Adegboye Ibikunle V. The State (2004)
LawGlobal-Hub Lead Judgment Report
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.
7. The lower court erred in law in rejecting the defence of provocation.
8. The lower court erred in law in rejecting the defence of accident.
9. The lower court erred in law in rejecting the defence of self-defence.
10. The lower court erred in law in holding that the prosecution witnesses did not contradict themselves, thereby denying the appellant the benefit of resolving such conflict in his favour.”
Briefs of argument were filed and exchanged. An appellant’s brief and a reply determination. The respondent in turn formulated only one issue for our consideration.
The four issues distilled by the appellant are stated hereunder-
P2 of the appellant’s brief thus:
“(i) Whether the evidence before the court supports the finding by the lower court that the appellant ” was intentionally out to kill the deceased?. (Grounds 1 & ii) .
(ii) Whether the appellant, being a police officer, is in the circumstance entitled to the constitutional and statutory protection afforded by: S. 33(2)(b) of 1999 Constitution, the Criminal Procedure Law and the Police Act?. (Ground iii).
(iii) Whether the defences of provocation, self-defence and accident ought to avail the appellant in the circumstance?. (Grounds iv, v & vi).
(iv) Whether the totality of the evidence proffered especially concerning the circumstances whereby the deceased met his death justified the conviction for murder?. (Ground vii)”.
The respondent’s issues are stated as follows:
“(i) Whether having regard to the evidence before the court, the learned trial Judge was right to have held that the prosecution proved the offence of murder beyond reasonable doubt?. (Grounds 3, 4, 5 and 10 of the grounds of appeal).
(ii) Whether the defences of constitutional protection, provocation, accident and self-defence availed the appellant in the circumstances of the case? (Grounds 2, 6, 7, 8 and 9 of the grounds of appeal).”
In regard to the first issue for determination, the main grouse of appellant’s counsel is that the appellant was convicted in the proposition that the killing of the deceased was premeditated. In other words, can it be said that the evidence supports the finding that the appellant was intentionally out to kill the deceased. I think the crime of murder is the most heinous but easy to prove or disprove.
The offence of murder, in section 316 of the Criminal Code Law, Cap. 48, vol.2 of Bendel State of Nigeria, applicable to Delta State, is defined as:
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
1. if the offender intends to cause the death of the person killed, or that of some other person;
2. if the offender intends to do to the person killed or to some other person some grievous harm;
3. if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life;
4. if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
5. if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
6. if death is caused by willfully stopping the breath of any person for either of such purposes; is guilty of murder.”
Learned counsel, Layi Babatunde, Esq., cited the decision of the Supreme Court, on the ingredients of the offence of murder as propounded by Karibi-Whyte, J.S.C., in the case of Ogba v. State (1992) 2 NWLR (Pt. 222) 164 at 198 paragraph G as follows:
“(i) that the deceased has died;
(ii) that the death of the deceased has resulted from the act of the accused; and
(iii) that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.”
I agree with learned counsel to the appellant on page 3 of his brief that the burden of proof in any proceedings in which the allegation of crime is in issue lies on the person who asserts it by virtue of Section 138 of the Evidence Act, Cap. 112, LFN, 1990. It may not be out of place to refer to an English case, which used to be referred to as locus classicus, on the principle of burden of proof in criminal cases. It was laid down thus:
“With the exception of the defence of insanity, and subject to certain statutory exceptions, the onus of establishing beyond reasonable doubt that the accused not only committed the act, but that he did it with the necessary mens rea, rests on the prosecution and never shifts to the defence.”
In this appeal, I dare say that nobody doubts the fact that the prosecution had proved beyond reasonable doubt that the deceased died under the hand of the appellant. In other words, the appellant, on the evidence before the court, could not be heard to deny that the deceased died as a result of the firing at the deceased by the bullet from the appellant’s rifle, exhibit E. The shots from the appellant’s rifle, according to the credible evidence before the lower court, hit the deceased in the abdomen causing his death. The above position was accepted by all concern including the appellant and his counsel.
I also agree with the appellant’s counsel contention on page 2 of their brief that the appellant was convicted for murder in the premises that the killing of the deceased was premeditated. And it was clear from the word premeditated that the appellant thought of the act before hand. In fact the premeditation was defined as:
“A design formed to do something before it is done, or that decision or plan to commit a crime, such as murder, before committing it.”
See p. 1062 of Blacks Law Dictionary 5th Edition.
There is a word which is akin to pre-meditation which is malice afore-thought and it was defined as ‘a pre-determination to commit an act without legal justification or excuse’, again, it is the intentional doing of an unlawful act which was determined upon before it was executed. Or better still, malice afore-thought, is an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in a callous and wanton disregard of the consequences to human life one can go on and on. Can we now say with certainty that the appellant has committed that heinous act with the relevant mens rea? Namely whether the murder was intentionally committed by the accused appellant?
The appellant’s counsel submitted that the accused was not intentionally out to kill the deceased. He maintained that the learned trial Judge did not properly evaluate the evidence before him, had he properly evaluated the evidence he would not have arrived at the conclusion he reached. According to the appellant’s counsel, the learned trial Judge did not properly consider the link between Nonso vis-a-vis the apartment at No. 12B, Onishe Street, Asaba, where the fatal incident took place and the fact that he was a notorious armed robber wanted by the Police. Moreso, when the DPO testified as PW10 to the effect that yes, it is true that there was indeed one notorious armed robber called Nonso who had escaped from police custody.
According to the learned counsel, the most annoying finding of fact by the trial Judge was that of holding that the accused was at the house No. 12B Onishe Street, on unlawful mission. He then referred to page 122 lines 34-39 of the record of the proceedings, and submitted that this erroneous findings led that court to hold that the accused ‘was intentionally out to kill the deceased’.
Learned counsel then referred to the evidence of the Appellant vis-a-vis that of PW10, PW4 and PW5 concerning the information allegedly sourced by the appellant leading to the home of the deceased and concluded that the lower court’s finding is erroneous.
Learned counsel for the appellant, I must admit fought like a wounded Lion and finally submitted that the evidence before the learned trial Judge does not support His Lordship’s finding that the appellant was intentionally out to kill the deceased.
Learned counsel for the respondent Prof. Utuama, held differently. He argued that in view of the clear and unambiguous nature of the evidence proffered by the prosecution at the court below, the learned trial Judge was right when he held that the prosecution discharged the burden placed on it by law. Learned counsel for the respondent continued and contended that in arriving at this conclusion, the learned trial Judge made inevitable findings of facts, which were supported by the evidence, and are not perverse. He correctly evaluated the evidence in a careful and painstaking manner in his judgment.
That being the case, counsel urged us not to upturn the findings of the lower court. He relied on Iko v. State (2001) NWLR (pt. 732) 221; (2001) FWLR (Pt. 68) 1161 at 1189 paras. F-G; and Isibor v. State (2001) FWLR (pt. 78) 1077 at 1101 paras. B-D 1103; paragraphs A-C.
Learned counsel again submitted that an examination of the evidence adduced by the prosecution would lead to the conclusion that the prosecution proved its case beyond reasonable doubt and the trial court rightly decided to that effect. He referred to the ingredients of the offence of murder to support his submission. He also relies on the case of Durwode v. State (2000) 15 NWLR (Pt.691) 467, (2001) FWLR (Pt. 35) 950 at 974 – 975.
I have considered the submissions of the learned counsel for the appellant attacking the findings of facts by the learned trial Judge. I have equally looked at the submission of the learned counsel for the respondent on the same point. I have also considered closely the appellant’s reply brief. As a result, I want to state the obvious that once findings of facts made by the trial court are supported by evidence and are not perverse, an appellate court cannot upturn same; and that it is within the province of the trial court to evaluate evidence and attach probative value. If that shall be otherwise, the appellate court may be tempted to substitute its own discretion for that of the trial court.
This should not be allowed to happen. The Supreme Court in Lori v. State (1980) 8-11 SC 81; and in Julius Berger (Nig.) Ltd. v. Femi (1993) 5 NWLR (Pt. 295) 612 at 620 paras. E-F posited thus:
“An appellate court will not readily interfere with the exercise of discretion by a trial Judge unless it is shown that the trial Judge acted on a wrong principle or the said discretion was wrongfully exercised. The rationale for this is to ensure that an appellate court does not routinely substitute its own exercise of discretion for that of the trial court.”
Without much ado, the evidence adduced by the prosecution supported the finding of the trial Judge and his Lordship in my respectful view, applied the correct principles of law in that regard. The pieces of evidence before the learned trial Judge made the stance taken by him unassailable and I so hold.
However, to be fair to the appellant in view of the fact that he is facing a murder case, one is bound to revisit the defences raised by the appellant and others. In other words, the accused person, in this matter, the appellant, is not restricted in the consideration of his defence, only to the defences raised by him. It is clearly lawful for the court suo motu to consider other defences rightly available to him. The important issue is the availability of credible evidence supporting such defence or defences.
It was held that “in a trial of murder, it is the duty of the court to consider all the defences raised by the evidence, whether the accused persons specifically put up such defences or not, although, it is not right for any court to conjecture or to imagine points in respect of which no evidence has been raised or given”.
It is therefore clear that if there is evidence of self defence or insanity, for example, and the trial court failed to consider it the appellate court is duty bound to allow the appeal to make an appropriate order either to discharge the appellant or reduce the sentence.
It is my considered view, that the safest thing to do is to consider all the possible defences vis-a-vis the accepted evidence to act accordingly. Oguntolu v. State (1996) 2 NWLR (Pt. 432) 503/505. In Ojo v. State (1973) NSCC 590 at 594 Sowemimo, J.S.C., has this to say:
“It is a settled principle that an accused in a murder charge is not restricted in the consideration of his defence to the defence raised by him, but it is open to the court to consider other defences available to the accused on the facts preferred or established before the court of trial. On appeal, the appeal court will consider all the defences open to the appellant on the facts established in the court of trial, in spite of the fact that such defence or defences were not considered in the lower court. The limitation must always be observed that counsel must be satisfied that there are facts established which are likely to be considered as adequate proof of such defences.
In a trial court, the Judge will, beside any defences put up by an accused, consider such other defence or defences as are open to an accused on such facts as are found by him and which may be considered as adequate proof counsel should, however, avoid raising contradictory defence …” See also Fadina v. R. (1984) SCNLR 250; Udofia v. State (1984) 12 SC 139.
I will consider one of the defences first under issue No. II, raised by the appellant’s brief on p. 6 thereof on the issue of the appellant being a police officer, whether he is entitled to the constitutional and statutory protection afforded by:
1. S.33 (2) (b) of the 1999 Constitution;
2. The Criminal Procedure Law;
3. The Police Act.
I agree that the appellant, a Police Officer in a proper circumstance could be covered if the death of the deceased is proved to be within the law without any transgression or violation. Section 33(2) (b) of the 1999 Constitution 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 person lawfully detained.”
That being the case, not all death is unjustifiable. Death through the executioner’s sword could be excusable. I cannot see how the duties of the Police would warrant the appellant act the way he did in most dreadful manner. When the PW10 testified that he announced himself to the man inside but persisted that nobody should come inside. What did he do next? Nothing. But the accused jumped at the conclusion and started shooting and throwing tear gas through the window. The appellant can never qualify as public executioner.
I have checked section 7(1) and (2) of the Criminal Procedure Law and S. 4 of the Police Act, Cap. 359, Laws of the Federation of Nigeria, 1990, and the submissions of the learned counsel for the appellant and hold that the evidence in which the appellant would seek protection under those laws is never settled and credible. The point and facts referring to Nonso, the notorious robber, are never certain they are more or less conjecture.
The fact that if Nonso was indeed at No. 12B Onitshe Street, Asaba, (the place of murder) that night, he would be with his colleague in arms did not establish anything against the deceased, nor in favour of the appellant. The lower court was right not to rely on those guess work in making a decision one way or the other.
I have closely considered the defence raised by the learned counsel for the appellant on behalf of the appellant that the appellant had used reasonable force in order to effect a lawful arrest.
I am unable, with respect, to agree with the above submission. Instead, there is evidence of show of unbridle force and arrogance on the part of the appellant which removed him from the protection of the law under the constitution and the Police Act supra. The death of the deceased in this case cannot be said to be permitted by law under the circumstances of this case. See Irek v. State (1976) 4 SC 65/68; Enakeru v. State (1984) 9 SC 17/19.
The appellant’s issue II on page 6 of the appellant’s brief, cannot hold any water, same is hereby rejected and dismissed.
Provocation
The appellant has raised the defence of provocation and his counsel propounded same. Who then provoked the appellant to warrant him firing several shots aimlessly in the room where Godspower was? Even if their Nonso was believed to be there, was the appellant allowed to use such force to arrest him? Or was he allowed to kill the victim out-rightly? The lower court considered the defence of the provocation and rejected same. I read the 152 record of proceedings but could not see where credible evidence exists to prove:
1. that there was a grave and sudden provocation;
2. that the act of killing was done in the heat of passion before there was time for heat of passion to cool; and
3. that the retaliation was proportionate to the provocation offered.
Before the appellant or any accused can successfully raise the defence of provocation, the provisions of sections 284 and 318 of the Criminal Code must be met by showing the above three points through an acceptable evidence. See Okonji v. State (1987) 1 NWLR (Pt. 52) 659 at 668; where Nnamani, J.S.C., of blessed memory stated as follows:
“As regards provocation, the court have in several decisions dealt with the provisions of sections 284 and 318 of the Criminal Code. See the case of Obaji v. State (1965) NMLR 417; R. v. Nwanjoku (1937) 3 WACA 208; R. v. Afonja (1955) 15 WACA 261. The provocation under this section must be grave and sudden and must be such as to take away from the accused the power of self-control. See also the Queen v. Ngba Haaba (1961) NNLR; Mancini v. D.P.P.C (1941) 2 All ER 272; Aganmonyi v. A.-G., Bendel State (1987) 1 NWLR 26.
In all these cases, there has to be a grave and sudden provocation; the act of killing must have been done in the heat of passion before there was time for passions to cool; then there must be retaliation not disproportionate to the provocation offered.
The deceased was not armed with any weapon. He did not brandish any in front of the appellant. The room was dark. The victim, now the deceased, was only staying there with his helpless wife. The credible evidence available was that the appellant, without any evidence of provocation, shot the deceased. I have no cause to disturb the findings of the lower court in rejecting the defence of provocation raised by the accused.
The evidence of PW5, a Policeman like the appellant, under cross-examination supports the trial Judge that a person like the appellant is not entitled to take the benefit of this defence. PW5 says:
“The accused was overzealous on that day. The accused cared less for anybody and threw the tear gas into the room. The accused acted in a way more than the way a Policeman is supposed to act.” See Ogundimu v. State (1979) 3 CA 12.
Now can we say that the act of the appellant in killing the deceased accidental as to enjoy the protection afforded under section 24 of the Criminal Code, which says:
“Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident.” See Adelumola v. State (1988) 1 NWLR (Pt. 73) 683/693.
Accident is unplanned or unintentional. The Supreme Court per Oputa, J.S.C.:
“It seems to me that the expression ‘an event which occurs by accident’ used in section 24 of Cap. 42 of 1958 describes an event totally unexpected by the doer of the act and also not reasonably to be expected by any ordinary person, the reasonable man in law. In other words, the test is both subjective from the stand-point of the ordinary man of common prudence. The event should, to qualify as accidental be a surprise both to the doer of the act that caused it and a surprising thing to all and sundry. An event is thus accidental if it is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence. Our law is that a man is presumed to intend the natural consequences of his acts.”
In the appeal at hand, based on the evidence adduced and accepted by the lower court, the appellant both intended to cause not only a grievous bodily harm, but also the death of the deceased. There is no iota of evidence to show that the appellant’s life was in any danger. Laoye v. State (1985) 2 NWLR (Pt. 10) 832 per Nnamani, J.S.C.
I hold, after combing the record of proceeding and the position taken by the respondent’s counsel, that the defence of accident under section 24 of the Criminal Code was truly and certainly not available to the appellant herein.
It is in evidence that act of the appellant was deliberate and voluntary. He actually willed it. In such a circumstance, one cannot be heard to talk about accidents, such act clearly negates the defence of the accident. I therefore agree with the submission of the learned respondent’s counsel on page 15 of their brief, which was deemed filed on 15/10/2003. See the case of Aliyu Bello & Ors. v.A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828 where Justice Karibi-Whyte, J.S.C., stated the law thus:
“An accident is the result of unwilled act, and means, and event without the fault of the person alleged to have caused it.”
The learned erudite Justice of the Supreme Court above has said it all, and I am bound by it. The death of the deceased, Godspower, as a result of the firing of exhibit F by the appellant was foreseeable and would not be a surprise to all sober and reasonable people. Unless if the appellant voluntarily took alcohol for the purpose of killing the deceased or took some drugs to have a dutch carriage. Again, there is no evidence to that effect. The two cases cited by the respondent are apposite. See:
1. Adelumola v. State (1988) 1 NWLR (Pt.73) 33;
2. Igago v. State (1999) 14 NWLR (Pt. 637) 1
I think here again that there is no evidence available to the appellant to avail him vis-a-vis the defence of the accident. The learned counsel for the appellant struggled to save the appellant from the hangman’s noose by all means. He then urged this court to consider that the murder is nothing but self-defence. The defence of self-defence raised by the learned counsel is still a mystery to me. I cannot imagine that a mere so-called brandishing a cutlass, by the deceased could constitute a havoc or hazard to the appellant.
This piece of evidence was not even corroborated by other prosecution witnesses or that of the defence. Can that singular act amount to a threat of imminent death to the appellant? No, it cannot. None of the Policemen with the appellant became threatened to it. How can the appellant behave differently? I hold as held by the learned trial Judge that there is no evidence to uphold that self-defence was available to the appellant.
I kept wandering why the learned trial Judge insisted on indulging the appellant whenever he raised these frail and flimsy defences which there was no evidence to substantiate same. Anyway the learned trial Judge has done well in fully considering the defences raised by the accused before him, no matter how stupid they may be. This court had once decided in accordance with the stance taken by the trial court to consider all sorts of defences raised. See decision of Ndoma-Egba, J.C.A., in Ahamba v. State (1992) 5 NWLR (Pt. 242) 450/469 para. A, relying on the case of Abgbuluwa & Other v. Commissioner of Police (1961) All NLR (Pt. IV) 850. I hold that all the defences raised by the appellant could not avail him. In fact, I looked around I could not see evidence to support any conceivable defence to be resolved in favour of the appellant.
Having adumbrated my reasons above, it is my humble view, with all sense of responsibility, that the prosecution has proved their case against the appellant beyond reasonable doubt. The findings of the lower court not being wrong or perversed could not be disturbed by this court. It is only when evidence available is credible and accepted by the trial court that defence or defences can be seriously considered and resolved in favour of the defence. I hold that such evidence is not forthcoming. I, therefore, agree with the learned trial Judge that the evidence supporting the various defences raised by the defence is incredible; therefore, no defence can be founded on them. My
Lords, I hold that the learned trial Judges position in returning the verdict of guilt against the appellant is unassailable.
In the circumstances of this case, I find all the grounds of appeal together with their issues failed as they are devoid of any merits. The conviction and sentence are in order, same are hereby affirmed.
Appeal is therefore dismissed.
Other Citations: (2004)LCN/1564(CA)