Jimoh Michael V. The State (2008)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In charge No. HCL/6C/2001 before High Court,Kogi State holden at Lokoja, the appellant herein as the second accused with two others were jointly titled on four heads of charge of criminal conspiracy, culpable homicide, armed robbery and mischief by fire contrary to sections 97(1), 221, 336 and 298(c) of the Penal Code Law. The charges read as follows:

1st Head of Charge:

“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, at Okene within the Kogi State Judicial Division committed culpable homicide punishable with death in that you caused the death of Mamodu Abdullahi Ajawu and the death of Rafiu John, John Ogara, Thomas Ona and Alfa by doing an act to wit: You shot Mamodu Abdullahi Ajawu with a rifle and set Rafiu, John Ogara Thomas Ona and Alfa ablaze with the intention of causing their death and you thereby committed an offence punishable under section 221 read along with section 79 of the Penal Code.”

2nd Head of Charge:

“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001 at Okene within the Kogi State Judicial Division while armed with your service rifles robbed Saka Jimoh, Abdullahi Ajawu, Suleiman Badumos, and other passengers in a vehicle Registration No. OSUN XB 104 SGB of the total sum of N400.000.00 and you thereby committed an offence punishable under section 298 of the Penal Code”

3rd Head of Charge:

“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, at Okene within the Kogi Judicial Division set a vehicle with the registration No. OSUN XB 104 SGB on fire, intending to cause or knowing that the said vehicle will likely be destroyed or damaged and you thereby committed an offence punishable under section 336 of the Penal Code.”

4th Head of Charge:

“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, agreed to do an illegal act to wit: to commit armed robbery, culpable homicide and to set ablaze property of another person and you thereby committed an offence punishable under section 97 of the Penal Code.”

The appellant and the other two accused persons pleaded not guilty to the heads of charge. After the trial before Eri, C.J, the accused, including the appellant herein, were convicted as charged. On the 1st head of charge, each accused was sentenced to death, on the second head of charge, each was sentenced to life imprisonment, on the 3rd head of charge, each of the accused was sentenced to 7 years imprisonment, on the 4th head of charge criminal conspiracy, each was sentenced to life imprisonment. All the sentences were ordered to run concurrently. Aggrieved with the decision the appellant herein and the 3rd accused appealed to the Court of Appeal. On the 14/12/2006. the Court of Appeal dismissed the appeal of the appellant and affirmed the decision of the trial court. This is a further appeal by the appellant to this court. The notice of appeal contains two grounds of appeal. One issue for the determination of the appeal was submitted by the learned counsel for the appellant. The issue reads:

“Whether the offence of culpable homicide punishable with death and setting the vehicle on fire as charged against the appellant were proved beyond reasonable doubt as affirmed by the Court of Appeal.”

Before the examination of the issue for the determination of the appeal, it is convenient to state be it briefly the facts, The facts are that, on the 17/2/2001 the appellant and the two other accused were serving policemen in the PMF 37 Mobile Squadron of the Nigeria Police Lokoja. Kogi State. They stopped a commercial passenger vehicle Registration No. OSUN XB 104 SGB at Okene. The vehicle had earlier on took off from Oshogbo through to Akure to Okene and had 10 passengers including PW4 and PW5. The appellant and his partners arrested the vehicle, searched the passengers and saw that some of the passengers had a lot of money on them. The appellant and the other policemen drove the vehicle on the Okene to Lokoja Federal highway and stopped at a secluded spot where they robbed the passengers of their money at gun point.

The total amount robbed was N400,000,00. In the process of the robbery, one of the passengers Mamodu Abdullahi Ajawu was shot dead by one of the policemen. The vehicle was set ablaze and as a consequence the driver whose identity remained unknown, Rafiu, John Ogara, Thomas Ona Alfa and Sarafa Isiyaka, were burnt to death. PW4 and PW5 survived the ordeal by escaping, The only issue in controversy between the appellant and the other policemen was who among them shot and killed the passenger who died of gun shot wounds and the other passengers who were burnt to death. Each accused including the appellant blamed one another. As mentioned above, all the accused including the appellant were at the end of the trial, found guilty as charged and sentenced. The appellant and one other unsuccessfully appealed to the Court of Appeal.