Andrew Ogboka V. The State (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A. 

This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja Coram Honourable Justice Husseini Baba Yusuf, delivered on the 31st of March 2011.

The appellant was tried on a two count charge of culpable homicide punishable with death contrary to Section 221 of the Penal Code and concealment of the offence contrary to Section 167 of the Penal Code: convicted and sentenced to death by hanging for the 1st and discharged and acquitted of the 2nd charge.

Dissatisfied he appealed by notice dated the 28th of March, 2012, and filed on the 30th of March, 2012; the grounds of appeal shorn of the particulars are as follows:
GROUND ONE:
The Learned Trial Judge erred in law when he held that the Prosecution has proved the case of Culpable Homicide punishable with death contrary to Section 221 of the Penal Code beyond reasonable doubt against the Appellant.
GROUND TWO:
The Learned Trial Judge erred in law when he held that the defense of accident raised by the Appellant was an afterthought and therefore refused to uphold the

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defense in favour of the Appellant.
GROUND THREE:
The Learned Trial Judge erred in law when he invoked the inconsistency rule in the resolution of the inconsistency in the evidence of the Appellant and his extra judicial statement when he said “Now, there is a discrepancy between the extrajudicial statement made by the accused to the police and his sworn evidence before the Court.
In his extra-judicial statement Exhibit P3, he said he was the one who unknowingly triggered the gun leading to the death of the deceased. However, before the Court he said the gun exploded in the course of dragging the deceased.”
GROUND FOUR:
The Learned Trial Judge erred in law when he disbelieved the testimony and defense of the Appellant on the ground that he told lies in the case.
GROUND FIVE:
The Learned Trial Judge erred in law when he relied on the testimonies of PW2 and PW4 and Exhibits P1 and P2 in convicting the Appellant when the PW2 and PW4 were not cross examined as they failed to turn up in Court
GROUND SIX:
The Learned Trial Judge erred in law when he rejected the brilliant submission of the prosecuting counsel that the

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judge invoked his powers under Section 218 of the Criminal Procedure Code by convicting the Appellant for the lesser offence of Culpable Homicide not punishable with death under Section 224 of the Penal Code in view of the fact that the ingredients of the offences of Culpable Homicide Punishable with death had not been established.
GROUND SEVEN:
The Appellant’s right to fair hearing was breached when the learned trial judge failed to make reference to the issues raised in the Appellant’s reply on point of law to the prosecution’s final written address in his judgment.
GROUND EIGHT:
The Learned Trial Judge erred in law when he sentenced the Appellant to death by hanging.

From these grounds three issues were formulated for determination for the appellant, and adopted by the respondent, they are as follows:
1. Whether in view of the evidence the learned trial judge was right in refusing and or rejecting the defense of accident raised by the Appellant. (Ground 2)
2. Whether having regard to the totality of the evidence before the Court the learned trial judge was right in convicting the Appellant for the offence of culpable

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homicide punishable with death. (Ground 1, 3, 4 and 5)
3. Whether the learned trial judge was wrong in light of the evidence in failing to invoke the provisions of Section 218 of the Criminal Procedure Code to convict the Appellant for the lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code (Ground 6).

Issue One:
Whether in view of the evidence the learned trial judge was right in refusing and or rejecting the defense of accident raised by the Appellant.
It is submitted for the appellant on this issue that in a murder trial, the trial Court must consider not only the defense raised by the accused but also other possible defenses in the circumstances of the case, learned counsel referred this Court to UMANI V. THE STATE (1988) 1 NWLR part 70 at 274.

That in rejecting the appellant’s defense of accident the trial Court relied on the discrepancy in the extra judicial statement of the appellant made to the police and his statement in Court, as well as the evidence of the PW3.
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That the trial Court did not take into account that the gun was triggered off accidentally: learned counsel referred

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