Ode Ojobi V. The State (2007)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

This is an appeal against the decision of the Benue State High Court sitting at Otukpo presided over by A. O. Onum J. who tried, convicted and sentenced the appellant to death by hanging contrary to Section 221 of the Penal Code in case No. OHC/12c/2003 delivered on 23/7/2004.

Dissatisfied with the said decision, the convict filed his notice of appeal dated 20/8/2004 on 23/8/2004. The notice of appeal contained nine grounds of appeal.

On 20/6/2003, the accused was charged with the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code for killing one Owoicho Aboje by firing a locally made pistol at him on 13/10/2001. The charge reads as follows:

“That you, ODEH OJOBI, on or about the 13th day of October, 2001 at Igbanomaje Otukpo in Otukpo Local Government Area of Benue State of Nigeria within the jurisdiction of this Honourable Court committed culpable homicide punishable with death in that you caused the death of OWOICHO ABOJE by doing an act to wit you shot the said Owoicho Aboje with a locally made single barrel gun with the intention of causing his death or with the knowledge that his death would be the probable consequence of your act and you hereby committed an offence punishable under section 221 of the Penal Code”

The accused pleaded not guilty to the charge. Thereafter, the prosecution called seven witnesses and tendered four exhibits which were marked exhibits “A”, “B”, “C’ and “D”. Exhibits “A” and “D” were admitted after a trial within trial had been conducted because the defence alleged that the said exhibits being confessional statements were obtained under duress. The accused gave evidence in person and also called his wife who testified in his behalf. At the conclusion of evidence, learned counsel for the prosecution and the defence addressed the court. In a reserved judgment which was delivered on 23/7/2004, the learned trial Judge found the accused guilty and sentenced him to death by hanging.

Aggrieved by the conviction and sentence, the appellant appealed to this court. In the appellant’s brief dated 3/5/2005 but filed on 6/3/2005, by M. K. Aondoakaa Esq., only one issue was distilled from the nine grounds of appeal filed. The issue raised is:

“Whether the defence of self-defence availed the accused/appellant having regard to the circumstances of this case.”

The respondent’s brief was settled by Mrs. Vera Venda, Director of Public Prosecution, Benue State. The brief filed on 12/6/2006 was deemed filed on 25/1/2007. She adopted the sole issue formulated by learned counsel for the appellant.

The facts which the prosecution presented may be summarized as follows:

The deceased was among a team of vigilante squad which was put in place by the community to conduct surveillance aimed at reducing the activities of armed robbery within the community. The group had visited some compounds before arriving at the appellant’s compound. They knocked at the gate of the appellant’s house. Someone came from the house and approached the gate but retreated. The deceased then ordered that the compound be surrounded to avoid the escape of suspected armed robbers including the appellant’s son who was a known notorious robber.

Suddenly, the vigilante group heard a gun shot and the deceased shouted that he had been killed. The appellant then came out of his house with a gun in his hand shouting he had killed somebody. He was taken to the Chief’s house together with the gun and was eventually taken to the Police Station.

The case of the defence is that on the night of 13/10/2001, the appellant heard loud knocks on his gate with nobody identifying himself.

He came to his living room having already instructed his wife to keep all the children in one room. He then tried to find out who was knocking at the gate but received no reply. Because of the prevalence of thieves and armed robbery activities in Igbanomaje community, he went back into his room and brought out his gun. He saw somebody trying to scale the fence holding a gun and a torch light while the other had already scaled the fence and squatted in the compound. He then fired at the person on the fence wall and the others ran away. He came out and raised alarm that he had killed an armed robber. This attracted some people to the scene. He eventually went to report the incident at the Police Station where he was detained. In his oral testimony, the appellant stated that he fired his gun to the roof to scare away the alleged intruders but became rather surprised when he was told someone had died. Mr. Aondoakaa, learned counsel for the appellant referring to the evidence of PW1 which was corroborated by PW2 and PW3 as well as the evidence of the appellant and relying on section 33(2) (a) of the Constitution of the Federal Republic of Nigeria 1999 which provides that-