Olusegun Adeboye Vs. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

This appeal was heard on Thursday, 19th January, 2017 and adjourned to Friday, 14th April, 2017 for delivery of judgment. Since 14/4/2017 is Good Friday which is a public holiday, the date for delivery of judgment had to be brought forward to Thursday 13th April, 2017.

This appeal is against the judgment of the Court of Appeal, lbadan Division delivered on 26/6/2015 which affirmed the judgment of Hon. justice O. A. Onafowokan of the High Court of Justice, Ogun State, ljebu-Ode Judicial Division. The judgment of the High Court which convicted the appellant and sentenced him to death by hanging for the murder of one Tunde Adegboyega contrary to Section 319 of the Criminal Code Law of Ogun State was delivered on 16/10/2014. The appellant being dissatisfied with the judgment of the Court of Appeal affirming the conviction and sentence passed on him by the High Court has further appealed to this Court.

The facts giving rise to this appeal are as follows:

Following a petition of threat to life written on behalf of Chief Titilayo Odusanya (PW1) to the Area Command Division, Ijebu Ode the Area

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Commander directed Michael Agboola (PW4), the appellant and one Corporal Hamzat, all Police Officers attached to the Nigeria Police Area Command, lgbeba, ljebu-Ode to investigate the case. On 10/3/2009, the three Police Officers booked for arms and left in company of the petitioner and his brother to Oloke, Alli village, Ogun State to arrest all those who were mentioned in the petition including the deceased. On getting to the village, PW4 arrested the deceased and handed him over to Corporal Hamzat and the appellant. While Chief Odusanya and PW4 were discussing on how to arrest the other people mentioned in the petition, the deceased allegedly attempted to escape and the appellant pursued him and in the process shot and killed him. The appellant in his defence, denied killing the deceased intentionally and stated that the deceased attempted to snatch his rifle and a struggle ensued. He suddenly heard a gunshot and discovered that it was the deceased who received the gun shot from which he died. In other words, the appellant was setting up a defence of accidental discharge. At the close of the case, the appellant was found guilty and sentenced to death. His appeal to the

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Court of Appeal was dismissed and he appealed further to this Court.

The Notice of Appeal contained ten grounds of appeal from which the following three issues were formulated:-

1. Whether the learned Justices of the Court of Appeal, lbadan Division were right to have relied on the evidence of PW3, PW4 and Exhibit “D” and the AK 47 rifle the appellant had in his possession as a police man on the day of the incident to hold that prosecution proved its case beyond reasonable doubt to the effect that the appellant intentionally and voluntarily killed the deceased – Tunde Adegboyega to justify the affirmation of the conviction and sentence of the appellant for murder.
2. Whether the learned Justices of the Court of Appeal, lbadan Division were right to have affirmed the conviction and sentence of the appellant by the learned trial Judge for murder inspite of the fundamental contradiction depicted in the case of the prosecution which ought to have been resolved in favour of the appellant.
3. Whether the learned Justices of the Court of Appeal, lbadan Division were right to have affirmed and adopted the learned trial judge’s conviction and

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sentence of the appellant when the prosecution failed to disprove the appellant’s defence of self defence pursuant to Section 32(3), 32(4) and 286 of the Criminal Code and not exhaustively considered the appellant’s additional defence of accident pursuant to Section 24 of the Criminal Code law, Laws of Ogun State of Nigeria, 2006 and also not considering and upholding the defence open to the appellant under Section 33(2) of the Constitution of Federal Republic of Nigeria 1999.

The respondent formulated two issues for determination. They are:-

1. Whether the learned Justices of the Court of Appeal were right to have affirmed the decision of the trial Court that the prosecution proved the offence of murder against the appellant.
2. Whether the appellant can be availed by the defences of self defence and accident raised by the appellant at the trial of his case as well as whether the appellant can be availed by Section 33(2) of the 1999 Constitution.

The issues formulated by the respondent best capture the essence of this appeal and in particular issue 2 which is whether the appellant can be availed by the defences of self defence and accident raised by the appellant as