Latest Supreme Court Judgement: Whether identification Parade is a sine qua non to the conviction of an accused person

CHIJIOKE UGWU v. THE STATE

Legalpedia Electronic Citation: (2020) Legalpedia (SC) 26842

AREAS OF LAW: APPEAL, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

This is an appeal against the judgment of the Court of Appeal, Enugu division given on Friday 20^th December, 2013. The Appellant and one other had earlier been arraigned before the Enugu State High Court, sitting at the Nsukka Judicial division, where they were charged with conspiracy to murder, and the murder of Christopher Ogbonna, the Chief Security Officer of University of Nigeria, Nsukka. Upon their arraignment and the charge read to them, their plea was taken. However, upon an application for bail pending trial brought before a vacation Judge of the High Court, in Enugu, Clement Ezeazu, the first accused was granted bail. He later jumped bail and has remained at large. Efforts to re-arrest and bring him to Court to stand trial proved abortive. Subsequently, the State with leave of the Court amended the information to drop the name of the first accused – Clement Ezeazu, leaving the Appellant alone to stand the trial. During the trial, the prosecution called eight (8) witnesses and the Appellant testified in defence but called no other witness. The fact of the case was that about 9pm of the 26^th day of May, 2002, some men with guns invaded the official residence of Mr. Christopher Ogbonna the Chief Security Officer of the University of Nigeria, Nsukka at Nsukka Elias Avenue, University of Nigeria, Nsukka campus. The said men held Mrs. Ogbonna, wife of the deceased, and her children hostage. They seized some of their properties including money. They raped two daughters of the deceased, killed Mr. Ogbonna, and later escaped from the house. PW1 Chukwuka Ogbonna is the first son of the deceased. He was not in the house when the gunmen arrived. After over powering all the occupants of the flat, the assailants took positions, switched off the light and began to intimidate and harass the family of the deceased. The gunmen brought out assorted drinks kept in the house by the deceased and began to entertain themselves. They made it clear to the family that their mission was to kill the Chief Security Officer when he returned, failing which his first son would be killed. PW1, being a student had gone out to study inside the campus hence was not in the house when the gunmen came. On arrival, he noticed that the security guard was not downstairs where he was supposed to be. He got upstairs to their flat to discover that the light had been switched off, even though the door was left opened. He entered their flat and switched on the light only to see a gunman standing between the refrigerator and the wall, pointing a gun at him. The gunman began to command PW1. He recognized the gunman as the Appellant. Other gunmen then came out from the kitchen and bedrooms and he readily recognized one Clement Ezeazu. The deceased, who had been out of the house, then came in. He was immediately disarmed and shot several times and was later confirmed dead at the University Medical Centre. PW3 – a medical doctor carried out an autopsy on the body of the deceased. He testified that the deceased died as a result of multiple bullet wounds, one of which shattered his heart. In the course of investigation, the police arrested, among others, the Appellant and Clement Ezeazu – the 1st accused in the original information. Upon the execution of search warrant in the house of the suspects, several incriminating items were found in the house of Clement Ezeazu, including some of the bottles of the drinks suspected to have been removed from the house of the deceased, which were all tendered and admitted as exhibits.  PW4 and PW5 are the grown up daughters of the deceased who narrated in their testimonies the sordid acts of rape on them by the assailants. The Appellant put up a defence of alibi that he was off duty on that day and had gone to receive treatment from one Mrs. Igboji a nurse working with bishop Shanahan Hospital, Nsukka. He further testified that after receiving treatment, he had returned to his house and was with his mother until the following day. He wondered why PW1 claimed to have seen him at the scene when both of them attended a meeting the following day, for the burial of the deceased. At the conclusion of the trial and after written addresses of both counsel, in its considered judgment, the trial Court found the Appellant guilty as charged, he was convicted and sentenced to death by hanging. Aggrieved by the judgment of the trial Court led to an appeal to the Court of Appeal. At the Court below, the appeal was found lacking in merit and was accordingly dismissed with the conviction and sentence of the Appellant consequently affirmed. Further aggrieved by the decision of the lower court, the Appellant has filed this appeal.

                                                    

HELD

Appeal Dismissed

ISSUE FOR DETERMINATION

• Whether in the circumstance of this case, an identification parade was necessary. And whether the defence of alibi was sustainable for the appellant?

 

RATIONES

WORDS AND PHRASES

RATIO DECEDENDI – WHAT CONSTITUTES A RATIO DECEDENDI?

“Generally, the ratio decidendi of a case is the principle of law upon which a particular case is decided. Chief Abubakar Z. Odugbo Vs. Chief Ali Abu & Ors (2001) LPELR – 2238 (SC).” PER O. ARIWOOLA, J.S.C.

 

APPEAL, PRACTICE AND PROCEDURE

GROUND OF APPEAL – STATUS OF A GROUND OF APPEAL FROM WHICH NO ISSUE FOR DETERMINATION IS FORMULATED FOR DETERMINATION

“It is settled law that a ground of appeal from which no issue is formulated for determination by the Court is deemed abandoned and liable to being struck out. See; Dalek Nig. Ltd Vs. Oil Mineral Producing Area Dev. Commission (OMPADEC) (2007) LPELR 916 (SC).” PER O. ARIWOOLA, J.S.C.

 

APPEAL, PRACTICE AND PROCEDURE

GROUND OF APPEAL – STATUS OF A GROUND OF APPEAL AND ISSUES FORMULATED THEREFROM NOT ARISING FROM THE RATIO OF THE JUDGMENT OF COURT

“It is settled law that issues are formulated from grounds of appeal which in turn are founded on the ratio decidendi or reason for decision of the Court in the judgment appealed against. Therefore, if the grounds of appeal and the issue distilled therefrom did not arise from the ratio of the judgment of the Court below, then the said grounds and sole issue are incompetent and are liable to being struck out.” PER O. ARIWOOLA, J.S.C.

 

WORDS AND PHRASES

ALIBI – MEANING OF ‘ALIBI’

“This means when a person charged with an offence says that he was not at the scene of crime at the time the alleged offence was committed. That indeed he was somewhere else and therefore he was not the person who committed the offence. See; Okosi Vs. The State (1989) 1 CLRN 29; Akeem Agboola Vs. The State (2013) 8 SCM 157; (2013) 11 NWLR (PT. 1366) 619.” PER O. ARIWOOLA, J.S.C

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

ALIBI – DUTY OF THE PROSECUTION WHERE AN ACCUSED PERSON RAISES THE ISSUE OF ALIBI

“It is trite law, that if an accused person raises unequivocally the issue of alibi, that he was somewhere else other than the locus delicit at the time of the commission of the offence with which he is charged and he gives some facts and circumstances of his whereabout, the prosecution is duty bound to investigate the alibi set up, to verify its truthfulness or otherwise. See; Tirimisiyu Adebayo Vs. The State (2014) 12 NWLR (PT.1422) 618; (2014) 8 SCM 34; (2014) 5-6 SC (PT.2) 68; (2015) EJSC (VO44) 60.” PER O. ARIWOOLA, J.S.C

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

DEFENCE OF ALIBI – DUTY OF AN ACCUSED PERSON WHERE HE RAISES A DEFENCE OF ALIBI

“Ordinarily, there is no burden placed on an accused to prove his defence of alibi, but he is certainly not expected to merely state that he was not at the scene of the crime without more. He owes a duty to give or supply the lead and particulars of his whereabout at the earliest opportunity and clearly, which will lead the prosecution in their investigation of the alibi. See; Yanor Vs. State (1965) 1 ALL NLR 193; Ozulonye Vs. State (1981) NCR 38 at 50.” PER O. ARIWOOLA, J.S.C

 

WORDS AND PHRASES

IDENTIFICATION PARADE – WHAT IS AN IDENTIFICATION PARADE?

“What then is an identification parade? It is an identification procedure of the police, in which a criminal suspect and other physically similar persons are shown to the victim or witness to determine whether the suspect can be identified as the perpetrator or one of the perpetrators of the crime. It is otherwise called and referred to as line up.” PER O. ARIWOOLA, J.S.C

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – INSTANCES WHERE AN IDENTIFICATION PARADE IS NECESSARY

“It is trite law that an identification parade is not a sine qua non for identification in all cases where there have been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence.   Therefore, an identification parade will only become necessary where the victim of the crime did not know the accused before his acquaintance with him during the commission of the offence. The law is also settled that an identification parade is very essential and useful whenever there is doubt as to the ability of a victim to recognize the suspect who participated in carrying out the crime or where the identity of the said suspect or accused person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade. See; R Vs Turnbul   (1976) 3 ALL ER 549; (1977) QB 224 at 228, 234; Ikemson Vs. State (1989) 1 CLRN 1; Adebayo Vs. The State (Supra)” PER O. ARIWOOLA, J.S.C

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – CIRCUMSTANCES WHEN AN IDENTIFICATION PARADE WILL BE NECESSARY

“Furthermore, it has been held that an identification parade will be necessary only in the following circumstances:

(a) Where the victim or witness did not know the accused before and the first acquaintance with him is during the commission of the offence;

(b) Where the victim or witness was confronted by the suspect for a very short time; and

(c) Where the victim or witness, due to time and circumstance might not have had the opportunity of observing the features of the accused. See; Kabir Almu Vs. The State (2003) 7 SC 129.” PER O. ARIWOOLA, J.S.C

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

BAIL PENDING TRIAL – FACTORS TO BE TAKEN INTO CONSIDERATION IN GRANTING OR REFUSING A BAIL APPLICATION

“There is no doubt that granting or refusal of bail application is at the discretion of the Judge who is considering the application. Yet, there are a number of factors or criteria that must be taken into consideration by the Judge in granting or refusing bail pending trial. These include: (1) The nature of the offence and the punishment attached to it, if proved

(2) the evidence available against the accused;

(3) availability of the accused to stand trial

(4) the likelihood of the accused committing another offence while on bail;

(5) the likelihood of the accused interfering with the cause of justice;

(6) the criminal antecedents of the accused person;

(7) the likelihood of further charge being brought against the accused;

(8) the probability of guilt;

(9) detention for the protection of the accused;

(10) the necessity to procure medical or social report pending final disposal of the case. Certainly these are some of the factors that may be taken into consideration and by no means exhaustive. See; Bamaiyi Vs. The State & Ors (2001) LPELR – 731 (8).” PER O. ARIWOOLA, J.S.C

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – WHEN IS AN IDENTIFICATION PARADE NECESSARY?

“It has been held severally by this Court that whether or not it is necessary to conduct an identification parade depends on the facts and circumstances of the case. An identification parade is only necessary when there is doubt as to the ability of a victim to recognize the suspect who carried out or participated in the commission of the crime, or where the identity of the suspect is in dispute. See: Alufohai Vs The State (2015) 3 NWLR (PT. 1445) 172; Ogoala Vs The State (1991) LPELR – 2307 (SC) @ 13 A – B. Even when there has only been a fleeting encounter with the suspect, it is not in every case that an identification parade would be necessary, particularly where there are other pieces of evidence that lead conclusively to the suspect as the perpetrator of the offence. See: Adebayo Vs The State (2014) LPELR – 22988 (SC) @ 36- 37 E-C.” PER K. M. O KEKERE-EKUN, J.S.C.

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – CIRCUMSTANCES WHEN AN IDENTIFICATION PARADE IS ESSENTIAL

“It is settled that an identification parade is not necessary where there is other evidence leading conclusively to the identity of the perpetrators of the offence – See   Ikemson V. State (1989) 3 NWLR (PT. 110) 455 SC, wherein this Court held that an identification parade is only essential in the following  situations:

– Where the victim of the crime did not know the Accused before;

– Where the victim was confronted by the offender for a very short time; and

– Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the Accused Person.” PER A. A.AUGIE, J.S.C.

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – ESSENCE OF AN IDENTIFICATION PARADE

“The essence of an identification parade is, therefore, to enable an eye witness, who never knew the person accused of the crime before, to pick him out from amongst other people – See Adebayo V. State (2014) LPELR- 22988 (SC).   See also the case of Alufohai V. The State (2014) LPELR- 24215 (SC), wherein my learned brother, Ariwoola, JSC, explained the rationale as follows –

‘It is trite law that identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an Accused Person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender’.”

• PER A. A.AUGIE, J.S.C.

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – INSTANCES WHEN AN IDENTIFICATION PARADE IS NECESSARY

“So, an identification parade becomes necessary when there is a need to establish the identity of a suspect. But there are many cases where an identification parade is of no use; such as when the suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or witness; and when evidence adduced is sufficient to establish that the suspect is the person that committed the crime – See Moses Jua V. State (2010) 4 NWLR (PT. 1154) 217 SC, Bassey Akpan Archibong V. State (2006) 14 NWLR (PT. 1000) 349 SC and Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors V. State (2000) 15 NWLR (PT.691) 555 SC.” PER A. A. AUGIE, J.S.C.

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – WHETHER IDENTIFICATION PARADE IS THE ONLY WAY OF ESTABLISHING THE IDENTITY OF AN ACCUSED PERSON

“Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused, a parade is not necessary. See Per BAGE, JSC in Kekong V. State (2017) LPELR- 42343 (SC).” PER U. M. A. AJI, J.S.C.

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – WHETHER IDENTIFICATION PARADE IS A SINE QUA NON TO THE CONVICTION OF AN ACCUSED PERSON

“Identification parade is not therefore a sine qua non to a conviction. It has to be established or proved that the accused is guilty of the offence he is being charged with, beyond reasonable doubt.” PER U. M. A. AJI, J.S.C.

 

STATUTE REFERRED TO:

Nil