Victor Fabiyi V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Justice of Rivers State Nigeria in charge NO. PHC/1987CR/2007 contained in the judgment of Boma Diepiri, J dated 26th April 2010 in which the Appellant Victor Fabiyi as accused person was convicted and sentenced along with one CPL Wafal Animu to death.

The facts on record are that on 17th September 2006, the Appellant, a taxi driver during the cause of his business along Olu Obasanjo Road, Port Harcourt was flagged down by a group of four people comprising two men and two ladies. They requested that the Appellant should convey them to Tombia Street close to the Meridian Hotel Port Harcourt.

The Appellant charged them N300.00 but they insisted on N200.00. An argument ensued between them and the appellant resulting to hot vulgar exchanges. The Appellant alleged in the scenario that he was molested and robbed of his mobile phone and N1,500.00 (one thousand, five hundred naira). He left the scene and on his way he met a Police Patrol Team and he narrated his ordeal to the Police Patrol Team. The police Inspector whom led the Patrol Team instructed three of his men to accompany the Appellant and “bring those boys”.

The Appellant then carried the three policemen in his cab and went after them. By the time they came to the scene where the Appellant had issues with the Boys, they had gone further with another taxi cab. When the Appellant with the policemen eventually caught up with them one of the boys got out of the cab and started running away. One, of the policemen who was arraigned with the Appellant at the trial Court pursued the Boy and shot him dead. The appellant and the policemen were charged before the Rivers State High Court Port Harcourt on information dated and filed on 7th December 2007. The information was later amended to effect change of date with the leave of the Court on 20th January 2010.

The offence for which the Appellant was charged is murder contrary to Section 319(1) of the Criminal Code of Rivers State (Cap.37) Laws of Rivers State of Nigeria, 1999. The particulars of the offence read:

“VICTOR FABIYI and CPL WAFAL AMINU, on the 17th day of September, 2006, along Tombia Street, GRAII, Port Harcourt Judicial Division, Murdered One Nnamdi Ajikere.”

The Appellant pleaded not guilty to the charge and the trial commenced. The prosecution at the trial called a total of four witnesses while the Appellant testified for his defence.

At the end of the trial, the Appellant was convicted and sentenced to death for the murder of the deceased Nnamdi Ajikere. Being dissatisfied with his conviction and sentence, the appellant appealed to this Court.

The Appellant on 21st May 2010 and 8th June, 2010 filed two notices of appeal. The Appellant at the hearing of this appeal withdrew the Notice of Appeal filed on the 21st of May, 2010 and that notice was struck out by Order of the Court on 8th January 2013 leaving that filed on the 8th June 2010. The Respondent with the leave of this Court, filed their Respondent’s brief on 18th May 2011.

On the day of hearing of this appeal, 08-01-2013 the appellant through his Counsel Mr. Ayodeji Adedipe, Esq. adopted his, brief of argument and urged the Court to allow his appeal. The Respondent through his Counsel the Attorney General of Rivers State Mr. Boms also adopted his own brief and urged the Court to dismiss this appeal.

There are seven grounds of appeal filed in the notice of appeal. These seven grounds without the particulars are listed as follows:-

GROUND ONE:

The learned trial judge erred in law in convicting the Appellant of the offence of murder, when there was no legal evidence of his having caused the death of the deceased as required by law and thus occasioned a miscarriage of justice to the prejudice of the Appellant.