In the Supreme Court of Nigeria

Thursday, January 23, 1997

Case Number: SC.139/1993

















The proper role of the court in a criminal trial is to evaluate all the evidence before it and be sure that the case for prosecution has been proved beyond reasonable doubt and convicted; but if there is doubt, whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused person.


It must be pointed out also that the burden remains the same for the prosecution to prove the guilt of an accused person beyond reasonable doubt.


In our law, the prosecution, in calling all their witnesses as to substance of the offence must have certainty and unanimity in what they testify, if there are divergent testimonies in this regard by these witnesses such divergent testimonies will result in what is known as contradictions.


BELGORE, JSC. (Delivering the Judgment by the Court):

This is an appeal against decision of the Court of Appeal upholding the conviction of the appellant for the murder of two brothers called Dawodu brothers. He was sentenced to death by the trial High Court of Lagos State on 23rd February, 1989. The appellant, a policeman attached to Mobile Unit had, on 17th November, 1987, arrested a taxi driver, Clement Alumona, for some contravention and took him to Adeniji Adele Police Station on Lagos Island. The alleged offence by the taxi driver was at the Mainland. The appellant was accompanied by his colleague in the Mobile Unit P.W. 10, James Onabrakpeya. While reporting the case at Adeniji Adele Police Station, P.W.7, Sebastine Duru, who was a traffic warden, rushed in to alert the police that his colleague, with whom he was on duty at Idumagbo Road junction, was being beaten up by a mob, The traffic warden under attack is P.W. 11, Omogo Ogali. As the P.W.7 was reporting, another person, a civilian this time came to lodge a similar complaint – however, this civilian was never called as a witness and his name was never given; but it was on record that he urged the police to act with immediate dispatch. Michael Omochi, P.W.5, a non-commissioned officer detailed P.W.6, Cpl Ogunmola, to accompany P.W.7 to the scene. One wonders what prompted this inadequate reaction to a serious report of mob-action. However as P.W.6 was going to the scene, the appellant and P.W. 10 joined him in the Mercedes Benz saloon brought by the civilian who came to lodge the report. They all got to the scene at Idumagbo Road junction. PAGE| 2 At the scene, there was a large crowd in the middle of which were P.W. 11, Omogo Ogali, and the driver of a Volvo Saloon. P.W.11 was held by the crowd and P.W.7 in company of two other policemen went to rescue P.W. 11; the appellant went into a different direction.In the middle of the crowd and the attendant commotion, there were two or more rapid gunshots. At this, the crowd started dispersing as everybody ran for cover. The gun shots were from the rifle of the appellant. Another witness reported the gun shots differently: there was a first gun shot followed by two other gun shots, making three gun shots in all. Everybody ran for dear life including P.W.6, P.W. 10 and the traffic warden who went to the scene with the appellant, P.W.7.When everybody had deserted the scene the dead bodies of Saka and Sale Dawodu, two brothers, were on the ground. P.W.6 went to report at Adeniji Adele Police Station and in his trail a few minutes later was the appellant. Shortly after, a crowd arrived at the station with the corpses shouting that these were the people shot and killed by the appellant. P. W.6, P.W.7 and P.W. 10 in their evidence said they heard the gunshots but that they never knew from which gun and who fired them. P.W.12 (Buari Liasu), P.W.14 (Karimu Alabi) and P.W. 15 (Alhaji Yakubu Alao) said they saw the appellant shoot the two brothers. The summary of each of these three civilian witnesses is that on the fateful day they heard some commotion and saw these traffic wardens arguing with a man driving a Volvo car. A crowd gathered round the scene and after awhile one of the two traffic wardens who had left the scene returned later with two mobile policemen, one of whom is the appellant, the two carried rifles. The appellant dragged Sole Dawodu (deceased) from where he stood and held him by the trousers. Later, Saka Dawodu, Sale’s brother arrived and was pleading that Sale be released. The appellant warned Saka not to interfere and as Saka was moving away he was shot twice in the back. He fell. A moment later a shot rang out again from the appellant’s rifle and hit Sole. The two brothers died. All these allegedly occurred with the crowd still in place. The three witnesses said the policemen and the traffic wardens pleaded with the appellant to no avail. These three witnesses were prosecution witnesses. The evidence of the other prosecution witnesses at the scene is interesting. P.W.10, Cpl James Onabrakpeya, got to the scene in the Mercedes saloon of the civilian that went to alert the police station. On alighting at the scene, he saw a Volvo car “surrounded by a large crowd” and fighting was going on. It was when he got to the Volvo car that he heard a shot ring out at which he took to his heels together with Cpl. Ogunmola (P.W.6). Similarly P.W.6 got to the scene with P. W.10 and saw a large crowd in the middle of which was a Volvo car. As he was asking the driver of the car some questions he heard a shot ring out. Looking back he saw the appellant waving his gun and he went back to the police station. On his way to the station he heard two other gun shots; he however admitted in cross-examination that he never recorded in his statement at the station that he heard two other shots. P.W.6 and P. W.10 -ran away on hearing the shots from the gun. The scene, Anikantamo market, is just ten minutes walk to Adeniji Adele Police Station. He admitted that in his statement at the station he wrote that he “tried to calm the situation”, however by his evidence in chief he omitted this and presented an air of someone not running away from the scene. In cross-examination his so-called attempt to calm the situation was to talk to the Volvo driver and the traffic warden. PAGE| 3 The P.W. 11, Omogo Ogali, the traffic warden at the centre of the incident leading to the appellant and others running to the scene, had this to say among others: “I remember 17th November 1987. I was attached to Central Police Station Adeniji Adele Road, Lagos on that day. My hours of duty were 6 am. to 2. p.m. On 17/11/87 I was posted on duty at Idumagbo junction Lagos with another Traffic Warden named Sebastian Duru. On that day i.e. 17/11/87 at about 12.45 p.m. I contravened a Volvo car registration number LA 16 AN for flouting the Lagos State Edict on odd and even number arrangements. I told the driver of the Volvo car to follow me to the station. He refused to do so. He then drove his car dangerously towards me wanting to knock me down.I jumped on the car’s bonnet and the driver drove the car with me on the bonnet to Anikantamo Street, Lagos. The distance between where I contravened the car and from where he drove with me on the bonnet to Anikantamo Street is about the distance between the road at the back of this court to the road in front of it (i.e. between Tafawa Balewa Square and Igbosere Road, Lagos – Court puts this distance at about 100 metres). At Anikantamo Street the driver stopped the car, came out of the car started shouting “Ole, Ole” (thief, thief), and he started beating me.Some people came round and joined the driver in beating me. They tore my uniform. Sebastian Duru who was on duty with me came along and when he saw what was happening to me he quickly ran to the Police Station to lodge a report. He brought along some policemen whom I do not know. Shortly after this, I heard the sound of gunshot. I then became unconscious and I did not know what was happening. After a while. I recovered and I went to the police station. The people had stopped beating me when the policemen came. I was unconscious hence I did not know what was happening after a while. I do not know whether or not the people molested the policemen when they came. I did not know the accused person until after the incident when I was told certain things at the police station. From the Police Station I was taken to the Police Clinic at Falomo where I was admitted for one night. I was brought from Falomo to go and write a statement at Adeniji Adele. Cross-Examined by Mrs. Ofulue: I did not see Sebastian Duru when he came back to the scene at Anikantamo Street, I did not see him when he came back with the policemen. I sustained injury in my mouth when the people were beating me. Apart from the driver of the Volvo car, I cannot recognise any of the members of the public who joined the driver in beating me. I cannot estimate the number of persons in the crowd that gathered while I was being beaten up. PAGE| 4 I am unable to say for how long I was unconscious. I now say I had recovered from my unconscious state when heard the gunshot.” (sic) This evidence represents graphically what led to the reinforcement of the appellant and two others to the scene, an obviously inadequate action. The evidence of P.W.11 remains uncontradicted. He was not only attacked by the mob after the Volvo car driver almost ran him over with the car, but he was beaten to unconsciousness whereby he never knew much of what happened during the shooting incident. The only person this witness could remember is the driver of the Volvo car who almost killed him. This driver of the Volvo car has disappeared completely from this case as if he was irrelevant. The Volvo car to this day has not been claimed where it was towed to, i.e. the Adeniji Adele Police Station. Has the car no registration number? Could the owner not be found’? These are the mysteries of this case. Could it be silence of conspiracy? All these have not been explained by the prosecution. Why was the driver of the Volvo car attempting to run over the P.W. I1 having driven the vehicle so recklessly towards him? The appellant, like his colleague, held a rifle of K-2 make. But it is pertinent to find out how many shots were fired from the appellant’s gun. There is no doubt whatsoever that shots from the appellant’s gun killed the Dawodu brothers. The uncontradicted story of P.W. 11 graphically indicates the scene arrived at by the appellant and other policemen from Adeniji Adele Central Police Station. It was a scene of a large crowd that had beaten the P.W.11 to state of unconsciousness. The reinforcement of three policemen and a traffic warden sent by an inspector was certainly inadequate. The evidence of Yakubu Alao (P.W.15) where he said: “The traffic warden returned to the scene with two mobile policemen. The three of them joined the traffic warden at the scene. I saw the four of them running on the street and around the market.” Could not be true as the centre of activity was at the place where the Volvo car was with the P.W.11 on the ground lying unconscious. Also untrue is the evidence of this witness that the other policemen pleaded with the appellant not to shoot and that he shot and that he then ran away from the scene. It was four days later he (P.W.15) showed up at the Police Station to volunteer as a witness. In his defence the appellant, a private with 23 Mobile Police Force, Keffi street, Lagos, gave evidence, remaining uncontradicted. It was the manner that a taxi driver drove past him and the others at the road block that led him to suspect that he might have armed robbers in the car; this led to the pursuit of the taxi in another car. The taxi was finally arrested at Ijora but its passengers were no longer inside. The taxi then headed back to the Island to the Central Police Station. It was while the complaint was being lodged that the incident leading to this case was reported as explained earlier in this judgment. As Cpl. Ogunmola was instructed by Inspector Omachi to go to the scene, Ogunmola said as the complaint was about a mob action he could not go alone and the appellant and his mate volunteered to follow him. At the scene, he saw a large mob with one of them holding a traffic warden (P. W. 11) by the shirt; when the man holding the traffic warden saw them, he let go his shirt at which P.W. 11 fell to the ground. As his colleagues were trying to lift up the P.W. 11, he, the appellant, arrested the man who he saw holding the P.W.11. The mob then became hostile saying in pidgin English “who carry Mobile Policemen come here?” “Is that a matter for Mobile Policemen?” “These thieves have come here again”. With these hostile remarks from the mob he felt something at the back of his neck, and turning round he found he had been hit with a stick; others rushed at him; some gripped him and tried to disarm him. A struggle then ensued, and the mob attempted to take his gun, it accidentally fired and a bullet hit his left ear. He was issued four bullets and all went out at once. At this, everybody ran away

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