Corporal Livinus Ugwu V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

OLU ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin Division, hereinafter referred to as the court below, delivered on the 4th April, 2008, Coram:- Ibiyeye, Alagoa and Shoremi, JJCA. The court below had substituted the conviction of Manslaughter for that of Murder and a sentence of 20 years imprisonment in place of death sentence by hanging passed on the appellant by the trial court, which had found him guilty as charged.

The facts of the case that led to this appeal are briefly as follows: The appellant had been charged before the Delta State High Court of Justice, Ughelli Judicial Division, Holden at Ughelli on ONE count as follows:

“Murder punishable under Section 319(1) of the Criminal Code Cap 48 Vol. II Laws of the Defunct Bendel State 1976 as applicable to Delta State.

Particulars of Offence

Livinus Ugwu (M) on the 27th day of November, 1997 at Otorwodo, Ughelli in the Ughelli Judicial Division murdered one Solomon Erewhodo.”

Upon his arraignment, the appellant pleaded not guilty to the charge. To prove the charge, the prosecution called six witnesses and the appellant testified in his defence but called no witness.

The case as put forward by the prosecution goes thus:

The appellant, a Police Corporal on the 27th November, 1997 at Otorwodo in the Ughelli Judicial Division of Delta state, shot at and killed one Solomon Erewhodo who died instantly. The appellant admitted in a way that he shot at the deceased and that he died as a result but denied the charge of murder.

He admitted that he made two statements to the police upon his arrest. The said statements were admitted and marked Exhibits A and C. In the first statement – Exhibit A, he stated that the police in which he was one, had confronted a group of armed robbers. In the exchange of gunfire, the Police killed one of the armed robbers while the others escaped. But in his second statement – Exhibit C, the appellant stated that he had been pricked by his conscience to state the truth, which is that the deceased was not an armed robber as there was no armed robbery incident and no cross fire, as earlier portrayed but that the deceased was shot at and killed while attempting to run away after he had jumped down from the police vehicle in which he was being conveyed away. He stated that he made the first statement where he lied, upon the advice of the police.

Clearly, the trial was primarily based on Exhibit C and the oral evidence. At the conclusion of the trial and addresses of counsel, the learned trial Judge in his Judgment delivered on 27th July, 2004 found, inter alia, as follows:

“I am satisfied of the truth of the confession of the accused that he fired at the deceased which act resulted in his death. There is abundant evidence that the deceased died as a result of that shot. Outside the confession of the accused person, PW4 testified that it was the accused that shot the deceased. PW3, Police Sergeant Paul Nwawolor, who recorded the statement Exhibit A from the accused testified that he investigated Exhibit A and found it to be false. This confirmed that there was no armed robbery and no cross fire…… The act of the accused in shooting at the deceased cannot be justified. There is no evidence that the deceased committed any capital offence from which he was escaping. He was not also an armed robber so, the act of the accused cannot be justified…..He acted unlawfully by firing at the deceased and should face the consequences of his action.”

The trial Judge finally found the appellant guilty as charged, convicted and sentenced him to death by hanging. The conviction and sentence led to the appeal to the court below.

Upon consideration of the issues raised in his appeal before the court below, and the record of proceedings, the court below, though found that the deceased, not being an escaping felon, the appellant had no legal authority to shoot at the deceased and kill him. That what he did was certainly in excess of his powers under the law. The court however, reduced the culpability of the appellant and sentence from murder and death sentence to manslaughter and 20 years imprisonment. The appellant was further aggrieved with the decision of the court below and that has led to the instant appeal.

By the amended Notice and Grounds of appeal filed on 30th May, 2010 pursuant to the order of this court given on 2nd June, 2010 the appellant filed six grounds of appeal.

Pursuant to the rules of this court, parties filed and exchanged briefs of argument. In his brief of argument filed on 30th June, 2010 the appellant distilled five issues for determination. While in its brief of argument filed on 29th August, 2012 but deemed properly filed and served on 17th January, 2013 a sole issue was formulated for the determination of the appeal, even though in paragraph 2.2 of the said brief of argument, the respondent says the appellant’s five issues were adopted. The appellant later filed a reply brief of argument on 8th January, 2013 which was deemed properly filed and served on 17th January, 2013.

When the appeal came up for hearing on 17/01/2013 the learned counsel to the appellant sought leave of court to withdraw issues No (b) and (e) of the issues for determination. Accordingly, the said issues along with the arguments premised on them were struck out.

The remaining three issues left are as follows:

“(a) Whether the learned Justices of the Court of Appeal considered sufficiently or at all the Constitutional and Statutory defences available to the appellant while performing his lawful duties as a policeman guarding the deceased who escaped from the lawful custody and who in the process of preventing his escape, died from gunshot….

(c) Whether there was actual investigation by the police and a ballistic expert from which gun the fatal bullet was released that caused the death of the deceased where there were other shootings also in darkness not only by the appellant.

(d) Whether fair hearing was observed in the trial of the appellant when Section 77, Section 340(1) & (2) (A) & (B) and Section 358 of the Criminal Procedure Law of Bendel State of Nigeria applicable to Delta State were not complied with by the Prosecution.”

In its respondent’s brief of argument, the following sole issue was distilled.

“Whether having regard to the evidence available in the records the court below properly substituted the conviction of murder with manslaughter and the sentence of death by hanging with 20 years’ imprisonment.”

Generally, an appeal is “a proceeding undertaken to have a decision reconsidered by a higher authority, or the submission of a lower court’s decision to a higher court for review and possible reversal.” See Black’s Law Dictionary Ninth Edition page 112.

It is clear from the records that appellant’s issues (a) and (c) above were distilled from Grounds 1 and 3 of the amended Grounds of appeal. These two grounds of appeal are no doubt complaining about or challenging the finding of facts and misapplication of law. When the said grounds are examined along with their particulars as they should, it is revealed that they are grounds of mixed law and facts, or facts alone. It is now clearly settled law that this court cannot and will surely not entertain an appeal on grounds of mixed law and fact unless leave of the court or that of the court of Appeal has been obtained. See; Oluwole Vs LSDPC (1983) 5 SC 1, Adejumo Vs The State (1983) 5 SC 24, Opuiyo & Ors Vs Omoniwari & Anor (2007) 12 SCM pt.2) 563.

In Emmanuel Irhabor & Anor v. Ogaiamien (1999) 8 NWLR (Pt.616) LPELR 1535 (SC), this court, per Ogwuegbu, JSC held inter alia, as follows:

“This court lacks jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless leave is sought and obtained from the Court of Appeal or this court. It is a constitutional requirement which is provided in Section 213 (3) of the 1979 Constitution (now Section 233 (3) of the 1999 Constitution (as amended) ……………………………………………..Where the grounds of appeal are only of facts or mixed law and facts, the grounds, and consequently the appeal must be struck out as incompetent unless leave was obtained. Where, however, some of the grounds are of law and others are either of facts or mixed law and fact and leave was not obtained, only those grounds which are of law are competent. All grounds of facts or mixed law and facts must be struck out” (Brackets supplied).

See also; Ojemen & Ors. H. H. Momodu II & Ors (1983) 1 SCNLR 188 at 203; Obijuru Vs Ozims (1985) 2 NWLR (Pt.6) 167 at 176-188 Oghechie & Ors Vs Onochie & Ors (1986) 3 SC 54; Nigeria National Supply Co. Ltd. Vs Establishment Sima of Vaduiz (1990) NWLR (pt.164) 526, (1990) 11-12 SC 209 (1990) LPELR 2004 (SC).

It has been held that a ground of appeal challenging finding of fact, evaluation of facts or calling for investigation of the existence or otherwise of facts are grounds of mixed law and facts. See; Matilda A Dairo V. Union Bank of Nigeria, Plc & Anor (2007) 12 SCM (Pt.2) 276.

I have examined the record of proceedings in this appeal, there is nothing to show that the leave of this court or that of the court below was obtained in filing those grounds of appeal. Therefore, the two grounds are clearly incompetent and so are the two issues distilled therefrom with the arguments of counsel in the brief of argument. Accordingly, Issues (a) and (c) in the appellant’s brief of argument are hereby struck out for being incompetent.

However, the appeal is sustainable with the only surviving issue (d) which was said to have been distilled from Ground 4 of the amended grounds of appeal.

In arguing this issue, the learned counsel to the appellant contended that the prosecution did not comply with the provisions of Section 340(1) & (2) (a) & (b), Section 77, Section 358 of the Criminal Procedure Law of the defunct Bendel state, 1976 Cap. 49 applicable to Delta state. He contended that the law makes it mandatory that the prosecution’s application for leave of a Judge of the High court to prefer a charge must be accompanied by:

(i) A copy of the charge sought to be preferred;

(ii) The names of witnesses who shall give evidence at the trial;

(iii) Proof of evidence (witness statement) which shall be relied upon at the trial.

Learned counsel submitted that the conditions precedent meant to ensure that the accused was given fair hearing were not met or fulfilled. Learned counsel contended that the testimony of PW4 who claimed to be an eye witness of the shooting of the deceased by the appellant did not form part of the proof of evidence meant to accompany the application for leave to prefer the charge before the trial Judge. He submitted that the required condition precedent not having been satisfied before the information was filed did not grant the appellant fair hearing hence he is entitled to be discharged and acquitted and he so urged.

In his reaction to this issue, the learned counsel to the respondent referred to the proceedings of the trial court when the appellant was arraigned and his plea was taken upon the charge being read to him. He pleaded not guilty to the charge. Learned counsel contended that the appellant did not raise any objection and did not complain of any irregularity or impropriety of his trial before the court below on appeal. He contended further that if the appellant had had a genuine objection or complaint that was substantial, he would have raised same timeously. He submitted that the complaint now is baseless and without any substance.

Learned counsel referred to section 36 of the 1999 constitution and section 215 of the criminal procedure Law as encompassing the right to fair hearing as guaranteed an accused person in any criminal trial and that any breach of it is fatal to such proceedings. He submitted that in the instant case, the appellant failed woefully to establish and or substantiate this alleged breach and particularly, any miscarriage of justice he has suffered in the event of the alleged breach. He submitted further that a review of the record of proceedings would show and confirm that the trial court substantially observed all the procedural rules to ensure that the rules of fair hearing were observed in the proceedings.

Learned counsel urged the court to resolve the issue against the appellant as he has failed to prove any irregularity and miscarriage of justice, which was the burden the law placed on him.

As clearly shown, the only surviving issue formulated for determination of this appeal appears to be a ground attacking the decision of the trial court for failure to observe the rules of fair hearing or for being in breach of the rules in relation to the trial of the appellant. However, in the interest of justice, the said issue will be re-couched or reframed as this court is entitled to do. See; Agbakoba Vs. INEC & Ors (2008) 12 SCM (Pt.2) 159.

It is interesting to note that ground 4 upon which the said issue is predicated or from which the issue was said to have been distilled read thus:

Ground 4:-

“The learned Appeal Judges erred in law when they failed to recognize that the appellant was not given fair hearing by the prosecution who imported PW4 as a witness purposely to victimize, frame up the prosecution to comply with Section 77, Section 340(1) & (2) (a) & (b) and Section 358 of the Criminal Procedure Law of Bendel State of Nigeria applicable to Delta.

Particulars of Error

(a) Before the leave of the Ughelli High Court was obtained to profer a charge against the appellant, the condition precedent was not met.

(b) The Statement of PW4 was neither obtained nor displayed in the poof of evidence.

(c) Leave was not sought for and obtained before the PW4 gave evidence.

(d) The filing of proof of evidence is not to be partly complied and partly to be used to nail the appellant.

(e) The appellant did not have advance knowledge of all the witnesses that were to give evidence against him.

(f) The prosecution sought for and procured witness PW4 to convict the appellant by all means.

(g) The evidence of PW4, as given on page 33 of the judgment did not reflect the framed up evidence given by PW4 during his evidence in chief.”

The issue distilled from the above ground 4 reads thus:

“Whether fair hearing was observed in the trial of the appellant when Section 77, Section 340 (1) & (2) (a) & (b) and Section 358 of Criminal Procedure Law Bendel State were not complied with by the prosecution.”

It is trite law that appeal to this court only lies against the decision of the Court of Appeal but not against the decision of the trial High Court. See Section 233 (1) of the 1999 Constitution of the Federation; Bisiriyu Akinlagun & Ors Vs. Taiwo Oshoboja & Anor (2006) 12 NWLR (Pt.993) 60, (2006) SCM 49 Guobadia Vs. The State (2004) 6 NWLR (Pt.869) 360; (2004) 17 NSCQR 222; (2004) 2 SCM 166 Harriman V. Harriman (1987) 3 NWLR (Pt.60) 244 at 217.

As a result, the issue shall be reframed as follows:-

“Whether the Court of Appeal was right in affirming as proper the proceedings of the trial High court which led to the appellant’s conviction and sentence, notwithstanding the trial court’s failure to observe the rules of fair hearing.”

First and foremost, it must be stated clearly that this issue was not raised before the court below, which would have enabled the court to give their decision on it and upon which the appellant could have been able to appeal to this court. However, since if indeed the trial court was in breach of the rules of fair hearing it goes to affect its competence to adjudicate on the matter in the first place. Therefore, being a jurisdictional issue, it can be raised at any stage of the proceeding even before this court. See; Oloriode Vs Oyebi (1984) 5 SC 1 at 28.

Our rules of practice permit the issue of jurisdiction to be raised at any stage of the proceedings up to the final determination of an appeal by this court. The reason being that the existence or absence of competence or jurisdiction in the court of trial goes to the root of the matter so as to sustain or nullify the trial Judge’s decision or order in respect of the relevant subject matter. See; Obikoya Vs The Registrar of Companies & Official Receiver of Pool House GRP (1975) 4 SC1; (1975) LPELR 2175 per Elias, CJN.

This issue complains about the procedure employed in preferring the charge against the appellant. That the leave of the High Court was not sought or properly sought to prefer the charge, hence the complaint in the ground was of breach of the appellant’s right to fair hearing. This is a ground of law alone which needs no leave of court to file under S.233(1) of the 1999 Constitution; Nwadike Vs. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745; General Electric Co. Vs Akande & ors (2010) 18 NWLR (Pt.1225) 596; (2010) 12 (R.2) SCM 96.

Generally, in preferring a charge against anyone to be tried for a criminal offence, leave of the High Court Judge is required to be sought and obtained. See; Section 340 (2) (b) of the Criminal Procedure Law Cap 49 Volume II, Laws of Bendel State, 1976 applicable to Delta State. Therefore, an application for leave of a Judge of the High Court to prefer a charge against an accused person made pursuant to the above Law must be accompanied by the following:-

(a) A copy of the charge sought to be preferred;

(b) The names of witnesses who shall give evidence at the trial; and

(c) Proof of evidence (written statements) which shall be relied upon at the trial.

The application for leave must also contain information to the court that no application for such leave has been made previously in the case and that no preliminary inquiry is being conducted in the matter by any Magistrate Court. Upon receipt of the application by virtue of the rules, the trial Judge has the discretion to grant or refuse the application. See; Ohwovoriole Vs Federal Republic of Nigeria & Ors (2003) 2 NWLR (Pt.803) 176 at 189; (2003) 2SCM 167; (2003) 13 SNCQR 1

In the instant case, pursuant to Section 340 (2) (b) of the Criminal Procedure Law Cap.49 Vol. II, Laws of Bendel State 1976 applicable to Delta State, an application dated 6th May, 1998 was made to the Hon. Judge of the High Court of Justice, Ughelli. It reads thus:

IN THE MATTER OF:

THE STATE

Vs

LIVINUS UGWU.

The Attorney General of Delta State proposes to file information against the above named accused person for the offence of:

MURDER, Punishable under Section 319 (1) of the Criminal Code Cap.48 Vol. II, Laws of the Defunct Bendel State as applicable to Delta State.

2. This move is designed to ensure speedy trial and minimise expense and inconvenience to the State and the defence in Particular.
3. As a result and pursuant to Section 340 (a) & (b) of the Criminal Procedure Law Cap. 49 Vol.II, Laws of Bendel State 1976 applicable in Delta State and the indictment (Procedure) Rules, (English) 1971, I respectfully ask for Your Lordship’s consent to prefer the attached Information which is marked Exhibit A.
4. To the best of my knowledge, there has been no committal proceedings in this case nor has there been a previous application for consent to file information against the above named accused for this offence.
5. The accused person will be available to take his trial.
6. The documents which constitute the proofs of evidence on which the State intends to rely at the trial are attached herewith and marked Exhibits: A2-A2A, A4, A5, A6, A8, A9, B1, 82 and C4 of State C.I.D., Asaba Case file, A2, A4, A5, A6, A7, A13 and B1 of Ughelli case file.
7. The said proofs of evidence will be available at the trial of the case and the evidence disclosed by the proofs is to the best of my knowledge, information and belief a true case.

SIGNED

B. A. ODIAKA, ESQ

For: Director of prosecutions,

Delta State”

As shown on the record of proceedings, upon consideration of the application to prefer a charge against the appellant, on Thursday the 25th June, 1998, the Hon. Justice E. Akpomudjere – Judge of Ughelli Division of the Delta state High Court of Justice gave consent as required, for the Director of public prosecution of the state to prefer the charge against the appellant.

Accordingly, the said charge was formally preferred and the trial commenced on 22/3/2000. The charge was read to the accused/appellant as contained in the information and he admitted he understood the charge but pleaded NOT GUILTY. Full hearing actually commenced with PW1 testifying. As earlier stated, the prosecution called six witnesses. All the six witnesses were duly cross-examined by the learned counsel to the applicant. And after the counsel addressed the court, the case was adjourned for judgment. The judgment was eventually delivered on 27th July, 2004 when the appellant was found guilty, convicted and sentenced to death.

Perhaps My Lords, it must be clearly stated again that the act of applying for and the grant of leave to prefer a charge against an accused person is both an official and judicial acts. In this respect Section 150(1) of the Evidence Act provides as follows:

“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”

See; Kahi Vs State (1998) 13 NWLR (Pt.583) 531; (1998) LPELR 1655; Amala Vs The State (2004) 12 NWLR (ft.888) 520; (2004) 6 SCM 55; (2004) 18 NSCQR 834; Peter Locknan & Ors Vs. The State (1972) 5 SC 22.

Furthermore, apart from what is called presumption of regularity of official acts as embodied in the provisions of the Evidence Act, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the Latin phrase as follows:

“Omnia praesumuntur rite ac sollemniter esse ease acta.” Meaning – “All things are presumed to have been rightly and regularly done.” This particular presumption is very commonly resorted to and applied especially with respect to official acts. See; Ogbuanyinya Vs Okudo (1990) (No.2) 4 NWLR (Pt.146) 551 at6 570; Nwachukwu Vs The State (2002) 7 sc (Pt.1) 124; Akpan Vs State (2001) 11 SCM 66; (2002) 5 SC (Pt.11) 110. Shitta Bey Vs Attorney General of the Federation (1998) 10 NWLR (Pt.570) 392; (1998) 7 SC (Pt.11) 121.

In the instant case, there is nothing on record to show that the requisites were not met in the arraignment of the appellant. In particular, in the way leave was sought and granted. It is noteworthy that the appellant did not raise objection to any irregularity in the way his arraignment was carried out or challenge the proceedings of his trial before the High court. Accordingly, he has not been able to rebut the presumption of regularity that all that were required to be done by the officials and judicial officer were regularly carried out in his trial. The court below was therefore right in affirming as proper, the proceedings of the trial High Court which led to the appellant’s conviction and sentence and the rules of fair hearing were not breached. The only surviving issue for the appeal is hereby resolved against the appellant.

In the final analysis, this appeal is found to be unmeritorious and deserves to be dismissed. It is hereby dismissed. Accordingly, the judgment of the court below delivered on 4th April, 2008 where the appellant’s sentence was reduced to 20 years imprisonment for Manslaughter in place of the death sentence for Murder by the trial High court is affirmed

---

SC.274/2009