CHIKA ENYINNAYA v. THE STATE
(2014)LCN/7683(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of March, 2014
CA/E/409/2007
RATIO
APPEAL: AN APPEAL AGAINST THE SPECIFIC HOLDING OF THE TRIAL COURT; THE EFFECT OF THE FAILURE TO APPEAL AGAINST THE SPECIFIC HOLDINGS OF THE TRIAL COURT
It is noteworthy that there is no ground of this appeal complaining against the above specific holdings of the trial court. The omnibus ground of appeal is not a complain against a specific finding or holding of a Court. Therefore, the omnibus ground 8 of this appeal cannot be relied on to argue against the above specific finding or holding of the trial court. In AKINLAGUN & ORS V OSHONOJA & ANOR (2006) 5 SC (PT 11) 100 the Supreme Court held that an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of Law or error in law. In OSOLU V OSHOLU & ORS (2003) 6 SC (PT 11) 1, the Supreme Court held that “it is trite law that an appeal Court dealing with such a ground of appeal, the legitimate complaint is limited to the appraisal of the evidence and not on finding or non-finding of a specific fact or issue. In the latter cases the matter can only be raised by a substantive ground of appeal.
The Legal consequence of this failure to appeal against these specific holdings of the trial court is that the parties to this case have accepted the decision as correct, valid and binding upon them. See YALAJU-AMAYE VS ASSOCIATED REGISTERED ENGINEERING CONTRACTOR LIMITED & ORS (1990) 6 SCNJ 149, MBELE V THE STATE (1990) 7 SCNJ 12
Having accepted the holdings as correct, the appellant cannot be heard to argue against them. See YALAJU-AMAYE VS ASSOCIATED REGISTERED ENGINEERING CONTRACTOR LIMITED & ORS (SUPRA), MBELE V THE STATE (SUPRA). per. EMMANUEL AKOMAYE AGIM, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER ALL ISSUES FOR DETERMINATION MUST BE BASED ON THE GROUNDS OF THE APPEAL
It is settled law that all issues and arguments in an appeal must be based on the grounds of the appeal. Any issue or argument in the appeal that is not derived from a ground of the appeal is incompetent and must be struck out. See KALA V POTI SKUM & ANOR (1998) 1-2 SC 132, IMO V STATE (1991) 11-12 SCNJ 144 per. EMMANUEL AKOMAYE AGIM, J.C.A.
CRIMINAL PROCEDURE: SEARCH WARRANT; THE PURPOSE OF A SEARCH WARRANT AND THE PROVISION OF F SECTION 34 (1) OF THE CRIMINAL PROCEDURE LAW CAP 31 VOL. II REVISED LAWS OF ENUGU STATE 2004 (CPL)
A search involves police actions designed to find, ascertain or recover evidence of crimes and sometimes arrest of fleeing suspects of crime. Common targets of searches include homes, documents, effects and persons suspected of criminal involvement. By virtue of S. 37 and S.45(1) of the 1999 Constitution a search cannot lawfully be done unless there is a law permitting that it be done and the law complies with S.45(1) of the Constitution.. So any police crime prevention action in the form of a search that is not permitted by a law is unconstitutional. S.34 (1) of the Criminal Procedure Law Cap 31 vol. II Revised Laws of Enugu State 2004 (CPL) which permits the police crime prevention action of search requires that it be judicially authorized by a warrant called a search warrant.
It provides that-
“Where a magistrate is satisfied by information upon oath and in writing that there is reasonable ground for believing that here is in Enugu State in any building, ship, carriage, receptacle or place –
(a) anything upon or in respect of which any offence has been or is suspected to have been committed; or
(b) anything which there is reasonable ground for believing will afford evidence as to the commission of any offence; or
(c) anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence
The magistrate may at any time issue a warrant called a search warrant, authorizing an officer of the court, member of the police force, or other person therein named-
(i) to search such building, ship, carriage, receptacle or place for any such thing, and to seize and carry such thing before the magistrate issuing the search warrant or some other magistrate to be dealt with according to law; and
(ii) to apprehend the occupier of the house or place where the thing was found if the magistrate thinks fit so to direct on the warrant.”
S. 10 CPL which permits search of an arrested person provides that- “Where a person is arrested by a police officer or a private person, the police officer making the arrest or to whom the private person makes over the person arrested, may search such person, using such force as may be reasonably necessary for such purpose, and place in safe custody all articles other than necessary wearing apparel found upon him.”
S.11 (1) CPL which permits search of a place entered by a person sought to be arrested provides that- “If any person or police officer acting under a warrant of arrest or otherwise having authority to arrest has reason to believe that the person to be arrested has entered into or is within any place, the person residing or being in charge of such place shall, on demand on such person acting as aforesaid or such police officer, allow him free ingress thereto and afford all reasonable facilities to search therein for the person sought to be arrested.”There is nothing in the evidence to show that a judicial warrant was obtained to search the said house.
The appellant led no evidence to explain why they failed to obtain a search warrant before going there. There is nothing in the evidence to show that if they had gone to obtain a search warrant the object of investigation will be altered or obliterated. In any case that could not have been the situation because when they agreed to go to the house, they had enough time to go back to Awkunanaw police Station to book before proceeding to the house. Whatever the case, any search without search warrant authorizing it is illegal.
The appellant led no evidence to show that there was in the native doctor’s house anything upon or in respect of which any offence has been or is suspected to have been committed or, anything which there is reasonable ground for believing will afford evidence as to the commission of any offence or anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence. As it is the appellant and other police officers decided to invade the house without a judicial warrant to do so.
By virtue of S. 34(1) CPL, the police and other Law enforcement agencies or other agents of government cannot search any citizen or their property without facts or apparent facts that are reliable and generate a reasonable belief that incriminating evidence can be found on the person of the citizen or property. Every intrusion by the police upon the privacy of the individual that is not permitted by a law that complies with S. 45(1) of the Constitution is unconstitutional and unlawful. per. EMMANUEL AKOMAYE AGIM, J.C.A.
A STATE OF EMERGENCY; WHAT A STATE OF EMERGENCY ENTAILS
A state of emergency is a legal order that can only exist when the president of the Federal Republic of Nigeria proclaims it in exercise of his power under S.305 of the 1999 constitution of Nigeria. I have bordered to make this clarification because of the submission of Learned counsel for the appellant that “If the accused persons being policemen and being entitled to carry guns and use these in emergency or perceived emergency how can arriving at the “so called hide out with guns” constitute unlawful purpose. It is submitted that much more was required than the scenario just mentioned.” On 14-8-1998 Enugu city was not in a state of emergency. The mere fact that a place has become a hot spot of the recurrence of a particular crime does not turn it into a state of emergency. There may be situations of urgent need for Police intervention, quick or timely arrival to a crime scene or rapid response to forestall commission of a crime or arrest those committing a crime or who have committed a crime or to recover stolen property.
In any case the idea of a state of emergency provided for in S. 305 of the 1999 constitution does not mean a state of lawlessness or anarchy. It is a situation that requires extraordinary measures to avoid breakdown of public order and public safety in the country or any part thereof. per. EMMANUEL AKOMAYE AGIM, J.C.A.
Before Their Lordships
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria
Between
CHIKA ENYINNAYAAppellant(s)
AND
THE STATERespondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): Samuel Adukwu, Chika Enyinaya, Paul Ojoma (appellants herein) and Paul Eze were accused of murder of one Edwin Ugwo. By information dated 6-6-1999 and filed on 9-6-99, criminal proceedings were commenced in criminal case No. E/3C/99 against them at the High court of Enugu State in the Enugu Judicial Division at Enugu, charging them together with one count of murder as follows-
STATEMENT OF OFFENCE
“MURDER contrary to Section 274(1) of the Criminal Code Cap 36 Vol. 1 Laws of Anambra State of Nigeria,1986 applicable in Enugu State of Nigeria.
PARTICULARS OF OFFENCE
Samuel Adukwu, Chika Enyinnaya, Paul Ojoma and Paul Eze on or about the 14th day of August 1998 at Enugu in the Enugu Judicial Division Murdered one EDWIN UGWU.”
The prosecution elicited evidence through four witnesses. All the accuses testified in their own defence. The 4th accused also elicited further evidence through one witness. Following the close of the evidence by the defence counsel to all the accuseds and the prosecuting counsel filed and adopted written addresses. On the 30th April 2007, the trial court rendered judgment convicting each of the accused of manslaughter and sentenced each of them to 10 years imprisonment. Dissatisfied with this judgment, each accused filed a separate notice of appeal against the said judgment.
The notice of appeal dated 4-7-2007 and filed on 6-7-2007 by the 2nd accused commenced this appeal No. CA/E/409/2007.
The appellant filed his brief of argument on 22-10-2008. Following the failure of the respondent to file its brief of argument, this appeal was heard on the appellant’s brief alone on 16-1-2014 after this court satisfied itself that the respondent had been served with all process in this appeal. Learned Counsel for the appellant on the said date adopted the appellant’s brief of argument.
The appellant in his brief of argument has raised the following issues for determination in this appeal.
1. Whether the presence at the scene of crime, in the circumstance of this case constituted sufficient participation by the appellant in the commission of that crime.
2. Whether the guilt of the appellant was established as required by law?
3. Whether the conviction of the appellant, based on facts not proved, is not perverse; thereby occasioning a miscarriage of justice.
I prefer to coalesce these issues into one, namely, whether the conviction of the appellant by the trial court was right.
Learned counsel for the appellant argued that the mere presence and callousness of the 2nd accused at the scene of a crime did not as a matter of law render him guilty of the crime. Learned Counsel then submitted that “For the appellant, who was engaged in the lawful duty of crime detection and prevention and who was in company of his colleagues in the force of similar rank to be held liable for the crime found committed, there must be clear evidence that either prior to or at the time of, the commission of the offence, the appellant did something or omitted to do any act, Such as aiding or abetting within the purview of Section 7 of the Criminal Code to facilitate the commissioner of the offence”
Learned Counsel for the appellant argued that the extra-judicial Statement of DW1 that it was the appellant’s gunshot that killed Edwin Ugwu is contradicted by his testimony in court that he cannot say whose gunshot killed Edwin Ugwu.
He then submitted that the said extra judicial statement and testimony in court should be disregarded as unreliable. Another argument of Learned Counsel for the appellant is that “When the trial judge held at page 216 (40) “that the accused persons no doubt knew whose bullet amongst them hit the deceased but decided to tie their fate together, to rise or fall together”, the trial judge purported to fix guilt on the perceived action of the accused persons, including the appellant herein, after the alleged crime had been committed. However the accused person did mention the name of the person who shot the deceased and this evidence was accepted by PW4 and DW4.
In any event and with respect to the trial judge, failing to disclose “whose bullet amongst them killed the accused cannot ipso facto constitute the person who disclosed but not believed, a principal in the first degree. Such a person becomes liable, if at all, to an offence punishable under Section 83 of the Criminal Code, Cap 36, Vol.1 Laws of Anambra State of Nigeria 1986 as applicable in Enugu State and not the verdict of guilty of manslaughter as returned by the trial judge. On conviction, such a person is liable to imprisonment for two years only (not 10 years).
Moreover the accused persons did not tie their fate together as there was evidence capable of being believed as to whose “Bullet amongst them hit the deceased “which evidence was produced by the appellant and 4th accused persons in their statements to the Police. Furthermore it is to be noted that all the accused persons were members of a team, and were at the scene of the incident, not by choice but by the exigencies of their duty.”
The questions arising from the arguments of Learned Counsel for the appellant are –
1. did the evidence before the trial Court establish that the appellant shot and killed Edwin Ugwu.
2. If the evidence before the trial court established that he did not shoot Edwin Ugwu, was the trial court right in convicting him for manslaughter for the shooting of Edwin Ugwu by another member of the Police patrol team.
Let me now consider the above questions in the sequence they are stated.
I have carefully read the evidence before the trial court to find out if it establishes that the appellant shot Edwin Ugwu. I will preface the determination of this question with a summary of the relevant facts that are undisputed and established by the evidence. This will facilitate an understanding of this discourse.
On 14-8-1998, PW3 accompanied Late Edwin Ugwu to the house of one Chibuike, a herbal medical practitioner (native doctor) at Top Land Area, Amechi village, Awkunanaw, along Enugu-Port Harcourt Express way, Enugu, to collect herbal medicine for the sick mother of Late Edwin Ugwu. While the duo were in Chibuike’s house, a team of plain clothes Police officers arrived and started shooting indiscriminately. The persons in Chibuike’s house including PW3 and Late Edwin Ugwu started running out of the house fleeing from the Police officers.
PW3, to avoid being hit by a bullet, dived to the ground and laid face down. One of the members of the Police patrol team shot Edwin Ugwu on the back of his head killing him on the spot. PW3 who was lying face down did not see who amongst the officers shot the deceased. When the officers realized one of them had shot and killed Late Edwin, they quarreled amongst themselves condemning the killing.
The police officers however refused to identify who amongst them shot the deceased. The officers took the corpse of Edwin Ugwu and PW3 in their car away from the scene of the incident. Sgt Samuel Adikwu, the appellant, Sgt Paul Eze and Sgt Ogiri Onwe agreed and insisted that they should kill PW3 to cover up the killing of Edwin Ugwu and avoid problems. Sgt Chika Enyinnaya objected that he should not be killed and that he would not reveal anything about the incident. After extracting, under threat, a promise from PW3 not to reveal the truth of what happened they let him go. They took the corpse away and reported to their superior, the Commissioner of Police that he was a fleeing armed robber that was shot by them during exchange of gun fire between them and a gang of robbers.
Apart from the members of the Police Patrol team, PW3 was the only eye witness of the events of 14-8-1998 at the native doctors house. He testified in examination in chief that -“The head of the Police at Makurdi invited me and the accused persons into his office. He asked the accused persons who amongst them was holding gun on the day the deceased was shot dead. All of them admitted holding a gun on that day except the 3rd accused. The man asked them how many bullets they released on the spot of the incident. They said 1st accused fired three bullets, 2nd accused two bullets, 4th accused two bullets. He asked them who killed the deceased. They said they did not know. The Policeman then told them if they killed the man actually they should go and settle with the brother of the deceased.”
Under cross-examination by Learned Counsel to 2nd appellant, he testified that-
“When I saw Edwin Ugwu on the ground I noticed only one bullet wound on his head. I do not know who shot the fatal bullet, except that when the accused persons were quarrelling with each other it was said the bullet was shot by the 1st accused.”
Under cross-examination by Learned counsel to the 3rd accused he said- “It is true that the 3rd accused on that day did not have a gun although all the other accused had guns. I did not know who actually shot the deceased but after the shooting the accused persons quarreled amongst themselves and stated it was the 1st accused that shot the deceased.”
DW1 in exhibit P, his extra judicial statement of 24-9-98 had stated that the 3rd convict told him that it was the appellant, Sgt Chika Enyinnaya who shot and killed Edwin Ugwu, even though in his testimony in court he said the shot was by one officer amongst them, but he cannot say for certain who the person was.
PW4, the IPO who handled the investigation into the case, before it was brought to court, testified under cross-examination that “It is usual for a policeman when embarking upon an Official duty to book. That is a routine thing. I was informed the accused persons booked at Awkunanaw police Station on the day of the incident. I learnt the accused persons were attached to C. F Monitoring Unit at the Police HQ. Enugu. It is usual, if a Policeman is going for a duty in a place outside his duty Station, to book with the Police Unit in that area of duty.
The accused persons did not book in the CP’s Office. They only booked at Awkunanaw. There are circumstances that can entitle a policeman to shoot his gun. He can use this arm to disperse riots; he can use the gun when his life is in danger. The third one is if you are directly ordered to shoot by your superior officer. Otherwise you are not allowed to use your arm anyhow.”
Learned Counsel for the appellant has argued that since, as the trial court held, the accused persons had set out that day on lawful duty of patrolling the city of Enugu and environs, their liability for any crime committed in the process “would not depend only on whether an unlawful means was used. In such a situation liability could arise only by virtue of Ss. 8, 9 or 10 of the Criminal Code.
According to Learned Counsel, the judgment appears disturbingly confused as to what was the common purpose of the Police patrol team and whether it was unlawful. Learned counsel also argued that since the accused persons set off on lawful duties of patrolling the city, they were entitled to carry guns, yet the trial court held that they veered off their lawful duty and embarked upon the prosecution of an unlawful purpose that was of such a nature as was likely to endanger human life. The Learned Counsel further submitted that the trial court identified the unlawful purpose as going to the so-called hide out with guns and argued that “if the accused persons, being policemen and being entitled to carry guns and use these in emergency or perceived emergency, how can arriving at the “so called hide out with guns” constitute unlawful purposes.” He then submitted that “much more was required than the scenario just mentioned.
Finally, Learned Counsel for the appellant argued that the view of the trial court that police brutality had become too frequent in society, police glory in the number of suspects shot and killed, police no longer talk of the number of cases investigated and prosecuted in court to conviction, police investigation of cases is no longer effective and that innocent persons and persons suspected of committing a crime are want only killed daily and that it was because the accused persons were reckless that they were thrown out of the police force is not supported by the evidence and is therefore perverse, that these matters are irrelevant and were considered to the prejudice of the appellant and that a decision is perverse if it took irrelevant matters into account or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case.
Let me now consider the above arguments. The argument that the extra-judicial statement of DW1 is contradicted by the testimony of DW1 in court as to whether it was the appellant’s gun shot that killed Edwin Ugwu has no basis.
The two pieces of evidence must be admissible evidence. If one is admissible and the other is not then there is only one admissible evidence and the question of its conflict with a legally non-existent evidence does not arise. The statement in Exhibit P, DW’s extra-judicial statement made on 27-4-98 that Sgt Chika Enyinnaya (appellant) shot Edwin Ugwu was made by Sgt Paul Ojoma (3rd convict) to DW1 who said he was not an eye witness of the appellant shooting the deceased. For ease of reference, I will reproduce what DW1 stated therein. He said “I chased one of the suspected robbers. I also fired one warning shot to see if he could stop, but failed and I came out from the bush. Sgt Paul Ojoma rush to me and that Chika could have him as he was chasing of the suspects and one of them was hit by bullet Chika fired and the suspect is now lying down there, I asked him is he dead he said he don’t know (sic). So the statement DW1 wrote was what was told him by Sgt Paul Ojoma and not what he saw himself. It is clearly hearsay.
S. 37 of the 2011 Evidence Act defines hearsay as “a statement
a) oral or written made otherwise than by a witness in a proceeding; or
b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
S. 38 of the same Evidence Act states that “hearsay evidence is inadmissible except as provided in part iv of the said Act. Those exceptions do not apply here.
So the said statement that Paul Ojoma said the appellant shot the deceased is inadmissible. Where legally inadmissible evidence is admitted with or without objection, it can be expunged by the same court during judgment or by the appellate court on appeal. See ……….
I will therefore disregard that part of Exhibit P as legally inadmissible. Therefore, it becomes unnecessary to consider if the said statement in exhibit P is in conflict with DW1’s testimony in court and the effect of such conflict.
I agree with the submission of Learned Counsel for the appellant that there is no direct evidence that it was the appellant’s gun shot that killed Edwin Ugwu. Let me state straightaway that there is also no circumstantial evidence pointing irresistibly to a single conclusion that it is the appellant that shot Edwin Ugwu.
The evidence of how he was shot and by whom is reproduced hereunder as follows- PW3, the friend of Late Edwin Ugwu who was the only person, inaddition to the five policemen, present at the scene of crime testified that “It is true that the 3rd accused on that day did not have a gun although all the other accused had guns. I did not know who actually shot the deceased but after the shooting the accused persons quarreled amongst themselves and stated it was the 1st accused that shot the deceased.”
DW1, who led the police patrol, testified that “I cannot say whose bullet wounded the dead person. I was not the person whose bullet wounded the dead person. No autopsy was conducted to find out whose bullet hit the dead person” DW3 testified that “They opened fire and ran. I took cover. My Team members replied, one of them was hit by bullet.” Under cross-examination he said “I was not the person that killed the deceased. I do not know the particular person who killed the deceased. I did not conspire with anybody to kill the deceased”.
The trial Court held that “the policemen got to the place and without good reason shot indiscriminately and recklessly thereby hitting and killing the deceased.”
There is no ground of this appeal challenging this part of the judgment of the trial court.
The legal consequence of the failure to appeal against this holding is that all the parties to the case have accepted the holding as correct and binding on then.
See ………..
Since all the Officers were shooting indiscriminately at the persons who were running from them, it is obvious that it remains uncertain whose gunshot hit and killed Edwin Ugwu.
Since there is no evidence showing that it was the appellant that shot the deceased, it becomes necessary to find out if the conviction of the appellant was correct in Law or is there anything in the evidence before the trial court that rendered him liable for the shooting of late Edwin Ugwu by another member of the Police patrol team.
The trial court held that “the accused persons acted in concert.” Further in the judgment, it held that “The way and manner the accused person acted under the circumstances was unlawful. They set out on lawful duty but somewhere along the line the accused persons embarked upon an unlawful purpose of going to the place they regarded as a hide out to ferret out the persons there and shoot them. They acted in such a way as to endanger human life, and in consequence killed the deceased. In doing what they did they aided each other in the reckless act and the subsequent attempt to cover the reckless act.”
As the evidence shows, all sides agree that the five convicts worked together and participated in all the events leading to this case. The convicts had stated in their extra-judicial Statements, Exhibits C, D, E, F1, F3, Q and R and their testimonies in Court, that they were members of Police Crime Patrol team B on Anti-Robbery Patrol, whose main assignment was to combat the crime of arm robbery in the State. The Crime Patrol Teams were part of the Commissioner of Police Monitoring Unit, Enugu, set up as a result of the then rampart incidents of armed robberies in some parts of the state. On 14-8-1998, the said Patrol Team B was on patrol along Agbani Road, Enugu, when the appellant informed the Team that he had information that there was a criminal hide out in a native doctor’s Shrine at Ameachi Village in Awkunanu, taking Oath in preparation to carry out armed robberies within Enugu Town. Without booking with the Commissioner of Police in charge of their unit, the Team went to Awkunanu Police Station, booked and then left for the native doctor’s shrine. Upon the arrival of the team, the persons in the native doctor’s house started running away from the Police Officers. The fleeing persons were shut at by the Police Officers. One of them Edwin Ugwu was shot dead by the Police Officers. Another, PW3 was arrested by the appellant.
The events at the native doctor’s house were also explained by PW3 in Exhibits A and B and his testimony in Court. PW4 the investigating Police Officer who handled and concluded the investigation of this case, testified that his investigation confirmed the above facts.
The attempt of the Police Officers to kill PW5, the planting of a locally made Pistol on the deceased, blackmail of the deceased as a fleeing robber, the pact the convicts forced PW3 to enter into with them not to reveal what he saw, the false investigation report by the appellant to cover up the Killing of Edwin Ugwu by the convicts are established by the evidence in Exhibit A (extra-Judicial Statement of PW3), PW3’s testimony in Court, exhibit B (extra Judicial Statement of PW3 written by 2nd Convict and signed by PW3 during the forced agreement with the convicts), exhibits C, F1, F2, F4, P, Q, and R.
It is noteworthy that there is no ground of this appeal complaining against the above specific holdings of the trial court. The omnibus ground of appeal is not a complain against a specific finding or holding of a Court. Therefore, the omnibus ground 8 of this appeal cannot be relied on to argue against the above specific finding or holding of the trial court. In AKINLAGUN & ORS V OSHONOJA & ANOR (2006) 5 SC (PT 11) 100 the Supreme Court held that an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of Law or error in law.
In OSOLU V OSHOLU & ORS (2003) 6 SC (PT 11) 1, the Supreme Court held that “it is trite law that an appeal Court dealing with such a ground of appeal, the legitimate complaint is limited to the appraisal of the evidence and not on finding or non-finding of a specific fact or issue. In the latter cases the matter can only be raised by a substantive ground of appeal.
The Legal consequence of this failure to appeal against these specific holdings of the trial court is that the parties to this case have accepted the decision as correct, valid and binding upon them. See YALAJU-AMAYE VS ASSOCIATED REGISTERED ENGINEERING CONTRACTOR LIMITED & ORS (1990) 6 SCNJ 149, MBELE V THE STATE (1990) 7 SCNJ 12
Having accepted the holdings as correct, the appellant cannot be heard to argue against them. See YALAJU-AMAYE VS ASSOCIATED REGISTERED ENGINEERING CONTRACTOR LIMITED & ORS (SUPRA), MBELE V THE STATE (SUPRA).
Therefore the argument of Learned Counsel for the appellant that “By far the most unjustifiable reference to the appellant appears at page 216 (40) wherein the trial judge stated that “the accused persons acted in concert”, is invalid as it is not derived from any of the grounds of this appeal.
It is settled law that all issues and arguments in an appeal must be based on the grounds of the appeal. Any issue or argument in the appeal that is not derived from a ground of the appeal is incompetent and must be struck out. See KALA V POTI SKUM & ANOR (1998) 1-2 SC 132, IMO V STATE (1991) 11-12 SCNJ 144
Learned Counsel for the appellant argued that- “On the fateful date ie the 14th August 1998 the appellant and the other three accused persons were on lawful duties to ferret out armed robbers and bring these to book. The trial judge accepted this fact when he opined that “the (sic) set out on lawful duty.” On page 216 (43) the trial judge also noted that; “There is no doubt that the accused persons set out that fateful day on official duty of patrolling the city of Enugu and environs.” If therefore the appellant in the company of other accused persons were on lawful duties and in the process a crime was committed, their liability for the crime that was committed would not depend only on whether an unlawful means was used.
In such a situation liability could arise only by virtue of Section 5 or 6 of the Criminal Code. Section 5 of the Criminal Code Cap 36 Laws of Anambra State is in pari material with Section 8 of the Criminal Laws of the Federation. Section 8 of the Criminal Code as espoused by Oputa JSC in Okosi v. State (1989) 1 NWLR (pt 100) 642 at 668 “is predicated not on common object but rather on common intention.” Therefore for Section 8 to apply there should be proof of common intention or common design as is also sometimes called common purpose. It is this common purpose that matters.” This common purpose would itself be unlawful.
In the instant case what could be said to be the common purpose. Common design or common intention that the appellant along with the other accused persons embarked upon, and which was unlawful? The judgment, with the utmost respect to the trial judge appears disturbingly “confused.” In the first place, the trial judge agreed, that the appellant and co accused set off on lawful duties of patrolling the city of Enugu and environs. By law these persons were entitled to carry guns.
Their job was ordinarily a dangerous assignment as the slightest mistake of not shooting first could cost them their lives. Yet the judge went on to hold that “somewhere along the line they veered out and embarked upon prosecution of an unlawful purpose which was of such a nature as was likely to endanger human life.” The trial judge then identified this “unlawful purpose.” They went to the so-called hide out with guns”. If the accused persons, being policemen and being entitled to carry guns and use these in emergency or perceived emergency how can arriving at the “so called hide out with guns” constitute unlawful purpose. It is submitted that much more was required than the scenario just mentioned.”
I will now consider the decision of the trial court on the purpose for which the police officers were working in concert to determine if the above submission of the Learned Counsel for the appellant is correct. The trial court held that “Let me also examine the story of the accused persons, that they got information that certain persons were at the Top land area of Awkunanaw preparing for robbery. In evidence the accused persons said they got the information through radio message from the Police Headquarters, Enugu and then proceeded to the place. But in their statement to the Police at Makurdi they stated that they went to the place because, while on patrol, 3rd accused told them he knows a hide-out of criminals where they could go to look for robbers. They then went and booked at Awkunanaw Police Station and proceeded to the hide-out. The DW5, however, stated it was he who learnt about the robbery operation in the area and dispatched the accused persons from the Police Headquarters to the place. The contradiction cry to high heavens.
It is the view of this court that nobody informed the accused person of any robbery operation in the area on 14/8/98. The accused persons were on patrol. One of them, probably the 3rd accused, told them he knew of a hide-out at Awkunanaw. They went to Awkunanaw Police Station, booked and proceeded to the place led by the 3rd accused.
They were in mufti. On getting to the place they parked their car and continued on foot.
On getting to where the deceased and PW3 were they released gun shots. The deceased turned to run away. But he was hit by a bullet from the back of his head. He fell to the ground and died. There was no exchange of gun fire between the accused persons and anybody.
The accused persons quickly realized their blunder. They apprehended the PW3 who was there, put the body of the deceased and PW3 in their car and left the place. None of the items handed over to Makurdi Police by the 3rd accused when Makurdi Police took over the investigation was recovered at the scene of the incident. The accused gathered them to support their bogus story of encounter with robbers. The locally made pistol was not recovered from the pocket of the deceased as claimed by accused persons…
The story of the accused persons that they recovered the pistol from the pocket of the deceased was rather funny. The question is, if indeed the deceased was exchanging gun fit with the accused persons as claimed by the accused persons, how come the gun was found in the pocket of the deceased when he was hit. Did he put his gun into his pocket after he had been shot and was dying? One would have expected his gun to fall away from his hands.
Furthermore, the evidence is that the deceased was shot from the back of his head.
Was the deceased exchanging gun fire with the accused persons while backing them?
What of the ballistician’s Exhibit H1, which disclosed that the gun allegedly recovered from the deceased was in a dilapidated condition?
It is the view of this court that there was no exchange of gun fire at all between the accused persons and anybody. No gun was recovered from the deceased either from his pocket or otherwise. The deceased was shot at the back of his head while running away from the scene of the incident on hearing the gun shots of the accused persons.”
The house of the native doctor that the Police officers invaded is not a hide out in a bush. The trial court held concerning the nature of the place and why the police officers went there that- “the accused persons went to a place they called a criminal hide-out on their own volition. The place was in a busy urban area where criminals could intermingle with honest fellows.” There is no ground of this appeal challenging, furthermore there is no ground of this appeal challenging the holdings of this court that-
(i) “nobody informed the accused persons of any robbery operation in the area on 14/8/98”
(ii) “there was no exchange of gun fire at all between the accused persons and anybody.”
(iii) “the accused persons came to the scene and without warning shot the deceased”
(iv) “the fact that he was shot at the back also means that he was running away from the invading policemen.”
(v) “It is clear, therefore, that the policemen got to the place and without good reason shot indiscriminately and recklessly, thereby hitting and killing the deceased.”
I had earlier in this judgment restated the settled position of the law that the legal consequence of failure to appeal against any finding, holding or decision of a court is that the parties to the case have accepted it as correct and binding upon them.
The above holdings clearly decide that the police officers had no reason to invade the house of the native doctor and that the said house was not a criminal hide out.
I am minded to agree with the trial court that the police officers veered off their lawful duty of patrolling the city to prevent and control crime, by going to the native doctors house.
The officers (including the appellant) agreed and thereby formed the common intention to invade the house. I do not agree with the argument of Learned counsel for the appellant that the accused persons being policemen and being entitled to carry guns and use in emergency or perceived emergency, their going to the “so called hide out with guns” cannot constitute unlawful purpose. He submitted that much more was required than the scenario just mentioned.” Learned Counsel failed to educate this court on the “much more” that was required to constitute the invasion of the house of the native doctor an unlawful purpose.
In the light of these holdings it cannot be validly argued that there was an emergency or a perceived emergency or any reason at all that rendered lawful the invasion of the native doctor’s house by the police officers. The invasion of the house of the native doctor (Chibuike) is unlawful as it violates his fundamental human right to the privacy of his person and his home guaranteed him by S.37 of the 1999 Constitution of Nigeria. The only permitted derogation from this right is one provided for in a law in the interest of defence, public safety, public order, public morality or public health, or for the purpose of protecting the rights and freedom of other persons as required by S. 45(1) of the same 1999 Constitution of Nigeria. Privacy at its most fundamental level is the right to be left alone. This suggests that a zone surrounds every individual within which he or she should be protected from intrusion by others. It is the most valuable of all rights. The 1999 Constitution in S. 37 absolutely guarantees the privacy of the citizen, his home, correspondence, telephone conversations and telegraphic communications and S. 45(1) allows a law to derogate from it only if it is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.
Learned Counsel for the appellant has not referred to any law that enabled them to invade that house the way they did. For police crime prevention and control action in entering a building or the space of a person as in this case to be brought under the protection of S.45(1) of the 1999 Constitution, it must be considered a search in accordance with an enabling law.
A search involves police actions designed to find, ascertain or recover evidence of crimes and sometimes arrest of fleeing suspects of crime. Common targets of searches include homes, documents, effects and persons suspected of criminal involvement. By virtue of S. 37 and S.45(1) of the 1999 Constitution a search cannot lawfully be done unless there is a law permitting that it be done and the law complies with S.45(1) of the Constitution.. So any police crime prevention action in the form of a search that is not permitted by a law is unconstitutional. S.34 (1) of the Criminal Procedure Law Cap 31 vol. II Revised Laws of Enugu State 2004 (CPL) which permits the police crime prevention action of search requires that it be judicially authorized by a warrant called a search warrant.
It provides that-
“Where a magistrate is satisfied by information upon oath and in writing that there is reasonable ground for believing that here is in Enugu State in any building, ship, carriage, receptacle or place –
(a) anything upon or in respect of which any offence has been or is suspected to have been committed; or
(b) anything which there is reasonable ground for believing will afford evidence as to the commission of any offence; or
(c) anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence
The magistrate may at any time issue a warrant called a search warrant, authorizing an officer of the court, member of the police force, or other person therein named-
(i) to search such building, ship, carriage, receptacle or place for any such thing, and to seize and carry such thing before the magistrate issuing the search warrant or some other magistrate to be dealt with according to law; and
(ii) to apprehend the occupier of the house or place where the thing was found if the magistrate thinks fit so to direct on the warrant.”
S. 10 CPL which permits search of an arrested person provides that- “Where a person is arrested by a police officer or a private person, the police officer making the arrest or to whom the private person makes over the person arrested, may search such person, using such force as may be reasonably necessary for such purpose, and place in safe custody all articles other than necessary wearing apparel found upon him.”
S.11 (1) CPL which permits search of a place entered by a person sought to be arrested provides that- “If any person or police officer acting under a warrant of arrest or otherwise having authority to arrest has reason to believe that the person to be arrested has entered into or is within any place, the person residing or being in charge of such place shall, on demand on such person acting as aforesaid or such police officer, allow him free ingress thereto and afford all reasonable facilities to search therein for the person sought to be arrested.”There is nothing in the evidence to show that a judicial warrant was obtained to search the said house.
The appellant led no evidence to explain why they failed to obtain a search warrant before going there. There is nothing in the evidence to show that if they had gone to obtain a search warrant the object of investigation will be altered or obliterated. In any case that could not have been the situation because when they agreed to go to the house, they had enough time to go back to Awkunanaw police Station to book before proceeding to the house. Whatever the case, any search without search warrant authorizing it is illegal.
The appellant led no evidence to show that there was in the native doctor’s house anything upon or in respect of which any offence has been or is suspected to have been committed or, anything which there is reasonable ground for believing will afford evidence as to the commission of any offence or anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence. As it is the appellant and other police officers decided to invade the house without a judicial warrant to do so.
By virtue of S. 34(1) CPL, the police and other Law enforcement agencies or other agents of government cannot search any citizen or their property without facts or apparent facts that are reliable and generate a reasonable belief that incriminating evidence can be found on the person of the citizen or property. Every intrusion by the police upon the privacy of the individual that is not permitted by a law that complies with S. 45(1) of the Constitution is unconstitutional and unlawful.
The implication of the holdings of the trial court reproduced above is that the police officers when they decided to go to that house, were not investigating or acting in respect of any particular crime committed or about to be committed or being committed and were not going there to arrest any particular person who is reasonably suspected of committing, having committed or about to commit an offence. The invasion of the house of the native doctor to arrest or in any manner deal with any person found there, on the preconceived notion that they are criminals even when the officers do not know them and had no basis for reasonably suspecting them of committing any crime is a violation of the fundamental right to personal liberty of the persons in the house guaranteed in S.35(1) (b) (c) of the 1999 Constitution of Nigeria which provides that every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the cases listed therein and in accordance with a procedure permitted by law for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. PW3 and late Edwin Ugwu were not reasonably suspected of committing, about to commit or of having committed any offence before the invasion.
The testimony of PW4 that the accuseds did not book with the Commissioner in charge of their unit before going to the native doctor’s house was not challenged nor contradicted. It therefore must be acted upon as evidence of the police procedure for carrying out assignments. This is significant because S. 47 of CPL Cap Vol. 111 Revised Laws of Anambra State 1991 states that “every Police officer receiving information of design to commit any offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence”.
So when the appellant suggested to the other members of the police patrol team that they should invade the said house and when they proceeded to do so, they all knew that they had no search warrant to enter the house and search and that they had no arrest warrant to arrest anybody they may find in the house. So ab-initio they knew that the invasion was unlawful.
The killing of Edwin Ugwu was obviously a crime committed in the prosecution of the unlawful purpose of invading Chibuike’s house by the police patrol team working in concert. The trial court held that – “It is never part of the duty or right of a policeman to shoot to kill anybody not even a criminal. If a suspected felon turns violent or attempts to escape arrest a policeman can shoot to mean with a view to preventing the suspected felon from escaping or over whelming the policeman. In such a case it is prudent to shoot on the leg… It is clear, therefore, that the policemen got to the place and without good reason shot indiscriminately and recklessly, thereby hitting and killed the deceased. It may well be the accused persons were on duty. What crime or arrest suspected criminals. It does not include shooting and killing suspected criminals at sight.
The accused persons went to a place they called a criminal hide-out on their own volition. The place was in busy urban area where criminals could intermingle with honest fellows, on getting to the place, at least three of the accused persons released gun shots and the deceased dropped dead, shot through the back of his head. If the accused person did not see the deceased when they released the shots it was reckless. If they saw the deceased when they released the shots it was reckless. It was out of touch with their duty. This court accepts evidence of the PW3 that the accused persons came to the scene and without warning shot the deceased… Be that as it may, this court holds that on 14-8-98 the deceased (Edwin Ugwu) was killed somewhere at the Topland area of Awkunanaw. He was killed by the accused persons who came to where he was saying and shot their guns recklessly. After killing the deceased in the manner aforesaid the accused persons tried to cover their recklessness by orchestrating and hoisting an alleged confrontation with armed robbers. But there was no confrontation between the accused persons and robbers at the place and time in question. The deceased may well be a suspected criminal who on noticing the invasion of the place by policemen tried to run away but was shot through the head from his back.”
It is clear from the part of the judgment reproduced above that another thing done by the police officers to cover up their killing of Edwin Ugwu was that they planted a gun on his corpse to support their story that there was exchange of gun fire in the process of which the late Edwin Ugwu was shot. There is no ground of this appeal against any of this holding. This means that the appellant accepted the holding as correct. It is clear from this holding that the appellant and the other officers of the patrol team had no regard or value for human life. They were obviously reckless and callous. They were obviously more dangerous to society than the armed robbers they claimed they were searching for. They were rather the danger to the lives they were employed to protect.
The killing of Edwin Ugwu was unlawful as it was not authorized or justified by law. S.216 (1) Criminal Code Law Cap 30 vol. II Revised Laws of Anambra State 1991 provides that it is unlawful to kill any person unless such killing is authorized or justified or excused by law.
The convicts upon realizing that they had killed Edwin Ugwu took several steps to cover up their crime.
1. Shortly after the killing, they decided and insisted they were going to kill PW3 to “avoid problems”. It was the 2nd convict, Sgt Chika Enyinnaya who saved the life of PW3 by vigorously insisting that they should not kill him and that there is nothing to fear as PW3 would not reveal anything about the incident. They then forced PW3 to sign a statement written by the appellant (2nd convict) stating that he was not arrested by anybody and denying what took place.
The trial court held that- “The accused persons soon realized their mistake and tried to conceal their mistake, but it was not possible. The PW3 had become their Achilles heel, hence all the fruitless attempt to blot out the presence of PW3.
First the accused persons wanted to dispatch the PW3 by shooting him, but they were prevailed upon by the appellant who happened to know the PW3. They eventually left the Pw3 to go but warned him to keep his mouth shut.”
It had earlier in the judgment held that – “The accused persons did all they could to erase the presence of the PW3 from the event of that fateful 14-8-98. the DW1 for instance did all he could not to involve the PW3 in his evidence before the court.
He, DW1 was insistent that they saw no other person at the scene of incident on that day except the man who was shot. It was only the appellant who acknowledged in evidence unequivocally that they picked up the PW3 at scene after the shooting. He realized that PW3 was someone known to him long before the day of the incident. Besides the evidence of the accused person, however, the appellant and 4th accused elaborately acknowledged the presence of the PW3 at the scene on the day in question. Exhibits B, P1, P2 are significant. Even the 1st accused who denied the presence of the PW3 entirely in his evidence acknowledged his presence in his statement. Exhibit P. it is absolutely clear that PW3 was on the scene on the day in question and was apprehended by the accused persons. Initially they did not know what to do with the PW3. They no doubt considered whether to dispose of him but better counsel prevailed and they released him, warning him not to say what he had witnessed that day.”
There is no ground of this appeal complaining that this holding is wrong.
2. Even though they all knew that Edwin Ugwu was not an armed robber they took his corpse to their superior and presented it as that of a fleeing armed robber that they shot.
3. The 3rd appellant compiled exhibit R, reconstructing the story of 14-8-98, distorted the entire facts, with obvious falsehood to clothe their unlawful operation with the appearance of a legitimate police patrol crime prevention activity. Exhibit R, the police investigation Report of the incident dated 29-8-1998 and prepared by the appellant established beyond dispute the pivotal role of the appellant in starting the whole unfortunate adventure, directing and executing it and the entire cover up activities of the group. It was the official instrument that was contrived by the convicts to officially clear the members of that patrol team of any wrong doing and foist a platform for the further expenditure of state resources on a wild goose chase of non existent robbers, a chase that obviously would have again consumed some innocent citizens as the imagined fleeing armed robbers. The appellant was the author of this instrument that is dripping with mindless and cold blooded false hood. Concerning this report, the trial court held that -“The investigation report, Exhibit R, was turned in by the 3rd accused. That was before the case was taken over by Makurdi police and the investigation handed over to PW4 and his team. In the evidence of the 3rd accused as DW3 he stated that they did not arrest anybody at the scene on the day in question. Under cross-examination by the prosecuting counsel PW3 stated that somebody was arrested in connection with the incident but not on 14-8-98. He went on to say that one Linus Ekwem was arrested but on 28-8-98 at Meniru Street, Awkunanaw. He was arrested and made statement to him, PW3. In his report, Exhibit R, DW3 stated that on 21/8/98 one Linus Ekwem of No. 22 Meniru Street was invited for interrogation and he volunteered statement.
The DW3 did not say in his evidence or his report of investigation, Exhibit R, how he came to arrest the PW3, Linus Ekwem. The question, however, is why did DW3 arrest the PW3 in connection with the crime? How did he know the address of PW3 at 22 Meniru Street? It is the view of this court that PW3 was at the scene of the crime as narrated in his evidence. He was first arrested by the accused persons after the shooting of the deceased, Edwin Ugwu. He was later released that day, but not until after the accused persons had accompanied him to his house or his friend’s house at 22 Meniru Street, Awkunanaw. He was warned to keep his mouth shut over the incident that led to the killing of Edwin Ugwu the deceased. It is still not clear to this court why the PW3 was detailed to investigate the matter in which he was involved. The accused persons stated that the purpose of the investigation was to find and arrest the fleeing robbers they had exchanged fire with on 14/8/98. But it is clear from the investigation of DW3, Exhibit R, that the whole purpose of the investigation was a cover-up of the circumstances and event leading to the death of the deceased.”
The appellant raised no ground in this appeal complaining about this holding. This means he had accepted it as correct.
The Police officers also collectively refused to disclose the identity of the particular person amongst them that shot the deceased and even denied the obvious fact that one of them (the appellant) picked the empty shell of the bullet fired against the deceased. The trial court held that- “The accused person no doubt knew whose bullet amongst them hit the deceased but decided to tie their fate together, to rise and fall together as it were. Even the empty shell said to have been recovered on the ground at the scene of crime was denied by the accused persons. It was therefore not possible for the investigators to embark upon inquiry as to the actual person amongst the accused persons who shot the deceased. The accused persons acted in concert.”
This case highlights a gross abuse of the police crime prevention patrol mechanism.
It is therefore important to call to mind that the crime prevention patrol is a very useful crime prevention mechanism. It is one of the police operational strategies for responding to acute demands for crime control and prevention in the community. There is no doubt that the Police crime prevention Patrol is aimed at eliminating opportunity for the commission of crime. It involves walking or driving around the area and keeping a look out for potential problems.
It purports to increase police presence in areas of expected crime in order to act as a deterrent. The notion behind such patrol is that it prevents and deters crime. It is often adopted as a measure of community caretaking functions of the police which include the duty to reduce the opportunities for the commission of some crimes.
Generally, the objectives of preventive patrol include, deterrence of crime, apprehension of criminals, satisfaction of the public demands for services related to crime, development of a sense of security and confidence in the law enforcement agency and recovery of stolen property. There is no doubt that the more random patrol a community receives, the more a perceived omnipresence of the police will deter crime in public places and enhance public assurance of their security.
As useful as this crime prevention scheme is, it can become a danger to the very society it seeks to protect if it is not conducted according to the constitution and other laws of the land. The fact that police officers are at any time engaged in any crime prevention activity including city patrol is no excuse or justification for the officers to be lawless and destroy the lives and properties of any person in the community. Crime prevention and control is law enforcement. You can only validly and effectively enforce law through compliance with law. The need for rule of law is more acute in the area of law enforcement, as it always involves the restriction of the rights of persons. In any case compliance with law by investigative and prosecuting officers is the best indicator of an efficient, effective, fair and transparent criminal process.
The police power of crime prevention, detection and control has scope. The scope is defined by law. The law defines how the power shall be exercised both in ordinary times and during situations of emergency. A situation of emergency does not exist because police officers are searching for persons suspected of having committed or about to commit or committing crimes like armed robbery or other very serious crimes or searching properties suspected to be connected with a crime.
A state of emergency is a legal order that can only exist when the president of the Federal Republic of Nigeria proclaims it in exercise of his power under S.305 of the 1999 constitution of Nigeria. I have bordered to make this clarification because of the submission of Learned counsel for the appellant that “If the accused persons being policemen and being entitled to carry guns and use these in emergency or perceived emergency how can arriving at the “so called hide out with guns” constitute unlawful purpose. It is submitted that much more was required than the scenario just mentioned.” On 14-8-1998 Enugu city was not in a state of emergency. The mere fact that a place has become a hot spot of the recurrence of a particular crime does not turn it into a state of emergency. There may be situations of urgent need for Police intervention, quick or timely arrival to a crime scene or rapid response to forestall commission of a crime or arrest those committing a crime or who have committed a crime or to recover stolen property.
In any case the idea of a state of emergency provided for in S. 305 of the 1999 constitution does not mean a state of lawlessness or anarchy. It is a situation that requires extraordinary measures to avoid breakdown of public order and public safety in the country or any part thereof.
The police crime prevention patrol team must understand that it is carrying out policing functions of crime, detection, control and prevention and that in doing so it must scrupulously adhere to the constitution and other laws of Nigeria. The fact that officers are on crime prevention patrol is no license for the officers to become lawless and invade the privacy of persons and their homes in disregard of the law or unlawfully kill anybody in the name of being on patrol. The appellant and his fellow police officers in that patrol team turned themselves into a killer squad. They killed Edwin Ugwu and were about killing PW3 to cover their killing of Edwin Ugwu. PW3 was saved by God’s intervention through the appellant.
It is clear from the foregoing that the appellant with other members of the police patrol team agreed to invade the house of the native doctor, invaded the house and in the process one of the officers shot and killed Edwin Ugwu. He is equally liable for the killing of Edwin Ugwu as if he had himself shot and killed Edwin. The trial court was right to have convicted him for the offence of manslaughter on account of the killing of Edwin Ugwu in the light of S. 5 of the Criminal Code Law Cap 36 vol. II Revised Laws of Anambra State 1991 which provides that- “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
As I had stated herein there is no ground of this appeal against the holding of the trial court that the police officers “in doing what they did they aided each other in the reckless act and the subsequent attempt to cover the reckless act.” This means that the appellant accepted the holding as correct. If the appellant aided the reckless killing of Edwin Ugwu, then by virture of S.4 (1) (d) of the Criminal Code Cap 36 vol. II Laws of 1991 Revised Law of Anambra State, he is deemed to have taken part in committing the offence and to be guilty of the offence. The said provision states thus- “When an offence is committed, each of the following person is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say- any person who counsels or procures any other person commit the offence. In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.”
On the whole, I resolve the sole issue for determination in this appeal in favour of the respondent. The appeal lacks merit. It is accordingly dismissed. I affirm the judgment of the High Court of Enugu State in criminal case No E/3C/99 including the conviction and sentence of the appellant therein.
ADZIRA GANA MSHELIA, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Agim, JCA and I agree with him that the appeal is without merit. I dismiss this appeal and the conviction and sentence passed on the appellant by High Court Enugu State on 30-04-2007 are hereby affirmed.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
Appearances
Dr. Z. Chukwuemeka AnyoguFor Appellant
AND
For Respondent
