BLESSING BOTU V. THE STATE (2017)

Background

Blessing Botu and one Odafe Awhata were arraigned before the Delta State High Court, Ughelli, on a three-count charge involving conspiracy to commit armed robbery and two separate armed robberies. The prosecution alleged that the accused persons robbed John Eyalegin of a Mercedes-Benz vehicle on 18 August 2002 and Pastor A. B. J. Udoka of another Mercedes-Benz vehicle on 24 August 2002. The offences were charged under sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990.

The appellant pleaded not guilty. The prosecution called four witnesses, while the appellant testified in his own defence. An alleged confessional statement attributed to the appellant was rejected following a trial-within-trial, the trial judge finding that it had not been made voluntarily. At the end of the trial, the appellant was discharged and acquitted on the conspiracy count but convicted and sentenced to death on the two substantive armed robbery counts.

On appeal, the Court of Appeal partly allowed the appeal by setting aside the conviction on count II. It nevertheless affirmed the conviction and death sentence on count III, relating to the robbery of Pastor Udoka. The appellant then appealed to the Supreme Court, challenging the reliability of the identification evidence and the reliance on the doctrine of recent possession.

Issue

The principal issue was whether, having regard to the totality of the evidence and the circumstances surrounding the alleged robbery, the Court of Appeal was right to uphold the appellant’s conviction on count III.

Ratio Decidendi

The Supreme Court allowed the appeal. It held that in an armed robbery charge the prosecution must prove beyond reasonable doubt: first, that a robbery occurred; secondly, that the robbery was armed; and thirdly, that the accused was one of the persons who participated in it. Although the occurrence of a robbery involving Pastor Udoka and the use of a weapon were not seriously disputed, the decisive question was whether the prosecution positively linked Botu to the offence.

The Court emphasised that identification evidence must be examined with particular care because the central controversy in many criminal trials is not whether an offence occurred, but whether the accused was the actual perpetrator. The court must consider the circumstances in which the witness saw the suspect, the duration of the observation, lighting conditions, opportunity for close observation and any previous relationship or contact between the witness and the accused.

An identification parade is not invariably required. However, it is an important safeguard where the victim did not previously know the accused, the accused was not arrested at the scene, or the encounter was brief. The Court also condemned the procedure adopted by the police in which the suspect was effectively asked to identify his alleged victim. That procedure violated the presumption of innocence and the accused’s constitutional right to remain silent and not to incriminate himself.

Court Findings

The Supreme Court found the evidence of PW2, the alleged victim, materially unreliable. PW2 had not given the police any prior description of the appellant. He stated that he was placed in a line with other men and that the suspects were brought before him, but he was not asked to identify them. The evidence suggested that the police had shown him the appellant at the police station, after which he identified the appellant in court. The Court held that such dock identification was manifestly unsafe in the circumstances.

PW2 also admitted under cross-examination that additions had been made to his first statement after suggestions from people around him, including police officers. His second statement omitted important matters contained in the first and was, according to PW2, the more accurate account. This evidence raised serious doubts about whether the police had influenced the complainant’s evidence in an effort to secure a conviction. The Supreme Court held that even slight police interference was sufficient to undermine the reliability of both statements and the resulting identification evidence.

The prosecution also relied on the fact that the appellant was found in the stolen vehicle within approximately two hours of the robbery. Under section 167(a) of the Evidence Act, 2011, a person found in possession of recently stolen goods may be presumed to be the thief or a receiver knowing the goods to be stolen, unless he accounts for the possession. The Court stressed that this presumption is rebuttable. The appellant explained that he had merely accepted a lift from Awhata, who said he was travelling to Benin to pick up his uncle. His account was not effectively controverted by the prosecution. An explanation that might reasonably be true and is consistent with innocence is sufficient to displace the presumption, even if the court is not fully convinced that it is truthful.

There was no voluntary confession capable of supporting the conviction, and the evidence of the police witnesses did not establish that the appellant participated in the robbery. Once the identification evidence was discredited and the recent-possession presumption rebutted, the prosecution’s case fell into doubt.

Conclusion

The Supreme Court held that the prosecution failed to prove beyond reasonable doubt that Blessing Botu was one of the persons who committed the robbery in count III. The appeal was allowed, the decision of the Court of Appeal was set aside, and the conviction and sentence of death were quashed. The appellant was found not guilty, acquitted and discharged, with an order that he be released forthwith. The acquittal on count I and the earlier setting aside of the conviction on count II remained undisturbed.

Significance

The decision is significant for Nigerian criminal procedure because it reinforces the high standard of proof applicable in criminal trials. Suspicion, recent possession and a questionable identification cannot substitute for reliable evidence connecting an accused person to an offence. It also confirms that courts must scrutinise police investigation methods and reject evidence that has been procured or materially influenced by investigators. Where the prosecution’s evidence leaves the court in a state of reasonable doubt, the doubt must be resolved in favour of the accused.