Adegboyega Ibikunle V. State (2007)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C

The appeal herein emanates from dismissal of the appellant’s appeal by the Court of Appeal, Benin Division on 8th April, 2004. This was sequel to his conviction and being sentenced to death for the murder of one Godspower Edeha by the Delta State High Court sitting at Asaba Coram: Umukoro, J. On 26th September, 2001. The facts of the case briefly stated, are that the appellant, a Police Sergeant attached to the Marine Division, Nigerian Police, Asaba, Delta State on 21/5/01 was one of the Police Officers engaged in operations against armed robbers terrorizing Asaba Township. That the Police after successfully arresting some of the suspected armed robbers at two hotels, the Divisional Police Officer (DPO) who testified in the trial court as 10PW, led some of the Police Officers including the appellant to No. 12B Oritshe Street Cable point, Asaba in search of one “Nonso” a suspected notorious armed robber who recently escaped from police custody and was suspected to be at that address that night.

Unknown to PW 10, the DPO and his men, Nonso and his brother, Ibe, had only two weeks earlier, moved out of the premises which belonged to their late father 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 that night, they knocked at the door of the apartment which they thought was Nonso’s but the male voice emanating there from 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. Still believing foolhardily that the man inside was Nonso, as he refused to state that he was not Nonso, and he was not prepared to open his door even after firing warning shots into the air, the police officers forced the window open and fired tear gas inside the apartment. The man still did not open the door but instead was warning the Police officers to leave or else he would kill any Police officers who dared to come inside with the cutlass he was holding.

The appellant summoned courage and jumped into the apartment through the window but the man 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 effort to incapacitate the deceased and effect his lawful arrest, fired a single shot from a rifle (Exhibit “E”) 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 from the apartment, it downed on them that the deceased was hit in the abdomen and that he was not the notorious “Nonso” who they were in search of.

The appellant’s trial ended in his conviction and sentence to death by hanging. His conviction and sentence were affirmed by the lower court.

Dissatisfied with the decision of the lower court, the appellant appealed to the Supreme Court. By his notice of appeal, the appellant formulated three grounds of appeal.

ISSUE FOR DETERMINATION

The sole issue the appellant formulated for determination from the three grounds is as follows: –

Was the lower court right in affirming the decision of the trial court that the defences provided for in S.33(2)(b) of the 1999 Constitution and section 7(1)and (2) of the Criminal Procedure Law of Delta State and S.4 of the Police Act Cap.19 2004 Laws of the Federation of Nigeria, were not available to the appellant on the facts and on the circumstantial evidence before the court ( emphasis supplied by me). The respondent for its part also proffered one issue as arising for determination, to wit: Whether in the circumstances of this case, the appellant who admitted that he killed the deceased, used such force beyond the extent and contrary to the circumstances permitted by law.

In my consideration of this appeal, the respondent’s lone issue I think will be to dispose of the case. The policemen at Asaba were on a mission that day to apprehend criminals at different locations in the town which at the material time was under siege of armed, notorious and dangerous armed robbers.

The mission to the deceased’s house at 12B Oritshe Street, Cable Point, Asaba, was in the belief that a notorious armed robber named “Nonso” who escaped from custody was held up there. Albeit, it is immaterial that the source of the information was the appellant, there being no evidence that the appellant and the policemen had another motive or reason for going to Oritshe Street other than for the apprehension of this notorious criminal. The important and material fact is that the DPO (PW10), as leader, agreed to proceed to 12B Oritshe Street to apprehend the said “Nonso”. Factual and undisputed foundation had been laid in the evidence of this witness for the reasonable belief that “Nonso” was living at No. 12B Oritshe Street at the material time. Undoubtedly, Nonso had lived there before or used to occasionally do so. Indeed, the deceased and his family had just moved into the premises barely two weeks before the unfortunate incident; thus strengthening the belief that “Nonso” was believed to be still Living there or was coming there. So revealed the evidence of PW3, Shola Oyewale, the neighbour who testified that the deceased and his family had just moved into the premises barely two weeks before the incident. Thus, at the deceased’s house it was deposed by PW2 that the deceased, in spite of several entreaties, had refused to identify himself or disclaim the belief of the Police that he was “Nonso”. All the prosecution witnesses, except PW2 (Understandably being the spouse of the deceased) confirmed the above. In their evidence PW4 and PW5 illustrated how the deceased as even though fully aware that it was the Police who were asking him to open the door or surrender himself, refused to do so and even went on to state that his body was bullet proof and was even shown to have bragged scornfully thus:

“Police go way. I know you have a gun but that gun is ordinary water in my body.”

The deceased was shown to be armed with a machete and to have made consistent threats to kill anyone who attempted to enter the room in which he was.

From the evidence of PW4 and PW10 it was demonstrated how the appellant was apprehensive of his safety and indeed expressed his anxiety to PW 10. Further, that appellant refused to enter the parlour without being armed since he knew, as they all did, that the deceased who they all reasonably believed was “Nonso” the fugitive dangerous criminal, was therein armed and an attempt to force him out with tear gas had earlier failed.