NANNA v. STATE (2020)

NANNA v. STATE

(2020)LCN/13978(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/116C/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

CPL GODWIN NANNA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN OF PROOF IN CRIMINAL PROCEEDINGS

It is trite that the burden of proof is squarely on the Respondent from beginning to finish in a criminal trial because it does not shift, see NWEZE VS. STATE (2017) LPELR-42344(SC) which held thus:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See: Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511 at 531; Solola vs. The State (2005) 5 SC (Pt. 1) 135.” Per GALINJE, J.S.C
The standard of proof is also settled and it is beyond reasonable doubt AS REITERATED IN THE case of OSETOLA & ANOR. V. STATE (2012) LPELR-9348(SC) as follows:
“Section 138 (1) of the Evidence Act makes it mandatory that the standard of proof required in criminal trials by the prosecution is proof beyond reasonable doubt. Proof beyond reasonable doubt was explained in Miller v. Minister of Pensions 1947 2 ALL E. R. p.372 at 373 as follows: Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted to fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice. See LORI & ANOR VS. STATE 1980 12 NSCC 269.” PER RHODES-VIVOUR, J.S.C. PER NIMPAR, J.C.A.

INGREDIENTS OF THE CRIMINAL OFFENCE OF MURDER

The offence of murder has settled ingredients identified by our superior Courts which must all be proved beyond reasonable doubt to justify a conviction and these were restated in the case of IDIOK VS. STATE (2008) LPELR-1423(SC) thus:
“It is now firmly settled that for the prosecution to succeed in a murder charge under Section 319(1) of the Criminal Code (as in the instant case) it must prove beyond reasonable doubt that:
(i) There was a killing.
(ii) The killing was unlawful as prohibited by Section 316 of the Criminal Code.
(iii) It was the act or omission of the accused person that caused the death of the deceased.
(iv) The accused intended to cause the death of the deceased.”
See also the cases of GRACE AKINFE VS. THE STATE (1988) 3 NWLR (PT.85) 729 @ 745; (1988) 7 SCNJ 226; OKORO VS. THE STATE (1988) 5 NWLR (PT.94) 255; (1988) 12 SCNJ. 191; OGBA VS. THE STATE (1992) 2 NWLR (PT.222) 164; (1992) 2 SCNJ. 106; AKPAN VS. THE STATE (1994) 9 NWLR (PT.368) 347; (1994) 12 SCNJ 140; AND ABOGEDE VS. THE STATE (1996) 4 SCNJ. 223 just to mention but a few. In other words, where a person is charged with the offence of murder, the prosecution must prove:
(a) Whether the person alleged to have been killed is dead.
(b) The cause of death and
(c) Whether any act of the accused person is the cause of his death. See the case of SULE AHMED (ALIAS EZA) VS. THE STATE (2001) 18 NWLR (PT. 746) 623 @ 641.
On the methods or various ways an offence can be proved, several authorities have identified and settled 3 major ways which are clearly spelt out in the case of IDIOK VS. STATE (supra) as follows:
“The offence of murder, like all other offences, can be proved either by direct evidence or by circumstantial evidence. Direct evidence is evidence given by a witness who saw and watched the act of killing or murder. Circumstantial evidence is evidence given by a person who did not see or watch the act of killing or murder but whose evidence unequivocally leads to the commission of the offence by the accused person.” PER NIMPAR, J.C.A.

ESTABLISHING THE GUILT OF AN ACCUSED PERSON IN A MURDER CHARGE

It is trite that in establishing the guilt of the accused person, the prosecution must prove the link or connection between the appellant in this case and the cause of death, see OCHIBA VS. STATE (2011) 17 LPELR-8245(SC) where the apex Court said:
“In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established proved beyond reasonable doubt. In the course of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process it must also produce vital witnesses to testify for the prosecution.” Per ADEKEYE, J.S.C
The cause of death of a victim must be the act of the accused person and it must be established with certainty, see AIGUOREGHIAN & ANOR VS. STATE (2004) LPELR-270(SC) where TOBI, JSC (of blessed memory) said:
“In Oguntolu vs. The State (1996) NWLR (Pt.432) 503, this Court held that in a charge of murder, the death of the victim must be caused by the act of the accused. See also Ononuju vs. State (1976) 5 SC 1; Onyenankeya vs. State (1964) NMLR 34; Idowu vs. State (2000) 7 SC (Pt.11) 50 (2000) 12 NWLR (Pt. 680) 48; Ahmed vs. State (2001) 12 (Pt. 1) 135; (2001) 18 NWLR (Pt. 746) 622. The cause of the death of the deceased should be established with certainty because the act which caused the death is in most cases a certain act. See Adekunle vs. State (1989) 12 SC 203; (1987) 5 NWLR (Pt. 123) 505: Oforlete vs. State (2000) 12 NWLR (Pt. 681) 415: (2000) 7 SC (Pt. 1) 80. There are however, instances where cause of death could be inferred from the circumstances of the case. See Adekunle vs. State (supra); Oguonzee vs. State (1998) 5 NWLR (Pt. 551) 521; (1998) 4 SC 110.” See Per TOBI, J.S.C ( Pp. 42-43, paras. G-D)
The cause of the death of the deceased is expected to be established with certainty because the act which caused the death is in most cases a certain act, in this case the bullet fired by the one of the policemen. One of the co-convicts not the Appellant admitted he fired the shot. That admission/confession excludes the Appellant. It means no act of the Appellant was responsible for the death of the deceased. PER NIMPAR, J.C.A.

DEFINITION OF “CONSPIRACY”

Conspiracy has been defined in a plethora of judicial decisions, one of which is OFORDIKE VS. STATE (2019) LPELR- 46411 (SC) which held thus:
“Generally, conspiracy is an agreement by two or more persons to commit an offence or do an unlawful act, coupled with an intent to achieve the agreement’s objective and action or conduct which furthers the agreement. The Oxford Advance Learners Dictionary 6th Edition also defines conspiracy as “a secret plan by a group of people to do something harmful or illegal.” In a charge of conspiracy, proof of actual agreement is not always easy to come by as such agreements are hatched in secrecy. Thus a trial Court can infer conspiracy and convict on it if it is established to its satisfaction that the accused persons, pursued, by their acts, the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other and concluded; an agreement can be inferred from what each person does or does not do in furtherance of the offence of conspiracy. See Adeleke vs. State (2013) 16 NWLR (pt 1381) 556, Oduneye vs. State (2001) 2 NWLR (pt 697) 311, (2001) LPELR – 2245 (SC), The State vs. Salawu (2011) 18 NWLR (Pt 1279) 580.” Per OKORO, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered by the High Court of Akwa Ibom sitting at Uyo, Coram: Hon. Justice Ifiok. E Ukanna in Charge No: HU/13C/2016 and delivered on the 27th July, 2018 wherein the trial Court found the Appellant and his 3 other co accused persons guilty of the offences of Conspiracy and Murder and sentenced them to 14 years for conspiracy and death by hanging for murder.

Facts leading to this appeal are straight forward and amenable to brief summary. The Appellant amongst 3 others were arraigned before the Akwa Ibom High Court on a two-count charge of conspiracy and murder. They were alleged to have killed a commercial motorcyclist while on patrol along Abak Road. Three Police men from the “C” Division of the State Police command alighted from a tricycle on surveillance opposite the Federal Secretariat, seized 3 motorcycles belonging to some persons, one of which was the deceased. Almost immediately, a police car arrived the scene where the cyclists were struggling with the Policemen who impounded their motorcycles and were beating up the cyclist. The

2nd co-convict, the senior officer, Inspector Akpaette Moses sat in the passenger seat in front with the door ajar. One of the motorcycles impounded belonged to the deceased. It was in evidence that the 2nd accused/co-convict fired 2 shots to scare the crowd that had gathered and the third shot aimed at the deceased who was hit on the thigh. He was rushed to the teaching hospital but died before reaching the hospital. The police men joined their colleague in the car and drove away from the scene of crime.

The Respondent called 5 witnesses and tendered 8 Exhibits while the defence called a total of 4 witnesses and tendered several Exhibits. The trial Court after hearing of witnesses and consideration of counsel closing addresses, the trial judge found the appellant guilty of the two offences charged; namely conspiracy and murder. He was accordingly sentenced to 14 years for conspiracy and death by hanging for murder. Dissatisfied with the conviction and sentence, the appellant appealed to this Court.

The Appellant filed his Appellant’s Brief settled by DAVID EKPO ESQ., on the 17th June, 2019 but deemed 27th January, 2020. Appellant also filed

a Reply brief on the 21st January, 2020 which was deemed on the 27th January, 2020. The Appellant’s brief formulated 6 issues for determination by the Court as follows:
i. Whether the trial Court was right in convicting the accused persons in Charge No. HU/13C/2016, especially in convicting and sentencing the Appellant on record when the prosecution witnesses gave contradictory evidence on who shot the deceased and when the issue of who shot the deceased was not resolved by the Court.
ii. Whether the trial Court was not wrong in law to have convicted the Appellant on 2 counts of conspiracy and murder when the prosecution witness’ evidence justified the acts complained of.
iii. Whether the provision of Force ORDER 237 does not avail the 2nd accused person and by extension, the 4th accused, now appellant in this case.
iv. Whether the prosecution had proved the offences alleged against the accused person and in particular against the 4th accused person beyond reasonable doubt to ground conviction of the 4th accused person.
v. Whether the trial Court did not misdirect itself in fact and in law when it held that the accused

persons abandoned the deceased and the abandonment demonstrated a unity of purpose and community of purpose.
vi. Whether the Court was not wrong in refusing to ascribe probative value to the 5th prosecution witness’s evidence admitting the injury to the 2nd accused person which admission corroborated Exhibit M and whether this non ascription of probative value to the said pieces of evidence never led to a miscarriage of justice.

The Respondent on its part filed its Respondent’s Brief on the on the 18th November, 2019, and was settled by UWEMEDIMO NWOKO ESQ., Hon. Attorney General of Akwa Ibom State and it was deemed on the 27th January, 2020. The Respondent donated a lone issue for determination as follows:
Whether from the totality of evidence adduced at the trial, the prosecution had proved the two-count charge of conspiracy to murder and murder against the Appellant and others beyond reasonable doubt, and had clearly debunked the defence of self defence as contained in Force Order 237 relied upon by the Appellant.

I have considered the Judgment appealed against, the Notice of Appeal, the record of appeal and the briefs of

learned counsel and I find it expedient to adopt the sole issue donated by the Respondent and while determining the issue, all the issues distilled by the Appellant shall also be considered.

APPELLANT’S SUBMISSIONS
Appellant argued issues 1 and 4 together, he revisited the age long principle that burden of proof remains constant on the prosecution and that the standard required is proof beyond reasonable doubt, relied on the cases of UDOSEN VS. STATE (2007) 4 NWLR (Pt. 1023) 125 and EGBUFOR VS. STATE (2019) 5 NWLR (Pt. 1665)260 to submit that the respondent failed to fulfill the legal requirement. Appellant further argued that the prosecution witnesses (PW1 and PW4) told the Court that it was the 3rd accused person- Cpl Enobong Udo that shot the deceased. Furthermore, that going by the testimonies of the prosecution witnesses, it appears there was an unidentified policeman thus creating doubt in the case of the prosecution and who could have fired the shot. Learned counsel for the appellant picked holes in the testimony of PW1 and contended that there were contradictions which remain unresolved, urged the Court to resolve it in favour of the

appellant, relying on USUFU VS. STATE (2007) 1 NWLR (Pt. 1020) 102 and UDOSEN VS. STATE (SUPRA).

Appellant argued that the trial Court did not resolve the question of who shot the deceased. Furthermore, of conspiracy was not established by evidence because there were gaps not filled by the Respondent and benefit of it should go the Appellant. On the quality of evidence, the appellant submitted that it was deficient and not sufficient to ground conviction, relied on MUKA VS. STATE (1998) 1 ACLR 141; UMANI VS. STATE (2005) 4 ACL 70; OKONJI VS. STATE (2005) 4 ACLR 152; IKEMSON V STATE (1998) 1 ACLR 80 AT 83 and GAMBARI V STATE(1999) 11 NWLR (Pt. 627).

On contradictory evidence, the appellant relied on ZURU VS. CHIEF OF NAVAL STAFF (2004) ALL FWLR (Pt. 237 and AGBO VS. STATE (2006) 6 NWLR (Pt.977) 545.

On issue two, the Appellant submitted that the evidence of PW5 justified the action of the 2nd convict because the Appellant and his co-convicts were on official duty and were mobbed by the cyclist who descended on the team leader and Exhibit M confirmed the injuries inflicted on Insp Akpaette Moses. Furthermore, PW5 admitted under cross examination

that PW5 maintained that the 4th convict did not fire a shot and that he returned his gun to the armoury with ammunition intact. He further referred to Exhibit “O” – Force Order 237 which he said is a good defence and relied on PAUL AMEH VS. STATE (1978) LPLER-460 to the effect that nothing is an offence which is done in the lawful exercise of the right of private defence. He urged the Court to apply the said Force Order 237 and discharge the Appellant.

Furthermore, the Appellant in arguing issue 3 submitted that the 2nd accused as DW 2 told the Court that he was attacked and he fired the shot because he was in danger which unfortunately got the deceased. He submitted that the 2nd accused/convict should be given the full benefit of the Force Order 237 and to discharge the convicts.

On issue 5, the Appellant submitted that he was a serving policeman on normal duty under the leadership of the 2nd convict in a strict command structure and after seeing his leader being brutularised, he was under a duty to rescue his leader first and therefore the trial Court was wrong to conclude that the team abandoned the deceased. He urged the Court to find

that the trial judge misdirected himself in facts and in law. Continuing on issue 6, the Appellant rehashed various points in issue addressed under preceding issues. It will therefore not serve any useful purpose to restate them here. Suffice to say that I will highlight new points such as the contention that PW5 made an admission against interest, relied on ODUTOLA VS. PAPERSACK (NIG.) LTD. (2006) 18 NWLR (Pt. 1012) 470. On the question of alleged injuries sustained by the 2nd convict and the trial Court’s failure to act on it, that failure to address that tissue along the refusal to apply Force Order 237 occasioned a miscarriage of justice. He finally urged the Court to find for the appellant in this appeal.

RESPONDENT’S SUBMISSION
The Respondent in arguing its lone issue reviewed the facts of the case and submitted that the Respondent proved its case against the Appellant and his co-convicts and placed emphasis on the evidence of the two eye witnesses who testified as PW1 and PW4. The death of the deceased is not contested and circumstances surrounding the death also established by evidence. The Respondent made it clear that the cause

of death was gunshot and the appellant and co-convicts came to the scene with guns to arrest motorcyclist. Respondent submitted that the appellant threatened to kill the deceased if he did not let go his motorcycle and upon the deceased’s refusal to let go his motor cycle, one of the convicts made good the threat and the team of policemen left the scene.

Arguing further, the Respondent referred the Court to the evidence of PW1 who told the Court that it was the 3rd person, Enobong that shot the deceased. Furthermore, the Respondent submitted that the confessional statement of the 2nd Convict confirms that it was Inspector Akpaette Moses that fired the shot. He observed that the confessional statement was admitted without objection and therefore reliable.

On the applicability of Exhibit O, the Force Order 237 which guides members of the police force on the use of firearm. The Respondent argued in strong terms that the said Force Order 237 cannot avail the Appellant. Furthermore, that the appellant and his co-convicts fabricated a story that the police team was attacked by a mob wielding dangerous weapons and tendered Exhibit B to show injuries

sustained by the team leader. The story was debunked by PW4 who observed that the back ground of the picture was not the scene of crime and the bandaged hand had no sign of blood strains from bleeding. The Respondent argued that when the evidence of PW1 and PW4 are taken together, a strong case is made against the Appellant.

Arguing further, the Respondent identified the fallacy in the case of the Appellant and his co-convicts that they were attacked and that the 2nd accused was dragged from the car when he was armed and had time to fire three shots, one of which got the deceased. Learned counsel for the Respondent argued that the trial judge also did not believe the story put forward by the Appellant and his co-convicts. The failure to tender the locally made pistol purportedly recovered further puts a lie to the defence.

On defences available to the Appellant, the Respondent submitted that the facts do not qualify for the defence of self defence. Continuing, the Respondent submitted that the 2nd convict who alleged that he was attacked could not show signs of injury, wounds or scars to justify the shooting.

Learned counsel submitted that

flowing from the evidence presented by the Respondent, a clear case was made against the Appellant and the conviction was justified.

On conspiracy, the Respondent submitted that it was defined in the case of STATE VS. BABANGIDA (2014) 10 NCC 100; ABACHA Vs. STATE (2003) 3 ACLR and ABACHA VS. STATE (2003) 3 ACLR 344 and AFOLABI VS. STATE (2013) 13 NWLR (PT. 1371) 299. Respondent further submitted that by conduct of the Appellant and co-convicts conspired and their conduct caused the death of the deceased. Learned counsel finally urged the Court to dismiss the appeal.

The Appellant in his Reply brief filed on the 27th January, 2020 responded to arguments in the Respondent’s Brief and contended that it is full of contradictions as to who shot the deceased and therefore the submissions are not backed by evidence. Appellant reiterated the principle of law on contradictions and argued that the prosecution witnesses contradicted themselves and therefore the charge was not proved beyond reasonable doubt, relied on ATTAH & ANOR. VS. THE STATE (2010) 183 LRCN 1 at 6. He further emphasized that the evidence before the Court never asserted to the fact

that the 4th Accused/Appellant herein shot the deceased, referred to the record of appeal particularly page 104- 105.

The Appellant further submitted that the address or submissions of counsel no matter how brilliant can never take the place of evidence citing the case of 7UP BOTTLING COMPANY PLC VS. ABIOLA CONSTRUCTION COMPANY (2001) FWLR (Pt.59)1216 at 1225. He submitted that the extent of the appellant’s liability in a joint crime is the extent of his own intention and liability, referred to STATE VS. AZEEZ (2009) 171 LRCN 193. He urged the Court to discharge and acquit the appellant.

RESOLUTION
The appeal is against the conviction for murder and conspiracy handed down to the Appellant and his co-convicts. The Appellant herein was the 4th Accused/Convict. It is trite that the burden of proof is squarely on the Respondent from beginning to finish in a criminal trial because it does not shift, see NWEZE VS. STATE (2017) LPELR-42344(SC) which held thus:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on

the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See: Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511 at 531; Solola vs. The State (2005) 5 SC (Pt. 1) 135.” Per GALINJE, J.S.C
The standard of proof is also settled and it is beyond reasonable doubt AS REITERATED IN THE case of OSETOLA & ANOR. V. STATE (2012) LPELR-9348(SC) as follows:
“Section 138 (1) of the Evidence Act makes it mandatory that the standard of proof required in criminal trials by the prosecution is proof beyond reasonable doubt. Proof beyond reasonable doubt was explained in Miller v. Minister of Pensions 1947 2 ALL E. R. p.372 at 373 as follows: Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted to fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the

case is proved beyond reasonable doubt but nothing short of that will suffice. See LORI & ANOR VS. STATE 1980 12 NSCC 269.” PER RHODES-VIVOUR, J.S.C

(1994) 12 SCNJ 140; AND ABOGEDE VS. THE STATE (1996) 4 SCNJ. 223 just to mention but a few. In other words, where a person is charged with the offence of murder, the prosecution must prove:
(a) Whether the person alleged to have been killed is dead.
(b) The cause of death and
(c) Whether any act of the accused person is the cause of his death. See the case of SULE AHMED (ALIAS EZA) VS. THE STATE (2001) 18 NWLR (PT. 746) 623 @ 641.
On the methods or various ways an offence can be proved, several authorities have identified and settled 3 major ways which are clearly spelt out in the case of IDIOK VS. STATE (supra) as follows:
“The offence of murder, like all other offences, can be proved either by direct evidence or by circumstantial evidence. Direct evidence is evidence given by a witness who saw and watched the act of killing or murder. Circumstantial evidence is evidence given by a person who did not see or watch the act of killing or murder but whose evidence unequivocally leads to the commission of the offence by the accused person.”

As observed earlier, the Respondent as prosecution called 5 witnesses and tendered several

exhibits. Two of those witnesses were eye witnesses to the commission of the offence. The death of the deceased is not challenged and also the fact that death was caused by a gunshot from one of those named in the charge sheet. The Appellant along 3 other colleagues of his went on a patrol and stopped by the Federal Secretariat junction in Uyo and attempted to arrest motorcyclists who usually stand there to pick and drop passengers. The events that led to the death of the deceased were presented differently by the two sides from the point of the Appellant and his team arrived at the scene. It is pertinent to state that the slant given by the Appellant and his colleagues and as was found by the Court below is illogical and unbelievable. The trial Court rejected their version of the story. I also agree with the trial Court. The contention was over a motorcycle which was held by the 3rd accused/convict. The two witnesses’ accounts also have some slight variations. It is crystal clear that in establishing that the act of the Appellant caused the death of the deceased, the witnesses of the Respondent as prosecution did not mention that the shot fired was by

the Appellant. So it was not the appellant’s act that caused the death of the deceased. The death was caused by a single bullet shot by the 2nd accused/convict who also admitted in his confessional statements admitted without objection that he fired the fatal shot. Having not established that the appellant fired the fatal shot, there is a missing link in the case of the prosecution against the Appellant herein. The prosecution did not establish by evidence the fact that the act of the Appellant had anything to do with the death of the deceased. This a fundamental flaw in the case of the prosecution. There was also a failure of the trial judge to make a specific finding on who amongst the four policemen fired the fatal shot. The evidence before the Court is that a single shot hit the deceased and it was fired from a single gun not all the guns were fired, only one and from the evidence of eye witnesses, the appellant was not the one that shot the deceased. It is trite that in establishing the guilt of the accused person, the prosecution must prove the link or connection between the appellant in this case and the cause of death, see OCHIBA VS. STATE (2011)

LPELR-8245(SC) where the apex Court said:
“In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established proved beyond reasonable doubt. In the course of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process it must also produce vital witnesses to testify for the prosecution.” Per ADEKEYE, J.S.C
The cause of death of a victim must be the act of the accused person and it must be established with certainty, see AIGUOREGHIAN & ANOR VS. STATE (2004) LPELR-270(SC) where TOBI, JSC (of blessed memory) said:
“In Oguntolu vs. The State (1996) NWLR (Pt.432) 503, this Court held that in a charge of murder, the death of the victim must be caused by the act of the accused.

See also Ononuju vs. State (1976) 5 SC 1; Onyenankeya vs. State (1964) NMLR 34; Idowu vs. State (2000) 7 SC (Pt.11) 50 (2000) 12 NWLR (Pt. 680) 48; Ahmed vs. State (2001) 12 (Pt. 1) 135; (2001) 18 NWLR (Pt. 746) 622. The cause of the death of the deceased should be established with certainty because the act which caused the death is in most cases a certain act. See Adekunle vs. State (1989) 12 SC 203; (1987) 5 NWLR (Pt. 123) 505: Oforlete vs. State (2000) 12 NWLR (Pt. 681) 415: (2000) 7 SC (Pt. 1) 80. There are however, instances where cause of death could be inferred from the circumstances of the case. See Adekunle vs. State (supra); Oguonzee vs. State (1998) 5 NWLR (Pt. 551) 521; (1998) 4 SC 110.” See Per TOBI, J.S.C ( Pp. 42-43, paras. G-D)
The cause of the death of the deceased is expected to be established with certainty because the act which caused the death is in most cases a certain act, in this case the bullet fired by the one of the policemen. One of the co-convicts not the Appellant admitted he fired the shot. That admission/confession excludes the Appellant. It means no act of the Appellant was responsible for the death of the deceased.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Flowing from above therefore, the appellant cannot be guilty of the offence of murder because he did nothing to cause the unlawful death. If all the four policemen fired their guns, then, that would have required a different consideration but where only one person fired a gun, the remaining three cannot be guilty by association when they did not do anything that resulted in the death of the deceased. The trial Court erred in this regard. The cause of death of the deceased should be established with certainty because the act which caused the death is in most cases a certain act and it was in this case a certain act, shooting the deceased with a gun.

This takes us to the consideration of the count alleging conspiracy, the trial judge in his findings held that conspiracy was established against the 4 accused persons and convicted them accordingly. The trial judge said thus:
“The decision to leave the scene seen together immediately upon their bullet killing Kenneth Felix Akpan demonstration a unity of purpose and community of intention. In the result, find that the offence charged in the first count of the information proven beyond reasonable

doubt against; INSPECTOR BOKO SAMPSON; INSPECTOR AKPAETTE MOSES; CPL ENOBONG UDO and CPL GODWIN NNANA. I also find the second count of the information has been proven beyond reasonable doubt…”

is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other and concluded; an agreement can be inferred from what each person does or does not do in furtherance of the offence of conspiracy. See Adeleke vs. State (2013) 16 NWLR (pt 1381) 556, Oduneye vs. State (2001) 2 NWLR (pt 697) 311, (2001) LPELR – 2245 (SC), The State vs. Salawu (2011) 18 NWLR (Pt 1279) 580.” Per OKORO, J.S.C.
The inference the trial judge drew from the facts before him as to lead to the finding that conspiracy was proved are acts after the shooting which at best can raise a charge of accessory after the fact. I do not agree with the trial judge that the accused persons leaving the scene of crime together without more amounts to conspiracy for the charge of murder. After all they left in the car they came with to their station. To convict for conspiracy the circumstantial evidence must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused.

The burden and standard of proof on the prosecution is not an easy one, my lord

NWEZE JSC in the case of AKINLOLU Vs. STATE (2015) LPELR-25986(SC) had this to say:
“Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt. It is not proof beyond any shadow of doubt. The two requirements are completely dissimilar. That is why the expression “proof beyond reasonable doubt” cannot be employed conterminously with the expression “proof beyond any shadow of doubt.” The law has opted for the expression “proof beyond reasonable doubt,” Dibie v. State (2007) LPELR-941 (SC); Dimlong v. Dimlong [1998] 2 NWLR (Pt. 538) 381, 178; State v. Gwangwan (2015) LPELR-24837 (SC). I have examined most notable authorities, ancient and modern. They are all unanimous that this expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for estimating when the prosecution has discharged the burden imposed on it by law. In the realm of criminal justice, the said expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele v. Nigerian Army [2004] 6 NWLR (Pt. 868) 166, 179. Hence, it connotes

sufficiency of evidence, Nsofor v. State (2004) 18 NWLR (pt. 905) 292, 305. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. The cases on this point are many. Only a handful will be cited here, Okere vs. State (supra) 415 – 416; Sabi vs. State [2011] 14 NWLR (Pt. 1268) 421; Iwunze vs. Federal Republic of Nigeria [2013] 1 NWLR (Pt. 1324) 119; Njoku vs. State [2013] 2 NWLR (Pt. 1339) 548; Osuagwu vs. State [2013] 5 NWLR (Pt. 1347) 360; Ajayi vs. State [2013] 9 NWLR (Pt. 1360) 589.”

The case of the prosecution against the Appellant in this appeal is not strong and falls short of legal requirement for conviction.

For the sake of completeness of resolution, can the Appellant rely on Order 237 which is the Police Force order and Force Administrative Instrument admitted as Exhibit O? I agree that self defence is a legitimate defence in a charge of murder. The appellant did not

fire his firearm and he cannot therefore be heard to seek solace in the said order, particularly 237(3) (4) which provides thus:
“A police officer may use firearm under the following circumstances;
a. When attached, and his life is in danger and there is no other way of saving his life.
b. When defending a person who is attacked, and he believes on reasonable grounds that he cannot otherwise protect that person attacked from death.
c. When necessary to disperse rioters…. Remember that 12 or more people must remain riotously assembled beyond a reasonable time after the reading of the proclamation before the use of firearms can be justified.
(4) With regards to 3(a) above, a police officer would have to prove that he was in danger of losing his life or of receiving an injury likely seriously to endanger his life. It would be most difficult to justify the use of firearms if attacked by an unarmed man.”
If therefore a police officer is attacked by men armed or fired at and he fired in return, he can rely on the order as defence. Where he could have disarmed the attacker and failed to do so, he cannot rely on the

order as a defence. Even if, he had need to shoot, subsection (6) of the order made specific provision on what to do, it says:
(6) Fire should be directed at the knee of the rioters. Any ringleader in the forefront of the mob should be singled out and fired on. Never under any circumstance will warning shots be fired over the heads of rioters.”
Order 237 (2) is also very instructive in the circumstances of this case, it specifically charges the Police Officer to guard against the slightest misuse of firearm, it says:
“It is of utmost importance that all Police Officers realize how very essential it is to guard against the slightest misuse of firearm… A police officer must remember that his action in using firearms which results in the killing or wounding of a human being is open to investigation by the Courts and he is liable to be held responsible for his actions under the criminal law if the Court finds that his use of firearm was unreasonable in the circumstances”.
Ultimately, the decision as to whether the use of firearm was justified rest with the Court and it will decide based on the special circumstances of

each case. The trial Court did not excuse the use of the firearm but on the evidence before the Court, the Appellant did not use fire his firearm and therefore the defence cannot be activated in his favour.

It will therefore amount to an academic exercise if the Court goes to consider what will not add any value to the findings made earlier in this judgment.

This appeal is meritorious and I find for the Appellant. The finding of guilty and sentence is hereby set aside. The judgment delivered by Hon. Justice Ifiok E. Ukanna in charge HU/13C/ 2016 delivered on the 27th of July, 2018 is hereby set aside. The Appellant is hereby discharged and acquitted.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother YARGATA. B. NIMPAR JCA.
I agree with the reasoning and conclusion.
I also discharge and acquit the Appellant of the offences charged.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in craft the judgment of my learned brother, Yargata B. Nimpar, J.C.A. His Lordship has ably and painstakingly addressed all the issues canvassed in this appeal

before arriving at the conclusion that this appeal is meritorious and ought to be allowed.
I adopt both the reasoning and conclusion in the lead judgment as mine. I too allow the appeal and set aside the judgment of the Court below in charge NO HW/13C/2016.

Appearances:

DAVID EKPO ESQ., For Appellant(s)

UWEMEDIMO NWOKO ESQ., For Respondent(s)