Is identification parade essential for a conviction?

CHIJIOKE UGWU v. THE STATE (2020) LPELR-49375 (SC)
 In the Supreme Court of Nigeria
On Friday, 24th January, 2020
Suit No: SC.196/2015
 
Before Their Lordships:
 
OLUKAYODE ARIWOOLA, JSC
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
AMINA ADAMU AUGIE, JSC
PAUL ADAMU GALUMJE, JSC
UWANI MUSA ABBA AJI, JSC
 
Between
CHIJIOKE UGWU                                                        -Appellant(s)
 
And
 
THE STATE                                                                  – Respondent(s)                                                                                                          
 
LEAD JUDGMENT DELIVERED BY OLUKAYODE ARIWOOLA, J.S.C.
Facts of the case
This appeal is against the judgment of the Court of Appeal, Enugu division given on Friday December 20, 2013. The appellant and one other had earlier been arraigned before the Enugu State High Court, sitting at the Nsukka Judicial division, on July 21, 2003.

About 9pm of May 26, 2002, some men with guns invaded the official residence of Mr. Christopher Ogbonna – the Chief Security Officer of the University of Nigeria, Nsukka. The said men held Mrs Ogbonna – wife of the deceased, and her children hostage. They seized some of their properties, they raped two daughters of the deceased and killed Mr. Ogbonna and later escaped from the house.
  
In the course of investigation, the police arrested, among others, the appellant and one 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.

Preliminary objection
The respondent raised a preliminary objection to ground one of the appellant’s Notice of Appeal and the issue distilled therefrom on the ground that both are incompetent not being based on or derived from the decision of the Court of Appeal appealed against.

Issues for determination
The Court determined the merit of the appeal on the following issues viz: 1. Whether in the circumstance of this case, an identification parade was necessary. 2. Whether the defence of alibi was sustainable for the appellant.

Appellant’s submission
The appellant submitted that it is settled that identification parade is not usually conducted for cosmetic reasons. He relied on Chukwu Vs. The State (1992) 7 NWLR (Pt.253) 325 at 335; (1992) LPELR-15102 (CA) and AFOLABI VS. STATE (2010) 16 NWLR (Pt.1220) 584. He gave the circumstances when the conduct of identification parade is usually required. He submitted that the instant case is an ideal situation requiring the conduct of identification parade. He referred to the testimony of PW1 on his contact with the appellant on the night of the incident. That from the testimony of PW1, the incident took place at night, the encounter with the alleged gunman was brief and that PW1 had mistaken the assailant to be his younger brother even though he came face to face with him. That PW1 even thought he was dreaming. It was submitted that the brevity of the circumstances of the encounter did not afford the PW1 full opportunity of clearly observing the features of the assailant and therefore he could not correctly identify who the assailant was. That the need for an identification parade was compelling.
 

Respondent’s submission
The respondent made reference to the evidence proffered by the prosecution which the trial Court, and the Court of Appeal accepted on the PW1’s recognition of the appellant as the person he actually saw on that fateful night in their sitting room, who was standing between the refrigerator and the wall and who pointed a gun at him and ordered him to switch off the light and to lie down.
  
He contended that the appellant did not dispute the fact that PW1 had known him and met him from time to time at several places before the incident and that PW1, in his testimony had told the Court that he knew the appellant as a close personal friend of Ezeazu, the 1st accused in the original charge who was at large. Respondent submitted that the appellant did not challenge or controvert these pieces of evidence and that it is not in the habit of this Court to lightly interfere with such concurrent findings of fact except where same is shown to be perverse or to have occasioned a miscarriage of justice to the appellant. He relied on UMAR VS. THE STATE (2014) 13 NWLR (Pt.1425) 497.He concluded that there was no need for identification parade and urged the Supreme Court to so hold.

Resolution of issues
In resolving the issue of alibi which was the appellant’s defence, the Court held that where 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 whereabouts, the prosecution is duty bound to investigate the alibi set up, to verify its truthfulness or otherwise -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; (2014) LPELR-22988 (SC). That the accused owes a duty to give or supply the lead and particulars of his whereabouts at the earliest opportunity. The Court held that in the instant case and from the circumstances, the defence of alibi cannot be sustained in the face of the available evidence of recognition proffered by the prosecution.
  
In resolving the issue of identification parade which is otherwise called and referred to as “line up”, the Court held 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 or 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. 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. The Court cited R VS TURNBUL (1976) 3 All ER 549; (1977) QB 224 at 228, 234; IKEMSON VS. STATE (1989) 1 CLRN 1.
 

Held
The appeal was unanimously dismissed. The conviction and sentence of the appellant by the trial Court, which was affirmed by the Court of Appeal, was further affirmed.
Appearances:
I.A. Akaraiwe Esq., with him
Dr. O. B. Ajinola, B. E. Uwaokhonye, Esq.,
T. E. Iyoha-Osagie, Esq.                                           
-For Appellant
 
Chief M. A. Eze (Hon. A.G. of Enugu State) with him,
T. A. Ngene, Esq. (DD), U. D. Neboh, Esq. PLO and
K.K. Odugu, Esq. (L.O).                                
  – For Respondent
Compiled by LawPavilion.