Augustine Nwolisa V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment)

The Appellant and one other person were arraigned before the Imo State High Court Owerri Judicial Division in 2007 charged with offence of murder couched thus:

“STATEMENT OF OFFENCE”

MURDER contrary to Section 319(1) of the Criminal Code Cap 30 Vol.II Laws of Eastern Nigeria 1963 applicable to Imo State.

PARTICULARS OF OFFENCE

BASSEY ASINYA AND AUGUSTINE NWOLISA on the 24th day of December, 2006 at OWERRI JUDICIAL DIVISION murdered one SYLVESTER NNAEMEKA OBIEKA”

The pleas of the two Accused persons were taken on 29th day of June 2007 when each of the said Accused persons pleaded not guilty to the one count charge. The matter proceeded to trial on 12th July, 2007. The prosecution called eight (8) witnesses and tendered 23 Exhibits.

The Accused persons opened their defence on 2nd February, 2010. The 1st Accused gave evidence and called two other witnesses in support of his defence. The Appellant testified for himself and called no other witness.

The relevant facts relating to this matter as can be gathered from the record show that the two Accused persons who were members of the Nigerian Army claimed to be members of Joint Patrol Team with some Police men put in place to checkmate the menace of Armed Robbers within and around Owerri Metropolis.

Their duty post was AVU JUNCTION along Owerri-Port Harcourt Highway. The Accused person claimed that on the day of the said incident, they were at the duty post at AVU JUNCTION but that the Police men who were to be with them did not show up for duty.

The two Accused stated that their Guard Commander later alerted them that some robbers had blocked the road and were operating very close to their duty post. That they were detailed to go and rescue the people being robbed. That they in the processes saw a Jeep and that the people told them it seemed the robbers were in the Car. That the occupant of the Jeep fired at them and that they two fired in the direction of the Jeep.

The 1st Accused stated that he moved near the Jeep and warned the occupant to come along but that the occupant of the Jeep behaved as if he was about bringing out a gun and so he, the 1st Accused aimed his own (1st Accused) gun at the head of the occupant of the Jeep but the bullet from 1st accused gun hit the occupant on his stomach.

When the Police Operation Strike came to the scene it was discovered upon search of the vehicle that the Driver of the Jeep was not an Armed Robber. The 1st Accused later changed the story to that of accidental discharge. That it was a mistake on his part and he had no intention of killing the occupant of the Jeep. The victim did not die on the spot. The 2nd Accused/Appellant in his own statement said he was not the one that shot the deceased but that it was the 1St Accused who did.

Police investigation however revealed that the person shot dead, one Sylvester Nnaemeka Obieka (m) was a Businessman based in America dealing in sale of motor vehicles. He was on 24/12/06 at about 5.20 am driving alone in his Toyota Land Cruiser V8 Jeep, red in Color without registration number along Owerri Port Harcourt Road when the Accused persons intercepted, fired and killed him.