SGT KALEJAIYE OLA v. THE STATE
(2013)LCN/6503(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of November, 2013
CA/B/223C/2011
RATIO
WHETHER THE PROSECUTION IS OBLIGED TO CALL ALL THE WITNESSES IN THE PROOFS OF EVIDENCE LISTED IN A CASE
It is a well settled principle of law that the prosecution’s duty is only to call such number of witnesses sufficient, in its opinion, to prove its case beyond reasonable doubt. Therefore the prosecution is not obliged to call a host of witnesses or even all the witnesses named in the proofs of evidence listed to testify in a case. R V. Kure (1941) WACA 175; Anthony Igbo V. The State (1975) 9 – 11 SC 129; (1975) 1 All NLR (pt. 2) 70; Okon Akpan V. The State (1991) 3 NWLR (pt. 182) 646 at 657; Okpulor V. The State (1990) 7 NWLR (pt. 164) 581. Per TOM SHAIBU YAKUBU, J.C.A
ESSENTIAL INGREDIENTS TO BE PROVEN TO GROUND A CONVICTION ON A MURDER CHAEGE
In a prosecution on a murder charge, under Section 319(1) of the Criminal Code, the law is firmly settled that the essential ingredients that must be proved to ground a conviction are:
(1) that the deceased died;
(2) that the death of the deceased resulted from the act of the accused person/appellant and
(3) that the said act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
Igago V. The State (1999) 14 NWLR (pt. 637) 1 at 20; (1999) 10 – 12 SC 84; Adekunle V. The State (2006) All FWLR (Pt. 332) 1453; Mbang V. The State (2010) 7 NWLR (pt. 1194) 431; (2012) 6 SCNJ 395; Olaiya V. State (2010) 3 NWLR (pt. 1181) 423; Ochiba V. The State (2011) 17 NWLR (pt. 1277) 663; (2011) 12 SCNJ 526 at 537; Henry Chukwu V. The State (2013) 4 NWLR (pt. 1343) 1 at 15. Per TOM SHAIBU YAKUBU, J.C.A
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
SGT KALEJAIYE OLA Appellant(s)
AND
THE STATE Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant, who was a police sergeant, was arraigned, tried, convicted and sentenced to death by hanging until he be dead, at the Edo State High Court of Justice, Benin City on 23rd May, 2011. This was in consequence of the murder of one Paul Erimafo on 23rd of June, 2003. The appellant, was posted on night guard duty at the Edo State Government Chalets located along the Central Road, G.R.A., Benin City on 22nd June, 2003. He was issued with an Ak 47 Rifle and ten rounds of life ammunition.
In the early hours of 23rd June, 2003 at about 3am, the appellant accosted the said Paul Erimafo and arrested him for straying into the premises of the Government Chalets where the former was on guard duty. He led his captive to the residence of one Dr. Erhabor who assisted him in carrying the suspect in a Peugeot 505 car to the Government House Benin City. On reaching there, Police officers on duty, directed the appellant to carry the suspect to the nearest Police Station. On the way to the nearest Police Station, along the Central Road, G.R.A, Benin City, by the official residence of the Edo State Chief Judge, a scuffle ensued between the appellant and the aforesaid Paul Erimafo. Dr. Erhabor then parked his car and got out of it. The scuffle between the appellant and the suspect – Paul Erimafo, attracted the mobile Policemen and other security staff at the aforesaid Chief Judge’s residence. The mobile policemen rushed to the scene and intervened. Both the appellant and the suspect – Paul Erimafo then introduced themselves. They each narrated their stories to the mobile policemen.
The appellant alleged that the suspect was struggling with him in order to retrieve his riffle from him. The suspect, raising up his hands, denied the allegation. The appellant, then fired two shots from his rifle, at the left leg of the suspect who fell down and groaning in pains. The appellant rushed to report a case of armed robbery against the suspect, at the Edo State Police C.I.D, Headquarters, Benin City. Later, the appellant came along with some police officers to pick the suspect. On the way to the Aideyan police Station, the suspect became deceased and the appellant became an accused person.
The prosecution, in order to prove the charge of murder against the appellant, called four witnesses whilst the appellant testified for himself and called one witness who gave evidence for him.
The prosecution’s star witness was one Peter Osadolor, who was a civilian security guard who kept vigil at the Chief Judge’s official residence on the fateful night. He testified as Prosecution witness No. 2 (PW2). This is part of what he said:
“My name is Peter Osadolor. I live at No. 4, Iwehen Street, off Wire Road, Benin City. I am a motorcycle rider. I know the accused person. On 23rd June, 2003, I was at the quarters of the Edo Chief Judge at Central Road, G.R.A., Benin City. I was the security man assigned to the Chief Judge. I was a security man with Vanni Security System. I was there on duty at that night. I was there with two other Mobile police security men who were also on duty. There was gun shot that night. I heard the noise of the gun shot. The shots came from the government guest house quarters opposite the Chief Judge’s quarters, on Central Road, Benin City. This was around 3.30 a.m. there were also shouts of “help” “help”, “thief” “thief”. So the mobile police men came outside the gate and took cover. The mobile policemen came out from the security room in the Chief Judge’s quarters. Myself and one of my private security man who was also on duty with me also came out and took cover. We saw a boy and a policeman struggling with each other. The mobile policemen ordered the policeman and the boy who were struggling to stop struggling. They complied and the boy and hand up by raising his two hands. The mobile policeman told the two to properly identified themselves. The mobile policemen then asked the two what the matter was between them. The boy explained he was coming from a party and that he resided at No. 2 commercial Avenue, G.R.A., Benin City. The policeman now interrupted the boy that he was lying and that the boy was a thief and was struggling gun with him. He added that the boy wanted to collect the gun he held from him. At that point the boy put up his two hands and the policeman shot him twice at the left leg. The boy fell down and started rolling on the ground shouting that he was not a thief and repeated that he lived at No. 2, Commercial Avenue, G.R.A., Benin City. The policeman who shot the boy now ran to the police headquarters and came back with police van with four policemen inside the van. The van was Toyota police van (Jeep). One of the policemen, an Asst. Supt. Of police began to quarrel with the police that shot the boy. The A.S.P. was very angry and queried why the policeman should shoot the boy when the latter was not holding anything. He ordered the policeman to take the boy shot to the hospital. At that moment the boy demanded for water, He was put in the vehicle and taken to the police station (State Headquarters). The accused person was the police man who was struggling with the boy and who shot the boy. The policeman identified himself as a police inside the government house quest house. The policeman shot the boy on the lap region of the left leg. There was at the time at the scene near the mango tree a blue 505 Peugeot car packed with a man by the side of the car. The car was packed by the fence of the Chief Judge’s quarters. The boy was not armed at the material time. He wore a blue ‘T’ shirt with a brown jacket. The boy was not masked at the time and he was fair in complexion with dark hair. The following items to my knowledge were recovered from the boy who was shot – a sha, bag, a novel, a notebook, a biro and a little jack knife found on the right pocket of the jacket. The mobile policemen asked the man who was nearby at the time who he was and he replied he was a Medical doctor. When the man was invited to the police station, he declined and said he had nothing to say about the matter. I made statement to the police at police Headquarters, State C.I.D.”
On his own part, the appellant’s evidence at the trial, in part, ran thus:
“My name is Sgt. Kalejaiye Ola. I was living at No. 20, First East Circular Road but currently confined at the Federal Prison, Sapele Road, Benin City. I am a policeman. I remember 22/6/2003. On that day I was posted to chalet 7, Government House on guard duty. The chalet is along Central Road, G.R.A, Benin City. I was posted on that duty along with one Corporal who absented himself and I defaulted him. At about 0300 hours while I was on my beat inside the security room, I saw someone peeping through the window of the security room, I shouted “who is there”? I added that the person should identify himself but there was no response. As I peeped to look at the person he said “boys come inside”. Immediately, I heard some people pushing the gate trying to force it open. I then corked the AK47 rifle I carried. I was given the AK 47 at the Armoury together with 10 rounds of ammunition and a torchlight. I expended two rounds of ammunition firing into the air to scare away the intruders. After I fired the two rounds. I again peeped and saw the person with full mask. He wore all black attire. He had in his hands a dagger knife. He also wore hand gloves. As I tried to have a full view of him through the louvers since he was moving from the spot to the other as though he was dodging me he shouted “I beg don’t kill me”. I told him that he should obey me and he said he would obey me. I then asked him of his name and he said his name was “Matthew”. I asked him what he came to do in this quarter and he said he was a secret cult member. He added he was indebted to some of his colleagues and that they were pursing him hence he ran into the quarters. I then asked him to move forward from where he had put his back to the wall to enable me see him properly and he obeyed. I then asked him what he was holding and he replied he was holding a dagger knife. I asked him to drop the dagger knife on the floor and he obeyed. I then asked him to follow me to see the people. I came there to guide. I also instructed him to drop the case of the dagger knife on the floor along with the dagger knife. He also obeyed me. On getting to chalet 7, I asked the boy to kneel down whilst I knocked on the door and he obeyed. As I knocked on the door, one man came out and he asked what happened and I explained to him. He asked the boy who was still on his kneels what his name was and he replied his name was “Matthew”. The man who identified himself as Dr. Erhabor then advised that we should convey the boy to the Government House. All three of us then entered a vehicle with Registration No. AJ 09 GDE (a 504 car). Dr. Erhabor was on the wheels. Myself and the boy were sitting at the back seats of the car. As we got to the gate I gave my torch light to Dr. Erhabor to enable him recover the dagger and case the boy had earlier dropped. This time, there was no light. Thereafter we opened the gate and drove to Government House. On getting to Government House, the man on duty said because of the way the boy dresses they would not keep him in their security room and advised that I should take him to the Police Headquarters. All three of us then left the Government House in the same vehicle and as we were coming and before we got to the official quarters of the Chief Judge, the boy started to struggle the AK47 rifle I held with me. As the struggle continued and as we got close to the fence of the Chief Judge’s quarters, Dr. Erhabor packed the car. Even after Dr. Erhabor had packed the car, the boy continued to struggle the gun with me and in the process the gun fired twice. The struggle which was inside the car lasted for about 30 minutes. In the process Dr. Erhabor ran out of the vehicle. The struggle continued after the gun had fired twice and the boy in the process wounded me through teeth bite. He pushed me down from the vehicle. I got hold of him and dragged him down. He again held on to the rifle and began to struggle it with me once more. In the process the gun again fired. I then threw my fire in order to enter into the Chief Judge’s quarters but it hit the iron of the fence and could not go through but rather it fell on the floor. I attempted to throw the gun into the premises because of the fear that should the boy succeed in getting the gun from me I could not say what he would do with it to me and Dr. Erhabor. The place was pitch darkness. I then took my torch light in order that I might be able to recover the riffle. At that time I recognized two mobile policemen who came to the scene. As l was about to pick my gun, it again fired. The mobile policemen said they were from the official quarters of the Chief Judge. I did not see anybody else around. The mobile police men asked the two of us (the deceased and myself) to introduce ourselves. When the gun fired, I heard a scream and with that somebody fell on the ground. I later found that the person who fell on the ground was the boy who was struggling the gun with me.”
At the end of the trial, the learned trial judge, in his judgment believed the PW2 and not the appellant, whom he convicted and sentenced to death by hanging until he be dead.
The appellant, not unnaturally and being dissatisfied with the conviction and sentence on him, approached this court, on appeal, anchored on three grounds of appeal.
Appellant’s brief of argument dated 18th November, 2011 was filed on 12th December, 2011. It was settled by O.R. Edionweme, Esq., of counsel. He identified two issues for determination, to wit:
“1. Whether the prosecution by the evidence led before the trial court proved the case against the Appellant beyond reasonable doubt to warrant his conviction and sentence. (Ground 1 & 2)
2. Whether having regard to the Appellant’s testimony and other evidence before the court, the learned Trial Judge was right in rejecting the defence of accident (Ground 3)”.
Respondent’s brief of argument settled by Mrs. P.E. Aziegbemhin, Deputy Director, at the Ministry of Justice, Benin City, Edo State, was dated 17th April, 2013 and filed on 19th April, 2013. In it, a sole issue for determination was formulated thus:
“Whether having regard to the circumstances of this case and the evidence adduced by the Prosecution, the Trial Judge was right in convicting the Appellant.”
In my consideration and determination of this appeal, I adopt and shall be guided by the two issues distilled for determination by learned counsel to the appellant. The sole issue formulated by the respondent’s counsel for determination, is to all intents and purposes, to my mind, the same as appellant’s issue 1. I am satisfied too, that appellant’s issues 1 and 2 can be conveniently considered and resolved together. And that, is what, I shall do.
It is the submission of learned appellant’s counsel that the prosecution did not prove the three ingredients of the offence of murder against the appellant. He itemized the said three ingredients to include, that (1) the deceased died; (2) the death of the deceased was caused by the accused and (3) 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 relied on Adekunle V. The State (2006) All FWLR (pt. 332) 1453 at 1456. Learned appellant’s counsel conceded that the first ingredient aforesaid was proved, but that the 2nd and 3rd ingredients were not proved by the prosecution. He contended that since the incidence of shooting took place in the night at about 3am which was dark, according to the appellant, the PW2 could not have clearly seen what was going on as he claimed and testified to. He furthermore, submitted that since the incidence happened at 3am, it raised the presumption that the shooting occurred in the dark and it was left for the prosecution to have led evidence to show that even though the event took place at night, there was sufficient light that enabled the PW2 to see what transpired between the appellant and the deceased. He urged us to hold that the fact that the event took place at night and in the dark, cast doubt on the evidence of the PW2, therefore the appellant’s conviction was premised on a doubtful piece of evidence.
Appellant’s learned counsel, further submitted that since there was evidence of a struggle on the appellant’s gun by the deceased and the appellant in a car on the fateful day, there is a presumption that the deceased received the injury to his groin in that process of struggle in the car, hence the appellant could not have been held responsible for the infliction of that injury on the deceased.
Referring to the opinion of the learned trial Judge that it made no difference whether or not the deceased was shot once, twice or thrice, provided death was proved to have resulted from the shooting, appellant’s learned counsel submitted that the trial judge was in error, because according to him, “it was one bullet that ruptured the deceased vital organ that cause (sic) (caused) his death and that injury is not directly hiked (sic) (linked) to the Appellant’s act or omission. No evidence whatsoever that the Appellant was responsible for the injury.”
Next, was the appellant’s learned counsel’s contention that the prosecution ought to have called one Dr. Erhabor as a witness because according to him, “Dr. Erhabor was the most vital witness but was withheld by the prosecution because his evidence will weaken their case.” He relied on The State V. Ajie (2000) 08 LRCN 2513 at 2519.
Arguing his issue 2, Appellant’s learned counsel, submitted that the court is obliged to give due consideration to a defence either by the accused person or arising casually or by the tenor of the evidence placed before the court once that evidence raises reasonable doubt in the prosecution’s case. He relied on Usman V. The State (2005) All FWLR (pt. 284) 315 at 349. He contended that the events which led to the death of the deceased on the fateful night was as a result of accident. He referred to the piece of evidence by the appellant that it was when he attempted to throw the gun into the premises across the fence and the gun hit the iron railing of the fence and fell down. And that it was in the process of picking the said gun by the appellant that the gun fired and hit the deceased. Hence, Section 24 of the Criminal Code ought to have availed the appellant, vide the defence of accident. He urged that Section 24 of the Criminal code be invoked and applied in favour of the appellant. He referred to Nnamani V. The State (2005) 9 NWLR (pt. 929) 147 at 164.
Appellant’s learned counsel finally submitted that the piece of evidence by DW1 supported the evidence of the appellant and that the “fact that the DW1 did not come to court on subpoena does not make his evidence worthless”. He urged that issue 2 be also resolved for the appellant.
Learned counsel to the respondent, submitted that all the ingredients of the offence of murder against the appellant had been proved beyond reasonable doubt. Reliance was placed on Akinyemi V. The State (2001) 2 ACLR 32 at 44. And that in a charge of murder and on the authorities of Igbabele V. the State (2006) 6 NWLR (pt. 975) 100 at 127 and Friday Aiguoreghan V. The State (2004) 3 NWLR (pt. 860) 367, the prosecution was required to proof:
1. That the deceased died;
2. That the death of the deceased resulted from the act of the appellant;
3. That the act of the appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence.
Referring to the pieces of evidence by the PW1, PW2, PW3, PW4 and the appellant himself, learned counsel to the respondent submitted that the fact that Paul Erimafo died on the 23rd June, 2003 from gun shot wounds is not in doubt.
Respondent’s learned counsel relied on the evidence of PW2 and submitted that the shooting of the deceased on the fateful night by the appellant, was intentional. She furthermore submitted that the evidence of PW4 as to the closeness of about 2 metres between the deceased and the appellant when the latter shot at the former, indicates the intentional killing of the deceased by the appellant.
Furthermore, it is the submission of learned respondent’s counsel that even though the law permits a policeman to apply reasonable force to arrest a felon depending on the circumstances he finds himself, once the arrest is effected and the felon is found to be harmless, it will amount to murder, if at that stage the police kills the felon. Reliance was placed on Obot V. R. 14 WACA 352. Furthermore, it is learned counsel’s submission that there is evidence on the record that the deceased was not armed with any weapon when he was shot at and that the evidence of PW2 was neither contradictory nor controverted. Instead, it was corroborated by the pieces of evidence proferred by the PW3 and PW4. That in any event, the court can convict on the evidence of one reliable witness, if he is believed. Okosi V. The State (1998) 1 ACLR 281 at 305; Alli V. The State (1988)1 SC 35 at 47 were relied upon.
Learned respondent’s counsel referring to the pieces of evidence by the PW3 at page 64 lines 21 – 23 of the record of appeal, submitted that those pieces of evidence negatived the contention of the appellant that it was when he threw the gun to a fence and it fell down that it began to fire itself. Hence the shooting of the deceased was not accidental.
Mrs. Aziegbemhin, was emphatic that the learned trial judge had exhaustively evaluated the evidence with respect to the defence of accident which he found to be tissues of lies. She urged that the findings of the learned trial judge be not disturbed because they are not perverse. Reliance was placed on Oguonze V. The State (1998) 58 LRCN 3512 at 3539.
Respondent’s counsel, next dwelt on the defence of provocation, which according to her was not canvassed at the trial court, but by the appellant’s counsel in his address.
I am afraid, there is nowhere in the appellant’s brief of argument herein, that the defence of provocation was ventilated. Therefore, I will not waste precious judicial time in rehashing the submissions of respondent’s counsel on it not to talk of considering it. I discountenance it, accordingly.
Nevertheless, the respondent’s counsel finally submitted that the visibility of the PW2 was not impaired as contended by the appellant’s counsel that the event took place in pitch darkness. She referred to the pieces of evidence by the same PW2 who gave account with respect to the shooting of the deceased by the appellant and details of other facts such as the colour of the 505 Peugeot car parked with a man by the side of the car, the colour of the jacket worn by the deceased amongst others, hence there could not have been any doubt in the mind of the learned trial judge with respect to the evidence of PW2. She urged that the appeal be dismissed.
In a prosecution on a murder charge, under Section 319(1) of the Criminal Code, the law is firmly settled that the essential ingredients that must be proved to ground a conviction are:
(1) that the deceased died;
(2) that the death of the deceased resulted from the act of the accused person/appellant and
(3) that the said act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
Igago V. The State (1999) 14 NWLR (pt. 637) 1 at 20; (1999) 10 – 12 SC 84; Adekunle V. The State (2006) All FWLR (Pt. 332) 1453; Mbang V. The State (2010) 7 NWLR (pt. 1194) 431; (2012) 6 SCNJ 395; Olaiya V. State (2010) 3 NWLR (pt. 1181) 423; Ochiba V. The State (2011) 17 NWLR (pt. 1277) 663; (2011) 12 SCNJ 526 at 537; Henry Chukwu V. The State (2013) 4 NWLR (pt. 1343) 1 at 15.
Undoubtedly, the deceased Paul Erimafo died on 23rd June, 2003. The appellant, rightly in my view, conceded this fact, hence the ingredient no. (i) had been proved and established beyond reasonable doubt by the prosecution.
The Contention of the appellant is that the ingredients (ii) & (iii) of the charge/offence of murder were not proved against him beyond reasonable doubt, so according to him, his conviction and sentence for murder were in error. The premise upon which the appellant’s counsel anchored his contention is that the evidence of the PW2 that he saw what happened on the fateful night at 3am on 23rd June, 2003, which was in the dark, ought not to have been believed and acted upon by the learned trial judge. Learned counsel to the respondent on the contrary, submitted that the evidence of the PW2 was detailed as to how he saw the appellant shoot the deceased on the left leg and even described the colour of the car Peugeot 505 and the colour of the jacket worn by the deceased on the fateful night.
Now, the PW2 at lines 1 – 7 of page 61 of the transcript record of appeal, testified that:
“The policeman shot the boy on the lap region of the left leg. There was at the time at the scene near the mango tree a blue 505 peugeot car packed (sic) (parked) with a man by the side of the car. The car was packed (sic) (parked) by the fence of the Chief Judge’s quarters. The boy was not armed at the material time. He wore a blue “T” shirt with a brown jacket. The boy was not masked at the time and he was fair in complexion with dark hair.”
Amazingly, PW2 was never cross-examined by the appellant’s counsel with respect to the above pieces of evidence nor was it even suggested to him, that because the incidence happened at night, it was in pitch darkness, so he could not have seen clearly all he testified about.
The effect of the non cross-examination of the PW2 on the point by the appellant’s counsel is clearly that PW2’s evidence remains unchallenged and uncontradicted, hence it is deemed as duly established. Ubani & 2 Ors V. The State (2003) 12 SCNJ 111 at 130; Offorlete V. The State (2000) 7 SCNJ 162 at 170 & 183.
In the circumstances, I am in agreement with the learned trial judge, when at page 102 of the record of appeal, he rejected rightly, the same contention by the appellant’s counsel that the evidence of PW2 ought not to be believed because the incidence happened at 3am which presumably was in pitch darkness.
Appellant’s learned counsel, next contention was that the death of the deceased Paul Erimafo, could not have been traced directly to the appellant. This, according to him, was the fact that there were pieces of evidence offered by the appellant that there was a struggle between him and the deceased on his gun whilst in Dr. Erhabor’s car and that the deceased could have received the injury to the groin in that process, hence the appellant was not responsible for that injury.
It is pertinent to put the appellant’s evidence in its proper perspective as to the firing of the gun in the car. This is what he said:
“Even after Dr. Erhabor had packed (sic) (parked) the car, the boy continued to struggle the gun with me and in the process the gun fired twice. The struggle which was inside the car lasted for about 30 minutes. In the process Dr. Erhabor ran out of the vehicle. The struggle continued after the gun had fired twice and the boy in the process wounded me through teeth bit.”
Let’s pause here. It is clear to me that up to this stage, no shot had met the boy – the deceased, when the gun fired twice while the struggle lasted for 30 minutes in the car. Therefore, the question of the appellant being responsible or not for any shot on the deceased in the course of the struggle on the gun is non sequitor.
The appellant continued:
“He pushed me down from the vehicle. I got hold of him and dragged him down. He again held on to the riffle and began to struggle it with me once more. In the process the gun fired again.”
Let’s pause once more. At this stage, the gun had fired itself up to three times, apparently hurting nobody.
The appellant continued:
“I then threw my fire in order to enter into the Chief Judge’s quarters but it hit the iron of the fence and could not go through but rather it fell on the floor. I attempted to throw the gun into the premises because of the fear that should the boy succeed in getting the gun from me I could not say what he would do with it to me and Dr. Erhabor. The place was pitch darkness. I then took my torchlight in order that I might be able to recover the riffle. At that time I recognized two mobile policemen who came to the scene. As I was about to pick my gun, it again fired. The mobile policemen said they were from the official quarters of the Chief Judge. I did not see anybody else around. The mobile policemen asked the two of us (the deceased and myself) to introduce ourselves. When the gun fired, I heard a scream and with that somebody fell on the ground. I later found that the person who fell on the ground was the boy who was struggling the gun with me.”
Thus, it is irrefutable from the showing of the appellant, that it was the 4th time that the gun fired itself again, when he was about to pick it up from the ground, that the shot hit the deceased who then fell down. And this was outside, near the Chief Judge’s quarters.
Answering a question under cross-examination, the appellant said:
“Before the mobile policemen asked us to identify ourselves the gun had already met the deceased.”
Yet earlier in his evidence-in-chief at lines 28 – 30 of page 70 of the cold record of appeal, the appellant had said:
“I then took my torch light in order that I might be able to recover the riffle. At that time I recognize two mobile policemen who came to the scene. As I was about to pick my gun, it again fired.” (Underlinings supplied for effect).
Thus, in one breath, the appellant said the mobile policemen came to the scene and as he was about picking his gun, it fired again. And in another breadth, he said before the mobile policemen asked them to identify themselves, the gun had already met the deceased.
What a cock and bull story of a drowning man who would cling to anything even straw, in an ocean, in order not to be drowned! It is a futile exercise. Of course, the learned trial judge was quite on target for not believing the appellant as a witness of truth. I agree entirely with his Lordship.
The evidence of the PW4 as to the cause of death was most illuminating. His evidence is at pages 66 – 67 of the transcript record of appeal. Part of his evidence say:
“There is high velocity penetrating missile entering wound on the left posterior thigh measuring about 0.5 centimetre in diametre. The exit of the missile was on the left knee measuring 1 centimetre in diameter. From the missile exit, you could see the fractured left knee bone. There was a second missile entering on the right upper leg on the middle side of the posterior of the said leg. The entry also measures 0.5 centimetre in diameter. The exit of the missile was also on the right leg but on the lateral aspect. It measures two centimeters. There was a third similar missile entry wound measuring 0.5 centimetre on the lateral right groin. There were other minor bruises on the legs chest and one of the upper limbs. When I opened up the body, I found about 0.8 litre of blood in the abdominal cavity. The missile to the groin had ruptured the urinary bladder and part of the intestine, the right spermatic cord and others. Other organs were normal but they showed evidence of sever blood loss. On the basis of my findings, I attributed the death to three high velocity missile wounds to the lower limbs and groin which ruptured the urinary bladder and caused severe blood loss.”
PW4 was not cross-examined on the above pieces of evidence, which is deemed as uncontroverted and duly established. See again Ubani & 2 Ors. V. The State; Offorlete V. The State (supra).
In effect, it is the shooting of the deceased by the appellant with his gun on 23rd June, 2003 which caused the injuries on his “lower limbs and groin which ruptured the urinary bladder and caused severe blood loss;” which consequently led to his death.
Unarguably, the life of the flesh is in the blood, hence if there is no blood in the flesh, there will be no life in the flesh!
Before I draw the curtain on issue 1, I must say a word with respect to the contention of the appellant’s counsel to the effect that the prosecution ought to have called Dr. Erhabor as a witness and having failed to do so, the prosecution had suppressed evidence which she knew would weaken her case.
It is a well settled principle of law that the prosecution’s duty is only to call such number of witnesses sufficient, in its opinion, to prove its case beyond reasonable doubt. Therefore the prosecution is not obliged to call a host of witnesses or even all the witnesses named in the proofs of evidence listed to testify in a case. R V. Kure (1941) WACA 175; Anthony Igbo V. The State (1975) 9 – 11 SC 129; (1975) 1 All NLR (pt. 2) 70; Okon Akpan V. The State (1991) 3 NWLR (pt. 182) 646 at 657; Okpulor V. The State (1990) 7 NWLR (pt. 164) 581.
The apex court made this point clear in Alli V. The State (1988) 1 SCNJ 17 at 27; (1988) 1 SC 35 at 47 that:
“The testimony of one witness who is credible and who is believed is worth more than those of a host of witnesses whom the court cannot believe. Truth is not discovered by the impressive number and preponderance of witnesses who testified for one side but by the credibility of those witnesses no matter how few.”
Further see Sunday Modupe V. The State (1988) 4 NWLR (part 87) 130 at 137 (SC). Therefore, the prosecution is not even obliged to call all eyewitnesses to an incidence, where the evidence of a sole witness, in their opinion would suffice. Bello Shuruno V. The State (2010) 12 SCNJ 47; (2010) 19 NWLR (pt. 1226) 73; Emmanuel Ochiba V. The State (2010) 12 SCNJ 526.
In the circumstances of this case, Dr. Erhabor, was from the on set unwilling to even go to the police station and make a statement with respect to what transpired between the appellant and the deceased. So, the said Dr. Erhabor did not make any statement to the police and the prosecution was not to compel him to make one.
And if the appellant who brought the said Dr. Erhabor into the matter felt that he would have aided his own case and weakened that of the prosecution, the appellant was the one who was obliged to have called him as a witness, in his defence. In sum, I resolve issue 1 in favour of the respondent and against the appellant.
With respect to issue 2, predicated on the defence of accident, the pieces of evidence by the PW3 on one hand and those by the appellant vis-‘E0-vis that of the DW1 on the other hand would be brought into focus.
The PW3 was emphatic: that a riffle cannot release its ammunition without it being corked;
– that a rifle cannot cork itself because its corking nob is very strong;
– that without someone corking a riffle, it cannot on its own discharge;
– that if an Ak 47 falls on the ground after it is corked, it will not fire;
– if an Ak 47 is corked and falls on the ground, once the hand touches the trigger, it will fire;
– there was no way an object can touch the trigger if an Ak 47 falls on the ground because it has a trigger guide;
– if an AK 47 is corked and although the ammunition has entered the chambers, once the handler applies the safety catch, the riffle will never fire.
The appellant on his part, said in his evidence in-chief that in the process of the struggle on the gun with the deceased, the gun fired by itself at three different times;
– when the gun fell down and he attempted to pick it up, it again fired by itself, this time, hitting the deceased.
However, under cross-examination, the appellant agreed: That the riffle had a safety catch;
– the rifle cannot fire if the safety catch is on;
– when the rifle fell on the ground in his attempt to throw it into the premises, it did not fire.
According to the DW1,
– if two persons are dragging an AK 47 rifle and one of them touches the trigger, it will discharge;
– if the firing pin is not working well on an Ak 47, any slight touch by anything will make it fire;
– if an AK 47 rifle Falls on the ground, it will cork itself;
– if any person tries to retrieve it and it touches the trigger, the rifle will fire;
– the only way to stop the rifle from firing is to remove the magazine;
– the only way to prevent an AK 47 from corking if it is being dragged is to remove the magazine;
– it is true that the essence of a safety catch is to prevent the rifle from firing;
– even when the safety catch is in place, if the gun hits something and the catch is affected, it will fire;
– an Ak 47 will also fire if it is thrown against an iron fence and anything touches the firing pin.
The learned trial judge from pages 98 – 99 evaluated the above pieces of evidence by the PW3, the appellant and the DW1 and came to the conclusion that he having watched the demeanour of the witnesses, preferred the evidence of the PW3 who possessed more experience in the handling of an AK 47 than the DW1. I am satisfied that the evaluation of the said pieces of evidence by the learned trial judge was not in error nor done on wrong principle of the law. His findings thereon were not perverse. I am therefore, not tempted to tamper with them. Durugo V. The State (1992) 7 NWLR (pt. 255) 525 at 535; Adegboyega Ibikunle V. The State (2007) 1 SCNJ 207; Theophilus V. The State (1996) 1 NWLR (pt. 423) 139; Igbi V. The State (2000) 3 NWLR (pt. 648) 169.
In concluding his judgment, the learned trial judge said,
“In consequence of the evidence led by the prosecution and extensively reviewed and analysed and the findings made, I am satisfied that the case made against the accused by the prosecution is a cast-iron case which completely negates the story of the accused that the killing was accidental. On the contrary, I hold that the killing of the deceased Paul Erimafo, on the fateful day was premeditated and willful just as it is unlawful and therefore unjustifiable. I am accordingly satisfied that the prosecution has discharged the twin burden placed on it to prove the case against the accused and to do so beyond reasonable doubt.”
I cannot agree any less. It is a truism that where a person armed with a lethal weapon such as an AK 47 rifle, pointedly aimed at and fired a shot at another person, as it was done by the appellant against the unarmed deceased, there can hardly be any doubt that he intended to cause the death or inflict on the deceased, a grievous bodily harm. And the legal presumption is loudly to the effect that the appellant intended the natural and probable consequence of his actions. The test to be applied in such circumstances, is the objective one, to wit: the test of what a reasonable man would contemplate as a probable result of his action. Arabamen V. The State (1972) 4 SC 35; Eric Uyo V. The Attorn. Gen. Bendel State (1986) 1 All NLR 106 at 112; Garba V. The State (2000) FWLR (pt. 24) 1448 at 1460.
My Lord, Onu, JSC., in Adegboyega Ibikunle V. The State (supra) adopting the opinion of his Lordship Mohammed JSC, in Garba V. The State (supra) said:
“If from the intentional act of injury committed the probability of death resulting is high, the finding should be that the accused intended to cause death or injury sufficient in the ordinary cause of nature to cause death.”
Hence, in the circumstances of this case, it is clear to me that the act of the appellant in shooting the deceased with an AK 47 – a lethal weapon gave rise to the presumption that he intended to kill and did kill the deceased. It is said that conscience is an open wound and only truth can heal it. However it is glaring to me, that the appellant is truth deficient!
The killing of the deceased by the appellant on the fateful night was most cruel and dastardly, moreso, when the former was unarmed at the time he was shot. After all, the deceased had been effectively arrested by the appellant who was harmless, having been earlier dispossessed of his jack knife. In Obot V. R 14 WACA 352, the court held that:
“A person who at night finds another in the act of committing a felony is entitled to use such force as may be necessary to apprehend the felon, even to the extent of killing him to prevent his escape, but once he has caught up with him, and such felon is unarmed, it will be murder to hack him to death with a lethal weapon.”
Even if for a moment, the appellant was considered for being rash in his shooting of the deceased, rashness indeed, just like negligence negatives a defence of accident. See Uzoka V. The State (1990) 6 NWLR (pt. 159) 680; Sholuade V. Republic (1990) All NLR 134.
This case is a sad reminder of the inglorious days of the worn out defence of accidental discharge by trigger happy policemen. Hence it is pertinent to re-echo what my Lord, Onnoghen, JSC said in Adegboyega Ibikunle V. The State (supra), to wit:
“I am compelled by the facts and circumstances of this case coupled with the now notorious extra judicial killings of innocent people by some members of the Nigeria Police, to condemn the inability of some members of the Police Force to realize that the foundation of the police institution is preservation of life and property. There is the urgent need to revisit the criteria used in recruitment of policemen. The instant extra judicial killing by a member of the Nigeria Police Force is one too many. Appellant did not only fail in his duty as a policeman to protect the people but has no regard for the sanctity of human life. He was not only overzealous but also extremely reckless in his actions on the day in question… It is the unfortunate acts of policemen like the appellant that have made it near impossible for Nigerians to really consider the police as their friend. … Such characters as the appellant still occupy positions within the Nigeria Police and they need to be deterred from the now notorious act of extra judicial killings. …”
Needless to say that the above strictures are still relevant today as it was in 2007. Pray that the inglorious days of claims of accidental discharge and killing of innocent and defenceless citizens would be over soonest! Appellant’s shooting of his victim is a typical demonstration of a policeman’s criminal outlawry. It is condemnable and unacceptable. It is indeed reprehensible, to say the least.
In sum, the appeal fails on all grounds. It is lacking in merits. I dismiss it accordingly.
The well considered judgment of R.I. Amaize, J., delivered on 23rd May, 2011 is hereby affirmed. Therefore the appellant still has a date to keep with the hangman’s noose!
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had read the Judgment just delivered by my learned brother, the Hon. Justice T.S. Yakubu, JCA. Having equally perused the briefs of argument of the respective learned counsel and record of appeal, I agree with the reasoning and conclusion reached in the said Judgment, to the effect that the present appeal is lacking in merits.
Hence, I hereby dismiss the appeal and affirm the Judgment of the Edo State High Court, Benin Judicial Division, which was delivered by R.I.A. Amaize, J, on 23/5/11 in charge No. B/58c/2003.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has painstakingly and incisively too, dealt with the issues he adopted for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead judgment. I have nothing to add to the judgment and also adopt the lucid lead judgment as mine.
Appearances
J.N. Okongwu, Esq.For Appellant
AND
Mrs. P.E. Azeigbemhin, Director Citizens’ Rights’ Center, Edo State (with her: Mrs. I. Okungbowa, S.S.C., Mrs. E.O. Osula, S.S.C. & Miss
Mrs. F.E. Oseh-Kayodele, S.S.C. – all of Ministry of Justice, Edo StateFor Respondent
