OLUSEGUN ADEBOYE vs. THE STATE (2017)

OLUSEGUN ADEBOYE vs. THE STATE

(2017) LCN/4521(SC)

In the Supreme Court of Nigeria

Thursday, April 13, 2017


Case Number: SC.627/2015

 

JUSTICES:

IBRAHIM TANKO MUHAMMAD

MARY UKAEGO PETER-ODILI

KUMAI BAYANG AKAAHS

AMINA ADAMU AUGIE

SIDI DAUDA BAGE

 

APPELLANTS

OLUSEGUN ADEBOYE

RESPONDENTS

THE STATE

RATIO
LAWFUL ARREST BY A POLICE OFFICER
When a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony and is such that the offender may be arrested without warrant and the person to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any other person lawfully assisting him , to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and, if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested”.

JUDGEMENT

(Delivered By KUMAI BAYANG AKAAHS JSC)

This appeal was heard on Thursday, 19th January, 2017 and adjourned to Friday, 14th April, 2017 for delivery of judgement. Since 14/4/2017 is Good Friday which is a public holiday, the date for delivery of judgement had to be brought forward to Thursday 13th April, 2017.

This appeal is against the judgement of the Court of Appeal, Ibadan Division delivered on 26/6/2015 which affirmed the judgement of Hon. Justice C. A. Onafowokan of the High Court of Justice, Ogun State, Ijebu-Ode Judicial Division. The judgement of the High Court which convicted the appellant and sentenced him to death by hanging for the murder of one Tunde Adegboyega contrary to section 319 Criminal Code Law of Ogun State was delivered on 15/10/2014. The appellant being dissatisfied with the judgement of the Court of Appeal affirming the conviction and sentence passed on him by the High Court has further appealed to this Court.

The facts giving rise to this appeal are as follows:
Following a petition of threat to life written on behalf of Chief Titilayo Odusanya (PW1) to the Area Command Division, Ijebu Ode the Area Commander directed Michael Agboola (PW4), the appellant and one Corporal Hamzat, all Police Officers attached to the Nigeria Police Area Command, Igbeba, Ijebu-Ode to investigate the case. On 10/3/2009, the three Police Officers booked for arms and left in company of the petitioner and his brother to Olok, Alii village, Ogun State to arrest all those who were mentioned in the petition including the deceased. On getting to the village PW4 arrested the deceased and handed him over to Corporal Hamzat and the appellant. While Chief Odusanya and PW4 were discussing on how to arrest the other people mentioned in the petition, the deceased allegedly attempted to escape and the appellant pursued him and in the process shot and killed him. The appellant in his defence denied killing the deceased intentionally and stated that the deceased attempted to snatch his rifle and a struggle ensued. He suddenly heard a gunshot and discovered that it was the deceased who received the gun shot from which he died, in other words the appellant was setting up a defence of accidental discharge. At the close of the case the appellant was found guilty and sentenced to death. His appeal to the Court of Appeal was dismissed and he appealed further to this Court.

The Notice of Appeal contained ten grounds of appeal from which the following three issues were formulated:-

1. Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have relied on the evidence of PW3, PW4 and Exhibit “D” and the AK 47 rifle the appellant had in his possession as a policeman on the day of the incident to hold that prosecution proved its case beyond reasonable doubt to the effect that the appellant intentionally and voluntarily killed the deceased – Tunde Adegboyega to justify the affirmation of the conviction and sentence of the appellant for murder.

2. Whether the learned Justices of the Court of Appeal, Ibadan Division were right to nave affirmed the conviction and sentence of the appellant by the learned trial Judge for murder inspite of the fundamental contradiction depicted in the case of the prosecution which ought to have been resolved in favour of the appellant.

1. Whether the learned Justices of the Court of Appeal were right to have affirmed the decision of the trial court that the prosecution proved the offence of murder against the appellant.
2. Whether the appellant can be availed by the defences of self defence and accident raised by the appellant at the trial of his case as well as whether the appellant can be availed by section 33(2) of the 1999 Constitution.

The issues formulated by the respondent best capture the essence of this appeal and in particular issue 2 which is whether the appellant can be availed by the defences of self defence and accident raised by the appellant as well as whether the chest region that was hit by the gunshot. Interestingly the accused person not only confirmed on oath that gunshot from his rifle killed the deceased when he said – ” suddenly I heard a gunshot from my rifle……….I also saw the deceased lying on the ground”, he also admitted that much in his extra-judicial statement which was admitted without objection as exhibit “C”, the accused person wrote;

“……..Corporal Kamzat Sulaiman took him to a bench where he sitted (sic) with the suspect and myself two of us carried AK 47 rifles……..suddenly the suspect…..resulted into violence by pushing the Corporal away, Corporal Hamzat fell down with his rifle…….as I wanted to assist him, the suspect to took to his heels to escape i then pursued him to effect re-arrest….I then cocked my rifle to muzzle up and shot at air to scare the mobs, along the process my hand mistakenly touched the trigger of the rifle as a result the suspect was accidentally shot…’’

The good thing about exhibit “C” which is confessional is that it was written by the accused person himself; it was also admitted without objection. It is therefore not bedeviled by the usual issue of voluntariness or retraction and as such its veracity is not in question”.

The learned trial Judge then held as follows:- “I hold that exhibit “C” establishes the truth of what it says. That being the case, when exhibit “C” is considered along with the evidence of PW4 and Exhibit “D” it leads to the irresistible and unequivocal conclusion that it was the shooting of the deceased by the accused that killed the deceased. I find as a fact that the accused person, in attempt to re-arrest the deceased, pursued him and apparently not being able to match his pace shot him from the back and he fell and died.”

The Court below agreed with the findings made by the learned trial Judge. No one is left in doubt that it was the appellant who shot the deceased at his back in order to re-arrest him when he made an effort to escape. The defences the appellant tried to raise i.e. self defence and accidents are not mutually exclusive but they rather contradict each other. See: Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828. Adelumola v. State (1988) 1 NWLR (Pt. 73) 683; Umoru v. State (1990) 3 NWLR (Pt. 138) 363 and Sule v. State (2009) 17 NWLR (Pt. 1169) 33. The defence of accident could be raised if there was a scuffle between the deceased and the appellant and in the process one of them accidentally pulled the trigger and the cartridge was released and the deceased was shot in the process. But this was not the case as exhibit “D” shows that the deceased was shot at the back which is clear evidence he was running away. A man Is presumed to Intend the natural consequences of his act and when an event is said to have occurred by accident it is implied that it was totally unexpected by the doer of the act and it was also not reasonably expected by any ordinary person, the reasonable man of the law. See: Adelumola v. State (1988) 1 NWLR (Pt. 73) 683). For self defence to avail an accused under the Criminal Code for a charge of culpable homicide punishable with death the accused must have had a reasonable belief that his life was in danger and the quality of the force used on the deceased must be the same as that against which the accused defended himself. See: Okonji v. State (1987) 1 NWLR (Pt. 52) 659.

In resolving issue 3 which centred on contradictions in the case of the prosecution, the lower court found that there were no material contradictions in the evidence of PW1, PW3 and PW4. Despite the resolution of this issue, learned counsel for the appellant hammered on the fact that there were fundamental contradictions in the case of the prosecution which were not resolved in favour of the appellant in line with judicial principles. I am unable to find any contradictions to warrant tampering with the concurrent findings made by the two lower courts.

The only point which merits serious consideration by this Court is the attention which the Hon. Attorney-General of Ogun State drew on the invocation of section 271 Criminal Code Law of Ogun State and its application in determining the culpability of the appellant for the offence of murder. The section provides as follows:-

“When a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony and is such that the offender may be arrested without warrant and the person to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any other person lawfully assisting him , to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and, if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested”.

Section 33(2) (b) of the 1999 Constitution (as amended) appears to have further strengthened s. 271 of the Criminal Code Law. It provides:-

“33(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –

(b) In order to effect a lawful arrest or to prevent the escape of a lawful arrest or to prevent the escape of a person lawfully detained;

The appellant fired the fatal shot in an effort to prevent the escape of the deceased from lawful custody. In analysing the evidence adduced at the trial the lower court reached the following conclusion regarding the shooting of the deceased by the appellant –

1. The belief by the appellant that the deceased was escaping; and
2. His desire to get the deceased re-arrested in consequence of which he shot into air.

The finding by the lower court that the appellant shot into the air is not tenable considering the fact that Exhibit “D”, the medical report specified the entry point was at the back beside the scapular and the exit point was from the chest between the 4th and 5th intercostal space. If the bullet had landed on the deceased’s head, then there would be a probability that the appellant shot into the air.

I agree with the submission of the learned counsel for the respondent that the defence of accident by the appellant raised in exhibit “C” and in his evidence at the trial is clearly an attempt by him to evade responsibility for his action, it will cause no surprise to a reasonable man if death resulted from the shot fired by the appellant having aimed at the deceased’s back and the likely consequence of the act of the appellant is death of the victim. The gun shot fired by the appellant which killed the deceased was therefore not an accidental discharge but a voluntary action by the appellant aimed at preventing the escape of the deceased.

The appellant also claimed that he shot the deceased accidentally in the course of defending himself from being attacked by the members of the community where the deceased was being arrested and when he gave evidence during his defence he said he was struggling with the deceased when the gun went off. The evidence of PW4 debunked the claim that he was afraid of the community attack and it was in the process that he shot the deceased because the shooting had taken place before the community gathered and as I had said earlier there was no scuffle between the appellant and the deceased as the entry point of the bullet was on the back of the deceased. The appellant therefore shot the deceased at the back with the intention of killing him or causing him grievous injury. The learned trial Judge found that the defences of accident and self defence put up by the appellant were a phantom, frivolous and an afterthought and described the shooting of the deceased as reckless and unwarranted. The lower court found that the trial court duly considered the defences put up by the appellant before convicting him. It observed that the deceased was not armed with any weapon and therefore did not deserve to be shot with an AK47 rifle.

Although the court below found that it was as a result of the deceased’s attempt to escape after his arrest that led the appellant to shooting and killing him, it did not go further to consider the statutory defence which the learned Attorney-General of Ogun State drew our attention to under section 271 of the Criminal Code Law and further reinforced in section 33(2) (b) of the 1999 Constitution.

The defence is concerned with extra judicial killing of a suspect by the police in the course of carrying out an arrest. This court in Ibikunle v. State (2007) 2 NWLR (Pt. 1019) 546 considered the constitutional and statutory defences implied in section 33(2) (b) of the 1999 Constitution and section 7(1) and (2) of the Criminal Procedure Law. The case had to do with the forceful entry into a house where a notorious armed robber called Nonso who escaped from police custody was suspected to be staying. It turned out that the armed robber and his brother had moved out of the premises two weeks earlier and the apartment they vacated was now occupied by a different person who turned out to be the deceased. When the police officers got to the premises on the fateful night, they knocked at the door of the apartment which they thought was Nonso’s. The male voice emanating therefrom did not emphatically deny that he was Nonso but he would not open the door in spite of the fact that the police officers identified themselves. Consequently the police officers forced the window open and fired tear gas inside the apartment. The man still did not open the door but instead warned the police officers to leave or else he would kill any police officer who dared to come inside with the cutlass he was holding. The appellant used cement block to damage the window and jumped through the window into the apartment despite efforts by the leader of the team to disarm and control him. Meanwhile the deceased had moved into the bedroom and locked himself. On gaining access into the apartment and after two hours of search and not finding the deceased to effect his arrest fired a shot from the rifle he was carrying at the downward end of the bedroom door which hit the deceased on the abdomen and this led to the death of the deceased. He was then charged with the murder of the deceased at the High Court of Delta State and was convicted at the end of the trial. His appeal to the Court of appeal was dismissed which led to his further appeal to the Supreme Court. In determining the appeal, this Court considered the provisions of section 33(2) (b) of the Constitution of the Federal Republic of Nigeria 1999 and section 7(1) and (2) of the Criminal Procedure Law and the extent of the force used by the appellant. In the lead judgement by Onu JSC which was concurred in by the other Justices on the panel, he held that the statutory defences implied in section 33(2)(b) of 1999 Constitution and section 7(1} and (2) of the Criminal Procedure Law cannot avail the appellant since none of them granted him licence to summarily execute the deceased extra judicially and rejected the submission that the act of the appellant who had already secured ingress into the apartment of the deceased before shooting into the deceased bedroom with a lethal weapon could reasonably be described as seeking entrance under the provision of section 7(1) and (2) of the Criminal Procedure Law. He reasoned that even if the deceased were to be a thief or a person of dubious character, the provisions of the Constitution and Criminal Procedure Law quoted above did not licence the appellant to be the complainant, investigator, Judge as well as executioner, all rolled into one.

Alooma Mukhtar JSC (as she then was) in dismissing the appeal said:-

“……When one looks at the whole evidence before the trial court closely, it will be very difficult for a reasonable man to discern why the appellant would think he can avail himself of the defence in the said section 33(2) of the Constitution. In the first place there was no concrete evidence that the appellant was in imminent danger of unlawful violence or that he was defending any property. In the second place, even if there was evidence that he went to the scene of the incident to effect lawful arrest or to prevent the escape of the deceased, there was nothing to show that the deceased was about to escape and that he was lawfully detained”.

Onnoghen JSC (as he then was) condemned the growing trend of extra judicial killings by members of the Nigeria Police Force when he stated at pages 582-583 thus:-

“I am compelled by the facts and circumstances of this case coupled with the now notorious extra judicial killings of innocent people by some members of the Nigeria Police Force to condemn the inability of some members of the police force to realise that the foundation of the police institution is preservation of life and property. There is the urgent need to revisit the criteria used in the recruitment of policemen. The instant extra judicial killing by a member of the Nigeria Police Force is one too many. Appellant did not only in his duty as a policeman to protect the people but has no regard for the sanctity of human life. He was not only overzealous but extremely reckless in his action on the day in question……….it is the unfortunate acts of policemen like the appellant that have made it near impossible for Nigerians to really consider the police as their friend. The fact of this case has made it necessary for us to have a rethink about the modus operandi of our police force and may advise the wisdom in adopting the approach, of investigation before arrest instead of arrest before as is hitherto the vogue”.

Coming back to the instant appeal, the facts reveal that on the receipt of the complaint in writing of the Solicitors to PW1 of threats to life addressed to the Area Commander Ijebu-Ode, the Area Commander endorsed the petition to the anti-robbery section where PW4 was the officer in-charge for investigation. PW4 detailed the appellant to investigate the case. On 10/3/2009 he (PW4), the appellant and Sgt. Hamzat accompanied the complainant to Oloke – Alli. He saw the deceased and one other person riding on a bicycle in Bolorunduro in Ondo State but did not arrest him until they reached Oloke – Alli. After the arrest, he handed the deceased over to the appellant and Sgt. Hamzat. They were all seated on a bench and the deceased attempted to escape but the appellant shot him dead.

Exhibit “E” was the letter written by Chief Adebiyi Odugbesan on the instructions of PW1 and addressed to the Area Commander Nigeria Police Force, Area Command, Igbeba, Ijebu-Ode alleging threat to life.
The letter reads:-

“Adebiyi Odubgesan & Co.
Barristers & Solicitors Humility Chambers
15, Folagbade Street, Apebi Junction
Opp. Central Mosque P. O. Box 239 Ijebu-
Ode
26th February, 2009.

The Area Commander
Nigeria Police Force
Area Command, Igbeba,
Ijebu-ode
Sir,

THREAT TO LIFE
We act as Solicitors to Chief (DR.) TITILAYO ODUSANYA and Mr. SEGUN ODUSANYA of 85 Olokoku Street, Ijebu Ode. Both of them are hereinafter called “our clients”.

Our clients are the landlords of the Camp known as Ajelanwa in Oloke Alli Community of Ijebu East Local Government Area.

Our Clients are constrained to instruct us to write this petition to your office on their behalf and bring to your notice the criminal acts of MESSRS ADEGBOYEGA TUNDE, SUNDAY AGAGA and MUTIU, all of Ajelanwa Camp in Oloke Alli, Community.

On the 26/2/2009, Mr. Adegboyega Tunde threatened to disorganise Ajelanwa Camp within the next two weeks by ensuring that our clients’ representative at the camp, Mr. Gbenga Ambali, is killed or abducted while Mr. Sunday Agaga and Mutiu also threatened to ambush Mr. Gbenga Ambali. The aforementioned people are out to kill or maim Mr. Gbenga Ambali because he did not allow them to carry out their criminal activities within the area as he always checkmate (sic) them.

We hereby respectfully request that your good office to ensure that an urgent action is taken in respect of their threats as there is no doubt that they intend to make good their threats. Suffice to say that these threats are not mere ones that can be overlooked.

Yours truly

Signed: CHIEF ADEBIYI ODUGBESAN

FOR: ADEBIYI ODUGBESAN & CO.

This was the letter that kick started the process that led to the arrest of the deceased.

From the statement which PW1 made at the Police Station tendered as Exhibit “A” PW4 merely informed the deceased that he was under arrest but did not disclose the offence which the deceased committed. When the deceased demanded to know his offence, PW4 told him that he (deceased) would be informed when they reached the office (police station). The deceased was handed over to the appellant and Hamzat. He went on to say in Exhibit “A”:

“The said Inspector now call (sic) me aside, he was discussing with me on how to look for motor cycle and go to the next village, Cpl Segun slapped Tunde Adegboyega. Inspector now warn Cpl Segun to stop beating the man. As we were discussing, I look back, i saw Cpl. Hamzat fell down, I saw Cpl. Segun pursuing Tunde Adegboyega to the backyard. The next thing we heard gun shot. The man now said yeee. I went there to see what was happening, I met Tunde Adegboyega in the pool of his blood, he has already gave up the ghost….”

A close analysis of the account given by PW1 in Exhibit “A” reveals that there was a misunderstanding between PW1’s agent, Gbenga Ambali and the appellant which led to some verbal altercation and Gbenga Ambali reported the incident to PW1. PW1 in turn instructed his lawyers to write a petition to the Area Commander, Nigeria Police Force Igbeba, Ijebu-Ode. The Area Commander minuted the petition to PW4 to deal with the petition. It does appear that investigation was not carried out before the deceased was arrested. While the deceased was in the custody of the appellant and Hamzat, the appellant slapped the deceased and PW4 reprimanded the appellant for what he did. Shortly thereafter the appellant shot the deceased.

The scenario painted above fits into what Onnoghen JSC (as he then was) described in Ibikunle v. State supra at pages 583 as “arrest before investigation”. It is most likely that if proper investigation had been carried out, there would have been no need for a formal arrest. The Police would have advised the parties to maintain the peace since there is no evidence that the deceased or any of the other persons mentioned in Exhibit “E” physically assaulted Gbenga Ambali to the extent that there was a serious threat to his life, it Is obvious that it was the appellant who provoked the deceased to attempt escaping after his arrest since he was seen slapping the deceased. Even if the deceased attempted to escape without being molested by the appellant, the appellant should have aimed at his legs to demobilise him from escaping instead of taking a shot at his back. Although section 271 Criminal Code Law allows for the use of force when effecting arrest, which could lead to the killing of the person to prevent his escape, it was not reasonable for the appellant to fire at the deceased at the back. While the invocation of section 271 CPL would create a doubt on the appellant being convicted and sentenced to death for murder, nevertheless he should not be completely exculpated from blame because of the growing incidence of policemen shooting people to death at the slightest opportunity under the pretext that they were carrying out a lawful arrest. Having regards to the circumstances of this case, section 33(2} of 1999 Constitution does not avail the appellant and the firing of the gun at the back of the deceased to prevent him from escaping from lawful custody was not reasonable in the circumstances. The conviction for the offence of murder under section 319 Criminal Code is substituted for manslaughter and the appellant is hereby sentenced to 10 years imprisonment with hard labour. The sentence is to take effect from the time he was convicted for murder.

MARY UKAEGO PETER-ODILI, JSC

I agree in totality with the judgment just delivered by my learned brother, Kumai Bayang Akaahs JSC and to underscore that support, I shall make some remarks,

This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on the 18th day of May, 2015 and which judgment’s lead was anchored by Mudashiru Nasiru Oniyangi JCA affirming the conviction and sentence to death of the appellant by the High Court of Ogun State, Ijebu – Ode.

FACTS BRIEFLY STATED;
The facts as presented by the prosecution through its witnesses at the trial court are that the Area Commander’s Office, Ijebu – Ode received a petition of threat to life from Chief Titilayo Odusanya (PW1). The appellant with PW4 and another police officer name Corporal Hamzat were detailed to investigate the case.

On the 10tn of March 2014, the PW4, the appellant and Corporal Hamzat booked for arms and ammunitions and they went to Oloke-Alli village to arrest those mentioned in the petition, one of whom is the deceased person.

On getting to the village, the deceased was arrested by the PW4 and handed over to Corporal Hamzat and the appellant. While Chief Odusanya (PW1) and the PW4 were discussing on how to arrest the other people mentioned in the petition, the deceased allegedly attempted to escape and the appellant pursued him and in the process shot and killed him.

The appellant in his defence denied intentionally killing the deceased and stated that the deceased attempted to snatch his rifle and it was while both of them were struggling for the rifle that he suddenly heard a gunshot and he discovered the deceased person got shot and died.

At the close of the defence, counsel on both sides filed written addresses.

In a well-considered judgment delivered on 16th October 2014, the appellant was found guilty by the trial court and sentenced him to death. Please see page 48 to 58 of the record of appeal. The appellant being dissatisfied with the judgment of the trial court appealed to the Court of Appeal, Ibadan Division against the judgment of the trial court. The appeal was heard on the 27th day of April 2015 after brief of argument had been filed and exchanged by both parties. The judgment of the Court of Appeal was delivered on the 26tn day of June, 2015 in which the conviction and sentence by the trial court were affirmed. It is in further dissatisfaction that appellant has now appealed to this Apex Court.

On the 19th day of January, 2017 date of hearing, the appellant’s learned counsel, Chief Henry Eshijonam Omu adopted his brief of argument filed on 14/9/2015 and in it formulated three Issues for determination, viz:-

1. Whether the learned justices of the Court of Appeal, Ibadan Division were right to have relied on the evidence of PW3, PW4 and exhibit XD’ and the AK47 rifle the appellant had in his possession as a policeman on the day of the incident to hold that prosecution proved its case beyond reasonable doubt to the effect that the appellant intentionally and voluntarily killed the deceased – Tunde Adegboyega to justify the affirmation of the conviction and sentence of the appellant for murder.

2. Whether the learned justices of the Court of Appeal, Ibadan Division were right to have affirmed the conviction and sentence of the appellant by the learned trial judge for murder in spite of the fundamental contradictions depleted in the case of the prosecution which ought to have been resolved in favour of the appellant.

3. Whether the learned justices of the Court of Appeal, Ibadan Division were right to have affirmed and adopted the learned trial judge’s conviction and sentence of the appellant when the prosecution failed to disprove the appellant’s defence of self defence pursuant to Sections 32 (3), 32 (4) and 286 of the Criminal Code and not exhaustively considered the appellant’s additional defence of Accident pursuant to Section 24 of the Criminal Code Law, Laws of Ogun State of Nigeria, 2006 and also not considering and upholding the defence open to the appellant under Section 33 (2) of the Constitution of the Federal Republic of Nigeria, 1999.

Dr. Olumide Ayeni, Attorney General of Ogun State for the respondent adopted the brief of the respondent settled by F. F, Fakolade, Principal State Counsel of Ogun State. He distilled two issues for determination, viz:-

1. Whether the learned justices of the Court of Appeal were right to have affirmed the decision of the trial court that the prosecution proved the offence of murder against the appellant.

2. Whether the appellant can be availed by the defences of self defence and accident raised by the appellant at the trial of his case as well as whether the appellant can be availed by Section 33 (2) of the 1999 Constitution.

The Issues as crafted by the respondent are simple, easy to utilise and cover the questions in contention and I shall make use of them in the determination of this appeal.

ISSUES 1 AND 2:
The questions therein raised are whether the Court of Appeal was right to have affirmed the decision of the trial Court in its conviction of the appellant for murder. Also whether the defences of self defence and accident did not avail the appellant. Again if Section 33 (2) of the 1999 Constitution was not available to the appellant.

Learned counsel for the appellant contended that the prosecution failed to prove its case beyond reasonable doubt. That the prosecution did not prove that the purported act of the appellant caused the death of the deceased and that same was intentional with knowledge that death or grievous bodily harm was its probable result. That there was no evidence of an eye witness to the confrontation between the appellant and the respondent leading to the death of the deceased and the court below placed too much weight on the uncorroborated evidence of PW3, PW4 and exhibit
It was further submitted that there were fundamental contradictions in the case of the prosecution and the absence of medical evidence conclusively linking the death of the deceased to the appellant which have to be resolved in favour of the appellant. He referred to the cases of:- Chukwu v The State (2013) All FWLR (Pt.666) 425 at 437; Oshiba v The State (2011) 12 SCNT 526; Ugwu v The State (2002) FWLR (Pt.103) 330 at 343 – 344; Tunde Adara v The State (2000) All FWLR (Pt.311) 1777 at 1787; Ogbu v The State (2007) All FWLR (Pt.361) 165; Nigerian Air Force v Obiosa (2003) 4 NWLR (Pt.810) 333; Onuchukwu v The State (1998) 4 SC 49 at 57 etc.

For the appellant, it was further contended that the court below had not considered the self defence as defence put up by the appellant who would have exculpated him from blame in view of the confrontation presented by the deceased. Also ,that the lower court did not consider the defence of the appellant that the death was accidental. Again showing a failure in the consideration of the matter by the two courts below is the fact that the two courts did not take into account the defence provided under Section 32 (3) and (4) of the Criminal Code not to talk of Section 33 (2) of the 1999 Constitution of the Federal Republic of Nigeria for the appellant, a policeman under the Nigerian Police acting within his official duties. He cited Apugo v The State (2006) 16 NWLR (Pt.1002) 227; Musa v The State (2009) 7 MJSC 52 at 88; Chukwu v The State (1992) 1 NWLR (Pt. 217) 255 at 267; Iromantu v The State (1964) 3 NSCC 228 at 229; Amayo v The State (2002) FWLR (Pt.91) 1571 at 1588; Lado v The State (1999) 9 NWLR (Pt.619) 369; Arabi v The State (2001) 12 WRN 158.

The learned Attorney-General for the respondent in a commendable display of responsibility as an officer of the court in the temple of justice and not to get an advantage and conviction at all cost, while urging the court in line with the position of the respondent according to the brief of argument referred the court to the Criminal Code Law 1916 which has now been adopted in the Criminal Code of Ogun State 1964 currently In application under Section 271 and also Section 33 (2) of the 1999 Constitution.

Learned counsel for the respondent submitted that the court should take a holistic view of the offence charged, the defences proffered and the laws as they affect the circumstances of the appellant in operation as an officer of the law with a suspect escaping from arrest or lawful custody.

In a charge of murder such as the case at hand, the prosecution is required to establish the following ingredients:-
(a) that the deceased died;
(b) that death of the deceased was caused by the accused;
(c) that the accused person intended to either kill the victim or cause him grievous bodily harm.
See Njoku v The State (2013) 2 SCM 177 at 180.
In the concurrent findings of the two courts below, what is available is that the ingredients above stated were established beyond reasonable. In fact a reference to pages 142 – 144 of the record would show what the court below stated and that is as follows:-

“What is now left is whether or not the shooting was intentional. The fact of this case as can be garnered from the evidence of PW4 and the appellant points to one and only conclusion that, when the appellant opined that the deceased took steps to escape, he pursued him so as to re-arrest the deceased. Another story by the appellant is that himself and the deceased were struggling with the rifle he the appellant had in his possession when the rifle exploded and thereby killing the deceased. Another story by the appellant is that himself and the deceased were struggling with the rifle he the appellant had in his possession when the rifle exploded and thereby killing the deceased. Another story by the appellant is that he shot into the air and suddenly he found the deceased dead on the ground. PW4 said from where he was standing with PW1 the complainant petitioner, he noticed the commotion with the appellant, the deceased and Corporal Hamzat and subsequently the pursuit of the deceased by the appellant to the back of the house and from where he heard a gunshot. On getting there he saw the deceased lying on the ground dead. From the foregoing, it is logical, reasonable and unequivocal to say that it is from the gun the appellant was carrying that the shot which exited the buffet that hit the deceased and killed him came from. Three things can be noted here: The belief by the appellant that deceased was escaping, Secondly, his desire to get him arrested and the shooting into the air. All these put together reasonably point to nothing other than that it is the appellant that fired the AK47 rifle he was holding so as to put the deceased to a halt and prevent him from escaping, The position of the law is that direct evidence to prove the cause of death, must connect death of the victim with act or omission of the accused such as the medical evidence. Showing that injury that resulted in death is consistent with such inflicted by the accused particularly where victim dies in the course of attack. The evidence of PW3 and coupled with Exhibit ‘D’ the medical report points to nothing other than that the deceased died of the gunshot he received. The gunshot is not from anywhere or person but from that fired by the appellant from the “AK47″ rifle he was carrying. See Uguru v State (2002) FWLR (Pt. 103) 330 and Young Ukauwa Uguru v The State (2002) 4 SC (Pt. II) 13 at 21″.

Oniyangi JCA anchoring the judgment of the Court below stated further thus:-

“Also, the appellant never in evidence said the body of the deceased examined by PW3 is not that of the deceased who was arrested by their team. The story by the counsel representing the appellant that PW4 said there were plaster ail over the body of the deceased when he was arrested and that of PW3 the Medical Doctor that there was no other wound on the deceased cannot change the direct and positive evidence of PW4 and the appellant that it was the deceased that was arrested, and that was killed at the same venue that was examined by PW3 and that the result of the examination is that contained in Exhibit D”. Therefore and from the totality of the evidence and the exhibits and coupled with the instrument used i.e. AK47 rifle, the appellant intended to terminate and sniff out life from the deceased”.

What comes out glaringly and without dispute is that the appellant a police officer in the quest to have the deceased’s arrest secured, shot the deceased at the back and he died therefrom, Then is thrown up the question if the statutory defence implied in the provision of Section 33 (2) of the 1999 Constitution availed the appellant,

Section 33 (2) (b) of the 1999 Constitution (as amended) is in line with Section 271 of the Criminal Code Law. It stipulates thus:-

33(2): A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary, (b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained…”

A reference to the Criminal Code of Ogun State would be of assistance and in this regard, the Attorney General of Ogun State as counsel for the respondent and in his bounden duty as officer of the court had called the court’s attention to it. Section 271 Criminal Code Law, Ogun State.

“271: When a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony and is such that the offender may be arrested without warrant and the person to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any other person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and, If the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested”.

The Supreme Court had warned itself and other Courts in the application of the Constitutional provision, Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN), Police Act and in-relation to facts akin to the case at hand in the case of: Adegboye Ibikunle v State (2007) 2 SCM page 73 at 76 wherein it was held that,

“the statutory defences implied in these provisions (33 (2) (b) of the 1999 Constitution, Section 7 (1) and (2) of the Criminal Procedure Law and Section 4 of the Police Act) cannot avail the appellant, more so that none of them granted him a license to summarily execute the deceased extra-judicially.

Even If the deceased were to be a thief or a person of dubious character……..the provisions of the constitution and criminal procedure law (ibid) quoted above did not license the appellant to be the complainant, investigator, Judge as well as executioner, all rolled into one”.

I shall refresh my mind with the fact and the circumstances of the case of Ibikunle v State referred to above which is similar to the Instant case. In the said case, the appellant being a police officer had gone in company of his fellow police officers to effect an arrest of a certain armed robbery suspect who escaped from police custody. The police including the appellant then traced the said armed robbery suspect to a particular address where they believed the suspect was on that night. Unknown to the appellant and his colleagues, their armed robbery suspect had moved out of the address about 2 weeks before and someone else who turned out to be the deceased was living in the address.
The police knocked on the door but the deceased refused to open the door. The deceased did not also emphatically deny that he was the suspect the police was looking for. The deceased did not open his door even after the police fired warning shots into the air. The deceased still did not open his door but instead warned the police that he would kill any police officer who dare come inside his room with a cutlass he was holding.

The appellant in the case, summoned courage and jumped into the deceased’s apartment through the window but the deceased who had been talking to the police officers had quickly moved into the bedroom and locked it up. After over two hours, the appellant in an attempt to incapacitate the deceased and effect his lawful arrest fired a single shot from a rifle at the downward end of the bedroom door in order to gain access and effect his arrest, but the gunshot turned out to be fatal when the police officers brought out the deceased, it dawned on them that the deceased was hit in the abdomen and that he was not the notorious suspect who they are in search of. The conviction of the appellant was re-affirmed by the Supreme Court.

The case at hand while on all fours with the Adegboye Ibikunle v State (supra) provides an unfortunate scenario as the deceased did not threaten the appellant and was even warned. It was the appellant who had earlier slapped the deceased giving the impression of greater force being used on him and so may have produced the fear on the deceased for which he ran off and the appellant firing him from behind. It is to maintain the balance between law enforcement as protected by Section 271 Criminal Code Act and Section 33 (1) of the 1999 Constitution and the rights of the potential suspect that one is inclined to go along with the findings of the two courts below and holding a little back from reaching the conclusion of culpability of the appellant for murder and rather anchor on manslaughter.

From the foregoing and the well articulated lead judgment that I also allow the appeal in part and sentence the appellant for manslaughter in line with the 10 years term given.
I abide by the consequential order made.

(DELIVERED BY I. T. MUHAMMAD JSC)

I had the advantage of reading in draft the judgment just delivered by my learned brother, Aka’ahs, JSC. I agree with my lord in his reasoning process and conclusion. Although there is a law which permits a law enforcement officer to resort to a certain force even if it will involve taking away of one’s life to inhibit one from absconding from arrest, circumstances beyond any reproach proved that the appellant mismanaged his fire-arm in shooting at the deceased. The appellant should have resorted to other means of arrest than resorting to the last resort of shooting direct at the victim.
I agree with my learned brother. Aka’ahs JSC in tempering justice with mercy by reducing appellant’s sentence from death by hanging to life imprisonment, this may serve a lesson to the appellant and enforcement officers assigned to handle deadly weapons.

(DELIVERED BY SIDI DAUDA BAGE, JSC)
I have had a preview of the lead Judgment delivered by my learned brother – Aka’ahs, JSC, and I agree with all the reasoning and the conclusion arrived at.

Let me add just a few words of my own in total support to the lead Judgment. The sum total of the case of the Appellant is one of involuntary manslaughter. It is an unlawful killing without malice afore thought express, but may be implied. There was gross negligence (though it may be otherwise lawful act to prevent an escape from justice). However, holding a gun, loaded with live ammunition will result into an unlawful act, if care is not taken. Such an unlawful act which a sober and reasonable person, would inevitably realize must subject the victim to the risk of some harm resulting from the said act. The Exhibit ‘D’ speaks for itself, the medical report. It specified the injury caused to the deceased person by the unlawful act of Appellant. The report specified the entry point was at the back side of the scapular and the exit point was from the chest between the 4th and 5th intercostal space. It is now settled, that an 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, see the case of OGHOR VS THE STATE (1990) 3 NWLR (Pt.139) 484 at 502.
The test of the plea or defence of accident, is always that if the act even though unlawful, is, not such that would, from the view of a reasonable man, cause death or grievous bodily harm though death resulted therefrom, the person charged, can only at most, be convicted of manslaughter. See the case of THOMAS VS THE STATE (1994) 4 SCNJ (Pt.1) 102 at 109, (1994) 4 NWLR (Pt.337) 129 per Wali JSC. It needs to be stressed, that the act leading to the accident must be a lawful act done in a lawful manner. Thus, for an event to qualify as accidental under Section 24 of the Criminal Code (C.C.), it must be a surprise to the ordinary man of prudence, that is, a surprise to all sober and reasonable people. The test is always objective. See ADEMOLA VS. THE STATE (1998) 1 NWLR (Pt.73) 683 at 692-693, (1988) 3 SCNJ68.

It must always be borne in mind that Section 24 of the Criminal Code does not deal with an “act” but an “event” and the event within the meaning of the section, is what apparently follows from an act. See AUDI UMARU VS THE STATE (1990) 3 NWLR (pt. 138) 363 at 870, DANIELS VS THE STATE (1991) 8 NWLR (pt.212) 715, CHUKWU VS THE STATE (1992) 1 NWLR (Pt.217) 255. NWALI VS THE STATE (1991) 5 SCN 14, SOLOMON ADEKUNLE VS THE STATE. 26 NSCQR 11, 1367 at pages 1393-1394. In the circumstance of the present case, I agree with the lead Judgment, that the defence of accident cannot avail the present Appellant. I again agree with the lead Judgment that the conviction for the offence of murder under Section 319 of the Criminal Code be substituted for manslaughter. I also abide by the term of imprisonment and the labour attached together with the time it will take effect as contained in the lead judgment.

(DELIVERED BY AMINA ADAMU AUGIE. JSC)
I had a preview of the lead Judgment delivered by my learned brother – Akaahs. JSC, and I agree that this Appeal should be allowed in part, bearing in mind the earnest intervention of the Hon. Attorney-General of Ogun State, Dr Olumide Ayeni, on behalf of the Appellant.

At the hearing of the Appeal, Dr. Ayeni pointed out that the Appellant was a Police Officer, and referred this Court to Section 271 of the Criminal Code Law of Ogun State, which provides as follows –

When a – – police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence, which is a felony, and is such that the offender may be arrested without warrant, and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for – – the police officer – – to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and, if the offence is such that the offender may be punishable with death or with punishment for seven years or more, may kill him if he cannot by any means otherwise be arrested.

The Hon. Attorney-General’s position is that if the above Section fits, the State will be happy to concede the Appeal, but if this Court finds that it is not applicable, the State will abide by this Court’s decision. He also urged this Court to do justice according to the law taking into consideration the defence open to the Appellant, under that Section.

As my learned brother noted, the said Section 271 is supported by Section 33 (2) (b) of the Constitution (as amended), which says –

A person shall not be regarded as having been deprived of his life in contravention of this Section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law of such force as is reasonably necessary.

(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained.

In this case, acting on a Petition titled “Threat to Life”; written by Solicitors to Chief (Dr) Titilayo Odusanya and Mr Segun Odusanya, the Appellant and two other Police Officers, booked for arms and left Ijebu-Ode with the Petitioners to Oloke-Ali Village, to arrest ail those mentioned in the Petition, including the deceased, Tunde Adegoyega.

To cut a long story short, PW4, who led the team of Policemen, arrested the deceased, and handed him over to the Appellant and one Corporal Hamzat. Apparently, the deceased attempted to escape from where he was seated with the Appellant and the said Corporal, and the Appellant pursued him to the back of the house, where he shot him.
In his Statement to the Police [Exhibit C] that he wrote himself, the Appellant said he pursued the deceased to effect re-arrest and that-

I then cocked my rifle to muzzle up and shot at air to scare the mobs, along the process my hand mistakenly touched the trigger as a result the suspect was accidentally shot.

In his defence, the Appellant narrated a different story, as follows –
Myself and the deceased started dragging each other in front of the house. He dragged me to backyard of the house where he saw a plank and wedged it at my left leg. I then fell down together with him. I sustained injury on my left knee.The deceased then grabbed my rifle. We were struggling with the rifle together. I do not want my rifle 10 go to the wrong hands because he can use the rifle against me and if eventually he succeeded in disarming me, he can make away with my rifle and use the rifle to terrorise innocent people.While the struggle lasted, I called for help from my colleagues to rescue me but nobody came to my rescue. As we were struggling for the rifle, the deceased, incited the villagers against us by saying “E le won, e bo won” (chase them and attack them). As we were struggling for the rifle, suddenly I heard a gunshot from my rifle. I thought I was dead because I met myself on the ground.. When I regained consciousness, I saw my rifle on the ground in front of me: I also saw the deceased lying down on the ground. I quickly got up and picked my rifle. As I was picking my rifle, my people came. They rushed to the scene. My O/C then instructed us to retreat from the village for possible attack from the villagers. We then retreated back to the station.

The medical examiner, who testified as PW3, and tendered Exhibit D. his Medical Report, said the entry point of the gunshot was through the deceased’s back, while the exit was on the left side of his chest.

PW4, who led the team, testified that while he was discussing with Chief Titilayo Odusanya on the side, he heard a loud shout from Corporal Hamzat and looked to see him lying on the floor; and that – The bench on which they sat down was on top of him. His rifle fell apart. I now discovered that as they sat down on the bench, the deceased was sitting at one end of the bench so when he stood up, the weight of Corporal Hamzat at the other end was too much. That was why he fell in the process Corporal Hamzat was injured and the deceased escaped while the Accused person [Appellant] pursued him. The next thing I heard was a gunshot and the deceased shouted. There and then the villagers came out en-masse and I order a retreat. We left the place.

Under cross-examination, PW4 stated as follows –

I and Chief Titilayo went to a distance to discuss how to get the others arrested, that was when I heard Corporal Hamzat shouted (sic). I found the bench they sat on fell on him. There and. then the deceased fled while the Accused [Appellant] pursued him to the side of the house.

PW4 also said that when the deceased escaped, the Appellant chased him to the back of the house, from where they heard the gunshot, and when they got to the place, they saw the deceased on the ground.

In finding the Appellant guilty, and convicting him for murder, the learned trial Judge, O. A. Onofowokan, J., stated as follows –

The question now is which to believe, claim of accident as a result of mistaken touch of the trigger or accident as a consequence of struggling for the rifle. Neither is credible and nothing but an afterthought. On the defence of self-defence, the material contradiction in the Statement of the Accused – Exhibit C and his evidence on oath makes the submission of counsel that the Accused was in apprehension of death – porous, preposterous and indeed, speculative. Even at that – – there is no evidence, direct or circumstantial, showing that the Accused was attacked or was under any threat of attack from the deceased to make him kill the deceased. The deceased could not be attacking the Accused and still got shot at from the back. The two defences therefore fail.

The learned trial Judge concluded as follows at 57/58 of the Record –
Both the Prosecution and the Accused are substantially on common ground on the facts and circumstances leading to the death of the deceased. It is not in dispute that the deceased died, neither is it in dispute that it was the Accused Person that shot and killed the deceased.. To exculpate himself of criminal responsibility, however, the Accused put up the defences of accident and self-defence, which defences I found to be phantom, frivolous and afterthought. In fact, the accused has no cognizable defence for his reckless and unwarranted action in shooting the deceased. His action cannot be justified and indeed condemnable. – -In the circumstances – – I am of the considered view that it will be foolhardy to even imagine that the Accused, who in attempt to arrest a suspect and not a convict recklessly aimed his gun, obviously at close range at the deceased and shot him from the back in the critical area of the chest region had another (sic) intention than to kill or cause the deceased grievous bodily harm. His clear intention, which I found proved from the accepted evidence on record, was to kill or cause the deceased grievous bodily harm. I find the evidence of the Prosecution overwhelming and substantially credible in discharge of the evidential burden on it. I find the guilt of the Accused of the offence of murder proved beyond reasonable doubt and I convict him accordingly.

In dismissing the Appeal and affirming the decision of the trial Court, the Court below, per Oniyangi, JCA, held that “the Appellant intended to terminate and snuff out life from the deceased”. He concluded –

The deceased, who was not armed with any weapon, cannot deserve to be shot with an AK47 rifle by the Appellant in a bid of alleged defence. There is nothing to justify that the deceased launched any attack on [him] to warrant being shot with gun, and which resulted into the deceased’s instant death.

The lower Courts have spoken, and there is nothing this Court can do about their concurrent findings on facts except to accept the said facts – see Ogoala V. The State (1991) 2 NWLR (Pt. 175) 506 SC.

However, the attention of the two lower Courts were not drawn to provisions of Section 271 of the Criminal Code Law of Ogun State; who is to say what their decision would have been if that was done?

The Hon. Attorney-General of Ogun State, Dr Olumide Ayeni. has done well in bringing the said law to the attention of this Court, and I thank him for putting justice first above other considerations.

The bottom line is that juxtaposing the said findings of fact with the said provision of the law, the only option open to this Court is to reduce the conviction of the Appellant from murder to manslaughter. Shooting the deceased at the back is, certainly, far from reasonable. In the circumstances, this Appeal is allowed in part. I abide by the consequential orders made by Akaahs, JSC, in the lead Judgment.

APPEARANCES
Henry Omu, Esq., for the Appellant

Dr. Olumide Ayeni (Hon. Att-Gen., Ogun State) with

I.A. Owolabi, Esq., (Senior State Counsel, MOJ Ogun State),

Otenghabun Ebose, Esq. (Special Assistant I to the AG) and

Adekolapo Ilori, Esq., (Special Assistant II to the AG)
For the Respondent

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