John Agbo V. The State (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

This is an appeal from the decision of the Court of Appeal- Port-Harcourt Division, delivered on 25th February, 2004, dismissing the appellant’s appeal to it, from the decision of the High Court, Ohafia Judicial Division presided over by Ekumankama, J.

Dissatisfied by the said decision of the Court of Appeal (hereinafter called “the court below”), the appellant has further appealed to this court on four (4) grounds of appeal. Without their particulars, they read as follows:

“1. The learned Justices of the Court of Appeal erred in law when they held that the defence of accidental discharge was not available to the appellant.

2. The learned Justices of the Court of Appeal erred in law when they failed to hold that there were material inconsistencies in the evidence.
3. The learned Justices of the Court of Appeal erred in law when they failed to determine and pronounce upon the third issue for determination in the appellant’s brief thereby causing a miscarriage of justice.
4. The learned Justices of the Court of Appeal erred in law when the appellant’s conviction under s. 319(1) of the Criminal Code was upheld thereby causing a miscarriage of justice.”

The facts of this case as presented by the prosecution, are that on 26th January, 1985, the appellant a police constable, escorted the driver of a Magistrate he was attached to as an orderly, to deliver some bags of cement from Enugu to Arochukwu. After the delivery, on their way back, at a place called Ndi Uduma Awoke, Ohafia Junction- near to the Ohafia Army Barracks, the road was narrow. There was a Peugeot 504 Saloon Taxi Cab driven by the deceased, parked on the left side of the said road, but on his own right side in order to discharge some of his passengers. The driver of the van in which the appellant was travelling, according to him, slowed down to enable him pass the said Taxi cab. At this stage, the appellant jumped down from the van and went to the deceased and asked him why he blocked the road with his car. An argument ensued between the appellant and the deceased. It was in the course of the argument, that the appellant was said to have shot the deceased with his pistol which he was carrying with him. Seven witnesses testified for the prosecution. Three (3) among them, were eye-witnesses. Two of them – PWs, 3 and 5 who are relations of the deceased, were passengers in the deceased’s said car. The third one, was the driver of the said van in which the appellant was travelling back to Enugu on the fateful day. The P.W.1 was the medical Doctor who performed the post-mortem examination on the corpse of the deceased. The appellant gave evidence for himself and called no witness.

The appellant’s case, was that there was a struggle between him and the deceased and it was during the struggle, that the deceased wanted to take possession of his pistol and in the process, his gun was accidentally fired and the bullet from his gun, hit the deceased. In the effect, his defence was “accidental discharge.” He alleged that during the struggle, the deceased tore his uniform. The learned trial Judge, held that the prosecution had proved their case beyond reasonable doubt. His Lordship rejected the defence of accident. He convicted the appellant and sentenced him to death by hanging.

Dissatisfied by the conviction and sentence, the appellant appealed to the court below that affirmed the decision of the lower court. Aggrieved by said decision of the court below, the appellant, has further appealed to this court.

The appellant has raised three (3) issues for determination namely:

“1. Whether the inconsistencies in the prosecution’s evidence were material enough to entitle the appellant to an acquittal under S. 24 of the Criminal Code.

2. Whether failure of the learned Justices to pronounce on one of the issues for determination formulated from the appellant’s ground of appeal led to a miscarriage of justice.
3. Whether the trial and conviction of the appellant was valid in law having regard to the information upon which he was arraigned.”

The respondent, has formulated one lone issue for determination, namely:

“(a) Whether the learned Justices of the Court of Appeal were right in affirming the conviction and sentence of the appellant in the circumstance.”

Issue 1

The learned counsel for the appellant in his brief, has referred to the evidence of the PW1- the medical doctor who performed the post-mortem examination, the PWs 3, 4, 5 and 6 and that of the appellant and his statement to the police – exh. “A” and submitted that the inconsistencies were material. Learned counsel for the respondent on the other hand, has submitted that any inconsistency in the evidence of the said prosecution witnesses as to whether the deceased was shot from behind his left ear instead of the right ear, was not material in the circumstance of the issue before the trial court which was whether or not the defence of accident availed the appellant.

I noted that this issue was not raised by the then defence counsel in the trial court during his address. Not that this is of any moment. I also note that it was the appellant, who signed the original notice of appeal to the court below and this issue, was not raised therein. Again, this fact is of no consequence.