Akpakpan V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This is an appeal against the judgment of the Calabar Division of the Court of Appeal or Court below or lower Court, Coram: Chioma E. Nwosu-lheme, Stephen Jonah Adah and Joseph Olubumi Kayode Oyewole JJCA delivered on the 24th day of May, 2017 in which the Court below dismissed the appeal of the appellant and allowed the cross-appeal filed by the respondent substituting the life imprisonment imposed by the trial Court per G. Abraham J., for manslaughter with a sentence of death for murder. Presently, the appellant is serving the life imprisonment to which he was sentenced by the Court of trial at the Uyo Federal Prison.

The Appellant, PC IMO AKPAKPAN was charged before the Akwa Ibom State High Court of Justice, Itu Judicial Division on a lone issue charge of murder.

The case of the prosecution was that on the 5th day of August, 2010 along Nasarawa goat Market Road, Itam in Itu Judicial Division, the Appellant, PC IMO AKPAKPAN murdered one Idongesit Okon Tom.

The Appellant, PC IMO AKPAKPAN was a police constable who was on patrol duty with four other police officers from D division, Itam, Uyo. In the course of duty, the appellant conducted a stop and search and eventually stopped the deceased, Idongesit Okon Tom who had no particulars for his motorcycle which resulted in the motorcycle being impounded in the police vehicle. The team was headed by PW1, ASP Magdiel Douglas Peison who directed all the police officers to put the deceased motorcycle without particulars into the police vehicle and for the police officers to enter the police vehicle to move the impounded motorcycle to the police station. While the vehicle was about making a U-turn, the Appellant deliberately jumped down from the van cocked his gun- AK47 rifle and shot at the deceased and the bullet hit on the tarred floor, re-bounced or ricocheted and pierced through the deceased stomach who died two weeks later in the hospital.

Magdiel Douglas Peison (PW1), an Assistant Superintendent of Police (ASP) and the commander in patrol testified on 31st July, 2012 that they were five (5) in number including the Appellant who went out on patrol when he directed that a stop and search be conducted at Nasarawa street and all the other four (4) police officers came down for that purpose. While conducting the stop and search, the deceased came along carrying a passenger at the back of his motorcycle and he was stopped by the Appellant who demanded for his particulars and further observed that the deceased’s plate number was not genuine. PW1 further testified that he ordered for the motorcycle to be picked into the police vehicle and taken to the station but that the Appellant was still standing and arguing with the deceased and his friend. He stated that he shouted at the Appellant who entered the vehicle but while the vehicle was moving slowly to take a U-turn, the Appellant opened the door and came down. The Appellant fired at the deceased. The bullet penetrated the motorcycle rider, hit the ground and hit the friend at the upper lid of the eye. The bullet hit the rider on the stomach and penetrated through the back of the deceased. The shot was a close range. Under cross-examination, PW1 testified that when he asked the Appellant why he fired the motorcycle rider, the Appellant responded that he was confused. See pages 56 – 59 of the Record of Appeal.

Sylvanus Atila (PW 2), an Inspector of Police who was in the team on duty with the Appellant and also at the scene of the incident testified on 31st July, 2012 that the Appellant was quarrelling with the deceased when the commander of the patrol team (PW1) directed the Appellant to enter the vehicle with the other police officers. The Appellant obeyed and entered the vehicle but while the driver was reversing the vehicle, the Appellant dropped down and went back to quarrel with the motorcycle rider. While in the vehicle they heard a gunshot which they came out, they found the motorcycle rider lying on the floor. See pages 59 – 61 of the Record of Appeal.

Daniel Ikoedem (PW3), a police constable who was in the team on duty with the Appellant and also at the scene of the incident testified on 21st November, 2012 that the commander of the patrol team had ordered for the deceased motorcycle to be booked and taken to the police station. That the deceased requested to know which station his motorcycle was being taken to and further stated that if the motorcycle was taken to ‘D’ Division he would take it free of charge. The Appellant jumped down at that juncture from the patrol vehicle cocked his rifle and he heard the sound of a shot. When he got down from the vehicle he saw the motorcycle rider on the ground in the pool of his blood. See Pages 62-63 of the Record of Appeal.

Gabriel Sunday (PW4), an inspector of police testified as the Investigating Police Officer (IPO) on 11th April, 2013 that the Appellant confirmed in his statement dated 6/8/2010 that he actually cocked his rifle and fired which bullet eventually hit the deceased in the stomach. In the course of investigation, PW4 recovered the gun used by the Appellant, an AK47 rifle with 19 remaining rounds of live ammunition having shot one round. PW4 also testified that one Idongesit Okon Tom is dead and that he died from a gunshot fired by the Appellant as is evident from the Exhibit 1, Statement of the Appellant, Exhibit 3, 3A, 3B, Photographs of the deceased and Negatives, Exhibit 4, Autopsy Report and Exhibit 6, 6A, the AK47 Rifle and cartridge containing 19 live ammunitions tendered in the course of his testimony. See pages 66 – 71 of the Record of Appeal.

The prosecution called four witnesses and tendered ten exhibits. The appellant testified in his own defence and called no witness. The Appellant testified for himself at trial as DW1. He testified that they were 5 policemen in number conducting a stop and search and while directing vehicles to stop, he stopped and searched one particular motorcycle (deceased). He requested for the particulars of the motorcycle but the deceased did not have them and the motorcycle had no registration number. Then his superior (PW1), asked all the policemen to get into the vehicle. As he crossed the road to enter the vehicle, the motorcyclist and the passenger held him, one in front and the other behind. They began to drag him and demanded for their motorcycle. They also began to drag the rifle that the Appellant was holding. In the process, one of them pulled the trigger and a shot was fired. The bullet that came out hit the ground before hitting the motorcyclist (deceased). See Pages 72 – 74 of the Record of Appeal.

The oral evidence of the Appellant was contrary to what the Appellant said in his extra-judicial statement to the police with regard to how the gun was fired. The Appellant stated in one breath that the trigger was pulled during a struggle and in another breath stated that he cocked the rifle and fired same.

In its considered judgment of 19th December, 2013, the learned trial judge disbelieved the evidence of the Appellant and found the Appellant guilty of manslaughter and sentenced him to life imprisonment. The judgment of the trial Court is found at pages 79-84 of the Record of Appeal.

The Court below dismissed the appeal of the Appellant and allowed the Respondent’s Cross-Appeal. The Court below found the Appellant guilty of Murder and sentenced him to death by hanging on 24th May, 2017. The judgment of the Court below is found at pages 194 – 211 of the Record of Appeal.

Dissatisfied with the judgment, the Appellant has further appealed to this Court vide a Notice of Appeal filed on 21st June, 2017. The Notice of Appeal is found at pages 216 – 219 of the Record of Appeal.

The hearing of the appeal was on the 11th March, 2021 at which learned counsel for the appellant, Lawrence S. Oko-Jaja Esq., adopted the brief of argument filed on 5/10/2018 and deemed filed on 30/10/2019 and a reply brief filed on 9/5/2019 and deemed filed on 30/10/2019. He distilled three issues for determination, viz:

1. Whether the failure of the Court below to consider the defence of accident raised by the appellant which is a reliance on the provisions of S.24 of the Criminal Procedure Code, Act Cap. C.38 Laws of the Federation of Nigeria, 2004 which exculpates the appellant from criminal liability did not lead to a miscarriage of justice by the Court below.
2. Whether the substitution by the Court below of the life sentence for which the appellant is already serving at Uyo Federal Prison with that of murder does not amount to a miscarriage of justice when the defence of accident raised by the appellant was not disproved (based on ground Ill of the grounds of appeal).
3. Whether the failure of the Court below to consider the appellant submissions and the Supreme Court authorities cited to it which constitute binding authorities on the Court below did not lead to a miscarriage of justice against the appellant (based on ground II of the grounds of appeal).

Learned counsel for the respondent and DPP of Akwa Ibom State Joseph Umoren adopted the brief of argument filed on 10/4/2019 and deemed filed on 30/10/2019. He adopted the issues framed by the appellant which he summarised into a single issue thus:-

Whether having regard to the totality of the evidence before the Court, there was miscarriage of justice when the Court of Appeal (Court below) held that the defence of accident put forward by the appellant did not avail him and therefore convicted the appellant for murder and sentenced him to death by hanging.

This sole issue put up by the respondent is apt for the determination of the appeal.

SOLE ISSUE

Whether having regard to the totality of the evidence before the Court there was miscarriage of justice when the Court of Appeal held that the defence of accident put forward by the appellant did not avail him and therefore convicted the appellant for murder and sentenced him to death by hanging.

Advancing the stance of the appellant, learned counsel stated that the extra-judicial statement of the appellant negative any intention of the appellant to kill or cause grievous bodily harm on the deceased. That the appellant raised the defence of accident and same was corroborated by PW1 and PW4 but the trial Court failed to consider the said defence which occasioned a miscarriage of justice. He submitted further that the Court below was in error when it held that it was immaterial whether the bullet hit the tarred road before hitting the deceased or hit the deceased before hitting the tarred road, which decision showed the Court below unwilling to countenance any defence of accident. He cited S.24 of the Criminal Code Act, Cap C.3 LFN 2004, Amayo v State (2001)18 NWLR (pt.745) 251 at 274 – 275 etc.

That there was no contradiction in the extra-judicial statement of the appellant as against his oral testimony that he fired the shot on the tarred road to frighten the deceased which unfortunately ricocheted and hit the deceased hence the reliance of the Court below on the case of Edoko v The state (2015) All FWLR (pt. 772) 1728 at 1753 was misplaced.

Learned counsel for the appellant contended on the substitution of the sentence from life imprisonment to death by hanging done by the Court below as erroneous since the trial Court which made the life imprisonment sentence had not found for murder but rather found death of the deceased as occurring by accident and a guilt of manslaughter being the result. He cited Ejeka v The State (2003) 7 NWLR (pt. 819) 408 at 423; Adebayo Adeyemi v The State (1991) 15 NWLR 131 at 140 etc.

That the Court below glossed over the submission of counsel for the appellant cross-respondent which led to a miscarriage of justice as if the contentions of the appellant had been given due consideration, the decision would have been different. He cited The State v Babangida (2013) 543 NSCQR 1903 at 1939.

The learned DPP contended for the respondent that no miscarriage of justice was occasioned and the Court below was right to reject the defence of accident and convicted the appellant for the murder of the deceased. That the oral evidence of the appellant was unreliable hence the two Courts below labelled it an afterthought. He cited many judicial authorities including State v Ajie (2000) 11 NWLR (pt. 678) 434; Oforlete v state (2000) 12 NWLR (pt. 681) 415 etc.

That all the ingredients of the offence of murder were satisfactorily proved by the respondent.

In reply on points of law learned counsel for the appellant contended that this is a proper case for the interference of the Supreme Court on the concurrent findings of fact of the two lower Courts as the findings stemmed from perverse roots as the lower Courts did not take cognisance of the inconsistencies in the evidence of the prosecution witnesses especially PW4.

In a long line of judicial authorities, it has become well settled that the burden of proof in all criminal cases is upon the prosecution to prove the guilt of the accused person beyond reasonable doubt and in like manner, in a plethora of cases the essential ingredients of murder which must be established to secure a conviction are as follows:-

a. That he deceased died.

b. That the death of the deceased resulted from the act of the appellant, and

c. That the said act of the appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence. See Njoku v State (2013) 532 NSCQR 230 at 267; Amaremor v State (2014) All FWLR (pt. 736) 4-06 at 422; Ola v State (2014) All FWLR (pt. 752) 1648 at 1664; Igago v The State (1999) 14 NWLR (pt. 637) 1 at 20.

On the first ingredient in the proof of the offence of murder is whether the deceased indeed died. In the case at hand, the death of Idongesit Okon Tom, the deceased under discourse is not in dispute as even the appellant conceded that fact. The evidence of PW1, PW2 and PW3 who were at the scene of the incident when the appellant shot the deceased with AK47 rifle and the bullet penetrated his stomach which resulted in the death of the deceased days after at the University of Uyo Teaching Hospital (UUTH), which evidence the trial Court accepted as credible and reliable.

Also, the investigative evidence of PW4 who saw the corpse and the Exhibits 3, 3A and 3B, the photographs and Exhibit 4, the post mortem report confirm that Idongesit Okon Tom died. This finding of fact, the Court below affirmed, not seeing any miscarriage of justice leading to it, and considering the preeminent position of the trial Court as the one with the unique opportunity of seeing and hearing the witnesses give evidence and observing their demeanour in the witness box. This therefore brought about concurrent findings of fact, which this Court has nothing on which it can support an interference to the contrary, in substitution of its own views for the views of either the trial Court or the Court below. See State v Ajie (2000) 11 N WLR (pt. 678) 434 per Onu JSC at 449; Chief Frank Ebba v Chief Warri Ogodo (1984) 1 SC NLR 372; Fabunmi v Agbe (1985) 1 NWLR (pt. 2) 299 at 314; Fatoyinbo v Williams (1956) SC NLR 274; Ukatta v Ndinaeze (1997) 4 NWLR (pt. 499) 251 at 363.

The conclusion therefore is that the first element of the offence of murder, that the man died has been proved beyond reasonable doubt.

​

On the second ingredient, which is that the death of the deceased resulted from the act of the appellant, which has to be established by the prosecution beyond reasonable doubt. In this, there is really no debate on either side, taking a community consideration of the evidence of PW1, PW2, PW3 and PW4 together with the content of Exhibit 1, the statement of the appellant made on 6/8/2010. For emphasis, the cause of death of the deceased was from the bullet fired by the appellant from his AK47 rifle, the outcome being the death of the deceased. The same rifle was admitted in evidence as Exhibit 6 at the trial Court without objection and appellant confirmed under cross-examination that at the time of the incident he was carrying an AK47 rifle with twenty rounds of ammunition out of which one round was expended as evident from Exhibit 6A, the remaining 19 live ammunition contained in a cartridge. The fact of the consequence of the act of the appellant in firing the gun being the death of the deceased is proved beyond reasonable doubt. See Uguru v State (2002)FWLR (pt. 103) 330; (2002)9 NWLR (pt.771) 90; Oforlete v State (2000) FWLR (pt.12) 2081; (2000) 12 NWLR (pt.681) 415; Ogedengbe v State (2014) All FWLR (pt. 752) 1724 at 1756; Bature v State (1994) 1 NWLR (pt. 320) 267; Saidu v State (1982) 4 SC 41.

However needing to be brought in at this point is whether or not the firing at the deceased was deliberate as the prosecution posits or whether it was accidental as the appellant is posturing.

In Exhibit 1, the statement of the appellant, extra-judicially made the appellant sought to exculpate himself from blame. I shall quote part of Exhibit 1. The appellant stated thus:

“As I crossed the road to the other side where the patrol vehicle was parked, the rider of the motor-cycle and the passenger came to me and held my shirt and said they wanted their motor-cycle. One held me at the back and the other held me in front. Both of them dragged the riffle with me. The rifle exploded. They removed the safety and one of them touched the trigger and the rifle exploded…. The bullet bounced on the road and hit the rider of the motorcycle.” We refer to lines 6-15 of page 73 of the Record of Appeal.

The Appellant in his oral evidence cleared himself from blame by raising accidental discharge while Exhibit n1 linked him to the commission of the offence in relation to the 2nd ingredient, i.e that he caused the death of the deceased. To resolve the issue of which evidence to be relied on in this circumstance, this Court held in EDOKO V STATE (2015) ALL FWLR (pt. 772) P.1728 at p. 1753, paras A-B:

“Where an accused person is shown to have made a statement previously, which is inconsistent with the defence given at the trial, a trial Court will be right to conclude that the evidence given at the trial is unreliable, aimed at exculpating the accused from blame.”

Oral testimony of the Appellant at the trial Court, an afterthought. The trial Court rightly held as follows:

“I do not believe that the deceased and the other passenger had in any manner blocked the accused person or dragged with him or struggled over the riffle. I do not believe that the deceased or the other passenger pulled the trigger. I believe that the accused person, still being infuriated over the earlier quarrel between him and the deceased disobeyed the senior police officer and went out of the vehicle to confront the deceased. I believe that he was the one who pulled the trigger and fired the shot. It is this shot that caused the death of the deceased.

There is no gainsaying that the evaluation of relevant and material evidence before the Court and the ascription of probative value to such evidence are the primary functions of the trial Court which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluates the evidence and justifiably appraises the fact, it is not the business of the appellate Court to substitute its own views for the views of the trial Court.

See STATE V AJIE (2000)11 NWLR (pt.678) 434.

The Court below agreed with the position of the law as regards the evaluation of evidence by the trial Court and found as a fact that the evidence was properly evaluated by the trial Court and saw no need to interfere with such findings. The Court below held thus:

“In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial judge was entitled to weigh both issues and reach a conclusion on which side he believed. He did so at page 82, line 12-20….. I hereby label them oral testimony of the Appellant at the trial Court an afterthought.”

We refer my Lords with respect to page 202 of the Record of Appeal.

It is easy to see why the two Courts below chose the consistent evidence of the PW1, PW 2 and PW 3 as against the oral testimony of the appellant as the prosecution witnesses testify that appellant had entered the police vehicle to return to the police station but as the vehicle made a U-turn, the appellant jumped out of the vehicle, confronted the deceased and the next minute the PW1- PW3 heard a gunshot and when they came down, saw the deceased in a pool of his own blood. The evidence of PW1- PW3 remained unchallenged, not contradicted or controverted under cross-examination and the Court has no option than to act on it. See Oforlete v State (2000) 12 NWLR (pt. 681) 415; Ogunleye v. Jaiyeoba (2011) NWLR (pt. 1252) 339 at 345; lwunze v FRN (2013) 1 NWLR (pt. 1334) 199.

Again to be said is that the findings upon evaluation of the trial Court, affirmed by the Court below, that there is no doubt that the death of the deceased was as a result of the act of the appellant and so this present Court has no business interfering or disturbing the concurrent findings of the two Courts below having been fully backed by credible evidence on record. I rely on the cases of Ali v The State (2015) All FWLR (pt.796) 559 at 589; Ikpo v The State (2016) 260 LRCN 77 at 110; Akinlolu v The state (2016) 251 LRCN 1 at 40.

In respect to the question on the third ingredient of the offence of murder, which is that the said act of the appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence, the angle taken by the appellant revolves around this third element of the offence is the defence of accident put up by the appellant.

In the situation on ground for a conviction to lie in the charge of murder, the prosecution must prove the criminal intent of an accused person to cause grievous bodily harm and this can be gleaned from the weapon used and the part of the body targeted at the stomach. In this instance, where the appellant used a dangerous weapon, being an Ak47 his service rifle in attacking the deceased by shooting the Court has the liberty to infer the intent to cause grievous bodily harm which resulted in the death of the deceased. He cited Nwokearu v State (2013) All FWLR (pt. 689) 1040, Michael v State (2008) All FWLR (pt.431) 875; Sule v State (2009) 17 NWLR (pt.1169) 33; Achuku v State (2015) All FWLR (pt. 779) 1079 at 1109.

It is now trite in law that a man is presumed to intend the natural outcome of his act.

In this case, the appellant cocked his service rifle and fired a shot from the rifle and the bullet hit the tarred road and then ricocheted and hit the deceased in the stomach. The bullet penetrate the stomach of the deceased, indicating the proximity between the appellant and the deceased. The act of the Appellant was deliberate as it is obvious from the records and the entire evidence particularly the evidence of PW1-PW3 that there was an argument between the Appellant and the deceased. That the Appellant was even compelled by PW1, the commander of patrol to enter the vehicle and he complied. Yet when the vehicle was about taking a U-turn to the police station, the Appellant jumped down, went back to the deceased, cocked his rifle and fired.

Therefore, the Appellant is presumed to have intended to send the deceased to an untimely death. The apposite maxim is: intention mea impointnamien opera meo- my intention gives a name to my action. It will be unreasonable and hostile for the law to presume otherwise, that is, want of intention in favour of the appellant.

See the case of ACHUKU V STATE supra 1109.

It is not difficult to deduce that the intention of the Appellant was to cause the death of the deceased. This was the reaction of the trial Court when the learned trial judge held thus:

“PW1, PW2 and PW3 have consistently stated that they came out and found the deceased lying on the ground while the accused was standing by. Where death is a probable consequence of an act, the person doing the act is said to have intended the probable consequence. Where a person pulls a gun and pointing towards another, fires the shot on the tarred road in front of that other person, the person firing the shot knows that there is a probable consequence of death by the ricocheting effect of the bullet. This is much more so given the fact that the accused person is a police officer. I therefore hold that the accused person’s act was done with the intention of causing death to the deceased.”

The findings of the trial Court of the intendment of the appellant to cause the death of the deceased was not interfered with by the Court below. In fact, the lower Court made findings along the same path when it stated as follows:-

“It is on record as stated by PW1 – PW3 that the Appellant had entered the police vehicle to leave for the station when he suddenly jumped out of the vehicle, cocked his rifle and fired a shot that penetrated through the deceased’s stomach. The Appellant is presumed to have intended to kill the deceased.”

The appellant is hanging on the bare thread of a defence that hitting the deceased was an accident. The Appellant in Exhibit 1 alleged that the deceased held him and dragged him. In order for him to free himself, he fired a shot on the tarred road to frighten him but the bullet also hit the man on his stomach. We refer to lines 14-20 of page 20 of the Record of Appeal.

In his oral evidence, the Appellant alleged as follows:

“As I crossed the road to the other side where the patrol vehicle was parked, the rider of the motor- cycle and the passenger he carried came to me and held my shirt and said they wanted their motor- cycle. One held me at the back and the other held me in front. Both of them dragged the rifle with me. The rifle exploded. They removed the safety and one of them touched the trigger and the rifle exploded… The bullet bounced on the tarred road and hit the rider of the motorcycle.”

We humbly refer the Court to lines 6-15 of page 73 of the Record of Appeal.

Even though Exhibit 1 and the oral evidence of the Appellant are seemingly contradictory, the Appellant raised the defence of accident, and pleaded the exculpatory words in Section 24 of the Criminal Code. I shall refer to the case which dicta seem to have been made for the case in hand, the circumstances of the defence raised by the appellant. I shall cite it for guidance. In the case of ADEGBOYE V STATE (2017) LPELR-42099 (SC), this Court held:

“It is now settled that an accused person as in the instant case, cannot take refuge on a defence of accident for a deliberate act even if he did not intend the eventual result. See the case of Oghor V. The State (1990) 3 NWLR (pt. 139)484 at 502. The test of the plea or defence of accident is always that if the act even though unlawful is not such that would from the view of a reasonable man, cause death or grievous bodily harm though death resulted therefrom, the person charged can only, at most be convicted of manslaughter. See the case of Thomas V. The State (1994) 4 SCNJ (pt.1)102 at 109, (1994)4 NWLR (pt.337)129 per Wali, JSC. It need be stressed that the act leading to the accident must be a lawful act done in a lawful manner. Thus, for the event to qualify as accidental under Section 24 of the Criminal Code, it must be a surprise to the ordinary man of prudence, that is, a surprise to all sober and reasonable people. The test is always objective. See Ademola v The State (1998) 1 NWLR (pt.73)683 at 692-693, (1988)3 SCNJ 68, It must always be borne in mind that Section 24 of the Criminal Code does not deal with an “act” but an “event” and the event within the meaning of the section, is what apparently follows from an act ….”

The applicable law here is the provision of Section 27 of the Criminal Code, Cap. 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000 (Section 24 of the Criminal code Act). It states:

“…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.”

Accident is “an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that would be reasonably anticipated”. Therefore, it is incumbent on the prosecution to disprove accident when raised by the accused/appellant.

See

1. OLUDAMILOLA V. STATE (2010) 8 NWLR (pt.1197)565 at 582.
2. ACHUKU V. STATE SUPRA 113-1114, paras- H, A-B
3. SULE V. STATE (2009) ALL FWLR (pt.481)1977.

The version espoused by the appellant is contradictory to the evidence of the commander of the patrol team who testified as PW1, in the discharge of the prosecution’s burden in disproof of the defence of an accidental discharge claimed by the appellant. PW1 stated thus:-

“I ordered the two Daniel to pick the motor-cycle into the vehicle so that he could take it to the station. They did so. When they put the motorcycle inside our vehicle that we should drive away to the station. I entered the vehicle that we should drive away to the station. I entered the vehicle. The two Daniels entered the vehicle. The driver entered the vehicle, The accused person (appellant) was still standing with the motorcycle rider and his friend arguing. I shouted on the accused to enter the vehicle. The accused then ran and entered the vehicle from the side door and sat holding the driver. The vehicle was hilux. The vehicle was moving slowly so that the driver could make a U-turn and the accused opened the door and came down. The next thing I heard was the sound of a riffle I asked the driver to stop and be stopped. All of us came down. I saw the accused standing while the motorcycle rider was lying on the floor… ”

We refer to pages 57-58 of the Record of Appeal.

Under cross-examination, PW1 further testified that “when I asked the accused why he fired the motorcycle rider, he said he was confused”. The appellant at that point ought to have informed PW1 that it was an accident. This is in tune with the facts in ADEKUNLE V. THE STATE (2006) ALL FWLR (pt.332)1452; (2006) 14 NWLR (pt.1000)717, upon which the lower Court rejected the defence of accident. In ADEKUNLE’S case, the commander of the patrol team testified as PW2. The evidence of PW2 was to the effect that on hearing the gunshots while he was about 100meters away from the scene of the incident, he shouted and asked who fired the gunshots. The appellant, who the witness saw walking towards the moving bus, answered in affirmative that it was he who fired the shots. On being asked why he fired the gunshots, the appellant kept mute. At this first opportunity to raise the defence of accidental discharge, the appellant did not tell his boss PW2 that it was the gun that fell down from his shoulder and started to discharge. This earliest opportunity to raise the defence availed the appellant right at the scene of the incident. The fact that the defence was not raised instantly until much later in the appellant’s written statement Exhibit ‘A’ shows quite clearly that what the appellant raised in Exhibit ‘A’ is not a defence of accidental discharge but something else entirely that arose from his own imagination. It is no surprise therefore when the Court below rejected the defence of accident raised by the appellant in Exhibit A. See Utteh v The State (1992) 2 NWLR (pt.223) 257 at 274.

It is rather illogical that the Appellant would claim that he fired his rifle on the tarred road to scare the deceased when the deceased dragged him. It is noted from Exhibit 1 that the Appellant claims that the deceased dragged him and not the rifle. More amusing is the fact that the Appellant was not alone on the road, he was on duty with four other members of the team. He did not shout to call his teammates to rescue him and none of his teammates gave evidence to support his claim. Rather, he opted to fire the gun and send the deceased to his early grave. Obviously, this was a trigger-happy police officer wasting the life of an innocent citizen of this country with a gun purchased with tax payer’s money. A police officer who has the duty to protect the citizen has now become a terror.

The bullet penetrated the deceased from the stomach and pulled out from his back. Definitely, the injurious occurrence was not unforeseen. It was intended because if the bullet penetrated through the deceased’s stomach, it is only safe to conclude that the shot was fired in front of the deceased. Thus, by firing the shot by himself, the act of the appellant cannot be said to be independent of his will and as such, the defence of accident cannot avail the appellant.

The trial Court disbelieved the Appellant as regards any claim of accident while the Court below painstakingly considered the defence of accident when the Court held thus:

“The act of the Appellant was deliberate and calculated to teach the motorcycle (the deceased) a lesson. From the testimony of PW1 – PW3, there was an argument between the Appellant and the deceased. The Appellant who was already in the police vehicle heading to the police station, suddenly jumped down as the vehicle was making a U-turn, went back to the deceased, cocked his rifle and fired. He couldn’t have jumped out of a moving vehicle waiting for an accident to occur, he jumped out in anger and in that anger fired the deceased. ” The Court below stated further in its summation as follows:-

“It is therefore immaterial whether the bullet hit the tarred road first before hitting the deceased or hit the deceased before hitting the tarred road. The fact remains that the Appellant who was naturally angry when he jumped out of a moving vehicle ventilated his anger on the deceased when he cocked his rifle and shot at the deceased. One may then ask where then lies the defence of accident? Majority of the prosecution witnesses were police officers each testified to the fact that the Appellant was already inside the police vehicle when he suddenly jumped out as the vehicle was making a U-turn and shot at the deceased. By firing the shot himself, the act of the Appellant cannot be said to be independent of his will….therefore, the defence of accident in the circumstance is an afterthought and not available to the Appellant.”

See pages 206 – 207 of the Record of Appeal.

All the ingredients of the offence of murder were satisfactorily proved by the Respondent. No miscarriage of justice was occasioned as the defence of accident did not avail the Appellant having been so considered by the Court below. This Court cannot interfere with the concurrent findings of facts of the two lower Courts on the guilt of the Appellant and we urge my Lords with respect to resolve the issue in favour of the Respondent.

It is not correct that the Court below or even the trial Court failed to consider the defence of accident pushed forward by the appellant as the records bear out the true position which is that death of the deceased was not accidental but was the result of the deliberate act of the appellant to satisfy his anger against the deceased.

In any case, the law makes the Appellant criminally responsible for any excess force applied. By Section 305 of the Criminal Code Law, Cap.38, Vol.2, Laws of Akwa Ibom State of Nigeria, 2000, states thus, “any person authorized by law to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.” In this case, excess force was unwarranted as other police officers were available who could have separated any struggle. Meanwhile, none of the police officers testified to there being any fight or struggle between the deceased and Appellant before a rifle triggered off.

Learned counsel for the appellant has canvassed copiously in his brief that the evidence of PW4 the IPO corroborated the defence of accident of the Appellant that he shot on the tarred road, the bullet deflected and killed the deceased.

The response of learned counsel for respondent which I accept is that it is immaterial whether the appellant shot on the tarred road or at the deceased, what is relevant in this case is that the appellant cocked his rifle himself and fired at an innocent man for a mere argument or exchange of words without more. The appellant deliberately fired the rifle purchased with tax payer’s money on an innocent and harmless citizen who he is paid to protect. I reiterate here that he is just a trigger-happy police officer who opened fire at the slightest or no reasonable provocation.

However, If PW4 corroborated the evidence of the Appellant that he fired the shot on the tarred road, it stills implicates the Appellant as he admitted in his defence at page 74 of the Records that he had been taught how to handle a rifle. Therefore, the Appellant ought to have known that shooting a gun on a tarred road would definitely ricochet. In any case, PW4 further disclosed that the act of the appellant was intentional when he testified under cross-examination that the Appellant should not have pointed the gun directly at the deceased as it was against their ethics. The act of shooting directly at the deceased shows intention on the part of the Appellant. See page 71 of the Record.

The Court of Appeal right held thus:-

It is therefore immaterial whether the bullet hit the tarred road first before hitting the deceased or hit the deceased before hitting the tarred road. The fact remains that the Appellant who was naturally angry when he jumped out of a moving vehicle ventilated his anger on the deceased when he cocked his rifle and shot at the deceased. One may then ask where then lies the defence of accident?

Majority of the prosecution witnesses were police officers each testified to the fact that the Appellant was already inside the police vehicle when he suddenly jumped out as inside the police vehicle when he suddenly jumped out as the vehicle was making a U-turn and shot at the deceased. By firing the shot himself, the act of the Appellant cannot be said to be independent of his will… therefore, the defence of accident in the circumstance is an afterthought and not available to the Appellant.”

I would call attention to the previous written statement of the appellant and his oral testimony in the trial Court are materially contradictory as intention is inferred in Exhibit 1 which the Appellant admitted that he cocked his rifle and fired a shot while it is not so in the oral testimony of the appellant being that the appellant alleges accidental discharge which posture is clearly an afterthought. This is so because where an accused person makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable. See Egboghonome v State (2001)2 ACLR 262 at 299-300 in which this Court applied the principle in RV Ukpong (1961) 1SCNLR 53; Stephen v The State (1986)5 NWLR (pt.46) 978; Edoko v State (2015) All FWLR (pt. 772) 1728 at 1753.

Learned counsel for the appellant had argued that the Court below erred in law when it substituted the life sentence for death and convicted the appellant for murder without considering the defence of accident. It needs be brought out at this point that the respondent had cross-appealed against the conviction and sentence of the trial Court. I have no hesitancy in discountenancing the stance of the appellant on the substitution of sentence from life to death by hanging. This is by reason of the evidence on record and the findings of the Court of trial which found that the prosecution had proved the three essential ingredients of the offence of murder.

For clarity at the risk of repetition, the ingredients are:-

a. That the deceased died

b. That it was the act of the appellant that caused the death.

c. That the appellant had the intention to kill the deceased.

The trial Court having found out that the prosecution had effectively and beyond reasonable doubt proved the offence of murder, the Court lacked the discretion to deviate from the sentence so prescribed for murder to meet out the punishment provided for manslaughter.

The appellant was charged at the trial Court for an offence of murder contrary to Section 326(1) of the Criminal Code, Cap 38, Vol.2, Laws of Akwa Ibom State of Nigeria 2000 and it stipulates mandatorily thus:-

“…any person who commits the offence of murder shall be sentenced to death.”

See Haruna v A.G. Federation (2012)9 NWLR (pt.1306) 419; Ogualaji v A.G. Rivers state & Anor (1997) 5 NWLR (pt.508) 209 at 233.

The Court below applied the appropriate law, the Respondent having cross-appealed against the conviction and sentence, to find the Appellant guilty of murder and sentenced to death by hanging. Therefore the Court below rightly relied on the case of State V. BABANGIDA JOHN (2013) 54.3 NSCQR 1903 at 1939, wherein this Court held that:

“Once a judge finds an accused person guilty of culpable homicide, the only sentence he can pronounce is death. A judge has no discretion to reduce death sentence to a term of years once the accused person has been found guilty. The sentence of 14 years imprisonment after finding the accused/respondent guilty of culpable homicide was wrong, it is a material irregularity in the proceedings the trial Court and this Court could remedy it so that substantial justice might be done. The correct judgment of the trial Court is that the respondent is/was sentence to death.”

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See also the case of ODUNAYO V. STATE (2013) LPELR-21459.

The Court below per Adah, JCA in addition to the lead judgment said:

“in the instant case, the learned trial judge had found from the evidence that the Appellant is guilty of murder. The law requires as was held by Udo Udoma, JSC in Okpo VS. STATE (1972)2 SC24 that “once a person has been found guilty of having committed the offence of murder, it is mandatory that he be sentenced to death. No other form of punishment can be inflicted”. This was in the context of the instant case, the expectation of the law…”

Clearly, the Court below was a top of its duty in rectifying what was evidently a dereliction of duty on the part of the trial Court at the sentencing point in the light of the evidence and the conclusion within the realm of its primary functions of a trial Court which saw, heard and watched the demeanour of witnesses while they testified. Therefore when the trial Court evaluated the evidence and exhaustively appraised the facts situating them to the offence charged which is that of murder, it follows that when it erroneously dished out the faulty punishment, the Court below was right in interfering at that stage and putting the record where it ought to be as provided for by the law.

In conclusion, the Court below having made findings concurrently with those of the trial Court which this Court cannot fault or disturb and going forward to redirect the appropriate punishment as covered by law. There is no basis to upset what the Court below did which I agree in toto with. The appeal has no merit and I do not have difficulty in dismissing it.

Appeal is dismissed as I affirm the judgment of the Court of Appeal which found the appellant guilty of murder and for him to be sentenced to death by hanging.

Appeal dismissed.

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SC.1092/2017