Alewo Abogede V. The State (1994)

LawGlobal-Hub Lead Judgment Report

OKAY ACHIKE, J.C.A. 

The accused who was initially charged with the offence of manslaughter, was subsequently charged with the offence of murder of one Frances Madu, a police constable. The deceased was alleged to have died from gunshot wound. The deceased was a passenger in a Nissan Minibus and the fatal incident occurred at a check-point near the Nkwo-Agu Market in Udi as a result of the shot from the pistol assigned to the accused, a Police officer of the rank of Assistant Superintendent of Police. PW2, the driver of the Nissan minibus, gave account of the event leading to the death of the deceased. According to PW2, the deceased, wearing police uniform, who was sitting on the front seat of his minibus, challenged the constable in the company of the accused as to the propriety of demanding money from the witness (PW2).

The said constable then requested the deceased to accompany him to his superior officer, i.e. the accused. That he did.

On getting there, the accused shouted abuses on him but the deceased later returned to his seat. Accused followed the deceased back to his seat. Thereupon the accused pulled out his pistol and threatened “to batter the bus and the passengers if I moved an inch from that spot”. The accused then moved to the side where the deceased was seated, opened the door, held the deceased by the collar of his dress and pulled him down from the bus to the ground. The accused then slapped the deceased and unleashed blows on him so also did the constable in the accused’s company. Continuing, the witness said, that at a point, the accused then shot at the deceased and the deceased collapsed on the ground. Thereafter, the accused and the aforesaid constable put the deceased in a vehicle and drove off to unknown destination.

PW5 also gave an eye-witness account of the incident leading to the gunshot which also injured his right-palm.

The witness testified that he tried to intervene but the pressure of the beating of the deceased by the accused and the constable with him aborted his efforts. PW7 gave an account of the circumstances leading to the death of the deceased. Further more, PW8 a policeman who was on traffic duty at the market with the accused narrated how the incident occurred.

At the close of the case for the prosecution which fielded eight (8) witnesses, the learned counsel for the accused made a no-case submission and rested his defence thereon. In a reserved judgment, the learned trial judge found the accused guilty of murder as charged and sentenced him to death. It is against his conviction and sentence that the accused, herein appellant, has filed this appeal.

On appellant’s behalf; his learned counsel identified the following three issues for determination, namely,

“(1) Did the prosecution make out a prima facie case for the accused to answer in the first instance?

(2) Was the trial court right in proffering superior order as an explanation for the contradictions in the evidence of P.W.8 before accepting one of the conflicting versions when he was not treated as a hostile witness and P.W.8 did not plead superior order as his explanation?

(3) On the totality of the evidence led by the prosecution was there proof beyond reasonable doubt that the accused with the necessary intent pulled the trigger of the Beretta pistol which released the fatal bullet which hit the deceased?”

For the respondent, four issues were formulated for determination; these are:

“1. Whether there is a prima facie case made out against the accused/appellant.

2. Whether from the facts and circumstances of this case there is sufficient or valid explanation of the inconsistencies in the evidence of P.W.8 entitling the trial court to prefer one version of his evidence.
3. Whether the contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.
4. Whether the case against the accused person was proved beyond reasonable doubt.”

Mr. Anyamene S.A.N., learned appellant’s counsel, argued appellant’s issues No. 1 and 2 in the brief together.