When Identification Parade is Unnecessary, Superfluous: Olayode v. The State

Contempt of court

TAOHEED LAMIDI OLAYODE v. THE STATE

CITATION: (2020) LPELR-52519(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 18TH DECEMBER, 2020

Suit No: SC.983/2017

Before Their Lordships:

OLABODE RHODES-VIVOUR – Justice of the Supreme Court

MUSA DATTIJO MUHAMMAD- Justice of the Supreme Court

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN- Justice of the Supreme Court

AMINA ADAMU – Justice of the Supreme Court

EJEMBI EKO- Justice of the Supreme Court

Between

TAOHEED LAMIDI OLAYODE……….. Appellant(s)

And

THE STATE …….. Respondent(s)

LEADING JUDGMENT DELIVERED BY MUSA DATTIJO MUHAMMAD, J.S.C.

FACTS

The Appellant was arraigned along with one Fahd Kamaldeenand two others, then at large for conspiracy and the series of armed robberies they carried out between 2010 and 2011 in Ilorin metropolis,in the course of which they killed the owner of one of the Supermarkets they robbed, on a thirteen-count information under the Robbery and Firearms (Special Provisions) Act, 2004 and the Penal Code for the conspiracy, robbery and culpable homicide respectively.

On the 19th May, 2011 the group, while driving in a Honda car with registration number Kwara AH 195 FUF, were flagged down by a team of SARS police officers along Airport Road Ilorin and they refused to stop. The patrol team pursued and arrested the Appellant. His co-travelers in the vehicle had escaped arrest. In the course of investigation, the Appellant and Fahd Kamaldeen, his co-accused, made confessional statements all of which were tendered after a trial-within-trial had been conducted following the objection raised against their voluntariness. PW4, the owner of Exhibit E, the Nokia handset, told the HighCourt she had been dispossessed of at the Peculiar Grace Supermarket by the Appellant and his co-accused. Exhibit E was recovered in the Honda vehicle driven by the Appellant on the day of his arrest by the SARS patrol team. All eye witnesses to some of the robberies and the killing of Mr. Basilfixed the Appellant to the venue of the respective offence as a participant. The Appellant and his co-accusedwere further identified at an identification parade by their victims who had variously, before Appellant’s arrest, reported their being robbed. The identification parade took place at the SARS police office.

The appellant, who has a bad leg and limps, gave evidence in his own defence. He disputed the prosecution’s assertion that the injury that caused his bad leg was sustained in the course of one of the armed robberies he is convicted for. Instead, he insists, a motor cycle accident was the cause of the bad leg; that he never refused to stop on the day of his arrest when the police patrol team flagged him to; that he was never a member of any robbery gang or had had anything to do with any of the prosecution witnesses.

In the HighCourt’s judgment delivered on the 16/9/2014, the Appellant was discharged and acquitted in respect of counts 5, 6, 7, 8, 12 and 13 of the charge which the Prosecution was held not to have proved beyond reasonable doubt. The High Court however convicted and sentenced the Appellant under counts 1, 2, 3, 4, 9, 10 and 11 for the conspiracy and robberies at Peculiar Grace Supermarket, Food and Nut Supermarket, a sister agency and the killing of Mr. Basil, the owner of the former, in the course of the robbery.

Dissatisfied, the Appellant appealed to the Court of Appeal, Ilorin Division, which dismissed the appeal and affirmed the decision of the High Court.Being dissatisfied with the decision of the Court of Appeal, the Appellant appealed to the Supreme Court.

ISSUE(S) FOR DETERMINATION

The Supreme Court determined the appeal on a sole issue viz:

Whether from the materials before this Honourable Court, the Court of Appeal was correct in affirming the judgment of the trial Court that the Prosecution established the identity of the Appellant as one of the persons who participated in any of the robberies with which he was convicted and sentenced to death.

APPELLANT’S SUBMISSIONS

Arguing the sole issue, Counsel to the Appellant submitted that for the Prosecution to secure conviction for any of the offences, it must prove all their ingredients beyond reasonable doubt. Citing Sections 135 and 138 of the Evidence Act to the effect that that the discharge of the burden does not shift, and it is mandatory on the part of the Prosecution. Counsel referred to ITU V. STATE (2016) 5 NWLR (PT 1506) 443 at 465, EROMOSELE V. FRN (2017) 1 NWLR (PT 1545) 55 at 89, IBRAHIM V. THE STATE (2008) 17 NWLR (PT 1115) 205 at 221.

Still on the burden of proof, Counsel submitted that the Appellant was not arrested at the scene of any of the crimes for which he was charged. That failure of the Prosecution to establish the identity of the Appellant in relation to any of the offences disentitle it from succeeding in the case. Counsel submitted that the decisions of the two lower Courts cannot be sustained because they acted recklessly as regards the identity of the Appellant in convicting him. Counsel cited ALABI V. STATE (1993) 7 NWLR (PT 307) 511 at 522, OKANLAWON V. STATE (2015) 17 NWLR (PT 1489) 445, OLUFOHAI V. THE STATE (2015) 3 NWLR (PT 1445) 172. Counsel contended that the time within which the Prosecution eye witnesses viewed the Appellant was insufficient for them to recognize his features and retain same in their memory. That the witnesses actually lay face down, too frightened to observe the features of the Appellant who had a gun. Also, that the robberies were at night. The fact that the Prosecution witnesses were prompted at the identification parades to fish out the Appellant, it is contended, makes their evidence unreliable. Concluding arguments, Counsel submitted that the weakness in the entire evidence which seeks to fix the Appellant on the various dates and venue of the robberies disentitle both Courts from their concurrent conviction and sentence of the Appellant. Counsel cited IKEMSON V. THE STATE (1989) 3 NWLR (PT 110) 455, SUNDAY NDIDI V. THE STATE (2007) 13 NWLR (PT 1052) 633

RESPONDENT’S SUBMISSIONS

Responding to the arguments of the Appellant, Counsel to the Respondent submitted that the entire circumstances of a case determine the necessity or otherwise of an identification parade. Counsel submitted that where the Accused, as in the instant case, identifies himself by making a confessional statement admitting the crime, identification parade is usually dispensed with. Counsel further argued that the Appellant was arrested with Exhibit E, PW4’s Nokia handset, in his possession. Counsel submitted that in the circumstances, the two Courts were right to invoke Section 167(a) of the Evidence Act in presumingthat the Appellant was the person who dispossessed PW4 of the handset. By virtue of the foregoing, further proof of Appellant’s identity through an identification parade is unnecessary. Counsel referred to BABARINDE V. THE STATE (2014) ALL FWLR (PT 717) 606 at 631-632 and EBENEHI V. THE STATE (2008) 10 NWLR (PT 1096) 596.Concluding on the issue, Counsel submitted thatbeyond Exhibit E and the Confessional Statements, the Prosecution linked the Appellant with the series of robberies he was convicted for through the evidence of the Prosecution witnesses who consistently described the Appellant whom they easily picked at the parades because of his limp.

RESOLUTION OF THE ISSUE(S)

Resolving the sole issue, the Supreme Court examined the record of appeal in a bid to determine if the evidence of the identification of the Appellant met the required standard to secure a conviction. The Supreme Court noted that the High Court based its conviction of the Appellant on the confessional statements, Exhibits N and O, which was found to have been freely made after the trial-within-trial. The said confessional statements were also found to have been corroborated by the evidences of the Prosecution witnesses who were the victims of the robberies. That the High Court also invoked Section 167(a) of the Evidence Act given Exhibit E, the Nokia handset, was found in the possession of the Appellant, which PW4 was dispossessed of during one of the robberies the Appellant took part in. The Court of Appeal, the Supreme Court noted, affirmed the conviction of the Appellant on the same grounds on which the High Court convicted him.

Applying the law to the circumstances of the Appellant’s conviction, the Supreme Court held that that Appellant’s extra-judicial confession, having been proved to have been made voluntarily and it is a positive, direct and unequivocal admission of his guilt, a Court may convict the Appellant on it alone without the need for further corroboration of same. CitingSTEPHEN V. STATE (2013) ALL FWLR (PT 705) 229 at 239, IKEMSON V. STATE (1989) 3 NWLR (PT 110) 455, LASISI V. STATE (2013) ALL FWLR (PT 707) 611 at 636-637 and SHURUMO V. STATE (2010) ALL FWLR (PT 551) 1406 at 1447.

The Supreme Court noted that even though corroboration was unnecessary before the Appellant could be convicted on his voluntary confessional statements, the two Courts acted further on the evidence of eye witnesses in convicting the Appellant, which is in line with the admonition of the Supreme Court in numerous cases for Courts to look for anything outside the confession of an Accused which confirms the veracity of the confession. Reliance was placed on ISSA BIO V. STATE (2020) LPELR – 50258 (SC), OSETOLA AND ANOR V. THE STATE (2012) LPELR – 9348.

Finally, relying on AGBOOLA V. THE STATE (2013) LPELR – 20052 and NWATURUOCHA V. STATE (2011) LPELR – 8119 (SC), on the Appellant’s arguments against the conduct of the identification parade, the Supreme Court held, in agreement with Counsel to the Respondent, that where there is sufficient evidence linking the Accused with the offences charged, as is the instant case, identification parade is unnecessary and superfluous.

HELD

The Supreme Court held that the concurrent decisions of the two lower Courts convicting the Appellant of the offences charged and sentencing him to death were not perverse and as such could not be disturbed. The Supreme Court thus dismissed the appeal and affirmed the decisions of the two lower Courts.

Appearances:

M.I. HANAFI, with him, O. A. Omolase and K. B. Yakub

For Appellant(s)

  1. SALMAN JAWONDO with him, J. A. Mumini (DPP) and B. L. Abdulsalam

For Respondent(s)

Compiled By Lawpavilion

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