Ameh Richard V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

The Appellant herein, a Police Corporal and one Corporal Akinyede Olaiya were jointly arraigned before the High Court of Ekiti State on the 31st day of October, 2012; charged with the murder of Ipinlaye Michael and Faluyi Ayo Kehinde respectively at Kota, Omuo-Ekiti on the 23rd March, 2011.

They pleaded not guilty to the charge. During the trial, three witnesses testified for the prosecution and sixteen (16) documents were tendered in evidence and admitted as exhibits. The Appellants and the co-accused each testified in his defence and one witness was called in their joint defence.

At the end of the trial and in a reserved and considered judgment, Adesodun, J, found the Appellant and his co-accused guilty as charged. His Lordship convicted and sentenced each of them to death by hanging.

Being aggrieved with the decision of the lower court, the Appellant, who was the 1st accused at the lower court has brought this appeal. His notice of appeal at Pages 157 – 162 filed on the 9th April, 2013 contains four (4) grounds of appeal which I reproduce hereunder without their particulars as follows:-

1. That the lower court erred in law when it convicted the Appellant for the offence of murder without having recourse to the non-existence of motive or mens rea as an essential ingredient for the commission of such grievous offence.
2. That the lower court erred in law when it proceeded to convict the Appellant speculatively without establishing that it was indeed bullets emanating from the Appellant’s gun that actually killed the deceased victims of the fatal incident of 23rd March, 2011 at Omuo-Ekiti, Ekiti State.
3. That the lower court erred in law when it ignored the relevance of over-whelming testimonies of the 2 accused persons when they testified that 2 identification parades were conducted on 8th April, 2011 and 12th April, 2011 and wherein the 2 accused persons were not identified as the perpetrators of the shooting that led to the death at Omuo-Ekiti on that fateful day in the 1st instance, that is, the identification parade of 8th April, 2011, while the 2nd identification parade of 12th April, 2011 had only the Appellant being identified as the shooter.
4. That the judgment of the lower court is against the weight of evidence.

Parties filed and exchanged briefs of argument. Mr. Gerald Ugochukwu Abonyi, learned Counsel for the Appellant, who also settled the Appellant’s brief of argument formulated five issues for determination of the appeal. At the hearing of the appeal on the 22nd of October, 2013, it was pointed out to the learned Counsel for the Appellant that it was inappropriate to formulate more issues for determination than the number of the grounds of appeal. Before the adoption of the Appellant’s brief of argument, learned Counsel withdrew the 5th issue for determination of the appeal. He therefore relied on issues 1 – 4, which I reproduce hereunder as follows:-

1. Whether the trial court was right in convicting the Appellants for the offence of murder when it was apparent from the facts of the case and the totality of evidence adduced at the trial that the Appellant was on official assignment to the scene of conflict where the offence of murder was eventually committed.
2. Whether the death of the victims in the afore-charge proffered against the Appellant cannot be described as collateral damages and excusable homicide instead of felonious homicide.
3. Whether the lower court was right when it proceeded to convict and sentence the Appellant to death for the offence of murder without forensic certification and confirmation on the particular bullets that killed the victims and the guns they emanated from.
4. Whether the lower court was right in the evaluation of the identification parade so conducted to determine the Police Officers that shot at the victims of alleged homicide.

For record purpose, I reproduce hereunder the 5th issue for determination that was withdrawn at the hearing of the appeal thus:-

“4.5 Whether the judgment of the lower court is not against the weight of the evidence adduced at the trial even in the light of the fact that they (the Appellant) and other police officers were in lawful performance of their duties).”

The Respondent formulated four issues for determination of this appeal. They read as follows:-

1. Whether the lower court was right in convicting the Appellant for the offence of murder without proof of motive or mens rea by the prosecution.
2. Whether the lower court was right in convicting the Appellant for the offence of murder in the absence of any forensic evidence that it was the bullets emanating from the Appellant’s gunshot that killed the deceased.
3. Whether the lower court was right in relying on the identification of the Appellant as the shooter of the deceased based on the identification parade conducted on 12th April, 2011.
4. Whether the lower court, upon the totality of evidence adduced rightly found the case against the Appellant proved beyond reasonable doubt.

Learned Counsel for the Appellant filed a reply brief on the 17th September, 2013, in which he replied to the four (4) issues formulated and argued by the learned DPP.

At Page 5 Paragraph 5.1, Mr. Abonyi, learned Counsel for the Appellant sought for leave to argue issues 1, 2 and 5 together. Learned Counsel went on to argue the three (3) issues together. Having withdrawn the 5th issue for determination of this appeal, it follows therefore that the argument canvassed on the withdrawn issue stands discountenanced. See: KHALIL V. YAR’ADUA (2003) 16 NWLR (Pt. 847) 446 at 482 PARAGRAPH E, where this Court, per Aloma Mukhtar, JCA (as she then was) said:-

“Likewise arguments covering issues that are struck out should be discountenanced, as they have no foundation to stand on. That is the position of the law.”

The burden I have now is to separate the argument in support of the 5th issue for determination of the appeal from the argument in support of the 1st and 2nd issues that were argued together with the 5th issue. Since it is a criminal case with the Appellants life on the line, I cannot jettison those arguments in support of issues 1 and 2 because of the difficulties in carrying out surgical operation to separate the two arguments.

Having come to the conclusion that the argument in respect of the 1st and 2nd issues are identifiable, I will now determine this appeal on the basis of the four (4) issues formulated by the Appellant as they are similar to the four (4) issues formulated by the Respondent.