EKUM v. STATE (2022)

EKUM v. STATE

(2022)LCN/16341(CA)

In The Supreme Court

On Friday, May 13, 2022

SC.1103/2017

Before Our Lordships:

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

PC HENRY EKUM APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

BURDEN OF EVIDENCE IN A CHARGE OF MURDER

In a charge of murder, the legal and evidential burden is fixed on the prosecution to establish (a) that the deceased had died; (b) that the death of the deceased had resulted from the act of the appellant; and (c) that the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily harm was its probable consequences. See Okereke v. State (2016) LPELR-40012 (SC), Akinlolu v. State (2015) LPELR-25986 (SC) and Maiyaki v. The State (2008) 15 NWLR Pt. 1109 Pg. 173. HELEN MORONKEJI OGUNWUMIJU, J.S.C.

POSITION OF LAW ON A WITNESS CONFESSIONAL STATEMENT

…..the law is that a confessional statement which is direct, positive and voluntarily made can be used in convicting a defendant without the need for corroboration. See Adio v. State (1986) 2 NWLR Pt. 24 Pg. 581, Adeyemi v. State (2014) LPELR-23062 (SC). HELEN MORONKEJI OGUNWUMIJU, J.S.C.

POSITION OF LAW ON CONFESSION IN CRIMINAL PROCEDURE

This Court per Tobi, JSC in Akpa v. State (2008) 14 NWLR Pt. 1106 Pg. 72 at 95 paras. C – D held on the efficacy of confessional statements thus:
“Confession in criminal procedure like admission in civil procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axion comes out from the mouth of the horse, who is the accused person, what better evidence than that? He knows or know what he did and he says or said it in Court. Is there need for any further proof? I think not.” HELEN MORONKEJI OGUNWUMIJU, J.S.C.

POSITION OF LAW ON ACCIDENTAL DISCHARGE OF THE GUN

The law is settled that for an event to qualify as an accident, such event must (A) be the result of an unwilled act; (B) occur without the fault of the person alleged to have caused it; or (C) be totally unexpected in the ordinary course of events. See Adekunle v. State (2006) 14 NWLR Pt. 1000 Pg. 717; Adelumola v. The State (1988) 1 NWLR Pt. 73 Pg.683. HELEN MORONKEJI OGUNWUMIJU, J.S.C.

POSITION OF LAW ON DEFENCE OF ACCIDENT

The law is that the defence of accident will not avail an act done unlawfully, recklessly or rashly. See Agbo v. State (2006) 6 NWLR Pt.975 Pg.100; Uwagboe v. State (2008) 12 NWLR Pt.1102 Pg.621; Egbirika v. State (2014) LPELR-22009 (SC). HELEN MORONKEJI OGUNWUMIJU, J.S.C.

WHETHER THE DEFENCE OF ACCIDENT WILL AVAIL AN ACCUSED PERSON

The defence of accident will not avail an accused where the act is deliberate, even if the accused never intended the eventual result. See Adeyeye v. The State (2013) LPELR-19913 (SC). HELEN MORONKEJI OGUNWUMIJU, J.S.C.

POSITION OF LAW ON EVALUATION OF EVIDENCE

INSTANCE WHERE APPELLATE COURT WILL INTERFERE IN THE FINDINGS OF A LOWER COURT

The law is that this Court would not unless exceptional circumstances are shown, disturb the concurrent finds of facts and legal conclusions of the two lower Courts. The findings must be shown to have been arrived at injudicially in a perverse manner. The findings must be shown to be unsupported by admissible evidence and there must be an inherent violation of the rights to fair hearing of the Appellant that on the face of the record has occasioned gross miscarriage of justice and needs to be corrected by this Court. See Egwumi v. State (2013) 13 NWLR Pt. 1372 Pg. 525 at 556 – 557, paras. E – A; Ifeanyi v. FRN (2018) 12 NWLR Pt. 1632 Pg. 164 at 195, paras. G – H; Afuape v. State (2020) 17 NWLR Pt. 1754 381 at 416, paras. C – E; 417, paras. A – B; Idam v. FRN (2020) 12 NWLR Pt. 1737 Pg. 1 at 13, paras. E – F; and Ameh v. State (2018) 12 NWLR Pt. 1632 Pg. 99 at 125, paras. G – H. HELEN MORONKEJI OGUNWUMIJU, J.S.C.

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Calabar Judicial Division hereinafter referred to as the Court below, Coram: I. M. M. Saulawa, (JCA), C. E. Nwosu-Iheme (JCA) and J. O. K. Oyewole (JCA), delivered on the 30th day of November, 2017. By the judgment, the lower Court affirmed the judgment of the High Court of Cross River State (Coram: B. T. Ebuta, J.) delivered on December 17, 2014, which convicted and sentenced the Appellant to death by hanging for the offence of murder. The Appellant, consequently, lodged an appeal to this Court.

The Appellant filed six (6) grounds of appeal in the Notice of Appeal. The Appellant formulated three (3) issues as arising for determination in the appeal from the six grounds of appeal.

The facts which led to this appeal are as follows:
The Appellant was arraigned on May 24, 2011 at the trial Court on a one-count charge of murder contrary to Section 319 of the Criminal Code Law, Cap C16 Vol. 3 Laws of Cross River State, 2004. The Appellant pleaded not guilty to the charge.

At the trial Court, the Respondent’s case was that the Appellant on October 23, 2010 at No. 24 Ochedore Street, Four Corners, Ikom murdered one Ebam Takim Obiba by shooting him on the head with an AK47 rifle (“Exhibit 4′). From the evidence before the trial Court, the Appellant on that fateful date while armed with Exhibit 4 left his duty post as a Police guard at First Bank of Nigeria Plc, along Calabar Road, Ikom and went into a saloon in a storey building, where he held one Queeneth Assam hostage. When Queeneth Assam contacted her husband, Mr. Ayuk Ogar (“PW2”) Mr. Ogar was accompanied by the deceased to the scene. PW2 and the deceased on arrival at the scene met the Appellant holding unto Queeneth Assam while armed with Exhibit 4.

Subsequently, there was an altercation between the Appellant and his colleague on the one side and PW2 and the deceased on the other side. Following the altercation, the Appellant fired the AK47 rifle (Exhibit 4) randomly. It is also in evidence that the Appellant had previously during the altercation, pointed Exhibit 4, the AK47 rifle, at PW2 and the deceased but was cautioned by his colleague, PC Emmanuel Idoko (now deceased). PW2 sustained a gunshot injury on his left shoulder while trying to escape from the scene. PW2 ran out through the stairs of the building to the road. PW2 while running continued to hear several gunshots and eventually heard someone shout that the deceased had been shot. The deceased died on the spot at the scene of the incident. Mbuk Oru Etta (PW1), the deceased’s brother, identified the deceased’s body to the medical doctor. The IPO who investigated the crime, John Orohi (PW3), testified that from Police investigations and the medical report (“Exhibit 3”), the deceased died of a gunshot injury. According to PW3, the Appellant failed to observe safety measures, especially by ensuring that the safety catch of the AK47 was put in place to avoid its discharge and that the Appellant emptied the entire 15 rounds of live ammunition at the scene of the incident.

Trial commenced at the trial Court on June 21, 2011. In proof of the charge against the Appellant, the Respondent, as prosecution, called three (3) witnesses namely, (A) Mr. Mbuk Oru Etta, the deceased’s brother who testified as PW1; (B) Mr. Ayuk Ogar, the person that accompanied the deceased to the scene of the crime testified as PW2; and (C) Mr. John Orohi, the IPO that investigated the offence testified as PW3.

The Respondent also tendered five (5) exhibits at the trial Court: (1) the confessional statement of the Appellant made on October 27, 2010 (Exhibit 2); and the confessional statement of the Appellant made on November 4, 2010 (Exhibit 2A); (2) medical report Form D18 (Exhibit 3); (3) the Ak47 rifle (Exhibit 4) and (4) Inspector Godwin Elumah’s statement made on October 24, 2010 (Exhibit 5).

After the Respondent closed its case on May 24, 2012, the Appellant made a no-case submission which was overruled on February 4, 2013 and the Appellant was called upon to enter his defence. In his evidence before the trial Court, the Appellant (who testified in person as DWI) testified that Exhibit 4 was loaded with 15 rounds of live ammunition but was not corked at the time of the altercation. DW1 further testified that he did not know how the rifle corked and started exploding until the 15-live ammunition finished. DW1 also testified that he knows that someone “went down” in the process. During cross-examination, DW1 conceded that an AK47 rifle cannot fire until it is corked and fired. He also confirmed that a rifle can be corked by either of two ways-“rapid cocking” and “counting cocking”. In each case, the rifle must be triggered for it to fire. He also testified to making 3 statements, two of which he wrote and signed personally at the State CID while one was recorded for him. He identified Exhibits 2 and 2A as the statements that he made and signed personally.

On December 17, 2014, the trial Court delivered its judgment, convicted the Appellant for the offence of murder, and accordingly sentenced him to death by hanging.

The Appellant dissatisfied with the conviction and sentence, filed a notice of appeal on 17/2/16. On 30/11/2017, the Court below affirmed the judgment of the trial Court and dismissed the appeal. The Appellant not yet satisfied has appealed to this Court by notice of appeal filed on 27/12/17.

In the Appellant’s brief settled by Chijioke O. P. Emeka Esq., the appellant settled three issues for determination which the Respondent adopted:
1. Whether from the totality of the evidence adduced at trial, the prosecution proved the essential ingredients of murder to sustain the Appellant’s conviction and sentence? (Grounds 1, 2, 4 and 6 of the Notice of Appeal.)
2. Whether the Court below was right to have affirmed the decision of the learned trial Judge which convicted the Appellant based on Exhibits 2 and 2A, his alleged confessional statements? (Ground 3 of the Notice of Appeal)
3. Whether the defence of accident did not avail the Appellant on the charge of murder brought against him? (Ground 5 of the Notice of Appeal)

In my view, the sole issue for determination is crystallized by me as follows:
Whether the totality of the evidence adduced at trial justifies the Defendant’s conviction for murder and sentence of death.

In the Appellant’s brief, the Appellant’s Counsel argued that none of the prosecution witnesses saw the Appellant kill the deceased even though the death of the deceased was conceded. Counsel insisted that neither PW2, the deceased’s friend, PW1 – the deceased’s brother, who identified his body to the police, PW3 – the I.P.O., who investigated the offence were eyewitnesses to the incident.

Learned Appellant’s Counsel argued that only evidence against the Appellant are his extra-judicial statement Exhibits 2 & 2A. Counsel argued that there was no direct credible evidence to prove that the accidental rapid gunshots from the Appellant’s rifle killed the deceased and that the circumstances of the case point irresistibly to the fact that the deceased died from his head injury as a result of a fall. PWI the only witness who saw the deceased stated that he did not see any gunshot injury. PW2 who was also present at the scene stated that the Appellant would have shot them in the saloon if he wanted to kill them. Rather it was in evidence that there were rapid gunshots at the veranda of the building and the gun was never aimed at the deceased but the gun went off as a result of struggle between the Appellant and the deceased for the Appellant’s rifle. Counsel cited Anyanwu v. State (2012) 16 NWLR Pt. 1326 Pg. 221 at 270- 271 r paras. H – C to support the defence of accidental discharge beyond the control of the Appellant.

Counsel insisted that in the absence of direct evidence, the law is that for circumstantial evidence to ground conviction, it must be cogent and point irresistibly to the guilt of the Defendant which was not the situation in this case. Learned Counsel argued that it was wrong of the trial Court to hold that medical evidence of cause of death is unnecessary in the circumstances of this case. Counsel cited Popoola v. State (2015) 6 NWLR Pt. 1456 at 468.

Counsel argued that medical evidence of gunshot wound as indicated in Exhibit 3, the medical report is unreliable and should have been discredited. Counsel argued that Exhibit 3 should be discredited as it was of dubious origin because both the date and place of issue are inconsistent.

Learned Appellant’s Counsel also argued that there is no evidence in Exhibits 2 & 2A, that they are true since the Appellant had retracted them. The Court was obliged to apply the probability rule as settled by case law.

Lastly, learned Appellant’s Counsel argued that the defence of accidental discharge avails the Appellant and should have been upheld by the trial Court and the Court of Appeal. Counsel supported this contention with a lot of concocted assumptions not worthy of mention here and not borne out by the evidence on record.

In reply, the Respondent contended in the Respondent’s brief settled by Fred Onuobia that the following facts were established by credible evidence and were not denied nor controverted by the Appellant during the trial: (A) the Appellant pointed Exhibit 4 (the AK47 rifle) which was loaded with 15 rounds of live ammunition at the deceased. (B) the Appellant fired Exhibit 4 at random at the scene until the 15 rounds of live ammunition were dispensed. (C) the Appellant fired Exhibit 4 at random as he went down the stairs. (D) Exhibit 4 will not fire unless it is corked. (E) PW2 was also hit on his left shoulder by the bullet from Exhibit 4. (F) the Appellant noticed during the process that somebody had gone down and (G) the deceased was in the process hit by bullet from Exhibit 4 and he died on the spot.

Counsel argued that the above facts clearly show that the Appellant intentionally and knowing the consequence of his action, caused the death of the deceased when the Appellant fired Exhibit 4 at random. Exhibit 3 (the medical report) further confirms that the deceased died from a bullet wound.

Learned Counsel for the Respondent argued that the issue raised by the Appellant regarding the discrepancy in the nomenclature of the hospital and the date of issuance of Exhibit 3 must fail. This is because the Appellant had the opportunity at the trial Court to apply to cross-examine the author of Exhibit 3 but the Appellant failed to do so. The Appellant had admitted in his confessional statements (Exhibits 2 & 2A) that the deceased was hit by a bullet from Exhibit 4.

Counsel urged the Court to conclude that from all the evidence available, the two lower Courts concluded rightly that there is no ambiguity as to the cause of death of the deceased.

Learned Counsel argued that evidence abound that the Appellant intended to cause bodily harm. First, the Appellant had previously pointed Exhibit 4 at the deceased, knowing that same was loaded. The Appellant subsequently corked and started firing until he exhausted the 15-live ammunition in Exhibit 4. It is clear and undisputed from the evidence before the trial Court, the Appellant fired at random at the scene the entire 15 rounds of live ammunition loaded in Exhibit 4. Counsel argued that Exhibits 2 & 2A were made voluntarily.

Once a confessional statement is direct, unequivocal, positive and properly proved, and shown to have been made by an accused freely, such confessional statement alone, can sustain a conviction without any corroborative evidence. Counsel cited Salawu v. The State (2011) LPELR-9351 (SC); Gira v. State (1996) 4 NWLR (Pt. 443) 375 at 388.

Counsel submitted that the Appellant Counsel’s submission that Exhibit 4 was accidentally corked and exploded its 15 rounds is not supported by evidence. Assuming without conceding that, as argued by the Appellant, the 15 gun shots accidentally fired during the scuffle between the Appellant and the deceased, the same is not helpful and would not suffice for the defence of accident. This is because from the evidence, the Appellant had earlier during the altercation pointed Exhibit 4, which he knew was loaded, at the deceased and PW2 who were both unarmed.

OPINION
In a charge of murder, the legal and evidential burden is fixed on the prosecution to establish (a) that the deceased had died; (b) that the death of the deceased had resulted from the act of the appellant; and (c) that the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily harm was its probable consequences. See Okereke v. State (2016) LPELR-40012 (SC), Akinlolu v. State (2015) LPELR-25986 (SC) and Maiyaki v. The State (2008) 15 NWLR Pt. 1109 Pg. 173.

My Lords, from the evidence of PW1, PW2, PW3 and even DW1, all agree and it is not in Issue that the deceased, Ebam Takim Obibia, died at No 24 Ochedore Street, Ikom on October 23, 2010. The pertinent questions now are (A) whether the death of the deceased was caused by an act or omission of the Appellant? (B) whether the Appellant’s act which caused the death was done with the intention to cause grievous harm or death? And (C) whether death was a probable consequence of the Appellant’s act?

In respect of the complaint against the medical report, I agree with the Court below that the failure of Appellant’s Counsel at trial to request for the maker of the medical report for the express purpose of cross-examining him on the discrepancy between the nomenclature of the hospital and the date of issuance of the report is of no relevance on appeal. In Nwachukwu v. State (2002) 12 NWLR Pt. 782 Pg. 543 at 564, this Court addressed this issue when it held thus: “When a certificate signed by any of the named officers in Section 42 of the Evidence Act (now Section 55 (1) of the Evidence Act, 2011) is produced, it is not imperative to call the officer to testify in the proceedings although the Court has the jurisdiction on the application of a party to the proceeding or on its own motion, to direct that any such officer should be summoned to give evidence before it if the Court is of the opinion that the interest of justice so requires either for the purpose of cross-examination or for any other reason. But an accused person who has not specifically applied for the maker of such a certificate to be called as a witness cannot complain if the trial Court fails to call the officer who signed the certificate.”
See also Ibekendu v. Ike (1993) 6 NWLR Pt. 299 Pg. 287.
Similarly, this Court in Edoho v. State (2010) 14 NWLR Pt. 1214 Pg. 651 per Adekeye, JSC held as follows:
“By the provisions of Section 42 (1) of the Evidence Act , it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in Court in order to give evidence during the trial. Production by either party of a certificate signed by the medical officer may be taken as sufficient evidence of the facts.”
The author of Exhibit 3 therefore need not appear in Court for the Court to safely rely and convict the Appellant on the basis of Exhibit 3.

Most importantly, PW1 identified the deceased to the medical doctor who prepared the report.

The Court below was right to find that the cause of death as confirmed in Exhibit 3 corroborates the other pieces of evidence before the trial Court on the cause of death of the deceased. To be sure, each of (A) the accounts given by the Appellant himself in Exhibits 2 and 2A, (B) Exhibit 3, and (C) the testimonies of the Appellant (DW1), PW2 and PW3, confirm that there are no ambiguities as to the cause of death of the deceased. Rather, the overwhelming evidence was that the deceased died from bullet injury from a gunshot (Exhibit 4). Each of these pieces of evidence also show that the deceased died at the scene of the incident.

In respect of the Appellant’s Counsel’s argument regarding the confessional statement, the law is that a confessional statement which is direct, positive and voluntarily made can be used in convicting a defendant without the need for corroboration. See Adio v. State (1986) 2 NWLR Pt. 24 Pg. 581, Adeyemi v. State (2014) LPELR-23062 (SC). In fact, the testimony of DW1 corroborates his confessional statements when he testified thus on pg. 122 of the record:
“Because of the explosion everybody was looking for where to hide his head. Then the other man had left Emmanuel Edoho, also looking for where to run to. As I was struggling to remove my magazine from the arm to stop the firing but the man who was struggling with me did not allow me to do that. We struggled to a point of getting to the downstairs. Then suddenly I had a relief of the struggler then I know that somebody is down. Then nobody was around us again.”

My Lords, the Appellant’s Counsel argued that the statements of the Appellant as contained in Exhibits 2 & 2A were not subjected to the probability or credibility tests. I think it is pertinent to observe here that the reason for the evolvement of the tests has been completely misconceived by the learned Appellant’s Counsel. The tests are for the Court to double check that the retracted but admissible and admitted confessional statement had not in fact been involuntarily taken from the Defendant or the Defendant had not mistakenly or deliberately at the point of confession, confessed to a crime he didn’t commit for an unknown reason. Where the statement was never at any time retracted at trial, as in the circumstances of this case, the issue of applying the probability or credibility tests does not arise.

The argument that the Appellant’s unretracted confessional statement was not corroborated is completely misconceived in view of the evidence of eyewitnesses to the incident. There is no need for further corroboration of an unretracted confessional statement by applying the probability or credibility tests.

My Lords, on the defence of accident or in this case accidental discharge of the gun, the law is settled that for an event to qualify as an accident, such event must (A) be the result of an unwilled act; (B) occur without the fault of the person alleged to have caused it; or (C) be totally unexpected in the ordinary course of events. See Adekunle v. State (2006) 14 NWLR Pt. 1000 Pg. 717; Adelumola v. The State (1988) 1 NWLR Pt. 73 Pg.683.

My Lords, the evidence before this Court does not support and in fact cannot form the basis of the defence of accident.

I agree with the two lower Courts that in view of the above series of event, the defence of accident cannot avail the Appellant. The Appellant cannot claim that his act was unwilled or that the outcome was unexpected. This is because the Appellant had during cross-examination on pg. 123 of the record confirmed that an uncorked AK47 rifle will not fire and that there were two types of cocking, “the rapid” and “the counting” cocking. The Appellant also conceded that in each case, one must pull the trigger for it to fire. The Appellant pulled the trigger, not once or twice but until the 15 – live ammunitions were expended. This is both reckless and rash on the part of the Appellant. The law is that the defence of accident will not avail an act done unlawfully, recklessly or rashly. See Agbo v. State (2006) 6 NWLR Pt.975 Pg.100; Uwagboe v. State (2008) 12 NWLR Pt.1102 Pg.621; Egbirika v. State (2014) LPELR-22009 (SC).

The Appellant during his Examination-In-Chief testified thus:
“Because of the explosion everybody was looking for where to hide his head. Then the other man had left Emmanuel Edohor also looking for where to run to. As I was struggling to remove my magazine from the arm to stop the firing but the man who was struggling with me did not allow me to do that. We struggled to a point of getting to the downstairs. Then suddenly I had a relief of the struggle, then I know that somebody is down. Then nobody was around us again.”

At page 123 of the record, the Appellant under cross-examination confirmed as follows:
“Yes as a trained police officer, when an Ak47 rifle is uncorked, if you pull the trigger it will not fire. Yes, when an AK47 rifle is corked and the trigger pulled, it will fire. There are two types of corking – you can cork under ‘rapid’ or cork under ‘counting’. Under counting, it will fire as many times as you pull the trigger. If you cork under rapid if you pull the trigger it will fire until you leave the trigger. If you cork and hold the trigger it will continue until ammunition in the magazines is finished.”

It is obvious that the gun was deliberately corked by the Appellant.

I have read all the evidence at trial including Exhibits 2 & 2A, nowhere is there any evidence that the deceased struggled with an armed policeman or with the Appellant for that matter to wrestle the gun from him. The defence put up in Exhibits 2 & 2A that the gun went off while the deceased was struggling to take his gun cannot stand since the medical report shows that the deceased was shot from the back while trying to run away like others when the shooting started.

The defence of accident will not avail an accused where the act is deliberate, even if the accused never intended the eventual result. See Adeyeye v. The State (2013) LPELR-19913 (SC). The Appellant had previously during the altercation pointed Exhibit 4, which was loaded with 15-live ammunition at PW2 and the deceased, both of whom were unarmed, before he was cautioned by his colleague. This was evident in PW2’s testimony on page 98 of the record. The same Appellant subsequently cocked the rifle and opened fire at random and at ground level, even as he went down the stairs. This was evident in the Appellant’s testimony on page 122 of the record. The Appellant cannot therefore claim the defence of accident.

The last point for consideration is whether in the circumstances of this case, the two lower Courts were right to conclude that the Appellant’s actions were such as showed the intention to cause bodily harm or death.

I am convinced that the Appellant intended to cause the death of the deceased.

My Lords, this appeal is also against the concurrent findings of facts and conclusions of law by the two lower Courts.

My Lords, the intricate and inventive argument of the Appellant’s Counsel in trying to pick holes in the findings of facts of the trial Court and the Court below even though a show of industry is of absolutely no use in the circumstances of this case.

In any event, it is trite that the evaluation of evidence and the ascription of probative value to such evidence is the primary function of the trial Court. This much was given judicial credence by my Lord, Iguh, JSC in OGUONZEE V. STATE (1998) 4 SC 110 at 121 – 122, when His Lordship held thus:
“Before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need re-emphasize that where facts in issue, whether in a criminal or civil proceedings are accepted or believed by the trial Court and no question of misdirection arises, an appellate Court, will not ordinarily interfere with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the finding or that if the same facts were before the appellate Court, it would not have come to the same decision as the trial Judge. See Ike v. Ugboaja (1993) 6 NWLR (Pt 301) 539; Odofin v. Ayoola, supra; Ogbero Egri v. Ukperi (1974) 1 NMLR 22; Ogundulu & Ors v. Phillips & Ors (1973) NMLR 267 etc. This, as already stated, is because findings of fact made by a trial Court are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an appellant satisfactorily proves that they are wrong. Such trial Courts saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence, the Court of Appeal will not interfere with them. See Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683. An appellate Court may however interfere with such findings in circumstances such as where the trial Court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. See Okpiri v. Jonah (1961) 1 SCNLR 174; (1961) 1 All NLR 102 at 104-5; Maja v. Stocco (1968) 1 All NLR 141 at 149; Woluchem v. Gudi (1981) 5 SC 291 at 295-6 and 326-9.”

I agree with the Court below in its conclusion on page 222 of the record that:

“The evidence available of the entire incident did not avail the Appellant of any of the two defences. He was the aggressor, armed with a loaded gun in the interaction with unarmed civilians. By uncorking Exhibit 4 and firing an entire 15 rounds of live ammunition, the Appellant cannot be absolved of the death resulting from shots fired by him at ground level and in a random manner too. Exhibit 3 shows that the deceased was shot in the head after the Appellant had earlier held his rifle, exhibit 4 to his head in the presence of PW2.”

I can find no perversity in the concurrent findings of facts or legal conclusions of the two lower Courts and the reasoning of both Courts have not in this case led to a gross misconduct of justice. The wanton, gruesome murder of an innocent citizen by the person employed to protect the citizen is horrific and should not be condoned in any society. Policemen are to be properly trained to perform their duties to serve and protect members of the community and not to cause them harm without any legal excuse.

In the circumstances, the conviction for murder and sentence of death of the Appellant is affirmed.
I find no merit in this appeal. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: My learned brother, Ogunwumiju, JSC, obliged me with the draft of the leading judgment just delivered. I entirely agree with the reasoning and conclusion in the leading judgment. The question presented here is whether, in the circumstances of our law, the act or omission of the appellant which caused the death of the deceased was “intentional”, with the full knowledge that death or grievous bodily harm was its probable consequences.

This third ingredient of the offence of murder, as settled by decided cases, has to depend on the circumstances of the crime, Ogba v. State [1992] LPELR-2273 (SC), Akinfe v. state [1988] 3 NWLR (pt. 85) 729; Akpan v. State [2008] WRN 130.

This is more so, particularly on the premise that the appellant had maintained throughout the trial that the murder incident had occurred by accident. The question, therefore, is whether this defence would avail an accused person in the context of a crime of this nature where the requisite mental state of voluntariness for the commission of the crime should be done with a necessary mental element.

In considering the defence of accident under Section 24 of the Criminal Code, Oputa JSC (of blessed memory) in the case of Paul Onye v. State [1984] 10 SC 81, defined it thus:
“An accident is the result of an unwilled act and means an event without the fault of the person alleged to have caused it.”
See Iromantu v. State [1964] All NLR 311; Chukwu v. State [1992] 1 NWLR (pt. 217) 255; State v. Nwabueze [1980] 1 NLR 41, 44; Maiyaki v. State [2008] LPELR-1823 (SC).

In adverting to the circumstance of this crime so as to determine the circumstances in which the accused person killed the deceased person, one has to examine the evidence presented at the trial Court. The appellant, during his cross-examination, testified to the procedure by which an AK47 rifle is handled, that is, the act of corking and uncorking and the implication of both acts.

He confirmed therein that the AK4 7 rifle, “Exhibit 4,” will not fire unless it is corked. PW2, a prosecution witness, testified that the appellant had previously, during the altercation, pointed the AK47 rifle which was loaded with 15-live ammunition at PW2 and the deceased person, before he was cautioned by his colleague. The same appellant subsequently corked the rifle and opened fire at random and at ground level, even as he went down the stairs. An act cannot be said to be an accident if it was intentional or foreseeable.

I have no doubt that the Prosecution proved their case beyond reasonable doubt. It is settled that the accused person, as in the instant case, cannot take refuge on a defence of accident for a deliberate act even if he did not intend the eventual result. In Nwabueze v The People of Lagos State (2018) 11 NWLR (pt. 1630) 201, 221, I had this to say on the defence of accident:
“Now, my understanding of the extant jurisprudence on the defence of accident… is this – for an event to qualify as an accident, it must be the result of an unwilled act: an event which occurs without the fault of the person alleged to have caused it or an event, totally, unexpected in the ordinary course of events. See Adelumola v The State [1988] 1 NWLR (pt 73) 683; 692; Oghor v The State [1990] 3 NWLR (pt 139) 484; Thomas v State [1994] 4 NWLR (pt 337) 129; Adekunle v State (2006) LPELR – 107 (SC) 11; E-F; [2006] 14 NWLR (pt 298) 131…
See C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd (1988); K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); A.-G Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Books Ltd, 1988) passim.”

The appellant has joined those set of policemen who use the guns, issued to them for the protection of innocent citizens of this country, to snuff out the life innocent persons like the deceased person. Coincidentally, the deceased person is a fellow policeman. These police man, when apprehended, turn round to hide under the cover of “accidental discharge.” I am of the firm view that the appellant deserves to be punished for what he has done.

I also note that these are concurrent judgments and findings of fact by the two lower Courts. The law is settled that the trial Judge, who had the opportunity of seeing, hearing and watching the demeanor of the witnesses, is in a better position to assess the credibility of the witnesses. This Court cannot, therefore, say that it is wrong in accepting the evidence of the prosecution witnesses, in preference to the evidence of the defence witnesses.
The trial Court, in the instant case, was satisfied that the Prosecution had discharged the onus of proving the guilt of the accused person. The lower Court has confirmed same. I see no reason to arrive at a divergent opinion on this It is for these, and the more elaborate reasons ably set out in the leading judgment, that I too find that this appeal lacks merit, Accordingly, I too shall enter an order dismissing this appeal for being unmeritorious.
Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Ogunwumiju, JSC, and I agree with him that this appeal lacks merit. Clearly, the defence of accident cannot avail the Appellant because an event, which occurs by accident, connotes an act that is totally unexpected, unwilled, unintentional and without any fault, as against an act, which is deliberate, willed, or intentional – seeAdelumola V. State (1988) 1 NWLR (Pt. 73) 683, wherein Oputa, JSC, aptly observed as follows –
“It seems to me that the expression, “an event which occurs by accident”, used in Section 24 – describes an event totally unexpected by the doer of the act and also not reasonably to be expected by any ordinary person, the reasonable man of the law; in other words, the test is both subjective from the standpoint of the doer of the act, as well as objective from the standpoint of the ordinary man of common prudence. The event should, to qualify as accidental, be a surprise both to the doer of the act that caused it, and a surprising thing to all and sundry. An event is thus accidental if it is neither subjectively intended or objectively foreseeable by the ordinary man of prudence.”
In other words, a willed deliberate act negates the defence of accident – see Umoru V. State (1990) 3 NWLR (Pt. 138) 363 and Thomas V. State (1994) NWLR (Pt. 337) 129/142 wherein this Court also held that an Accused Person “cannot take refuge on a defence of accident for a deliberate act even if he did not intend the eventual result”.

In this case, even if Appellant did not intend to kill the deceased, the very act of corking the AK47 Rifle and holding the trigger until all the ammunition in the magazine was finished cannot be anything else, but a deliberate act, and the two lower Courts were right to so conclude. Thus, the concurrent findings of the two lower Courts cannot be faulted.

It is for this and the other well-articulated reasons in the lead judgment that I also dismiss this appeal and affirm the judgment of the Court of Appeal.

ADAMU JAURO, J.S.C.: I have had the advantage of reading in advance the leading judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JSC. I am in complete agreement with the reasoning and conclusion contained in the said judgment, to the effect that the appeal is lacking in merit and ought to be dismissed. I join my brother in dismissing the appeal.
Appeal dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, HELEN MORONKEJI OGUNWUMIJU, JSC. I agree with the reasoning, conclusions, decisions, including the orders therein.

Appearances:

C.O.P. Emeka, SAN, with him, D.C. Jude Okeke For Appellant(s)

Absent For Respondent(s)