Oche Matthew V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State, Owo Judicial Division, presided over by Honourable Justice A. O. Adebusoye, delivered on 28th September, 2009 in which the Appellant was convicted of the offence of murder and sentenced to death.

The Appellant was on 10th April 2008 arraigned before the High Court of Ondo State, Owo Judicial Division upon a one count charge of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code cap 30 Vol. 11 Laws of Ondo State of Nigeria, 1978. The case of the prosecution is that on 8th December, 2004 following an alarm discovered to be false raised by one corporal Macaulay Inomiesa, Sergeant Eze John led a team of four mobile policemen including the Appellant to Obayanju Hotel in Owo on information that armed robbers were camped there.

At the scene, one Akeem Akinwunmi (the deceased) was arrested and shot dead by the Appellant. It is the case of the prosecution that the circumstances surrounding the presence of the mobile policemen including the Appellant at the scene of the crime was questionable as there was no reported case of armed robbery or an attempt in the area at that time.

It is also the case of the prosecution that the deceased was not armed at the time he was shot by the Appellant and that the exhibits purportedly said to have been recovered from him were not recovered from him or from any of those arrested at different locations in and around Obanyanju Hotel with the deceased on the day of the incident.

That other passerby received gunshot wounds with one Okechukwu Nwankwo, a spare parts dealer in Owo receiving treatment at the Federal Medical Centre, Owo. And, that the Appellant shot and killed the deceased for no justifiable reason.

The case of the Appellant is that on 8th December 2004 at about 8:30p.m. Sergeant Ejeh and Inspector Ogidan informed him and some other mobile policemen at their duty post that one corporal Macaulay Inomesia reported that he saw three people standing in front of Obayanju Hotel discussing. That one of the three persons was a dismissed police officer while the third person had a locally made pistol and UTC axe tied to his waist.

That the said Corporal Macaulay Inomesia suspected that the three persons were armed robbers. That Inspector Ogidan mobilized five of them and they proceeded to the scene of crime only to get there and not locate the suspected armed robbers. That Sgt. Eze who was the leader of the team, ordered that three officers should enter the hotel while he (the Appellant) was ordered to stand on guard outside. That it was Corporal Gope Enong who arrested the deceased inside the hotel and recovered a locally made pistol and UTC axe from him.

That the deceased was handed over to him, while he was standing on guard outside the hotel. That he ordered the deceased to lie down. The deceased pretended as if he was going to obey. Immediately Corporal Gope Enong went back into the hotel, the deceased got up and ran. The Appellant shouted that the deceased should stop but that he did not heed to his call. He then shot at the deceased’s direction with three bullets and that he (the deceased) was hit by one of the bullets. Also, that some passerby received gunshot wounds.

He (Appellant) was trained on the use of firearms. His intention was to prevent the deceased from escaping. That there was no light on the day of the incident and that from the exhibits recovered from the deceased, he believed the deceased was an armed robber but that the deceased was not armed when he shot and killed him. That the deceased did not portend any danger to him when he shot and killed him but he was justified by Force Order No. 237 (E).

The prosecution called four (4) witnesses and tendered four (4) exhibits A, B, C and D, the Appellant testified for himself and called no witnesses. At the close of evidence and addresses by Counsel, the learned trial judge delivered his judgment on the 28th of September, 2008 and found the Appellant guilty of murder and sentenced him accordingly.

Dissatisfied with his conviction and sentence, the Appellant filed a Notice of Appeal dated 9th October 2009. However, on 31st October, 2011 this Honourable court granted leave for the Appellant to file Amended Notice of Appeal and deemed as properly filed the one earlier filed on 20/9/2010. The Appellant’s Amended Notice of appeal contains seven (7) grounds of appeal.

The Appellant’s Amended Brief of Argument dated 20/9/2012 and filed on the same day was deemed filed on 23/01/2013.