Chika Enyinnaya V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

Samuel Adukwu, Chika Enyinaya, Paul Ojoma (appellants herein) and Paul Eze were accused of murder of one Edwin Ugwo. By information dated 6-6-1999 and filed on 9-6-99, criminal proceedings were commenced in criminal case No. E/3C/99 against them at the High court of Enugu State in the Enugu Judicial Division at Enugu, charging them together with one count of murder as follows-

STATEMENT OF OFFENCE

“MURDER contrary to Section 274(1) of the Criminal Code Cap 36 Vol. 1 Laws of Anambra State of Nigeria,1986 applicable in Enugu State of Nigeria.

PARTICULARS OF OFFENCE

Samuel Adukwu, Chika Enyinnaya, Paul Ojoma and Paul Eze on or about the 14th day of August 1998 at Enugu in the Enugu Judicial Division Murdered one EDWIN UGWU.”

The prosecution elicited evidence through four witnesses. All the accuses testified in their own defence. The 4th accused also elicited further evidence through one witness. Following the close of the evidence by the defence counsel to all the accuseds and the prosecuting counsel filed and adopted written addresses. On the 30th April 2007, the trial court rendered judgment convicting each of the accused of manslaughter and sentenced each of them to 10 years imprisonment. Dissatisfied with this judgment, each accused filed a separate notice of appeal against the said judgment.

The notice of appeal dated 4-7-2007 and filed on 6-7-2007 by the 2nd accused commenced this appeal No. CA/E/409/2007.

The appellant filed his brief of argument on 22-10-2008. Following the failure of the respondent to file its brief of argument, this appeal was heard on the appellant’s brief alone on 16-1-2014 after this court satisfied itself that the respondent had been served with all process in this appeal. Learned Counsel for the appellant on the said date adopted the appellant’s brief of argument.

The appellant in his brief of argument has raised the following issues for determination in this appeal.

1. Whether the presence at the scene of crime, in the circumstance of this case constituted sufficient participation by the appellant in the commission of that crime.
2. Whether the guilt of the appellant was established as required by law?
3. Whether the conviction of the appellant, based on facts not proved, is not perverse; thereby occasioning a miscarriage of justice.

I prefer to coalesce these issues into one, namely, whether the conviction of the appellant by the trial court was right.

Learned counsel for the appellant argued that the mere presence and callousness of the 2nd accused at the scene of a crime did not as a matter of law render him guilty of the crime. Learned Counsel then submitted that “For the appellant, who was engaged in the lawful duty of crime detection and prevention and who was in company of his colleagues in the force of similar rank to be held liable for the crime found committed, there must be clear evidence that either prior to or at the time of, the commission of the offence, the appellant did something or omitted to do any act, Such as aiding or abetting within the purview of Section 7 of the Criminal Code to facilitate the commissioner of the offence”

Learned Counsel for the appellant argued that the extra-judicial Statement of DW1 that it was the appellant’s gunshot that killed Edwin Ugwu is contradicted by his testimony in court that he cannot say whose gunshot killed Edwin Ugwu.

He then submitted that the said extra judicial statement and testimony in court should be disregarded as unreliable. Another argument of Learned Counsel for the appellant is that “When the trial judge held at page 216 (40) “that the accused persons no doubt knew whose bullet amongst them hit the deceased but decided to tie their fate together, to rise or fall together”, the trial judge purported to fix guilt on the perceived action of the accused persons, including the appellant herein, after the alleged crime had been committed. However the accused person did mention the name of the person who shot the deceased and this evidence was accepted by PW4 and DW4.