Ogboka V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. 

The present appeal is consequent upon the judgment of the Court of Appeal, Abuja Judicial Division, delivered on May 19th, 2016 in appeal No. CA/A/683C/2013. By the judgment in question, the Court below dismissed the Appellant’s appeal against the judgment of the High Court of the Federal Capital Territory (FCT) Abuja delivered on March 31st, 2011 in charge No. CR/22/04.

BACKGROUND FACTS

The Appellant was a police officer who rose through the ranks to attain the non-commissioned officer’s rank of a sergeant. He was attached to the Operation and Training Command, Abuja. His last duty post was ASO Savings and Loans Ltd, FCT Abuja.

Instructively, the genesis of the Appellant’s travails is traceable to September 10th, 2003. Indeed, that was the day the Appellant, while on duty, was detailed along with the cash officer and the driver of the Bank for the purpose of conveying cash and cheque to the FCDA and Zenith Bank Maitama Branch Abuja, respectively.

​After accomplishing the task, on the way back to their duty post (the ASO savings and Loans Ltd), the Appellant and co. witnessed an accident involving a motor cyclist carrying a pillion passenger and a Toyota Corolla car. Consequent upon the accident, the motor cyclist and pillion passenger fell on the ground. The driver of the Toyota car, however, drove away – a case of ‘hit and run’ accident!

The Appellant made frantic effort to prevent the errant driver escaping from the scene of the accident but to no avail. Thus, the Appellant directed the bullion van driver to activate the siren and pursue the Toyota car with a view to arresting the recalcitrant driver thereof. He also fired gun shots in the air. As the driver drove into a close, the Appellant came down from the Bullion van. In the process, the run-away Toyota driver was shot and killed as a result of a gun shot from the Appellant’s service pistol.

The Appellant reported the incident to the Armourer of the Police Command who marched him before the Deputy Commissioner of Police. He was detained and later arraigned before the trial Court upon a two count-charge viz:

CHARGE

COUNT I

That you Ex-Sargent Andrew Ogboka being a serving police officer and a Bank guard attached to Aso Savings and Loan Ltd., Area 8, Garki, Abuja, on or about 10th day of September, 2003 at about 11:30 hours in a close near Children Affairs Super Store, off Ademola Adetokunbo Street, Wuse II Abuja with intent to kill committed culpable homicide punishable with death by causing the death of MR ANGYATI DZARMA of No. 76 Niger Barrack, Abuja, by firing a gun shot into his head at a Close range with Police Brownie pistol No. BDA — 380 425 -pm 5.7624 in your possession, having apprehended him for speeding off from an accident scene involving a Toyota Corolla vehicle with Registration No. AV 545 APP driven by the deceased, and a motorcyclist, (which accident was cause the motorcyclist) and thereby committed an offence punishable under Section 221 of the Penal Code Act, Cap 532, vol. XXVII, Laws of the Federation of Nigeria, 1990, as applicable in the Federal Capital Territory, Abuja, and triable by the High Court.

COUNT II

That you Ex-Sargent Andrew Ogboka ‘m’ being a serving police officer and a Bank guard attached to Aso Savings and Loan Ltd., Area 8, Garki, Abuja, on or about 10th day of September, 2003 at about 11:30 hours in a close near Children Affairs Super Store, off Ademola Adetokunbo Street, Wuse Il Abuja cause the death of MR ANGYATI DZARMA of No. 76 Niger Barrack, Abuja, by firing a gun shot into his head at a close range which incident you thereafter concealed with the intent to avoid arrest and prosecution, and thereby committed an offence punishable under Section 167 of the Penal Code Act, Cap 532, vol. XXVII, Laws of the Federation of Nigeria, 1990, as applicable in the Federal Capital Territory, Abuja, and triable by the High Court.

In the course of the trial, a total of four witnesses were called by the Respondent (prosecution), who testified PW1, PW2, PW3 and PW4, respectively. The Appellant testified in his own defence as DW1. At the close of the trial, the trial Court delivered the vexed judgment thereof, on March 31st, 2011, to the following conclusive effect: