Oluwafemi Aihenvba V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment)

This appeal is part of a trilogy arising from the decision of the High Court of Edo State presided over by Hon. Justice C. O. Idahosa, Chief Judge in Charge No. B/57C/2006. The judgment which was delivered on 23rd July, 2010 is at pages 394 – 471 of the Main Records of Appeal.

Nine persons were arraigned on a three count charge of conspiracy to commit murder and the murder of two persons. In the course of the trial at the Lower Court, three of the accused persons were discharged at the close of the case for the prosecution; their no case submission having been upheld. The remaining six accused persons entered upon their defence and at the conclusion of the trial, three of the six were discharged and acquitted, while the other three, including the Appellant, who was the 5th accused person were convicted as charged and sentenced to death by hanging.

Peeved by the judgment, the Appellant appealed against the same on 27th July 2010. The Notice of Appeal is at pages 488 – 492 of the Main Records. In addition to the Main Records of Appeal, there

is a First Supplementary Record of Appeal and a Second Supplementary Record of Appeal. The said Records which were transmitted in respect of a sister appeal were by order of Court made on 11th November 2014 directed to be used for this appeal.

As can be deciphered from the Records, the following are the background facts which led to the arraignment of the Appellant and others:

On 15th November 2005, Chief Sunday Ahanor, who is one of the deceased persons went to the Palace of the Oba of Benin. While he was there, his driver, the PW4, informed him about a padded red Mercedes Benz 190 which was parked on the road in front of the Oba?s Palace and in which he sighted the Appellant and one other accused person, among some other persons who used handkerchiefs to cover their faces.

Chief Sunday Ahanor then directed him to observe the said vehicle and its occupants. Later, Chief Ahanor got the PW1 who was at the Palace to take him to the office of the Asst. Inspector General of Police (AIG) so that he could lodge a report. After the deceased left the Oba’s Palace for the AIG’s Office, the Appellant was said to have left the padded red

Mercedes Benz 190 and walked into the Palace to spy if Chief Ahanor was still there. The PW4 called Chief Ahanor at the AIG?s Office to inform him about this and he, the deceased Chief Ahanor, directed the PW4 to charter a commercial bus and come to meet him at the AIG?s Office.

The commercial bus driven by the PW2 was chartered and they went and met the deceased, Chief Ahanor at the AIG?s Office where five police officers were directed to follow Chief Ahanor to go and arrest the persons in the padded red Mercedes Benz 190. However, when they arrived where the vehicle was parked, the vehicle was no longer there and it was decided that they retrieve Chief Ahanor?s Sport Utility Vehicle where it was parked at the Oba?s Palace in order for them to escort him to his house. The Sport Utility Vehicle was then driven by the PW4 who was joined by a Police Officer while the deceased Chief Ahanor and the other Police Officers remained in the chartered commercial bus.

?On their way to Chief Ahanor?s house, the PW4 claimed that he saw the padded red Mercedes Benz 190 coming from the opposite direction and he pulled over and

called the attention of the occupants of the commercial bus to the said vehicle. When the padded red Mercedes Benz 190 drove past them, they decided to turn and pursue the said vehicle. While the pursuit was on, they lost sight of the vehicle but then it was stated that while they wondered which way the vehicle went, there was a sudden burst of gunfire as a result of which Chief Sunday Ahanor and one of the Policemen with him in the chartered commercial bus, Corporal Ibrahim Adukwu, were killed while others sustained injuries. It was based on these facts that the Appellant was convicted, and which conviction spawned this appeal.

?With the regularisation of the Records of Appeal, briefs of Argument were filed and exchanged by the parties. The Appellant?s Brief was filed on 6th February, 2015 while the Respondent?s Brief was filed on 13th February, 2015. At the hearing of the appeal, I.I. Ojeyokan Esq., learned counsel for the Appellant adopted and relied on the aforesaid Appellant?s Brief in urging the Court to allow the appeal. Equally, Chief V.E. Otomiewo learned counsel for the Respondent adopted and relied on the submissions in the

Respondent?s Brief and he urged the Court to dismiss the appeal.