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.
The findings of the court below affirming the findings of fact made by the trial court as unassailable are as follows:
a. The death of the deceased at about 2.am on 21st May, 2000, was caused by the appellant who fired a gun shot that hit the deceased in the thoracic cavity.
b. The previous day, being 20th May, 2000 the appellant informed PW 10 that some notorious armed robbers were present within the Asaba, metropolis;
c. PW10 led a team of policemen, with the appellant acting as a pointer, in search of the suspected armed robbers to No. 12B, Orishe Street, Cable Point, Asaba;
d. It was the appellant who pointed out the apartment occupied by the deceased at No.12B Orishe Street as the residence of the suspected armed robber.
e. There was no report against the deceased in any Police Station.
f. There was nothing to suggest that a crime was committed in the residence of the deceased.
g. That the time was about 2.am and it was the appellant who knocked on the door of the deceased’s apartment and asked for “Nonso”.
h. The deceased was frightened and he said that he was not the person being sought by the police;
i. Tear gas was thrown into the room of the deceased;
j. The policemen were not threatened with any injury nor did they sustain any form of injury;
k. The appellant used cement block to damage the window and jumped through the damaged window into the apartment of the deceased, despite repeated attempts by PW 10 to disarm and control him.
l. The appellant fired a gun shot through the door into the room where the deceased was and the shot hit the deceased in the abdomen causing his death.
m. PW 10 did not order the appellant to shoot the deceased.
n. The deceased died from the injuries he sustained from the gun shot fired by the appellant.
o. The shooting was intentional and not accidental.
p. The deceased who remained in his room throughout did not provoke the appellant while the appellant could not rely on the defence of provocation.
q. The appellant’s life was not in danger of imminent death and there was no evidence to support the defence of self defence.
I take the view that the lower court was perfectly right and entitled to accept and affirm the findings of the learned trial Judge which have not been shown to be perverse or unsupported by the evidence. See Durugo v. State (1992) 7 NWLR (Pt.255) 525 at 535, para. .
Despite his failure to appeal against these concurrent findings of fact, appellant made a submission seeking to impugn the evaluation of the evidence by the lower courts and their findings of fact. In this regard, I am mindful of the fact that it is settled law that the Supreme Court will not reverse concurrent finding except special circumstances can be shown by the appellant. See Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524 at 548, para. D-F. In instant case, the appellant has not been able to show from the angle of the trial court that it had not pre-eminently the privilege to see and hear the witnesses which the court believed, cannot have their testimony treated lightly since his conclusion thereon is presumed to be correct and ought not to be disturbed. It is against that background that the appellant’s argument of the sole issue for determination will have sway thus:
Constitutional and Statutory Defences Not available to the appellant. The Constitutional and statutory defences implied in section 33(2)(b) of the 1999 Constitution, Section 7(1 ) and (2) of the Criminal Procedure Law and Section 4 of the Police Act were submitted for determination of the court by the appellant. Be it noted that the appellant not having advanced any argument on Section 4 of the Police Act must be deemed to have abandoned it. See Effiom v. The State (1995) 1 NWLR (Pt.373) 507 at 640, para. D-F. Argument in appellant’s brief was limited to the two defences embodied in section 33(2)(b) of the Constitution and Section 7(1) and (2) of Criminal Procedure Law. These provisions set out in full provide thus:
Section 33(2) of the Constitution:
“(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 I permitted by law, of such force as is reasonably necessary –
(b) In order to effect a lawful arrest or prevent the escape of a person lawfully detained
“7(1) If any person or police officer acting under a warrant of arrest or otherwise having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of such place shall, on demand of such person
acting as aforesaid or such police officer, allow him free ingress thereto and afford all reasonable facilities to search therein for the person sought to be arrested.
If ingress to such place cannot be obtained under sub- (2) section (1),any such person or police officer may enter such place and search therein for the person to be arrested, and in order to effect an entrance into such place may break open any outer or inner door or window of any house or place, whether that of the person to be arrested or any other person or otherwise effect entry into such house or place, if after notification of his authority and purposes, and demand of admittance duly made, he cannot otherwise obtain admittance.” I am in agreement with the respondent that these statutory defences implied in these provisions set out above cannot avail the appellant, more so that none of them granted him a license to summarily execute the deceased extra judicially. Even if the deceased were to be a thief or a person of dubious character, which the evidence on record does not disclose him as one, the provisions of the Constitution and Criminal Procedure Law (ibid) quoted above did not license the appellant to be the complainant, investigator, Judge as well as executioner, all rolled into one. See lrek v. The State, (1976) 4 SC 65 at 68 and Enakeru v. The State (1984) 9 SC 17 at 19.
The finding of the trial court and affirmed by the lower court is that the presence of the appellant in the apartment of the deceased on that fateful day was not shown to be in furtherance of any lawful criminal report against the deceased. The presence of the Police at the home of the deceased was strictly and entirely a response to the information supplied and dictated by the appellant’s findings which are damning to his claim to the defence under section 33(2) (b) of the Constitution.
Extent of the force used by the appellant.
It is a misconception of the provisions of Section 7(1) and (2) of the Criminal Procedure Law (CPL) for the appellant to contend that the use of firearm was reasonable in the circumstances of this case.
The provisions of the CPL permit the Police to break the outer door or inner door or window of a place in order to effect entry into such a place in which the police has reason to believe that the person sought to be arrested has entered. In the case at hand, the appellant successfully broke open the outer window of the premises and after gaining ingress into the apartment of the deceased he fired the gunshots into the bedroom of the deceased.
In this regard, I reject the submission that the act of the appellant who had already secured ingress into the apartment of the deceased before shooting into the deceased’s bedroom with a lethal weapon, cannot reasonably be described as seeking entrance under the provisions of section 7(1) and (2) of the CPL. Succinctly put, the provisions of the section do not permit the appellant to summarily execute any person who refuses to allow him free ingress into an apartment that he believes a suspect has entered. See lrek v. The State (supra) and Enakeru v. The State (supra)The reliance by appellant on section 24 of the Police Act without indicating the relevance of the provisions of the section to the determination of the issue at hand, would, in my view serve no useful purpose to reproduce the provisions thereof. Suffice it to say, that the section gives the Police power to arrest without warrant in specified cases.
Even if the deceased were to be a thief or a person of dubious character, a fact not disclosed on the record, the provisions of the Constitution and the Criminal Procedure Law (ibid), did not license the appellant to be the complainant, investigator, as well as the Judge and executioner, all rolled into one. See lrek v. The State (supra)and Enakeru v. The State (supra).
At paragraphs 3.2.6 to 3.2.7 titled “the Record shows that:” running from pages 3 to 5 of his (appellant’s brief of argument),learned counsel for the appellant made fruitless effort to enumerate the pieces of evidence which he considered relevant to the defence and drew his” own conclusions that ran counter to the findings of fact of the lower court that he did not appeal against. I agree with the respondent that such conclusions which run contrary to the unchallenged concurrent findings of the trial court and the lower court, do not have a foundation in law in the appeal herein and that is because the appellant failed to appeal against the findings. A decision of a lower court can only be set aside on a proper appeal challenging same and strictly not otherwise. The findings of the two courts not having been challenged by way of an appeal, must not be disturbed for the purposes of this appeal and the appellant cannot be heard to canvass argument based on facts other than facts as found by the courts below: vide Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298 at 332, para C-E.
Besides, the fact that the appellant could not show at all that the concurrent findings of fact are perverse also means that the question of whether or not the appellant can avail himself of the defence raised in this appeal is a question to be decided on the settled facts as found by the lower courts. The reply to the appellant’s assertions is that he (appellant) can only claim his constitutional defence under section 33(2)(b) if it can be shown that his (appellant’s) presence in the deceased’s apartment on that fateful night was in furtherance of a lawful arrest and in circumstances permitted by law. As indeed glaringly transpired, the finding of the trial court and affirmed by the lower court, is that the presence of the appellant in the apartment of the deceased on that fateful day, not being in furtherance of any lawful criminal report against the deceased but rather as a result of the un-induced presence of the police at the home of the deceased strictly and entirely a fortuitous response to the information supplied and dictated by the appellant, these findings,
in my firm view, are damning to the appellant’s claim to the defence under section 33(2)(b) of the Constitution
EXTENT OF THE FORCE USED BY THE APPELLANT
I am in entire agreement with the submission canvassed on behalf of the respondent that it is a misconception of the provisions of section 7(1) and (2) of the Criminal Procedure Law (CPL) for the appellant to have argued in his paragraphs 3.3.1. to 3.3.6 at pages 6 to 7 of his brief of argument, that the use of a firearm was reasonable in the circumstance of this case. In my respectful view, the provisions of Section 7 of the CPL permit the police to break the outer door or inner door or window of a place in order to effect entry into such a place in which the police has reason to believe that the person sought to be arrested has entered. In the case at hand, the appellant successfully broke open the outer window of the premises and effected ingress into the apartment of the deceased before he fired the gunshots into the bedroom of deceased. That being so, the act of the appellant, who had already secured free ingress into the apartment of the deceased before shooting into the bedroom of the deceased with a lethal weapon cannot, in my view, reasonably be described as seeking entrance under the provisions of section 7(1) and (2) of the CPL. Succinctly put, the provisions of the section do not permit the appellant to summarily execute any person who refuses to allow him free ingress into an apartment that he believes a suspect has entered. See lrek v. The State (supra) and lnakeru v. The State (supra).
Reliance by the appellant on section 24 of the Police Act without indicating the relevance of its provisions to the issue at hand would, in my view, serve no useful purpose. This is because, while the section gives the Police power to arrest suspects without warrant in specified cases, the issue at hand is not covered by provisions of the said section, more so that it cannot serve to justify the death of the deceased.
Nor is it correct to say as alleged by the appellant’s counsel that there is undisputed evidence that the deceased threatened to kill the policemen and refused to deny the police’s claim that he was Nonso, an alleged armed and dangerous fugitive. Rather, contrary to the appellant’s assertion on this score, is the testimony of PW2 (wife of the deceased who was present in the room with him) which was believed by the learned trial Judge and affirmed by the lower court. She testified that the deceased identified himself as Gods power Edeha, a driver, an Isoko from Ozoro as can be seen in the pertinent portion of the judgment copied at Page 123, lines 21 to 31 of the
records: “The 2PW narrated how knocks were made on the door accompanied with the statement – open the door, open the door or else we fire. That the deceased said I am Godspower Edeha, a driver, am Isoko from Ozoro. The deceased stood beside the door. All of a sudden a shot came into the parlour hitting the deceased. He fell and his breathing changed immediately.”
Appellant’s assertion is quite diametrical to the facts on record. as found by the two lower courts. So also is the postulation that the appellant had to use tear gas to “smoke” the deceased out of the room when the deceased refused to avail himself of the opportunity to surrender have no relationship one to the other. This is because throwing tear gas into the room of the deceased cannot come within the provisions of section 7 of the CPL which merely permits the breaking of doors or windows of a house in order to affect ingress by the police.
USE OF FIREARM NOT REASONABLE FORCE
The appellant contended in argument that his use of firearm was ‘reasonable force’ in the circumstances. If, however, it is noted that the deceased was behind the door inside his bedroom and the appellant, moved by the intent to kill, fired into the bedroom, where the deceased, his wife and a young female relative were cringing in fear, there is the evidence from PW5 and PW10 that the apartment of the deceased had been completely surrounded and overwhelmed by the policemen to prevent any escape by the deceased, the use of the firearm was totally unreasonable, highly intimidating and uncalled for in the circumstances of this case. This is because as found by the court below, the deceased did not pose any scintilla of danger to the appellant. It was mischievous and unreasonable for the appellant to break the window of the deceased’s apartment, threw teargas into the room and then jumped into the apartment to callously release or pump bullets into the deceased.
ALLEGED INTENTION OF THE APPELLANT TO MERELY INCAPACITATE THE DECEASED.
In his brief of argument the appellant’s argument that he fired one shot at “the downward end of the door” and that it was the appellant’s intention to shoot towards the lower part of the deceased’s body by directing his shot toward the downward end of the door with the intention of incapacitating the deceased person, certainly not to kill him, can only be accepted with a pinch of salt. In the same aforesaid paragraphs, the appellant also alleged that the lower courts did not fully consider the alleged fact that the appellant fired only one bullet. The foregoing assertions on behalf of the appellant are not only misplaced in law and additionally fly in the face of the credible evidence on record and the findings of fact made thereto are not only preposterous but concomitant with twisted falsehood. Section 316(1) and (2) of the Criminal Code Cap48, Laws of the defunct Bendel State applicable to Delta State provides:”316. Except as hereinafter set forth, a person who unlawfully kills another under any or the following circumstances,
that is to say:-
b. If the offender intends to cause the death of the person killed or that of some other person;
c. If the offender intends to do to the person killed or to some other person grievous harm;
is guilty of murder ….. ”
In the case in hand, the appellant has never denied the fact that he shot through the door with the knowledge that the deceased was behind the door. He has also never denied the fact that he intended to cause the death or inflict grievous bodily harm to the deceased. Whatever part of the door he shot at, by shooting the deceased through the door, there can be no doubt that the appellant intended to cause the death or inflict on him grievous bodily harm. See Arabamen v. The State (1972) 4 SC 35 at 44 – 45; see also Eric Uyo v. A.-G. Bendel State (1986) 1 NWLR (Pt.17) 418, (1986) 1 All NLR 106 at 112 and Garba v. The State (2000) 6 NWLR (Pt.661) 378 at 387 para. H, (2000) FWLR (Pt.24) 1448 at 1460. Katsina-Alu, JSC in Eric Uyo (supra) stating the legal presumption held that: “The law presumes that a man intends the natural and probable consequences of his acts. And the test to be applied in these circumstances is the objective test namely, the test of what a reasonable man would contemplate as the probable result of his acts.” And in Garba v. The State (supra) per Mohammed, JSC at p.1459 held:
“If from the intentional act of injury committed the probability of death resulting is high, the finding should be that the accused intended to cause death or injury sufficient in the ordinary cause of nature to cause death.”
In the case in hand, the probability of death resulting from the act of the appellant was high in view of the fact that the weapon used is a gun which by nature is lethal. It is trite knowledge that the result of shooting a person with a gun is either to cause the death of the victim or cause him grievous hurt. The conclusion arrived at by the trial court in respect of the appellant’s intention to kill the deceased can be found at page 139 lines 23 – 26 as follows:
“In my view, from all the facts of the case, the reasonable man will conclude that the accused was intentionally out to kill the deceased. I hold that the prosecution proved the case of murder against the accused beyond reasonable doubt.” I cannot agree more on the assertion by the learned counsel for the appellant that in his brief he asserted that he fired only one bullet. That cannot be true if placed side by side with what appellant himself said at page 90 lines 21 – 25 of the record, to wit:
“I shot at the door twice. The number of times I fired was at my discretion. I booked for 15 rounds of ammunition. I expended 7 out of the 15 bullets.”
Also contrary to appellant’s counsel’s submission is the fact that the appellant from the clear evidence on record, did not claim that he merely intended to incapacitate the deceased by shooting him through the bedroom door. It ought to be stressed that counsel’s address must be based on evidence on record and the legal submission of counsel ought not to be substituted for evidence on record vide Osuigwe v. Nwihi (1995) 3 NWLR (Pt.386) 752.
Accordingly, I uphold the inevitable conclusion arrived at by the lower courts which is the culmination of the concurrent findings of both courts which ought not to be reversed.
- It being an undisputed fact that the appellant caused the death of the deceased with the knowledge that his act would cause death or grievous bodily harm to the deceased.
- That the presence of the appellant in the deceased’s apartment was not in furtherance of a lawful arrest in the circumstances permitted by law.
- That the force used by the appellant was beyond the extent and not in circumstances permitted by law.
- That the use of firearms after ingress had been effected into the apartment of the deceased was unreasonable in the circumstances of the case.
In sum, my answer to the lone issue formulated against the appellant is accordingly resolved against him and his appeal fails. It is dismissed.