When Eyewitness’ Evidence of Identification Can Sustain Accused Person’s Conviction

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 7th day of June, 2024

Before Their Lordships

Uwani Musa Abba Aji

Chidebere Nwaoma Uwa

Stephen Jonah Adah

Abubakar Sadiq Umar

Mohammed Baba Idris

Justices, Supreme Court 

 SC/928C/2019

Between

AZEEZ AMAO ALAYANDE                                                 APPELLANT

                                And

THE STATE                                                 RESPONDENT

    (Lead Judgement delivered by Honourable Justice Abubakar Sadiq Umar, JSC)

Facts

The Appellant was arraigned before the High Court of Ogun State on a two count charge of conspiracy to commit armed robbery and armed robbery, contrary to Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R.II Laws of Federation of Nigeria. The case of the Respondent was that the Appellant and some other persons had accosted one Oke Olukehinde Smith – PW1 and his wife, while PW1 was driving along llogbo Road, Ota, Ogun State in the evening of 2nd November, 2021. During trial, the prosecution tendered the confessional statements of the Appellant as Exhibits A-A5 and B-B1. PW1 testified that the Appellant’s accomplice, who was holding him and his wife at gunpoint at the backseat of the car while the Appellant was driving at a high speed after taking over the wheel of the car, was subsequently killed by an accidental discharge from the gun in his hand after the car entered a deep ditch. PW1 also testified that the Appellant himself sustained an injury when he hit his head on the windscreen after he took over the wheels of the car, and had subsequently fled the scene, before he was later arrested at his house, where the phones of PW1 and his wife were recovered.

The Appellant denied committing the offences and retracted the confessional statements, claiming that he did not make them, but had been forced to sign them under torture. After the conclusion of trial and final address, the trial court delivered its judgement, wherein it found the Appellant guilty as charged and sentenced him to death by hanging. Dissatisfied, the Appellant appealed to the Court of Appeal; however, his appeal was unsuccessful. Consequently, he filed a further appeal at the Supreme Court.

Issue for Determination

The Supreme Court rephrased issue 3 distilled by the Appellant and issue 1 distilled by the Respondent, into the following sole issue for the overall determination of the appeal:

Whether, having regard to the totality of the evidence adduced at the trial, the lower court was right in affirming the decision of the trial court.

Arguments

Counsel for the Appellant argued that, the trial court should not have relied on the Appellant’s retracted confessional statements in Exhibits A-A5 and B-B1 to convict the Appellant. He contended that there were inconsistencies in PW1’s testimony in his extrajudicial statement and his testimony in court, on the number of persons who robbed him, the identity of the persons alleged to have participated in the robbery with the Appellant, the death of one of the robbers during the robbery, the circumstances leading to his death, and the facts surrounding the identification and arrest of the Appellant. He submitted that the contradictions were material, and the trial court should not have convicted the Appellant without resolving the contradictions. Citing STATE v IDAPU & ORS (1992) NWLR (PT. 256) 28, Counsel argued that the contradictions created doubt in the case of the prosecution, which ought to have been resolved in favour of the Appellant. 

Counsel for the Appellant also contended that the Respondent ought to have tendered the weapons allegedly recovered from the scene of the crime, the vehicle, the phones allegedly recovered from the house of the Appellant, to resolve the contradictions in the evidence before the trial court and clear the doubt as to the guilt of the Appellant. He argued that the failure of the Respondent to tender the said items, raised the presumption of withholding evidence against the Respondent.

Conversely, Counsel for the Respondent submitted that there was no contradiction in the Respondent’s case, because Exhibits A-A5 and B-B1 (the retracted confessional statements of the Appellant) were consistent with and corroborative of the evidence of PW1. Counsel also argued that there is no principle of law requiring the tendering of weapons used or the object of robbery, to establish the guilt of an accused person. He cited the cases of AMEH v STATE (2018) LPELR – 44463 (SC) and MUSA v STATE (2016) LPELR – 42803 (SC). He submitted that Appellant failed in his duty to show the alleged contradictions, and reveal how the reliance on the purported contradictory evidence occasioned a miscarriage of justice. 

Counsel also argued that the Appellant’s Counsel failed to cross-examine PW1 on his eyewitness account of how the Appellant and his gang members attacked the PW1 and his wife at gunpoint, thereby leaving the evidence unchallenged and amounting to an admission of the damaging evidence by the Appellant. 

Court’s Judgement and Rationale

In its resolution of the issue, the Apex Court held that in proving the guilt of the accused person, the prosecution can rely on one, or all, or a combination of any of the following categories of evidence: (1) Confessional Statement of the accused person, (2) Eyewitness account and (3) Circumstantial evidence.

The Court held that where an accused person is charged with conspiracy to commit a substantive offence together with the commission of the substantive offence, the starting point is the examination of the evidence adduced in proof of the substantive offence, and thereafter, an examination of how conspiracy can be inferred from such evidence once it discloses the involvement of more than one person. Applying this principle, the Supreme Court proceeded to examine the evidence adduced in proof of the charge of armed robbery against the Appellant. 

Referring to its decision in THOMAS v STATE (2017) LPELR-41735, the Apex Court held that the elements of the offence of armed robbery which the prosecution is required to prove are: (a) That there was a robbery; (b) That the robbers were armed with offensive weapons at the time of the robbery; and (c) That the accused person participated in the robbery. The Apex Court referred to the testimony of PW1 on record, on how three persons waylaid him and his wife and started shooting; how two of them armed with a gun entered his vehicle and collected his phone and that of his wife; how one of the two robbers held them hostage, while the other took over the wheel of the car and was driving on a rough road at a high speed, and thereafter, hit his head on the windscreen; how the Appellant later handed over his gun to his accomplice and ordered his accomplice to kill PW1, how the Appellant’s accomplice got killed by an accidental discharge of bullets from the gun he was holding, and how the Appellant was forced to abandon the steering and flee from the scene. The Court held that the account of events narrated by PW1 who was one of the victims of robbery was vivid, cogent, consistent and logical, and established the first two elements of the offence of armed robbery; especially as there was no adverse evidence that the incident he narrated did not occur. 

On the third element on whether the Appellant was one of the armed robbers, the Apex Court held that, having regard to the fact that the Appellant was not arrested at the scene of the crime, but was subsequently identified by PW1, it is important that in ascribing probative value to the evidence of an eyewitness identification of an accused person, the court must be guided by the following factors: (1) The circumstances in which the eyewitness saw the suspect; (2) The length of time the witness saw the suspect or Defendant; (3) The lighting conditions; (4) The opportunity of close observation; (5) The previous contact between the two parties. 

The Supreme Court held that with the degree of contact and level of engagement PW1 had with the armed robbers inside the car, PWI was in a vantage position to recognise the armed robbers, one of whom he identified as the Appellant. The Court further held that from PW1’s testimony on record, it was evident that PW1 had earlier described the armed robber that fled the scene of the robbery to one of his visitors, while he was at the hospital after the incident, and the description matched the physique of the Appellant; the bandage on the Appellant’s head also gave him away. The Apex Court held that PW1’s identification of the Appellant as one of the armed robbers was not only corroborated by the bandage on the Appellant’s head, it was also corroborated by the stolen phones found in the Appellant’s possession, without any explanation as to how he came about the stolen phone and how he sustained the head injury. The Court further held that PW1’s identification evidence was also supported by the Appellant’s tacit admission by stopping to argue with the people that went to arrest him and keeping mute when he saw the PW1. The Apex Court held that the evidence of an eyewitness that is cogent, consistent and is not riddled with contradictions on material points, is sufficient to sustain the conviction of an accused person and PW1’s evidence of identification of the Appellant as one of the armed robbers is satisfactory, credible and leaves no room for any reasonable doubt.  

On whether the trial court was right to have relied on the Appellant’s confessional statements in Exhibits A-A5 and B-B1 to convict the Appellant despite his retraction of the same at trial and the inconsistency of the statements with the Appellant’s testimony during trial, the Supreme Court held the current position of the law as demonstrated in its decision in EGHOGHONOME v STATE (1993) 7 NWLR (PT. 306) PG 383 is that where an accused person makes a statement which is inconsistent with his testimony, the testimony will be treated as unreliable, and the statement will be regarded as evidence upon which the court can act, while the court will follow the laid down guidelines to determine the weight to be attached to the statement. 

The Apex Court held that to determine the weight to be attached to a confessional statement, whether retracted or not, the trial court must first consider if there is anything outside the confession to show that it is true; if it is corroborated; if there are relevant statements made in it of facts, true as far as can be tested; if the accused is one who had the opportunity of committing the offence; if his confession is possible, and if it is consistent with other facts which have been proved.

The Court held in the instant case, apart from the eyewitness account of the PW1 who identified the Appellant as one of the armed robbers who attacked him and his wife, and the Appellants confessional statements in Exhibits A-A5 and B-B1; finding the phones of PW1 and his wife collected during the robbery incident in possession of the Appellant, and the bandage on the head of the Appellant, are other facts that corroborated the content of the confessional statements attributed to the Appellant. His Lordship held that the Appellant’s participation in conjunction with others in the armed robbery attack on PW1 and his wife, was thus, established beyond any iota of doubt, and the Respondent duly proved the offences of conspiracy and armed robbery against the Appellant.

Appeal Dismissed.

Representation 

Tairu Adebayo with Abdulhaleem Amin for the Appellant.

O. Tolaoyan, Solicitor General, Ministry of Justice, Ogun State with A. M. Adebayo, Deputy Director for the Respondent.

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