried, and as such, the Appellant had been alleged to have conspired with unknown persons without the Respondent showing the specific role or part played by the Appellant in the alleged conspiracy. It was argued further that the Appellant did not know the persons with whom he was alleged to have conspired with, and the allegation of conspiracy against the Appellant was a mere assumption. Counsel for the Appellant submitted that the Respondent failed to establish the allegation of criminal conspiracy, whether directly or indirectly. 

On the 2nd issue, Counsel for the Appellant argued that the Appellant raised alibi with the Police, but that the Police refused to investigate it. He argued that in cases attracting capital punishment, it is incumbent upon the trial court to exhaust all the defences raised by the accused person. Reference was made to the case of EDOHO v STATE (2010) 42 NSCQR 451 @ 484 – 485.  He contended that there was no concrete evidence on record that the Appellant participated in the robbery as he had denied the same vehemently, and the Appellant cannot be convicted based on the testimonies of PW2 –PW8 which he denied. Counsel submitted that, the Respondent failed to prove the ingredients of armed robbery against the Appellant

Arguing the issues together, Counsel for the Respondent submitted that the offences of criminal conspiracy and armed robbery were proved against the Appellant beyond reasonable doubt. He argued that there were eyewitnesses who testified against the Appellant confirming that there was a robbery, the robbers were armed with weapons, and it was the Appellant who attacked them with his gang members. Counsel for the Respondent submitted that the testimonies of the eyewitnesses were never denied, challenged or contradicted by the Appellant at the trial. He argued that the defence of alibi raised by the Appellant was weak and porous compared to the strong and cogent evidence of the prosecution, and there was thus, no need for the Police to investigate it. He submitted that the Appellant failed to show any miscarriage of justice occasioned on him, or that the decision of the trial court was perverse.

Court’s Judgement and Rationale

On the 1st issue, the Apex Court held that to establish the offence of criminal conspiracy against an accused person, the prosecution is expected to prove that there was an agreement between the accused person and other persons, either known or unknown, to carry out an unlawful or illegal act or a legal and unlawful act by illegal or unlawful means. The Court referred to its decision in the case of ABDULLAHI v STATE (2008) 5-6 SC (PT. 1) 1 and NJOVENS & ORS v STATE (1973) LPELR – 2042 (SC) and held that the charge of conspiracy can be proved either by leading direct evidence in proof of common design, or by inference derived from the commission of the substantive offence.

The Court held that, there was evidence on record showing that the Respondent’s witnesses had all consistently testified that the Appellant and two others had acted in concert in committing the offence; however, when the Appellant was given the opportunity to cross-examine and discredit the witnesses and their evidence, the Appellant failed to ask salient questions that would destroy the case they built against him.

Thereafter, the Apex Court proceeded to determine pertinent question as to whether the Appellant can be convicted with unknown and unnamed persons. The Court held that although one person cannot commit the offence of conspiracy, one person can be rightly charged and convicted for the offence of conspiracy where it is expressly stated in the charge that he conspired with others known or unknown, at large or dead, and where there is prima facie evidence to suggest that a conspiracy existed between the accused and persons unknown. The Apex Court relied on its decision in ENAHORO v QUEEN (1965) LPELR – 25238 (SC) PP. 12 -13, PARA. C and also referred to the cases of MOHAMMED v STATE (2010) LPELR-9019 (CA) and OSHO v STATE (2011) LPELR – 4804 (CA). 

The Court held there was unchallenged evidence on record that the Appellant committed the offence of armed robbery in concert with two other persons at large, and where there is evidence to support the conviction of a sole accused person for conspiracy, an appellate court will not disturb the conviction. The Court found that the Appellant did not attack and puncture the testimonies of the witnesses; rather, he lazily denied same in his defence, and this cannot solidly discredit the evidence against him.

In determining the 2nd issue, the Apex Court held that where a plea of alibi is raised and the prosecution is able to adduce sufficient and accepted evidence to fix the accused at the scene of the crime at the material time, the alibi is thereby, logically demolished, and it would be unreasonable and in fact, unimaginable for the Police to begin to investigate same. The Court held that there is nothing esoteric or special about the plea of alibi, in the face of overwhelming evidence. The Court found that the defence of alibi set up by the Appellant does not aid him, as the evidence of PW2 and PW3 who identified him explicitly as having participated in the armed robbery, had sufficiently demolished the defence of alibi. The Court referred in particular to the undisputed testimony of PW2 who was the taxi driver that was arrested alongside the Appellant whilst conveying the Appellant and others to Ilorin the following day, that the Appellant had confessed to him in detention that he indeed, committed the armed robbery, and that the Appellant even apologised to him for putting him through the ordeal of arrest and detention.

On the Appellant’s contention that the trial court was wrong to have convicted the Appellant without an identification parade, the Court held that the spontaneous identification of the offender by the victim or a witness to the offence is a satisfactory and acceptable mode of visual identification, and in such cases, it is not necessary to conduct an identification parade, so long as it is established that there was adequate opportunity under satisfactory condition, to observe the physical features of the person such that subsequent spontaneous recognition was possible. The Court held that where a witness gives evidence of visual identification of an accused person which was not shaken under cross-examination, nothing stops the trial court from accepting his evidence. 

The Court held further that the recognition of an accused person arises when a person sees or acknowledges the identity of a man or woman known to him before the crime was committed and generally, such recognition dispels any shadow of doubt about his commission of the crime. The Court relied on its decision in OCHIBA v STATE (2011) LPELR – 8245 (SC) AT 36 (B – C) that recognition, visual spontaneous evidence of identification is more reliable than an identification parade; however, the court has a duty to scrutinise the evidence of recognition of an accused to ensure that it is credible, cogent and free from reasonable doubt. 

The Apex Court found that there was unchallenged evidence on record, that when the Appellant led the Police to the house of the Ogundipes after he was arrested, PW3 who was a victim and an eyewitness to the crime, had promptly identified the Appellant to the Police as one of the robbers, while declaring the taxi driver and a third person brought with them innocent. PW3 had also stated in her testimony that she recognised the Appellant, as she had been seeing him around prior to the day the armed robbery took place. The Court held further that PW4, who was although not present at the time of the robbery, had testified that when the Appellant was brought by the Police, she recognised him with the words “he had worked for me at Landmark to mould blocks when I was given a contract. He was the first person to say “mummy don’t you know me again.” I said is this how you want to repay me.” As usual, the Appellant did nothing to controvert this evidence during cross-examination.

The Court held that the spontaneous recognition of the Appellant by the victims and other circumstances in the case, constituted satisfactory proof of identification of the Appellant as being involved in the armed robbery, and dispensed with the need for the Police to set up an identification parade for the purpose of identifying the Appellant and determining his participation in the commission of the offence. 

Appeal Dismissed.

Representation

T. Oniyinde for the Appellant.

W. Bewaji for the Respondent.  

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)