Corporal Livinus Ugwu V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

OLU ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin Division, hereinafter referred to as the court below, delivered on the 4th April, 2008, Coram:- Ibiyeye, Alagoa and Shoremi, JJCA. The court below had substituted the conviction of Manslaughter for that of Murder and a sentence of 20 years imprisonment in place of death sentence by hanging passed on the appellant by the trial court, which had found him guilty as charged.

The facts of the case that led to this appeal are briefly as follows: The appellant had been charged before the Delta State High Court of Justice, Ughelli Judicial Division, Holden at Ughelli on ONE count as follows:

“Murder punishable under Section 319(1) of the Criminal Code Cap 48 Vol. II Laws of the Defunct Bendel State 1976 as applicable to Delta State.

Particulars of Offence

Livinus Ugwu (M) on the 27th day of November, 1997 at Otorwodo, Ughelli in the Ughelli Judicial Division murdered one Solomon Erewhodo.”

Upon his arraignment, the appellant pleaded not guilty to the charge. To prove the charge, the prosecution called six witnesses and the appellant testified in his defence but called no witness.

The case as put forward by the prosecution goes thus:

The appellant, a Police Corporal on the 27th November, 1997 at Otorwodo in the Ughelli Judicial Division of Delta state, shot at and killed one Solomon Erewhodo who died instantly. The appellant admitted in a way that he shot at the deceased and that he died as a result but denied the charge of murder.

He admitted that he made two statements to the police upon his arrest. The said statements were admitted and marked Exhibits A and C. In the first statement – Exhibit A, he stated that the police in which he was one, had confronted a group of armed robbers. In the exchange of gunfire, the Police killed one of the armed robbers while the others escaped. But in his second statement – Exhibit C, the appellant stated that he had been pricked by his conscience to state the truth, which is that the deceased was not an armed robber as there was no armed robbery incident and no cross fire, as earlier portrayed but that the deceased was shot at and killed while attempting to run away after he had jumped down from the police vehicle in which he was being conveyed away. He stated that he made the first statement where he lied, upon the advice of the police.

Clearly, the trial was primarily based on Exhibit C and the oral evidence. At the conclusion of the trial and addresses of counsel, the learned trial Judge in his Judgment delivered on 27th July, 2004 found, inter alia, as follows:

“I am satisfied of the truth of the confession of the accused that he fired at the deceased which act resulted in his death. There is abundant evidence that the deceased died as a result of that shot. Outside the confession of the accused person, PW4 testified that it was the accused that shot the deceased. PW3, Police Sergeant Paul Nwawolor, who recorded the statement Exhibit A from the accused testified that he investigated Exhibit A and found it to be false. This confirmed that there was no armed robbery and no cross fire…… The act of the accused in shooting at the deceased cannot be justified. There is no evidence that the deceased committed any capital offence from which he was escaping. He was not also an armed robber so, the act of the accused cannot be justified…..He acted unlawfully by firing at the deceased and should face the consequences of his action.”

The trial Judge finally found the appellant guilty as charged, convicted and sentenced him to death by hanging. The conviction and sentence led to the appeal to the court below.

Upon consideration of the issues raised in his appeal before the court below, and the record of proceedings, the court below, though found that the deceased, not being an escaping felon, the appellant had no legal authority to shoot at the deceased and kill him. That what he did was certainly in excess of his powers under the law. The court however, reduced the culpability of the appellant and sentence from murder and death sentence to manslaughter and 20 years imprisonment. The appellant was further aggrieved with the decision of the court below and that has led to the instant appeal.