John Agbo V. The State (2004)

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SUNDAY AKINOLA AKINTAN, J.C.A. 

 

This is an appeal from the judgment delivered by Ekumankama, J. sitting at Ohafia High Court formerly in Imo State but now in Abia State. The judgment was delivered on 24th April, 1991, incharge No. HOH/3C/86. The appellant was arraigned before the court on an information in which he was charged with the murder of one Arua Okpo Onuka contrary to section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963, applicable in Imo State. The particulars of the offence are that the appellant, John Agbo, on the 26th day of January, 1985 at Ndi Uduma Awoke, Ohafia in the Ohafia Judicial Division murdered Arua Okpo Onuka.

At the trial, the accused pleaded not guilty to the charge preferred against him. Seven witnesses testified for the prosecution and the accused gave evidence in his defence. But he called no witnesses. Learned Counsel for the parties thereafter addressed the court. The learned trial Judge then reserved his judgment. In the reserved judgment delivered on 24th April, 1991, the learned Judge held that the prosecution had proved its case against the accused.

He accordingly found him guilty of the charge of murder and sentenced him to death by hanging.
The accused was dissatisfied with the verdict and he has appealed to this court. Two original grounds of appeal were filed against the verdict. But with leave of this court, four additional grounds of appeal were added bringing the total number of the grounds of appeal to six.

The parties filed their brief of argument in this court. The appellant formulated the following three issues as arising for determination in the appeal:
“(1) Whether the essential elements of murder and the guilt of the appellant were established beyond reasonable doubt as laid down by section 138(1) of the Evidence Act before he was convicted for murder and sentenced to death.
(2) Whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of the provisions of section 24 of the Criminal Code.
(3) Whether the conviction and sentence to death of the appellant was done in accordance with the law.”

The respondent, on the other hand, formulated two issues. The two issues are as follows:
“(1) Whether the charge of murder preferred against the appellant was proved by the prosecution beyond reasonable doubt.
(2) Whether the trial of the appellant was valid in law.”

As I consider the three issues formulated in the appellant’s brief adequately cover those formulated in the respondent’s brief, the issues formulated in the appellant’s brief will be adopted in resolving the questions raised in the appeal.

The brief facts of the case are that the appellant was a 24-year old police constable at the time of the incident. He enlisted into the Nigeria Police on 5th October, 1982 and after a three-month course at the Enugu police training school, he was posted to Uwani police station also in Enugu in January, 1983. His first assignment after passing out from the police training school was as an orderly to the divisional police officer in Uwani, Enugu. His next posting was as an orderly to a lady magistrate also in Enugu. The incident that led to his trial in the instant case took place while serving as an orderly to the lady magistrate, Mrs. Jumbo Ofor.

On 26th January, 1985, the lady magistrate sent the appellant to escort her driver, whom she sent to deliver some bags of cement from Enugu to Arochukwu. The appellant left as directed. He was dressed in his police uniform and carried a berretta pistol loaded with seven rounds of ammunition. There were three of them in the vehicle used in conveying the cement: the driver of the lorry, the driver of the magistrate and the appellant. They delivered the bags of cement at Arochukwu as they were instructed. The incident occurred on their journey back to Enugu. It was at Ndi Uduma Awoke road junction on their way back to Enugu, a Peugeot 504 car driven by the deceased was said to have stopped at the center of the road. The car stopped so as to discharge some passengers it carried. The van in which the appellant was traveling had to stop as the road was blocked by the car driven by the deceased.

The appellant came out of the van and went to the driver (the deceased). He asked him why he blocked the road with his car. An argument between the deceased and the appellant then followed. It was in the course of the exchange of words that the appellant was said to have shot the deceased with the pistol he carried with him. There are three eye-witness accounts of the incident given by three witnesses. Two of the witnesses, PW3 & PW5 were passengers in the car driven by the deceased, while the third (PW4) was the driver of the van in which the appellant was traveling back to Enugu on that day.

The account of the incident as given by Fidelis Onuka Okpogho PW3, a relation of the deceased is inter alia as follows:
“…The deceased was a driver. He carried us from Elu Ohafia Motor Park heading towards Arochukwu. At Ndi Uduma Awoke junction, a passenger wanted to disembark and the deceased driver stopped and cleared on the right hand side outside the tar mark. At this moment a van was coming on the opposite direction from Arochukwu. The van stopped after passing us about 5 metres before our car. All of a sudden, the accused who was dressed in police uniform came out of the van and moved towards us. At the time the deceased driver had gone into his seat in the car to move. The accused came to the deceased and asked him why he parked his car there. The deceased tried to explain, but the accused was pointing to the deceased. And as the deceased was still explaining the accused pulled out his pistol from the scarbald and threatened to shoot the deceased driver. All of a sudden, the accused pointed the pistol behind the left ear of the deceased driver and fired. Blood was rushing out from the nose and ear of the deceased…”

Although, the witness at first denied under cross-examination that there was any struggle between the deceased and the appellant on the day, he however admitted that he observed that the uniform of the appellant was torn when he later saw the appellant at the police station after the incident on the same day. He also later, admitted that the driver and the appellant were struggling over the key to the vehicle and that the appellant had not pulled out his gun at the time they were struggling over the car key.

The second eye-witness account was given by Anthony Nweze (PW4), the driver of the van which carried the cement from Enugu to Arochukwu and in which the appellant was returning to Enugu on the day of the incident. His account of the incident is as follows:
“…At Arochukwu, we unloaded the cement and left for Enugu. On our way back and at a place very near to the Ohafia Army Barracks, the road was narrow. There was a taxi cab which packed on the left, but on its own right hand side. I slowed down to enable me pass the taxi cab on the narrow road. As I slowed down, the accused jumped down and the other person who was in the front, asked him to get into the vehicle for us to go on. I had not passed the taxi cab when the accused jumped down. I was concentrating on my driving. I heard the accused struggling with the people and suddenly, I heard a sound of gun shot…”