Freeborn Akpoveta V. The State (2007)

LawGlobal-Hub Lead Judgment Report

GOERGE OLADEINDE SHOREMI, J.C.A.

This is an appeal against the judgment of High Court of Delta State presided over by OHWO J. in charge No. HCI/4c/99 wherein the appellant was on the 2nd day of April, 2003 convicted on two counts charge for the offence of murder and unlawful possession of firearms. The trial court sentenced the appellant to death for the offence of murder and deferred the sentence in respect of the offence of unlawful possession of firearms.

In the information filed in the High Court of Delta State Agbor Judicial Division, the Appellant was charged with the following offences.

1. Murder contrary to Section 319(1) of the Criminal Code Cap 48 Laws of Bendel State of Nigeria applicable to Delta State, and
2. Unlawful possession of Firearms contrary to Section 3 of the Robbery and Firearms (Special Provisions) Decree 1984.

The prosecution to prove its case called six witnesses while the appellant testified on his on and called one witness.

The case of the prosecution is that on 4/7/99, the appellant unlawfully shot and killed one Emi Ossai (deceased) P.W. 1 was an eye witness who testified to the shooting incident and he testified to the effect that on the fateful day at about 7.15 P.M. he was walking along Okpogoro Street in Abraka in company of the deceased and one Ibi Judge when the appellant drove past and turned into a compound along the Street. The appellant packed his car took out a double barrel gun from his car and approached the group. He ordered them to stop and bail up after which he shot the deceased who held his stomach before falling down dead. The deceased died on the spot.

The double barreled gun was tendered as Exhibit E. It was also alleged that the appellant has no Firearm Licence.

The appellant denied the charge of murder and testified that on the fateful day he was attacked by four armed robbers who shot at him while he was seated in his car. He claimed that the robbers ran away but later resurfaced down the Street and in a bid to scare them away he shot at them it was later that he knew that one of them was dead and he made a report at the police station Abraka. The appellant also denied the charge of unlawful possession of firearms and hat Exhibit L was the licence.

Counsel on both sides addressed the court and in a considered judgment the trial Judge found that the prosecution had proved its case against the appellant beyond reasonable ground.

Being dissatisfied with the judgment the appellant appealed to this court by leave of this court granted on 23/3/05. The grounds of appeal filed by the appellant are deemed filed wherein. It contained (31) Thirty one grounds. I state them hereunder without their particulars.

“GROUNDS OF APPEAL

GROUND 1:

The learned trial Judge erred in law when he held thus:

“All through the stories told by the accused person both in his statement to the police and his evidence in court I cannot see what was robbed from him. There is no evidence of anything capable of being stolen, taken away from the accused on the date in question.”

GROUND 2