HENRY OJUKOKAIYE v. THE STATE (2015)

HENRY OJUKOKAIYE v. THE STATE

(2015)LCN/8032(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of November, 2015

CA/L/971C/2008

RATIO

CRIMINAL LAW: THE CHARGE OF MURDER; WHAT THE PROSECUTION MUST PROVE TO SECURE A CONVICTION IN A CHARGE OF MURDER

It is well settled that in order to secure a conviction in a charge of murder, the prosecution must prove:
a. that the deceased had died
b. that the death of the deceased was caused by the accused
c. that the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence,
Ubani vs. State (2003) 18 NWLR Pt 851 pg 224, Uguru vs. State (2002) 9 NWLR Pt 771 pg 90, Igabele vs. State (2006) 6 NWLR Pt 975 Pg 100, Adava vs. State (2006) 9 NWLR Pt 984 Pg 155. per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: ONUS OF PROOF; WHICH OF THE PARTIES HAS THE ONUS TO PROVE BEYOND REASONABLE DOUBT IN CRIMINAL CASES

In a murder charge, the onus is on the prosecution to prove beyond reasonable doubt, not only that the act of the accused person could have caused the death of the deceased but that it actually did. Audu vs. State (2003) 7 NWLR Pt 820 Pg 516 Uguru vs. State (supra) per. UZO I. NDUKWE-ANYANWU, J.C.A.

CRIMINAL LAW: THE OFFENCE OF MURDER; WHAT MUST BE ESTABLISHED WHEN IT IS ALLEGED THAT DEATH RESULTED FROM THE ACTS OF AN ACCUSED

It is trite that in every case, it is alleged that death resulted from the acts of an accused, a causal link between the death and the act must be established and proved beyond reasonable doubt. The cause of death must be proved see Oforlete vs. State (2000) 12 NWLR Pt 631 Pg 415, Oche vs. State (2007) 5 NWLR Pt 1027 Pg 214, Cause of death can be proved by direct evidence like in this case. The deceased died from injuries occasioned by the gun shot wounds. Uguru vs. State (supra), In the present case there was no intervening factor. per. UZO I. NDUKWE-ANYANWU, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ACCIDENT; WHEN CAN THE DEFENCE OF ACCIDENT AVIAL AN ACCUSED PERSON

It is trite that a person is not criminally responsible for an act or omission which occurred independently of the exercise of his will, or for an event which occurred by accident “Accident means an event without apparent cause, unexpected, unforeseen cause of events, unintentional act, chance etc” Agbo vs. State (2004) 7 NWLR Pt.873 Pg. 546, Onyia vs. State (2006) 11 NWLR Pt.991 Pg. 267. An accused person seeking to rely on the defence of accident must explain how the accident occurred and be subjected to cross examination. Where he fails to testify, the law would presume that the defence is not given in evidence. Where also he fails to prove the accident by credible evidence, it is bound to fail. R v. Akerele (1941) WACA Adekunle vs. State (2006) 14 NWLR Pt 1000 Pg 717. per. UZO I. NDUKWE-ANYANWU, J.C.A.

POLICE: DUTY OF A POLICE OFFICER; THE DUTY OF A POLICE OFFICER TO HANDLE A WEAPON WITH DUE CARE

When a person, a Police officer is handling a weapon, due care must be taken. A police officer is trained in the act of handling weapons. The story that it was an accident was not proved by the Appellant. Where the Appellant puts up a defence of accident, the onus of proof of accident lies on him. per. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO. I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

HENRY OJUKOKAIYE Appellant(s)

AND

THE STATE Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered on the 7th day of March, 2008 by Justice A. A. Oyebanji.

The Appellant as an accused person, was charged before the High Court of Lagos State holden at Ikeja [hereinafter referred to as the trial court), on an information of a sole count of murder contrary to Section 319(1) of the Criminal Code, Cap 32 Vol. 2 Laws of Lagos State.

The particulars of the offence stated that on or before the 1st day of September, 2001, the Appellant murdered one Corporal Agboola Oyeniran, at Church Bus Stop, Ipaja.

Upon arraignment, the Appellant pleaded “Not Guilty” to the charge and the case proceeded to hearing. To prove its case, the prosecution called five witnesses and tendered twelve exhibits while the Appellant testified on its own behalf as DW and called no other witness nor tendered any exhibit. The case of the prosecution goes thus:
On the day of the incident at Church Bus Stop, the Appellant (in police uniform) and two other officers (in mufti) stopped a Veragon Volkswagen bus and ordered all passengers in the bus to alight from

the bus. The deceased who was one of the passengers in the bus alighted and brought out his identity card to show he was also a police officer. He also brought out his service pistol to avoid any embarrassment should it be discovered that he was carrying a gun. At that point he was asked to surrender his gun which he refused. The team of policemen forced the deceased to surrender his gun but he refused. This resulted in a struggle between the team of police officers and the deceased over the deceased’s pistol. The wife of the deceased Toyin Agboola who was also one of the passengers in the bus pleaded with the team of policemen and explained that her husband is one of theirs, but her plea fell on deaf ears. As the struggle intensified, the deceased then agreed to surrender his gun only to the Divisional Police Officer at the Appellant’s police station. One of the police officers in the team, corporal Ladipo then left the deceased and went to start their bus so that the deceased can ride in the bus with them to the station. As the deceased was boarding the bus, the Appellant pulled him back and insisted on disarming him before they left for their station. The

deceased maintained he will only surrender his gun to the DPO. The Appellant then shot him at his stomach.

However, the Appellant’s own story was slightly different. It briefly goes thus – he spotted the Veragon Volkswagen bus as it was driving recklessly and stopped it. He ordered that all passengers to alight from the bus but the deceased refused to alight. But when the deceased finally alighted, the deceased brought out a gun and opened fire. As he was running to safety he slipped, jumping over a gutter and in the process two of his bullets exploded into the air. After which he noticed the deceased was neutralized. The deceased was then taken to the station, it was then he knew the deceased was a police officer and he was subsequently rushed to the hospital.

In his defence, the Appellant had proffered the defence of accident under Section 24 of the Criminal Code, self-defence and the defence offered under Police Force Order 237. At the conclusion of the trial, the court found the Appellant guilty as charged. He was convicted and sentenced accordingly.

?Dissatisfied, the Appellant appealed against the said judgment to this court vide his Amended Notice of Appeal

containing 13 grounds of appeal. In accordance with the rules of this court, the parties through their counsel filed and exchanged their briefs of argument. The Appellant’s brief of argument was filed on the 8th day of June, 2015 the Respondent’s brief was filed on the 8th day of April, 2013 but deemed properly filed on the 23rd day of June, 2015.

In the Appellant’s brief prepared by O. O. Onyire Esq, four issues were distilled from the grounds of appeal for determination as follows:-
1. Whether the Learned Lower Court Judge properly evaluated the evidence tendered before it?
2. Were there material conflicts in the evidence of the Prosecution Witnesses which rendered the evidence tendered by the Prosecution unreliable and can be conviction of the Appellant?based on such unreliable evidence be sustained and upheld?
3. Whether the Learned Lower Court Judge was right when he held that the defences of self-defence; accident and the defence available to the accused person (Appellant) under the Police Force Order 237 do not avail the Appellant in this case?
?4. Whether the Judgment of the Learned Lower Court Judge is not unreasonable and unwarranted in the

circumstances?

The Respondent, however in its brief of argument prepared by Rotimi Odutola Esq, adopted the issues formulated by the Appellant.

ISSUE 1, 2 & 4
Learned Counsel for the Appellant argued issues 1, 2 and 4 together. In these issues Counsel reiterated the settled principle of law about the prosecution’s burden of proof in criminal trial which is proof beyond reasonable doubt and which never shifts. He cited Section 137 of the Evidence Act and the case of Alonge vs. IGP (1959) 4 FSC 203 @ 204. He also referred to the ingredients of the offence of murder and submitted that the prosecution failed to prove all the ingredients especially the proof that it was the act or omission of the Appellant which caused the death of the deceased and that such act was intentional with knowledge that death or grievous bodily harm was its probable consequence. He submitted that the evidence of the Prosecution to prove the 2nd ingredient is unreliable in view of the material contradictions in the evidence of the prosecution witnesses on that point. Such material contradiction included:
1. Contradiction between the evidence of Pw1, Pw3 and part of the evidence of Pw2 to

the effect that the appellant shot the deceased in the stomach vis-a-vis part of the evidence of Pw2, evidence of Dw and Exhibit D and D1 to the effect that the appellant was issued 20 round of ammunition and expended two which he shot into the air.
2. Contradiction between the evidence of Pw4 and Pw5 regarding which of the two guns (barretta gun and Brownie pistol) was submitted along with AK 47 rifle to Pw5 for examination.
?3. Contradiction between the evidence of Pw5 (who testified to the fact that Corporal Ladipo Oguntola’s barretta gun contained residue of gun propellant powder which is an indication that it was fired) and Exhibit D and D1 which states that Corporal Ladipo Oguntola collected 8 rounds of ammunitions and returned 8 rounds of ammunitions.

Counsel further contended that these contradictions in the evidence of the prosecution were not explained by the prosecution. He described the explanation provided by PW4 referred to by the trial judge at page 326 of the record of proceeding as speculative and not enough to fully explain the contradictions in the prosecution’s case and that the benefit of the doubt that arise therefrom ought to have been

resolved in favour of the Appellant. He submitted that the learned trial judge was wrong to have relied on such speculative explanation to arrive at its decision. He relied on the case of Onubogu vs. Queen (1974) 9 SC; Asuquo Williams vs. The State (1975) 9-11 SC 87; Vincent U. Egharevba vs. Dr. Orobor Osagie (2010) ALL FWLR (Pt 513) 1255.

Counsel also submitted that it is the duty of the trial court to evaluate all the evidence adduced by the parties before reaching a just decision. He cited the cases of Alfred Usiobaifo & Anor vs. Christopher Usiobaifo & Anor (2001) FWLR (Pt 61) 1784; Emmanuel Uzoewulu & Anor vs. Ugwueze Ezeaka & Ors (2001) FWLR (Pt 46) 932; Gen. Muhammadu Buhari vs. INEC (2008) 12 SC (Pt 1) 1. He contended that the evidence of PW4 and PW5?on that point was not properly evaluated by the learned trial judge. He also mentioned that the evidence of PW2 vis-a-vis DW and Exhibit D and D1 was not properly evaluated. He thus urged this court to re-evaluate the totality of the evidence adduced by the both parties.

He also contended that the unresolved issue such as Exhibit F which shows that the deceased was issued with 6 rounds of

ammunition and returned 3 rounds and the fact the deceased’s gun was not examined by PW5?raises serious and reasonable doubt which ought to be resolved in favour of the Appellant.

On issue No. 1, the Respondent’s counsel also referred and stated the three ingredients the prosecution is required to prove to succeed on a charge of murder. He relied on Igabele vs. The State. Learned Counsel picked the ingredients one after the other. On ingredient No. 1, counsel contended that the evidence on record showed that the Appellant shot the deceased with his AK 47 rifle and that the deceased died as a result of the injuries. He referred to the evidence of PW1, PW2 and PW3 along with Exhibit B and B1 -interim report of cause of death of the deceased. He also contended that the failure of the Appellant to contend in his brief that the deceased died shows that he has admitted that fact. He contended that ingredient, one having been admitted by the Appellant needed no further proof.

He also submitted that in the Supreme Court authority of Emeka vs. State (2001) 14 NWLR (Pt 734) 67 there are three ways of establishing the guilt of an accused person namely;
?a. Eye witness

account
b. Circumstantial evidence and
c. The confessional statement of an accused person

On the issue that the death of the deceased has resulted from the act or omission of the Appellant, learned counsel referred to the eye witness accounts of PW1, PW2 and PW3. He submitted that the death of the deceased had resulted from the acts of the Appellant. It was also established by the fact that the death of the deceased was as a result of the injury sustained from the weapon used by the Appellant.

On the issue that the act or omission of the appellant which caused the death of the deceased was intentional with full knowledge that death or grievous bodily harm was its probable consequences, learned counsel contended that bearing in mind the nature of the weapon used by the Appellant and the severity of the injury caused by the gun, there can be no doubt that the appellant either intended to kill the deceased or cause him grievous bodily harm. He submitted that Appellant’s intention is inferred from his overt acts. He cited Micheal Onyibor Nnamah vs. The State (2005) 9 NWLR (Pt 929) 147. Learned counsel for the Respondent concluded this point by referring to the case of

Ilori vs. State cited with approval in Hassan vs. State (2001) 6 NWLR (Pt 709) 286 where the court held that in a criminal trial, the prosecution has the onus of proving its case beyond reasonable doubt not beyond all shadow of doubt. He thus urged this court to hold that the Respondent proved all the ingredients of the offence for murder beyond reasonable doubt against the Appellant and that the evidence led by the prosecution supported the judgment of the trial court.

On the alleged contradictions in the prosecution’s case, counsel contended that the contradictions, if any, are not material. Besides the trial court have fully adverted its mind to the seeming contradictions and correctly concluded that they are insignificant. The contradictions, it is argued are therefore unhelpful to the Appellant’s cause. Learned counsel relied on Ani vs. The State (2003) 11 NWLR (Pt 830) 142. He also referred to the trial court’s judgment at page 326 of the record of appeal. Furthermore counsel contended that it is the law that the ascription of probative value on the evidence of witnesses at a trial rested with the trial court and it is not the function of an appellate court

to do so or interfere with the finding of facts of the trial court except in certain circumstances. He relied on Balogun & Ors vs. Agboola (1974) 10 SC. He thus urged this court to resolve this issue against the Appellant.It is well settled that in order to secure a conviction in a charge of murder, the prosecution must prove:
a. that the deceased had died
b. that the death of the deceased was caused by the accused
c. that the act or omission of the accused was intentional wtth knowledge that death or grievous bodily harm was its probable consequence,
Ubani vs. State (2003) 18 NWLR Pt 851 pg 224, Uguru vs. State (2002) 9 NWLR Pt 771 pg 90, Igabele vs. State (2006) 6 NWLR Pt 975 Pg 100, Adava vs. State (2006) 9 NWLR Pt 984 Pg 155.

The accused along with two other Policemen accosted the deceased. The full story has been recounted above. It is not in any doubt that the Accused held the deceased and shot at him

with his AK 47 rifle. This immediately showed that the deceased was shot at close range. From the evidence of Pw4 – Investigation Police Officer (IPO), the AK 47 riffle is a very powerful weapon and causes very life threatening injuries.

The range it can be dangerous was given at approximately 70-80 yards as per the ballistician Pw5 and Pw4 – Investigation Police Officer (IPO).

The Accused in his evidence stated that he fell into the gutter and his AK 47 riffle exploded and hit the deceased.

This his story is unbelievable. The three eye-witnesses were sure about what transpired before the accused pointed a gun at the deceased and shot him in the stomach. The deceased immediately fell down. He and his wife kept on shouting for help to be taken to the hospital. The trio of the Policemen instead of taking him to the hospital which is the logical step to take, took him first to the Police station. The deceased was thereafter taken first to a private hospital then transferred to Ikeja General Hospital where he died two days latter.

It is trite that in every case, it is alleged that death resulted from the acts of an accused, a causal link between the death and the act

must be established and proved beyond reasonable doubt. The cause of death must be proved see Oforlete vs. State (2000) 12 NWLR Pt 631 Pg 415, Oche vs. State (2007) 5 NWLR Pt 1027 Pg 214, Cause of death can be proved by direct evidence like in this case. The deceased died from injuries occasioned by the gun shot wounds. Uguru vs. State (supra), In the present case there was no intervening factor.

The deceased died two days after he sustained the gun shot injuries. The chain of events from the gun shot and his death was not broken. The accused was pinned down to the death of the deceased. Aiguoreghian vs. State (2004) 3 NWLR Pt 860 Pg.367.

The Appellant has strenuously argued that there were material contradictions in the evidence of the Plaintiff witnesses. The Appellant’s Learned Counsel catalogued many instances of what he thought were contradictions. The question to be asked is, were the contradictions material? The answer to this is NO! see Ebeinwe vs. The State (2011) 7 NWLR Pt 402 where Mukhtar JSC as he then was held;
“It is trite law that it is not every discrepancy, contradiction and inconsistency that will affect the substance of a criminal case, that has

been proved with credible and unchallenged evidence that will upset the judgment of a trial court. To succeed in upturning a decision, the contradiction must be relevant and of great magnitude that it would cause miscarriage of justice”
See Omisade vs. Queen (1964) 1 All L.R Pg 233, Queen vs. Ekanem (1960) SC Pg 14, Queen vs. Iyanda (1960) 5 FSC pg 264.
A material contradiction must go to a material point in the prosecution’s case as to create doubt in the case that the Appellant is entitled to benefit from See Dibie vs. State (2007) 9 NWLR Pt 1038 Pg 30. Ahmed vs. State (2002) NWLR Pt 746 Pg 622.

All the discrepancies highlighted by the Appellant are very minor and do not go to the substance of the case in issue. Discrepancies to the effect, whether there was a struggle between the deceased and the accused, whether there were gun shots heard and who fired what. These are minor discrepancies that do not affect the outcome of this case.
‘It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before

the court and thus necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom’ See Theophilus vs. State (1996) 1 NWLR (Pt 423) 139 SC, Chukwu vs. State (1996) 7 NWLR (Pt 463) 686 SC”
The Appellant’s Counsel in his brief stated himself.
“Both PW1, PW2 and PW3 however testified that the Appellant shot the deceased with his gun in the stomach and Exhibits “B” and “B1″ – Medical Certificate of Cause of Death were tendered in evidence”

This is the major thing that happened in this case. That the Appellant shot the deceased with his AK 47 riffle and that the deceased died a few days later from the gunshot wounds. PW1, PW2 and PW3 were eye-witnesses to the incident. Each gave a vivid picture of what transpired. There are indeed discrepancies as to the story told by three people at the scene. They repeated the happenings in their own different perspective. However the important part of the story and they were, all ad idem was that the Appellant shot the deceased in the stomach at close range with his AK 47 riffle. As a result of this, the deceased died from his wounds. None of the PWs ever mentioned that the deceased

released any shots from his service Pistol.

The Appellant was not able to challenge this successfully nor could he debunk this assertion. The trial court found as a fact that the Appellant did indeed shoot the deceased causing his death. The Appellate Court will not disturb this finding as the trial judge evaluated the evidence of the eye witnesses and other witnesses. It will be recalled that the Appellant testified for himself and did not call any other witnesses. The other two Police officers who were also eye witnesses were not called to debunk the prosecution’s case see Omisade vs. State (supra) Egwe vs. State (1982) 9 SC Pg 174.

There was no contradiction as to the important element of this case, being that the Appellant shot the deceased in the stomach. See Dibie vs. State (supra).

Was the act of the Appellant intentional? The law is settled that an intent to kill can be inferred from the nature of the wound inflicted on the deceased per Uwais CJN as he then was in the case of Orisakwe vs. The State (2004) 12 NWLR Pt 887 Pg 258 Ejelikwu vs. State (1993) 7 NWLR Pt 307 Pg 534.In the English case of Hyam vs. DPP (1974) 2 All ER Pg 43. The House of Lords held:
“an

intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in death or grievous bodily harm to the victim”
Lord Hailsman commenting on this in the case of Hyam vs. DPP (supra) said:
“If a man in full knowledge of danger involved without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the extent as if he had actually intended the consequence to follow irrespective of whether he wishes it”
See also Gamba vs. State (2001) 2 ACLR Pg 221.

In the present case, the Appellant who shot the deceased in the stomach at close range with his AK 47 riffle intended to inflict on the deceased grievous bodily harm or death. The deceased died and therefore it would be right to say that the Appellant intended to inflict grievous bodily harm on the deceased which resulted in his death.

In criminal cases the burden of proof is on the prosecution to prove the guilt of the accused beyond reasonable doubt.

This burden of proof lies throughout on the prosecution to establish the guilt of the Appellant beyond reasonable doubt and it never shifts, Ani vs. State (2003) 11 NWLR Pt 830 Pg 142, Ifejirika vs. State (1999) 3 NWLR Pt 593 Pg 59, Igabele vs. State (supra).

In the present case the prosecution proved its case by the vivid evidence of the Pw1 , Pw2 and Pw3 who were eye witnesses to the crime.
These issues are therefore resolved against the Appellant. ISSUE 3
Learned counsel for the Appellant submitted that assuming without conceding that it was a bullet fired from the Appellant’s AK 47 rifle that killed the deceased, he contended that the discharge was accidental as it was neither intended nor foreseeable. He referred to the evidence of Appellant to the effect that his legs slipped as he was jumping over a gutter to safety amidst the exchange of shooting and in the process, two bullets exploded into the air from his already cocked gun. He also referred to Section 24 of the Criminal Code and the case of Adelumola vs. The State (1988) 1 NWLR (Pt 73) 683.

Alternatively, Counsel also submitted that the defence of self-defence and the defence offered under Police Force

Order 237 will also avail the Appellant based on the evidence of record to the effect that there was a struggle between the police and the deceased over the deceased’s gun and in the process several shots were fired by all the parties. He referred to the evidence of PW1, PW2, PW3 and DW1/Appellant.

On the defence of accident learned counsel for the Respondent submitted that there is no credible evidence before the court to prove that the Appellant’s act was accidental. He submitted that an act is accidental if it is neither intended nor foreseeable by the ordinary man of reasonable prudence. He relied on the case of Adelumola vs. The State (supra). He contended that the Appellant ought to have foreseen that his gun which was corked could trigger off at any moment. Thus the defence of accident cannot avail the Appellant.

On the defence of self-defence, counsel contends that there is no evidence or records to show that the deceased shot or exchanged bullets at the scene. Thus self-defence does not arise in this case. Counsel also submitted that assuming and not conceding that the Appellant was in imminent danger, he contended that the Police Force Order 237 only

allows an officer who is in apprehension of imminent danger to shoot in self-defence and shoot the assailant on the legs and not his stomach. Thus that defence also fails.

He urged this court to dismiss this appeal.
The Appellant claimed that the shooting of the deceased was accidental as he slipped whilst trying to jump over the gutter and his AK 47 riffle discharged.

This is the story of the Appellant which is contrary to the evidence of the Pw1 , Pw2 and Pw3 who were eye witnesses to the crime.

The law is settled that an intent to kill can be inferred from the nature of the wound inflicted on the deceased per Uwais CJN as he then was in the case of Orisakwe vs. The State (2004) 12 NWLR Pt 887 Pg 258 Ejelikwu vs. State (1993) 7 NWLR Pt 307 Pg 534.

accident. The Appellant did not call any witness in proof of his defence. There were two other Police officers at the scene with him. The Appellant failed to prove his assertion that the shooting was an accident.

An accused person seeking to rely on the defence of accident must explain how the accident occurred and be subjected to cross examination. Where he fails to testify, the law would presume that the defence is not given in evidence. Where also he fails to prove the accident by credible evidence, it is bound to fail. R v. Akerele (1941) WACA Adekunle vs. State (2006) 14 NWLR Pt 1000 Pg 717.

However, in this case, the Appellant held unto the deceased and shot him at close range causing the injuries that resulted in his death a few days later. See the case of Chukwunyere vs.

State (2014) LPELR 23779 where Mbaba JCA quoted with approval the English case of Hyam vs. DPP (1974) 2 All ER Pg 43. The House of Lords held:
“an intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in death or grievous bodily harm to the victim”
Lord Hailsman commenting on this in the case of Hyam vs. DPP [supra) said:
“If a man in full knowledge of danger involved without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the extent as if he had actually intended the consequence to follow irrespective of whether he wishes it”
See also Garuba vs. State (2001) 2 ACLR Pg 221.

In the present case, the Appellant who shot the deceased at close range with his AK 47 riffle intended to inflict on the deceased grievous bodily harm or death. The deceased died and therefore it would be right to say that the Appellant intended to inflict grievous bodily harm which resulted in the death of

the deceased. The defence of accident cannot avail the Appellant.
The Appellant also argued that he fired in self defence. The Appellant cannot plead defence of accident and self defence at the same time.
However, there was no evidence that there was any other gun shots other than the ones shot by the Appellant. All the eye-witnesses never mentioned that any other person shot on that day.
Therefore, what was the Appellant defending himself from? The deceased refused to surrender his service pistol to them and insisted on being taken to the Police Station to surrender his service pistol.
As argued by the Respondent, under the Police Force Order 237 if you want to disarm a criminal in the cause of an altercation, you ought to shoot to maim on the legs. You don’t shoot in the stomach where injuries may be life threatening.
The defence of self defence was not proved by the Appellant and therefore cannot avail him. This issue also fails. The four issues articulated by the Appellant have all been resolved against him.
This appeal is devoid of any merit. It therefore fails. This appeal is dismissed. The conviction and sentence of the trial Judge is hereby

affirmed.

JOSEPH SHAGBAOR IKYEGH. J.C.A.: I had the pleasure to read in print the succinct judgment prepared by my learned brother, Uzo. I. Ndukwe-Anyanwu, J.C.A., with which I agree and adopt as my judgment with these few words by way of emphasis.

The appellant made a voluntary statement to the police, Exhibits C and C1 vide pages 35 – 38 and 52 – 55 of the record of appeal (the record). The statement was made on 04-09-01 when the matter was fresh in the appellant’s mind. Page 37 of the record which contains the statement of the appellant to the police, Exhibit C and C1, stated that the deceased came down from a bus when he was ordered by the appellant to do so and soon after the deceased came down he fired a shot from the pistol he was holding but that the shot was not particularly aimed at the appellant, and to use the words of the appellant –
“I have to reply him by shooting on him finally the bullet hit him at the stomach. I fired two rounds of ammunition accidentally. It met him and he fell down and I picked the pistol from him”. (My emphasis).

The same part of the appellant’s statement to the police, Exhibit C and C1, is contained in page 54 of the

record.

The evidence of the appellant in open court narrated in page 229 of the record in particular that his other two colleagues who were on patrol with him engaged the deceased in the exchange of gun fire when the deceased refused to come down from the motor-vehicle and that the deceased was the first to open fire with his pistol on the other two colleagues of the appellant. It was at that stage that, to use the words of the appellant in page 229 of the record –
“… myself I was looking, as I was about to jump. I was (?) there was a pit, there was a gutter beside me, I wanted to jump so that I would be able to come to rescue, by that time there was firing between the other … I was hearing firing from the other side he is also firing to the other side because I was distance. Then as I was about jumping and my legs slippery from … in other to jump the gutter then my gun now exploded and the ammunition now discharged to the air and they were still firing themselves then later all of a sudden. I saw him on the ground. Before I could gain myself to come back to the point the other corporal has … to the place to disarm him. After disarming him, then the

other boy has escaped to the station according to him he escaped because he was not with arm the other boy was with … the other corporal was with arm then he escaped to the station to alert the DPO who is on the ground. So before I could get to that point, the other corporal has arrested him. disarmed him and then … disarm him of a pistol found on him …”
(my emphasis).

Page 135 of the record indicates that the appellant’s statement to the police, Exhibits C and C1, were admitted in evidence without objection. The appellant is thus stopped from denying the statements, Exhibits C and C1, on appeal vide Shurumo v. State (2010) 19 NWLR (Pt.1226) 73 at 90, 108 – 109.

The statement of the appellant to the police, Exhibits C and C1 (supra), with emphasis on the underlined portion thereof (supra) and the testimony (supra) of the appellant with emphasis on the underlined portion thereof tell a discordant or polar story. In other words, both Exhibits C1 and C2 (supra) and the testimony (supra) of the appellant are materially at variance and render them unreliable vide Agbo v. State (2006) 6 NWLR (Pt.977) 545, at 571 – 572.

?It follows that the defence of self defence

and accidental discharge are neither here nor there in the statement to the police, Exhibits C and C1, and the testimony of the appellant at the court below vide Adekunle v. State (2006) 14 NWLR (Pt.1000) 717 and Agbo v. State (supra) on defence of accidental discharge of gun handled by a policeman.

The PW1 testified in page 79 of the record that the appellant shot the deceased with gun in the abdomen under these circumstances –
“They said he should release the gun the deceased said he cannot release the gun until they get to the station. As the deceased said your second has entered the vehicle let us go to the police station the policeman with the long gun put the gun on the deceased’s abdomen and shot him in the stomach. The deceased fell down, his identity card dropped Ladi picked the gun and the identity card”.

The PW1 identified the appellant as the person that shot the deceased vide page 80 of the record. The PW1 was cross-examined extensively vide pages 81 90 of the record. No question was asked the PW1 on accidental discharge of the appellant’s gun and/or whether the appellant acted in self defence at the material time. No other defence was disclosed by

the evidence of the PW1 save the determined effort of the appellant to dispossess or receive the pistol from the deceased on the spot.

The same approach followed the evidence of PW2 in pages 91 – 99 and 116 – 119 of the record whose cross-examination did not touch on the defence of accident and self defence, or any other defence, except the unswerving posture of the appellant to dispossess or receive the pistol from the deceased on the spot.

Similarly, the PW3 was not cross-examined to suggest or foreshadow the defence of accident and self defence and/or any other defence vide pages 119 – 123 of the record. Likewise the evidence of the PW4 in pages 131 – 145 and 147 – 151 of the record where none and/or any defence available to the appellant was put to the PW4 under cross-examination.
Also, the PW5, the ballistician, was not cross-examined vide his evidence in pages 162- 163 of the record. It was held in Okosi and Anor. v. State (1989) 1 NWLR (pt.100) 642 at 657 that –
“In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at the

trial The witness should be cross-examined to elucidate facts disputed, for it is late at the case of the case to attempt to negative what was left unchallenged; it is even far an exercise in futility to demolish it on appeal?.?”
?See also Agbonifo v. Aiwereoba (1988) 1 NWLR (pt.70) 325 at 342 – 343.

From the totality of evidence it is manifest that the life of the appellant was not in danger of an attack by the deceased. The crux of the dispute was the unyielding determination of the appellant to receive the pistol from the deceased who had not shown the tendency or intention to fire it on the appellant, therefore at the time the appellant fatally shot the deceased on the stomach with his AK 47 rifle, the deceased had posed no threat to the appellant’s life, nor any threat to cause the appellant grievous bodily harm, nor did the deceased’s conduct call for the necessity to take the deceased’s life; so the defence of self defence could not have availed the appellant vide Afosi v. State (2013) 13 NWLR (pt.1371) 329 per the lead judgment of Ariwoola, J.S.C.

Now the defence of accident. In the case of Agbo v. State (supra), the appellant, a

policeman, put up the defence of accident on the ground that the deceased struggled with him over the appellant’s pistol in the course of which the pistol exploded and released some bullets that killed the deceased, but the defence of accidental discharge was rejected by the Supreme Court which upheld the decisions of the High Court and the Court of Appeal inter alia on the issue and dismissed the appeal. See also Adekunle v. State (supra).

Trying to disarm a person who did not pose any threat to others and/or who did not attempt to fire the gun he had at the material time should not have called for the murder of the person that was to be disarmed; all the more so there were three trained policemen on the scene making their number of three against the deceased alone, so to say, therefore there was no reasonable and justifiable cause for the appellant, a trained policeman of considerable years in police service, to have fatally shot the deceased with his AK 47 rifle knowing or having reason to believe that it would result in the death of the deceased vide Olaiya v. State (2015) 11 NWLR (pt.1470) 360 at 375, where my learned brother Akinbami, J.C.A., aptly held

-“… the appellant is aware that death or grievous harm will be the probable result of his deliberate act, he being a trained police officer in the use of firearms, and a law enforcement agent, cannot claim ignorance of how dangerous a loaded gun is and the devastating effect the grave implication if fired at a person. I must note also that the appellant cannot be absolved from the death of the deceased caused with an AK 47 rifle which is more lethal than a machete ….”
See also Adekunle v. State (supra).

Viewed soberly, this is a tragic case of a trigger-prone policeman (the appellant) bent on murdering the deceased, a fellow policeman and/or colleague, in the presence and full glare of the wife of the deceased. I think it is unthinkable to exonerate the appellant of murder in the circumstances of the case.

For these reasons and the compelling reasons contained in the judgment of my learned brother, Uzo .I. Ndukwe-Anyanwu, J.C.A., I too see no substance in the appeal and hereby dismiss it and affirm the decision of the court below sentencing the appellant to death for the murder of the deceased.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity before

today of reading a draft of the judgment just delivered today by learned brother Uzo I. Ndukwe-Anyanwu, JCA. I agree that the Appeal lacks merit and should be dismiss.

I dismiss same and abide the consequential order made in the lead judgment.

? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Appearances
O.O. Oniyire Esq, N.E. Igiewe ? ? ? ? ? ? ? For Appellant

?Rotimi Odutola (Mrs) CSC M.O.J?Lagos ?For Respondent

Appearances

O.O. Oniyire Esq. N.E. IgieweFor Appellant

AND

Rotimi Odutola (Mrs.) CSC M.O.J. LagosFor Respondent