Ogboka V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The present appeal is consequent upon the judgment of the Court of Appeal, Abuja Judicial Division, delivered on May 19th, 2016 in appeal No. CA/A/683C/2013. By the judgment in question, the Court below dismissed the Appellant’s appeal against the judgment of the High Court of the Federal Capital Territory (FCT) Abuja delivered on March 31st, 2011 in charge No. CR/22/04.
The Appellant was a police officer who rose through the ranks to attain the non-commissioned officer’s rank of a sergeant. He was attached to the Operation and Training Command, Abuja. His last duty post was ASO Savings and Loans Ltd, FCT Abuja.
Instructively, the genesis of the Appellant’s travails is traceable to September 10th, 2003. Indeed, that was the day the Appellant, while on duty, was detailed along with the cash officer and the driver of the Bank for the purpose of conveying cash and cheque to the FCDA and Zenith Bank Maitama Branch Abuja, respectively.
After accomplishing the task, on the way back to their duty post (the ASO savings and Loans Ltd), the Appellant and co. witnessed an accident involving a motor cyclist carrying a pillion passenger and a Toyota Corolla car. Consequent upon the accident, the motor cyclist and pillion passenger fell on the ground. The driver of the Toyota car, however, drove away – a case of ‘hit and run’ accident!
The Appellant made frantic effort to prevent the errant driver escaping from the scene of the accident but to no avail. Thus, the Appellant directed the bullion van driver to activate the siren and pursue the Toyota car with a view to arresting the recalcitrant driver thereof. He also fired gun shots in the air. As the driver drove into a close, the Appellant came down from the Bullion van. In the process, the run-away Toyota driver was shot and killed as a result of a gun shot from the Appellant’s service pistol.
The Appellant reported the incident to the Armourer of the Police Command who marched him before the Deputy Commissioner of Police. He was detained and later arraigned before the trial Court upon a two count-charge viz:
That you Ex-Sargent Andrew Ogboka being a serving police officer and a Bank guard attached to Aso Savings and Loan Ltd., Area 8, Garki, Abuja, on or about 10th day of September, 2003 at about 11:30 hours in a close near Children Affairs Super Store, off Ademola Adetokunbo Street, Wuse II Abuja with intent to kill committed culpable homicide punishable with death by causing the death of MR ANGYATI DZARMA of No. 76 Niger Barrack, Abuja, by firing a gun shot into his head at a Close range with Police Brownie pistol No. BDA — 380 425 -pm 5.7624 in your possession, having apprehended him for speeding off from an accident scene involving a Toyota Corolla vehicle with Registration No. AV 545 APP driven by the deceased, and a motorcyclist, (which accident was cause the motorcyclist) and thereby committed an offence punishable under Section 221 of the Penal Code Act, Cap 532, vol. XXVII, Laws of the Federation of Nigeria, 1990, as applicable in the Federal Capital Territory, Abuja, and triable by the High Court.
That you Ex-Sargent Andrew Ogboka ‘m’ being a serving police officer and a Bank guard attached to Aso Savings and Loan Ltd., Area 8, Garki, Abuja, on or about 10th day of September, 2003 at about 11:30 hours in a close near Children Affairs Super Store, off Ademola Adetokunbo Street, Wuse Il Abuja cause the death of MR ANGYATI DZARMA of No. 76 Niger Barrack, Abuja, by firing a gun shot into his head at a close range which incident you thereafter concealed with the intent to avoid arrest and prosecution, and thereby committed an offence punishable under Section 167 of the Penal Code Act, Cap 532, vol. XXVII, Laws of the Federation of Nigeria, 1990, as applicable in the Federal Capital Territory, Abuja, and triable by the High Court.
In the course of the trial, a total of four witnesses were called by the Respondent (prosecution), who testified PW1, PW2, PW3 and PW4, respectively. The Appellant testified in his own defence as DW1. At the close of the trial, the trial Court delivered the vexed judgment thereof, on March 31st, 2011, to the following conclusive effect:
Contrary to the case for the defence, the prosecution’s case was never challenged in any way. I believe the testimonies of PW1 and 3, as credible evidence and rely upon them. The prosecution has proved their case beyond all reasonable doubt as required by the law. The accused is thus convicted.
However, upon a careful reading of the provision in Section 167 discovered that the facts in this case, cannot sustain the offence contemplated under Section 167 of the Penal Code Law.
In this case although there is clear evidence that an offence was committed and the accused knew about it, there is no iota of evidence before me that the accused caused the disappearance of the evidence of the commission or that he gave any false information to anybody to screen the offender. Further, the offence screened by the accused person must have been by another person. That being the case, the prosecution has not proved the second charge and the accused is discharged and acquitted upon it.
Having convicted the Appellant upon the first count of the charge, and acquitting him on the second, the trial Court proceeded to pass sentence there upon:
I have listened to the allocutus pleaded by Counsel to the accused and also that there is no previous record of the accused. However, the charge on which the accused was convicted does not leave the Court with any option in mitigation of his sentence. I appreciate the industry and show of knowledge of the law by respective Counsel in the handling of this case.
My hands are tied in this instance. The law must take its course. The wage of sin is death. The sentence of this Court is that the convict is sentenced to death by hanging.
The Appellant, not unnaturally, was utterly dissatisfied with the conviction and sentence passed thereupon by the trial Court. Thus, appealed to the Court below upon a total of seven grounds of the original notice of appeal. On May 19th, 2018, the Court below delivered the vexed judgment to the conclusive effect:
This Court is satisfied that the trial Court was well within its rights in refusing to convict on the lesser charge, having satisfied itself that the prosecution had proved the offense of culpable homicide punishable with death as charged; accordingly this issue too is resolved in favour of the respondent, against the appellant.
Having resolved all the three issues for determination in favour of the respondent, against the appellant, the appeal fails for lack merit, and it is hereby dismissed.
Judgment of the trial Court High Court of the Federal Capital Territory, Abuja of the 31st day of March, 2011 Coram Justice Husseini Baba Yusuf is hereby affirmed.
On February 18th, when this appeal came at long last for hearing, the learned counsel were accorded the opportunity to address the Court and adopt the articulated argument contained in the respective briefs thereof. Thus, resulting in reserving the instant judgment to today.
The Appellant’s brief of argument was settled by Yunus Lambo Akanbi, Esq on 28/02/2017. It spans a total of 29 pages. At page 4, two issues have been raised:
- WHETHER THERE WAS ANY RELIABLE EVIDENCE IN PROOF OF THE APPELLANT’S INTENTION TO KILL TO SUPPORT THE COURT OF APPEAL’S DECISION THAT THE PROSECUTION PROVED THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE – WITH DEATH AGAINST THE APPELLANT BEYOND REASONABLE DOUBT. (GROUNDS AND 10)
- WHETHER HAVING REGARD TO THE TOTALITY OF ADMISSIBLE EVIDENCE, THE LEARNED JUSTICES OF COURT OF APPEAL WERE RIGHT IN REJECTING THE DEFENCE OF ACCIDENT WHICH INURED THE APPELLANT A LESSER OFFENCE OF CULPABLE HOMICIDE NOT PUNISHABLE WITH DEATH THEREFORE. (GROUNDS 1, 2, 4, 6 AND 8).
The issue No. 1 is extensively raised at pages 4—18 of the Appellant’s brief. In the main, the submission on the issue is to the effect that the trial Court was right in holding that the 1st and 2nd elements of the offence of culpable homicide punishable with death has been established by the prosecution, and that the Appellant admitted same in both his statements to the police and testimony in open Court.
However, it is argued that the Court below could not have been right, that the third element of the offence has been proved beyond reasonable doubt by the prosecution against him.
Further argued, that the inference of the Appellant’s intention drawn by the two Courts below in vacuum, when there is no such confession from the Appellant, portray a misconception of law. That its crystal clear, from Exhibit 3, the PW1 evidence that the Appellant did not at any point in time form an intention to kill the deceased person. According to the learned counsel, the corked gun was never meant to kill the deceased; as such, there was never an intention to cause the death of the deceased in the circumstance. See AMAYO VS. THE STATE (2002) 5 WRN 1 @ 6-7.
Further argued, that the Court flagrantly refused to be bound by the decisions of this Court in IROMANTU Vs THE STATE (1964), ALL WLR 311; ADELUMOLA VS. THE STATE (1988) 1 NWLR (pt. 73) 683.
The foregoing decisions are allegedly in tandem with Section 48 of the Penal Code (supra).
It is postulated that the prosecution, for reason best known thereto, failed to call Taida Dzarma, the person who was with the deceased in the car, to testify. See AHMED VS THE STATE (1999) 7 NWLR (pt. 612) 64; ASANYA VS. THE STATE (1991) 3 NWLR (pt. 180) 422, et al.
Thus conclusively, the Court is urged to hold that the affirmation by the Court below of the trial Court’s findings that the Appellant’s intention to kill the deceased proved beyond reasonable doubt by the prosecution, when such evidence was not on record, is perverse.
The issue No. 2 is extensively canvassed at pages 19 to 26. In a nutshell, it is submitted that from the evidence before the trial Court, the Appellant was a police officer on lawful duty. It was therefore lawful for him to carry a gun. By virtue of the Police Act, he has authority to arrest an offender, suspect, or person who allegedly committed an offence. Therefore, the Appellant was carrying out a lawful duty, when he pursued the deceased to arrest him for causing accident and running away from the scene of the accident.
Copiously alluding to the finding of the below at page 419 of the record, it is argued that, there was intention by the Appellant to kill the deceased but failed to consider his defence of negligence. See EJEKA VS. THE STATE (2003) 7 NWLR (pt. 819) 408; EGBIRIKA VS. THE STATE (2014) ALL FWLR (pt. 725) 237 per Kekere-Ekun, JSC @ 256 paragraphs; et al.
In the circumstance, the Court is urged to resolve the issue No. 2 in favour of the Appellant, against the Respondent, and allow the appeal.
On the whole, the Court is urged upon to allow the appeal, set aside the conviction and sentence of the Appellant, and acquit the Appellant.
Contrariwise, the Respondent’s brief, settled by Etukwu Onah Esq. On 10/06/2020, spans a total of 27 pages. At pages 6-7 of the said brief, two issues have been formulated:
- Can the defence of accident under Section 48 of Penal Code Act avail the Appellant in the circumstances of this Appeal? (Distilled from grounds 1, 2 and 4 of the Notice of Appeal).
- Was the lower Court right to have affirmed the conviction and sentence of the Appellant for culpable homicide punishable with death on the grounds that the prosecution proved its case beyond reasonable doubt at the trial Court? (Distilled from grounds 3, 5, 6, 7, 8, 9 and 10)
The issue No. 1 is submitted in the main, that the trial Court disbelieved the Appellant’s evidence on ground of discrepancy between the extra-judicial statement and his sworn evidence before the Court.
Further submitted, that the Court below in agreeing with the finding of the trial Court, equally had recourse to the extra-judicial statement of the Appellant and statement on oath in question.
It is argued, that the defence of mistake under Section 48 of the Penal Code cannot avail the Appellant. The Court is thus urged upon to affirm the findings of the two Courts below, and resolve the issue No. 1 in favour of the Respondent, against the Appellant
The issue No. 2 is extensively argued at pages 15-24 of the brief. In the main, it is argued that from the evidence of the Appellant at page 29 of the record, he has admitted that, the driver died, and that his death was a result of the Appellant’s gunshot. Thereby establishing the two ingredients of the offence of culpable homicide punishable with death under Section 221 of the Penal Code (Supra).
It is further argued, that by his evidence at pages 28-29 of the record, the Appellant, a trained police officer still had his gun corked after he had arrested the deceased. And after he knew that he had shot the deceased, the Appellant did not report the incident to his companions in the bullion van or his office, the Bank where he worked, or any of the police stations that he had mistakenly killed the deceased, until he was arrested on 15/09/2009.
It is conclusively argued on issue 2, that the Court is not bound by the contention that the Appellant ought to be convicted for a lesser offence of culpable homicide not punishable with death, pursuant to Section 218 of the Criminal Procedure Code.
In the circumstances, the Court is urged to resolve the issue No. 2 in favour of the Respondent, against the Appellant, dismiss the appeal, and affirm the decisions of the two Courts below.
I have accorded a very critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the appeal, the extensive submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the record of appeal as a whole. Thus, I have deemed it expedient to adopt the two issues raised and argued in the Appellant’s brief in determination of the appeal, anon.
ISSUE NO 1
As copiously alluded to above, the first issue raises the very fundamental question of whether or not there was any reliable evidence in proof of the Appellant’s intention to kill to support the decision of the Court below that the prosecution had proved the offence of culpable homicide punishable with death beyond reasonable doubt against the Appellant. The first issue is distilled from grounds 3, 5, 7, 9 and 10 of the notice of appeal.
Instructively, the provision of Section 221 of the Penal Code (supra), the prosecution has a duty of proving beyond reasonable doubt the following ingredients:
Except in the circumstances mentioned in Section 222 culpable homicide shall be punishable with death:
(a) If the act by which the death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.
Most cherishingly, the provision of Section 221 of the Penal Code (Supra) is no longer an unchartered coast. Indeed; that Section has been a subject of far-reaching judicial pronouncements by this Court in a plethora of authorities. See ILIYASU VS. THE STATE (2015) All FWLR (Pt. 793) 1917 @ 1923; USMAN VS THE STATE 1917 @ 1923.
Most particularly, in the case of USMAN VS. THE STATE (Supra), our own noble and learned brother, Peter-Odili, JSC aptly postulated:
The prosecution faced with that duty of proof of the offence aforesaid, must prove all the ingredients of the offence as contained in Section 221 of the Penal Code which ingredients must coexist, non-missing. These vital components of the offence are stated here under as:
- That the deceased had died.
- That the death of the deceased had resulted from the act of the accused person.
- That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See YAKI VS THE STATE (2008) ALL FWLR (PT. 440) 618 (2008) 7 SC 128 AT 129; SHANDE VS. STATE (2004) ALL FWLR (PT 223) 1955 (2005) 1 NWLR (PT. 907) 218 @ 238.
Parties are ad idem, as aptly found by the trial Court and duly upheld by the Court below, that the first and second ingredients have been proved beyond reasonable doubt by the prosecution (Respondent).
The fact that the Appellant was responsible for firing the gunshot which resulted in the unfortunate death of the deceased person is not in doubt at all. However, the issue at stake is regarding whether or not the Appellant had the intention of killing, or causing bodily harm to the deceased person in question. On this note, I have deemed it expedient to copiously allude to the finding of the trial Court at pages 165 (lines 23-29) and166 (lines 1-4) of the record of Appeal:
There is evidence that the accused pursued the deceased through several streets in Abuja during which he admittedly fired shots into the air when he caught up with the deceased and the deceased was cut down by his bullet, he returned to the van, did not tell co-traveler, neither did he report the accident to his office and was attending to his work in the bank for days thinking he could escape the long arms of the law. All these in my view points to the fact the accused intended the death which is the killing of the deceased…
In affirming the foregoing findings of the trial Court, the Court below at pages 424 (lines 17-19) and 427 (lines 9-13) of the record of appeal equally stated:
The action or conduct of the accused almost always determine his or her intention, and in this particular case, a few of the appellant’s actions standout as lead to his intention.
It is the considered opinion of this Court that there was sufficient evidence before the trial Court to rightfully convict the accused/appellant of the offense of culpable homicide punishable with death; accordingly this issue too is resolved in favour of the respondent, against the appellant.
Undoubtedly, the actions (conducts) which have been construed by the two Courts below could be found both in the Appellant’s testimony (viva voce) in Court and the extra-judicial statement thereof (Exhibit 3) contained at pages 28 and 151 of the record of appeal.
In Exhibit 3 (pages 27-30 of the record of appeal), the Appellant narrated in great detail the circumstances surrounding the ‘hit and run’ accident; how he pursued and hot-chased the errant driver to many streets within Wuse, Maitama up to Amigo Plaza where:
There was a hold-up then I fired my pistol in the air. So as to scared (sic) him but he still refused and drove away. He drove away. He drove and finally plucked in a close near children affairs at Wuse ll. I came down from our bullion van to arrest him, in the process of dragging him to enter his car so that I can take him to the nearest police station by then my pistol was still cocked as a result when I was holding the pistol within my right hand unknowingly I trigged then the bullet hit the driver of the Toyota Corolla on his head. He fell down and I touched his body which I discovered that he was death (sic).
Again, in his viva voce under oath, he narrated the circumstance surrounding the incident leading to the unfortunate death of the deceased person. His evidence is not dissimilar from the narratives in Exhibit 3, copiously alluded hereto above. According to the Appellant:
The accident was between a motor-cyclist and a driver of a Toyota Car. There were two people on the motor cycle and 2 people in the car. The driver of the vehicle negotiated and drove from the scene. This time the occupant (sic) of the motor cycle were lying down. I tried to stop the driver he refused and continued.
… in the process I was raising my pistol up and shouting that we were police. He were driving in a bullion van carrying siren. We continued in the process and he refused to stop. He did not stop. He drove to the close and I jumped down from the vehicle to arrest him. As we were dragging I did not remember that the pistol was on and all of a sudden it exploded. Before this point we have chased the vehicle of the deceased for up to an hour.
The Appellant equally testified that he did not know the cyclist involved in the accident in question. And that when –
The deceased fell down and I started crying. Went back to the vehicle and directed the driver to drive to the office and report myself
I felt that something must have happened to the deceased so I left him and went away to report myself. On getting to the command office, I reported to the armourer who matched me before the deputy commissioner of police. I was later detained at Wuse police Station.
On the 16/09/031 was brought out of detention and force headquarters where it was said that the Inspector General of Police had directed that I should be taken to Court
On the question of whether the Appellant had reported the incident to the Police authority, he has this to say:
I mentioned in my statement to the police that I did not inform anybody after the incident because I was told by the police to say so since the was not aware of the detention, it was my second that was signing attendance register for me at the Bank. He is Sgt. Samuel. I regret the mistake I made. I was trying to save life. My dad heard of this incident and developed stroke. The gunfire is not deliberate. It was accidental. During my incarceration, I have become a born again.
Under cross-examination by the prosecution counsel, the Appellant equally had this to say:
I joined the police in 1991… in the course of training, I was trained on how to handle weapons. The pistol I was holding that day has a safety position. When I was pursuing the deceased, I left the pistol in a firing position. This is because when we carry money, armed robbers used to attack us. It is not true that I was careless while pursuing the deceased.
The evidence of the eye witnesses of the incident (PW1 and PW2) is contained at pages 132—134 and 135—196 of the Record. Most particularly, the evidence in-chief of the PW1 is to the effect inter alia:
PW1: My names are Sanusi Ado. I am 35 years old. I am a banker working with Aso Savings and Loans PLC attached to Wuse Market branch. On 10/9/031 was working with Aso Savings as Cash Movement Officer at Area 8 Garki branch, Abuja. On that day I was asked to move about N3,000,000.00 from Area 8 branch to FCDA Area 11 branch with some cheques to be delivered at Zenith Bank, Maitama. I was in company of driver Moses Azi and the police man attached to cash movement.
The testimony of the PW1 is virtually in line with the evidence of the Appellant who testified as DW1. Under cross-examination, the PW1 reiterated:
In my opinion the intention of the accused originally was to arrest the deceased and not to kill him… I heard the second shot but I did not see the accused shoot the driver. I can’t say what transpired between the accused and the deceased. Before now I was arraigned with the accused before another Court along with the driver of that van in the chief magistrate Court…
The accused visibly shaken when he returned to us after the encounter with the deceased. I do not know why the accused was shaking … whether there is the only security officer to direct our movement. This is on security ground because armed robbers do not know when we have cash and when we do not have.
The PW2, the second eye witness testified inter alia:
PW2 … My names are Moses Azi, a driver with Aso Savings and Loans Ltd., Area 8 Garki, Abuja branch. I know the accused person. He is a police officer attached to my bank…
On 10/9/03 I resumed normal work at Garki. We were given cash of N3,000,000.00 to deliver the cash to FCDA branch and the Cheque to Zenith Bank, Maitama. I was with my cash officer (PW1) and the police Sgt. The accused. After delivering the cash at FCDA we took the cheque to Zenith Bank Maitama…
The testimony of the PW2 is virtually in line with that of the PW1. On 20/02/07 the PW2 testified in chief. The case was however adjourned on record to 15/3/07 for cross-examination of the PW2. However, it’s obvious on the face of the record, that the PW2 was neither recalled nor cross-examined at any point in time the trial lasted.
Having critically, albeit dispassionately, reviewed the evidence of the prosecution, most especially that of the key witnesses, the PW1 and PW2, I am unable to uphold the findings of the Court below, to the conclusive effect that the third ingredient of the charge i.e intention to either kill or cause grievous harm the deceased person, has been proved beyond reasonable doubt against the Appellant.
As copiously alluded heretofore, the evidence of most especially the PW1 is very much supportive of the Appellant’s defence, to the effect that.
“In my opinion the intention of the accused originally was to arrest the deceased and not to kill him.”
That evidence of the PW1 clearly supports the Appellant’s defence under oath, to the effect, that his service pistol was corked not necessarily because he had premeditated intention to kill the errant hit-and-run away driver, but due to the fact that:
“When we carry money, armed robbers used to attack us. It is not true that I was careless while pursuing the deceased.
See page 152 (lines 11—13) of the record of appeal.
My noble Lords, I am not unmindful of the trite doctrine, that to constitute the offence of murder, the prosecution shoulders the burden squarely of proving beyond reasonable doubt that Appellant at the material time, he fired his pistol (gun) had premeditated (intended) to cause the death of the deceased or cause grievous harm thereto. In the instant case, there is nothing in the evidence of the prosecution star witnesses – PW1 and PW2 or any witness at all, to suggest by any stretch of imagination, that the Appellant willfully aimed and fired his service pistol at the deceased, thereby resulting in the death thereof. As once aptly posited by this very apex Court:
It might be that the appellant fired at random. That being so, the necessary intent to constitute the offence of murder has not been established beyond reasonable doubt. The learned trial Judge ought to have considered the possibility that on the facts before him, a conviction for manslaughter was a verdict open for consideration. I think for this reason alone, the appeal ought to succeed.
See AMAYO VS THE STATE (2002) 5 NWLR 1 Per Ogundare, JSC @ 7.
In the instant case, it is so obvious from the totality of the evidence adduced at the trial, that the Appellant was the only eye witness with the exception of the deceased driver’s companion in the Toyota Corolla car, in the person of Tarida Dzarma. Regrettably, the Respondent failed, for reasons best known to him, to call that very vital eye witness to testify in the case. If he had been called, his evidence could have immensely assisted the trial Court in arriving at a more justifiable finding and conclusion therein. See AHMED VS. THE STATE (1999) 7 NWLR (Pt. 612) 641, ASANYA VS THE STATE (1991) 3 NWLR (Pt. 180) 422.
Most particularly, in the case of AHMED VS. THE STATE (Supra), this Court squarely faced with a similar scenario as in the instant case, aptly held:
The trial Court was therefore left with the testimony of the Appellant as the only eye witness of what led to the stabling (sic). He made statements to the police and has been very consistent all along. Whatever any other witness would testify to as to the stabbing is hearsay. Not circumstantial evidence.
In a situation where only the evidence of the accused person as to the actual stabbing is the only eye witness account he is either believed or there is no other evidence to believe.”
Per Belgore, JSC (as the learned Lord then was) @ 674 — 675 paragraphs H-A. See alsoBUBA VS THE STATE (1994) 7 NWLR (Pt. 355) 195 @ 203. SMART VS THE STATE (2016) All FWLR (Pt. 826) 548 @ 568 Paragraphs E-F, et al.
In the circumstances, the issue No 1 ought to be, and same is hereby resolved in favour of the Appellant.
ISSUE NO 2
The second issue raises the very crucial question of whether or not having regard to the totality of admissible evidence, the Court below was right in rejecting the defence of accident which inured the Appellant a lesser offence of culpable homicide not punishable with death. The second issue is distilled from grounds 1, 2, 4, 6 and 8 of the notice of appeal.
It has been insinuated upon by the Appellant (page 20 paragraph 7-03 Appellant’s brief), that the Appellant’s conviction under Section 221 of the Penal Code ought to have been substituted for the lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code.
I have deemed it expedient, at this very point and stage, to allude to the finding of the trial Court at page 67 (lines 4- 8) of the record of appeal:
Contrary to the case for the defence, the prosecution’s case was never challenged in any way. I believe the testimonies of PW1 and 3 as credible evidence and rely upon them.
The prosecution has proved their case beyond reasonable doubt as required by the law. The accused is thus convicted as charged.
On the other part thereof, the Court below equally found at page 430 of the (lines 12-20) of the record of appeal:
The trial Court was justified in rejecting the application to convict for a lesser offense when it is satisfied that what had been charged was proved to its satisfaction and if the prosecution was counting on the exercise of its discretion by the Court, then it has to be said;
… discretion is thus not an indulgence of a judicial whim, but the exercising of judicial judgment based on facts and guided by the law or the equitable decision. Per Oputa, JSC IN UNITED BANK FOR AFRICA VS. GMBH & CO. (1989) 3 NWLR (Pt 110) 374.
Most regrettably, the purported concurrent findings of the trial Court and the Court below are a far-cry from the evidence on record. As copiously alluded hereto above, the evidence of the foremost prosecution’s eye witness, the PW1 was to the effect that in his –
“Opinion the intention of the accused originally was to arrest the deceased and not to kill him.”
What is more, the only potential eye witness who could have greatly assisted the trial Court who knows the actual truth of whether or not the Appellant intentionally aimed his pistol “point-blank”, thereby shooting and killing the deceased was never called by the prosecution for reasons best known thereto. This lapse undoubtedly created a devastating lacuna and serious doubt in the case of the prosecution, especially in regard to the third ingredient of the charge.
The trial Court ought to have considered the possibility that, on the facts and circumstances presented before it, a conviction for culpable homicide not punishable with death (otherwise known as manslaughter under the Criminal Code) was a verdict open for consideration. See AMAYO VS. THE STATE (supra), Per Ogundare, JSC @ 7.
In the instant case, contrary to the unjustifiable finding of the Court below copiously alluded thereto above, the trial Court has no discretion but to substitute the charge for the lesser offence of culpable homicide not punishable with death under Section 222 of the Penal Code. In my considered view, the purported exercise of discretion, copiously alluded by the Court below, could aptly be likened to what the House of Lords (now Supreme Court of the UK) characterised as the exercise of crooked cord of discretion in the notorious case of PETTITT VS. PETTITT:
To use the language of coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met wand of the law.
See PETTITT VS PETTITT (1977) HL 777 Per Lord Hodson @ 808.
Most interestingly, the foregoing rather uncomplimentary remarks of Lord Hodson in PETTITT VS. PETTITT (Supra), was a blunt reaction to Lord Denning’s dictum so radically enunciated in the case of HINE VS HINE (1962) 1 NLR 1124 @ 1124, wherein the legendary quintessential jurist postulated in his notorious characteristics:
Its discretion transcends all legal or equitable, and enables the Court to make such order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as may be fair and just in all the circumstances of the case.
However, as aptly postulated hereinabove, the House of Lords did not take kindly Lord Denning’s radically overreaching dictum, hence the remarks copiously referred to in HINE VS HINE (Supra).
In the instant case, the Court below affirmatively held at page 419 of the Record of Appeal, to the following effect:
This Court finds the conclusion reached by the trial Court compelling in the circumstance, when it held… an accused as in the instant case cannot take refuge in a defence of accident for a deliberate act, even if he did not intend the eventual result
From the following findings, the two Courts below were fully appreciative of the fact that the very fundamental third ingredient of the charge – intention – actually had not been proved beyond reasonable doubt by the prosecution. And yet the law is well settled, beyond per adventure, that unintentional killing of a human being, which is unpremeditated but accidental, tantamounts to culpable homicide not punishable with death (otherwise called manslaughter). See EJEKA VS THE STATE (2003) 7 NWLR (Pt. 819) 408.
In the recent case of EGBIRIKA VS THE STATE (2014) All FWLR (Pt. 725) 237, this Court had the unique privilege of reiterating the trite fundamental doctrine:
The position of the law is that no matter how reckless the conduct of the accused might be, so long as the killing the result from his act was not intended, the act would not fall within the provisions of Section 316 of the Criminal Code and therefore would not constitute murder.
It has been posited by the Appellant, at page 23 paragraph 7.15 of the brief thereof:
7.15 A calm and dispassionate perusal of the evidence of the Appellant in Court which the two lower Courts found as an afterthought tend to support the defence of accident, while evidence in his extra-judicial statement shows that the Appellant was negligent negatives the defence of accident and the killing of a person by negligent act constitutes manslaughter or culpable homicide not punishable with death. See OMINI VS. THE STATE (1999) 12 NWLR (PT. 630) 168 @ 182 Para A and BANDE VS. THE STATE (1972) NSCC page 611 @ 614.
I would want to believe, with every sense of responsibility, that the foregoing submission is very much apt and quite in accord with the facts and circumstances surrounding the evidence adduced at the trial. Undoubtedly, the circumstances surrounding the evidence on record are irresistibly to the effect that the Appellant cannot, by any stretch of imagination, be deemed to have intended the killing of the deceased. However, as aptly posited by the Appellant’s learned counsel, the totality of the evidence on record only establishes the ingredients of the offence of culpable homicide not punishable with death. Regrettably, the two Courts below were gravely in error, when they unwittingly failed to hearken to the learned counsel’s plea to convict the Appellant on the alternative offence of culpable homicide not punishable with death. See AUTA VS THE STATE (1975) NWLR 60.
In the circumstances, the second issue equally ought to be and same is hereby resolved in favour of the Appellant.
Hence, having considerably resolved both issues in favour of the Appellant, there is no gainsaying that the appeal grossly succeeds, and it is hereby allowed by me. The judgment of the Court of Appeal, Abuja Judicial Division delivered on May 19th, 2016 in appeal No. CA/A/616C/2011, is hereby set aside. The conviction and sentence for the offence of culpable homicide punishable with death under Section 221 of the Penal Code are hereby substituted for conviction and sentence for culpable homicide not punishable with death under Section 222 (7) of the Penal Code. The Appellant’s death sentence is accordingly substituted with a sentence of Twenty (20) years imprisonment with effect from the date of detention thereof.