⦿ CASE SUMMARY OF:
Momoh Jimoh Salau v. The State (2019) – SC
– Identification parade;
– Fire burn;
Momoh Jimoh Salau
⦿ LEAD JUDGEMENT DELIVERED BY:
UWANI MUSA ABBA A JI. J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
This appeal is against the judgment of the Court of Appeal, Abuja Division, delivered on 3/3/2016, which affirmed the conviction and sentence of the Appellant by the trial Court, wherein he was convicted and sentenced to 24 years imprisonment and fine of N20,000 for the offence of mischief by fire, contained in the amended Charge dated 7/4/2011 at pages 2-3 of the record.
At the trial, the Prosecution called 6 witness and tendered several Exhibits; at the end of which a no case submission was made leading to the discharge of the Appellant on 1st and 3rd charges only and convicted on the 4th head of charge for 24 years imprisonment and fine of N20,000.
On appeal to the lower Court, the Appellant lost, hence this appeal.
1. Whether the Respondent proved its case against the Appellant?
⦿ HOLDING & RATIO DECIDENDI
1. FOR ISSUE 1, THE SUPREME COURT HELD AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENT.
i. In the instant appeal, PW3 at page 66 of the record testified thus against the Appellant, who was the 2nd accused person herein: “I know the 2nd accused person… in May, 2009, the 2nd accused led some people and being in front of them. They carried tyres and gerycan with petrol and they were all shouting that if anybody who was in the house, they should come out because they don’t want to kill. As they were shouting, I carried my junior called Abdul Kareem and we ran out. The 2nd accused person was the one who held the fuel. They sprayed the petrol on the house with the tyres. They were very many. All my father’s wealth were burnt. The properties that were burnt are Television, shelf, Foam…Among the crowd I know few of them. I know Abdala, Obudu and Pele. These are the few people I know.”
Under cross examination at page 67, he clarified that: “I never said the two accused persons were involved. I have only said it was the 2nd accused I saw.”
PW4 in his turn gave evidence thus at page 69 of the record: “…I left Zariagi to Lokoja because the 2nd accused person came with his people to burn my father’s house and 5 that was why I left Zariagi. I only know then 2nd accused person. I was in the house with my brother, he started shouting anybody in the house should leave the house because he wanted to burn the house. My brother now held me and we stayed aside watching him. The name of my brother is Obayin. The 2nd accused person threw petrol and tyres into the house, and the house caught fire. I only saw the 2nd accused person and one Pele. They spoilt the properties in the house. After they left; my brother and myself came out of the bush and we saw the house burnt even some places started breaking…” Under cross examination, he explained at page 70 that: “In my statement, I did not describe the dress the 2nd accused person was wearing on the day of incident. Jimoh is my father. I have a brother called Obayin Abdullahi.”
S. 337 Penal Code;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
In Segun Balogun v. The Attorney General Of Ogun State (2002) 2 SC (PT. 11) 89, the Supreme Court held, per Uwaifo J.S.C, that “Such a parade is absolutely unnecessary when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.”
In Olayinka Afolalu v. The State (2010) 16 NWLR (PT 1220) 584, the Supreme Court, per Adekeye, JSC, held that identification parade is “only essential in the following circumstances: 1. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence. 2. where the victim or witness was confronted by the offender for a very short-time and 3. where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.”
EYISI v. STATE (2000) 15 NWLR (PT 691) 555 that “where, for instance, the accused person is well known to the witness before the day of the commission of the offence alleged, there can be no need for an identification parade.”
⦿ NOTABLE DICTA
For the charge of mischief by fire, the prosecution must prove that the accused committed the mischief, the mischief was committed by fire or an explosive substance and the mischief destroyed and damaged a building or property, which must be a place of worship, human dwelling or a place for the custody of property. – ABBA AJI. J.S.C. Salau v. State (2019)
Once the prosecution was able to discharge its burden of proof of the offence charged, the Court of trial can convict the accused even on evidence of a single witness. As a matter of fact, a single witness who gives cogent eye witness account of the incident, as in this instant case, will be sufficient. – ABBA AJI. J.S.C. Salau v. State (2019)
The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material, it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. – ABBA AJI. J.S.C. Salau v. State (2019)
If a lone witness gives evidence mentioning the name of the accused particularly immediately the commission of the offence and the trial Court believes him, it is enough to sustain a conviction for the offence. – AKA’AHS, J.S.C. Salau v. State (2019)
The primary purpose of identification has been reiterated by this Court in a plethora of cases to be the means of establishing that a person charged with an offence is indeed the same person who committed the offence. It would not be necessary where a witness is able to establish by credible evidence that he clearly saw the accused commit the offence and he was able to recognize the accused person. – John Okoro, J.S.C. Salau v. State (2019)