Sunday Omini V. The State (1999)

LAWGLOBAL HUB Lead Judgment Report

G. KARIBI-WHYTE, J.S.C.

On the 7th November, 1995, the Appeal of the Appellant to the Court below against his conviction for Murder under Section 319 of the Criminal Code was allowed, the sentence set aside, conviction for the offence of Manslaughter under section 317 of the Criminal Code was substituted. Appellant was accordingly sentenced to imprisonment of ten years with hard labour instead of death by hanging. The decision was unanimous. Appellant has further appealed to this court against the judgment of the court below.

The Facts.

The facts of the case are clear and undisputed; apart from the variance of the defence on his evidence at the trial from his extra judicial statement. They are contained in the evidence of PW 1, and of the accused. Appellant, a Police Officer, attached to the Mobile Unit of the Nigeria Police Force, was on duty at a road block mounted on the Lagos-Abeokuta Road, along Owode village, on October 8, 1986. Appellant signaled the on-coming driver of OG 6656 EB to stop at the Police check point at Owode Village Road, and ordered him to park his vehicle on the Kerb side of the road beyond the check point. The driver of OG 6656 EB complied. When the driver alighted and walked to the Appellant to inquire for the reason for the order, he heard the sound of a gun shot, followed by the screaming and shouting of people from behind him. The driver PW 1 observed that the passengers in his vehicle were hurriedly rushing out of it. When he moved closer to the vehicle, the driver, PW1, discovered that one of the passengers had been hit by bullet on her forehead and was bleeding. PW1 stated in evidence that Appellant waived him off and advised him not to get nearer when he inquired why Appellant had to shoot. However, Appellant agreed and co-operated with PW2 to covey the injured passenger to the hospital at Ifo township. Unable to get medical attention at the hospital in Ifo town, the injured passenger was removed to Ilaro hospital and for the same reason of lack of medial attention the injured passenger was moved to the State Hospital, Abeokuta, where she died within three minutes of arrival.

Appellant, with four other Police Officers, were at the road block, at Owode Village on the Lagos – Abeokuta Road, on the 8th October, 1986. Appellant was in charge at the road block. The account of the incident as narrated by the Appellant varied in material respects from the account of PW.1. According to Appellant there was the vehicle with registration No. 3FGN 745 with full headlights on at about 9.30 a.m. on the fateful day, overtaking all the vehicles ahead of it on the same side of the road while coming from Lagos to Abeokuta. Appellant signaled 3FGN 745 to stop at the road block. It stopped in the middle of the road behind another commercial vehicle, all approaching the road block. The vehicle 3FGN 745 began to move rather slowly behind the lorry in front of it. When the lorry in front completed the road block, 3FGN 745 accelerated in high speed across the centre of the road block. Appellant said that the occupants about five in number had arms and were firing their guns incessantly at those standing by the road side.

Appellant stated that he ducked and lay flat on the ground. He later grabbed his gun and fired towards the direction of the vehicle 3FGN 745 then speeding away towards Abeokuta. He pointed his gun at the rear tyres with the intention of deflating the tyres at the rear. The vehicle 3FGN 745 continued and drove away at great speed. Appellant heard and saw some passengers in OG 6656 EB in panic. He left his duty post which was almost one electric pole from where he was standing at the road block, to attend to the passengers in OG 6656 EB. Appellant saw the injured passenger who was bleeding from the centre of her forehead, and arranged to transport her to the hospital at Ifo Health centre. It was when Appelalnt was looking for the driver of OG 6686 EB at Ifo that he was arrested by Inspector Obioma and locked up at the Ifo Police Station with P.C. Seke. Both were later taken to Otta Police Station till 10/10/86, Elewe-Eran Police Headquarters to Ilaro Federal Prisons on the 27th October, 1986.

Appellant was subsequently charged with the offence of murder contrary to section 1I9 of the Criminal Code arising from the incident. At the trial, the Prosecution called four witnesses who testified; this included the driver of OG6656 EB, the PW1, in whose vehicle the deceased was travelling. Testifying before the trial Judge in evidence PW1 stated that it was when he was trying to park his vehicle that appellant fired the fatal shot which shattered the back windscreen of his vehicle OG 6656 EB and hit Taiwo Akinwande sitting at the last row at the rear entrance door of the vehicle. PW 1 stated that he heard the sound of a gun shot only once, and that no other vehicle passed by before he heard the gun shot which injured and killed Taiwo Akinwande. At the trial the Prosecution tendered the statements of the Appellant on the 8th and 10th October Exhibits “B” and “K”. Also tendered at the trial is Exh. H., a letter from the Permanent Secretary, Federal Ministry of Agriculture, Federal Department of Forestry, 6 Ijeh Village, Obalende. Lagos, stating that 3FGN 754, (sic 3FGN 745) a white coloured station wagon was assigned to take an officer to Enugu for official assignment on 5th October, 1986. The vehicle arrived Enugu at about 4 p.m. the same day. The vehicle has been in Enugu since that day. The Prosecution also tendered a post mortem report, Exhibit D which confirmed that the cause of death was traced to fractured skull and brain damage. There was also a ballistician’s report and the magazine containing 19 live ammunitions, were tendered as Exh. E & F.G.

Appellant testified in his own defence, he admitted he fired a shot from his SMG gun on that day. He claimed that he directed his shot at the tyres of a Peugeot 504 station wagon with registration No. 3FGN 754 (sic 3FGN 745) whose passengers were firing indiscriminately at the road block on that day. Appellant denied that it was his own shot that hit the passenger in OG 6656 EB. He claimed it must have been a shot from 3FGN 754 (sic 3FGN 745) that hit the deceased Taiwo Akinwande.

After the address of counsel for the Prosecution and of the Defence, the learned trial Judge, Somolu J., found the Appellant guilty of the offence of Murder as charged.

Some specific findings of the trial Judge:

The learned trial Judge did not believe the defence of the appellant that he fired at the tyre of the 3FGN 745. As he expressed it:

“Why if accused was behind 1st PW’s passenger at the time he fired his SMG gun was Taiwo Akinwande who was at the rear and with her back obviously turned towards where accused stood to fire his gun from Particularly as the rear windscreen of the 1st passenger bus and not the front windscreen of the 1st passenger bus was what was also smashed at the firing of the gun shot which hit it simultaneously to when deceased Taiwo Akinwande was hit and injured.”

The learned trial Judge doubted the possibility of 3FGN 754 (sic 3FGN 745) being found at the scene of crime in that place at the time. There was no evidence of the disappearance or earlier theft of the vehicle 3FGN 754 (sic 3FGN 745) at Enugu. The learned trial Judge also found as a fact that when the incident was fresh in his mind, accused admitted that even if the other vehicle with Registration No. 3FGN 754 (sic 3FGN 745) was present at the scene of the crime, it was the shot from his gun which he fired that hit the passenger in the bus of 1st PW, resulting in the death of the deceased, Taiwo Akinwande. The learned trial Judge preferred the evidence of PW1 to that of the Appellant. He found the evidence of PW1 more truthful and consistent. Finally the learned trial Judge held at pp. 40:

“I would prefer as between 1st PW, and accused admitted the evidence that no Peugeot 3FGB 754 came on the scene at the same time as the police road block at Owode village that of 1st PW’s bus on the fateful day in question. Or was present at all at the scene from which any of its occupant could have fired any guns when the passenger bus of 1st PW arrived at the scene and was subjected to the official directive of accused to pass through and park at the kerb side, with Taiwo Akinwande as one of its passengers sitting at its rear seat. From the comparisons of Exhibits B and K which are the two statements made by accused, soonest to the occurrence of this event, that on 8/10/96 and 10/10/96 respectively. I resolve respectively regrettably favourably in 1st PW’s favour any divergence which occurred between him and accused of the testimonies of the events which culminate on the 8th of October, 1986 to result in the death of Taiwo Akinwande, deceased.”