➥ CASE SUMMARY OF:
Chika Enyinnaya V. The State (CA/E/409/2007, 28 Mar 2014)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Murder.
➥ CASE FACT/HISTORY
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.
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.
On 14-8-1998, PW3 accompanied Late Edwin Ugwu to the house of one Chibuike, a herbal medical practitioner (native doctor) at Top Land Area, Amechi village, Awkunanaw, along Enugu-Port Harcourt Express way, Enugu, to collect herbal medicine for the sick mother of Late Edwin Ugwu. While the duo were in Chibuike’s house, a team of plain clothes Police officers arrived and started shooting indiscriminately. The persons in Chibuike’s house including PW3 and Late Edwin Ugwu started running out of the house fleeing from the Police officers. PW3, to avoid being hit by a bullet, dived to the ground and laid face down. One of the members of the Police patrol team shot Edwin Ugwu on the back of his head killing him on the spot. PW3 who was lying face down did not see who amongst the officers shot the deceased. When the officers realized one of them had shot and killed Late Edwin, they quarreled amongst themselves condemning the killing. The police officers however refused to identify who amongst them shot the deceased. The officers took the corpse of Edwin Ugwu and PW3 in their car away from the scene of the incident. Sgt Samuel Adikwu, the appellant, Sgt Paul Eze and Sgt Ogiri Onwe agreed and insisted that they should kill PW3 to cover up the killing of Edwin Ugwu and avoid problems. Sgt Chika Enyinnaya objected that he should not be killed and that he would not reveal anything about the incident. After extracting, under threat, a promise from PW3 not to reveal the truth of what happened they let him go. They took the corpse away and reported to their superior, the Commissioner of Police that he was a fleeing armed robber that was shot by them during exchange of gun fire between them and a gang of robbers. Apart from the members of the Police Patrol team, PW3 was the only eye witness of the events of 14-8-1998 at the native doctors house.
➥ ISSUE(S)
I. Did the evidence before the trial Court establish that the appellant shot and killed Edwin Ugwu?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE POLICEMEN ACTED RECKLESSLY AND IN AN UNLAWFUL MANNER
‘Since all the Officers were shooting indiscriminately at the persons who were running from them, it is obvious that it remains uncertain whose gunshot hit and killed Edwin Ugwu. Since there is no evidence showing that it was the appellant that shot the deceased, it becomes necessary to find out if the conviction of the appellant was correct in Law or is there anything in the evidence before the trial court that rendered him liable for the shooting of late Edwin Ugwu by another member of the Police patrol team.’
‘It is the view of this court that nobody informed the accused person of any robbery operation in the area on 14/8/98. The accused persons were on patrol. One of them, probably the 3rd accused, told them he knew of a hide-out at Awkunanaw. They went to Awkunanaw Police Station, booked and proceeded to the place led by the 3rd accused. They were in mufti. On getting to the place they parked their car and continued on foot. On getting to where the deceased and PW3 were they released gun shots. The deceased turned to run away. But he was hit by a bullet from the back of his head. He fell to the ground and died. There was no exchange of gun fire between the accused persons and anybody. The accused persons quickly realized their blunder. They apprehended the PW3 who was there, put the body of the deceased and PW3 in their car and left the place. None of the items handed over to Makurdi Police by the 3rd accused when Makurdi Police took over the investigation was recovered at the scene of the incident. The accused gathered them to support their bogus story of encounter with robbers. The locally made pistol was not recovered from the pocket of the deceased as claimed by accused persons… The story of the accused persons that they recovered the pistol from the pocket of the deceased was rather funny. The question is, if indeed the deceased was exchanging gun fit with the accused persons as claimed by the accused persons, how come the gun was found in the pocket of the deceased when he was hit. Did he put his gun into his pocket after he had been shot and was dying? One would have expected his gun to fall away from his hands.’
‘I am minded to agree with the trial court that the police officers veered off their lawful duty of patrolling the city to prevent and control crime, by going to the native doctors house. The officers (including the appellant) agreed and thereby formed the common intention to invade the house. I do not agree with the argument of Learned counsel for the appellant that the accused persons being policemen and being entitled to carry guns and use in emergency or perceived emergency, their going to the “so called hide out with guns” cannot constitute unlawful purpose. He submitted that much more was required than the scenario just mentioned.” Learned Counsel failed to educate this court on the “much more” that was required to constitute the invasion of the house of the native doctor an unlawful purpose. In the light of these holdings it cannot be validly argued that there was an emergency or a perceived emergency or any reason at all that rendered lawful the invasion of the native doctor’s house by the police officers. The invasion of the house of the native doctor (Chibuike) is unlawful as it violates his fundamental human right to the privacy of his person and his home guaranteed him by S.37 of the 1999 Constitution of Nigeria. The only permitted derogation from this right is one provided for in a law in the interest of defence, public safety, public order, public morality or public health, or for the purpose of protecting the rights and freedom of other persons as required by S. 45(1) of the same 1999 Constitution of Nigeria. Privacy at its most fundamental level is the right to be left alone. This suggests that a zone surrounds every individual within which he or she should be protected from intrusion by others. It is the most valuable of all rights. The 1999 Constitution in S. 37 absolutely guarantees the privacy of the citizen, his home, correspondence, telephone conversations and telegraphic communications and S. 45(1) allows a law to derogate from it only if it is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.’
‘It is clear from the part of the judgment reproduced above that another thing done by the police officers to cover up their killing of Edwin Ugwu was that they planted a gun on his corpse to support their story that there was exchange of gun fire in the process of which the late Edwin Ugwu was shot. There is no ground of this appeal against any of this holding. This means that the appellant accepted the holding as correct. It is clear from this holding that the appellant and the other officers of the patrol team had no regard or value for human life. They were obviously reckless and callous. They were obviously more dangerous to society than the armed robbers they claimed they were searching for. They were rather the danger to the lives they were employed to protect.’
‘The police crime prevention patrol team must understand that it is carrying out policing functions of crime, detection, control and prevention and that in doing so it must scrupulously adhere to the constitution and other laws of Nigeria. The fact that officers are on crime prevention patrol is no license for the officers to become lawless and invade the privacy of persons and their homes in disregard of the law or unlawfully kill anybody in the name of being on patrol. The appellant and his fellow police officers in that patrol team turned themselves into a killer squad. They killed Edwin Ugwu and were about killing PW3 to cover their killing of Edwin Ugwu. PW3 was saved by God’s intervention through the appellant. It is clear from the foregoing that the appellant with other members of the police patrol team agreed to invade the house of the native doctor, invaded the house and in the process one of the officers shot and killed Edwin Ugwu. He is equally liable for the killing of Edwin Ugwu as if he had himself shot and killed Edwin. The trial court was right to have convicted him for the offence of manslaughter on account of the killing of Edwin Ugwu in the light of S. 5 of the Criminal Code Law Cap 36 vol. II Revised Laws of Anambra State 1991 which provides that- “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”’]
.
.
.
✓ DECISION:
‘On the whole, I resolve the sole issue for determination in this appeal in favour of the respondent. The appeal lacks merit. It is accordingly dismissed. I affirm the judgment of the High Court of Enugu State in criminal case No E/3C/99 including the conviction and sentence of the appellant therein.’
➥ FURTHER DICTA:
⦿ OMNIBUS GROUND OF APPEAL CANNOT BE USED TO ATTACK SPECIFIC FINDING OF A COURT
It is noteworthy that there is no ground of this appeal complaining against the above specific holdings of the trial court. The omnibus ground of appeal is not a complain against a specific finding or holding of a Court. Therefore, the omnibus ground 8 of this appeal cannot be relied on to argue against the above specific finding or holding of the trial court. In Akinlagun and Ors v. Oshonoja and Anor(2006) 5 SC (PT 11) 100 the Supreme Court held that an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of Law or error in law. — E. A. Agim JCA.
⦿ A SEARCH WARRANT MUST BE JUDICIALLY AUTHORISED
A search involves police actions designed to find, ascertain or recover evidence of crimes and sometimes arrest of fleeing suspects of crime. Common targets of searches include homes, documents, effects and persons suspected of criminal involvement. By virtue of S. 37 and S.45(1) of the 1999 Constitution a search cannot lawfully be done unless there is a law permitting that it be done and the law complies with S.45(1) of the Constitution.. So any police crime prevention action in the form of a search that is not permitted by a law is unconstitutional. S.34 (1) of the Criminal Procedure Law Cap 31 vol. II Revised Laws of Enugu State 2004 (CPL) which permits the police crime prevention action of search requires that it be judicially authorized by a warrant called a search warrant … By virtue of S. 34(1) CPL, the police and other Law enforcement agencies or other agents of government cannot search any citizen or their property without facts or apparent facts that are reliable and generate a reasonable belief that incriminating evidence can be found on the person of the citizen or property. Every intrusion by the police upon the privacy of the individual that is not permitted by a law that complies with S. 45(1) of the Constitution is unconstitutional and unlawful … So when the appellant suggested to the other members of the police patrol team that they should invade the said house and when they proceeded to do so, they all knew that they had no search warrant to enter the house and search and that they had no arrest warrant to arrest anybody they may find in the house. So ab-initio they knew that the invasion was unlawful. — E. A. Agim JCA.
⦿ HIGHLIGHTS OF THE POLICE CRIME PREVENTION PATROL MECHANISM
This case highlights a gross abuse of the police crime prevention patrol mechanism. It is therefore important to call to mind that the crime prevention patrol is a very useful crime prevention mechanism. It is one of the police operational strategies for responding to acute demands for crime control and prevention in the community. There is no doubt that the Police crime prevention Patrol is aimed at eliminating opportunity for the commission of crime. It involves walking or driving around the area and keeping a look out for potential problems. It purports to increase police presence in areas of expected crime in order to act as a deterrent. The notion behind such patrol is that it prevents and deters crime. It is often adopted as a measure of community caretaking functions of the police which include the duty to reduce the opportunities for the commission of some crimes. Generally, the objectives of preventive patrol include, deterrence of crime, apprehension of criminals, satisfaction of the public demands for services related to crime, development of a sense of security and confidence in the law enforcement agency and recovery of stolen property. There is no doubt that the more random patrol a community receives, the more a perceived omnipresence of the police will deter crime in public places and enhance public assurance of their security. As useful as this crime prevention scheme is, it can become a danger to the very society it seeks to protect if it is not conducted according to the constitution and other laws of the land. The fact that police officers are at any time engaged in any crime prevention activity including city patrol is no excuse or justification for the officers to be lawless and destroy the lives and properties of any person in the community. Crime prevention and control is law enforcement. You can only validly and effectively enforce law through compliance with law. The need for rule of law is more acute in the area of law enforcement, as it always involves the restriction of the rights of persons. In any case compliance with law by investigative and prosecuting officers is the best indicator of an efficient, effective, fair and transparent criminal process. The police power of crime prevention, detection and control has scope. The scope is defined by law. The law defines how the power shall be exercised both in ordinary times and during situations of emergency. A situation of emergency does not exist because police officers are searching for persons suspected of having committed or about to commit or committing crimes like armed robbery or other very serious crimes or searching properties suspected to be connected with a crime. — E. A. Agim JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Emmanuel Akomaye Agim, JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
