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Is identification parade essential for a conviction?

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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.

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They were charged with conspiracy to murder, and 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.
  
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, an appeal was lodged at the Court of Appeal. The appeal was found lacking in merit and was accordingly dismissed hence this further appeal to the Supreme Court.

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.

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The respondent submitted that the said ground of appeal and the issue formulated therefrom are both liable to be struck out, the same not being based on or derived from the ratio decidendi of the decision of the Court of Appeal, subject matter of the instant appeal. He referred to the judgment of the Court of Appeal and submitted that the decision of the Court was clearly not based on the alleged decision by the trial Court that an identification parade was unnecessary, the same not being a ground of the appeal in the Court of Appeal. That an appeal must be based on the decision or ratio decidendi of the lower Court and from which issues must directly flow and be formulated. Where it is otherwise or the converse is the case, the Court is enjoined to discountenance both the ground of appeal and the issue formulated therefrom as inconsequential and liable to be struck out. He relied on CHIEF WALTER O. MERE & ANOR VS. EZE EMMANUEL NJEMANZE (2008) All FWLR (Pt.426) 1956 and MERCANTILE BANK OF NIGERIA PLC VS. LINUS NWOBODO (2005) 7 SC (Pt.1) 1;(2005) LPELR-1860 (SC)
  
The appellant did not file any reply to the respondent’s brief of argument.In resolving the preliminary objection, the Court referred to the decision of the Court of Appeal and held that if there was no appeal before the Court on the inference by the trial Court on the sufficient evidence in support of the recognition of the appellant by PW1 then the issue did not arise for determination in the Court of Appeal and cannot form part of the decision to be subject of an appeal to the Supreme Court. Relying on DALEK NIG. LTD VS. OIL MINERAL PRODUCING AREA DEV. COMMISSION (OMPADEC) (2007) LPELR – 916 (SC), the Supreme Court held that since there is no ground of appeal against the holding of the Court of Appeal, the Notice of Appeal and the issue distilled therefrom are incompetent and liable to being struck out.
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Also, that the second ground of appeal from which no issue was distilled, even though linked to the sole issue distilled is deemed abandoned and liable to being struck out. Therefore, the two grounds of appeal in this appeal and the sole issue were adjudged incompetent and liable to be struck out and were accordingly struck out.The Court however proceeded to determine the appeal on its merit.

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.
 

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Counsel submitted that where an eyewitness fails, at earliest opportunity, to mention the name of the person known to him who he claims to have committed the offence, such evidence of identification at a later stage ought to be approached with caution. He relied on BOZIN VS. THE STATE (1985) 7 SC 450 at 469; (1985) LPELR-799 (SC) and concluded that the investigation and the alleged identification of the appellant by PW1 is not sufficient to exclude identification parade. He urged the Court to allow the appeal and set aside the concurrent judgments of the two lower Courts.

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.

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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.
 

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The Court referred to the record and from the evidence of PW1 and held that the trial Court was therefore right to have come to the conclusion that the appellant was correctly recognized by PW1, hence no need for an identification parade to further identify him. According to the Court, since from the record the appellant did not appeal to the Court below on the findings and inferences of his detailed recognition by PW1, there was nothing on that issue in the judgment of the Court below to appeal against.

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.

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