Ode Ojobi V. The State (2007)
LawGlobal-Hub Lead Judgment Report
AKAAHS, J.C.A.
This is an appeal against the decision of the Benue State High Court sitting at Otukpo presided over by A. O. Onum J. who tried, convicted and sentenced the appellant to death by hanging contrary to Section 221 of the Penal Code in case No. OHC/12c/2003 delivered on 23/7/2004.
Dissatisfied with the said decision, the convict filed his notice of appeal dated 20/8/2004 on 23/8/2004. The notice of appeal contained nine grounds of appeal.
On 20/6/2003, the accused was charged with the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code for killing one Owoicho Aboje by firing a locally made pistol at him on 13/10/2001. The charge reads as follows:
“That you, ODEH OJOBI, on or about the 13th day of October, 2001 at Igbanomaje Otukpo in Otukpo Local Government Area of Benue State of Nigeria within the jurisdiction of this Honourable Court committed culpable homicide punishable with death in that you caused the death of OWOICHO ABOJE by doing an act to wit you shot the said Owoicho Aboje with a locally made single barrel gun with the intention of causing his death or with the knowledge that his death would be the probable consequence of your act and you hereby committed an offence punishable under section 221 of the Penal Code”
The accused pleaded not guilty to the charge. Thereafter, the prosecution called seven witnesses and tendered four exhibits which were marked exhibits “A”, “B”, “C’ and “D”. Exhibits “A” and “D” were admitted after a trial within trial had been conducted because the defence alleged that the said exhibits being confessional statements were obtained under duress. The accused gave evidence in person and also called his wife who testified in his behalf. At the conclusion of evidence, learned counsel for the prosecution and the defence addressed the court. In a reserved judgment which was delivered on 23/7/2004, the learned trial Judge found the accused guilty and sentenced him to death by hanging.
Aggrieved by the conviction and sentence, the appellant appealed to this court. In the appellant’s brief dated 3/5/2005 but filed on 6/3/2005, by M. K. Aondoakaa Esq., only one issue was distilled from the nine grounds of appeal filed. The issue raised is:
“Whether the defence of self-defence availed the accused/appellant having regard to the circumstances of this case.”
The respondent’s brief was settled by Mrs. Vera Venda, Director of Public Prosecution, Benue State. The brief filed on 12/6/2006 was deemed filed on 25/1/2007. She adopted the sole issue formulated by learned counsel for the appellant.
The facts which the prosecution presented may be summarized as follows:
The deceased was among a team of vigilante squad which was put in place by the community to conduct surveillance aimed at reducing the activities of armed robbery within the community. The group had visited some compounds before arriving at the appellant’s compound. They knocked at the gate of the appellant’s house. Someone came from the house and approached the gate but retreated. The deceased then ordered that the compound be surrounded to avoid the escape of suspected armed robbers including the appellant’s son who was a known notorious robber.
Suddenly, the vigilante group heard a gun shot and the deceased shouted that he had been killed. The appellant then came out of his house with a gun in his hand shouting he had killed somebody. He was taken to the Chief’s house together with the gun and was eventually taken to the Police Station.
The case of the defence is that on the night of 13/10/2001, the appellant heard loud knocks on his gate with nobody identifying himself.
He came to his living room having already instructed his wife to keep all the children in one room. He then tried to find out who was knocking at the gate but received no reply. Because of the prevalence of thieves and armed robbery activities in Igbanomaje community, he went back into his room and brought out his gun. He saw somebody trying to scale the fence holding a gun and a torch light while the other had already scaled the fence and squatted in the compound. He then fired at the person on the fence wall and the others ran away. He came out and raised alarm that he had killed an armed robber. This attracted some people to the scene. He eventually went to report the incident at the Police Station where he was detained. In his oral testimony, the appellant stated that he fired his gun to the roof to scare away the alleged intruders but became rather surprised when he was told someone had died. Mr. Aondoakaa, learned counsel for the appellant referring to the evidence of PW1 which was corroborated by PW2 and PW3 as well as the evidence of the appellant and relying on section 33(2) (a) of the Constitution of the Federal Republic of Nigeria 1999 which provides that-
“A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstance as are permitted by law, of such force as is reasonably necessary –
(a) For the defence of any person from unlawful violence or for the violence of property” argued that the appellant was exercising his fundamental right of self defence and urged this court to allow the appeal of the offence of culpable homicide punishable with death under Section 221 of the Penal Code. He also argued that the right of private defence as provided under sections 59,60,62,63,65 and 66 of the Penal Code also avails the appellant. He contended that the learned trial Judge erred when he held that the appellant is not entitled to any right of private defence despite the uncontradicted evidence of the appellant on the point which was not discredited under cross-examination. Learned counsel further argued that from the totality of the evidence adduced by the prosecution and the defence, the appellant was under grave apprehension that those who invaded his premises at night were either thieves or armed robbers.
Consequently, the force applied by the appellant in defence of his property by firing his locally made single barrel gun to ward off the intruders was commensurate to the threat emanating from the thieves or robbers whom he believed were coming to his house. It is the contention of learned counsel for the appellant that the evidence of the prosecution left doubts as to the identity of the people who invaded the appellant at midnight. He submitted that the principle of law relating to the right to self-defence which implies defence to life and property is a constitutional right which cannot be waived by an illegal operation as it has been suggested in this case. To allow armed individuals to invade people’s homes at midnight without search warrant or the police accompanying them on the pre of an organized militia called vigilante group is an invitation to anarchy. Learned counsel contended that the appellant had a reasonable apprehension that he was likely going to be attacked by armed robbers. He also argued that following the sequence of events including the acts of rampant incidences of robbery in the community and also the fact that the appellant’s home was invaded at midnight without prior information or authority, the case he submitted was not proved beyond reasonable doubt. For evidence to warrant conviction, it must exclude reasonable doubt of all other hypotheses other than the guilt of the accused. He said the accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence which should be resolved in favour of the accused.
Mrs. Vera Venda the learned Director of Public Prosecutions of Benue State in the respondent’s brief argued that in the circumstance of this case no private defence under any penal law operating in this country can avail the appellant because the conduct of the appellant from the beginning to the end of the incident resulting to his trial negates the very tenets of the principle of private defence and referred to sections 59, 60, 62, 63, 65 and 66 of the Penal Code Law of Northern Nigeria applicable to Benue State and section 33(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria. She submitted that both section 33(2)(a) of the Constitution and all the sections in the Penal Code providing for the right of private defence imposed a limitation, namely, there must be a reasonable apprehension of death or grievous hurt in the case of defence of self and reasonable apprehension of damage to property. She argued that when the above is satisfied, the force to be adopted must be proportional to the force used by the assailant and when there is time for recourse to public authority, the assailed must avail himself of it or the defence will not avail him. It is the contention by the learned D.P.P. that when the vigilante group arrived at the gate leading to the premises of the appellant, they vigorously knocked several times on the gate and as they knocked, they identified themselves as members of the vigilante group. Learned counsel referred to the evidence of PW2 and PW3 which the learned trial Judge accepted and relying on Christopher Okosi & 1 Or v. State (1989) 1 NWLR (Pt. 100) 642 submitted that since the witnesses were not cross-examined, the learned trial Judge was right to accept and act on the said evidence.
It was argued that if the deceased and his group knocked and identified themselves as members of the vigilante group and the appellant heard them and actually approached the gate but turned and walked away, then he could not have fired the fatal shot in an apprehension of death or hurt or threat to his property since he knew that those at the gate were not armed robbers or thieves. Alternatively, if what the appellant did was in pursuit of the right of private defence, he needed to show that:
(a) He reasonably apprehended death, grievous hurt or damage to property
(b) He must be free from fault in bringing about the encounter
(c) There must be no self or reasonable mode of extrication
(d) There must have been a necessity for taking life; and
(e) The force used must be proportionate to the force used against him.
These five ingredients must co-exist to sustain the defence of private defence. The following cases were cited in support: Egbeyom v. The State (2000) 4 NWLR (Pt. 654)559; Ahmed v. The State (1998) 5 NWLR (Pt.550) 493; Kwaghsir v. The State (1995) SCNJ 222; (1995)3 NWLR (Pt.386) 651; Odo Nwobe v. The State (2000) 11 NWLR (Pt. 678) 271; Liya v. The State (1998) 2 NWLR (Pt.538)397. It was submitted that the appellant is not entitled to the defence of the right of private defence since he never raised the said defence in his evidence at the trial. Having denied firing the shot which killed the deceased, it is late in the day for the appellant to raise it in address either at the trial or on appeal. A party will not be allowed to raise for the first time in the appellate court a point of law or fact which was not canvassed at the court below except with leave of the court.
See: Rockonoh Property Co. Ltd. v. NITEL (200 1) 14 NWLR (Pt.733) 468, (2001) 89 LRCN 2602 AND Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1.
On the submission of trespass made by appellant’s counsel justifying the action taken by the appellant, the learned DPP argued that a serious case of murder such as the instant case should not be traded or sacrificed on the altar of technicality such as the need to secure a search warrant, or the group to be authorized or registered with the police. Learned D. P. P. opined that the fact that such requirements were not met could not confer on the appellant the right to shoot and kill with impunity in the name of private defence; moreso since there was no entry into the appellant’s premises. She urged this court to dismiss the appeal.
It was found, by the learned trial Judge that the appellant shot the deceased and he died instantaneously but the appellant’s defence is that he did so in order to ward off attacks from thieves who had invaded his house in the night thus raising the issue of the right of private defence. For the defence to avail the appellant there must be a reasonable apprehension of death or grievous hurt. Where it is a case of defence of self and if it is in defence of property, there must be a reasonable apprehension of damage to the property. See: sections 65 (a) & 66 of the Penal Code; Odo Nwobe v. The State (2000) 11 NWLR (Pt. 678) 271; Nwede v. State (1985) 3 NWLR (Pt. 13) 444 at 451.
The learned D.P.P has however submitted that the defence is not available to the appellant since PW2 and PW3 were not cross examined on their evidence and the learned trial Judge accepted their evidence and acted on it. PW2, Inalegwu Edache testified as follows:
“Before 13/10/2001 there were incidents of robbery within Igbanomaje Community. The District Head, Mr. Okpe Ejila, called us together and called for a general patrol. We started the patrol within the community. We told people that we were vigilante group on patrol. Five households Attended to us when we visited each of their gates. When we reached the accused person’s house,we suspected his son who had five other strange boys staying with him.
We suspected that the boys were the robbers harassing us. We knocked at the gate of the accused
person’s house several times, each time identifying ourselves as members of the vigilante group. We saw through the gate that someone was moving in the compound. We expected the person to open the gate for us but he turned back. Owoicho Aboje, the deceased then suggested that we should surround the house to prevent people from jumping over the fence from inside the compound. The next thing we heard was a gun shot from the premises. Owoicho (deceased) shouted “they have killed me”. One Monday Adakole took the deceased from the ground which the rest of us gathered around him. The accused person then came out with a gun in his hand saying he had killed a person” PW3, Monday Adakole repeated what PW2 said. In essence what these two witnesses said was that when they reached the appellant’s gate, they knocked at the gate and identified themselves as vigilante group but none of them could say if it was the appellant who was moving in the compound. There is also no evidence to show that the appellant was present when the District Head called the vigilante group to go out on a general patrol.
In Kwagshir v. State supra Uwais J.S.C. (as he then was) stated at page 663 that in determining whether the defence of private defence can succeed, the evidence adduced by the defence has to be compared with that adduced by the prosecution to see which is more cogent.
The appellant who testified as DW1 stated as follows:
“In October 2001 thieves and armed robbers were constantly harassing people in Igbanomaje area. It was announced that every male adult in the area should be prepared. At (sic) 12/10/2001 I returned from my farm in the evening. I heard that some thieves circulated documents that they were coming for operation in several areas of Otukpo, including Igbanomaje. I went to my father in law and he confirmed the story of the threat from thieves.
At about after 12 midnight of 12/10/2001 I was in my house sleeping when my dogs started barking. I came to my living room from the bedroom. I heard some people vigorously shaking my gate as if they wanted to remove it. I heard “climb the fence: climb the fence,” I pulled my window curtains aside and I saw a man on top of my gate who flashed a torchlight directly on my door. He had a gun in his hand because the torch light also flashed on the gun in his hand. He jumped down from the fence.
I saw a second person climb the fence. I asked who they were and got no response. The second person also jumped into my compound. The matchet he had also fell into the compound and I heard its noise as it fell to the ground. I heard a voice instructing that my door should be pulled down for the people to go inside.
There was no light and my wife and children were in the room. My children were little ones. I saw a third person climb the fence in the manner of the first two.
That third person flashed his torch light and I clearly saw the gun in his hand. I then went for my gun. I shot my gun into the zinc roof. I shot just to frighten the people. When I shot the gun the people started running.
The two in the compound ran towards the boys quarter and scaled over the fence there because it was lower.
The one on the fence jumped down from the house on the outside of my compound.
I raised an alarm, calling out “thief, thief.” One Okopi OJobi ran to my place following the alarm. I told him that there were thieves in my place who had guns.
The men of the vigilante group heard my voice and ran towards my house. I informed them of what happened. I told the vigilante men that I wanted to go to the police but that I was afraid that the thieves might still return to my house. The vigilante men said that it was good to report to the police so I went to the police and reported that thieves came to my house and that I fired a shot into the air and the thieves ran away. I asked for police protection return. The police were ready to go to my house with me when I saw Okpe Ella and Yakubu Ejeh.
They came to the police station with a gun and a matchet.
They reported to the police that I shot at a man of the vigilant group. I asked why they did not tell me that from the house even though I was with them shouting before I left for the police station.
In the morning of 13/10/2001 one policeman called John Jang told me that i shot at a person and killed him in the early hours of that same 13/10/2001. I asked for the body of the person I killed and he answered that he did not know him. He also said that he did not know where the body of the deceased. Nobody has also taken me to the scene where I was said to have killed a person.”
The evidence given by the appellant was a complete denial that he had shot and killed anyone. He however recognized the gun which he used on the night of the incident which was admitted as exhibit “B”. He thus repudiated exhibits “D” and “A” the confessional statements which were made by him on 13/10/2001 and 24/10/2001 respectively in which he admitted shooting the 3rd person who was trying to scale through the fence into his compound. The learned trial Judge considered the evidence adduced by the prosecution and the accused and rejected the evidence of the accused. The learned trial Judge stated at pages 56-57 of the records:
‘The evidence by the prosecution that the deceased was hit close to the gate of the premises of the accused and through an opening between the gate and wall of the fence was not discredited under cross-examination neither was the evidence that the deceased died instantly following the shot. The case the accused and his only witness try to make to the effect that the deceased was seen sitting on the fence when the shot was fired cannot be a credible one in the face of the inconsistency in their accounts of the state in which they claimed to have seen him. While the¢ accused said that he saw him on the fence with a torch light and a gun, his only witness said that she saw the deceased on the fence with a torchlight and a matchet. Where two or more witnesses claim to be eye witness to a particular event or the existence of a particular thing their accounts of what they claim to have simultaneously seen must be materially consistent if they are to be believed on the event or the existence of the particular thing- see the case of Tsoyo v. Commissioner Of Police (1979) 3 LRN 374. The testimonies of the prosecution witnesses are also undiscredited in the effect that the accused person admitted killing the deceased. What is clear to me however is that from the happening of the incident to the close of this trial the accused has laid claim to a right of private defence in the killing of the deceased.”
The learned trial Judge in considering the defence of the appellant said …
“The focus of the defence being set up by the accused person in the instant case is that he suspected the deceased to be one of a gang of thieves or robbers who were trying to invade his house on the fateful night. If indeed his evidence of that belief is cogent and believed, then his defence is made, since the chances of extricating oneself from a robbery attack are indeed slim. The question thereof is really whether the case he has tried to set up that he suspected the deceased to be a robber is cogent enough to entitle him to the defence against the backdrop of the case made out by the prosecution witnesses”
In dismissing the appellant’s defence of the right of private defence, the learned trial Judge relied on the evidence of PW2 and 3 to hold that their evidence on the fact that when they knocked, they identified themselves as members of the vigilante group was unchallenged and they also testified that someone initially responded to the knocks by walking towards the gate and backed away shortly before the fatal shot was fired was also not challenged.
In my view had PWs 2 and 3 positively identified that it was the appellant who came out and walked towards the gate but changed his mind to fire the shot, it is then that the decision of Belgore J.S.C (as he then was) in Christopher Okosi & 1 Or v. The State (1989) 1 NWLR (Pt. 100) 642 at 647 requiring the appellant to cross-examine the witnesses with a view to discrediting their evidence would have arisen. In Okosi’s case, the PW5 and PW1 saw the appellants. Each identified the 2nd appellant as the person with the gun and the 1st appellant as the one ransacking for money in the two rooms. Each identified by evidence in court, the first appellant on each occasion in each room as the first to enter. By the time identification parade was conducted at the police station, PW5 had no difficulty in identifying the two appellants. There was never a suggestion at the trial court that the police fixed any identification even if that was suggested, the onus of proving such a blatant disregard for truth and justice would be on the appellants and this onus was never discharged. It was this state of affairs that led Belgore, J.S.C. to observe at page 657 thus:
“The serious and incriminating testimonies of the PW 1 and PW 2 were thus left substantially unchallenged”
He then went further to state “In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at the trial. For when evidence is primary, admissible in the sense that it is not hearsay or opinion and not that of an expert, and an accused person who wants to dispute it, the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even far an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this court.”
It is clear in exhibits “D” and “A” though retracted in court that the accused was setting up the defence of the right to private defence. He did not set it up at the stage of giving evidence for his defence. The law presumes an accused person innocent until he is proved guilty. The case of the prosecution regarding the identity of the person who walked towards the gate and decided to go back and linking him to the appellant is at best circumstantial and all possibilities that it could not have been some other person else that came out excepting the appellant had to be eliminated by the prosecution. See: Nafiu Rabiu v. The State (1980) 2 NCR 117. I find that the circumstantial evidence zeroing only on the appellant as the person who came out of the house and walked to the gate has not been established. And so the case of the prosecution still remains in the realm of a strong suspicion which cannot ground a conviction for culpable homicide punishable with death.
Notwithstanding the fact that the possibility exists that it could have been some other person else who walked towards the gate, the accused could not claim ignorance of the existence of the vigilante group. From the account given by the appellant and his wife, it can be deduced that when the vigilante group knocked at the gate and identified themselves, the appellant heard them and so he cannot claim complete ignorance of those who were knocking at his gate. It is possible he shot to scare away the people who were trying to gain access into the house. Under Section 62 of the Penal Code, the right of private defence in no case extends to the infliction of more harm than it is necessary to inflict for the purpose of defence. Because the incident happened at night, the appellant did not have time to recourse to the protection of the public authorities. I find that the circumstances surrounding this case make it compelling to find the appellant not guilty of culpable homicide punishable with death. His conviction for culpable homicide punishable with death is hereby allowed and the sentence of death passed on him is hereby set aside. It is substituted with a conviction of culpable homicide not punishable with death under section 224 of the Penal Code. He is accordingly sentenced to 10 years imprisonment with hard labour with effect from 23/7/2004.
Other Citations: (2007)LCN/2336(CA)
