Henry Ojukokaiye V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos State delivered on the 7th day of March, 2008 by Justice A. A. Oyebanji.

The Appellant as an accused person, was charged before the High Court of Lagos State holden at Ikeja [hereinafter referred to as the trial court), on an information of a sole count of murder contrary to Section 319(1) of the Criminal Code, Cap 32 Vol. 2 Laws of Lagos State.

The particulars of the offence stated that on or before the 1st day of September, 2001, the Appellant murdered one Corporal Agboola Oyeniran, at Church Bus Stop, Ipaja.

Upon arraignment, the Appellant pleaded “Not Guilty” to the charge and the case proceeded to hearing. To prove its case, the prosecution called five witnesses and tendered twelve exhibits while the Appellant testified on its own behalf as DW and called no other witness nor tendered any exhibit. The case of the prosecution goes thus:

On the day of the incident at Church Bus Stop, the Appellant (in police uniform) and two other officers (in mufti) stopped a Veragon Volkswagen bus and ordered all passengers in the bus to alight from

the bus. The deceased who was one of the passengers in the bus alighted and brought out his identity card to show he was also a police officer. He also brought out his service pistol to avoid any embarrassment should it be discovered that he was carrying a gun. At that point he was asked to surrender his gun which he refused. The team of policemen forced the deceased to surrender his gun but he refused. This resulted in a struggle between the team of police officers and the deceased over the deceased’s pistol.

The wife of the deceased Toyin Agboola who was also one of the passengers in the bus pleaded with the team of policemen and explained that her husband is one of theirs, but her plea fell on deaf ears. As the struggle intensified, the deceased then agreed to surrender his gun only to the Divisional Police Officer at the Appellant’s police station. One of the police officers in the team, corporal Ladipo then left the deceased and went to start their bus so that the deceased can ride in the bus with them to the station.

As the deceased was boarding the bus, the Appellant pulled him back and insisted on disarming him before they left for their station. The

deceased maintained he will only surrender his gun to the DPO. The Appellant then shot him at his stomach.

However, the Appellant’s own story was slightly different. It briefly goes thus – he spotted the Veragon Volkswagen bus as it was driving recklessly and stopped it. He ordered that all passengers to alight from the bus but the deceased refused to alight. But when the deceased finally alighted, the deceased brought out a gun and opened fire. As he was running to safety he slipped, jumping over a gutter and in the process two of his bullets exploded into the air. After which he noticed the deceased was neutralized. The deceased was then taken to the station, it was then he knew the deceased was a police officer and he was subsequently rushed to the hospital.

In his defence, the Appellant had proffered the defence of accident under Section 24 of the Criminal Code, self-defence and the defence offered under Police Force Order 237. At the conclusion of the trial, the court found the Appellant guilty as charged. He was convicted and sentenced accordingly.

?Dissatisfied, the Appellant appealed against the said judgment to this court vide his Amended Notice of Appeal

containing 13 grounds of appeal. In accordance with the rules of this court, the parties through their counsel filed and exchanged their briefs of argument. The Appellant’s brief of argument was filed on the 8th day of June, 2015 the Respondent’s brief was filed on the 8th day of April, 2013 but deemed properly filed on the 23rd day of June, 2015.