Clement Oguonzee Vs The State (1998)

LAWGLOBAL HUB Lead Judgment Report

A.I. IGUH, JSC.

The appellant, Clement Oguonzee, an Assistant Superintendent of Police, was arraigned before the High Court of Justice. Edo State, holden at Benin City, charged with the offence of murder punishable under Section 319(1) of the Criminal Code, Cap. 48. Vol. 11 Laws of Bendel State of Nigeria, 1976 applicable in Edo State. The particulars of the offence charged are as follows:-

“Clement Oguonzee (m) on or about the 18th August, 1994 at Oluku Junction, along Benin Lagos Expressway within the Benin Judicial Division shot and murdered one Remigious Mekoba.”

The accused pleaded not guilty to the charge and the prosecution called four witnesses at the trial. The accused also testified in his own defence but called no witnesses.

The substance of the charge as presented by the prosecution was that on the 18th day of August, 1994 the deceased, one Remigious Mekoba, and P.W. 4 his junior brother, were travelling from Lagos to Awomoma in Imo State in a Volvo car driven by the deceased. According to P.W. 4, the principal witness for the prosecution, at a road check-point between Ugbowo and Oluku near Benin City, along the Benin-Lagos Road, a team of policemen signalled to them to stop. This was at about 9 am in the morning. As they were on speed, the deceased did not see the policemen in time. The deceased after he had slightly driven past the policemen, stopped his car, engaged his reverse gear and drove backwards to the checkpoint. In answer to question by one of the policemen as to why he failed to stop, the deceased replied that he had eventually stopped.

At that stage, the appellant who was heading the team of policemen walked to their car, flung the driver’s door open. dragged the deceased out of the car and slapped him. When the deceased received the slap, he held his jaw and laid his head in pains on the bonnet of their car. The appellant, next asked the deceased a question which P.W. 4 did not hear as P.W.4 was still inside the car. As the deceased was about to answer the question, the appellant drew backwards to a distance of about seven feet, pointed his gun at the deceased and shot him on the left side of his chest. The deceased immediately held his left chest with hath hands and shouted saying “Vincent, I am dying, I am dying, I am dying.” At that stage, P.W. 4 rushed out of the car to assist his injured brother but they both fell on the ground. When P.W.4 got up, the appellant faced him by pointing the same gun at him but one of the policemen in the team stopped him by shouting “No, no, no” whereupon the appellant abandoned his aim.

P.W. 4 and about four policemen at the scene conveyed the deceased into a waiting police pick-up van but after about three minutes, transferred him into the Volvo car. One of the policemen in company of some of his mates drove the deceased with P.W. 4 to the University Teaching Hospital, Benin City where the deceased, on arrival, was certified dead. It was at this stage that the policemen melted away and P.W. 4 had to travel back to Lagos to report the incident.

The evidence of P.W. 2, the Medical Doctor attached to the Department of Pathology in the University of Benin Teaching Hospital who performed the postmortem examination on the body of the deceased deserves attention. According to the witness, there was a penetrating wound measuring 0.7 cm on the nipple of the left chest. There was a corresponding exit on the left upper back of the chest about 6cm from the midline, measuring 1cm indiameter. He gave detailed evidence of various internal injuries sustained by the deceased and came to the conclusion that he died of cardiac tamponade with corresponding cardio respiratory failure from a penetrating high velocity missile injury affecting the heart, the lungs and the bones. These were consistent with gun shot injury. He went on:-

“No other missile other than a gun could have caused the wounds I found on the corpse……….. The gun would have been fired within the range of 7 and 10 feet from the deceased……………. ”

Earlier on in his evidence, the witness had stressed thus:-

“The gun would have been shot between 7 to 10 feet from the person of the deceased and the injury could not have been self inflicted. The holes and wounds were caused by one and the same shot even though the wounds differed in diameter due to resisting forces of penetration of the bullet. These was no close encounter between the deceased and the gunman because there were no other external marks of injury and there were no vital reactions around the entrance wound of the bullet to suggest any struggle. The heart is on the left side of the chest. The shot wounded the heart and the lungs:”

The case for the appellant was that he and his men were on anti-crime patrol when he received an information that robbers were operating along the Benin- Lagos Road.

They proceeded to the scene of crime where he ordered his men to stop and search all private cars. Presently, a Volvo car drove in from the Lagos direction. The deceased was its driver. He drove past the checkpoint but eventually stopped. A policeman then went to him and demanded for the particulars of his vehicle. The appellant stated that there was argument between the deceased and the policeman as a result of which he personally went to the deceased and asked for his ignition key and particulars. The deceased refused and the appellant insisted on taking the ignition key from him. The deceased at this stage gripped the appellant’s pistol. The appellant claimed that he struggled to recover possession of his pistol from the deceased. It was in this exercise that the pistol exploded and the bullet hit the deceased accidentally. He claimed that the incident was one of accidental discharge.

At the conclusion of hearing, the learned trial Judge, Edokpayi, J., after an exhaustive review of the evidence on the 1st day of March, 1996 found the appellant guilty as charged and accordingly sentenced him to death.