Justin Ekeozor V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice L. O. Okereke of Enugu State High Court delivered on 27/6/2014 wherein His Lordship convicted the Appellant for murder and sentenced him to death by hanging. The facts that led to this appeal are as follows:

?The Appellant was arraigned before the trial Court on information and proof of evidence containing a one-count charge. The Appellant pleaded not guilty to the charge. To prove its case, prosecution called 7 witnesses [P.W.1 to P.W.7) while the accused/appellant testified for himself and called no witnesses.

The undisputed facts are that on the night of the 17th, day of February, 2012, P.W.1 and P.W.2 were on duty with the appellant along Aku Street Ogui New Layout, Enugu when they saw the deceased, Inspector Clement Onwuegbuta walking home through the rail line having concluded his day’s duty at Uwani Police station. The appellant, P.W.1 and P.W.2 who were also on police duty along Aku Street did not have on their police uniforms or anything that identified them as police officers. P.W.2 (D.C.O) told the appellant and P.W.1

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that their day’s duty was over and left to get his personal vehicle to take his team members back to Ogui police station when they; the appellant and P.W.1 sighted the deceased walking through the rail line. P.W.1 noticed the bulge in his waist and the appellant shouted “ojiegbe” meaning “he has a gun”. P.W.1 and P.W.2 ordered him to stop for a check but he (the deceased) started running away. P.W.1 wanted to grab the deceased but could not as he pushed him away and kept running. The appellant out ran P.W.1 and just a few poles to Edinburg Enugu Round about, alleged that the deceased pulled out his gun.

The appellant then aimed his pistol at him and fired three shots. Insp. Clement Onwuegbuta (deceased) still managed to keep running despite the shots and the appellant pursued him until the deceased fell down at Edinburg function Enugu. P.W.1 caught up with the appellant where he was standing after releasing the gunshots at the deceased. Meanwhile, P.W.2 (D.C.O) left his vehicle as soon as he heard the gunshots, ran to the point where both the appellant and P.W.1 were standing and asked the two who fired the shots. The appellant told P.W.2 that he shot the

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deceased. P.W.2 disarmed the appellant, ran to where the deceased had fallen and found him dead. P.W.2 searched his body and recovered a police Bereta Pistol in the gun hose tied to the deceased’s waist and police identity card bearing the name Inspector Clement Onwuegbuta. P.W.2 then alerted Ogui Divisional Police Officer [D.P.O] who sent a police van that took away the deceased. The appellant P.W.1 and P.W.2 made statements both at Ogui police station and State C.I.D. At the close of trial, the trial judge convicted the Appellant of murder and sentenced him to death accordingly.

Dissatisfied with the judgment of the trial Court, the appellant initiated this appeal by a Notice of Appeal filed on 13/8/2014 containing four grounds of appeal and transmitted records on 18/5/2015.The appellant’s brief was filed on 28/5/2015 and deemed filed on 16/11/2015. Amended Notice of Appeal was filed on 28/5/2015 with four grounds of appeal and deemed filed on 16/17/2015. The respondent’s brief was filed on 16/11/2015.

In the appellant’s brief settled by B.C Nwobodo with him V. O. N. Ngene, four issues were identified for determination as follows:

1. Whether

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the learned trial judge was right to have avoided the defence of provocation he raised and considered suo motu without due consideration of the evidence of the accused/appellant on how his shooting of the deceased was provoked.

2. Whether it is legal for the trial judge to speculate on the evidence before him or canvass issues or hypothetical evidence not raised at the trial as if he was holding brief for the prosecution.
3. Whether the trial judge was right to have rejected and voided the plea of self defence raised by the accused/appellant when regard is had to the unimpeachable evidence before the Court that he was “afraid” and fired the deceased when he pulled his gun at him.
4. Whether in a criminal case a trial judge is required to resolve a doubt hovering on the case before the rendition of his judgment against the accused/appellant.

In the respondent’s brief settled by Dr. Anayo Edeh with him C. N. Avah, two issues were identified for determination as follows: