SAMPSON v. STATE (2020)

SAMPSON v. STATE

(2020)LCN/15192(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/37C/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

INSPECTOR IDOKO SAMPSON APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE BURDEN OF PROOF IN CRIMINAL TRIALS SHIFTS

It is trite that the burden of proof is squarely on the Respondent from beginning to finish in a criminal trial because it does not shift, see NWEZE VS. STATE (2017) LPELR-42344(SC) which held thus:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See: Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511 at 531; Solola vs. The State (2005) 5 SC (Pt. 1) 135.” Per GALINJE, J.S.C. PER NIMPAR, J.C.A.

THE STANDARD OF PROOF IN CRIMINAL TRIALS
The standard of proof is also settled and it is beyond reasonable doubt as reiterated in the case of OSETOLA & ANOR. VS. STATE (2012) LPELR-9348(SC) as follows:
“Section 138 (1) of the Evidence Act makes it mandatory that the standard of proof required in criminal trials by the prosecution is proof beyond reasonable doubt. Proof beyond reasonable doubt was explained in Miller v. Minister of Pensions 1947 2 ALL E. R. p.372 at 373 as follows: Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted to fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice. See LORI & ANOR V. STATE 1980 12 NSCC 269.” PER RHODES-VIVOUR, J.S.C. PER NIMPAR, J.C.A.

INGREDIENTS OF THE OFFENCE OF MURDER

The offence of murder has settled ingredients identified by our superior Courts which must all be proved beyond reasonable doubt to justify a conviction and these were restated in the case of IDIOK VS. STATE (2008) LPELR-1423(SC) thus:
“It is now firmly settled that for the prosecution to succeed in a murder charge under Section 319(1) of the Criminal Code (as in the instant case) it must prove beyond reasonable doubt that:
(i) There was a killing.
(ii) The killing was unlawful as prohibited by Section 316 of the Criminal Code.
(iii) It was the act or omission of the accused person that caused the death of the deceased.
(iv) The accused intended to cause the death of the deceased.”
See also the cases of GRACE AKINFE VS. THE STATE (1988) 3 NWLR (PT.85) 729 @ 745; (1988) 7 SCNJ 226; OKORO VS. THE STATE (1988) 5 NWLR (PT.94) 255; (1988) 12 SCNJ 191; OGBA VS. THE STATE (1992) 2 NWLR (PT.222) 164; (1992) 2 SCNJ. 106; AKPAN VS. THE STATE (1994) 9 NWLR (PT.368) 347; (1994) 12 SCNJ 140; AND ABOGEDE V. THE STATE (1996) 4 SCNJ. 223 just to mention but a few. In other words, where a person is charged with the offence of murder, the prosecution must prove:
(a) Whether the person alleged to have been killed is dead.
(b) The cause of death and
(c) Whether any act of the accused person is the cause of his death. See the case of SULE AHMED (ALIAS EZA) VS. THE STATE (2001) 18 NWLR (PT. 746) 623 @ 641.
On the methods or various ways an offence can be proved, several authorities have identified and settled 3 major ways which are clearly spelt out in the case of IDIOK VS. STATE (supra) as follows:
“The offence of murder, like all other offences, can be proved either by direct evidence or by circumstantial evidence. Direct evidence is evidence given by a witness who saw and watched the act of killing or murder. Circumstantial evidence is evidence given by a person who did not see or watch the act of killing or murder but whose evidence unequivocally leads to the commission of the offence by the accused person.”PER NIMPAR, J.C.A.

DEFINITION OF THE OFFENCE OF CONSPIRACY

Conspiracy has been defined in a plethora of judicial decisions, one of which is OFORDIKE VS. STATE (2019) LPELR- 46411 (SC) which held thus:
“Generally, conspiracy is an agreement by two or more persons to commit an offence or do an unlawful act, coupled with an intent to achieve the agreement’s objective and action or conduct which furthers the agreement. The Oxford Advance Learners Dictionary 6th Edition also defines conspiracy as “a secret plan by a group of people to do something harmful or illegal.” In a charge of conspiracy, proof of actual agreement is not always easy to come by as such agreements are hatched in secrecy. Thus a trial Court can infer conspiracy and convict on it if it is established to its satisfaction that the accused persons, pursued, by their acts, the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other and concluded; an agreement can be inferred from what each person does or does not do in furtherance of the offence of conspiracy. See Adeleke vs. State (2013) 16 NWLR (pt 1381) 556, Oduneye vs. State (2001) 2 NWLR (pt 697) 311, (2001) LPELR – 2245 (SC), The State vs. Salawu (2011) 18 NWLR (Pt 1279) 580.” Per OKORO, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom sitting at Uyo and delivered on the 27th July, 2018 by Hon. Justice I. E. Ukanna wherein the appellant amongst 3 other co-accused persons were found guilty of the offence of conspiracy and murder and were accordingly sentenced to 12 years imprisonment and death by hanging respectively. Dissatisfied with the decision, the Appellant filed an Amended Notice of Appeal on the 5th September, 2019 and deemed 21st January, 2020 but with effect from the day it was filed, it set out 7 grounds of appeal.

Facts relating to the appeal are amenable to brevity, they can be summarized hereafter.

The Appellant along 3 others were arraigned before the Akwa Ibom High Court on a two count charge of conspiracy and murder. They were alleged to have killed a commercial motorcyclist while on patrol along Abak Road. Three Police men from the “C” Division of the State Police command alighted from a tricycle on surveillance opposite the Federal Secretariat, seized 3 motorcycles belonging to some persons, amongst which was the deceased. Almost immediately, a police car arrived at the scene with the appellant driving (Insp. Idoko Sampson). The cyclists were struggling with the Policemen who impounded their motorcycles and were beating up the cyclists. The 2nd co-convict, the senior officer, Inspector Akpaette Moses who sat at the front passenger seat with the door ajar. One of the motorcycles impounded belonged to the deceased and was held by the 3rd convict. It was in evidence that the 3rd convict went to the car and collected a gun. The leader of the team 2nd convict fired 2 shots to scare the crowd that had gathered and the third shot aimed at the deceased who was hit on the thigh and left bleeding profusely. He was rushed to the teaching hospital but was pronounced dead before reaching the hospital. The police men joined their colleague in the car and drove away from the scene of crime. The Appellant denied knowing that a person was hit by a bullet fired by one of them. The Appellant and his colleagues alleged that they were attacked by a mob and the gun was fired to scare them away. The 2nd convict was allegedly manhandled.

The Respondent called 5 witnesses and tendered 11 Exhibits while the defence called a total of 4 witnesses and tendered several Exhibits. The trial Court after hearing of witnesses and consideration of counsel closing addresses, found the Appellant (he was the first accused person before the trial Court) guilty of the two offences charged; namely conspiracy and murder. He was accordingly sentenced to 14 years for conspiracy and death by hanging for murder. Dissatisfied with the conviction and sentence, the Appellant appealed to this Court.

The Appellant’s Brief settled by L. N OGALAGU ESQ. dated 23rd January, 2020 was filed on the 24th January, 2020 but deemed on the 27th January, 2020. It distilled six issues for determination as follows:
i. Whether the trial Court was right to have relied on Exhibit C to contradict the appellant and warranting Court impeaching the credibility of the appellant in the course of reaching his decision, considering the evidence on record as a whole.
ii. Whether the trial judge was right when he convicted and sentenced the appellant to death by hanging for murder and 14 years imprisonment for conspiracy for murder on the basis that the decision to leave the scene seen together immediately upon their bullet felling Kenneth Felix Akpan demonstration a unity of purpose and community of intention considering the evidence on record.
iii. Whether the trial Court was right in failing to restrict himself to the evidence adduced by the witnesses in the course of reaching the decision considering the evidence of the witnesses on record.
iv. Whether the trial Judge was right that the prosecution proved the offence of murder and conspiracy to murder Kenneth Felix Akpan beyond reasonable doubt against the appellant.
v. Whether the trial judge was right when he failed to consider all the defences available to the appellant including the provisions of the Police Act and Regulation Cap. P 19 Laws of the Federation 2004.
vi. Whether the learned trial judge was right in his conviction and sentence of the appellant to death by hanging and 14 years imprisonment for the offence of murder and conspiracy to murder without the trial judge pronouncing the appellant guilty of the offences.

The Respondent on its part filed a Respondent’s Brief settled by FRIDAY J. ITIM ESQ. Assistant Director with the Ministry of Justice, Akwa Ibom State. The Respondent’s Brief is dated 27th January, 2020 filed on the same date. It donated a lone issue for determination namely:
Whether from the totality of the evidence adduced at the trial, the Prosecution had proved the two count charge of conspiracy to murder against the Appellant and others beyond reasonable doubt, and had clearly debunked the defence of self defence as contained in Force Order 237 relied upon by the Appellant.

Upon a careful reading of the Notice of Appeal, the Record of appeal, the briefs of both learned counsel for the parties against the backdrop of the fact that this is a criminal appeal, the sole issue for determination to my mind would be whether the Respondent proved its allegation against the Appellant as to warrant the decision of the Court below. In doing so all the issues formulated by the Appellant shall be considered. This is also because some of the issues question evaluation of evidence. I shall resolve the sole issue donated by the Respondent for expediency.

APPELLANT’S SUBMISSION
The Appellant challenged the trial judge’s reliance on Exhibit C to contradict the Appellant. Exhibits C & D are the extra judicial statements of the Appellant. The appellant submits they are not confessional statements, he argued that the Respondent did not call the attention of the Appellant to the said Exhibit C in line with Section 232 of the Evidence Act, 2011 before using same to contradict or impeach his credibility. He submitted that the trial judge erred and relied on KEKONG VS. STATE (2017) 18 NWLR (Pt. 1596) 1 at 108 and AMADI VS. A.G. IMO STATE (2017) 11 NWLR (Pt. 1575)1 at 94. Furthermore, the Appellant submitted that the said exhibits C & D not being confessional statements and having not been placed against the evidence before the Court, they cannot be evidence against the Appellant and thus the charge was not proved. The evidence of PW1 was referred to and the Appellant submitted that it supports his case. He further contended he did not know when the bullet hit the deceased. Continuing to argue, the Appellant submitted that there was no contradiction in the evidence of the Appellant, citing UWAGBA VS. STATE (2008) 12 NWLR (Pt. 1102) 621.

On issue two, the appellant argued that the inference drawn by the Court that the fact that the appellant and co convicts left the scene of crime together was evidence of community of intention was wrong and not founded by evidence. He argued that the trial judge speculated and, relied on IBRAHIM VS. STATE (2015) 1 NWLR (Pt. 1469) 164; OSUAGWU VS. STATE (2018) 16 NWLR (Pt. 1537) 1 at 172 and FEDERAL CAPITAL DEVELOPMENT AUTHORITY VS. MTN NIGERIA COMMUNICATION LTD (2017) 10 NWLR (Pt. 1573) 171 at 217 to support the contention that the judge imported facts to support his findings and therefore urged the Court to interfere.

The Appellant further submitted that the evidence before the Court was that the Appellant returned his firearm intact and therefore the bullet that fell the deceased did not come from the gun held by the Appellant and more so only one bullet hit the deceased, he referred to UDE VS. STATE (2016) 14 NWLR (PT. 1531) 1 AT 164 on conditions to be satisfied before conviction and with regards to common intention; he urged the Court to interfere because there was none. The Appellant submitted that being in the same car with the person who fired the shot cannot be evidence of joint intention, citing COLE VS. JIBUONOH (2016) 14 NWLR (Pt. 1503) 499 and OFOR VS. STATE (2012) 8 NWLR (Pt. 1333) 421.

On issue three the Appellant submitted that the trial Court had the duty of restricting itself to the evidence before the Court in determining the guilt of the appellant, citing OBI VS. AG IMO STATE (2016) 3 NWLR (Pt. 1500) 425. He opined that the trial judge descended into the arena of conflict, generated facts to buttress the case of the prosecution in reaching his decision, and relied on NDIDI VS. STATE (2007) NWLR (Pt. 1052) 633 and AYOADE V. SPRING BANK PLC (2014) 4 NWLR (Pt. 1396) 93. He argued that PW5 visited the scene of crime the day after the incident but did not recover any expended cartridge; no iron rod or any weapon of violence but the Court below speculated and generated evidence on the part that the car was driven away on the orders of the 2nd accused person which was not part of the evidence before the Court. He contended that the personal knowledge of a judge cannot take the place of evidence as settled in OBI VS. AG IMO STATE (2016) 3 NWLR (Pt. 1500) 425. The Appellant argued that the observation of PW4 that Exhibit B was not taken at the scene of crime but failed to provide other details. He went on to submit that the Court below generated evidence to reach the conclusion it did.

Arguing further, the appellant under issue 4 submitted that the trial Court was wrong to find that the ingredients of the offence were proved beyond reasonable doubt as required by Section 135(1), (2) and 138(1) (2) of the Evidence Act. On the burden of proof, the appellant submitted that it does not shift from the Respondent and in this case it was not established according to legal requirement, relied on AJILORE VS. STATE (1993) 10 NWLR (Pt. 289) 522; AFOLALU VS. STATE (2010) 15 NWLR (Pt. 1220) 384. That to secure a conviction the Respondent must establish all the ingredients and having failed to do so the Appellant should have been discharged and acquitted, citing ANI VS. STATE (2009) 16 NWLR (Pt. 1168) 443 and CHUKWU VS. STATE (2007) 17 NWLR (Pt. 1052) 430. Appellant submitted that where a doubt exist, the accused must be discharged, citing NWACHUKWU VS. STATE (2002) 102 LRCN 2010 and DOGO VS. STATE (2013) LRCN 170, he relied on the ingredient of the offence of murder as set out by the Supreme Court in the case of OGI VS. STATE (2017) 6 NWLR (Pt. 159) 181. The Appellant further argued that the trial judge approbated and reprobated in reaching a decision in this case, relied on OGBU VS. STATE (2017) 8 NWLR (Pt. 1567) 236. He submitted that the evidence of PW4 creates a doubt and also the aspect of PW1’s evidence that the deceased cross the gutter after he was shot when the appellant has no knowledge that somebody was hit by the bullet and the trial judge ought to have resolved the doubt in favour of the Appellant.

On whether there was an agreement to commit a crime, the appellant submitted that the prosecution must prove that some acts outside the offence was done by the accused persons in furtherance of the agreement, citing EZE VS. FRN (2017) 15 NWLR (Pt.1589) 345 and OBIAKOR VS. STATE (2002) 10 NWLR (Pt. 776) 612. Appellant submitted that the Court below erred.

Continuing his submissions, the Appellant argued that the trial judge failed to consider defences available to the Appellant whether raised or not, referred to ANABI VS. STATE (2008) 15 NWLR (Pt. 109) 173; ADA VS. STATE (2005) 13 NWLR (Pt. 1103)149; OLAYINKA VS. STATE (2007) 9 NWLR (Pt. 1040) 501 and SIMEON VS. STATE (2017) 18 NWLR (Pt. 1566) 199. The defence available but not considered was that the Appellant was on lawful duty and the Appellant did not fire his gun. Another defence mentioned by the Appellant is the application of the Police Act and Regulations, Section 341 which renders every Police officer personally liable for any misuse of his powers or any act done in excess of his powers. That they were at the scene of crime to prevent crime and the trial Court was therefore wrong in its findings.

On issue 6, the Appellant contended that manner in which conviction and sentence was pronounced was wrong and therefore bereft of legitimacy, relied on ANDY VS. STATE (2016) 1 NWLR (Pt. 1494) 427. He argued that the conviction and sentence contravened the fundamental right of the Appellant under Section 36(5) of the 1999 Constitution. He submitted that the trial judge without pronouncing the Appellant guilty, proceeded to sentence him and it must be reversed. He finally urged the Court to allow the appeal.

RESPONDENT’S SUBMISSIONS
The Respondent before addressing the sole issue for determination summarized the evidence before the trial Court and submitted that the fact of death of the deceased was not challenged and the circumstances which involved the Appellant and 3 of his colleagues are also before the Court and therefore the eye witness account of the PW1 and PW4 were justifiable relied upon by the trial Court. In further submissions, the Respondent highlighted the ingredients of the offence of murder and contended that the 3rd convict- CPL ENOBONG UDO threatened the deceased and went back to the car, picked the gun. Arguing further the Respondent submitted that PW5 told the Court that it was the 2nd convict who fired the shot and tendered his confessional statements admitted without objection, 2nd accused was Inspector Akpaette Moses. Respondent on the appellant’s reliance on Order 237 tendered as Exhibit O on the use of firearm in self defence contended that it cannot benefit the Appellant because the condition under which the provision applies did not arise in this case.

The Respondent referred to the version of events as narrated by the Appellant and his co accused when they alleged that the 2nd convict was wounded at the scene of crime and tendered Exhibit B in support. Respondent referred to the response of PW4 who punctured the narration by the Appellant and his co- convicts who said no policeman was injured at the scene because they drove away immediately the deceased was shot and refuted the insinuation that he (PW1) told the Police that he saw an injured policeman. The statement of PW1 was tendered in evidence for the purposes of contradicting PW1 but the said PW1 said he couldn’t have seen the wounded policeman sitting in the car, the same policeman who did not come down from the car. Respondent further submitted that the witness said no policeman was wounded at the scene as nobody attacked them. The Respondent then submitted that there was no contradiction in the evidence of PW1 as contended by the Appellant. Learned counsel for the Respondent submitted that the appellant was identified as the one who held one of the motorcycles. On the evidence of PW4, the Respondent agreed with the trial Court that there was no contradiction. He also highlighted what he considered as fallacies inherent in the case of the Appellant and his co-convicts in arguing that they were attached while 3 of the convicts were armed with AK47 guns fully loaded and that they were merely passing through when they were attacked by a mob wielding guns, machete, stones and sticks. The appellant and his colleagues also contended that the mob dragged the 2nd convict (leader of the team-Insp. Moses Akaette) out of the car and inflicted several injuries on him and left him in a pool of blood as stated by the appellant herein (DW1) and it was reiterated by the 2nd convict himself as DW2 and DW4 (Cpl Godwin Nnana, 4th Convict). The argument of the Respondent is that the other convicts could not have stood helplessly to watch their leader battered while armed with AK47 riffles. Furthermore, that it took such a battered person- (the 2nd convict, Insp. Akaette) to pull his own gun to shoot in order to disperse the mob numbering over 40 men and it was the bullet by the 2nd Convict, the leader of the team that hit the deceased and the team then left in their car.

Furthermore, that the story line of the Appellant herein does not add up when he told the Court that he handed over the injured Insp. Akaette, the 2nd convict to the station officer and returned his gun to the armoury without taking him to the hospital for treatment. The Appellant said he was called back later and directed to take the 2nd convict to the hospital. Respondent observed that all these lines do not sound logical and should be discountenanced. In continuation, the Respondent reacted to the assertion that a locally made pistol was recovered from an assailant who also came to the station to make a statement but was not arrested. The Respondent referred to the record of appeal, particularly pages 173-178 the cross examination of DW2 (the leader of the team) who failed to substantiate the wounds inflicted on him as no scar was seen on him. The Respondent then submitted that the case of the appellant and his co-convicts was a made up story.

On conspiracy, the Respondent argued that the Appellant and his colleagues came to the scene together and acted in concert leading to the shooting of the deceased and agreed to abandon the deceased to return to the station. That the law on conspiracy is that it can be proved by inference citing STATE VS. BABANGIDA (2014) 10 NCC 100; ABACHA VS. STATE (2003) 3 ACLR 344 and AFOLABI VS. STATE (2013) 13 NWLR (Pt. 1371) 299. Respondent contended that the reckless abandoning of the deceased by the Appellant and his co-convicts was proof of intention. Learned counsel urged the Court to rely on the evidence before the Court to affirm the conviction and dismiss the appeal.

RESOLUTION
The appeal is against the conviction for murder and conspiracy handed down to the Appellant and his co-convicts. The Appellant herein was the 1st Accused/Convict. It is trite that the burden of proof is squarely on the Respondent from beginning to finish in a criminal trial because it does not shift, see NWEZE VS. STATE (2017) LPELR-42344(SC) which held thus:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See: Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511 at 531; Solola vs. The State (2005) 5 SC (Pt. 1) 135.” Per GALINJE, J.S.C
The standard of proof is also settled and it is beyond reasonable doubt as reiterated in the case of OSETOLA & ANOR. VS. STATE (2012) LPELR-9348(SC) as follows:
“Section 138 (1) of the Evidence Act makes it mandatory that the standard of proof required in criminal trials by the prosecution is proof beyond reasonable doubt. Proof beyond reasonable doubt was explained in Miller v. Minister of Pensions 1947 2 ALL E. R. p.372 at 373 as follows: Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted to fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice. See LORI & ANOR V. STATE 1980 12 NSCC 269.” PER RHODES-VIVOUR, J.S.C

As observed earlier, the Respondent as prosecution called 5 witnesses and tendered several exhibits. Two of those witnesses were eye witnesses to the commission of the offence. The death of the deceased is not challenged and also the fact that death was caused by a gunshot from one of those named in the charge sheet. The Appellant along 3 other colleagues of his went on a patrol and stopped by the Federal Secretariat junction in Uyo. They attempted to arrest motorcyclist who usually stand there to pick and drop passengers. The events that led to the death of the deceased were presented differently by the two sides from the point of the appellant and his team arrival at the scene. It is pertinent to state that the slant given by the appellant and his colleagues as was found by the Court below is illogical and unbelievable. The trial Court rejected their version of the story. I also agree with the trial Court. The contention was over a motorcycle which was held by the 3rd accused/convict. The two eye witness accounts also have some slight variations. It is crystal clear that in establishing that the act of the Appellant caused the death of the deceased, the witnesses of the Respondent as prosecution did not mention that the shot fired was by the Appellant. So it was not the Appellant’s act that caused the death of the deceased. The death was caused by a single bullet shot by the 2nd accused/convict who also admitted in his statements, the statements were in evidence admitted without objection, he fired the fatal shot. Having not established that the Appellant fired the fatal shot, there is a missing link in the case of the prosecution against the Appellant herein. The prosecution did not establish by evidence the fact that the act of the Appellant had anything to do with the death of the deceased. This is a fundamental flaw in the case of the prosecution. There was also a failure of the trial judge to make a specific finding on who amongst the four policemen fired the fatal shot. The evidence before the Court is that a single shot hit the deceased and it was fired from the gun held by 2nd convict, not all the guns were fired, only one and from the evidence from the evidence of eye witnesses, the Appellant was not the one that shot the deceased. It is trite that in establishing the guilt of the accused person, the prosecution must prove the link or connection between the Appellant in this case and the cause of death, see OCHIBA VS. STATE (2011) LPELR-8245(SC) where the apex Court said:
“In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established proved beyond reasonable doubt. In the course of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process it must also produce vital witnesses to testify for the prosecution.” Per ADEKEYE, J.S.C
The cause of death of a victim must be the act of the accused person and it must be established with certainty, see AIGUOREGHIAN & ANOR. VS. STATE (2004) LPELR-270(SC) where TOBI, JSC (of blessed memory) said:
“In Oguntolu vs. The State (1996) NWLR (Pt.432) 503, this Court held that in a charge of murder, the death of the victim must be caused by the act of the accused. See also Ononuju vs. State (1976) 5 SC 1; Onyenankeya vs. State (1964) NMLR 34; Idowu vs. State (2000) 7 SC (Pt.11) 50 (2000) 12 NWLR (Pt. 680) 48; Ahmed vs. State (2001) 12 (Pt. 1) 135; (2001) 18 NWLR (Pt. 746) 622. The cause of the death of the deceased should be established with certainty because the act which caused the death is in most cases a certain act. See Adekunle vs. State (1989) 12 SC 203; (1987) 5 NWLR (Pt. 123) 505: Oforlete vs. State (2000) 12 NWLR (Pt. 681) 415: (2000) 7 SC (Pt. 1) 80. There are however, instances where cause of death could be inferred from the circumstances of the case. See Adekunle vs. State (supra); Oguonzee vs. State (1998) 5 NWLR (Pt. 551) 521; (1998) 4 SC 110.” See Per TOBI, J.S.C (Pp. 42-43, paras. G-D)
The cause of the death of the deceased is expected to be established with certainty because the act which caused the death is in most cases a certain act, in this case the bullet fired by the one of the policemen. One of the co-convicts not the Appellant admitted he fired the shot. That admission/confession excludes the appellant. It means no act of the Appellant was responsible for the death of the deceased.
Flowing from above therefore, the Appellant cannot be guilty of the offence of murder because he did nothing to cause the unlawful death. If all the four policemen fired their guns, then, that would have required a different consideration but where only one person fired a gun, the remaining three cannot be guilty by association when they did not do anything that resulted in the death of the deceased. The trial Court erred in this regard. The cause of death of the deceased should be established with certainty because the act which caused the death is in most cases a certain act and it was in this case a certain act of shooting the deceased with a gun.

This takes us to the consideration of conspiracy, the trial judge in his findings held that conspiracy was established against the 4 accused persons and convicted them accordingly. The trial judge said thus:
“The decision to leave the scene seen together immediately upon their bullet killing Kenneth Felix Akpan is a demonstration of unity of purpose and community of intention. In the result, I find that the offence charged in the first count of the information proven beyond reasonable doubt against; INSPECTOR BOKO SAMPSON; INSPECTOR AKPAETTE MOSES; CPL ENOBONG UDO and CPL GODWIN NNANA. I also find the second count of the information has been proven beyond reasonable doubt…”

The burden and standard of proof on the prosecution is not an easy one, my lord NWEZE JSC in the case of AKINLOLU VS. STATE (2015) LPELR-25986(SC) had this to say:
“Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt. It is not proof beyond any shadow of doubt. The two requirements are completely dissimilar. That is why the expression “proof beyond reasonable doubt” cannot be employed conterminously with the expression “proof beyond any shadow of doubt.” The law has opted for the expression “proof beyond reasonable doubt,” Dibie vs. State (2007) LPELR-941 (SC); Dimlong vs. Dimlong [1998] 2 NWLR (Pt. 538) 381, 178; State vs. Gwangwan (2015) LPELR-24837 (SC). I have examined most notable authorities, ancient and modern. They are all unanimous that this expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for estimating when the prosecution has discharged the burden imposed on it by law. In the realm of criminal justice, the said expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele vs. Nigerian Army [2004] 6 NWLR (Pt. 868) 166, 179. Hence, it connotes sufficiency of evidence, Nsofor vs. State (2004) 18 NWLR (pt. 905) 292, 305. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. The cases on this point are many. Only a handful will be cited here, Okere vs. State (supra) 415 – 416; Sabi vs. State [2011] 14 NWLR (Pt. 1268) 421; Iwunze vs. Federal Republic of Nigeria [2013] 1 NWLR (Pt. 1324) 119; Njoku vs. State [2013] 2 NWLR (Pt. 1339) 548; Osuagwu vs. State [2013] 5 NWLR (Pt. 1347) 360; Ajayi vs. State [2013] 9 NWLR (Pt. 1360) 589.”

The case of the prosecution against the Appellant in this appeal is not strong and falls short of legal requirement for conviction.
For the sake of completeness of resolution, can the appellant rely on Order 237 which is the Police Force order and Force Administrative Instrument admitted as Exhibit O? I agree that self defence is a legitimate defence in a charge of murder. The appellant did not fire his firearm and he cannot therefore be heard to seek solace in the said order, particularly 237(3) which provides thus:
“A police officer may use firearm under the following circumstances;
a. When attached, and his life is in danger and there is no other way of saving his life.
b. When defending a person who is attacked, and he believes on reasonable grounds that he cannot otherwise protect that person attacked from death.
c. When necessary to disperse rioters…. Remember that 12 or more people must remain riotously assembled beyond a reasonable time after the reading of the proclamation before the use of firearms can be justified.
(4) With regards to 3(a) above, a police officer would have to prove that he was in danger of losing his life or of receiving an injury likely seriously to endanger his life. It would be most difficult to justify the use of firearms if attacked by an unarmed man.”
If therefore a police officer is attacked by men armed or fired at and he fired in return, he can rely on the order as defence. Where he could have disarmed the attacker and failed to do so, he cannot rely on the order as a defence. Even if, he had need to shoot, subsection (6) of the order made specific provision on what to do, it says:
(6) Fire should be directed at the knee of the rioters. Any ringleader in the forefront of the mob should be singled out and fired on. Never under any circumstance will warning shots be fired over the heads of rioters.”
Order 237 (2) is also very instructive in the circumstances of this case, it specifically charges the Police Officer to guard against the slightest misuse of firearm, it says:
“It is of utmost importance that all Police Officers realize how very essential it is to guard against the slightest misuse of firearm… A police officer must remember that his action in using firearms which results in the killing or wounding of a human being is open to investigation by the Courts and he is liable to be held responsible for his actions under the criminal law if the Court finds that his use of firearm was unreasonable in the circumstances”.
Ultimately, the decision as to whether the use of firearm was justified rest with the Court which will decide based on the special circumstances of each case. The trial Court did not excuse the use of the firearm on the evidence before the Court, the Appellant did not fire his firearm and therefore the defence cannot be activated in his favour.

It will therefore amount to an academic exercise if the Court goes to consider what will not add any value to the findings made earlier in this judgment.

This appeal is meritorious and I find for the Appellant. The finding of guilt and sentence are hereby set aside. The judgment delivered by Hon. Justice Ifiok E. Ukanna in charge HU/13C/2016 on the 27th of July, 2018 is hereby set aside. The Appellant is hereby discharged and acquitted.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Yargata B. Nimpar, JCA. I agree with the reasoning and conclusion and I also discharge and acquit the Appellant of the offences charged,

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance the judgment delivered by my Learned brother, Yargata B. Nimpar, JCA. I agree with the reasoning and conclusion that there is a fundamental flaw in the case of the prosecution. In other words, the evidence of the prosecution did not link the appellant with the death of the deceased. It must be borne in mind that in all criminal cases, the prosecution has throughout the burden to prove beyond reasonable doubt the guilt of the person charged. See LORI V STATE (1980) 8 – 11 – S.C 87, AMEH V STATE (1978) 6 – 7 SC 27 and IKO V STATE (2001) 7 SC (prt II) – 115 at 145.

In the instant case, there was no evidence that beyond reasonable doubt that the applicant took part in killing the deceased as alleged.
I too allow the appeal and set aside the judgment of lower Court in charge No HW/13C/2016.

Appearances:

N. OGALAGU ESQ. For Appellant(s)

FRIDAY J. ITIM ESQ. For Respondent(s)