BASSEY ASINYA v. THE STATE (2016)

BASSEY ASINYA v. THE STATE

(2016)LCN/8526(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of April, 2016

CA/OW/193C/2013

RATIO

APPEAL: CONSEQUENCE OF NOT FILING A BRIEF OF ARGUMENT ON THE PART OF THE RESPONDENT
The fact that the Respondent did not file a Brief of argument does not necessarily mean there is an automatic victory for the Appellant. This matter is a matter on Appeal and the failure to file a Respondents Brief does not operate against the absentee as a walkover in a football match, which usually would result to an easy victory or one obtained without a contest because the opposing party did not show up. The reason for this is that the Appellant must succeed on the strength of his Appeal and has the onerous task of showing that the judgment of the Lower Court was wrong. See the cases of CAMEROUN AIRLINES vs. OTUTUIZU (2011) LPELR-827 (SC); JOHN HOLT VENTURES vs. OPUTA (1996) 9 NWLR (PT. 470) 101; But the Respondent would be deemed to have accepted everything stated in the Appellants Brief in so far as is borne by the records. See the case of UNITY BANK PLC vs. BOUARI (2008) 7 NWLR (PT.1086) 372, where the Supreme Court, per OGBUAGU, JSC had this to say on the issue;
“The failure of a Respondent to file a Reply Brief is immaterial. This is because an Appellant will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellants Brief in so far as is borne out by the records.” PER FREDERICK O. OHO, J.C.A.
EVIDENCE: BURDEN OF PROOF; ON WHOM LIES THE BURDEN TO PROVE IN CRIMINAL TRIALS
The settled position of the law is that in criminal matters the burden of proof rests squarely on the shoulders of the prosecution and the proof must be beyond reasonable doubt in order to secure a conviction. The prosecution will readily achieve this result by ensuring that all the necessary vital ingredients of the charge are proved in evidence. Se e WILLIAMS vs. THE STATE (1992) 10 SCNJ 74; YONGO vs. C.O.P. (1992) 4 SCNJ 113; OGUNDIYAN vs. STATE (1991) 3 NWLR (Pt. 1818) 519; BAUGA vs. THE STATE (1996) 7 NWLR (Pt. 460 ) 279 . PER FREDERICK O. OHO, J.C.A.
CRIMINAL LAW: MEANING OF COMMON INTENTION AND REQUIREMENTS FOR ESTABLISHING COMMON INTENTION
Under the doctrine of common intention, it is a well known fact that it is incapable of a direct positive proof. It is for this reason that its proof is usually one of a matter of inference from the facts and surrounding circumstances of every given case. See the case of DSP GODSPOWER NWANKWOALA vs. THE STATE (2006) LPELR-2112 (SC).
In conducting a close analysis of Section 8 of the criminal code it would be disclosed that there are a number of requirements or preconditions that must be established before a conviction based on it can be sustained. These requirements are as follows; (a) there must be two or more persons; (b) they must form a common intention; (c) the common intention must be towards prosecuting an unlawful purpose in conjunction with one another; (d) An offence must be committed in the process; (e) the offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose. See the case of ALARAPE vs. THE STATE (2001) LPELR-412 (SC). PER FREDERICK O. OHO, J.C.A.
EVIDENCE: WHETHER A COURT CAN CONVICT SOLELY ON CONFESSIONAL STATEMENT
We have stated, several times, that confessional statement is the best evidence, and is enough to lie or sustain conviction. See the case of Salaudeen Vs. The State LPELR – 21851 (CA); Yusuf vs. The State (2012) LPELR – 7878 CA; Oji v. FRN (2013) ALL FWLR (Pt.668) 920; Akpa vs. State (2008) ALL FWLR (Pt.420) 644. PER ITA GEORGE MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

BASSEY ASINYA Appellant(s)

AND

THE STATE Respondent(s)

FREDERICK O. OHO, J.C.A.(Delivering the Leading Judgment):
Before the High Court of Justice in the Owerri Judicial Division, BASSEY ASINYA along with one (1) other were charged on a one-count information with the murder of one SYLVESTER NNAEMEKA OBIEKEA on the 24th day of December, 2006 at Owerri, Imo State, Nigeria contrary to Section 319(1) of the Criminal Code.

Eight (8) witnesses testified for the prosecution, while the accused persons each gave evidence in their defense and called a total of two (2) witnesses. At the trial a total of eighteen (18) Exhibits were tendered. At the close of hearing, the learned trial Judge in a considered Judgment found the Appellant guilty as charged and sentenced him to death by hanging. It is against this conviction and sentence that he has appealed to this Court. In all there are three (3) Grounds of Appeal were filed and from which learned Appellant?s Counsel distilled two (2) issues for the Courts determination. These Grounds of Appeal, shorn of their particulars are as follows:
GROUND OF APPEAL;
1. The learned trial Judge erred in Law by convicting the accused person in the

one Count charge when the accused pleaded a defense of honest mistake.
2. The learned trial Judge erred in law by convicting the accused in the one Count charge by saying that the provision of Section 239 of the Armed Forces Act, cap A20 LFN, cannot avail the accused person.
3. That the decision is altogether unwarranted, unreasonable and cannot be supported by a reasonable Tribunal.

ISSUES FOR DETERMINATION
It may be necessary to state here that this Appeal came up for hearing on the 23-2-2016 and that by this date Respondent had not filed its Brief of argument in response to the Appellant?s after time had been extended by this Court, following a motion on notice granted to that effect since the 9-6-2015. This being a criminal matter which enjoys a measure of priority under the Court?s Practice Directions, 2013, the Court was of the view that a further grant of another adjournment for the purpose filing Respondent?s Brief was bound to defeat the purpose of the Court?s directives and also jeopardize the Appellant?s chances of regaining his freedom, if the Appeal goes in his favour. To make matters rather

worse, on the said 23-2-2016 when the matter came up for hearing there was no representation whatsoever on behalf of the Respondent. In the absence of a Respondent?s Brief and at least a word of excuse on their behalf, the Appeal was heard based on the Brief of argument learned Appellant?s Counsel. He nominated a total of two issues for the Court?s determination as follows:
(1) Whether the prosecution from available evidence before the Court has been able to prove its case against the Appellant beyond reasonable doubt as required by law despite the defense of honest mistake pleaded by the Appellant at the Lower Court.
(2) Whether in the conviction of the Appellant is proper having regard to the provision of Section 239 of the Armed Forces Act, Cap C20 LFN, 2004 relied upon and pleaded by the Appellant at the Lower Court.

The brief facts of this case is that on the 24th day of July, 2007 at about some minutes past 5 am the Appellant and the 2nd accused person, Soldiers of the 34 Brigade Nigeria Army, Obinze, Owerri and members of ?Operation Fast Strike? crime fighting unit, stationed at the AVU road Junction near

Owerri were told by some motorists travelling along the Owerri, Port-Hacourt Road that Armed robbers had blocked a section of the road thereby making it impossible for people to pass. The Appellant and the 2nd accused person were said to have gone to the scene on a rescue mission. At a the scene the Appellant and 2nd accused person saw some people who told them that the robbers were now operating in a Red Jeep vehicle, which the Appellant thought they saw drove past them on their way to the scene.

In hot pursuit upon getting this fresh piece of information, the Appellant made a ?U? turn with his car and caught with the Red Jeep. The Appellant?s account has it that upon the occupants of the Jeep sighting them, they opened fire at him as he was about to alight from his car, and was shot and slightly wounded him on his left leg, but that in the ensuring drama one of the occupants of the Jeep was shot and the rest robbers ran into the bush. The Appellant there and then communicated their adventure to the Guard Command who in turn related the encounter with the robbers to the Operational Commander who ordered the corpse of the deceased and

the Jeep to be taken to the Army barracks, Obinze.

After the deceased was taken to the Army Barracks in Obinze, the Operationl Commander ordered the Guard Commander Sgt Tijani Baba, who testified as DW2 at the Lower Court to take the corpse of the deceased to Eagle Square, Owerri. At the Eagle Square, the Guard Commander was made to make a formal statement on the circumstances surrounding the death of the deceased which he willingly did. The deceased senior brother, not being satisfied with the circumstances leading to the death of his younger brother, made a formal report of murder against the Appellant and other soldiers on duty with him on the day of the incident to the Nigeria Police and the Appellant was arraigned on a charge of murder together with the 2nd accused person at the Lower Court and upon which charge the Appellant was found guilty convicted and sentence to death.

ARGUMENTS and SUBMISSIONS OF APPELLANT?S COUNSEL
ISSUE ONE;
(1) Whether the prosecution from available evidence before the Court has been able to prove its case against the Appellant beyond reasonable doubt as required by law despite the defense of honest

mistake pleaded by the Appellant at the Lower Court.

It was the submission of Counsel that the prosecution failed woefully to prove its case beyond reasonable doubt as required by law as none of the eight (8) prosecution witnesses who testified was able to say categorically that they saw or witnessed when the Appellant killed the deceased. He urged the Court to order the discharge and acquittal of the Appellant and referred to Section 135 of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 as amended in 2011. Counsel further submitted that at best the evidence of the prosecution witnesses is nothing but hearsay evidence which is not admissible in law. Learned Counsel cited the case of EKPO vs. STATE (2001) FWLR (PT. 55) P. 454 at 464 ? 465 on hearsay evidence.

In respect of the confessional statement made by the Appellant, learned Counsel stated that the contents of the said statement corroborated the Appellant?s account of what transpired that fateful day at the Lower Court when he testified as DW1 was further corroborated by the 2nd accused when he too testified as DW4. It was contended by Counsel that although the

Appellant made a confessional statement to the effect that he fired the fatal shot which killed the deceased, but that he qualified it by saying that he honestly believed that the deceased was one of the armed robbers who shot at him. He said that at the time that at the time the Appellant committed the alleged unlawful act, he was mistaken as to certain material fact or facts then existing which resulted in the honest believe that the deceased was one of the alleged armed robbers said to be on the road as reported by the motorists and other road users.
It was also contended that throughout the trial of the Appellant at the Lower Court, the prosecution did not lead any evidence to controvert or challenge the averments by the Appellant that when he and the 2nd accused person, DW4 when they intercepted the deceased?s Jeep they were shot at resulting in the Appellant?s injury while some of the robbers jumped into the bush. It was further contended by Counsel that the confessional statement made by the Appellant does not qualify as a confession as contemplated by law as the Appellant was being honest in stating the truth of what transpired by

admitting that though he fired the shot that killed the deceased, but he did not know that the deceased was not one of the armed robbers. Counsel cited the Court of Appeal decision of AMOSHIMA vs. STATE (2009) ALL FWLR (PT. 488) P. 328 at 376 on this issue.

Learned Counsel told Court that the Appellant relied on the provision of Section 25 of the Criminal Code Act, Cap. C38, Laws of the Federation of Nigeria, 2004 at the Lower Court and still relies on said Section in pleading the defense of mistake to the crime. It was submitted by Counsel that the defense of mistake of facts raised by the Appellant at the Lower Court was strong enough to give him the benefit of doubt, but that the Lower Court glossed over the defense and went ahead to convicted the Appellant for murder. It was also contended by Counsel that the element of intention to kill simpliciter which is a major ingredient of the offence of murder like the one the Appellant was charged with is missing. Counsel referred Court to Section 316 (1) and (2) of the Criminal Code Act, Cap.C38 Laws of the Federation of Nigeria, 2004. It was submitted that although the job of the prosecution was made easy

by the Appellant?s confession, that it did not necessarily remove the burden on the prosecution to prove all the elements of the offence charged. He argued that it is not enough if the prosecution merely proves that the accused probably committed the offence, but must prove beyond reasonable doubt that the accused person committed it. Counsel cited the case of SHEHU vs. STATE (Supra) at P.1861.

It was also submitted that none of the prosecution witnesses was able to challenge or contradict the assertion made by the Appellant that he intercepted the deceased on the road while performing official duty and that he took the deceased for an armed robber based on the report made to them at the road block at AVU Junction, Owerri as a member of Operation Fast Strike that armed robbers were operating along the Owerri, Port-Harcourt Road that early morning. Rather, Counsel said that the facts were corroborated by the evidence of DW2, DW3 and DW4 when they testified before the trial Court. It was further submitted that the testimonies of the witnesses for the prosecution are actuated with malice and suspicion, because from the testimonies of PW1, PW2, PW3,

PW4 to PW5, they were either based on what they were told by the accused persons during the trial or and their personal opinions, yet the trial Court went ahead not only to admit them, but made heavy weather of those testimonies, relied upon and convicted the Appellant. Counsel cited the case of NZERIBE vs. ANYIM (2009) ALL FWLR (PT. 488) P. 378 at 395, Paras B ? D on the issue of failure to contradict the version of Appellant?s story.

ISSUE TWO;
Whether in the conviction of the Appellant is proper having regard to the provision of Section 239 of the Armed Forces Act, Cap C20 LFN, 2004 relied upon and pleaded by the Appellant at the Lower Court.

It was submitted by Counsel that the Appellant encountered the deceased in company of the 2nd accused person, while they were performing official duty as members of a crime fighting outfit referred to as Operation Fast Strike established by the Imo State Government in order to curb, curtail, eliminate and to stop incidents of armed robbery, kidnapping and murder within Imo State. Counsel said that these facts were clearly established by the evidence of not only the Appellant at his trial,

but also the evidence of Sgt. Tijani Baba the Guard Commander who gave evidence as the DW2; Lt Col. J. O. Tijani, the Operational Commander, who testified as DW3 and Augustine Nwolisa, the 2nd accused person, who testified as DW4.

Counsel contended that to prove that the Appellant was performing official duty and was rendering aid to Civil Authority as provided by the Constitution of the Federal Republic of Nigeria, 1999 and the Armed Forces Act, 2004, Laws of the Federation of Nigeria, Counsel paraphrased the evidence of the witnesses for the Appellant and also some witnesses for the prosecution at the Lower Court and urged the Court to resolve issue two in favour of the Appellant.

RESOLUTION OF APPEAL;
The fact that the Respondent did not file a Brief of argument does not necessarily mean there is an automatic victory for the Appellant. This matter is a matter on Appeal and the failure to file a Respondent?s Brief does not operate against the absentee as a walkover in a football match, which usually would result to an easy victory or one obtained without a contest because the opposing party did not show up. The reason for this is that

the Appellant must succeed on the strength of his Appeal and has the onerous task of showing that the judgment of the Lower Court was wrong. See the cases of CAMEROUN AIRLINES vs. OTUTUIZU (2011) LPELR-827 (SC); JOHN HOLT VENTURES vs. OPUTA (1996) 9 NWLR (PT. 470) 101; But the Respondent would be deemed to have accepted everything stated in the Appellant?s Brief in so far as is borne by the records. See the case of UNITY BANK PLC vs. BOUARI (2008) 7 NWLR (PT.1086) 372, where the Supreme Court, per OGBUAGU, JSC had this to say on the issue;
?The failure of a Respondent to file a Reply Brief is immaterial. This is because an Appellant will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant?s Brief in so far as is borne out by the records?.
?
The question to therefore address here is whether the Appellant herein has succeeded in establishing the points raised in its Appeal strong enough to tilt the scales of Justice in its favour. I have taken a very careful consideration of the submissions made by the learned Appellant?s Counsel in its Brief

of argument. Against the background of the facts disclosed in the record of proceedings taken alongside the issues and points raised and argued therein, it does appear to me that success or otherwise of the Appellant?s Appeal shall depend on the following factors;
1. There being no eye witness account of the alleged murder except that of the 1st and 2nd accused persons, a modicum of the prosecution?s case must depend in some way on Circumstantial evidence.
2. The truthfulness of the confessional statement of the 1st accused person and the efficacy of the 1st accused person?s defense of Mistake of fact under Section 25 of the Criminal Code.
3. The role of Section 239 of the Armed Forces Act, cap C20 LFN, 2004 pleaded and relied upon by the 1st accused (who is hereinafter referred to as the ?Appellant?).
?
Before taking on the identified factors one after the other, it may be apposite to state that from the Court?s careful study of the records, a few issues stand out which are clearly not in dispute;
a. That the deceased, one Sylvester Nnaemeka Obiekea died on the 24-12-2006 in the early hours of the

day as a result of gunshot wounds.
b. That the deceased is a Nigerian based in the USA who was visiting Owerri-Nigeria and had arrived on the 23-12-2006, only to be felled by gunshots the very next day after arrival.
c. That the Appellant is one of the two accused persons charged with the murder of the deceased Sylvester Nnaemeka Obiekea. He was attached to the 34 Artillery Brigade of the Nigeria Army, Obinze as a Soldier.
d. That the Appellant, along with the 2nd accused person and one Sgt. Tijani were supposed to be at their duty post at AVU junction on the day of the incident under the Operation Fast Strike crime fighting unit in Owerri, Imo State.
e. That the Appellant made a confessional Statement in which he admitted that the shot that killed the deceased was fired by him under a mistaken fact of believing that the deceased was one of the armed robbers in hot pursuit by them.

The rather peculiar facts of this case showed that there were no eye witnesses to the murder or killing of the deceased Sylvester Nnaemeka Obiekea on the fateful day. Albeit the prosecution called a total of eight witnesses, none could give an account of

what really transpired and led to the death of the deceased. What therefore seemed to be a semblance of the true account of what took place on the fateful day was the evidence of the DW1- who is the Appellant herein and the DW4, who was the co-accused person to the Appellant in the trial at the Lower Court which has resulted to this Appeal under consideration in this Court. Learned Appellant?s Counsel had cited the decision of the case of EMEKA vs. THE STATE (2001) FWLR (PT. 66) 682 AT 693 in support of his contention that the three (3) methods of proving the guilt of an accused person is by placing reliance on eye witness accounts, or the confessional statements of the accused or where the former two are absent, on circumstantial evidence. But Counsel had contended that even at that, in the case herein, the Appellant had been truthful and honest enough to have admitted pulling the trigger of the rifle that killed the deceased but had done so under the mistaken belief that the deceased was one of the fleeing robbers and had returned fire when gunshots were fired at him. In essence therefore, one can conveniently say that the Appellant had raised the

defense of Mistake of Fact, provided for under Section 25 of the Criminal code. The opening words of Section 25 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.?
See the case of AIGHUOKIAN vs. THE STATE (2004) LPELR 296 (SC) where the Supreme Court per ACHOLONU, JSC had this to say on the subject;
?The test of honest belief which should shore up a defense of mistake rests a priori on whether the accused honestly and in good faith made a mistake in the nature of the situational premise prevailing as at the time, and that shall be determined and related to the circumstances as might reasonably to be expected to affect his mind to induce belief or otherwise of the defense of mistake?.
?
The ordinary facts of this Appeal can be gleaned from all that the DW1 to DW4 have said in the process of the Defense trying to exonerate the Appellant and his co-accused person from the

charge of murder; they being the only eye witnesses to what actually happened that day. As for the evidence of the PW1 to PW8, theirs was basically hearsay evidence having not been first hand witnesses to the events and had merely relied on what they heard or were told. But the one piece of evidence I seem to have taken special interest in is the evidence of the DW2, one Sgt. Tijani Baba under who the Appellant and his co-accused persons were deployed on the fateful day under the Operation Fast Strike crime fighting unit at AVU Junction. The evidence of the DW2 is at pages 126 to 130 of the printed records. He was Sector Commander and had testified in favour of the Appellant at the trial at the Lower Court. He said that at about 5.30 am on the said day, some motorists had approached them and told them that some gang of armed robbers had mounted a road block on the Owerri-Port Harcourt road. The DW2 further said that he tried to establish contact with the members of the Patrol team who would not respond and with the Operations Commander who was also not clear in his response as to whether they could go and clear the road of the armed robbers or not.<br< p=””

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Before this time, the DW2 had testified that on the instructions of the Operation Commander he had deployed the Appellant from the AVU Junction to the near-by residence of Maj. Gen. Ogbonna. He also said that when the 2nd accused person enquired what was going on and that whether the team could go on a rescue mission, he objected as according to him the signal he had received from the Operations Commander was not clear enough as to whether the team should go to the scene of the robbery operation or not. According to the DW2, it was on the return of the Appellant that he took time to explain what was happening, and once again refused that the team should go after the fleeing robbers without a positive order to that effect. He said that it was while he was busy still trying to establish communication with the patrol team that he noticed that the Appellant and his co-accused person had left their duty posts without authorization.

At page 248 of the printed records the learned trial judge had made a finding of the Appellant?s involvements in the incident, which I hardly have a word to disagree with on the issue of the Appellant?s absence from

his duty post as follows;
?In effect the two accused persons left their respective duty posts without permission from their superior office to the scene of the crime, Section 50(d) of the Armed Forces Act, 2004 states thus; ?A person subject to service law under this Act who leaves his duty post or watch without having been regularly relieved or otherwise absents himself from any place, post or watch where it is his duty or watch is guilty of an offence under this section.to that extent agreement by the two accused persons to leave their duty posts against the orders of DW2 who was their head an superior on that day was unlawful?.
?
Perhaps, another piece of evidence worth referring to in this Appeal is that of the DW3, one Lt. Col. James Owodunni Tijani, who was the operational Commander on the day of the incident. His evidence is at pages 130 to 134 of the printed records. At page 133 last line of the page the DW3 gave an answer which automatically exposed the exaggerated aspects of the Appellant?s story of having been shot at the leg before he too also did his shooting that killed the deceased person. The

recorded dialogue took the following pattern;
Question; Did you see the 1st accused when he came to the Barracks, on duty?
Answer; I saw all the members of the team. The 1st accused person was not brought back to the Barracks in a stretcher.
Question; Did you observe any abnormality from the 1st accused on that day when he came back?
Answer; I did not.

These obvious lapses or so it seems or cracks perhaps, in the wall of the defense of the Appellant at the trial Court, notwithstanding the relevant question to address here is whether the Appellant, on account of these lapses should be denied his defense of mistake of fact under Section 25 of the Criminal code? As a corollary, or perhaps this question asked differently, can it really be said that the prosecution succeeded in proving the case of murder against the Appellant strong enough to deprive the Appellant of the benefits of the defense of mistake made on his behalf?

The settled position of the law is that in criminal matters the burden of proof rests squarely on the shoulders of the prosecution and the proof must be beyond reasonable doubt in order to secure a

conviction. The prosecution will readily achieve this result by ensuring that all the necessary vital ingredients of the charge are proved in evidence. Se e WILLIAMS vs. THE STATE (1992) 10 SCNJ 74; YONGO vs. C.O.P. (1992) 4 SCNJ 113; OGUNDIYAN vs. STATE (1991) 3 NWLR (Pt. 1818) 519; BAUGA vs. THE STATE (1996) 7 NWLR (Pt. 460 ) 279 . It would be recalled that the crime for which the Appellant was tried and convicted at the Lower Court is the offence of murder. Murder is one of the most heinous offences against the person. The offence both from the viewpoint of consequences vis- -vis its sanction for offenders is always disastrous. It is disastrous in view of the fact that to kill a person, means a complete annihilation of his existence, as well as that of the murderer, if the latters act is adjudged to be unlawful or unjustified.
In his judgment the learned trial judge found as follows:
In relying on this section ( Section 25 of the Criminal Code ) 1st defense Counsel submitted that the 1st accused shot the deceased believing him to be an armed robber. However, it will be borne in mind that-
a. The 1st accused admitted that when

he approached the deceased vehicle, the deceased was alone in his car.
DW1 said when he got to the car, the door glass of the deceased was down and his hand on the door window and that when he came close, he told the deceased to wind down his glass but that instead of winding down his glass, he began to wind it up. DW1 told the Court that he saw the deceased took his right hand behind him and so he thought he was trying to pull out a gun and so he had to shoot him. All through the evidence of the witnesses and the accused persons, no evidence was produced to show that the car was pierced or perforated as a result of gunshots from the DW1 who alleged the deceased wound up his glass instead on winding down. It was not shown the deceased was either attacking the DW1. Resisting arrest or trying to escape from the scene of crime. Furthermore the evidence of the PW6, PW5, and PW7 showed that the 1st accused shot the deceased three times at a close range. The act of 1st accused was very wicked and callous and cannot in the least be said to be an act done under an honest and mistaken belief. That defense cannot in the in the circumstance avail the 1st accused

person. From the evidence available and also from the admission of the 2nd accused person, the 1st accused person shot the deceased 3 times thereby causing his death.?
(Under line, is mine for emphasis.)
The learned trial Court which also considered the issue of common intention had this to say at page 252 of the records;
?On the issue of the 2nd accused (sic) left their various duty posts without authority to the scene of the crime? DW1 agreed with DW4 to proceed in pursuit of the armed robbers. In effect when the 2 accused persons left AVU to pursue the robbers they had a common intention.? (Under line, mine for emphasis)

Here is a situation in which there were no eye-witnesses. The Lower Court?s resort to piecing together a few circumstances derivable from the totality of the evidence of the defense witnesses adduced in the case is highly commendable and I am of the view that is it is a very creative way of exercising the powers of the mind in resolving a situation such as this which has no doubt proved intractable is some way. The Lower Court is of the view that the Appellant and co-accused person?s

unceremonious abandonment of their duty posts in pursuit of fleeing armed robbers without authorization is enough for the learned trial Court to infer that the accused persons had a common intention to commit an offence under Section 8 of the Criminal Code, and also translates to the offence of Conspiracy to commit an unlawful act. I simply cannot find any plausible reasons to fault the Lower Court on this line of reasoning.

Under the doctrine of common intention, it is a well known fact that it is incapable of a direct positive proof. It is for this reason that its proof is usually one of a matter of inference from the facts and surrounding circumstances of every given case. See the case of DSP GODSPOWER NWANKWOALA vs. THE STATE (2006) LPELR-2112 (SC).

In conducting a close analysis of Section 8 of the criminal code it would be disclosed that there are a number of requirements or preconditions that must be established before a conviction based on it can be sustained. These requirements are as follows; (a) there must be two or more persons; (b) they must form a common intention; (c) the common intention must be towards prosecuting an unlawful purpose in

conjunction with one another; (d) An offence must be committed in the process; (e) the offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose.? See the case of ALARAPE vs. THE STATE (2001) LPELR-412 (SC).

Upon a very calm and careful consideration of these requirements stated here above having regards to the facts of this case, there does seem to be ample evidence to establish that the common intention held between the Appellant and his co-accused person was for the prosecution of an unlawful purpose. If this were not to be so, why did they not get their superior officer the DW2, involved in the decision to go after the alleged fleeing robbers? Coming back to the defense of mistake of fact, under Section 25 of the criminal code, there may also be the need to critically examined the Section vis-? -vis the undisputed facts of this case, bearing in mind the dictum of the ACHOLONU, JSC in the case AIGHUOKIAN vs. THE STATE (2004) LPELR 296 (SC) where the late sage had this to say on the subject;
?The test of honest belief which should shore up a defense of mistake rests a

priori on whether the accused honestly and in good faith made a mistake in the nature of the situational premise prevailing as at the time, and that shall be determined and related to the circumstances as might reasonably to be expected to affect his mind to induce belief or otherwise of the defense of mistake?. (Under line, mine for emphasis).

It must be borne in mind that it is not enough to simply plead defense of mistake of fact as Section 25 of the criminal code prescribes that the mistake must be ?honest? and ?reasonable? to exculpate the accused person. The defense would always be allowed where there is a belief in a set of circumstances, which if true should provide more than enough opportunity to excuse the accused person?s conduct and absolve him from criminal guilt. The position of the law is that a genuine mistake of fact robs the accused person of the necessary mens rea which the law requires for the crime with which he is charged. See the cases of THE STATE vs. OLATUNJI (2003) SCNJ 65 AT 84-85; OGIDI vs. THE STATE (2005) 5 NWLR (PT 918) 286. In the latter case the Supreme Court is of the view that the

defense of mistake is a good defense only because the state of mind of the accused at the time of the commission or omission of the fact must not only be honest but must be reasonable in the circumstance.
In the case of AIGHUOKIAN vs. THE STATE (Supra) the Supreme Court was rather blunt on the issue when ACHOLONU, JSC had this to say;
?It is the law that where an accused acted under an honest and reasonable belief in a given state of situation which if true would have justified the act, he may set up a credible defense. But the story must be true, in other words, capable of being believed and not an insult to intelligence.? (Under line, mine for emphasis.)

There is certainly an irony of faith in human existence in matters of this nature. The generally uninformed may be quick to argue that had the deceased probably turned out to be a notorious and wanted armed robber felled by the bullets of the Appellant, and not the innocent traveler, he turned out to be, the Appellant would have instantly become a celebrated hero. That, generally, may be the correct position of things. But this case is generally to be construed rather differently

and more seriously. The story of the Appellant even though he turned out to be one of the two eyewitnesses and the protagonist to the unfortunate drama leading to the death of the deceased, simply does not add up. His story is more of a fairy tale. One of those stories that would readily make William Shakespeare?s epic; ?Lambs Tales from William Shakespeare? a child?s play.

For the avoidance of doubt it may be necessary to restate the evidence of the Appellant as 1st accused person in the light of the Court?s observation made here above. His testimony is at page 110 of the record of proceedings, excerpts of which shows that he chose to adopt his statement made to the Police which was admitted as an Exhibit in the trial. The said statement is pasted at pages 33 to 37 of the records of proceedings excerpts of which are reproduced here as follows;
?On 24-12-2006, around 05-05.15 am I was on duty at AVU junction, with my Guard Commander Sgt. Tijani Baba and L/CPL. Augustine Nwolisa. The policemen that were supposed to be on duty with us there about five of them left the place on the night of 23-12-2016?I was

inside the filling station resting. I just heard some noise coming from outside and I came out. I met my Guard Commander who informed me that armed robbers have blocked the road at a place not very far from us towards Owerri. So the Guard Commander detailed myself and Augustine Nwolisa to go and myself (sic) rescue the people while he will continue to try the line of the Operational Commander. I now used my own private car, a Nissan Sunny Car?I was the one driving the Car while Augustine was sitting at the front passenger?s sit.(sic). As we were going, we saw a jeep with full head lights on. There were dews (sic) that time and the vehicle was coming in opposite direction and wanted to block us. I swerved my steering?we did not know the number of people inside the jeep. Then when we got in a place just at the first Petrol station by the left after AVU Junction, we saw people gathered there with their Cars parked. When they saw us they came out and asked us whether the road is clear that there are armed robbers on the road. We answered them that that is why we were out but we saw only one jeep. The people said yes that it is like it is the

armed robbers that are using the jeep. I reversed back towards AVU junction?. As we were going, we saw the break light of the jeep as it parked at the Center of the road with full light on a little after the place we passed it before. As I slowed down as we approached the jeep I saw somebody flash a torch light towards my Car and fired at us. Augustine Nwolisa jumped down and fired back. I sighted two men from the position the torch light and the firing coming from. I now opened my door to come down and heard firing from my back and it touched my left leg which I brought out as I wanted to come down from the Car. As I got down, I opened fire towards that direction and the person that fired me ran into the bush. I now rushed to the Jeep and as at this time somebody was sitting on the driver?s seat, I cautioned him to come down. He said Officer I was coming. He started winding up the glass that side I was standing. Then I stopped him I warned him that if he moves the glass I will fire him. The next thing that the man did was that he started touching his waist from the left side and I thought he was trying to bring out a gun, I fired him aiming at

his head but unfortunately the bullet touched his stomach. Then the man managed to come down and started shouting Officer, armed robbers were robbing me. By this time, L/CPL Augustine was on the other side of the road. I called him and ordered him to search the man as he sat on the side of the road. After searching him Augustine saw a torch light and an empty shell off expended ammunition case of pistol. The empty case pistol is now with our Senior Officers?.

The Appellant, having mentioned the fact that his co-accused person, the said L/CPL Augustine Nwolisa was within the vicinity of the scene of crime, I consider it necessary to also reproduce relevant excerpts of his statement to the Police which is also pasted at pages 40 to 41 of the records of proceedings as follows;
?The people said that the Jeep heading to Obinze was the vehicle they used. L/CPL Bassey then revised (sic) and followed the Jeep. Before we could get back to our duty post he saw the jeep still moving very slowly. I then disembarked from the vehicle and immediately light beamed from the jeep and ordered L/CPL Bassey to off his head lamp which he did. I then came down

and went into the bush from there I saw two men one carrying an AK47 Riffle while the other one was with a torch. The men then fired and I dived into the bush and from there released some shots into the bush as well because they ran into the bush after releasing shots. As this was going on L/CPL Bassey who was driving had gone to close to the Jeep and I heard him ordering the driver of the Jeep not to move- he said don?t move! Don?t move!!. Following that order was a gunshot but was rapid and I know it was Bassey who released the shots to the person he was ordering not to move. I then came out from the bush and got to the spot. When I got there the door of the driver?s side was open and the man-victim was still on the steering and the vehicle stemming (sic). I went to the man and helped him to come down and I now discovered that he had been fired by L/CPL Bassey from the passenger?s side. The man still alive but could not talk loudly. L/CPL Bassey then ordered me to search the man. I obeyed, searched the man and nothing was recovered from him. I went in to search the vehicle nothing was seen except expended empty shell of a pistol and a

(torch) rechargeable torch at the back seat. The victim was just saying armed robber! Armed robber!! But very faint as I can?t understand exactly what he was saying.?

What seem to be as clear as daylight even after the shooting of the deceased is that the Appellant and his co-accused person knew immediately that the deceased was not one of the robbers they were running after, but rather one of the victims of the robbery operation whose predicament they compounded by resorting to killing him altogether. It was clear that the Appellant and his co-accused saw the actual armed robbers flee into the bush clinging unto their weapons. It was also clear that the alleged gunshots fired at the Appellant and his co-accused person, were not fired from the parked Jeep but rather from the direction of the duo of the fleeing robbers who jumped into the bush, shortly after which the Appellant moved towards the parked Jeep and shot and killed its occupant. The question here is, if the deceased was actually one of the robbers, why would he have to wait around and not taken flight along with members of his gang at the approach of the Appellant and his

co-accused person?

In addition, the Appellant who it was said was not at the time certain that the deceased was one of the fleeing armed robbers, was said to have given ?rapid? shots from his AK47 Riffle at the deceased who was seated in the driver?s seat of his Car. The question is why as a trained Soldier that he is, did the Appellant not shoot to demobilize the deceased first, more especially when he saw no guns or weapons in the hands of the deceased? Here was a situation where a trained Soldier was said to be standing outside with his cocked riffle pointed at the target, whom he believes was trying to reach for a gun. All he saw and had admitted to have seen was the body movement of the victim. He saw no guns or weapons and yet went ahead and released a volley of bullets into the deceased. And in any case, if the Appellant had, in the words of his co-accused fired ?rapid? shots at the deceased, why was there no bullet marks or perforations on the body of the vehicle? It would also be recalled that the fleeing armed robbers also took a shot or more at the Appellant with their AK47 Riffle just as he was going to alight

from his Car. Co-incidentally, there were also no perforations or gunshot marks anywhere on the body of his Car. Appellant also claimed to have been shot at the left leg. But this claim was debunked by the DW3, LT. COL JAMES OWDUNNI TIJANI, who observed no abnormalities with the Appellant when he returned to the Barracks.

Where the defense of mistake of fact is erected on a pedestal of absolute falsehood, the kind which the late sage, ACHOLONU, JSC (of Blessed Memories) in the case of AIGHUOKIAN vs. THE STATE (Supra) had described as capable of insulting the intelligence and sensibilities of the hearer, the way the Appellant had done in this case, then the defense will fail. This Appeal therefore fails and it is accordingly DISMISSED. The decision of the trial High Court of N. B. UKOHA, J delivered on the 8-10-2012 is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, F. O. Oho, JCA, my learned brother has adumbrate dealt all the issues for determination of this appeal, I agree completely with his reasoning and conclusions that this Appeal is

lacking in merit. I am also of the same view that this Appeal fails and is hereby dismissed. I therefore affirmed the decision of the trial High Court of N. B. Ukoha, J delivered on the 8/10/2012.
There shall be no order as to Costs.

ITA GEORGE MBABA, J.C.A. : I had the advantage of reading, in draft, the lead judgment, just delivered by my learned brother Fred O. Oho JCA , and I agree with his reasoning and conclusions therein.

I do not think the defense of honest mistake, under Section 25 of the Criminal Code , can avail the Appellant, given the whole circumstances of this case and the evidence, which revealed the deliberate lies and manipulation of facts against the dead by the Appellant.

If Appellant were sincere in his plea of honest mistake, on the discovery that he shot and killed an innocent person, whom he claimed he earlier mistook to be part of a gang of fleeing armed robbers, he would have shown demonstrable feeling of remorse and penitence and would not have lied against the dead, that he (deceased) was armed robber; that he (Appellant) was shot on the leg by the robbers (deceased) in an ensuing

gun battle, when he shot the deceased. He would not have linked him with robbers who ran into the bush. He even made a public show of the body of the deceased at the Public Square, showing off his gallantry, when, all along, he knew he shot an armless man, three times, at close range, who must have lifted up his arms in surrender as the Appellant fired on him, callously.

There was evidence that there was no dent on the car (Red Jeep) allegedly used by the fleeing armed robbers, and that when he (Appellant) returned to the Barracks, after the shooting, there was no evidence injury or any abnormality on him. See the evidence of DW3 on Page 133 of the Records. He was not also assigned any official duties at the time of the Killing of the deceased!

The trial Court, neatly, summarized his point in the judgment, when he said:
?All through the evidence of the witnesses and the accused persons, no evidence was produced to show that the car was pierced or perforated as a result of gunshots from the DW1 who alleged the deceased wound up his glass instead on winding down. It was not shown the deceased was either attacking the DW1, resisting arrest or

trying to escape from the scene of crime. Furthermore, the evidence of the PW5, PW6, and PW7 showed that the 1st accused shot the deceased three times, at a close range. The act of 1st accused was very wicked and callous and cannot, in the least, be said to be an act done under an honest and mistaken belief.?

There is nothing to show that Appellant appealed against those clear and damaging findings, which, completely, negate every claim of acting in honest and mistaken belief.

Even if the deceased, who just returned to his country from the United States of America, the previous day, were to have been one of a suspected gang of armed robbers, should he have been killed (shot trice, at close range) when there was no evidence of gun attack or resistance from the alleged armed robbers, after the Appellant?s vehicle had caught up with their car, causing them to stop?

I, strongly, believe that security operatives are trained, proper, on how to handle such situation, and that killing a victim (who is not armed) should not be the first option. At what point/time did the Appellant discover he made a mistake in killing the deceased? But at no

time, even during the trial, did he show that sense of remorse and penitence!

I cannot fault the decision of the trial Court, who acted on the evidence (confessional statement) of the Appellant to convict him. We have stated, several times, that confessional statement is the best evidence, and is enough to lie or sustain conviction. See the case of Salaudeen Vs. The State LPELR ? 21851 (CA); Yusuf vs. The State (2012) LPELR ? 7878 CA; Oji v. FRN (2013) ALL FWLR (Pt.668) 920; Akpa vs. State (2008) ALL FWLR (Pt.420) 644.
I too dismiss the appeal.

Appearances

PSC Agada, Esq.For Appellant

AND

No representationFor Respondent