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.
?
That the trial Court did not take into account that the gun was triggered off accidentally: learned counsel referred

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the Court to Black?s Law Dictionary 6th edition page 1001 to emphasize the meaning of mistake as a defense; and that the discrepancy between his extra judicial statement and sworn testimony is not material, as both raise the defense of accident.

That also the evidence of point of entry and exit of the bullet from PW3 relied on falls within the competence of a ballistician, and the witness was not a ballistician; learned counsel referred the Court to ERNEST UCHEGBU V. THE STATE (1993) 8 NWLR part 309 at 104.

That it was wrong for the trial Court to conclude that the bullet wound was not accidental, PW3 did not state why the entry point of an accidental bullet is larger than that of a direct shot.

Learned counsel submitted that the failure of the prosecution to call a ballistician to tender his report did not help the justice of the case, as many questions were left unanswered.

?That the conclusion of the trial Court reached on the basis of the evidence of the so called expert at page 164 was speculative because there was no evidence anywhere that the shot was direct and not accidental: he referred the Court to EKPENYONG V. THE STATE

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(1993) 5 NWLR part 295 at 522, and conceded that a medical doctor can give evidence on range and distance a gunshot is fired, CLEMENT OGUONZEE V. STATE (1998) 5 NWLR part 551 at 550.

It is submitted for the respondent that the death of the deceased was not accidental, but as a result of the willful and deliberate actions of the appellant; learned counsel referred the Court to UWAGBOE V. STATE (2008) 12 NWLR part 1102 at 639.

That the trial Court rightly evaluated and assessed the defense of accident raised by the accused/appellant and came to the conclusion that it was an afterthought.

Learned counsel further submitted that the defense of accident was raised by the appellant as a matter of strategy to escape the law, having realized that this line of defense could not suffice in Court and conceded that the appellant was negligent in order to justify a conviction of manslaughter.
It is submitted in reply that the cases cited did not support the respondent’s case, because the statements made in the police station were not different from the one made in open Court.

?That PWs 1 and 2 called did not themselves witness the shooting, as the

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appellant was the only eye witness, and it is wrong to rely on their evidence to convict.

An accident in law is defined as an event that just happened unexpectedly, without planning or anticipation, usually with unpleasant consequences, such as an injury caused, or loss to another.
The Supreme Court defined accident in UMAR V. STATE (2014) LPELR-23190-SC as:
“…something which happens outside the ordinary course of events. An event is accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence is so unexpected that a person of ordinary prudence would not be expected to take reasonable precautions against such an occurrence; the act leading to the accident must be a lawful act done in a lawful manner.”
It is trite that a person is not criminally responsible for an act or omission which occurred independently of the exercise of his will, or for an event which occurred by accident, SEE AGBO vs. STATE (2004) 7 NWLR PT.873 PG.546, ONYIA V. STATE (2006) 11 NWLR PT.991 PG. 267.
The appellant raised the statutory defense of accident in Section 48 of the Penal Code when he stated in evidence

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that:
“I fired a pistol up into the air to scare him to stop. He did not stop. He later drove to a close and I jumped down from the vehicle to arrest him. As we were dragging I did not remember that the pistol was on and all of a sudden it exploded.” Page 151 of the record of appeal.
For the avoidance of doubt Section 48 of the Penal Code reads as follows:
“Nothing is an offense which is done by accident or misfortune without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution.?

The trial Court made it clear that it did not agree with the appellant that the shooting, and eventual killing of the deceased was accidental, it held thus:
“…it is now settled that an accused as in the instant case cannot take refuge in a defense of accident for a deliberate act, even if he did not intend the eventual result.”

As a precursor to his evidence in Court raising the defense of accident the accused/appellant had earlier stated to the police in part at page 28 to 29 of the record of appeal that:
“I came down from our bullion van to arrest him, in

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the process of dragging him to enter his car so that I can take him to the nearest police station by then my pistol was still corked as a result when I was holding the pistol with my right hand unknowingly I triggered then the bullet hit the driver of the Toyota Corolla on his head…”

Now this is what happened by the account of the accused/appellant himself, if his account of events is accepted for the truth, can it be said that the death of the deceased was accidental?

I have tried to define what the law considers accidental, with the help of decided cases in earlier parts of this judgment, it is needless being repetitive; but it is needful to point out, without fear of contradiction that what is accidental is very obvious, and clear from what is not under the law.

Both accounts of the accident, the extra judicial as well as the evidence before the Court admit of the appellant holding a loaded, corked gun, which blew off the head of the deceased.

It is both a matter of common sense as well as logic that once a suspect is cornered and apprehended, there is no need for a gun to be pointed at the suspect, except of course if there is intention to

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use the gun; especially when the suspect had already been caught, and is being dragged.

A police officer who is smart enough to know that his gun ought to be “corked” always because his duty is to protects bullion vans from robbers, as claimed by the appellant under cross examination, at page 152 of the record, ought also to know, except if his intention was to shoot, that he ought to keep his gun holstered, after arresting a suspect, and definitely not point it at the suspect, of anyone else for that matter.

The defense of mistake sought to be made by learned counsel for the appellant does not avail the appellant in the circumstances of this case because, the defense only avails one if the act complained of was done without ‘any fault or negligence’, and that surely is not the case in the circumstance of this case, for reasons stated herein above; I am fortified in this by the authority of AIGUOKHIAN V. THE STATE (2004) LPELR-269-SC:
“The test of honest belief which should shore up a defense of mistake rests a priori on whether the accused honestly and in good faith and without any fault or negligence, made a mistake in the nature of the

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situational premise prevailing as at the time, and that shall be determined and related to the circumstances as might reasonably to be expected to affect his mind to induce belief or otherwise of the defense of mistake.” Per PATS-ACHOLONU, J.S.C.

The trial Court cannot give an accused person the benefit of a defense which is not supported or reflected by the evidence on record, it is only under obligation or duty to consider defense(s) open to an accused person which were disclosed or supported by the evidence before the Court, see EKPENYONG VS. STATE (1993) 5 NWLR (PT.295) 513; ASANYA VS. STATE (1991) NWLR (PT. 180) 422; SALLA VS. STATE (2004) 8 NWLR (PT. 875) 396.

Now if the act does not qualify as a mistake it surely did not satisfy the requirements of Section 48 of the Penal Code to qualify as an accident either, because “…proper care and caution” was not used by the appellant in the arrest that led to the subsequent death of the deceased, by reason of the fact, admittedly, that he had a loaded, corked gun in his hands, while dragging a suspect he had already caught, when the gun ought to have been holstered.

This Court finds the

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conclusion reached by the trial Court compelling in the circumstances, when it held “…an accused as in the instant case cannot lake refuge in a defense of accident for a deliberate act, even if he did not intend the eventual result.”

As far as this Court is concerned the trial Court did not need the evidence of PW3 to convict the appellant because his evidence is surplus.

But be that as it may PW3 a consultant forensic pathologist, who performed the post mortem examination on the deceased, and led evidence as an expert on the likely cause of death of the deceased stated: “…there was a penetrating injury from the left side of the head.”

The witness stated during cross examination that “…the point of entry shows that it was a direct shot as the point of entry was slim. That where a bullet wound is accidental, the entry point is normally larger that the middle entry of a direct shot.”

Learned counsel to the appellant argues needlessly with this witness’ evidence, contending that it falls within the purview of a ballistician, while the witness is not a ballistician.

I say needlessly for several reasons, first because the trial Court

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did not require the evidence of this witness to convict, for reasons earlier stated, i.e. that the appellant did not satisfy the requirements of Section 48 of the Penal Code, with regard to “proper care and Caution” which he did not exercise.

Secondly it is a matter of common sense and simple logic that a projectile enters an object from a smaller hole and exits leaving a larger hole, depending on the speed and size of the projectile, that is not rocket science.

So in the considered opinion of this Court, anyone who saw the victim dead can conveniently describe the bullet wounds, being the only wounds, he or she saw on the deceased. On the other hand, the evidence as to whether or not the bullet wounds were the cause of death of course can only be given by a coroner who examined the deceased.

Learned counsel to the appellant sought to make capital out of the argument that the PW3 did not specifically say the shot was ‘direct and not accidental’, and contended that for that reason the trial Court’s conclusion was speculative.
This Court finds that line of argument unconvincing, because the trial Court’s conclusion is not speculative, and in

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any event an accidental shot can be direct or indirect, ‘accident’ has no correlation, in the considered opinion of this Court with ‘directness of a shot’. ‘Accident’, as far as Section 48 of the Penal Code is concerned relates only to intention or knowledge, and the exercise of proper care and caution in the commission or omission of the act complained of; it is for this reason that this Court held in OJUKOKAIYE V. STATE (2015) LPELR-25942-CA that:
“An accused person seeking to rely on the defense of accident must explain how the accident occurred and be subjected to cross examination. Where he fails to testify, the law would presume that the defense is not given in evidence. Where also he fails to prove the accident by credible evidence, it is bound to fail. ?See also R V. AKERELE (1941) WACA ADEKUNLE VS. STATE (2006) 14 NWLR PT 1000 PG 717.?

This Court is satisfied that the defense of accident does not avail the appellant, as rightly held by the trial Court; this issue is accordingly resolved in favour of the respondent, against the appellant.

Issue Two:
Whether having regard to the totality of the evidence before the Court

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the learned trial judge was right in convicting the Appellant for the offence of culpable homicide punishable with death

It is submitted for the appellant that the ingredients of the offence in Section 221 of the Penal Code must not only be established but co exist, before any conviction can be sustained; learned counsel referred to SULE V. STATE (2009) 17 NWLR part 1169 at 53.

That the prosecution did not establish that the shooting which caused the death of the accused was intentional, i.e. with knowledge that death or grievous bodily harm was the probable consequence; learned counsel referred the Court to the statement of PW1 during cross examination at page 134 of the record.

That the Court relied on the evidence of PW1 and 3 none of whom witnessed the event to convict: and also that PW1’S evidence shows that the appellant shot into the air during the chase and not at the accused, because his intention was to arrest and not to kill the deceased; and that explained why he was shaken after the shooting.
?
That also apart from establishing the cause of death the evidence of PW3 does not support the killing of the deceased was intentional; and

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the trial Court was wrong to have relied on it to convict; learned counsel referred to AIGUAROGHIAN V. STATE (2004) 3 NWLR part 860 at 407.

That also the trial Court was wrong to have dwelt on the fact that the appellant instead of surrendering himself fled, and so arrived at a wrong conclusion that escaping was an intention to run from the law; he referred the Court to EMMANUEL OROSULEMI V. THE STATE (1967) NMLR 278 at 281.

That also the discrepancy in the evidence of the accused/appellant when he said in evidence that he pursued the deceased to get him back to the scene of accident to take the cyclist to the hospital in one breath, and in another in his extra judicial statement when he said he wanted to take the accused to the nearest police station simply meant he wanted to arrest the deceased.

That the failure of the prosecution to call one Taimada Dzarma, the brother of the deceased, whom it claimed was an eye witness to the shooting was fatal to the case of the respondent, because his evidence will have assisted in finding whether the shooting was deliberate or accidental.

It is submitted in response that the trial Court was right in

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convicting the accused appellant, because the deceased’s death was caused by the appellant, and facts admitted need no further proof.

That also intention can be inferred; he referred the Court to STATE V. USMAN (2005) 1 NWLR part 906 at 131; and contended that if indeed the appellant’s intention was simply to apprehend the deceased, after shooting him he would have rushed him to the hospital, but instead drove off and left the deceased to die.

The ingredients of the offence of culpable homicide punishable with death, contrary to Section 221 of the Penal Code are as follows:
(a) That the death of a human being actually took place; (b) such death was caused by the accused person and (c) That the act that caused the death was done with the intention of causing death, or the accused person knew that death would be the probable consequence of his act.
All these ingredients are expected to be established before a conviction can be successful; failure to establish any of the ingredients would result in an acquittal. See ADAVA V. THE STATE (2006) 9 NWLR (PT.894) 152/167; AKPAN V. THE STATE (2007) 2 NWLR (PT.1019) 500.

?The deceased admittedly

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died and his death was caused by the appellant, see pages 28 to 29 of the record of appeal:
“…I was holding the pistol with right hand unknowingly I triggered then the bullet hit the driver…on his head. He fell down and which I discovered that he was dead.”

Any matter of fact that is admitted by the adverse party does not need to be proved, the Court is expected, as a matter of law to act thereon, see OLALE VS. EKWELENDU (1989) 7 SCNJ (PT.2) 62 AT 102 ANDONY VS. AYI II & ORS. (2004) ALL FWLR (Pt.227) 444 AT 482; ELENDU VS. EKWOABA (1995) 3 NWLR (PT.386) 704 AT 747.

Of the three ingredients of Section 221 of the Penal Code, two, i.e. death and the its causation by the accused have been established by reason of admission, however the only ingredient left in contention is whether the death was caused intentionally.
?
Intention is always difficult to prove affirmatively without a confession from the accused, and can often only be determined by looking at all the surrounding circumstances and deciding from them, whether the natural inference is that such must have been the intention of the accused person; the saying that, “…there is no

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art to find the mind’s construction on the face” (Shakespeare) aptly describes the frustration association with ascertaining the intention behind any action, especially those associated with crime, where the mens rea is important for the determination of intention to commit the act complained of.
The action or conduct of the accused almost always determines his or her intention, and in this particular case a few of the appellant’s actions stand out as lead to his intention.

This Court had while resolving issue one, and the matter of whether the shooting was accidental or not laboriously explained its belief that the shooting was not accidental in its considered opinion for several reasons, chiefly because the appellant had the deceased in his hands, dragging him, yet he had a loaded gun in his hands, instead of keeping it safely in its holster, contrary to common sense and accepted practice; those views apply here in pari materia, to the question of whether the shooting was Intentional or not.

But more importantly the trial Court was impeccable in its finding at page 165 of the record of appeal that:
“…there is evidence that the accused

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pursued the deceased through several streets in Abuja during which he admittedly fired shots into the air. When he caught up with the deceased and the deceased was cut down by his bullet, he returned to the van, did not tell his co traveler, neither did he report the accident to his office. He kept the incident to himself and was attending to his work in the bank for days thinking he could escape the long arms of the law. All these in my view points to the fact the accused intended the result which is the killing of the deceased…”

The trial Court could not have been more apt in its findings, in the considered opinion of this Court; but the immediate response of learned counsel to the appellant to this insightful finding is that PWs 1 and 3 did not witness the shooting, and because PW1 said during his cross examination to the effect that, in his opinion the intention of the accused was to arrest and not kill the deceased, and also because the appellant appeared visibly shaken when he returned to them after the encounter, there was no intention to kill for those reasons.

That in the considered opinion of this Court, with all due respect, is a very

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simplistic approach to a very delicate situation; one may ask then, why didn’t the appellant inform his companions, when he returned, that he had shot and killed the deceased by accident, and show some kind of remorse, for whatever it was worth, if he had not intended the shooting and killing? That would have been the least expected of a companion who shoots and kills someone else unintentionally; and if he had done so his companions could easily have attested to his professed lack of intention, at the very least.

But no, he didn’t do that, he got into the van and drove off with his companions, knowing full well he had shot someone in the head, and left him bleeding, to die? Why not take him to the hospital, or even to the police station, if the hospital is too much to ask?

To crown it all, he then goes back to his regular beat, until his arrest; that cannot be the conduct of someone who committed homicide unintentionally.

Intention can very easily be inferred from conduct, and it is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act, see SHAZALI V. STATE

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(1988) LPELR-3040-SC and R V. DIM 14 WACA 154 at 155.

Learned counsel for the appellant referred the Court to EMMANUEL OROSULEMI V. STATE supra and contended that the trial Court was in error in relying on the fact that the accused fled and did not report the incident to the police, that his conduct should not be construed to mean guilt.

Yes, merely fleeing the scene of a crime or fleeing arrest does not per se conclusively mean one is guilty of a crime, or intentionally committed one, but surely it cannot help the accused’s cause if he claimed he did not intend the outcome of his action; and therein lies the distinction between this case at hand and the decision in EMMANUEL OROSULEMI supra referred to by learned counsel to the appellant.

The trial Court did not rely only on the appellant’s escape from the scene of crime, as its reason for convicting him, it only pointed out that fact to infer intention, in addition to other factors which it considered, that much is clear from page 165 of the record of appeal earlier quoted.

On the question of whether the prosecution ought to have called Taida Dzarma, an alleged eye witness to testify, this

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Court is in complete agreement with learned counsel for the respondent, that the prosecution is not required to call any particular number of witnesses or specific number of witnesses to secure a conviction, because the prosecution is required only to call relevant witnesses, see ALIYU V. STATE (2013) 12 NWLR part 1368 at 420.

It is the considered opinion of this Court that there was sufficient evidence before the trial Court to rightfully convict the accused/appellant of the offense of culpable homicide punishable with death; accordingly this issue too is resolved in favour of the respondent, against the appellant.

Issue Three:
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 with death under Section 224 of the Penal Code.

It is submitted for the appellant that the trial Court ought to consider alternative defenses including that of culpable homicide not punishable with death i.e. Section 224 of the Penal Code; learned counsel referred the Court to AKPABIO V. THE STATE

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(1994) 7 NWLR part 359 page 635.

That the gun was only corked because it was the norm while escorting a bullion van, and the appellant was only negligent in handling the gun resulting in the death of the deceased.

That also the trial Court found that there was no intention yet he failed to consider the fact of negligence on the part of the appellant, that this failing is clear from the trial Court’s finding that:
“?an accused in the instant case cannot take refuge in the defense of accident for a deliberate act even if he did not intend the eventual result…”

That the mere fact that the appellant’s earlier statement to the police was contradictory to the one on oath is not sufficient to convict on a charge of culpable homicide punishable with death.

That the trial Court was wrong to have refused to convict on the alternative offence of culpable homicide not punishable with death, in accordance with the provisions of Section 218 of the Criminal Procedure Code.
?
It is submitted for the respondents that the trial Court had sufficient evidence to convict for culpable homicide punishable with death; learned counsel referred the

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Court to the judgment of the trial Court at page 167 of the record of appeal and further submitted that the trial Court could not have closed its eyes to the evidence and convicted on the lesser offense, merely because the prosecution asked for it.

For the avoidance of doubt Section 218 of the Criminal Procedure Code provides as follows:
“(1) when a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete lesser offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.”
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he has not been charged with it.”

The prosecution at the end of the case urged the trial Court to convict for the lesser offense, i.e. culpable homicide not punishable with death, even though it charged the accused with culpable homicide punishable with death, contrary to Section 221 of the Penal Code, and proved same to the satisfaction of the

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Court.

From the evidence before it the trial Court was satisfied that the prosecution proved the offense charged beyond reasonable doubt, this is evidently clear at page 167 of the record of appeal, where it held:
“contrary to the case for the defense, the prosecution’s case was never challenged in anyway…the prosecution has proved their case beyond all reasonable doubt as required by the law…the implication of my foregoing findings is to remove the rug off the feet of the latter submission of the learned prosecuting counsel wherein he urged me to convict the accused for a lesser offense. In any case, I am not bound by his submission because it is trite that disputes are tried on the strength of the evidence before the Court. It is also trite that counsel’s address cannot be traded for evidence…”

This Court cannot help but note that the prosecution charged the accused with culpable homicide punishable with death contrary to Section 221 of the Penal Code, went ahead to lead evidence to establish same, then turned around to urge the Court to convict for Culpable Homicide not Punishable with death contrary to Section 224 of the Penal Code, a

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lesser offense.

Yes the Court could do that under Section 218 of the Criminal Procedure Code, but that is not mandatory, where the ingredients of the offense charged were adequately proved, to the satisfaction of the Court.

In any event the prosecution could very well amend the charge or better still withdraw it if it felt that strongly against conviction under Section 221 of the Penal Code, but simply ‘passing the buck’ appears to be speaking from both sides of its mouth.

The trial Court was justified in rejecting the application to convict for a lesser offense, when it is satisfied that what had been charged was proved to its satisfaction; and if the prosecution was counting on the exercise of discretion by the Court, then it has to be said “… discretion is thus not an indulgence of a judicial whim, but the exercising of judicial judgment, based on facts and guided by the law or the equitable decision.” Per Oputa, JSC, in UNITED BANK FOR AFRICA V. GMBH & CO. (1989) 3 NWLR (PT. 110) 374.

As rightly held by the trial Court its decisions are dictated by the evidence adduced by the parties before it and nothing more; emotive and

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sentimental submissions should not sway a Court in its sworn duty to uphold the law, to its letter.

Unfortunately this does not appear to be a case of plea bargain or even sentence bargain arrangement, because if it were a plea bargain arrangement the prosecutor would have agreed to drop some of the counts or reduce the charge to a less serious offense in exchange for a plea of guilty or no contest from the accused/appellant; and if it were a sentence bargain the prosecutor would have agreed to recommend a lighter sentence, in exchange for a plea of guilty or no contest from the accused/appellant; it was clearly neither of both.
In either case the prosecutor and the accused are expected to enter into an agreement, where the accused first and foremost pleads guilty to something, in exchange for either the reduction of the sentence or withdrawal of some charges, see PML NIG. LTD V. FRN (2014) LPELR-22767-CA; the prosecution cannot stampede the Court, not under Section 218 CPC simply because he is overcome by ‘the milk of human kindness.’
This Court is satisfied that the trial Court was well within its rights in refusing to convict on the lesser

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charge, having satisfied itself that the prosecution had proved the offense of culpable homicide punishable with death as charged; accordingly this issue too is resolved in favour of the respondent, against the appellant.

Having resolved all the three issues for determination in favour of the respondent, against the appellant, the appeal fails for lack of merit, and it is hereby dismissed.

Judgment of the trial High Court of the Federal Capital Territory, Abuja of the 31st day of March, 2011 Coram Justice Husseini Baba Yusuf is hereby affirmed.

Other Citations: (2016)LCN/8624(CA)