➥ CASE SUMMARY OF:
Sani Lawali (Danchina) v The State (2019) – SC
by “PipAr” B.C. Chima
➥ COURT:
Supreme Court – SC.272/2017
➥ JUDGEMENT DELIVERED ON:
Friday, 18th January, 2019
➥ AREA(S) OF LAW
Identification parade;
Armed robbery.
➥ NOTABLE DICTA
⦿ APPEALING FACTS IN DEATH SENTENCE IS OF RIGHT
The right of appellant to appeal as of right on the 4 grounds complaining on facts is secured by Section 233 (2) (d) of the Constitution, the Court of Appeal having affirmed his death sentence. — E. Eko, JSC.
⦿ FINAL ADDRESS CANNOT FILL THE PLACE OF EVIDENCE
That counsel in the guise of final address or brief of argument cannot lead evidence to fill any lacuna in his client’s case. He is not permitted to do so … Final addresses, no matter how brilliantly they are couched cannot constitute evidence and they are not intended to be so: NWADAIRO v. SPDC (1990) 5 NWLR (pt.150) 322 at 339; ODUBEKO v. FOWLER (1993) 1 NWLR (pt. 308) 637; ISHOLA v. AJIBOYE (1998) 1 NWLR (pt. 532) 71 at 93 ARO v. ARO (2000) 14 WRN 51 at 56. — E. Eko, JSC.
⦿ CONCURRENT FINDINGS OF FACT – WHEN CONCURRENT FINDINGS OF FACT WILL BE DISTURBED
Where the appeal challenges only the concurrent findings of fact the burden on the appellant to displace the presumption that the concurrent findings of fact are correct is made difficult by the rule of practice in the appellate Courts to the effect that an appellate Court is loathe to disturb concurrent findings of fact and therefore such concurrent findings of fact should rarely disturbed: ENANG v. ADU (1981) 11 12 SC 17 at 27 (Reprint) … The usual circumstances concurrent findings of fact are disturbed are: when it is shown that the findings are perverse and not the result of a proper exercise of judicial discretion, or that there is no evidence at all to support a particular crucial finding, or that the trial Court made wrong deductions or drew wrong inference from the admitted or established facts: UBANI & ORS v. THE STATE (2003) 18 NWLR (PT. 851) 224. — E. Eko, JSC.
⦿ SUCCEEDING IN ARMED ROBBERY OR CULPABLE HOMICIDE – INGREDIENT
To succeed in proving its case beyond reasonable doubt in a charge for armed robbery or culpable homicide punishable with death, one of the essential ingredients of both offences is proof that the accused person was one of those who participated in the armed robbery or series of robberies and in the case of culpable homicide, that it was his act that caused the death of the deceased. For armed robbery, see: Bozin Vs The State (1985) 2 NWLR (Pt. 8) 465; Afolabi Vs The State (2010) 16 NWLR (Pt. 1220) 584; Smart Vs The State (2016) LPELR 40728 (SC) @ 29 D-E. For culpable homicide punishable with death, see: Musa Vs The State (2009) 15 NWLR (Pt. 1165) 467; Aliyu Vs The State (2013) 12 NWLR (Pt.1368) 403; Afolabi Vs The State (2016) LPELR 40300 (SC) at 31-32 E-A. — E. Eko, JSC.
⦿ FACTORS BEFORE PLACING RELIANCE ON IDENTIFICATION EVIDENCE
The correct identification of the perpetrator of a crime is therefore crucial, particularly where the accused person was not arrested at the scene of crime, and the victim did not know him prior to the incident. In order to avoid a situation of mistaken identity, the Court will consider certain factors before placing reliance on the identification evidence, such as: (a) The circumstances in which the eye witness saw the accused; (b) The length of time the witness saw the accused; (c) The lighting conditions at the crime scene; and (d) The opportunity of close observation of the defendant by the witness. (e) The description of the accused given to the Police soon after the incident. See: Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455 @ 478 and 479; Ochiba Vs The State (2012) ALL FWLR (Pt. 608) 849 @ 871; Thomas Vs The State (2017) LPELR 41735 (SC) © 24-25 D-A. — E. Eko, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
M.O. Folorunsho Esq.
⦿ FOR THE RESPONDENT
Adedapo Tunde-Olowu, Esq.
➥ CASE HISTORY
The appellant, convicted by the High Court of Sokoto State (Coram: D. B. Sambo, J) for the robbery while armed with dangerous weapon, and for culpable homicide punishable with death, was sentenced to death. His conviction and sentence were upon his appeal, affirmed by the Court of Appeal, Sokoto division on 16th February, 2017. He has further appealed to this Court.
➥ ISSUE(S) & RESOLUTION
I. the Lower Court was not right in affirming the judgment of the trial Court that the prosecution had proved the commission of the two offences by the appellant beyond reasonable doubt?
RULING: IN RESPONDENT’S FAVOUR.
A. “The appellant did correctly restate the law well when he submitted that “where an accused person is accosted at the scene of crime – there cannot be a problem of identifying such accused person”. The undiscredited evidence of the Pw.6 had categorically fixed the appellant, not only to the locus criminis but also to the violent robbery operation during which 5 persons, including armed mobile policemen were killed. His alibi, if he ever had any, had been outrightly and severely demolished by the evidence of Pw.6 and his own self-destruct evidence.”
B. “The identification of the appellant by the Pw.6 as a participant in the robbery operation cannot be said to be faulty. He had enough time, not a mere fleeting chance, to observe the appellant who, from the Pw.6’s unequivocal narration, had spent enough time with him collecting money from him and other passengers. The appellant took his time, according to the Pw.6, collecting two handsets from the Pw.6 and had removed the SIM cards and “very generously” given them back to the Pw.6. The appellant spent time with the Pw.6 trying unsuccessfully to remove the cassette from the Pw.6’s tape recorder, -which he later went away with. In the peculiar circumstance of this case, the Pw.6 had enough time and opportunity to observe the appellant, his tormentor, and when he testified, he gave good description of the appellant and had graphically fixed the appellant to all he did to him (Pw.6) on 7th July, 2007. In the circumstance, an identification parade was not necessary. IKEMSON v. THE STATE (1989) 3 NWLR (pt. 110) 455 at 472, 479.”
C. “The totality of all I have been trying to say is that the appellant never raised alibi as a defence and he established none. Alibi, as a defence, therefore does not avail him. The evidence of Pw.6 not only demolished whatever alibi the appellant may have, he having been fixed to the scene and to the offences alleged; it was also an emphatic or unequivocal evidence that identified the appellant as an active participant in the armed robbery operation in which 5 persons were killed. At the identification parade, the Pw.6 made no mistake in his identification of the appellant as one of the armed robbers who, on 7th July 2009, robbed him and others, and killed 5 persons.”
D. “On both the alleged alibi and the identification of the appellant, as one of the armed robbers, I agree with the respondent that “both the trial Court and the Lower Court, without any iota of doubt, reached concurrent findings of fact”. The concurrent findings, supported by credible evidence, cannot be faulted. The well established presumption is that findings of facts are correct. The burden, on appeal, is on the appellant to displace the presumption: BAKARE v. THE STATE (1987) 1 NWLR (pt. 52) 579 at 593.”
.
.
.
✓ DECISION:
“My Lords, I find no merit in this appeal. It behoves me therefore, to affirm the judgment of the Lower Court delivered on 16th February, 2017 in the appeal No. CA/S/61c/2015. Accordingly, I affirm the decision, as I dismiss the appeal in its entirety.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
