Emmanuel Ayo V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on 23rd July, 2012 in suit No: AK/49c/2010 wherein the appellant was found guilty of manslaughter and conspiracy contrary to sections 317 and 516 of the Criminal Code, Cap 37 Laws of Ondo State 2006 although he had been charged with two others who were at large for conspiracy to commit murder and murder contrary to sections 324 and 319 of the Criminal Code Cap 30, Vol. II, Laws of Ondo state 1978.

The case of the respondent at the Lower Court was that the Chief of Ode-Igele via Ita-Ogbolu reported to the police that the youth of his community found that where the appellant and his colleagues were living, they were fighting. The police went to where the chief said the fight was going on. On reaching the place, the police met the appellant.

There was a corpse wrapped in a sack beside the appellant. The appellant was trying to bury it. Those that were with the appellant ran away when they saw the police. Then the appellant was arrested. The appellant had a cutlass with him. The appellant was asked to identify the corpse. The appellant said it was the body of Ifeanyi who was his colleague.

The police took the appellant to the police station with the remains of the said Ifeanyi. There the police took the picture of the appellant with the corpse beside him. The photographer used a digital camera to take the photograph.

The photographer was not found at the time the trial commenced, so the photographs were tendered through Corporal Obuo Samuel (PW2), admitted and marked Exhibits A and A1. The statement which the appellant purportedly made to the PW2 was admitted in evidence by the Court after a trial within trial but not marked.

When the appellant was transferred from Iju/Ita-Ogbolu Divisional Headquarters to the state C.I.D. Homicide section Akure, the police there took him to the scene of crime.

The statement which the appellant purportedly made at the C.I.D. Homicide Section was rejected by the Lower Court after a trial-within-trial on the ground that it was not voluntarily made.

The photographs which the police at the C.I.D. Homicide Section claimed to have taken at the scene of the crime were tendered only for identification purpose and were marked ID1, ID2 and ID3.

The defence of the appellant in court was that he was returning from work. On his way from where he had gone to work as a labourer, the police arrested him. He asked the police why he was arrested. The police said that someone was killed in the bush. The appellant said he did not know anything about it.

He was taken to the police station. On getting there he saw a corpse on the ground. He was given a cutlass and placed by the side of the corpse and his photograph with the corpse was taken. He was later taken to police headquarters and then to the Court.

After hearing evidence of the two witnesses called by the respondent and the defence of the appellant who testified alone in that regard, the Lower Court convicted the appellant for manslaughter and conspiracy and sentenced him to seven years imprisonment with hard labour.

Dissatisfied with the conviction and sentence the appellant has approached this Court by way of appeal challenging the conviction and sentence upon the following grounds:

(a) the decision of the learned trial Judge is wrong in law because the prosecution did not prove the commission of the offence of manslaughter beyond reasonable doubt against the appellant.