⦿ CASE SUMMARY OF:
Chijioke Ugwu v. The State (2020) – SC
– Identification parade;
⦿ LEAD JUDGEMENT DELIVERED BY:
Olukayode Ariwoola, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
About 9pm of the 26th 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 2 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 and killed Mr. Ogbonna and later escaped from the house.
This is an appeal against the judgment of the Court of Appeal, Enugu division given on Friday 20th December, 2013. The appellant and one other had earlier been arraigned before the Enugu State High Court, sitting at the Nsukka Judicial division, on 21/07/2003. They were charged with conspiracy to murder, and murder of Christopher Ogbonna, the Chief Security Officer of University of Nigeria, Nsukka.
The information filed by the then Attorney General of Enugu State on the said two counts charge reads thus:
Count 1 – Conspiracy contrary to Section 494 of the Criminal Code, Cap.36, Vol.1 Laws of Anambra State of Nigeria 1986, as applicable to Enugu State of Nigeria.
Particulars: Clement Ezeazu alias Fimmbbar and Chijioke Ugwu, alias Police on or about the 26th day of May, 2002, at No. 449, Elias Avenue, University of Nigeria, Nsukka Campus, in the Nsukka Judicial Division conspired to commit a felony Murder.
Count 2 – Murder contrary to Section 274 (1) of the Criminal Code, Cap.36, Vol.1, Laws of Anambra State of Nigeria, 1986, as applicable to Enugu State of Nigeria.
Particulars: Clement Ezeazu alias Fimmbbar and Chijioke Ugwu alias Police on or about the 26th day of May, 2002 at No. 449 Elias Avenue University of Nigeria, Nsukka Campus, in the Nsukka Judicial Division unlawfully killed Christopher Ogbonna.
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. They were all tendered and admitted as Exhibits.
The defence put up by the appellant in his testimony was entirely a total denial of involvement. Indeed, he claimed an alibi. He claimed to have been 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 till 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 below. At the Court below, the appeal was found lacking in merit and was accordingly dismissed. The conviction and sentence of the appellant were consequently affirmed.
Further aggrieved led to the instant appeal to this Court on two grounds of appeal.
1. The respondent’s preliminary objection bothers on Ground one of the Notice and Grounds of Appeal to this Court by the appellant. The respondent had contended that Ground one and the issue distilled therefrom are incompetent, not having arisen from the ratio decidendi of the judgment of the Court below.
2. The second preliminary objection is that the Ground 2 of the notice of appeal had no issue distilled from it, and hence should be deemed abandoned.
1. Whether in the circumstance of this case, an identification parade was necessary. And whether the defence of alibi was sustainable for the appellant.
⦿ HOLDING & RATIO DECIDENDI
[PRELIMINARY OBJECTION: SUSTAINED]
1. GROUND 1 OF THE NOTICE OF APPEAL WAS STRUCK OUT.
The Supreme Court stated, “In the said judgment of the Court below, the Court had come to the conclusion that there was no appeal against the above inference of the trial Court that PW1 had every opportunity to recognize the appellant as a person he had known before the incident in their house. Therefore, if there was no appeal before the Court below 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 by the Court below and cannot form part of the decision to be subject of an appeal to this Court.”;
On page 248 of the record, the Court below had found as follows: “The trial Court had held that ‘the piece of evidence that the accused person was seen and recognized by the PW1 at the scene of the murder of the Chief Security Officer in his house is strong, reliable and credible.’ There is no ground of appeal against this holding. The legal consequence of the absence of an appeal against this decision is that both parties have accepted it as correct. It is therefore valid, subsisting and binding on them”.
2. GROUND 2 WAS DEEMED ABANDONED.
The Supreme Court stated, “There is no gainsaying that the second ground of appeal bothers on or concerns the issue of alibi raised by the appellant but there was no issue distilled from the said ground two. Even though it was linked to the sole issue distilled but it is not related at all. 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”.
THE SUPREME COURT WENT AHEAD TO STATE: “However, assuming without conceding that the grounds of appeal and the sole issue distilled therefrom arose from the judgment of the Court below, I desire to consider the appeal on its merit on the following issue”
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. ON ALIBI, THE SUPREME COURT STATED, “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.”; “It is however in the testimony of the prosecution that all efforts to investigate the appellant’s claim failed. The said nurse Mrs. Igboyi who the appellant claimed that he received treatment from did not make herself available. In the same vein, appellant’s mother failed to show up and did not respond to the invitations left for her in the house, to enable the police confirm the truthfulness or otherwise of the appellant’s claim to have fallen ill and be in the house on the night of the incident after receiving treatment for his pneumonia. Therefore, if the appellant had said that between the hours of 9pm and 11pm when the incident took place, he was in his house with his mother and the mother failed to respond to the Police invitation for interrogation but the Police already had that the appellant was recognized by an eye witness, as one of the gunmen who had invaded their house and killed their father, the defence of alibi would have been debunked.”
ii. 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. On the record and from the evidence available, PW1 testified that he had known the appellant a long time ago and had met him from time to time on several occasions and at several places before the incident in their house. Also, the evidence showed that the confrontation with the appellant by PW1 was prolonged and they were face to face, in the full glare of electricity light before PW1 was ordered to put the light off. The trial Court was therefore right to have come to the conclusion that the appellant was correctly recognized by PW1, hence there was no need for an identification parade to further identify him.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
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. – Ariwoola, J.S.C. UGWU v. STATE (2020)
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. – Ariwoola, J.S.C. UGWU v. STATE (2020)
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. – Ariwoola, J.S.C. UGWU v. STATE (2020)
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. – Ariwoola, J.S.C. UGWU v. STATE (2020)
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. – Ariwoola, J.S.C. UGWU v. STATE (2020)
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. – Ariwoola, J.S.C. UGWU v. STATE (2020)
Generally, the ratio decidendi of a case is the principle of law upon which a particular case is decided. – Ariwoola, J.S.C. UGWU v. STATE (2020)