Corporal Desmond Ononuju V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

STANLEY SHENKO ALAGOA, J.S.C.

This is an appeal against the judgment of the Court of Appeal Owerri Division (hereinafter referred to as the lower court or the court below) delivered on the 24th March, 2011 confirming the conviction for murder and sentence to death by hanging passed on the Appellant. The Appellant as 3rd accused was charged along with others as follows:-

STATEMENT OF OFFENCE

Murder, Contrary to Section 319(1) of the Criminal Code Cap. 30 Vol. II – Laws of Eastern Nigeria 1963 as applicable to Imo State.

PARTICULARS OF OFFENCE

Inspector David Poli, Sgt. Lazarus Adiele, Cpl. Desmond Ononuju, Inspector Victor Chiaka, PC Augustine Ochiaga, Inspector Sunday Uwadiegwu and Bonny Aikhadueki on the 15th day of August, 2002 along Orlu Road Junction by Mgbidi in Orlu Judicial Division murdered Christian Owerreoma. Each pleaded not guilty and the case proceeded to be heard with the prosecution calling five witnesses while the accused persons testified on their own behalf but did not call any witnesses. At the conclusion of the trial and in his judgment, the learned trial Judge Njemanze, J. found not guilty and discharged and acquitted the 1st, 4th and 5th accused persons while convicting and sentencing to death by hanging the 2nd, 3rd and 6th accused persons. An appeal against their conviction and sentence wherein the 3rd accused at the High Court, Corporal Desmond Ononuju was the 2nd Appellant at the Court below was dismissed and the conviction and sentence of death by the High Court was affirmed by the Court below. This is a further appeal to this court by Corporal Desmond Ononuju against his conviction and sentence of death by the trial court. It is pertinent to consider at this stage and in a nutshell the evidence of PW 2 – Boniface Ozumba which is fairly representative of the case for the prosecution at the High Court. His evidence was that he was travelling in his Nissan Car with registration number CY 926 AA with his brother in law one Christian Owerreoma on the 15th August, 2002 when they arrived at a checkpoint along Orlu Road Junction by Mgbidi. No sooner however had they left the checkpoint than they were chased by police officers from that check point in their ALGON Jeep. At the approach to the next checkpoint which was manned by mobile policemen, one of the policemen in the ALGON Jeep by name Inspector Uwadiegwu raised an alarm that PW2 and his brother in law Christian Owerreoma were thieves and the said Inspector Uwadiegwu and other policemen in the ALGON Jeep began to shoot at PW2’s car, prompting the mobile policemen at the next checkpoint to also start shooting at PW2’s car. PW2 and Christian Owerreoma were severely wounded and were taken to the White Rose Hospital Mgbidi where Christian Owerreoma was pronounced dead. The defence of both sets of policemen at their trial was that they had thought that PW2 and the deceased Christian Owerreoma were armed robbers as they had refused to stop their car at the regular police check point for routine check. They all however denied shooting at the deceased’s car. These are the brief facts of the case which have given rise to this appeal.

From the Grounds of Appeal the Appellant at page 7 of his Amended Brief of Argument dated the 22nd February, 2012 and filed on the 23rd February, 2012 but deemed properly filed on the 25th April, 2012 formulated the following six issues:-

1. Whether the lower Court was right to have consolidated and/or heard together the appeals filed in Appeal Nos. CA/PH/326A/2007, CA/PH/326B/2007 and CA/OW/251C/2010 instead of hearing them separately and whether it occasioned a miscarriage of justice on the Appellant.

(Ground 1)

2. Whether the findings of fact by the lower Court and the decision reached therefrom affirming the conviction and sentence of the Appellant was not perverse and whether the said decision did not occasion a miscarriage of justice on the Appellant.

(Grounds 3, 4, 5, 12 & 16).

3. Whether the lower Court was right in law to have affirmed the conviction and sentence of the Appellant for murder when the arraignment of the Appellant at the trial court did not comply with the mandatory statutory requirements of Section 215 of the Criminal procedure Act and Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which thereby robbed the trial Court of jurisdiction and rendered the entire proceedings a nullity.

(Ground 2)

4. Whether the lower Court was right in law to have affirmed the conviction and sentence of the Appellant when the evidence of the 2nd prosecution witness was tainted with material contradictions and the oral testimonies of DW4, DW5 and DW6, co-accused persons at the trial were uncorroborated, inconsistent and materially contradictory with their extra-judicial statements to the police.

(Grounds 6, 7, 9, & 10).

5. Whether the lower Court was right to have affirmed the conviction and death sentence of the Appellant when the prosecution failed to prove its case beyond reasonable doubt, as required by law.

(Grounds 8 & 15).

6. Whether the lower Court was right when it held that the statutory defences as provided for under sections 28, 261 & 271 of the Criminal Code and section 4 & 24(1) of the Police Act were not applicable nor available to the Appellant in this appeal and whether the lower Court’s decision did not occasion a miscarriage of justice on the Appellant.

(Grounds 13 & 14).

On the 28th March 2013 when this appeal came up to be heard Uche Obi, Esq., counsel for the Appellant adopted the said Appellant’s Amended Brief of Argument and the Appellant’s Reply Brief of Argument deemed properly filed and served on the 27th February, 2013 and urged this court to allow the appeal, set aside the conviction and sentence of the court below and discharge and acquit the Appellant.