CPL. Livinus Ugwu V. The State (2008)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the judgment of R.P.I. Bozimo CJ of the High Court of Justice, Asaba, Delta State in charge No. VHC/9c/98: The State v. Livinus Ugwu, delivered on the 27th August, 2004 in which the accused person was charged, tried, convicted and sentenced to death by hanging on a one count charge of murder punishable under section 319(1) of the Criminal Code Cap 48 Vol. II, Laws of the defunct Bendel State of Nigeria 1976 as applicable to Delta State. The one count charge under which the accused now Appellant was charged reads as follows:

“Livinus Ugwu (m) on the 27th day of November, 1997 at Otorwodo, Ughelli; in the Ughelli Judicial Division murdered one Solomon Erewhodo”. The prosecution called six witnesses while the appellant testified in person in his own defence. The brief facts of the case culminating in this appeal are that the appellant, a police Corporal on the 27th November, 1997 at Otorwodo in the Ughelli Judicial Division of Delta State, shot and killed one Solomon Erewhodo who died instantly. The appellant while admitting to the killing of the deceased, however denied the charge of murder. He gave two statements to the police which were admitted as exhibits ‘A’ and ‘C’, In exhibit ‘A’ the police had a confrontation with a gang of armed robbers and the resultant exchange of gun fire, killed one robber while the other robbers escaped. In exhibit ‘C’ he said he had been pricked by his conscience to admit that the deceased was not an armed robber as no armed robbery operation took place and that the deceased was killed while trying to run away after jumping down from the police vehicle that was conveying him. The trial was premised on exhibit ‘C’ and the evidence given therein exhibit ‘A’ having been jettisoned by the appellant. At the conclusion of trial and after addresses of counsel, the learned trial Judge in her judgment delivered on the 27th August, 2004 held that a case of murder had been made out against the accused and found him guilty as charged, She accordingly sentenced him to death by hanging, These are the brief facts upon which this appeal is predicated, The appellant filed a Notice of Appeal dated the 9th August, 2004 but filed on the 16th August, 2004 consisting of two grounds of appeal. Subsequently the Appellant by a motion on Notice dated the 1st December 2000 and filed on the 17th January, 2006 obtained the leave of this court on the 27th March, 2006 to amend his Notice of Appeal to incorporate additional grounds and to argue same. The Amended Notice of Appeal is reproduced here under as follows:

“AMENDED NOTICE OF APPEAL

TAKE NOTICE that the Appellant herein being dissatisfied with the decision of the High Court of Delta State, Holden at Asaba, delivered by the Honourable Justice R.P.I. Bozimo., CJ on the 27th day of July, 2004 doth hereby appeal to this Honourable Court upon the grounds more fully stated in paragraph 3 of this Notice of Appeal and seeking the reliefs stated in paragraph 4 of this Notice of Appeal.

AND FURTHER TAKE NOTICE that the person directly affected by this appeal is as stated in paragraphs 5 of this Notice of Appeal.

2. PART OF THE DECISION OF THE TRIBUNAL APPEALED AGAINST whole Decision.
3. GROUNDS OF APPEAL GROUND 1

The learned trial Chief Judge erred in law in trying, convicting and sentencing the Appellant on a charge unknown to law, thereby rendering the entire criminal proceedings a nullity having grossly breached the Appellant’s constitutionally guaranteed fundamental right to fair hearing as enshrined in Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999.

PARTICULARS OF ERROR IN LAW

a. There is no offence known to law called “murder” under section 319(1) of the Criminal Code, Cap 48 Vol. II Laws of the defunct Bendel State 1976 as applicable to Delta State.

b. The offence cited as “Murder Punishable under section 319(1) of the criminal code cap 48 vol. 11 Laws of the defunct Bendel State 1976 as applicable to Delta State” is not defined in the said section 319(1) of the Criminal Code Cap. 4S vol. 11 Laws of the defunct Bendel State 1976 as applicable to Delta State.

c. That count of “murder punishable under section 319 of the Criminal code cap 48 vol. 11 Laws of the defunct Bendel State 1976 as applicable to Delta State” is unspecific, imprecise and bereft of definition of the offence as charged.

d. There is no specific conduct of the Appellant capable of being precisely matched with any elements of the offence charge to determine this guilt, not having been defined in section 319(1) of the Criminal Code Cap. 48 vol. 11 Laws of the defunct Bendel State 1976 as applicable to Delta State.

e. The decision of the lower court complained against is Unconstitutional null and void.

f. The decision of the lower court complained against has occasioned a grave miscarriage of justice.