Apav Agbanyi V. The State (1994)

LawGlobal-Hub Lead Judgment Report

ADRIAN CHUKWUEMEKA ORAH, J.C.A.

On 26th November, 1992, the appellant was convicted in the Katsina-Ala High Court of Benue State by E. Ekpo, J. in charge No. KHC/17C/89 for an offence of mischief by fire contrary to Section 337 of the Penal Code.

The charge read as follows:-

“That you Apav Agbanyi, on or about the 21st day of March, 1989, at Mbagena Kpav, Shitile committed mischief by fire to wit by setting ablaze two thatched houses belonging to one Suega Ande intending to cause the destruction of the buildings ordinarily used for human dwelling and custody of property and thereby committed an offence punishable under Section 337 of the Penal Code”.

A.N. Awulu Esq. State Counsel, Ministry of Justice, Katsina-Ala brought an application dated the 29th day of August, 1989 for leave to prefer a charge in the High Court under Section 185(B) of the Criminal Procedure Code. It is stated in the application, that no proceedings under Chapter XVII of the Criminal Procedure Code have been taken, it is in the interest of justice to have the accused person tried summarily and that evidence contained in the proofs of evidence shall be available at the trial are true to his knowledge, information and belief.

Ikongbe, J, granted the applicant leave under Section 185(B) of the Criminal Procedure Code to prefer the charge and fixed the case for hearing on the 13th day of September, 1989. On record, the case came up for hearing two times on 22nd January, 1992, and on 18th February, 1992, was adjourned until 6th April, 1992, when P.W.1 testified.

The facts of this case which are quite straight-forward are as follows:-.

P.W.1 Suega Ande, a farmer from Mbagena Shitile alleged, that the accused person Apav Agbanyi from Mbagena Kpav, on 21st March, 1989 set ablaze his two dwelling houses at Mbagena Shitile. The two houses were burnt down. The accused person denied setting the two houses ablaze. He pleaded Alibi saying, that he was working behind his house with Agbidye Aba and two named others, when P.W.1 came to his house and called him by name – “KPAV, KPAV – You are here but my house is burning”. The accused said, that P.W.1 levelled the allegation against him because of a long standing dispute.

At the trial and hearing of the case, the prosecution called three witnesses. The prosecution witnesses are P.W.1 Suega Ande the owner of the two houses set ablazed, P.W.2. Teghtegh Agum an uncle of P.W1.1 both of whom are of the same grand father and P.W.3 Police Corporal Francis Tysor Investigating Police Officer (I.P.O.), who was at the time attached to the Police Post Abiji.

The accused person Apav Agbanyi who testified as D.W.1. pleaded alibi saying, that he was not at the scene at the time and place. D.W.1 called one witness D.W.2 Agbidye Aba his cousin who testified in his defence. At the end of the trial, the learned trial Judge after a consideration of the evidence adduced, held,-

“The defence offered is simply not there. It is lacking in substance and has not discredited nor contradicted the evidence of the prosecution“. (Italics mine).

Continuing, the learned trial Judge said:

“I am, therefore, convinced beyond reasonable doubts that the charge against the accused has been proved. Accordingly, the accused is hereby convicted as charged for the offence of mischief by fire to the two huts belonging to P.W.1. The offence is punishable under Section 337 of the Penal Code”

After the allocutus, the convict persisted in his innocence and pleaded with the Court to reduce his sentence on the grounds, that the allegation was leveled against him because of a long standing dispute between him and P.W.1. The convict pleaded for leniency saying, that he has a wife and two children whom he takes care of.