DUTY OF AN ACCUSED PERSON RAISING THE DEFENCE OF ALIBI

CASE TITLE: UGWU v. STATE (2020) LPELR-49375(SC)

JUDGMENT DATE: 24^TH JANUARY, 2020

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGE: OLUKAYODE ARIWOOLA, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Criminal Law and Procedure.

FACTS

This is an appeal against the judgment of the Court of Appeal, Enugu division delivered 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.

About 9 pm 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 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.

In the course of the 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 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, the appellant filed an appeal at the Court of appeal. The appeal was found lacking in merit and was accordingly dismissed hence this further appeal to the Supreme Court.

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.

The Court upheld the Preliminary objection but still considered the appeal on the merit.

ISSUES FOR DETERMINATION

The Court determined the merit of the appeal on a lone issue viz:

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

DECISION/HELD

The appeal was unanimously dismissed. The conviction and sentence of the appellant by the trial Court on 31st March 2008 which was affirmed by the Court of Appeal on 20th December 2018 was further affirmed.

RATIOS:

• APPEAL- GROUND(S) OF APPEAL: Effect of a ground of appeal and the issue formulated therefrom not flowing from the decision appealed against
• CRIMINAL LAW AND PROCEDURE- DEFENCE/PLEA OF ALIBI: Meaning and nature of the defence of alibi
• CRIMINAL LAW AND PROCEDURE- DEFENCE/PLEA OF ALIBI: Duty of the prosecution to investigate the plea of alibi raised by an accused person
• CRIMINAL LAW AND PROCEDURE- DEFENCE/PLEA OF ALIBI: Circumstances where the defence of alibi would not avail an accused person
• CRIMINAL LAW AND PROCEDURE- IDENTIFICATION PARADE: Position of the law as regards identification parade
• CRIMINAL LAW AND PROCEDURE- BAIL: Duty of a judge when considering an application for bail
• CRIMINAL LAW AND PROCEDURE- IDENTIFICATION PARADE: Circumstances where an identification parade will not be necessary
• CRIMINAL LAW AND PROCEDURE- IDENTIFICATION PARADE: Purpose of identification parade; Instance(s) in which it will not be necessary
• CRIMINAL LAW AND PROCEDURE- IDENTIFICATION PARADE: Whether an identification parade is essential to a conviction.