"A defence counsel should know when it is imperative that an accused
person should give evidence in the witness box and explain certain aspects
of the case which are exclusively within his knowledge: it is improper in
such a situation to rest the clefence on the case for the prosec ution . Thi s
improper procedure denies the trial court of hearing the story of the accused
and making a choice between accepting his story or that of the prosecution.
A piece of evidence which is either unchallenged or uncontradicted will be
accepted as proof of a fact it seeks to establish".
1
See also Agngua .v. State, supra @~ 291 - 294. Flowing from the above, PWI
nd
testified that the 2 defendant was among the robbers that attacked her and her
siblings. She gave evidence of the role the 2 nd defendant played and how she came
to identify him . Subsequently, she admitted that she was not able to describe the
nd
2 defendant to the police because she could not identify him . She further admitted
st
that i: was the I defendant that gave the police the description of the 2 nd
defendant. She also adm itted that before the robbery incident she did not know the
nd
2 defendant. Lastly, she admitted that it was the l st defendant that informed the
nd
poli~e that the 2 defe :1dant particip.:1ted in the robbery. Both PW2 and PW3 who
were eye witnesses adduced evi dence that they did not see or identify the 2 nd
defendant on the day of the robbery. The evidence of PWl. is contradictory on the
identity of the 2 nd defendant. In one breath she stated that she saw the 2 nd defendant
on the scene of the crime with the a id of a torch, in another breath , she admitted
tha~ the reason she could not give the description of the 2 nd defendant to the police
was because she could not identify him that day.
It is settled that whenever the case against an accused depends wholly or
substantially on the correctness of the identification of the accused, and the defence
aileges that the identification was mistaken, the court must closely examine the
evid~nce and in acting on it must view it with caution so that any real weakness
discovered about it must lead to giving the accused the benefit of doubt. See the
case of Adamu .v . State (2017) 7 NWI..,R (pt.1565) 459 @487 .
In the instant case, desp ite the fact that the 2 nd defendant decided to rest his case on
the prosecution ' s case, there is doubt cast on his identity and participation in that
operation. I must say that he took a calculated risk and it paid off for him . The
same cannot be said of the 1st defendant. I believe he planned and participated in
26