Ex Cpl Ikechukwu Nwabueze V. The People Of Lagos State (2018)

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MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 22nd day of November 2013 setting aside the appellant’s conviction and sentence for murder contrary to Section 316(3) of the Criminal Code Cap 17 Laws of Lagos State 2003 and substituting in its place a conviction and sentence for manslaughter contrary to Section 317 of the same code.

Respondent’s case at the Lagos State High Court, hereinafter referred to as the trial Court, is that the appellant, a policeman, on the 5th April 2009 shot and killed three year old Kafusara Muritala. Along with four other police officers, the appellant was deployed to Obanle-Aro/Mr. Biggs axis of Ketu Alapere, in Lagos, to prevent criminal activities of hoodlums. The team mounted a check point at the black spot. On the fateful day, PW1 Muritala Saliu, his wife, the deceased and some other passengers were being conveyed by one Saheed in a Nissan Sunny Saloon car towards Mile 12 from a naming ceremony in a friend’s house. At about twelve meters from the check point and soon after the sound

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of a gunshot, Kafusara’s mother on noticing the deceased had slumped raised alarm.

PW1, the deceased’s father, the vehicle having stopped, carried the deceased back to the check point shouting profusely that the police had killed his daughter. Further to the complaint lodged on the incident and the investigation conducted thereon, the appellant, who had confessed shooting at the tyres of the vehicle in which the family of the deceased were being conveyed, was arraigned, convicted and sentenced to death for the murder of the deceased.

Dissatisfied, the appellant appealed to the Court of Appeal Lagos Division which decision of 22nd November, 2013 allowed the appeal in part.

Still aggrieved, the appellant has further appealed to this Court on a notice filed on 16th December, 2013 containing ten grounds.

At the hearing of the appeal counsel identified, adopted and relied on parties respective briefs of argument. At page 3 of the appellant’s brief of argument settled by Emmanuel Umoren Esq and deemed duly filed and served on 11th January, 2018 the six unnecessarily prolix issues distilled read: –

“1. Whether from the facts and circumstances

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of this case, the Court of Appeal was right to hold that the deceased died of gunshot and the failure of the Respondent to tender the post mortem report was not fatal to its case. (Ground 2).

2. Whether from the facts and circumstances of this case, the Court of Appeal was right in law to convict the Appellant for the offence of manslaughter. (Grounds 7 and 8).
3. Whether in a murder charge which attracts capital punishment, the Court of Appeal was right to ignore and or fail to consider the various defences open to the Appellant or raised by the Appellant. (Grounds 1 and 4).
4. Whether from the facts and circumstances of this case, the Court of Appeal denied the Appellant his constitutional right to fair hearing. (Grounds 3 and 5)
5. Whether the Court of Appeal was right when in sentencing the Appellant, it refused to follow the binding decision of the Supreme Court in OMINI V. STATE (1999) 12 NWLR PART 630 PAGE 168. (Ground 9).
6. Whether from the facts and circumstances of this case, the Court of Appeal was right to sentence the Appellant to life imprisonment for the offence of manslaughter. (Grounds 6 and 10).”

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The four issues formulated at pages 2-3 of the respondent’s brief as having arisen for the determination of the appeal are:-