Charles Egbirika Vs. The State (2014)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division (the lower court) delivered on 29th April 2009 dismissing the appellant’s appeal and affirming the conviction and sentence passed on him by the High Court of Ogun State of Nigeria, sitting at Abeokuta (the trial court) delivered on 30th March, 2005.

The appellant was arraigned before the trial court on 7/6/2003 on a single count of manslaughter contrary to Section 235 of the Criminal Code Law Cap. 29 Laws of Ogun State of Nigeria 1978. He pleaded not guilty to the charge. At the trial the prosecution called four witnesses. The appellant testified on his own behalf and did not call any witness. In a considered judgment delivered on 30/3/2005 the trial court found the appellant guilty of manslaughter and sentenced him to five years imprisonment. He was dissatisfied with the decision and appealed to the lower court, which court on 29/4/2009 affirmed the conviction and sentence and dismissed the appeal. Still dissatisfied the appellant has appealed to this court vide his notice of appeal filed on 14/7/2009 containing two grounds of appeal. The grounds of appeal shorn of their particulars are:

1. That the learned Court of Appeal erred in law and in fact and thereby occasioned a miscarriage of justice when it upheld the decision by the learned trial court convicting the appellant of the offence of manslaughter and sentenced him to 5 (five) years imprisonment with hard labour without taking proper consideration of the prevailing circumstances and thereby failing to properly consider the defence of accident proffer (sic) by the appellant.
2. The learned Court of Appeal erred in law in upholding the conviction of the appellant of the offence of manslaughter when it held that the doubt arising from the prosecution’s case at the trial court amounted to “fanciful possibilities” and thereby failed to resolve the doubt as to how the appellant’s service rifle discharged in favour of the appellant.

Pursuant to an order of this court made on 29/4/2010 the appellant was granted leave to argue a fresh issue on appeal. However, he did not file a separate ground of appeal to cover the issue. Nor did he file an amended Notice of Appeal incorporating the fresh issue. I shall comment on the implications of this procedure anon.

The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. OLAKUNLE AGBEBI ESQ. settled the appellant’s brief filed on 19/5/2010. Therein he distilled two issues for determination:

1. Whether the prosecution proved a case of manslaughter against the appellant sufficient to warrant a conviction by the trial court (Grounds 1 & 2)
2. Whether the incident of the night of the 10th of November 2002 involving the deceased and his cohorts did not amount to an incident of riot as envisaged by Section 33 (2) of the Constitution of the Federal Republic of Nigeria 1999 the effect of which absolves the appellant completely considering the circumstances of the case (Ground 1)

The respondent also formulated two issues for determination in its brief of argument filed on 22/10/10 and settled by AKIN OSINBAJO ESQ” the erstwhile Hon. Attorney-General of Ogun State. They are almost identical to the issues formulated by the appellant. I do not deem it necessary to reproduce them. At the hearing of the appeal on 24/10/2013 OLAKUNLE AGBEBI ESQ. adopted and relied on the appellant’s brief and urged the court to allow the appeal, set aside the conviction and sentence of the appellant and enter a verdict of discharge and acquittal. ABIMBOLA AKEREDOLU ESQ” the Hon.Attorney General of Ogun State adopted and relied on the respondent’s brief and made some brief submissions in further adumbration of the arguments therein. They will be addressed as appropriate in the course of the judgment. She urged the court to dismiss the appeal.

Before going into the merits of the appeal, it is necessary at this stage to consider the issues for determination formulated by the appellant. At a glance, it can be seen that two issues have been formulated from Ground 1 of the notice of appeal. In respect of issue 2 above, learned counsel for the appellant stated thus at page 26 paragraph 7.03 of his brief:

“My Lords, although this argument was proffered at the court below as a separate ground of appeal, it was not considered because the appellant did not seek leave to raise a fresh issue on appeal. The appellant herein has however sought leave to argue this issue as a fresh issue arising from Ground I of the grounds of appeal now before your Lordships.”

The application referred to was granted on 29/4/2010. The appellant was given 21 days to file a fresh notice of appeal. It was duly filed on 19/5/2010. It is identical to the original notice of appeal referred to earlier. It is worthy of note that the appellant’s Issue 2 for the determination of the appeal is derived from particular (b) Under Ground 1 of the notice of appeal. Ground 1 in its entirety reads:

“Ground One

That the learned Court of Appeal erred in law and in fact and thereby occasioned a miscarriage of justice when it upheld the decision of the learned trial court convicting the appellant of the offence of manslaughter and sentenced him to 5 (five) years imprisonment with hard labour without taking proper consideration of the prevailing circumstances and thereby failing to properly consider the defence of accident proffer (sic) by the appellant.

Particulars of Error

a. The learned Court of Appeal did not consider the fact that the appellant was carrying out his lawful duty and was in lawful possession of the firearm which accidentally discharged while the appellant was in hot pursuit of the deceased to arrest him.

b. The learned Court of Appeal failed to consider the fact that the facts stated in paragraph (a) above occurred moments after a report of a person being in possession of firearms had been investigated by the team of police men including the appellant. It is the evidence of all the witnesses that some of the individuals (especially one of those involved in the firearms allegation investigated by the appellant PW1 and their colleagues) perpetuated physical assault on the appellant and his colleagues in the performance of their lawful duty and conducted themselves in a riotous manner by hauling missiles at the policemen (including the appellant) at about 11.00 pm in the night.