Adegboye Ibikunle V. The State (2004)

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MUHAMMAD SAIFULLAHI  MUNTAKA-COOMASSIE, J.C.A.

The appellant herein, as an accused person before the High Court, Asaba Delta State, was charged on an information containing one count with the offence of murder, facts of which were that the appellant was a Police Sergeant attached to the Marine Division Nigeria Police, Asaba, Delta State. That on 21/5/2001, the appellant was one of the Police Officers who were on operations against armed robbers terrorizing Asaba Township. This is because earlier on, the appellant brought an information to the Divisional Police Officer B Division, to the effect that some notorious Armed Robbers, including one Nonso were present in town. PW10, acting on the said information swings into action and led three other Policemen, PW4, PW5 and the appellant.

After arresting ten suspected armed robbers in two Hotels, the same PW10 led some other Policemen including the appellant to No. 12B Onishe Street, Cable Point, Asaba in search of Nonso, a notorious armed robber who had recently escaped from Police custody and was suspected to be at that address that night. The information was provided by the appellant.

Apparently unknown to PW1 and his men. Nonso and his brother Ibeh 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 at night, they knocked at the door of the apartment but the male voice inside said he would not open the door inspite of the fact that the police officers disclosed themselves. The Police fired warning shorts in the air, the person inside refused to open. The Police team then forced the window open and the appellant fired tear gas canister. The deceased was frightened and shouted that he was not the one being sought.

The appellant then told the PWS4 and 5 to ignore him. The appellant again proceeded to destroy the doors and windows of the deceased’s apartment with cement blocks. Not satisfied, the appellant proceeded to fire tear gas canisters into the apartment of the deceased and despite repeated attempts to disarm and control him by PW10, the appellant jumped into the apartment of the deceased through the damaged window. The appellant gained access into the apartment and fired from his rifle, exhibit E, through the sitting room door into the bedroom. The shots hit the deceased in the abdomen causing his death. Appellant testified in his defence and called no witness, counsel then addressed the court.

In a considered judgment delivered on 26/9/2001, the learned trial Judge, Umukoro J, reviewed the evidence and convicted and sentenced the appellant for the murder of the deceased, His words:
“In my view, from all the acts of the accused, the reasonable man will conclude that the accused was intentionally out to kill the deceased. I hold the prosecution proved the case of murder against the accused beyond reasonable doubt. The deceased was not on the wanted list of the Police. There was no report against the deceased in any Police Station in any part of the world that the deceased alone or in concert with others committed any crime. The deceased was in his apartment at about 2.00 a.m. in company of his young wife, his window was damaged to gain entrance. Tear gas was thrown into the room. One may ask for what?
Even if the deceased was a suspected armed robber, what law entitled the accused to kill him extra-judicially. This was a cold-blooded murder. I believe all the prosecution witnesses. I disbelieve the accused…the accused is hereby found guilty as charged and convicted accordingly.”
See page 138-139 of record of proceedings.

The sentence was accordingly pronounced that the appellant be hanged by the neck until he be dead. Dissatisfied with the above judgment, the appellant lodged an appeal to this Honourable court and filed a notice of appeal containing initially three grounds and with the leave of this court filed 7 additional grounds of appeal. The grounds of appeal, both original and additional, without their particulars are stated as follows:

“1. The judgment is unreasonable, unwarranted, unnecessary and deficient, having regard to the evidence tendered before the lower court.

2. The lower court erred when it failed to consider the statutory defence opened to the accused as police officer as enshrined in the Police Act, Cap. 359, Laws of the Federation of Nigeria 1990 as to when a Police Officer can make use of his firearms in defence of himself.

3. The lower court erred in law when it selectively picked and choose who and what to believe amongst the prosecution witnesses, despite the contradictions or discrepancies in their evidence without making clear the basis upon which it exercised its discretion to believe or disbelieve.

4. The lower court erred in law in convicting the appellant for murder in the premises that ‘from all the acts of the accused, the reasonable man will conclude that the accused was intentionally out to kill the deceased’.

5. The lower court erred in law when it held ‘that the mission of the PW4, PW5 and PW10 plus the accused at the home of the deceased was strictly a function of the information supplied and dictated by the wisdom of the accused. It was not in pursuit of any criminal report against the deceased or any other criminal…’.

6. The lower court erred in law in not affording the appellant, a Police Officer, the constitutional and statutory protection afforded by S. 33 (2)(b) of the 1999 Constitution, the Police Act and the Criminal Procedure Law.