SGT. LAZARUS ADIELE & ORS. v. THE STATE
(2011)LCN/4406(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
CA/PH/326A/2007 (CON)
RATIO
EXTRA JUDICIAL CONFESSIONAL STATEMENT: WHETHER EXTRA JUDICIAL CONFESSIONAL STATEMENT MADE BY A CO-ACCUSED CAN BE USED TO CONVICT ANOTHER ACCUSED
I agree with the learned 1st Appellant’s counsel that the extra judicial confessional statement made by a co-accused cannot be used to convict another accused such as the Appellant. See R v. AKINPELU – the locus classicus on this point reported (1936) 5 (WACA) 3; OTUFALE v. THE STATE (1968) NMLR Pg. 261 at 262; YONGO v. C.O.P. (1992) 9 SCNJ 113 at 133. The law clearly excludes such evidence: S.27 (3) of the Evidence Act provides as follows: “Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or jury where the trial is one with jury, shall not take such statement into consideration as against any of such other person in whose presence it was made unless he adopted the said statement by words or conduct.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EXTRA-JUDICIAL STATEMENT AND EVIDENCE GIVEN ON OATH: WHETHER THERE IS A DIFFERENCE BETWEEN THE EXTRA JUDICIAL STATEMENT MADE BY A CO-ACCUSED AND EVIDENCE GIVEN BY A CO-ACCUSED ON OATH
As my Lord Fabiyi JSC held in SUBERU v. THE STATE (2010) 3SC Pt. 11 Pg. 105 inter alia that there is a gulf of difference between the extra judicial statement made by a co-accused which is governed by S.27 (3) of the Evidence Act and evidence given by a co-accused on oath which is governed by S.178 (2) of the Evidence Act. An extra judicial statement by a co-accused remains a statement not his evidence. It is binding on the maker only. No such proviso exists in relation to the evidence on oath of a co-accused although case law now seems to lean towards cautiousness on the part of the judex in convicting on the sole evidence of a co-accused. It is my humble view that ordinarily the evidence of DW3 needs no corroboration as a co-accused. Where an Accused person repeats the contents of his statement to the police in his statement on oath, in the witness box, or gives fresh evidence on oath against a co-accused it becomes evidence for all purposes and is admissible against a co-accused. See BENJAMINE OYAKHIRE v. THE STATE (2006) 7 SCNJ 319 & 15 NWLR Pt. 1001 Pg. 157; STATE v. SQDN. LEADER ONYEUKWU (2004) 7 SCNJ 230 & 14 NWLR Pt. 893 Pg. 340. The court should exercise caution in relying solely on such evidence. See DSP NWANKWOALA v. THE STATE (2006) 7 SCNJ 566 & 14 NWLR Pt. 1000 Pg. 663 at Pg. 681-682. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
UNCORROBORATED EVIDENCE OF A CO-ACCUSED PERSON: WHETHER THE COURT CAN CONVICT ON THE UN-CORROBORATED EVIDENCE OF A CO-ACCUSED PERSON
I must emphasize that I have gone to great lengths to show that the evidence of the DW3 as co-accused is sufficient, satisfactory and credible on its own to ground a conviction under ordinary circumstances. See EDET OKON IKO v. THE STATE (2001) 7 SCNJ 382 & (2001) 14 NWLR Pt. 732 Pg. 221. While the court is expected to regard the uncorroborated evidence of a co-accused with circumspection, the law does not impose a duty on the court to warn itself before convicting on it. See OYAKHIRE v. THE STATE (2006) 15 NWLR Pt. 1001 Pg. 157 at 176. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
TAINTED WITNESS: WHETHER MERE FILIAL AFFINITY TO THE VICTIM OR THE ACCUSED CAN TURN THE WITNESS TO A CRIME INTO A TAINTED WITNESS
Who in law constitutes a “tainted witness.” I think that mere filial affinity to either the victim OR THE Accused cannot turn the witness to a crime into a “tainted witness.” See PETER ORISAKWE v. THE STATE (2004) 5 SCNJ 256. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
TAINTED WITNESS: WHO IS A “TAINTED WITNESS”
A tainted witness is a witness who though not an accomplice is a witness who may have his own purpose to serve. Thus, a trial judge should in prudence warn himself before accepting without some corroboration the evidence of such a witness. It is more a matter of prudence than a matter of law. See STATE v. OKOLO (1974) 2 SC. 73; JIMOH ISHOLA v. THE STATE (1978) 9-10 SC; NBENU & ANOR. v. THE STATE (1988) 7 SCNJ Pt. 11 Pg. 211 at 220; OMOTOLA v. THE STATE (2009) 7 NWLR Pt. 1139 Pg. 148. A tainted witness may be an accomplice or a person who has his own interest to serve. That purpose must be one that transcends merely being a witness at the trial. An accomplice who has turned state witness of course has an interest to protect. A co-accused for example as in this case may have a special interest to serve or protect. An accessory before or after the fact may be a tainted witness. A hostile witness may be a tainted witness in the sense of having some hidden reason not to come and give evidence. In CLEMENT OGUONZEE v. THE STATE (1998) 4 SCNJ 226, the Supreme Court held that a tainted witness includes a witness who is biased or likely to be biased or a witness whose evidence contradicts his extra judicial statement or whose evidence is unsafe to rely upon to convict an accused person. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES:
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. SGT. LAZARUS ADIELE
2. CORP. DESMOND ONONUJU
3. CORP. BONNY AIKHADUEKI – Appellant(s)
AND
THE STATE – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State holden at Orlu presided over by Hon. Justice B. A. Njemanze delivered on 15/5/06 wherein the three Appellants were convicted for murder and sentenced to death by hanging.
The facts which led to this appeal are as follows: The Appellants amongst others were jointly charged as follows:
STATEMENT OF OFFENCE
Murder, Contrary to Section 319(1) of the Criminal Code Cap. 30 Vol. II – Laws of Eastern Nigeria 1963 as applicable to Imo State.
PARTICULARS OF OFFENCE
Inspector David Poli, Sgt. Lazarus Adiele, Cpl. Desmond Ononuju, Inspector Victor Chiaka, PC. Augustine Ochiaga, Inspector Sunday Uwadiegwu and Bonny Aikhadueki on the 15th day of August, 2002 along Orlu Road Junction by Mgbidi in Orlu Judicial Division murdered Christian Owerreoma.
At the trial, PW.2 – Boniface Ozumba gave evidence that on 15/8/2002 he was travelling in his Nissan Sunny Car with Reg. No. CY 926 AA with his brother in-law Christian Owerreoma who came home to get married. They encountered a check point along Orlu Road Junction by Mgbidi. After they left the check point, they were chased by police officers in their Algon Jeep. At the next police check point, mounted by mobile policemen, the most senior officer in the Algon Jeep, one Inspector Uwadiegbwu raised the alarm that P.W.2 and Christian Owerreoma were thieves and he and other policemen in the Jeep started shooting at the vehicle. Thereafter the mobile policemen at the check point also started shooting at the vehicle. The driver – P.W.2 on seeing that policemen were shooting at his vehicle, made a run for it but stopped a few poles from the check point. PW 2 and the deceased were severely wounded and were taken to White Rose Hospital Mgbidi where the deceased was pronounced dead. During the trial, the two sets of policemen claimed that the the deceased and PW2 were suspected to be armed robbers because the victims had refused to stop the vehicle at the regular stop and search carried on by the regular policemen in the Algon Jeep, and at the mobile police check point. They claimed that their behavior in refusing to stop caused the police to fire at the vehicle and its occupants in order to apprehend them.
All the six policemen found directly involved in the incident were charged on information to the High Court with the offence of murder contrary to S.319 (1) of the Criminal Code. At the trial court, the prosecution called 5 witnesses while each of the accused persons testified in his own defence but did not call any witnesses. At the conclusion of the trial, the learned trial judge found not guilty and acquitted the 1st, 4th and 5th Accused persons. The court found guilty as charged and convicted the 2nd, 3rd and 6th Accused persons. The court proceeded to sentence them to death by hanging.
The Appellants filed separate notices of appeal as required by the rules of this court. In a needless procedure, different files were opened for each Appellant.
Each Appellant was represented by a counsel of his choice and they filed different briefs. The appeals were taken together. Because of the different interests and defence inherent in the case made out by each Appellant, and the circumstances of this case, I will address the issues raised by each Appellant separately as contained in the different briefs in respect of their appeal. For the purposes of this appeal, the 2nd Accused person at the trial court and the 1st Appellant herein is Sgt. Lazarus Adiele. He filed appeal entered as CA/PH/326A/2007. The 3rd Accused person at the trial court was Sgt. Desmond Ononuju who is the 2nd Appellant herein. He filed appeal entered as CA/PH/326B/2007.
The 6th Accused person at the trial court Corporal Bonny Alkhadueki is the 3rd Appellant herein and he filed appeal entered as CA/OW/251/2010.
CA/PH/326A/2007
1st Appellant – Sgt. Lazarus Adiele. In respect of the 1st Appellant, the Appellant’s brief dated 3/9/07 was filed on 4/9/07. A reply brief was also filed on 5/11/10. The State as Respondent filed a brief dated 14/10/10 on 19/10/10.
In the brief settled by L. M. Alozie Esq., the Appellant identified 4 issues for determination set out below as follows:
1. Whether the prosecution established a case of murder under Section 316 of the Criminal Code against the 1st Accused person.
2. Whether the learned trial judge was right when he accepted and relied on the evidence of the DW.3 (CPL Ononuju) a co-accused to convict the 1st Appellant
3. Whether the learned trial judge was right in accepting the evidence of the DW.1, DW.3, DW.4, DW.5 and DW.6 and when these pieces of evidence are contradictory.
4. Whether the learned trial judge was right when he held that the provisions of Section 277 of the CPL did not avail the accused persons particularly the 1st Appellant.
In the Respondent’s brief settled by C. N. Akowundu Esq. DPP Min. of Justice, Imo State, three issues were identified for determination as follows:
“i) Whether the prosecution established a case of murder under S.316 of the Criminal Code against the Appellant.
ii) Whether there are contradictions in the evidence of DW.1, DW3, DW4, DW5 and DW6 that can be resolved in favour of the Appellant.
iii) Whether in the circumstances of this case the provisions of S.271 of the Criminal Code Act avail the Appellant.”
I have decided to re-arrange and rephrase the issues for determination in order to better address the issues as identified by the Appellant’s counsel. This I am entitled to do.
I will rearrange the issues as follows:
1. Whether the trial court should have believed the contradictory evidence of D.W1, DW3, DW4, DW5 and DW6 and if such contradiction can be resolved in favour of the 1st Appellant.
2. Whether the trial judge was right when he accepted and relied on the evidence of DW3 Cpt. Ononuju a co-accused to convict the 1st Appellant.
3. Whether the learned trial judge was right when he held that the provisions of S.271 of the Criminal Procedure Act did not avail the 1st Appellant.
4. Whether the prosecution established a case of murder under S.316 of the Criminal Code against the 1st Appellant.
ISSUE ONE
This concerns the evidence of DW1, DW3, DW4, DW5 and DW6 and whether there are contradictions therein which can be resolved in favour of the 1st Appellant.
Counsel argued that the findings of PW3, the IPO was that only late Uwadiegwu expended one ammunition and that PW4 swore that Inspector Uwadiegwu and three mobile policemen shot at the vehicle.In their evidence, DW4, DW5, DW6 agreed with the 1st Appellant that it was Inspector Uwadiegwu, Corporal Ononuju DW3, and DW6 and one Sgt. Godwin Monsi who fired at the vehicle. Counsel submitted that there was no corroboration of the evidence of DW3 and it should not have been accepted and acted upon by the trial court. Counsel submitted that when the evidence of DW.2, DW.3, DW4, DW5 and DW6 are taken together; it will be obvious that the court cannot accept and act on these pieces of evidence because they contradict each other as to who fired the fatal gun-shot.
Learned Respondent’s counsel argued on this issue that the evidence of DW1 and DW3 are not in conflict but rather corroborate the evidence of PW2 and PW3 in all material particulars. Counsel argued that at the earliest opportunity, DW3 made Exh. G2 on 13/9/02 where he mentioned that the 1st Appellant was one of those who shot at the vehicle of PW2. DW.3 only reaffirmed the statement under cross-examination.
On this issue, the question of material contradictions in the evidence of the prosecution witnesses, PW.2 and PW.4, the eyewitnesses on the prosecution side did not mention specifically that the 1st Appellant was one of the policemen who shot at the vehicle of PW2 but swore that several policemen both from the Algon Jeep and the road block shot at the vehicle.
PW.3 on 23/6/04 at pages 108-109 of the record swore as follows:
“At the Mgbidi Police Station I checked from the armoury section to find out the caliber of arms and ammunition the 2nd Accused, Sunday Uwadiegwu and one Sgt. Kingsley were issued with. I discovered that the 2nd Accused was issued with a Lar Riffle with 20 rounds of ammunition. Inspector Sunday Uwadiegwu (deceased) was issued with one Berretta Pistol with 6 rounds of ammunition and Sgt. Kingsley Uhiengbomu was issued with AK 47 Riffle with 20 rounds of ammunition. I observed that late Inspector Sunday Uwadiegwu expended one ammunition. I collected the arms and registered them at the Zonal C.I.D. Umuahia. This is the Lar Riffle which was issued to the 2nd Accused.”
Please note that Inspector Uwadiegwu who died during the trial was the original 2nd Accused. The witness did not say the 1st Appellant did not expend any ammunition. D.W.4 at page 140 of the record said it was Inspector Sunday Uwadiegwu from the Algon Jeep who fired at the vehicle in which the deceased died. He did not mention the 1st Appellant. D.W. 5 on Page 145 of the record did not also mention that the 1st Appellant fired his gun at the scene of the incident. D.W.6 on page 148 of the record did not identify the regular policemen who shot at the vehicle in which the deceased was travelling.
In order to get a better picture of the facts of this case, let me explain that seven (7) policemen were initially charged before the lower court and one of them Inspector Sunday Uwadiegwu died during the trial. There were two sets of policemen involved in the shooting incident. The first set was a patrol team comprising of the 1st Accused Inspector David Poli who drove the Algon Jeep, Inspector Uwadiegwu who led the patrol team, and the 1st Appellant. The second set was made up of the mobile policemen at the road block at Imo/Anambra boundary along Onitsha/Owerri Expressway at Mgbidi. They are 2nd Appellant, 4th and 5th Accused at the trial and the 3rd Appellant. D.W. 3 at the trial is the 2nd Appellant in this court and was the only one who gave direct evidence on oath that he saw the 1st Appellant shooting at the vehicle.
In the first instance, it cannot be said that there was any contradiction in the evidence of DW3 as against other defence witnesses because they did not mention the 1st Appellant in their own evidence on oath. At the earliest opportunity, DW.3 mentioned in Exh. G2 made on 13/9/02 that two Sergeants and the Inspector in the Algon Jeep shot at the vehicle. He repeated the same evidence on oath on page 131 lines 11-15 of the record. In AGBO v. STATE (2006) 6 NWLR Pt. 977 Pg. 545 at Pg. 564, the Supreme Court explained what constitutes contradiction as distinct from discrepancy in evidence. The apex court held –
“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. In other words, two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains some minor differences in details.”
In this case, even though the evidence of other witnesses did not specify the 1st Appellant as one of the shooters they cannot be said to contradict that of DW.3.
Let me say that the record of proceedings did not in my humble view show any contradiction in the evidence of either the prosecution witnesses or the defence witnesses which can be resolved in favour of the 1st Appellant. Issue 1 is resolved against the 1st Appellant.
ISSUE TWO
This issue calls on us to consider the objections raised to the weight attached to the evidence of D.W.3 by the learned trial judge. Learned 1st Appellant’s counsel first complained that the court relied on the evidence of DW3 who was an accomplice and a co-accused and that he should have looked for corroboration.
On this issue, learned Appellant’s counsel argued that it was the evidence of DW3 as 3rd Accused which implicated the 1st Appellant. Counsel argued that the evidence was actuated by malice and anger because the 1st Appellant had earlier on as DW2 given evidence that implicated DW3. Counsel submitted that it was wrong in law for the court not to have warned itself before acting on the evidence of DW3.
Counsel further argued that DW3 was a tainted witness and an accomplice because he was tried along with the other accused persons for the same offence. He submitted that DW3 being a tainted witness with a purpose to serve, his testimony not having been corroborated should have been received with caution and the court should have warned itself before accepting same. He cited OKEREKE v. THE STATE (1998) 3 NWLR Pt. 540 Pg. 75 at 88; ADEOYE v. THE STATE (1997) NWLR Pt. 499 Pg. 307 at 313; OGUNLANA v. THE STATE (1995) 5 NWLR Pt. 395 Pg. 266 at 284-286; NWANGWA v. THE STATE (1997) 7 NWLR Pt. 517 Pg. 457 at 464; MBENU v. THE STATE (1988) 3 NWLR Pt. 84 Pg. 615; IBE v. THE STATE (1993) 7 NWLR Pt. 304 Pg. 185 at 197-198 and NWAEMEREJI v. STATE (1997) 4 NWLR Pt. 497 Pg. 65 at 77-78.
Counsel submitted that the statement of co-accused contained in Exh. G2 made by DW3 will not constitute evidence against the 1st Appellant unless the 1st Appellant had adopted same. He cited WAZIRI v. THE STATE (1997) 3 NWLR Pt. 496 Pg. 689 at 724-725 & 717; TITLAYO v. THE STATE (1998) 2 NWLR Pt. 537 Pg. 235; RASA v. THE STATE (1994) 5 NWLR Pt. 344 Pg. 269 at 288; OZAKI v. THE STATE (1990) 1 NWLR Pt. 124 Pg. 92; SHODIYA v. STATE (1992) 3 NWLR Pt. 230 Pg. 457; OGUONYE v. THE STATE (1995) 8 NWLR Pt. 413 Pg. 333 at 349; STATE v. ONYEUKWU (2004) 14 NWLR Pt. 893 Pg. 340 at 378-379.
Counsel to the Respondent argued that DW3 was not a tainted witness and that even if he were, his evidence was well corroborated by the evidence of P.W.2 and that of P.W.4. He cited OTEKI v. A.G. BENDEL (1986) 2 NWLR Pt. 24 Pg. 648; OLALEKAN v. THE STATE (2002) FWLR Pt. 91 Pg. 1605 at 1629.
On this issue, the finding of the learned trial judge on this fact is set out below –
“The DW3 said that all of a sudden three policemen, an Inspector and two Sergeants jumped down from the police Jeep. He then heard gun-shots from the policemen. He said in cross-examination that the other Sergeant who shot at the vehicle was Sergeant Lazarus Adiele the 2nd Accused. I accept that piece of evidence.”
Learned 1st Appellant’s counsel with the greatest respect confused the status of an accomplice with a co-accused.
An accomplice is someone not at that time jointly charged with the Accused and having no criminal charge to face. S.178 (1) of the Evidence Act provides specifically that the court must warn the jury and in the absence of a jury warn itself of the danger of convicting solely on such uncorroborated evidence. S.178 (1) and (2) of the Evidence Act provide thus:
S.178 (1) An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice:
Provided that in cases tried with a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the accused, the judges shall warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so and in all other cases the court shall so direct itself..
(2) Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.
Who is an accomplice? Kawu JSC reminding us of R v. EZECHIE (1962) 1 ALL NLR 113 in UTTEH v. THE STATE (1992) NWLR Pt. 223 Pg. 257 stated that in our law an accomplice is (a) a participant in the actual crime charged (participes criminis) (b) a receiver of the property stolen (c) Where a person is charged with a specific offence on a particular occasion, and evidence is admissible and has been admitted of having committed crimes of identical type on other occasions, as proving system or intent or negating accident, parties to such other similar offences.
I would add that accessories before or after the fact of a crime are accomplices. The factual difference is that the accomplice is not charged with the offence but is now a witness for the State in respect of the charge against the accused. Therefore protection is given to the accused by S. 178 (1) of the Evidence Act and the courts. See OKOSI v. THE STATE (1989) 1 NWLR Pt. 100 Pg. 642 at Pg. 758.
Thus the DW3 cannot be described as an accomplice in the circumstances of this case.
Let us now look at the extra judicial statement of DW3. At the time DW3 made Exh. G2 to the police on 13/9/02 at Umuahia he had not been formally charged in court with any criminal offence. See pages 40-41 and pages 103 of the record. I agree with the learned 1st Appellant’s counsel that the extra judicial confessional statement made by a co-accused cannot be used to convict another accused such as the Appellant. See R v. AKINPELU – the locus classicus on this point reported (1936) 5 (WACA) 3; OTUFALE v. THE STATE (1968) NMLR Pg. 261 at 262; YONGO v. C.O.P. (1992) 9 SCNJ 113 at 133. The law clearly excludes such evidence:
S.27 (3) of the Evidence Act provides as follows:
“Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or jury where the trial is one with jury, shall not take such statement into consideration as against any of such other person in whose presence it was made unless he adopted the said statement by words or conduct.”
As my Lord Fabiyi JSC held in SUBERU v. THE STATE (2010) 3SC Pt. 11 Pg. 105 inter alia that there is a gulf of difference between the extra judicial statement made by a co-accused which is governed by S.27 (3) of the Evidence Act and evidence given by a co-accused on oath which is governed by S.178 (2) of the Evidence Act. An extra judicial statement by a co-accused remains a statement not his evidence. It is binding on the maker only.
No such proviso exists in relation to the evidence on oath of a co-accused although case law now seems to lean towards cautiousness on the part of the judex in convicting on the sole evidence of a co-accused. It is my humble view that ordinarily the evidence of DW3 needs no corroboration as a co-accused.
Where an Accused person repeats the contents of his statement to the police in his statement on oath, in the witness box, or gives fresh evidence on oath against a co-accused it becomes evidence for all purposes and is admissible against a co-accused. See BENJAMINE OYAKHIRE v. THE STATE (2006) 7 SCNJ 319 & 15 NWLR Pt. 1001 Pg. 157; STATE v. SQDN. LEADER ONYEUKWU (2004) 7 SCNJ 230 & 14 NWLR Pt. 893 Pg. 340. The court should exercise caution in relying solely on such evidence. See DSP NWANKWOALA v. THE STATE (2006) 7 SCNJ 566 & 14 NWLR Pt. 1000 Pg. 663 at Pg. 681-682.
However, in this case, the learned trial judge did not use the extra judicial statement but the evidence of DW3 on oath. That is the evidence 1st Appellant is challenging as being tainted.
Let us examine the said evidence. At pages 136-137 of the record, DW.3 affirmed and particularized his earlier statement as contained in Exh. G2. The following is what transpired at the lower court:
“Q: You made Exh. G2.
Ans: Yes, it is my statement. I said in Exh. G that two Sergeants in the Algon Jeep including their Inspector shot at the red Nissan Car.
Q: Which of the Inspectors did the shooting?
Ans: He was later identified as Inspector Sunday Uwadiegwu.
Q: Which of the Sergeants.
Ans: Sgt. Kingsley absconded immediately after the incident and so he did not make any statement. The Sgt. Lazarus Adiele DW2 and (2nd Accused).”
From the above, it is clear that DW.3 gave evidence on oath directly implicating the 1st Appellant in the shooting. Apart from the statement in Exh. G2, DW.3 confirmed on oath under cross-examination that 1st Appellant was one of the Sergeants who shot at the vehicle of PW2.
I must emphasize that I have gone to great lengths to show that the evidence of the DW3 as co-accused is sufficient, satisfactory and credible on its own to ground a conviction under ordinary circumstances. See EDET OKON IKO v. THE STATE (2001) 7 SCNJ 382 & (2001) 14 NWLR Pt. 732 Pg. 221. While the court is expected to regard the uncorroborated evidence of a co-accused with circumspection, the law does not impose a duty on the court to warn itself before convicting on it. See OYAKHIRE v. THE STATE (2006) 15 NWLR Pt. 1001 Pg. 157 at 176.
Learned 1st Appellant’s counsel complained that the evidence of DW.3 was tainted because he had his own purpose to serve, in that he wanted to save himself from the consequences of the shooting. I am aware that D.W.3 belonged to the 2nd set of policemen who were the mobile policemen at the road block on the day in question and that the 1st Appellant belonged to the 1st set who were on patrol in the Algon Jeep.
Who in law constitutes a “tainted witness.” I think that mere filial affinity to either the victim OR THE Accused cannot turn the witness to a crime into a “tainted witness.” See PETER ORISAKWE v. THE STATE (2004) 5 SCNJ 256.
A tainted witness is a witness who though not an accomplice is a witness who may have his own purpose to serve. Thus, a trial judge should in prudence warn himself before accepting without some corroboration the evidence of such a witness. It is more a matter of prudence than a matter of law. See STATE v. OKOLO (1974) 2 SC. 73; JIMOH ISHOLA v. THE STATE (1978) 9-10 SC; NBENU & ANOR. v. THE STATE (1988) 7 SCNJ Pt. 11 Pg. 211 at 220; OMOTOLA v. THE STATE (2009) 7 NWLR Pt. 1139 Pg. 148.
A tainted witness may be an accomplice or a person who has his own interest to serve. That purpose must be one that transcends merely being a witness at the trial. An accomplice who has turned state witness of course has an interest to protect. A co-accused for example as in this case may have a special interest to serve or protect. An accessory before or after the fact may be a tainted witness. A hostile witness may be a tainted witness in the sense of having some hidden reason not to come and give evidence. In CLEMENT OGUONZEE v. THE STATE (1998) 4 SCNJ 226, the Supreme Court held that a tainted witness includes a witness who is biased or likely to be biased or a witness whose evidence contradicts his extra judicial statement or whose evidence is unsafe to rely upon to convict an accused person.
In spite of all the above, even if the witness were believed to be tainted, all the trial judge need do is to warn himself AND look for corroboration of the evidence of such a witness. Indeed the judex should be wary of reaching a verdict of guilty on the uncorroborated sole evidence of a tainted witness.
However, let me recall the warning of Idigbe JSC in MAILAYI & ANOR. v. THE STATE (1968) 1 ALL NLR Pg. 116 at Pg. 123 in relation to the classification of some witnesses as “tainted”:
“Recently, there has been a tendency among criminal lawyers to create a category of “tainted” witnesses. We however observe that the expression “tainted” is very loose and if its application is not kept within proper bounds, a great deal of confusion will be unleashed in an area of evidence which even now is fraught with difficulties.”
Iguh, JSC in the case of OGUNLANA v. THE STATE supra endorsed this observation of Idigbe, JSC as sound and worthy of note. He similarly cautioned that the application of this loose class of witnesses described as “tainted” must be kept within proper bounds to avoid unnecessary confusion that may becloud this area of our law of evidence. I have heeded the warning of Belgore JSC (as he then was) in OKOSI v. THE STATE supra that the evidence of a co-accused must be considered in the special circumstances in which it is given.
There is no doubt in my mind that the evidence of DW.3 should be regarded as tainted. I have already indicated above that he belonged to the 2nd set of mobile policemen who mounted the road block and I agree with the learned 1st Appellant’s counsel that he may want to shift the blame for the shooting unto the 1st set of policemen among whom was the 1st Appellant. He had something to gain by trying to shift the blame to the 1st set of policemen. In such a case, the court should have been circumspect before convicting solely on his evidence. I would with great humility say that the court should have looked for any evidence to corroborate that of DW3. Corroboration means the act of strengthening the statement of a witness by fresh evidence of another witness. See SALE DAGAYYA v. THE STATE (2006) 1 SCNJ; STATE v. FATAI AZEEZ & ORS. (2008) 4 SCNJ 325, It may be proved by direct or circumstantial evidence. See also OGUNBAYO v. THE STATE (2007) 3 SCNJ 119. See YOHANNA v. FRN (2002) FWLR Pt. 90 Pg. 1433. See ADETOKUNBOH OGUNLANA v. THE STATE (1995) 5 SCNJ 189.
The learned trial judge at page 201 of the record cautioned himself thus:
“I have painstakingly and cautiously considered the evidence of DW.1, DW.2, DW.3, DW.4, DW.5 and DW.6 who are co-accused persons in this case and whose portions of evidence incriminated some of the co-accused persons.”
However, I have gone through the evidence at the trial court, there is no other direct and positive evidence from any other eyewitness that could serve as corroboration that the 1st Appellant actually participated in the shooting which culminated in the death of the deceased. While PW4 the only independent eyewitness painted a vivid picture of Inspector Uwadiegwu brandishing a gun and shooting at the vehicle and the mobile policemen also joining in the shooting, he did not mention that other regular policemen shot at the vehicle. The authorities say the court should be wary and warn itself before convicting on the uncorroborated evidence of a tainted witness. The cautiousness is one of substance, not of form. The judge must not merely indicate on the record that he is aware of his duty to be cautious and that he has warned himself – which is a matter of form, he must demonstrate that he heeded the warning – that is a matter of substance. Apart from that, the D.W.3 did not mention at the earliest opportunity the name of the 1st Appellant. By the time D.W.3 made a statement to the police on Exh G2 when the incident was being investigated, he would have known the names of all those involved in the incident. When an eye witness omits to mention at the earliest opportunity the names of the persons he said he saw committing an offence, a court must be careful in accepting his evidence given later unless a satisfactory explanation is given as to why the names were not mentioned at the earliest opportunity. See ABU ISAH v. THE STATE (2008) 5 SCNJ 60. In the circumstances, I do not think the learned trial judge substantially addressed the issue of the fact that the proof of only one tainted witness who was a co-accused with his own interest to serve in shifting the blame to the 1st Appellant, has proved the charge against the 1st Appellant. The evidence of AN uncorroborated tainted witness cannot be proof beyond reasonable doubt that the 1st Appellant participated in the shooting that culminated in the death of the deceased. The second issue is resolved in favour of the 1st Appellant.
Having resolved the second issue of fact of the participation of the 1st Appellant in favour of the 1st Appellant, a consideration of the 3rd and 4th issues is mute since there is no factual basis for it. Where the actual commission of a crime is directly in issue, it must be proved beyond reasonable doubt. See APUGO v. THE STATE (2006) 7 SCNJ 587.
It is clear at least to me, that there is doubt as to the guilt of 1st Appellant. This doubt must be resolved in favour of the 1st Appellant.
In the circumstances, the appeal of the 1st Appellant is allowed. The judgment of the trial court regarding his conviction and sentence is hereby set aside. A verdict of not guilty is hereby entered for him.
CA/PH/326B/2007
The 2nd Appellant in CA/PH/326B/07 is Corporal Desmond Ononuju. He was 3rd Accused and D.W3 during the trial. The Appellant’s brief was filed and dated 28/11/07. The Appellant’s Reply Brief was dated and filed on 28/4/10. The Respondent’s brief was dated 30/10/08 filed on 3/11/08 and deemed filed on 16/2/10. The Respondent filed a Notice of Preliminary Objection dated 7/5/10 on 10/5/10. In the brief settled by Mr. Ernest Asak Esq., learned 2nd Appellant’s counsel identified three issues for determination as follows:
1. Whether in the circumstances of this case, it was safe for the learned trial judge to base the conviction and sentence of the Appellant wholly on the uncorroborated oral testimonies of co-accused persons DW4, DW5 and DW6; which testimonies were also materially contradictory with the documentary evidence before the court, to wit, respective statements to the police.
2. Whether the learned trial judge was right to have held that the defences (of reasonable mistake of fact, and application of reasonable force in making arrest or preventing escape of a suspect) as provided in Sections 25, 261 and 271 of the Criminal Code were inapplicable in this case, given the evidence before the trial court.
3. Whether in the circumstances of this case the prosecution established a case of murder against the Appellant as defined by S.316 (1) of the Criminal Code.
The Respondent’s counsel distilled 2 issues for determination set out below as follows:
1. Whether the prosecution proved its case to wit murder beyond reasonable doubt against the Appellant.
2. Whether the defence of Act done while performing lawful duty and mistake of facts as provided in Sections 261, 271 and 25 of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria 1963 applicable to Imo State of Nigeria availed the Appellant.
Before I go into the substance of the appeal, I have to consider the preliminary objection raised by the Respondent’s counsel in the brief settled by S. O. Amaechi Asst. Chief State Counsel Min. of Justice, Imo State, to the competence of the issues identified by the Appellant. Respondent’s counsel claims that they are not distilled from any of the two grounds of appeal as filed. Counsel argued that any issue raised by an Appellant must be derived from the grounds of appeal if otherwise, the issue is incompetent and must be struck out. He cited MAGII v. UNIVERISTY OF AGRICULTURE MAKURDI & ORS. (2005) NSQR 143 at 163-164. He argued that the two grounds of appeal are basically the same and the issues formulated do not flow from them.
Learned 2nd Appellant’s counsel in the Reply brief settled by A. J. Nikoro Esq. argued that the grounds should be read and interpreted independently as the errors were particularized regarding the misdirection of law in the judgment appealed against. Counsel submitted that whilst ground 1 is predicated on mens rea or intent of the Accused persons, ground 2 is predicated on lack of conspiracy or common purpose to commit a felony. He argued that even though the grounds as couched or the issues as couched might be inelegant, the court must make the best of them in order to determine the appeal. He cited OWNERS OF MV “ARABELLA” v. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR Pt. 1097 Pg. 182 at 215.
The issues complained against have been set out above. The grounds complained against are set out below:
1. That the learned trial judge erred in law when he held that the Accused persons who shot at the vehicle in which the deceased Christian Owerreoma was travelling in had no justifiable reasons in law to do so.
2. The learned trial judge erred in law when he held that the Appellant, 2nd and 6th Accused persons acted independently and on their own volition used their fire armed recklessly and killed an innocent person without any justifiable person.
The objections raised to these issues would have been relevant if they had not been overtaken by events.
The record shows that after all the briefs had been filed, the 2nd Appellant sought for and secured an order on 27/9/10 to amend the notice of appeal. The amendment was effected on 29/9/10. The amended notice of appeal has four grounds of appeal with their particulars. The grounds of error shorn of their particulars are as follows:
1. That the learned trial Judge erred in Law when he held that the accused person who shot at the vehicle in which the deceased – Christian Owerreoma was travelling in had no justifiable reason in Law to do so.
2. The learned trial Judge erred in law when he held that the Appellant and the 2nd and 6th Accused persons acted independently and on their own volition used their firearms recklessly and killed an innocent person without any justifiable reason.
3. The learned trial judge erred in law in failing to give effect to the provisions of S.8 of the criminal code vis a vis the uncorroborated evidence of co-accused persons before finding the Appellant guilty of the offence of murder is perverse.
4. The learned trial Judge erred in law when he found the Appellant guilty of the charge of murder when the prosecution failed to prove the charge beyond reasonable doubt.
A reading of the amended notice and the issues for determination as distilled by the learned 2nd Appellant’s counsel show that they flow from the grounds of appeal. Neither of the parties made consequential amendments to their respective briefs after the amendment of the 2nd Appellant’s notice of appeal. Where an objection is raised, the |Respondent to the objection is allowed to correct the areas of objection. See TSOKWA OIL v. BANK OF THE NORTH (2002) 11 NWLR Pt. 777 Pg. 163; SHANU v. AFRIBANK PLC (2000) 10-11 SC Pg. 1. In the circumstances, the objection of the Respondent has no factual basis and it is hereby dismissed.
I feel that the issues as raised by the 2nd Appellant’s counsel are most germain to the determination of the complaints raised by this appeal. However, I will rearrange them so I can determinate first the issue raised against the findings of fact made by the learned trial judge.
1. Whether in the circumstances of this case, it was safe for the learned trial judge to base the conviction and sentence of the Appellant wholly on the uncorroborated oral testimonies of co-accused persons DW4, DW5 and DW6; which testimonies were also materially contradictory with the documentary evidence before the court, to wit, respective statements to the police.
2. Whether the learned trial judge was right to have held that the defences (of reasonable mistake of fact, and application of reasonable force in making arrest or preventing escape of a suspect) as provided in Sections 25, 261 and 271 of the Criminal Code were inapplicable in this case, given the evidence before the trial court.
3. Whether in the circumstances of this case the prosecution established a case of murder against the Appellant as defined by S.316 (1) of the Criminal Code.
ISSUE ONE
The 1st issue is whether it was safe for the learned trial judge to base the conviction and sentence of the 2nd Appellant wholly on the uncorroborated oral testimonies of co-accused persons who testified as DW4, DW5 and DW6. Learned 2nd Appellant’s counsel in the brief settled by Ernest Asak Esq. submitted that the learned trial judge ought to have attached little or no weight to the testimonies of DW4, DW5 and DW6 because they were co-accused whose oral evidence incriminated the 2nd Appellant particularly since they made earlier statements to the police which materially contradicted their evidence on oath. He cited QUEEN v. UKPONG (1961) ALL NLR Pg. 25; ONUBOGU v. QUEEN (1975) 9 SC. 1. Learned counsel in the brief referred to several evidence culled from the earlier statements of the witnesses to the police which he argued were contradictory to the evidence of these witnesses on oath. He urged this court to contrast Exh. H1 on page 43 and Exh. H2 on page 45 of the record with the evidence of DW.4 on oath at page 140 of the record. Counsel argued that the first statement of DW.4 was to the effect that none of the mobile policemen at the check point fired any weapon. He argued that the finding of the learned trial judge is erroneous in law.
Learned Respondent’s counsel in reply to this argument urged the view that the witnesses were charged with the 2nd Appellant and their evidence as co-accused which incriminates the 2nd Appellant was properly accepted and relied upon by the learned trial judge. He argued that unlike the evidence of an accomplice, there is no need for corroboration. He cited S.178 (2) of the Evidence Act and OZAKI v. THE STATE (1998) ACLR Pg. 27 at 56.
As I explained earlier in this judgment, there were two sets of policemen involved in the shooting at the vehicle in which the deceased was traveling. The 2nd Appellant belongs to the 2nd set of policemen at the checkpoint at Imo/Anambra boundary along the Onitsha/Owerri Express Way at Mgbidi in Orlu Local Government. The evidence counsel is challenging is the evidence of D.W4, D.W5 and D.W6 who were also fellow mobile policemen at the checkpoint.
With the greatest respect to the learned 2nd Appellant’s counsel there is a difference between the status of the extra judicial statement of a witness simiplicita and the extra judicial statement of a co-accused. There is no doubt that the law is that where the extra judicial statement of a witness contradicts his later evidence on oath, both evidence must be rejected as unreliable and where it casts doubt on the guilt of the accused, he must be acquitted. See ONUCHUKWU v. THE STATE (1998) 4 SCNJ 36.
I have read the extra judicial statements of the DW.4, DW.5 and DW6 where they denied ever participating in the shooting and insisted that only the ordinary policemen who came in the Algon Jeep shot at the vehicle.
Where a co-accused denies in his extra judicial statement the participation of himself or the co-accused in the commission of the offence, and he later retracts and gives evidence on oath implicating the co-accused, his evidence in such circumstances is good and legal evidence on which the court can convict. This is because the inconsistency rule does not extend to the testimony and extra judicial statement of an accused person. See STEPHEN EMOGA v. THE STATE (1997) 7SCNJ 518 (1997) 9 NWLR Pt. 519 Pg. 25 at Pg. 524.. The rationale for this is that it is quite possible for an accused to initially deny the charge on behalf of himself and/or co-accused. However, after arraignment his evidence as co-accused on oath that he witnessed and/or participated in the actions that led to the crime is in law taken as strong evidence in relation to the persons involved in the commission of the crime. See MICHAEL v. THE STATE (2008) 13 NWLR Pt. 1104 Pg. 361 at 383.
On page 140 of the record DW4 said on oath from lines 14-17:
“Then Inspector Sunday Uwadiegwu fired at the vehicle. As he fired the 3rd and 6th Accused persons also fired at the red car.”
On page 145 of the record, DW5 said on oath from line 5-8:
“……Then Cpl. Desmond Ononuju started to fire on the red car. Also Cpl. Bonny Alkhadueki who was with Cpl. Desmond Ononuju fired at the red Nissan car. But still the car did not stop.”
On page 148 of the record DW6 said on oath from line 4-7:
“…….Cpl. Desmond Ononuju who was on the same side with me fired at the red Nissan car. He fired two gun-shots inside the red Nissan car……”
All the above are evidence on oath from co-accused persons specifying that the 2nd Appellant shot at and into the vehicle carrying the deceased. They do not contradict each other and directly implicates the 2nd Appellant. These pieces of evidence on their own do not need corroboration being the evidence of a co-accused. But they have in the circumstances of this case served as evidence to strengthen the fact that the 2nd Appellant participated in the shooting that led to the death of the deceased. Such evidence is admissible for all purposes. See OYAKHIRE v. THE STATE (2006) 7 SCNJ 319 at Pg. 332-333. It may be viewed with circumspection but it does not need corroboration and the court is not bound to look for corroboration.
The evidence of PW.4 an independent eyewitness at page 114 of the record is that the mobile policemen on both sides of the road fired at the vehicle. I am of the view that the learned trial judge was right in accepting the evidence that the 2nd Appellant was one of the mobile policemen who shot at the vehicle when it reached the check point. This issue is resolved against the 2nd Appellant.
ISSUE TWO
The next issue is whether the learned trial judge was right to have held that the defences of reasonable mistake of fact and application of reasonable force in making arrest or preventing escape of suspect as provided in S.25, S.261 and S.271 of the Criminal Code ARE not applicable in the circumstances of this case.
Learned 2nd Appellant’s counsel argued that the learned trial judge did not avert his mind to the evidence before the court. The trial court accepted that the 2nd Appellant was at a lawful mobile police check point and that the regular policemen in the Algon Jeep raised the alarm “Thief! Thief! Thief! as they chased the vehicle on approach to the check point. He argued that the evidence on record shows that PW.2 confessed that he was in a hurry and did not stop at the regular police check point and also avoided the mobile police check point further along the road. Counsel argued that the evidence showed that the team of mobile policemen played the role of assistants to the conventional policemen who had chased the red car conveying the deceased to the mobile police check point. Counsel made the point that the learned trial judge made the following findings of fact at page 200 of the record, to wit that the policemen in the Algon Jeep pursued the vehicle in execution of a lawful order and that when the vehicle got to the check point mounted by the mobile police, in spite of a warning shot into the air by their leader Sunday Uwadiegwu the vehicle refused to stop. Counsel argued that these pieces of evidence as found by the trial judge makes room for reasonable suspicion and conclusion under the circumstances that the occupants of the car were armed robbery suspects on the run and thus avail the accused person a defence under S.271 of the Criminal Code. He cited DR. ONABAMIRO v. THE STATE (1968) 1 ALL NLR Pg.101 at 123; GARBA v. IGP (1956) NMLR Pt. 32 at 34; QUEEN v. BOKKOS (1963) 2 ALL NLR 36 at 39.
Counsel argued that no criminal intent can be imputed when the 2nd Appellant joined in an attempt to arrest fleeing robbers. Counsel argued that S.25 of the Criminal Code provides that there is no criminal liability in proven cases of mistake of fact and that the police power to prevent, detect crime and apprehend criminals must avail the policemen in the circumstances of this case. He submitted that the finding of the learned trial judge on page 200 lines 17-21 of the record to the effect that policemen had no reason whatsoever to fire gun-shots at the vehicle has clearly erroneous. Counsel argued that contrary to the finding of the trial court, the evidence showed that gun-shots at the fleeing vehicle started before both vehicles (Nissan and Algon Jeep) got to the mobile police check point. Moreover, there is no evidence showing that the bullet that killed the deceased hit its target at the mobile police checkpoint. The evidence also showed that the police officers in the Algon Jeep continued with the chase beyond the mobile police check point.
Counsel submitted that the 2nd Appellant and his co-accused particularly the mobile policemen at the check point had no common intention to prosecute an unlawful purpose in the midst of which the deceased was murdered. He submitted that the learned trial judge made a presumptuous finding of common intention without any basis for doing so and that this robbed the 2nd Appellant of his legal defences. He cited NWANKWOALA v. THE STATE (2006) 14 NWLR Pt. 1000 Pg. 668. He also referred to DR. ONABAMIRO v. THE STATE (1968) 1 ALL NLR Pg. 101 at 123 where the court held that the primary duty of police officers is to prevent the commission of a crime and to arrest offenders. He also cited GARBA v. I.G.P. (1956) NNLR Pg. 32 at 34. |He submitted that the death of the deceased occurred in the prosecution of the lawful duty of 2nd Appellant at the check point to arrest fleeing armed robbery suspects. He urged the court to take cognizance of the duties of the police under S.4 and S.24 of the Police Act. Counsel argued that there was no evidence before the court suggesting that the Appellant and his fellow officers had a common intention to prosecute an unlawful purpose.
Learned counsel for the Respondent on this issue submitted that in the instant case, there was no need for the arrest of the occupants of the red Nissan car. There was no force offered by the red Nissan car that needed force to resist as was done by the policemen in the Algon Jeep and assisted by the mobile policemen. It is in evidence that there was no report of armed robbery attack at Mgbidi Police Station on 15/8/2002. He referred to page 121 lines 8-9 of the record. Also the purported report to Algon Jeep police team to the effect that there was armed robbery incident along Akata Okporo area did not state that a red Nissan car was being used or the description of any vehicle. He referred to page 128 lines 15-21 of the record. Further there is evidence that throughout the chase of the red Nissan car no single shot was fired by the occupants. He referred to page 129 lines 1-38 of the record. He urged this court to hold that circumstances that would have necessitated the application of the aforesaid provisions do not exist in the present case.
Learned Respondent’s counsel also argued that the policemen empowered by S.271 of the Criminal code have great latitude in effecting an arrest, where the force used exceeds that which was reasonably necessary, the officer is criminally liable for the excess according to the nature and quality of the act which constitutes the excess. He urged the court to invoke S.298 of the Criminal Code as there was abundant evidence that the occupants in the vehicle did not use any force to resist arrest. He cited UDO NDOR v. R (1953) 14 WACA 352.
In this case, the learned 2nd Appellant’s counsel raised three statutory defences based on general and special legislation. Let us look first at the question of mistake of fact as provided under the Criminal Code.
S.25 of the Criminal Code provides as follows:
“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”
On the issue of fact, whether the 2nd appellant among others had a reason to fire gun-shots at the vehicle driven by PW.2, the learned trial judge at page 200 of the record held thus:
“But the turn of events in this case occurred at the check point mounted by the mobile policemen. I am of the opinion that as shown in evidence there was no reason whatsoever for any policeman to fire gun-shots at the vehicle driven by PW2.”
The essence of this issue is a challenge of the finding of fact made by the learned trial judge that there was no reason for the vehicle to be shot at by the 2nd Appellant among others. Let us re-evaluate the evidence as we have been asked to do. The 2nd Appellant was one of the mobile policemen at the mobile police check point. PW.2 and the deceased were pursued in the car by the regular policemen in the Algon Jeep until they all reached the mobile police check point. The defence put up by the mobile policemen had at all material times been that because of the alarm raised by the regular policemen and the fact that the regular policemen pursued the vehicle to the check point and fired on the vehicle, they mistakenly assumed that the occupants were armed robbers and they also fired on the vehicle carrying the deceased. I must add at this juncture that statutory defences will not avail an accused unless facts showing that the defences are open to him are proved by evidence. See ADEGBOYE IBIKUNLE v. THE STATE (2007) 1 SCNJ 207. In the statement of PW2 made contemporaneous with the event, in Exh. B dated 17/8/02 he said as follows at pages 16-17 of the record:
“……. What made not to stop at the police check point was because of the shock and panic that the sporadic firing of the Algon policemen has inflicted on me…..”
In his evidence on oath, PW2 swore that other vehicle drivers including himself made efforts to flee the check point when the two sets of policemen opened fire. His evidence is supported by the evidence of PW4 the independent witness who swore at page 113-114 of the record as follows:
“On 15/8/02 as I was in my workshop working I heard some noise. I looked front and saw a red vehicle which was stopped by the mobile policemen. They allowed the vehicle to pass. I then saw an Algon Jeep with an Inspector among the occupants. The Inspector was fair in complexion and he was shouting thief, thief, thief. The Algon jeep was driving slowly. The Inspector then fired at the red vehicle. The Inspector continued to shout as he fired at the vehicle. Then the mobile policemen started to fire at the red Nissan vehicle with registration number CY 926 AAA. The mobile policemen were in front of my workshop on both sides of the road. The mobile policemen were on road block duty. The distance from my workshop to the place where the incident took place is about 10 metres. The body of the vehicle was riddled with bullets. There were only two people in the Nissan red car. The people who shot at the vehicle are present in this court. They are the Accused persons. As they were firing at the Nissan vehicle, the Nissan vehicle drove off and the Algon Jeep pursued it.”(Underlining mine)
It is pertinent to note that all the prosecution and defence witnesses swore on oath that during the pursuit of the vehicle, the occupants of the vehicle never fired back at any of the two sets of policemen and no weapons or illegal items were found in their possession or even in their homes. There was also no official report or entry made that there had been an armed robbery incident that day prior to the encounter of PW2 and the deceased with the regular policemen. May I humbly reiterate that it is the duty of a court to consider the totality of evidence before it. See OGIDI v. THE STATE (2005) 5 NWLR Pt. 918 Pg. 286. S.25 of the Criminal Code under consideration provides that the mistake must be “honest” and “reasonable” to exculpate the accused. It has long been recognized that mistake of fact, in the sense of a belief in circumstances which, if true, would make the Defendant’s conduct innocent, is a “defence” to all criminal charges. A mistake of fact prevents the accused from having the mens rea which the law requires for the crime with which he is charged. Thus, we can safely say that in the case of all offences other than those of strict liability, a mistaken belief in circumstances, which if true would render the act of the accused person an innocent act will afford a defence. It is my humble view that the reasonableness of the belief will only go to the issue whether the belief was genuinely held. In THE STATE v. OLATUNJI (2003) 2 SCNJ Pg. 65 at 84-85, the Supreme Court held that this statutory defence is a good defence only because the state of mind of the accused at the time of the commission or omission of the act must not only be honest but must be reasonable in the circumstances. The crux of this issue in my humble view lies in the later part of S.25 of Criminal Code. This part provides that the accused is not responsible to any greater extent than if the real state of things had been as he believed.
The mobile policemen in my humble view after witnessing the attack by the regular policemen on the vehicle were entitled to belief as the leader of the team called them – Thief! It was only reasonable in my humble view for them to arrive at that conclusion. Well, having arrived at that conclusion and believing that the deceased and PW2 were thieves, does that automatically mean that they should be summarily executed? I think not. The evidence is clear that there was no armed resistance by the victims.
Killing an unarmed thief is murder not manslaughter. See R v. UDO NDO ODET OBOT 14 (WACA) 352; Q v. OGBUEGBE ALIECHEM (1956) 1 FSC 64. Effect of recklessness on the defence of mistake. See AKINSULIRE BASOYIN v. A.G. WESTERN NIGERIA (1966) NMLR 287.
In ITESHI ONWE v. THE STATE (1975) 9-11 SC (reprint) 14, Atanda Fatai-Williams JSCreferred to the case of UDO UDO OBOT v. QUEEN supra. In the later case the deceased broke into the house of the accused during the night and stole some meat. The accused chased him and cut him with a matchet and he died. His conviction for murder was upheld because the thief was unarmed Verity C.J. in that case held as follows:
“A person who in the night finds another in the act of committing a felony is entitled to used such force as may be necessary to apprehend the felon, even to the extent of killing him in order to prevent his escape but it would be an unhappy state of affairs if when he has caught up with the escaping felon who is unarmed, he should be at liberty to hack him to death with a lethal weapon such as a machete. This goes far beyond the force which would be justified by the circumstances and is in our view clearly murder.”
See also AHMED v. THE STATE (1998) 9 NWLR Pt. 566 Pg. That brings me to the next defences put up by 2nd Appellant. Learned Appellant’s counsel had also sought for refuge under S.4 and S.24 of the Police Act. I will set them out seriatim.
“S.4. The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them, or under the authority of this, or any other Act.”
S.24 (1) – In addition to the powers of arrest without warrant conferred upon a police officer by S.10 of the Criminal Procedure act, it shall be lawful for any police officer and any other person whom he may call to his assistance, to arrest without warrant in the following cases:
(a) any person whom he finds committing any felony, misdemeanor or simple offence, or whom he reasonably suspects of having committed or of being about to commit any felony, misdemeanor, or breach of the peace…..”
Learned 2nd Appellant’s counsel argued that the victims refused to stop at the stop and search point mounted by the 1st set of regular policemen which caused them to be suspected as thieves. I am aware of the statement of PW2 the driver and survivor of the incident which he made on 15/8/02 – the day of the incident wherein he said:
“I was in a haste with my brother-in-law which made me not to stop when the police stopped me near Nempi. I did not know that the policemen were pursuing me after I refused to stop near Nempi. Again, I was in a speed when I was stopped by the police.”
It is conceded that the driver refused to obey a lawful order to stop. At best that offence is a misdemeanor and not a felony and definitely not one carrying the death penalty.
S.4 and S.24 (1) of the Police Act cannot avail the 2nd Appellant moreso that none of them granted him a license to execute the occupants of the car summarily and extra judicially. The effect of the opinion held by the Supreme Court in IBIKUNLE v. THE STATE (2007) 1 SCNJ 2007 per Onu JSC is that even if the deceased were a thief or a person of dubious character, which the evidence on record in this case does not disclose, the provisions of the Constitution and the Criminal Procedure Act did not license the 2nd Appellant to be the complainant, investigator, Judge as well as executioner all rolled in one. See IREK v. THE STATE (1976) 4 SC 65 at 68; INAKERU v. THE STATE (1984) 9 SC.17 at 19.
Unlawful killing as defined in S.303 of the Criminal Code amounts to manslaughter or murder depending on the circumstances. See SUNDAY OMINI v. THE STATE (1999) 9 SCNJ 1
S.261 of the Criminal Code provides that:
“It is lawful for a person who is engaged in the lawful execution of any sentence, process or warrant, or in making any arrest, and for any person lawfully assisting him, to use force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.”
S.271 of the Criminal Code provides as follows:
“When a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony, and is such that the offender may be arrested without warrant and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested.”
I concede that the police are supposed to prevent crime and apprehend criminals, however, the peculiar circumstances of this case are such that the mobile policemen need not be trigger happy. Balanced against the duty to prevent and detect crime is the duty to protect lives and property. S.33 of the Nigerian Constitution guarantees the right to life. In IGP v. ANPP (2007) 18 NWLR pt. 1066 pg. 457 Court held at pg. 496 that the constitution of any country is the embodiment of what the people desire to be their guiding light in governance, their supreme law, the grundnorm of all their laws. All actions of the government in Nigeria are governed by the Constitution and it is the Constitution as the organic law of a country that declares in formal, emphatic and binding principles the rights, liberties, powers and responsibilities of both the governed and the government. None of the rights can be taken by the executive without lawful authority. See F.R.N. v. IFEGWU (2003) 15 NWLR (PT.842)113; A.G. ABIA STATE v. A.G. FEDERATION (2002) 6 NWLR (Pt.763)264; ABACHA v. FAWEHINMI (2000) 6 NWLR (Pt.660) 228 referred to.
The police can only kill when they are reasonably sure the accused has actually killed or is about to kill or about to escape from the scene of a serious crime. I am of the view that the 2nd Appellant showed a complete disregard for the lives and property of the occupants of the vehicle. This issue is resolved against the 2nd Appellant.
ISSUE THREE
This issue is whether in the circumstances of this case, the prosecution established a case of murder against the 2nd Appellant. Learned 2nd Appellant’s counsel argued that P.W.3 and P.W.5’s evidence failed to show what kind of bullet killed the deceased since the facts show that the regular policemen on patrol and the mobile policemen at the check point did not carry the same type of guns. There was no evidence suggesting that the gun carried by the 2nd Appellant shot the fatal bullet. The prosecution did not tender the vehicle of P.W.2 which P.W.3 the I.P.O. said was shattered by bullets. He argued that the evidence of the prosecution in Exh. H2 was that even the mobile policemen carried different guns, and that any of these guns could have killed the deceased. Counsel submitted that the reasonable doubt occasioned by the prosecution’s failure to prove what manner of gun killed the deceased ought to be resolved in favour of the Appellant. He cited ONUBOGU v. THE QUEEN (1975) 9SC. Pg. 1; QUEEN v. UKPONG (1961) ALL NLR 26; WILLIAMS v. THE STATE (1975) 9/11 SC 139; JIZURUMBA v. THE STATE (1976) 3 SC 89; ARCHIBONG v. THE STATE (2006) 14 NWLR Pt.999 Pg. 349.
Learned Respondent’s counsel submitted that it is the duty of the prosecution to prove all the ingredients of the offence of murder which are:
(a) The deceased died
(b) That his death was not natural
(c) That the accused person did something or omitted to do something which led to the death of the deceased. He cited AIGBANGBE v. THE STATE (1998) 1 ACLR 168 at Pg. 206.
Learned Respondent’s counsel submitted that the prosecution proved that the deceased died through gun-shot wound. The prosecution also proved that the 2nd Appellant was one of those who fired at the vehicle carrying the deceased. He said that the evidence of P.W.4 the independent eyewitness was never discredited during the trial and should be believed to prove that the 2nd Appellant shot at the vehicle. Learned counsel argued that the 2nd Appellant being a party to the offence is caught by S.7 (a), S.8, and S.9 of the Criminal Code. He submitted that it is not necessary for the prosecution to prove the definite action of the Appellant which caused the death of the deceased. He cited ALAGBA v. K (1950) 19 NLR 128; ENWEONYE v. THE QUEEN (2007) 5 ACLR 585. The learned trial judge held that even if there was no common intention till the regular policemen in the Algon Jeep got to the check point, immediately their leader shouted “Thief” and the mobile policemen started shooting the common intention to kill was formed.
Let us revisit the finding of the trial court. At page 200 of the Record his Lordship held as follows:
“I am of the opinion and I so hold that at the time the vehicle of PW2 drove pass the police stop and check at Mgbidi Eziala road and was subsequently pursued by the policemen in the Algon Jeep that there was no common intention by the policemen to prosecute an unlawful purpose.”
Then the court went further:
“But the turn of events in this case occurred at the check point mounted by the mobile policemen. I am of the opinion that as shown in evidence there was no reason whatsoever for any policeman to fire gun-shots at the vehicle driven by PW2.”
I am of the view that the learned trial judge was quite right in holding that at the initial stage of the incident there was no common intention between the regular policemen in the Algon Jeep and the mobile policemen at the check point. The common intention was conceived when the regular policemen got to the mobile check point and cried Thief and their leader and the mobile policemen started shooting at the vehicle. Let us examine the provisions of S.7 and S.8 of the Criminal Code.
S.7 and S.8 of the Criminal Code provides as follows:
“S.7 When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
S.7 (a) Every person who actually does the act or makes the omission which constitutes the offence.”
S.8 – When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of such purpose, each of them is deemed to have committed the offence.”
The law is that where it is proved that two or more persons acted in concert when the act or omission which constituted the offence was actually made or done it is not necessary to show which of them did or made the act or omission, as long as it is proved that one of them must have done so. A person may be convicted of an offence by virtue of S.7 even though there is no proof of any agreement, either express or implied, between him and the person who actually did the act which constituted the offence. In respect of S.8, common intention must be distinguished from common object, See ALARAPE v. THE STATE (2001) 2 SCNJ 162. There need be no express agreement but the common intention may be inferred from the circumstances of the case. In R v. OFOR (1955) 15 WACA 4, the court held where it was established that both persons charged with murder had struck blows and the person who struck the fatal blow only was convicted for murder and the other accused of attempted murder that the person who was proved not to have struck the fatal blow was also guilty of murder. In NWANKWOALA v. THE STATE supra, the Supreme Court held that the mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See pages 682-683. The evidence on record is that when the vehicle driven by PW2 and the deceased got to the mobile police check point, both sets of policemen opened fire on the vehicle when the leader of the regular team shouted Thief! Thief! From that point when they opened fire, there was conceived a common intention to kill the occupants of the vehicle. PW2, PW3 and PW4 testified that the vehicle was riddled with bullets. There is evidence from DW3 at page 132 of the Record that Sgt. Kingsley who later ran away after the incident quickly picked up all the spent shells which could have served as evidence. I find the argument of learned counsel that because only one bullet killed the deceased, then only one bullet was shot with the greatest respect unacceptable. If a crowd gathered spontaneously to lynch a suspected thief and several blows were struck but only a blow to a particular part of the head killed the deceased, does it mean that in the absence of proof of who threw that particular blow, all the assailants would be let off? That is not the position of the law. The position of the law is that there is no need to investigate into the actual acts committed by individual members of the group. See EMEKA v. THE STATE (2001) 6 SCNJ 254. What happened as revealed by the evidence is like the police spontaneously lynching suspected thieves with the weapons they have on hand. There need be no express agreement between the accused persons before common intention can be inferred. The evidence in this case suggests forcibly common intention to kill on the part of the policemen who fired at the vehicle containing the deceased. See ASIMIYU ALARAPE v. THE STATE (2001) 2 SCNJ 162. In MOHAMMED & ANOR. v. THE STATE (1980) ALL NLR 138, (1990) 3-4 SC 56, the Supreme Court held that the law presumes the natural consequences of an act. The consequences of an act may be said to be probable if a reasonable man would consider its occurrence to be the natural and normal effect of the act.
In SHAZALI v. THE STATE (1988) NWLR Pt. 93 Pg. (1988) 12 SC Pt. 11 Pg. 58, the Supreme Court held that it is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act. There is no doubt that when you shoot with a gun live bullets at a vehicle and the vehicle is not bullet proof, you intend the bullet to penetrate and hit or possibly kill the occupants of the car. That is the only natural consequence when a shot is fired at or into a vehicle as the 2nd Appellant did in this case. I am of the view that the prosecution proved all the elements of the offence of murder against the 2nd Appellant. The 3rd issue is resolved against the 2nd Appellant. In the circumstances the judgment of the trial court is affirmed and the appeal is dismissed.
CA/OW/251/2010
The 3rd Appellant is Corporal Bonny Alkhadueki, one of the mobile policemen at the mobile police check point on 15/8/2002. He was the 6th Accused during the trial. The 3rd Appellant’s brief dated 9/11/10 was filed same day. The Respondent’s brief dated 20/12/10 was deemed filed on 10/1/11. Learned 3rd Appellant’s counsel identified two issues for determination. They are set out below:
“1. Whether the prosecution by clear evidence proved beyond reasonable doubts the mandatory requirement of establishing a murder charge that the death of the deceased was a direct result of an act of the Appellant to the exclusion of all other probable causes (Distilled from Grounds I, IV and V).
2. Whether the learned trial judge properly considered the relevant statutory provisions of the Criminal Code Law and the Police Act in holding that “there was no reason whatsoever for any policeman to give gun-shots at the vehicle driven by the PW2.” (Distilled from Grounds II, III, VI and VIII).
The learned Respondent’s counsel also identified two issues for determination. They are set out below:
“(i) Whether the prosecution proved its case to wit murder beyond reasonable doubt against the Appellant.
(ii) Whether the defence of act done while performing lawful duty and mistake of facts as provided in Sections 261, 27 and 25 of the Criminal Code Cap 30 Vol. 11 Laws of Eastern Nigeria 1963 applicable to Imo State of Nigeria availed the Appellant.”
I will adopt for consideration the issues as couched by learned 3rd Appellant’s counsel.
ISSUE ONE
On issue 1, learned Appellant’s counsel in the brief filed by Akuro R. George argued that the law is established that for the prosecution to sustain a murder charge, the following ingredients must be established by credible evidence.
(i) That the deceased had died.
(ii) That the death of the deceased was caused by the accused; and
(iii) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. He cited OMONGA v. STATE (2006) 14 NWLR Pt. 1000) 532 at 551, paras. D-F; OGBA v. STATE (1992) 2 NWLR Pt. 222 164; NWAEZE v. STATE (1996) 2 NWLR Pt. 428 at 1 and GIRA v. STATE (1996) 4 NWLR Pt. 443 Pg. 375.
Counsel argued that the prosecution’s case was that the death of the deceased was caused by a bullet from a gun-shot as evidenced by the testimony of the medical doctor – PW5. Counsel submitted that the prosecution’s case was that “the accused persons had a common intention to prosecute an unlawful purpose to wit: kill the deceased.”
Counsel argued that at page 200 of the record, the learned trial judge held that there was no intention to prosecute an unlawful purpose. Counsel argued that the learned trial judge held further on page 204 of the record that the three Appellants before this court who were 2nd, 3rd and 6th Accused persons at the trial court acted “independently and on their own volition used their fire arms recklessly and killed an innocent person without any justifiable reason.”
Counsel’s view is that the crucial question which raises doubt is who among the three convicted persons and the accused who died – Inspector Sunday Uwadiegwu and Godwin Monsi actually fired the particular bullet which killed the deceased. He argued that there was no direct evidence of the particular accused person who shot the bullet that killed the deceased. Counsel argued that the court having held that there was no intention amongst the accused persons to commit an unlawful purpose the onus on the prosecution therefore is to establish that the independent actions of each of the accused persons led to the death of the deceased person. In other words, it has to be proved beyond reasonable doubts that the action of the 3rd Appellant killed the deceased.
Counsel argued that the learned trial judge relied on the evidence of DW1, DW2, DW3, DW4, and DW5 to convict the 3rd Appellant whereas he should have warned himself of the danger of doing so. In any case, the evidence was that several policemen from the two groups shot at the vehicle carrying the deceased and the doubt as to which bullet killed him should be resolved in favour of the 3rd Appellant as anything else would be speculative. He cited OPARA v. STATE (2006) 9 NWLR Pt. 968 Pg. 508 at 523. He argued that the prosecution failed to prove that the act of the 3rd Appellant killed the deceased and the 3rd Appellant is entitled to an acquittal. He cited UDOSEN v. STATE (2007) 4 NWLR Pt. 1023 Pg. 125 at 146; LARI v. STATE (1980) 8-11 SC 81 at 95-96.
Learned counsel for the 3rd Appellant further submitted that the prosecution did not successfully rebut the evidence of the 3rd Appellant that he did not expend any bullet that day and that that piece of evidence is deemed admitted. He cited MAKERI v. STATE (1994) 3 NWLR Pt. 330 Pg. 55 at 63.
Learned Respondent’s counsel Mr. Akuwundu on his own part argued that the evidence on record shows clearly that the 3rd Appellant shot at the vehicle which conveyed the deceased as shown by the evidence of PW1-PW5 particularly that of PW2 who swore that both sets of policemen – the regular policemen in the Algon Jeep and the policemen at the mobile police check point shot at him. He referred the court to the evidence of the team leader of the mobile policemen at the check point – DW4 Inspector Chiaka who stated categorically that the 2nd and 3rd Appellants were the ones who shot at the vehicle and that the 3rd Appellant participated actively in the killing of the deceased and that all the ingredients of murder had been proved. He cited AIGBANGBE v. STATE (1998) 1 ACLR 168. He argued that the evidence of the prosecution witnesses was not discredited in any way as regards whether or not the 3rd Appellant shot at the vehicle. He said that the evidence of PW4 was very material and to the effect that the mobile policemen at the check point shot at the vehicle of PW2 wherein the deceased was travelling. Counsel submitted that the sole evidence of PW4 not discredited can be used to convict if the witness is not an accomplice and the evidence is sufficiently probative of the offence with which the Accused is charged. He cited OTEKI v. STATE (2005) 4 ACLR 401; IGBO v. STATE (1975) 9-11 S 129 at 136; OFORLETE v. STATE (2000) 3 NSCQR 243. Counsel submitted that it is not necessary for the prosecution to prove the definite action of the Appellant which caused the deceased’s death. Where it is proved that two or more persons acted in concert when the act or omission which constituted the offence was actually done or made, it is not necessary to show which of them did the act or omission as long as it is proved that one of them must have done so. Respondent’s counsel argued that the 3rd Appellant is caught by S.7 (a) (9) and 8 (c) of the Criminal Code. Counsel cited ALAGBA v. K (1950) 18 NLR 128; ENWEONYE v. THE QUEEN (2007) ACLR 589 at 590.
I have made a thorough study of the records. The three accused persons acquitted by the learned trial judge were the policemen whose names were not mentioned at all by any of the two sets of policemen as having participated in the shooting. There was direct evidence on oath from DW4 and DW5 that the 3rd Appellant was one of those who shot at the vehicle. At page 145 of the Record, DW5 swore on oath that:
“Also Cpl. Bonny Alhkadueki who with Cpl. Desmond Ononuju fired at the red Nissan car.”
At page 140, lines 15 of the Record, DW4 swore on oath as follows:
“…..As he fired the 3rd and 6th Accused persons also fired at the red car.”
With the greatest respect, I cannot agree with the submission of the learned 3rd Appellant’s counsel that the learned trial judge did not caution himself before convicting on the evidence of a co-accused.
The learned trial judge at page 201 of the record cautioned himself thus:
“I have painstakingly and cautiously considered the evidence of DW.1, DW.2, DW.3, DW.4, DW.5 and DW.6 who are co-accused persons in this case and whose portions of evidence incriminated some of the co-accused persons.”
DW4 and DW5 were among the mobile policemen at the check point with the 3rd Appellant and were in a position to see who shot at what. They were also co-accused.
Where an accused gives evidence against a co-accused, it is admissible without more and for all purposes against the co-accused. The only catch is that the practice is that the court must be circumspect in convicting solely on the evidence of a co-accused. The court is not obliged to seek for corroborative evidence or even to warn himself unless he is dealing with evidence of an accomplice or the evidence of such a co-accused in the circumstances can be regarded as tainted. It is clear that in this case the learned trial judge bent over backwards by warning himself before considering the evidence of some accused on oath to convict other co-accused. Learned Appellant’s counsel made the point that the learned trial judge first held that there was no common intention among the accused but turned around to hold the opposite. Let us revisit the reasoning of the learned trial judge particularly at page 200 of the record, His Lordship held as follows:
“I am of the opinion and I so hold that at the time the vehicle of PW2 drove pass the police stop and check at Mgbidi Eziala road and was subsequently pursued by the policemen in the Algon Jeep that there was no common intention by the policemen to prosecute an unlawful purpose.”
Then the trial Judge said:
“But the turn of events in this case occurred at the check point mounted by the mobile policemen. I am of the opinion that as shown in evidence there was no reason whatsoever for any policeman to fire gun-shots at the vehicle driven by PW2.”
I am of the view that the learned trial judge was quite right in holding that at that early stage of the incident there was no common intention between the regular policemen in the Algon Jeep and the mobile policemen at the check point. Let us examine the provisions of S.7 and S.8 of the Criminal Code.
S.7 and S.8 of the Criminal Code provides as follows:
S.7 When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(a) Every person who actually does the act or makes the omission which constitutes the offence.”
S.8 – When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of such purpose, each of them is deemed to have committed the offence.
The law is that where it is proved that two or more persons acted in concert when the act or omission which constituted the offence was actually made or done it is not necessary to show which of them did or made the act or omission, as long as it is proved that one of them must have done so. A person may be convicted of an offence by virtue of S.7 even though there is no proof of any agreement, either express or implied, between him and the person who actually did the act which constituted the offence. In respect of S.8 common intention must be distinguished from common object, See ALARAPE v. THE STATE (2001) 2 SCNJ 162. There need be no express agreement but the common intention may be inferred from the circumstances of the case. In R v. OFOR (1955) 15 WACA 4, the court held where it was established that both persons charged with murder had struck blows and the person who struck the fatal blow only was convicted for murder and the other accused of attempted murder that the person who was proved not to have struck the fatal blow was also guilty of murder.
The evidence on record is that when the vehicle driven by PW2 and the deceased got to mobile police check point, both sets of policemen opened fire on the vehicle when the leader of the regular team shouted Thief! Thief! From that point when they opened fire, there was conceived a common intention to kill the occupants of the vehicle. PW2, PW3 and PW4 testified that the vehicle was riddled with bullets. There is evidence from DW3 that Sgt. Kingsley who later ran away after the incident quickly picked up all the spent shells which could have served as evidence. I find the argument of learned 3rd Appellant’s counsel that because only one bullet killed the deceased, then only one bullet was shot is with the greatest respect unacceptable. If a crowd gathered spontaneously to lynch a suspected thief and several blows were struck but only a blow to a particular part of the head killed the deceased, does it mean that in the absence of proof of who threw that particular blow, all the assailants would be let off? That is not the position of the law. The position of the law is that there is no need to investigate into the actual acts committed by individual members of the group. See EMEKA v. THE STATE (2001) 6 SCNJ 254. What happened as revealed by the evidence is like the police spontaneously lynching suspected thieves with the weapons they have on hand. There need be no express agreement between the accused persons before common intention can be inferred. The evidence in this case suggests forcibly common intention to kill on the part of the policemen who fired at the vehicle containing the deceased. See IDRISU AHMED v. THE STATE (1998) 7 SCNJ 60; ASIMIYU ALARAPE v. THE STATE (2001) 2 SCNJ 162. In MOHAMMED & ANOR. v. THE STATE (1980) ALL NLR 138, (1990) 3-4 SC 56, the Supreme Court held that the law presumes the natural consequences of an act. The consequences of an act may be said to be probable if a reasonable man would consider its occurrence to be the natural and normal effect of the act.
In SHAZALI v. THE STATE (1988) NWLR Pt. 93 Pg. (1988) 12 SC Pt. 11 Pg. 58, the Supreme Court held that it is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act.
There is no doubt that when you shoot with a gun live with bullets at a vehicle and the vehicle is not bullet proof, you intend the bullet to penetrate and hit or possibly kill the occupants of the car. That is the only natural consequence when a shot is fired at or into a vehicle as the 3rd Appellant did in this case. This issue is resolved against the 3rd Appellant.
ISSUE TWO
The 2nd issue is whether the 3rd Appellant was entitled to the statutory defences provided under the Criminal Code and the Police act. Learned 3rd Appellant’s counsel argued that the evidence of the 3rd Appellant throughout had been that he did not fire any weapon that day. He further argued that from the evidence of both the prosecution and the 3rd Appellant, the shooting by the mobile policemen (not conceded) was based on the fact that the policemen in the Jeep shot at the vehicle. He argued that the question that arises therefore is, whether this will amount to a justification for shooting at the vehicle conveying the deceased. He urged us to answer the question in the affirmative. The fact that the policemen in the Jeep were shooting at the vehicle that carried the deceased raises a reasonable belief by anybody that the persons in the vehicle have committed or are suspected to have committed the offence of robbery. The duty of the 3rd Appellant was to arrest such offenders with reasonable force. He submitted that the 3rd Appellant must be excused under S.271 of the Criminal Code.
Learned Respondent’s counsel argued that there was no need for the arrest of the occupants of the Nissan car moreso when there was no report of any armed robbery attack at the Mgbidi Police Station on 15/8/2002. Counsel argued that throughout the incident no shot was fired by the occupants of the car and the circumstances that would have necessitated the application of S.271 did not exist. Counsel argued that where the force used exceeds that which is reasonably necessary, the officer is criminally responsible for the excess according to the nature and quality of the act that constitutes the excess. He cited UDO NDOR v. R (1953) 14 WACA 352. Counsel argued that S.298 of the Criminal Code must be invoked against the 3rd accused.
The Defence relied on these sections of the law. S.261 of the Criminal Code provides that:
“It is lawful for a person who is engaged in the lawful execution of any sentence, process or warrant, or in making any arrest, and for any person lawfully assisting him, to use force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.”
Now, S.271 of the Criminal Code provides as follows:
“When a peace officer or police office is proceeding lawfully to arrest with or without warrant, a person for an offence which is a felony, and is such that the offender may be arrested without warrant, and the person sought to be arrested takes to light in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested.”
The 3rd Appellant on this issue has put up the defences of justification and lawful excuse. S.271 provides categorically that the peace or police officer must be proceeding to arrest a person for an offence which is a felony.
In my humble view, for this section to avail a peace or police officer, there must be in evidence the certainty that the person had committed a felony. The law does not envisage the case of suspicion against the person to be arrested. There must have been a prima facie case made out by the circumstances that indeed a felony had been committed and the police officer is in the process of arresting a particular individual for a particular offence which is a felony. The offender may have committed the offence in the presence of the peace or law officer or there must be evidence prima facie linking the felony with the person sought to be arrested. In my humble view that is the only circumstances when a policeman can be allowed “to kill” while proceeding to effect such arrest. The important thing here is that the felon must have taken to flight to avoid the arrest. The section deals with the force which may be used to prevent a person from escaping from arrest by flight. I must differentiate this from S.261 of the Criminal Code which deals with the force which may be used to overcome any force used in resisting an execution of a court order or a lawful arrest. It is my humble view that there was no reason for the police at the first check point to arrest the deceased and no excuse for the mobile policemen or both sets of policemen to shoot at the vehicle. S.271 is clear in that the offence for which the arrest is to be carried out must be one punishable with seven years or more. If for instance the deceased was alleged to have committed an offence and police investigation led them to him at his hideout or house and he took flight to escape arrest or after arrest and he was killed, S.271 would avail the policemen. Let us concede that the victims disobeyed lawful order to stop, that does not amount to a felony. In the circumstances of this case, the two sets of policemen had no cause to go on a shooting spree. I am of the view that the shooting of the deceased was needless and indefensible and that the policemen shooting at the vehicle knew that they would cause grievous bodily harm or death to the occupants of the vehicle.
Killing an unarmed thief is murder not manslaughter. See R v. UDO NDO ODET OBOT 14 (WACA) 352; Q v. OGBUEGBE ALIECHEM (1956) 1 FSC 64. Effect of recklessness on the defence of mistake. See AKINSULIRE BASOYIN v. A.G. WESTERN NIGERIA (1966) NMLR 287.
In ITESHI ONWE v. THE STATE (1975) 9-11 SC (reprint) 14, Atanda Fatai-Williams JSC referred to the case of UDO UDO OBOT v. QUEEN supra. In the later case the deceased broke into the house of the accused during the night and stole some meat. The accused chased him and cut him with a matchet and he died. His conviction for murder was upheld because the thief was unarmed verity C.J. in that case held as follows:
“A person who in the night finds another in the act of committing a felony is entitled to used such force as may be necessary to apprehend the felon, even to the extent of killing him in order to prevent his escape but it would be an unhappy state of affairs if when he has caught up with the escaping felon who is unarmed, he should be at liberty to hack him to death with a lethal weapon such as a machete. This goes far beyond the force which would be justified by the circumstances and is in our view clearly murder.”
See also AHMED v. THE STATE (1998) 9 NWLR Pt. 566 Pg.
That brings me to the next defences put up by 3rd Appellant. Learned Appellant’s counsel had also sought for refuge under S.4 and S.24 of the Police Act. I will set them out seriatim.
“S.4. The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them, or under the authority of this, or any other Act.”
S.24 (1) – In addition to the powers of arrest without warrant conferred upon a police officer by S.10 of the Criminal Procedure act, it shall be lawful for any police officer and any other person whom he may call to his assistance, to arrest without warrant in the following cases:
(a) any person whom he finds committing any felony, misdemeanor or simple offence, or whom he reasonably suspects of having committed or of being about to commit any felony, misdemeanor, or breach of the peace…..”
Let us concede that the victims did not stop and disobeyed a lawful order, it is a misdemeanor and not an offence for which the could be killed in the process of arrest as provided for by S.271 of the Criminal Code.
S.4 and S.24 (1) of the Police Act cannot avail the 3rd Appellant moreso that none of them granted him a license to execute the occupants of the car summarily and extra judicially. The effect of the opinion held by the Supreme Court in IBIKUNLE v. THE STATE (2007) 1 SCNJ 2007 per Onu JSC is that even if the deceased were a thief or a person of dubious character, which the evidence on record in this case does not disclose, the provisions of the Constitution and the Criminal Procedure Act did not license the 2nd Appellant to be the complainant, investigator, Judge as well as executioner all rolled in one. See IREK v. THE STATE (1976) 4 SC 65 at 68; INAKERU v. THE STATE (1984) 9 SC.17 at 19.
Unlawful killing as defined in S.303 of the Criminal Code amounts to manslaughter or murder depending on the circumstances. See SUNDAY OMINI v. THE STATE (1999) 9 SCNJ 1
I concede that the police are supposed to prevent crime and apprehend criminals, however, the peculiar circumstances of this case are such that the mobile policemen need not be trigger happy. Balanced against the duty to prevent and detect crime is the duty to protect lives and property. S.33 of the Nigerian Constitution guarantees the right to life. In IGP v. ANPP (2007) 18 NWLR Pt. 1066 pg. 457 Court held at pg. 496 that the constitution of any country is the embodiment of what the people desire to be their guiding light in governance, their supreme law, the grundnorm of all their laws. All actions of the government in Nigeria are governed by the Constitution and it is the Constitution as the organic law of a country that declares in a formal, emphatic and binding principles the rights, liberties, powers and responsibilities of both the governed and the government. None of the rights guaranteed by the Constitution including right to life can be taken by the executive without lawful authority. See F.R.N. v. IFEGWU (2003) 15 NWLR Pt.842 Pg.113; A.G., ABIA STATE v. A.G. FEDERATION (2002) 6 NWLR (Pt.763)264; ABACHA v. FAWEHINMI were cited. The police can only kill when they are reasonably sure the accused has actually killed or is about to kill or about to escape from the scene of crime or arrest. I am of the view that the 3rd Appellant showed a complete disregard for the lives and property of the occupants of the vehicle.
In the circumstances, this issue is resolved against the 3rd Appellant. I affirm the conviction of the 3rd Appellant for murder. I dismiss the appeal.
Finally, I allow the appeal of the 1st Appellant Sgt. Lazarus Adiele and substitute a verdict of acquittal. I dismiss the appeal of the 2nd Appellant, Corporal Desmond Ononuju. I also dismiss the appeal of the 3rd Appellant, Corporal Bonny Aikhadueki. I affirm their conviction by the trial court for murder.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have read opportunity of reading in advance the lead judgment just delivered by my learned brother, Ogunwumiju, J.C.A. I entirely agree that the appeal CA/PH/326A/2007 has merit and it should succeed. Accordingly the Appeal succeeds and it is hereby allowed.
I am also in complete agreement with her Lordship that apepals CA/PH/326B/2007 and CA/OW/251/2010 lacks merit and ought to be dismiss, accordingly I dismiss the appeal of the 2nd and 3rd Appellant and affirm their conviction for murder by the trial court.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree
Appearances
L. M. Alozie Esq., with him Ugonna Ihebiwa and J. C. Uzor (Miss)
B. Igbongidi Esq.
I. C. West Esq. For Appellant
AND
C. N. Akowundu Esq., DDPP Min. of Justice, Imo State for the Respondent in Mr. Aham Eke Ejelan for the Respondent in CA/PH/326B/2007. For Respondent
