Frederick Asikoje V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment)

The Appellant Frederick Asikoje was arraigned before the Sabongida-Ora High Court on an information containing two counts of conspiracy to commit Arson contrary to Section 516 of the Criminal Code Cap 47 Vol. 11 Laws of the old Bendel State of Nigeria, 1976 as applicable to Edo State and Arson contrary to Section 443 of the same Law.

The case was tried by Madegbelo J at the end of which the trial court discharged the Appellant on the conspiracy charge but convicted him on the charge of Arson. Being dissatisfied with his conviction and sentence, Appellant has appealed to this court.

The reason why the trial court convicted the Appellant on the charge of Arson can be found in the following passages of her Judgment at pages 43 to 47 of the Record of Appeal when she stated inter alia thus.

“The accused person admitted burning the houses of PW7’s family and raised a defence of provocation. That he was provoked at the sight of the brutal murder of his daughter. That the said Esechie has not been seen till date (page 43)…

In considering the defence of provocation, the accused person stated that it was the brutal murder of his daughter by the brother of PW1 that provoked him to burn the houses of PW1 and family. His counsel on his behalf cited the case of Ubanu v. State Supra; Aziz v. State Supra. In these cases, the defence of provocation was raised as a defence for the offense of murder. The defence of invocation in law is only available to an accused charged for the offence of murder (page 45) …….

I will consider it the accused person ‘willfully’ burnt the houses of PW1 and family. The accused in his testimony said his head was charged when he saw the brutal murder of his daughter, he had matches in his pocket that he uses to burn in his farm, he got to the house of PW1 and set it ablaze. He stated that he did it alone but he had sympathizers on the way.

I find from the evidence before me that is, that of PW2 who was an eye witness and saw the accused and a mob of people moving to the house of PW1 and witnessed the act of the accused person and others set the three houses ablaze and the oral admission of the accused person that he set the houses of PW1’s family ablaze, that the accused person willfully and unlawfully set fire to the house of PW1”. (Page 46).

I have earlier on adverted my mind to the evidence of PW2 who witnessed the accused person and others setting fire on the houses of PW1’s family.

The accused raised the defence of provocation which I examined and found not applicable to the offence of arson. The only defence to the offence of arson known to law is a mistaken belief that the property is owned by the accused. The accused person in his testimony in court admitted setting fire to the houses of PW1… (page 47)

(Underlining supplied by me for emphasis).

The Appellant has attacked the foregoing decision of the lower court on a number of grounds shown in the Notice and Grounds of Appeal and the additional grounds. The issues for determination in this appeal arising from the grounds of appeal having been clearly and correctly set out by the Appellant’s counsel in his/brief of argument and the issues identified in the Respondent’s counsel’s brief substantially corresponding thereto, there will be no need for me to set out the grounds of appeal herein. To do so will be an exercise in superfluity. So I shall confine myself for the purpose of reaching a decision in this appeal to the issues raised in the Appellant’s brief. Those issues as shown at page 2 of the Appellant’s brief are:

“(1) Having regards to the failure of the prosecution to call the investigation police officer who investigated the criminal case at the lower court, whether prosecution can be said to have proved the case against the appellant beyond reasonable doubt. FROM GROUND 1 OF THE ADDITIONAL GROUND OF APPEAL.

(2) Having regard to the special circumstances of this case and coupled with the available defence of the Appellant available under the criminal code whether it was constitutionally right for the trial judge to reject the defence of the appellant without adequate consideration of same. FROM GROUND 3 OF THE ADDITIONAL GROUND OF APPEAL.