CPL. Livinus Ugwu V. The State (2008)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
This is an appeal against the judgment of R.P.I. Bozimo CJ of the High Court of Justice, Asaba, Delta State in charge No. VHC/9c/98: The State v. Livinus Ugwu, delivered on the 27th August, 2004 in which the accused person was charged, tried, convicted and sentenced to death by hanging on a one count charge of murder punishable under section 319(1) of the Criminal Code Cap 48 Vol. II, Laws of the defunct Bendel State of Nigeria 1976 as applicable to Delta State. The one count charge under which the accused now Appellant was charged reads as follows:
“Livinus Ugwu (m) on the 27th day of November, 1997 at Otorwodo, Ughelli; in the Ughelli Judicial Division murdered one Solomon Erewhodo”. The prosecution called six witnesses while the appellant testified in person in his own defence. The brief facts of the case culminating in this appeal are that the appellant, a police Corporal on the 27th November, 1997 at Otorwodo in the Ughelli Judicial Division of Delta State, shot and killed one Solomon Erewhodo who died instantly. The appellant while admitting to the killing of the deceased, however denied the charge of murder. He gave two statements to the police which were admitted as exhibits ‘A’ and ‘C’, In exhibit ‘A’ the police had a confrontation with a gang of armed robbers and the resultant exchange of gun fire, killed one robber while the other robbers escaped. In exhibit ‘C’ he said he had been pricked by his conscience to admit that the deceased was not an armed robber as no armed robbery operation took place and that the deceased was killed while trying to run away after jumping down from the police vehicle that was conveying him. The trial was premised on exhibit ‘C’ and the evidence given therein exhibit ‘A’ having been jettisoned by the appellant. At the conclusion of trial and after addresses of counsel, the learned trial Judge in her judgment delivered on the 27th August, 2004 held that a case of murder had been made out against the accused and found him guilty as charged, She accordingly sentenced him to death by hanging, These are the brief facts upon which this appeal is predicated, The appellant filed a Notice of Appeal dated the 9th August, 2004 but filed on the 16th August, 2004 consisting of two grounds of appeal. Subsequently the Appellant by a motion on Notice dated the 1st December 2000 and filed on the 17th January, 2006 obtained the leave of this court on the 27th March, 2006 to amend his Notice of Appeal to incorporate additional grounds and to argue same. The Amended Notice of Appeal is reproduced here under as follows:
“AMENDED NOTICE OF APPEAL
TAKE NOTICE that the Appellant herein being dissatisfied with the decision of the High Court of Delta State, Holden at Asaba, delivered by the Honourable Justice R.P.I. Bozimo., CJ on the 27th day of July, 2004 doth hereby appeal to this Honourable Court upon the grounds more fully stated in paragraph 3 of this Notice of Appeal and seeking the reliefs stated in paragraph 4 of this Notice of Appeal.
AND FURTHER TAKE NOTICE that the person directly affected by this appeal is as stated in paragraphs 5 of this Notice of Appeal.
- PART OF THE DECISION OF THE TRIBUNAL APPEALED AGAINST whole Decision.
- GROUNDS OF APPEAL GROUND 1
The learned trial Chief Judge erred in law in trying, convicting and sentencing the Appellant on a charge unknown to law, thereby rendering the entire criminal proceedings a nullity having grossly breached the Appellant’s constitutionally guaranteed fundamental right to fair hearing as enshrined in Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999.
PARTICULARS OF ERROR IN LAW
a. There is no offence known to law called “murder” under section 319(1) of the Criminal Code, Cap 48 Vol. II Laws of the defunct Bendel State 1976 as applicable to Delta State.
b. The offence cited as “Murder Punishable under section 319(1) of the criminal code cap 48 vol. 11 Laws of the defunct Bendel State 1976 as applicable to Delta State” is not defined in the said section 319(1) of the Criminal Code Cap. 4S vol. 11 Laws of the defunct Bendel State 1976 as applicable to Delta State.
c. That count of “murder punishable under section 319 of the Criminal code cap 48 vol. 11 Laws of the defunct Bendel State 1976 as applicable to Delta State” is unspecific, imprecise and bereft of definition of the offence as charged.
d. There is no specific conduct of the Appellant capable of being precisely matched with any elements of the offence charge to determine this guilt, not having been defined in section 319(1) of the Criminal Code Cap. 48 vol. 11 Laws of the defunct Bendel State 1976 as applicable to Delta State.
e. The decision of the lower court complained against is Unconstitutional null and void.
f. The decision of the lower court complained against has occasioned a grave miscarriage of justice.
GROUND 2
The learned trial Chief Judge erred in law in trying, convicting and sentencing the appellant to death on a charge of murder by not observing the principle of fair hearing enshrined in section 36(1) of the 1999 Constitution of Federal Republic of Nigeria.
PARTICULARS OF ERROR
a. The Pw4 Emmanuel Olori of 17 Otowordo Ugheli who made no Statement to the police and non was displayed in the proof of Evidence.
b. The Appellant was taken by surprise during trial when he was not given the opportunity to know the nature of evidence that he was to face when the prosecution brought in PW4 who was not at the scene of the incident to testify.
c. There was no evidence on record that the witness was bound by Recognizance to attend as a witness at the criminal sessions nor was there any writ of subpoena issued for him to appear as a witness as required by law.
d. The court relied heavily on the said of Dw4 in convicting the Appellant for murder when the evidence of the witness ought not to be entertained by the court.
e. Whereas Dw2 Emmanuel Olori Ugolo of 21 Otowordo Ugheli made two statements on 20/11/97 and 2/12/97 which were recorded by Pw3 Sgt. Nwawolor No.63600 no statement was made by Pw4 Supposed Emmanuel Olori of 17 Otorwodo Ugheli.
f. Evidence of Pw2 Emmanuel Olori of 21 Otorwodo Ugheli is the same in facts and narration with evidence of Dw4 Emmanuel Olori of 17 Otorwordo Ugheli which shows evidence of tutored and manufactured witness.
GROUND 3
The learned trial Chief Judge erred in law in convicting and sentencing the Appellant on a charge of murder without considering the provisions for sections 137, 138,271 and 273 of The Criminal Code and Section 20(10) Police Act allowing or Mandating the use of force to foil the escape of a Suspected felon, having found that the Appellant shot at the deceased to foil his escape from custody.
PARTICULARS OF ERROR IN LAW
a. The Appellant was a Police Officer serving with the Commissioner of Police Special Anti-Robbery Squad Delta State Headquarters, Asaba.
b. The deceased was accosted earlier in the day during routine patrol and asked to furnish the particulars of the vehicle he was driving but failed to do so and escaped from the police abandoning the vehicle.
c. The deceased was later apprehended in the evening and arrested on a suspicion of having stolen or being in possession of a stolen vehicle.
d. The deceased was a prisoner in custody of the Appellant having been arrested on a suspicion of having stolen or being possession of a stolen vehicle.
e. The deceased made to escape from the Police vehicle where he was being held in custody.
f. The time was about 9 p.m. and it was very dark due to public Power outage.
g. The Appellant was with the deceased in the Police van, Deceased having diverted the attention of the Police team mates of the Appellant on any inquiry at the Ovie’s Palace as to the identity claimed by the deceased.
h. The appellant shouted on the deceased to stop his escape bid but the deceased refused.
i. The Appellant aimed his gun and shot in the dark to stop the escape bid of the deceased but the deceased died as a result of gun shot wound.
GROUND 4
The learned trial Chief Judge erred in Law in regarding the viva voce Testimony of the Appellant in his own defence as a confession rather than raising the defence of statutory justification as intended by the Appellant, thereby occasioning a gross miscarriage of justice.
PARTICULARS OF ERROR IN LAW
The Appellant did not make any confessional statement before or at any stage of the proceedings.
b. No confessional statement was attached or included in the proof of evidence attached to the charge.
c. The Appellant pleaded not guilty to the charge on record.
d. No prosecution witness particularly the investigating Police Officer tendered or testified during the trial to the effect that the appellant made a confession.
e. There is nothing outside the viva voce testimony erroneously regarded as a confession to suggest the concurrence that Appellant confessed to the charge or that such confession is true or that it is corroborated.
The learned trial Chief Judge suo motu invented a confession for the Appellant contrary to his plea of not guilty and convicted the Appellant on that misconception.
GROUNDS 5
The learned trial Chief Judge erred in law in failing to consider the possible defences available to the Appellant as enjoined by law and judicial authorities, considering the capital nature of the offence charged.
PARTICULARS OF ERROR IN LAW
a. The Appellant was charge with a capital offence of murder.
b. The learned trial Chief Judge was bound by law to consider other possible defences available to the Appellant in the circumstances and on the facts found on record, even where such defences were not raised by the Appellant.
c. The learned trial judge did not consider any such defences at all but proceeded to convict the Appellant hastily and as a matter of course, thereby occasioning a miscarriage of justice.
d. The evidence on record presets the defence of Accident, the Appellant having merely shot in the direction of the Deceased to maim him to foil his escape but accidentally in the prevailing darkness (sic)him fatally.
e. The evidence on record presents the statutory defence of escaping felon, the Appellant being a Police Officer in whose custody the deceased was kept as a suspected felon but made escape at night.
GROUND 6
The learned trial Chief Judge erred in law in misapplying principles laid down in IGBI VS STATE (2000) 2 NWLR part 648 p 169 and UYO VS A.G. BENDEL STATE (1986) 1 ALL NLR 126 AT 112 to the case of the Appellant when the Appellant lawful statutory authority to cause bodily harm to maim the deceased to thwart his escape bid.
PARTICULARS OF ERROR IN LAW
a. The Appellant as a Police Officer and in the circumstances found on the record was authorized to cause bodily harm.
b. The Appellant was under penal sanction of imprisonment to do all he could to prevent the escape of the deceased.
c. The learned trial Chief Judge disregarded such statutory Justification by regarding the Appellant’s gun shot aimed merely to maim the deceased, an escaping suspected felon as if it were ab initio illegal.
d. The learned trial chief Judge disregarded such statutory justification by regarding the Appellant’s acts in the performance of his duties as a Police Man culminating in the gun shot as if they were in pursuit of an unlawful purpose.
GROUND 7
The judgment is all together unreasonable, unwarranted and cannot be supported having regard to the evidence.
PARTICULARS OF MISDIRECTION AND WRONG EVALUATION OF EVIDENCE
a. Application of the evidence to the law I(sic) the judgment disregarded the basic, foundation
that the Appellant is constitutionally presumed innocent until the contrary had been proved beyond reasonable doubt by the State.
b. The evidence adduced by both the prosecution and the defence accepted on record concur that the deceased had been arrested on the highway earlier in the day having been unable to furnish the police with motor vehicle particulars.
c. The evidence adduced by both the prosecution and the defence on record concur that the deceased has escaped from the scene of his arrest by running away.
d. The evidence adduced by both the prosecution and the defence accepted on record concur that the vehicle under investigation had been removed by the deceased and his wife, without the knowledge and consent of the Police, from the scene where the police had deflated the tyres awaiting a towing vehicle.
e. The evidence adduced by both the prosecution and the defence accepted on record concur that the deceased was uncooperative or very evasive with the police in the investigation of his alleged crime when re-arrested.
f. The evidence adduced by both the prosecution and the defence accepted on record concur that the deceased made false statements to the police in the investigation of his alleged crime, when re-arrested, specifically denying being the person earlier arrested in the day on the ground that he had been at the Ovie’s (King) Palace all day and that he did not own or drive any car.
g. The evidence adduced by both and prosecution and the defence accepted on record concur that it was the alibi of the deceased and his identity as a relation of the Ovie (King) that the other Police men went out to investigate when the deceased made to escape from the lawful custody of the Appellant.
h. The evidence adduced by both the prosecution and the defence accepted on record concur that the escape bid was made at about 9 p.m. when it was very dark due to public power outage.
i. The evidence adduced by both the prosecution and the defence accepted on record concur that the Appellant. A police Officer, shouted to the deceased: Stop! Stop!! Stop!!! Several times to no avail, before the gun shot.
j. The finding of the trial Chief Judge was that the Appellant was a truthful witness and a man of conscience who would not stand himself telling a lie.
k. The learned trial Chief Judge having accepted the uncontradicted testimony of the Appellant that he only intended to maim the deceased to foil his escape still convicted the Appellant in these circumstances on the ground that Appellant had intended to cause the deceased grievous bodily harm.
l. The evidence adduced by both the prosecution and the defence accepted on record concur that it was not only the Appellant who shot when the deceased was escaping, thereby having the potent possibility (however remote) that it was not the shot fired by the Appellant that actually hit the deceased fatally, the Shooting having taken place in the dark.
m. In spite of the gaping holes in the case of the State and Factual Circumstances and the statutory defences available to the Appellant based on them convicted the Appellant of murder and sentenced him to death by hanging.
n. The learned trial Chief Judge on the evidence on record ought to have found that the State had not proved the commission of the offence of murder charged beyond reasonable doubt.
GROUND 8
The imposition of the maximum sentence of death was too severe in the circumstances of the case.
PARTICULARS OF EXCESSIVE SEVERITY
a. The evidence adduced by both the prosecution and the defence accepted on record concur that the Appellant was in the course of his lawful duty as a Policeman when the offence was committed.
b. The finding of the trial Chief Judge was that the Appellant was truthful witness and a man of conscience who would not stand himself telling a lie.
c. The allocutus shows that he appellant joined the Police at the Youthful age of 23 and was sentenced to death at 39 without having committed any offence earlier.
d. The Appellant as a Police corporal attached to the Special Anti Robbery Squad had been putting his life on the line for the State and its citizen on a daily basis at a time when evidence on record shows that the area was rampant with armed robbery.
e. If the Appellant had erred on the side of allowing the deceased to escape, he would still be liable to imprisonment for the term of 2 years under section 20(10) of the Police Act.
f. Even if not justified in shooting at the deceased, which is not conceded, the Appellant genuinely believed he was authorized so to do.
g. Appellant had no previous malice or personal ill will against the deceased and in fact was not the Police man who had arrested the deceased earlier in the day or rearrested him later in the evening, but on each occasion was called commanded to keep the custody of the deceased.
h. The evidence adduced by both the prosecution and the defence accepted on record concur that it was not only the Appellant who shot when the deceased was escaping, thereby having the potent possibility (however remote) that it was not the shot fired by the Appellant that actually hit the deceased fatally, the shooting having taken place in the dark.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
- Quashing of the charge.
- Setting aside the trial, conviction and sentence of the Appellant.
- Acquittal of the Appellant.
OR
- Reduction of the sentence to of years imprisonment from the date of sentence by the trial court.”
When this appeal came up for hearing on the 9th January, 2008, P.S Nwajagu Esq. Counsel for the Appellant adopted and relied on the Appellant’s undated Brief of Argument filed on the 6th April, 2006 but deemed properly filed on the 4th May, 2006 as well as the Appellant’s Undated reply Brief of Argument filed on the 18th October, 2007. He urged this Court to allow the appeal and discharge the Appellant.
Mrs E.E. Ezie State Counsel for the Respondent adopted and relied on the Respondent’s Brief of Argument dated 8th October, 2007 and filed same day. She urged this court to dismiss the appeal and uphold the conviction of the accused/appellant. Arising from the eight Grounds contained in the Amended Notice of Appeal the Appellant has distilled the following issues for determination by the Court of Appeal and they are as follows:
- “Whether the trial High Court was right to have convicted and Sentenced the appellant to death by hanging when there was breach of the Appellant’s constitutional right of fair hearing as enshrined in section 36(12) and 12 (1) of the 1999 constitution of the Federal Republic of Nigeria thereby rendering the whole trial, conviction and Sentence a nullity and being a nullity is the Appellant not entitled to a discharge and acquittal?
2 Whether the Trial Court considered the statutory and other defences available to the Appellant in view of the evidence on record?
- Whether the Appellant admitted the Crime of and all the ingredients of murder charged to ground such admission as confession in accordance with Section 27(1) of the evidence Act?
4 Whether the trial Judge misapplied the principles laid down in IGBI V STATE (2002) 2 NWLR PART 648 and UYO V AG BENDEL STATE (1984) 1 All NLR P. 106 P.112 thereby convicting the Appellant to death wrongfully?
- Whether the trial Judge properly evaluated the whole evidence some of the findings which are perverse to have established the guilt of the Appellant beyond reasonable doubt.
6 Whether the Appellate Court can substitute conviction of murder for manslaughter in view of the evidence on record.
- Whether the evidence before the trial Court discloses facts which if the court had properly considered, should have raised some doubt in favour of the Appellant or whether the judgment is against the weight of evidence?
The Respondent formulated the following two issues for the determination of this Court:
- Whether the Appellant was denied fair hearing contrary to the provisions of section 36(1) and (12) of the constitution of the Federal Republic of Nigeria 1999.
(GROUND 1.)
- Whether having regard to the evidence before the court, the learned trial Judge was right to find that the killing of the deceased by the Appellant was unjustified and thereby sentencing the Appellant to death for the offence of murder.
(GROUNDS 2, 3, 4, 5, 6, AND 7)
From the issues formulated by the Appellant and Respondent, the following two issues stand out and adequately cover all the Grounds of Appeal-
- Was the Appellant denied his Constitutional Right to fair hearing as enshrined under the 1999 Constitution?
- Was the Conviction and sentence of the appellant for murder by the Court justified having regard to the evidence adduced?
I shall now deal with the issues seriatim.
On issue 1, the Appellant has submitted that there is no offence known to law called “murder” under section 319(1) of the Criminal Code cap. 48 volume 11, laws of the defunct Bendel State 1976 as applicable to Delta State. The charge he said is unspecific, imprecise and bereft of the offence charged. In other words there is no offence of murder provided for under section 319(1) as charged under the criminal code. He referred to the following cases:-
IFEGWU V. THE STATE (2003) 13 NWLR PART 842 page 113 at 214 paras B-C; page 215 paras B-C. NGWU V. THE STATE (2004) 15 NWLR PART 897 PAGE 1 AT 488 PARA A-F; ANAYO V THE STATE (2001) at 290 – 291 paras H-C; TOFI V. UBA (1987) 3 NWLR PART 92 page 70 at page 488 A-F; AOKO V. FAGBEMI (1961) 1 All NWL 40. Appellant’s Counsel then went on to submit that in consequence of this defect in the criminal trial of the Appellant, the decision of the lower court complained against is unconstitutional, null and void and has therefore occasioned grave injustice to the Appellant and he therefore urged the Court to discharge and acquit the appellant as he was tried and punished against the provisions of section 36(12) of the 1999 Nigerian Constitution and section 151 (3) of the CPL Cap 49 Laws of the Defunct Bendel State applicable to Delta State. Another aspect to this issue is the alleged breach of section 36(1) of the 1999 Nigerian Constitution by the Respondents not obtaining leave of Court to introduce PW4 Emmanuel Olori Ugolo who made no statement to the police and whose statement was not exhibited in the proof of evidence as required by law to give material evidence on the 30th October, 2002 for the prosecution upon which the trial Judge relied heavily in finding the Appellant guilty of murder moreso as the Appellant had not the opportunity to know the type of evidence proffered that he was to face during the trial.
Appellant’s Counsel went on to submit that it is trite that in trial by information, proof of evidence which shall be relied upon must be exhibited.
He relied on OHNOROVIOLE V FRN (2003) 2 NWLR PART 803 page 176 at 189 paras E – H. Appellant went further to submit that all the six prosecution witnesses stated both in their statements to the Police and their oral evidence that they were not eye witnesses to the shooting except PW4 who was a suborned witness and even PW4 stated that after the shooting he turned back and saw the deceased on the floor and it would not have been possible for PW4 to have seen the Appellant shoot the deceased.
In conclusion on this point it is the argument of the Appellant’s Counsel that in a situation where only the evidence of the Appellant as to the actual shooting is the only eye witness account, the evidence of PW4 on which the appellant was convicted is doubtful, unreliable and inadmissible and therefore the Appellant should be discharged and acquitted.
The Respondent has contended that the Appellant’s right to fair hearing was not breached. Murder, the Respondent went on to submit, is an offence defined by law and punishment prescribed by law. It was the Respondent’s further submission that the Appellant was arraigned and convicted for an offence defined by Law and punishment prescribed by Law. Section 316 of the Criminal Code Law Cap 48 volume 11, Laws of the defunct Bendel State 1976 as applicable to Delta State defines the offence of murder which is an unlawful killing under certain circumstances while section 319(1) of the same law prescribes the punishment for the offence of murder. The Respondent therefore submitted that it is not correct to say that the offence of murder and the sentence of death passed on the Appellant are not known in our legal system. On the evidence of PW4 whose evidence had not earlier been obtained and was not in the proof of evidence, and yet was called upon by the prosecution, the Respondent submitted that the Appellant did not object to the alleged defective charge or procedure.
Respondent further submitted that plea was taken on the information and the witnesses called upon to prove the offence of murder against the Appellant were fully cross examined by the Appellant’s Counsel. The Appellant knew quite well the offence for which he was facing trial and adequately met the prosecution at each point. The Respondent again submitted that the conviction of the Appellant was not based only on the evidence of PW4 but by an evaluation by the learned trial Judge on other pieces of evidence before arriving at the conclusion that the Appellant murdered the deceased.
Respondent submitted that the Appellant had all the opportunity to cross examine the witnesses and cannot turn around to say that he was not given a fair trial. Reliance was placed on the case of OKOSA V THE STATE (1989) 1 All NLR page 170 at page 177.
Replying on points of law the Appellant in his reply Brief submitted that section 151 (3) of the Criminal Procedure Law Cap 49 Volume 11 Laws of the defunct Bendel State 1976 as applicable to Delta State makes it mandatory for the written law and the Section of the written Law against which an offence is said to have been committed to be set out in the charge and this was not complied with by the Respondent. Further, section 166 of the Criminal Procedure Law presupposes a situation where an offence known to Law and the section of the Law stated is preferred. In the instant case, the Appellant contends, the section cannot be invoked to cure any error or omission arising from the offence since there would then be no offence.
Reliance was placed on FRN V IFEGWU (Supra) page 215 para B- C.
Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 provides that:
“Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written Law… ”
The Count against the appellant reads as follows:-
STATEMENT OF OFFENCE
Murder, punishable under section 319(1) of the Criminal Code Cap 48 Vol. 11 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 Otowodo Ughelli in the Ughelli Judicial Division murdered one Solomon Erewhodo.
We are here dealing with the issue of fair hearing. Did the Appellant not understand the nature of the offence for which he stood charged? The Record of appeal does not suggest so. At page 48 of the said Record, the proceeding of the trial court on the 22nd March, 2000 went as follows:
COURT: Clerk of Court please read the charge as contained in the information.
COURT CLERK reads out charge.
COURT: Accused do you understand the charge?
ACCUSED PERSON: Yes I do.
COURT: Are you guilty or not guilty?
ACCUSED PERSON: I am not guilty.
That was the proceeding for the day before an adjournment was asked for and obtained from the Court. The Record of Appeal does not in any way suggest that any objection was taken to the nature of the charge by the appellant or his Counsel when the charge was read to him. On the contrary he understood the charge or said he did before pleading not guilty to it. Any objection to the charge should have been taken by the appellant at this stage. Delving into the realm of technicalities at this stage is unhelpful. Suffice it to say that the Appellant was given notice of the offence for which he was charged. The charge was then read to him; he said he understood the charge and went on to plead not guilty. The ingredients of an offence are not usually spelt out in the charge. With respect to the evidence of PW4 as regards the issue of fair hearing, perhaps the point that should be made is that his was not the only piece of evidence that the Court had to evaluate as a total of six witnesses gave evidence for the prosecution and were all subjected to cross examination. Whatever lapses there were would not have been sufficient to have the trial vitiated on the ground that the trial was not fair.
Issue 2 essentially deals with the question as to whether the trial Judge was right to have come to the conclusion that the appellant was guilty of the offence of murder and to have convicted him of murder and passed a sentence of death on him. This issue covers all the other grounds contained in the Appellant’s amended Notice of Appeal and issues 2-7 in the Appellant’s Brief of argument.What must the prosecution prove to secure conviction for murder? The following must be proved beyond reasonable doubt by the prosecution-
(a) that the deceased died.
(b) that it was the unlawful act of the accused that caused the death of the deceased.
(c) that the said act of the accused which caused the death of the deceased was intentional and it was with the knowledge that death or grievous bodily harm will be the probable consequence of that act.
See the following cases – – FRANK UWAGBOE V. THE STATE (2007) 6 NWLR PART 1031 page 606 at p. 608.
IDOWU V THE STATE (2000) 12 NWLR PART 680 page 48 at 88, 89 & 90.
OGBA V. THE STATE (1992) 2 NWLR (PART 222) page 164.
NWACHUKWU V. THE STATE (2002) 12 NWLR PART 782 page 543 at page 568 – 569.
ABOGEDE V THE STATE (1996) 5 NWLR PART 448 Page 270.
NWOSU V. THE STATE (1986) 4 NWLR (PART 35) page 348.
DANIELS V. THE STATE (1991) 8 NWLR (PART 212) page 715.
How well has the prosecution been able to discharge that burden? There is no doubt as rightly found by the trial Judge that the deceased died and that the death of the deceased resulted from the act of the accused. PW2 Emmanuel Ugolo said as follows:-
“When I looked back I took my touch light and point (sic) at the scene. I saw Solomon (deceased) on the floor dead”
PW 3 Paul Nwawolor Sgt No. 636000 attached to Divisional Crime branch Nigerian police station Ughelli at page 60 of the record said:
“After exhibit A I visited the Scene of crime And removed the corpse to Ughelli General Hospital mortuary”
PW 5 Mrs Grace Erowhodor said in her evidence at page 65 of the Record:
“I know Solomon Erowhodor (deceased).
He is my younger one. He is now late.”
PW 6 Flora Erowhodor at page 66 of the Record testified as follows:
“I know one Solomon Erewhodor. He is my Late husband.”
These pieces of evidence which were never contradicted point to the fact that Solomon Erowhodor is actually dead satisfying the first requirement to secure a conviction for murder. With respect to the second requirement that it was the unlawful act of the accused (now Appellant) that caused the death of the deceased, all of the above witnesses could not give direct evidence inclusive of PW 1 as to who caused the death of the deceased with the exception of PW4 who was alleged by the Appellant to be a suborned witness but I shall come to this later. It was the Appellant himself that admitted shooting and killing the deceased. This is his evidence at page 73 of the Record of Appeal:
“As we were waiting for the gate to be opened, the suspect jumped from the vehicle and started running towards the place we came from.
I ran after him, I was shouting on him to stop or I maim his leg. I now aimed at his leg and the bullet went off. Unfortunately he died on the spot.”
The contention therefore by the Appellant’s Counsel in the Appellant’s brief of argument that there was also another shot at the time creating some doubt as to which shot felled the deceased is untenable. The second requirement to secure a conviction that it was the unlawful act of the accused (Appellant) that caused the death of the deceased would have been satisfied if indeed the act of the appellant was unlawful. Was the act of the Appellant in causing the death of the deceased unlawful? I shall deal with this later. What appears to be the heaviest burden on the shoulders of the prosecution is the third requirement to secure a conviction and that is as to whether the accused/appellant in so shooting and killing the deceased either intended to kill him or cause him grievous bodily harm. Are there any defences open to him if he shot and killed the deceased with the intention to kill him or cause him grievous bodily harm? These to my mind are the subject matter of this discourse in the light of the Judgment of the trial High Court that found the appellant guilty of murder and sentenced him to death. The facts of this case are clear as the learned trial Judge observed in her Judgment. The accused/Appellant had made two statements as to what transpired and led to the death of the deceased. In the first of his statement exhibit “A” the appellant stated that he was part of an armed robbery police prevention squad that got information that some armed robbers were operating in the town. His squad quickly got to the scene along Ovie Palace Otorwhodo where the armed robbers opened fire on them. He responded by opening fire on the robbers and got one of them while the others escaped. This statement exhibit “A” the appellant jettisoned saying that it was made on the advice of the police and that he wanted to clear his conscience as there was indeed no such robbery incident and no cross fire as narrated by him in his statement – exhibit “A.” In exhibit “C” which has just been noted is consistent with his evidence in Court appellant had stated that he was a Mobile Police Corporal Serving at Ogwashi-Uku mobile base but attached to the Commissioner of Police special anti robbery squad, State Police headquarters Asaba on special duty. On the 27th November, 1997, he and five other Police men were assigned, on duty to the road leading from Agbarho – Otor to Ughelli when they accosted the deceased’s car that was coming from Ughelli to Agbarho– Otor and the deceased was asked to produce his vehicle particulars. The driver came down from the vehicle but started to walk away rather than produce his particulars. On the instruction of his team leader he deflated the four tyres of the deceased’s vehicle and when they came back to the same duty post in the afternoon they discovered that the deceased’s vehicle had been removed. Later that day at about 8.30p.m. they saw the deceased and accosted him and decided to take him to the Ughelli Police Station for detention and on their way the deceased told them that he was a houseboy to the Ovie of Ughelli and so they decided to take him to the Ovie’s Palace for identification. He was ordered to take control of the deceased at the back of their pick up van. When they got to the Ovie’s Palace gate their driver sounded his horn for someone to open the gate.
At this juncture someone from the palace gate flashed a torch as there was no light that day. He wanted to know who they were. They said they were mobile policemen who wanted to see the King (Ovie). As they were waiting for the gate to be opened, the suspect jumped from the vehicle and started running towards the place they came from. Appellant said he ran after him shouting on him to stop or have his leg maimed. He now aimed at the leg of the deceased and the bullet went off.
Unfortunately the deceased died on the spot.
This is what the learned trial Judge had to say about the admission by the Appellant that he shot and killed the deceased. At pages 91 – 92 of the Record of appeal the learned trial Judge said as follows:
“The question that arises from this is whether an accused can be convicted on his own confession.
The Supreme Court in the case of JOSEPH IDOWU v. THE STATE (supra) also reported in (2000) FWLR (PART 16) 2272 – 272 I gave the answer to the question at ratio 2. There it stated:
“A free and voluntary confession of guilt by an accused person if direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of his confession. However the practice is to look outside the confession for some evidence however slight, of confirmatory circumstances”
The learned trial Judge then went ahead to make this finding based on her understanding of the supreme Court decision just highlighted:
“I am satisfied of the truth of the confession of the accused that he fired at the deceased which resulted in his death. There is abundant evidence that the deceased died as a result of that shot. Out side 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.” At page 93 of the record the Judge had this to say –
“There is also evidence that the death of the deceased was caused by the voluntary act of the accused person.” There is the need to stop here to reflect on these findings by the learned trial Judge. Does the admission by the Appellant to having shot and killed the deceased amount to a confession to the offence of murder? Is an admission the same as a confession of guilt to the commission of an offence? Let us pause and examine that portion of the evidence of the accused/appellant that throws some light about his state of mind at the time he shot and killed the deceased.
He said at page 73 of the record of appeal.
“As we were waiting for the gate to be opened the suspect jumped from the vehicle and started running towards the place we came from. I ran after him. I was shouting on him to stop or I maim his leg. I now aimed at his leg and the bullet went off.
Unfortunately he died on the spot.”
It is this part of the statement that the learned trial Judge has referred to as a confession. The scenario is clear. As the deceased took to flight the appellant did not just pick his gun and aim and shoot at him. He ran after him. He did not have to run after the deceased to kill him. The speed of a bullet from a shot gun is much faster than the 100 metres world record. All the appellant had to do was to aim his gun at the deceased and shoot and the deceased would have been dead. But he first ran after the deceased. Could he have wanted to get hold of the deceased with his bare hands? He then shouted at the deceased to stop or he would maim the legs of the deceased. He then aimed his gun at the legs of the deceased. It is worthy of note that this evidence of the appellant was not punctured during cross examination by the prosecution and the effect is to accept it as the true account of what transpired. If this evidence of the appellant is accepted as true would the appellant be taken as having intended to kill the deceased? While the statement would be taken as an admission that the deceased died as a result of the shot fired at him by the appellant, would that admission amount to a confession to the offence of murder in the circumstances of this case? Would the facts be taken as an intention by the appellant to cause grievous bodily harm to the deceased? The gun of the appellant was aimed at the legs of the deceased before the shot was fired. The appellant’s voiced intention was to maim his leg. Circumstances abound of persons who got bullet wounds on their legs and went for medical treatment and survived. What should one look for in trying to arrive at the real intention of an accused person to an offence of murder? There is the legal aphorism that the devil himself knoweth not the intention of man. Intention is inferred from overt acts. All the circumstances surrounding the action of the accused person, his entire behaviour and his utterances must be taken into consideration. Sometimes even the time lag between a noticed behaviour of an accused person prior to the perpetration of the actual act of killing many well determine an accused person’s state of mind.In FRANK UWAGBOE V. THE STATE (2007) 6 NWLR PART 1031 page 606 the prosecution case was that on the 4th April 1994, the appellant unlawfully murdered one Asia Uwagboe at Ema Village Ehor in the Benin Judicial division over an allegation that the appellant was accused of the theft of a missing N60.00 by the deceased and having heard the deceased mention his name as the culprit the appellant said he was going to kill the deceased that night. He then left and came back with a cutlass and broke open the door of the deceased and despite the plea for mercy by the deceased, nevertheless cut the deceased’s right hand so severely that only a little flesh still held the hand in place culminating in the death of the deceased. Here the accused had voiced out his intention to kill the deceased that night and his subsequent action left no one in doubt that he either intended to kill the deceased or cause him grievous bodily harm.
The present case is different. The appellant’s initial behaviour is that of someone who initially probably never wanted to shoot at the deceased.
He ran after him asking him to stop or he would maim his leg. His testimony is that he aimed at the deceased’s leg and shot. He was probably a poor marksman – a bad shot and instead of the bullets hitting the leg of the deceased they hit a sensitive part of the deceased and the deceased died instantly. The fact that it was at night – past 8 p.m. according to evidence on record may well also have contributed to the appellant taking a poor aim at the deceased who died instantly. So much has been said about the value to be attached to the evidence of PW4 Emmanuel Olori who was said to have seen the appellant shoot the deceased and whose evidence was the only direct evidence linking the appellant with the shooting of the deceased. What was the evidence of PW4″ He had said as follows:
“The late Solomon then said I should go and call his royal highness the Ovie of Ughelli to come and identity him. As I was about to go through the gate, the police said Solomon was a thief and the next thing I heard was a gun shot. I turned back and saw Solomon on the ground.”
This evidence to my mind is not direct enough and it can be said that the only direct evidence linking the shooting of the deceased to the appellant is the appellant’s evidence. Appellant’s counsel has submitted that the learned trial Judge did not consider any of the defences that may be put up by the appellant as a police officer in the lawful execution of his duty and more especially his right to kill a suspected felon who takes to flight to avoid been apprehended. It is not correct to say that the learned trial Judge did not consider any defences that could avail the appellant. The learned trial Judge had said at page 94 of the record of appeal as follows:
“The act of the accused in shooting at the deceased cannot be justified. There is no evidence that the deceased committed any Capital offence for which he was escaping.
He was not also an armed robber so the act of the accused cannot be justified.”
The learned trial Judge was alluding to the fact that the police have powers to shoot and kill an escaping felon if there is no way he can be apprehended. That summation by the trial Judge is correct. Was the deceased an escaping felon? The evidence before the court was that he had instead of presenting his vehicle particulars chosen to flee and was later apprehended and while being taken for identification to the Ovie’s palace, he jumped down from the police van and attempted again to flee .. He was certainly not an escaping felon and the appellant certainly had no legal authority to do what he did and which deed was in excess of his powers under the law.
Having said this, it is clear from all the circumstances of this case that though the charge for murder cannot be sustained, there is nevertheless some blame to be attached to the conduct of the appellant which resulted in the death of the deceased and for which the appellant should be held accountable. In the circumstances the charge that should have been substituted would be one for manslaughter and not murder and I so find. I find the appellant not guilty of murder but guilty of the lesser offence of manslaughter and I so convict him of the offence of manslaughter and hereby sentence him to 20 (twenty) years imprisonment.
Accordingly the judgment of R.P.I. Bosimo CJ delivered on the 27th August, 2004 in charge No. VHC/9C/98 THE STATE V. LIVINUS UGWU convicting and sentencing the appellant to death for murder is hereby set aside and in its place is substituted a conviction for manslaughter and a sentence of 20 (twenty) years imprisonment.
Other Citations: (2008)LCN/2713(CA)
