Sgt. Desmond Ezeja Vs The State (2008)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal against the judgment of the Court of Appeal Jos Division delivered on 9th November, 2004, dismissing the Appellant’s appeal against his conviction and sentence by the High Court of Justice Benue State, Makurdi in its judgment of 7th August, 1998. Although from the record of appeal it is shown that there are two appellants in this matter, the contents of the Notice of appeal, the appellant’s brief of argument, the respondent’s brief of argument, and the appellant’s Reply brief, are quite clear that there is only one appellant in this appeal. Reference to him in these Court processes as the “1st appellant” when there is no appeal by the 2nd appellant before this Court, is therefore a misnomer. Sgt. Desmond Ezeja is the only party seeking reliefs in this appeal as the appellant. Therefore in this judgment, I shall continue to refer to him as such.

The appellant was a Police Officer attached to the Rural Police Station at Daudu in Goma Local Government Area of Benue State. On 11th January, 1997, the Appellant together with other Police Officers were deployed by the Rural Divisional Police Officer on a ‘stop and search duty’ along Daudu lkpiam Road. The appellant was, at the time of this deployment, armed with a Chief Revolver Pistol and six rounds of 33mm aminunition. While on duty, the Appellant stopped a pick-up vehicle driven by one Emmanuel Yaga. Other passengers in same vehicle were Cyprian Okpala and Chia Dio. The appellant and his colleagues demanded N30.00 from the driver of the pick-up who offered N20.00. This was rejected by the Appellant. When the driver of the pick-up vehicle attempted to forcefully drive away from the check point, the Appellant fired his pistol at the vehicle and hit one of the passengers, Cyprian Okpala on his buttock above the right thigh resulting in an injury. Angered by the action of the Appellant, the driver wrestled the pistol from the Appellant and drove to Daudu Police Station and reported the incident. Not satisfied with the way the Police at the Station were responding to the complaint, especially when no attempt was made to take the injured Okpala to the hospital, the driver left the Police Station and headed to Makurdi to report at the Police Headquarters. Meanwhile, the Police at the Daudu Police Station sent a radio message to the police Headquarters Makurdi to the effect that the driver of the pick-up vehicle and his passengers were armed robbers who were in possession of a Police Service Pistol seized from the police. On the strength of this information, some Police Officers were detailed to mount road block along Daudu Makurdi road to secure the arrest of the supposed armed robbers and recover the pistol.

When the driver of the pick-up vehicle with his passengers one of whom was injured from the bullet wound caused by the appellant came to the road block, they were arrested by the Police Officers on duty and taken to a spot along Naka Road Makurdi, where the passengers Cyprian Okpala and Chia Dio were shot dead while their driver Emmanuel Yaga, managed to escape.

Following a complaint from the family of late Cyprian Okpala to the Inspector General of Police on the conduct of the Police in causing the death of Cyprian Okpala resulted in investigation into the incident, the Appellant and other police officers involved were charged before the Benue State High Court Makurdi for various offences. The appellant in particular was jointly charged in count 1 with other accused persons with the offence of abetment of culpable homicide under sections 89, 221 and 140 of the Penal Code. In addition, the appellant was also charged separately in counts 5 and 6, with the offences of receiving N20.00 as gratification other than legal remuneration, punishable under section 115 of the Penal Code and voluntarily causing grievous hurt to the late Cyprian Okpala by means of gun shot, punishable under section 248 of the Penal Code.

At the end of the trial, in the judgment of the trial court of 7th August, 1998, the appellant was acquitted and discharged of the offence of abetment of culpable homicide under sections 89 and 221 of the Penal Code but was found guilty and convicted of the offence under Section 140 of the Penal Code in count 1 of the charge and sentenced to three months imprisonment and fine of N40,00. In exercise of the powers of the trial court under section 218 of the Criminal Procedure Code, Cap. 30, Laws of Northern Nigeria, 1963 applicable in Benue State, the trial court also found the appellant guilty of the offence under section 122 of the Penal Code and sentenced him to three years imprisonment in place of the offence under section 115 of the Penal Code originally charged in count 5. In exercise of the same power under section 218 of the Criminal Procedure Code, the appellant was found guilty and convicted of the offence of causing hurt under Section 246 of the Penal Code and sentenced him to three

months imprisonment and a fine of N40.00 in place of the offence of causing grievous hurt under Section 248 of the Penal Code Originally charged in count 6.

Aggrieved with his conviction and sentences by the trial Court, the Appellant appealed to the Court of Appeal Jos Division which after hearing the appeal, dismissed the same and affirmed the decision of the trial Court in its judgment delivered on 9th September, 2004. The Appellant is now on a further and final appeal to this Court on two grounds of appeal from which the following two issues were distilled by his learned Counsel in the Appellant’s brief of argument.

“1. Whether the Court of Appeal properly considered the main issues raised by the 1st appellant in his appeal, particularly as they relate to Sections 122, 246 and 140 of the Penal Code.

2. Whether it was correct, that the Court of Appeal having found that the 1st apellant was wrongly convicted under Section 218 of the Penal Code, would still affirmed his conviction under Section 218 of the Criminal Procedure code on the basis that the said mistake does not amount to miscarriage of justice. ”

In the respondent’s brief of argument filed by the learned Director Public Prosecutions Benue State, two issues were also identified for determination. They are –

“1. Whether the Court below considered (or duly considered) the main issues raised before it by the 1st Appellant.

2. Whether the Court below was correct in holding that the trial Court could and rightly relied on Section 218 of the Criminal Procedure code in convicting the 1st Appellant of lesser offences not withstanding the reference to Section 218 of the Penal Code.”

These issues were introduced by a clear statement from the learned Director of Public Prosecutions in the respondent’s brief of argument at page 1 where she said –

“Having regard to the grounds of appeal filed by the 1st appellant on 10th December, 2004 the following issues arise for determination in this appeal.”

This statement coming right from the beginning of the brief of argument in the second paragraph thereof, affirming that the two issues identified therein arose from the two grounds of appeal filed by the appellant on 10th December, 2004, means that the respondent has no quarrel whatsoever with the grounds of appeal from which the issues were framed. Furthermore, the issues in the respondent’s brief being virtually the same as those formulated in the appellant’s brief of argument, also seem to suggest that the respondent is quite at home with the issues in the appellants brief of argument. Therefore it is difficult to find any reason for the conduct of the respondent’s Counsel in coming up with a preliminary objection to the competence of the grounds of appeal filed by the appellant and the issues arising from them in the appellant’s brief. The noticed of Preliminary Objection raised and argued from pages two to six of the respondent’s brief, is in my view, not properly raised. It ought to have been raised and argued before proceeding to raise issues from the grounds of appeal being attacked. In any case looking at the two grounds of appeal filed by the appellant and the issues formulated from them by both parties, the grounds of appeal and the issues identified from them, are quite competent.