THE STATE V. AIBANGBEE & ANOR
| Pages | 192-230 |
192
NIGERIAN SUPREME COURT CASES
[1988] 2 N.S.C.C.
THE STATE V. AIBANGBEE & ANOR.
5
THE STATE
APPELLANT
V
COLLINS OJO AIBANGBEE
RESPONDENTS
10
SUIT NO. SC 239/1985
SUPREME COURT OF NIGERIA
ESO,
J.S.C.
KAWU,
J.S.C.
OPUTA,
J.S.C.
NNAEMEKA-AGU, J.S.C.
CRAIG,
J.S.C.
6th July, 1988.
Criminal Procedure - Credibility of witnesses - Test - Cross-examination - Value of -
Findings of fact based on speculation - Effect - Interference with findings of fact by
appellate Court - 'Instituting and Undertaking' a criminal prosecution under section 191
of 1979 Constitution.
Evidence -Evaluation and assessment - Role of trial coup.
Words :did Phrases - "Identification" - Meaning and ambit of
Constitutional Law- Section 191 1979 Constitution - Interpretation of.
ISSUES:
1.
Whether findings of fact and conclusions from facts of a trial court should be
based on speculation.
2.
What is the role/duty of a trial court in the assessment of evidence?
3.
What is the effect of cross-examination?
4.
Whether an appellate court may interfere with the findings of fact of a trial court.
5.
(a) What is the meaning of 'Identification'
(b) When can it be said that the circumstances of two accused persons identi-
fication are the same?
FACTS:
The two accused persons were charged with conspiracy and the murder of one
Mr. Kayode Giwa - Amu. There was only one eye- witness and he gave evidence for
the prosecution as P.W.3. The trial judge after considering the evidence, held that
P.W.3 was a reliable witness and found the 1st accused guilty of murder and sen-
tenced him to death. He however discharged and acquitted the 2nd accused, hold-
ing that P.W.3 could not have had ample opportunity to study or recognise the 2nd
accused's face, because of his (P.W.3's) fear and emotional condition at the time of
the crime. The 1st accused appealed against his conviction and sentence, while the
state appealed against the acquittal and discharge of the 2nd accused. The Court
of Appeal allowed the appeal of the 1st accused, holding that in its view the circum-
stances of identification of the two accused persons were the same, and as such,
any doubt in respect of the 2nd accused, ought to have been extended to the 1st
accused. The Court of Appeal then dismissed the appeal of the state.
15
20
25
30
35
40
45
5(
THE STATE V. AIBANGBEE & ANOR.
193
The State, thus further appealed to the Supreme Court contending
inter alia,
that
the Court of Appeal erred in law by altering the finding of fact by the trial judge that
the P.W.3 had full and clear opportunity to view and identify the 1st accused, when
there was sufficient credible evidence in support of the finding; that the Court of Ap-
5
peal erred in law by failing to hold that the acquittal of the 2nd accused did not necess-
arily mean that the 1st accused was also entitled to an acquittal and that the findings
of the trial judge were not necessarily inconsistent; that the Court of Appeal failed to
direct its mind to the fact that the trial judge had erroneously allowed his own specu-
lations and presumptions, which were not supported by any evidence not justifiable
10
under the Evidence Act, to create doubt in his mind regarding the competence of
P.W.3 to properly recognise the 2nd accused at the scene of the crime.
HELD:
1.
It is a fundamental principle of law that finding of facts and conclusions from
facts of a trial court should be based on evidence adduced during a case and
15
not speculation. There was no evidence in support of the finding of a state of
fear by P.W.3 upon which the trial judge based his conclusion that P.W.3 was
so frightened that he could not have recognised the 2nd accused. The defence
did not give any evidence to support the trial judge's speculation and as such
there was no basis for the finding. There was no proven legal ground for the
20
doubt in respect of the guilt of the 2nd respondent.
It is trite law that if on the totality of the evidence, there is doubt, genuine doubt,
the benefit of that doubt is usually given to the accused person. But no court is
authorised to manufacture a doubt and then turn round and rely on his
manufactured doubt for an acquittal. Genuine doubt is that arising from the facts
25
and circumstances established by evidence. Doubts based on speculations are
also speculative, and are not the doubts known to our criminal law. The trial
court was very wrong in acquitting and discharging the 2nd accused because
of its own self induced doubt and the Court of Appeal was in error to have
confirmed it.
30
2. The role of a trial court is to hear evidence, to evaluate the evidence, to believe
or disbelieve witnesses, to make findings of fact based on the credibility of the
witnesses who testified and to decide the merits of the case based on the
findings. When a trial court acts on speculation rather than on the evidence then
it has abandoned its proper role. No trial court has a right to draw conclusions
35
of fact outside the available evidence. Such a conclusion will be regarded as
perverse. It is within the province of a trial court to believe or disbelieve the
witnesses it had the privilege of seeing and hearing and whose demeanour it
watched. Such belief or disbelief must, however, be in consonance with the
general drift of the evidence and the probabilities which on the totality of the
40
evidence it is natural to expect.
3.
Cross-examination is a powerful and invaluable weapon for the purpose of
testing the veracity of a witness and the accuracy and completeness of his story.
The fact that the trial judge himself was able to say that P.W.3 withstood the
45
onslaught of cross-examination for three days ought to have indicated to him
(the trial judge) that the P.W.3's story was complete and should be believed in
its totality.
4.
An appellate court has a duty to examine the grounds upon which the
conclusions or inferences of the trial court were based and if convinced that the
50
inferences were erroneous, the appellate court would be justified in rejecting
those inferences. The Court of Appeal, in the instant case, had no duty to
interfere with the findings of the trial court based on the credibility of the
witnesses who testified. It ought to have reversed the decision of the trial court
where there was no evidence to support the trial court's decision, as in the
discharge of the 2nd accused.
194
NIGERIAN SUPREME COURT CASES
[1988] 2 N.S.C.C.
5. (a) An identification is a whole series of facts and circumstances for which a
witness or witnesses associate a defendant with the commission of the of-
fence charged. Identification consists of more than just an identification
parade. It may consist of or include evidence in form of finger prints, hand-
writing, palm prints, voice, identification parade, photographs or the recol-
5
lection of the features of the culprit by a witness who saw him in the act of
commission which is called in question or a combination of two or more of
these. Where evidence of the recollection of the witness of the features of
the culprit is relied upon, it must be very cautiously regarded by the courts
for fear of mistaken identification.
10
(b) Questions which go to the credibility of a witness's testimony on the evi-
dence of identification usually involve the crucial question as to the oppor-
tunity which the witness had of viewing the act of the accused person which
he is testifying about. It is when this opportunity of observing two or more
accused persons during the commission of the offence is the same and not
15
when they go through the same identification parade that it is said that the
circumstances of their identification are the same.
OBITER:
'Instituting and undertaking' a criminal prosecution within the meaning of section
191 of the Constitution of the Federal Republic 1979 means the Attorney-General
20
and his staff can commence and make themselves responsible for criminal prosecu-
tions, and not that they cannot brief private practitioners to appear on behalf of the
Attorney-Genera', either alone or together with a member of the Attorney-General
staff.
25
Editorial Note:
[As to
Whether an appellate Court can interfere with the finding of fact of a trial
Court
See:
1.
Ezedu & Ors. v. Obiagwu
(1986)
1
N.S.C.C. 615.
2.
Okosun
&
Ors. v. A.G. Bendel State
(1985) 1 N.S.C.C. 1327.
30
3.
Abdullahi v. The State
(1985) 1 N.S.C.C. 615.
4.
Okpiri & Ors. v. Jonah & Ors.
(1961) N.S.C.C. 84.
As to
Evaluation of evidence
See:
Dumuje v. lduozo and Anor.
(1978) N.S.C.C. 51.
As to
Cross-examination
See:
Woluchem & Ors. v. Gudi & Ors.
(1981) N.S.C.C.
214].
35
CASES REFERRED TO
IN
JUDGMENT:
1.
Rex v. White
4 F & F 283 at 384
2.
Hyacienth Egbe v. The King
(1950) 13 W.A.C.A. 105 at 106.
40
3.
Nwazeke v. The State
(1988) 1 N.W.L.R. 72 (Part 529).
4.
Queen v. Tribunal
(1976) 1 All E.R. 549 at 551 - 553.
5.
State v. Gwonto
(1983)
3 S.C.
62.
6.
D.P.P. v. Akozor
(1962) 1 All N.L.R. 235.
7.
Nafiu Rablu v. The State
(1980) 8 - 11 S.C. 130.
8.
Woolmington v. Director of Public Prosecutions
(1935) A.C. 462 at 481.
9.
Seismograph Ltd. v. Ogbemi
(1976) 4 S.C. 85.
10.
Benmax v. Austin Motor
Co.
Ltd.
(1955) 1 All E.R. 326 at 327.
5(
11.
Watt or (Thomas) v. Thomas
(1947) 1 All E.R. 582 at 584.
12.
R. v. Long
(1973) Crim L.R. 577 (C.C.A.).
13.
Abudu v. The State
(1985) 1 N.W.L.R. (Part 1) 55.
14.
Layiwola v. Queen
(1959) 1 W.R.N.L.R. 194.
To continue reading
Request your trial