D.S.P Godspower Nwankwoala & Ors Vs The State (2006)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C.

This appeal is against the judgment of the Jos Division of the Court of Appeal on the 17th of March, 2005 which confirmed the conviction of the appellants by the Benue State High Court. The appellants, GODSPOWER NWANKWOALA (DSP) and Sgt. GIDEON ATIME were charged along with one Cpl. ALPHONSUS EKEYI (since deceased) in a two count charge of culpable homicide by causing the deaths of Echono Itolo and Robert Inalegwu. At the end of their trial by Hwande, J. at the Benue State High Court holden at Makurdi, each was convicted and sentenced to death. This was on the 31/7/2002.

The three convicts appealed against their conviction. But before the appeal was heard at the Jos Division of the Court of Appeal, the 3rd accused/convict died in prison custody. The appeal in respect of the two appellants was heard and dismissed. The two appellants have now come on appeal to this court.

The notice of appeal of the 1st appellant dated 14/4/2005 contains 9 grounds of appeal. He complained of various errors of law and misdirections. That of the 2nd appellant contains 5 grounds of appeal. Before this court each of the appellants has filed a separate brief of argument. The 1st appellant’s brief of argument and his reply brief were prepared by G. Ofodile Okafor, SAN. He formulated four issues for determination. The 2nd appellant’s brief was prepared by M. K. Aondoakaa who raised therein two issues. The respondent’s brief was prepared by Mojisola Sule, Principal State Council Ministry of Justice Makurdi. She raised only one issue for determination.

The 1st appellant’s issue one, the 2nd appellant’s issue one and the only issues of the respondents are in substance the same and in my consideration that single issue effectively disposes of the appeal. It is whether from the totality of the evidence in the record, the Court of Appeal was right in confirming the conviction of the appellants.

Now, before considering the various questions raised by the appellants, let us see the case of the prosecution which was accepted by the trial court and affirmed by the Court of Appeal. The 1st appellant, D.S.P. GODSPOWER NWANKWOALA was on the 23/12/2000 the Divisional Police Officer in charge of the “B” Division Police Station Makurdi. At about 8.15 p.m. of the 23/12/2000, the 1st appellant leading a team of four other policemen in a police Algon Jeep which he himself drove went on anti robbery patrol in the Makurdi metropolis. The others in the team were 2nd appellant Sgt. Gideon Atime, 3rd appellant, Cp1. Alphonsus Ekeyi (late), the PW4, Police Constable Ojogbane Ameh and PW5 Police Constable Perekibina Werigbelegha. The 1st and 2nd appellants and the 3rd accused were armed while the two constables PW4 and PW5 were not armed.

At about 8.15 p.m. while they were along the Inikpi Street High Level, they saw three young men who happened to be the PW3 and the two deceased victims. Upon some suspicion, the 1st appellant stopped the vehicle and ordered their search. The PW3 identified himself as a youth corper and he was released. The two deceased who claimed to be students of Benue State University were on the orders of the 1st appellant arrested and taken to the ‘B’ Division Police Station for further investigation. At the Police Station the 3rd accused was in the process of recording their statements when later in the night the 1st appellant ordered the team and the two young men who were chained into the vehicle and drove to the Ishaya Bakut Road, Makurdi. Somewhere along the road the 1st appellant stopped the vehicle and ordered everybody to alight. When the two young men alighted from the vehicle the 1st appellant shot each of them on the chest and each fell. He then ordered the 2nd and 3rd accused persons who also shot them. Their corpses were taken into the vehicle and to the police station.

The conviction of the appellants was based on the trial court’s acceptance of the entirety of the above case of the prosecution and endorsed by the court below. But the crucial aspect of the evidence which is the eye witness account of what happened along the Ishaya Bakut Road was given by the 2nd and 3rd co-accused persons and PW4 and PW5 who can be regarded as accomplices. I shall, in the course of this judgment, make references to their evidence to determine the ultimate issue of whether there is such evidence that justifies the conviction of the appellants.

Another crucial aspect of the case is that each of the 2nd accused, 3rd accused, PW4 and PW5 had made a statement to the police the totality of which version is consistent with the defence of the 1st appellant. And this version is that on that fateful night while they were on patrol along the Inikpi Street High Level area of Makurdi, they were attacked by the two deceased and a third boy who opened fire on them. That the team returned fire in the course of which the third boy escaped and the two deceased injured and arrested. And that it was when they were being taken to the Federal Medical Centre Makurdi that they died.

G. Ofodile Okafor, SAN referred to these statements to the police, the evidence of PW8 to the effect that the rifle submitted to the 1st appellant was returned to him with the 30 rounds of ammunition unspent, his evidence that the 2nd accused told him that he expended four rounds of ammunition on robbers who attacked them at Inikpi Street and the evidence that the 1st appellant was driving the jeep when the boys attacked and submitted that the account represented the undiluted truth of the incident. It was also his submission that where a witness makes two inconsistent statements the court cannot pick and choose which to believe and which to reject and that the two statements must be rejected as unreliable. He submitted further that such statements are not admissible against the 1st appellant but against those who made them. He relied on section 27(3) of the Evidence Act and Amala v. The State (2004) 12 NWLR (Pt. 888) 520 at 552.

Learned senior counsel gave various reasons why the inducement and intimidation story paraded by the PW4, PW5, 2nd appellant and 3rd accused cannot be supported. He pointed out a number of contradictions in the story of how the inducement and intimidation was allegedly carried out and submitted that the contradictions have created doubts on a material fact the benefit of which should be given to the 1st appellant. On the effect of contradictions in the evidence of the prosecution which are not satisfactorily explained, he cited Onubagu & Anor. v. The State (1974) 9 SC 1; Boy Muka v. The State (1976) 9-10 SC 305 at 325; Arehia & Anor. v. State (1982) 4 SC 78 at 88. He submitted that although there are concurrent findings by the two courts below, there are very exceptional circumstances that warrant the interference by this court to reverse such findings as a failure to do so will perpetrate a miscarriage of justice. He relied on Igbi v. The State (2000) 3 NWLR (Pt. 648) 169 at 188.

In her own contention, Mojisola Sule Principal State counsel, submitted that the 1st appellant’s defence of a shoot out at Inikpo Street crumbled in the face of the credible and uncontroverted evidence of the PW1, PW2 and PW3. She argued that the PW4 and PW5 were not accomplices and that their evidence needed no corroboration to sustain a conviction. Counsel referred to section 178(1) of the Evidence Act and submitted that they were competent witnesses. In further attempts to discredit the 1st appellant’s defence about a shoot out along Inikpi Street, the learned Principal State counsel pointed out that there was no explanation as to where the deceased were kept between 8.15 p.m. when they were allegedly shot and arrested and 4 a.m. when they were alleged to have died on their way to the Federal Medical Centre.

Let me now consider the evidence and the findings of the learned trial Judge Hwande, J. endorsed by the Court of Appeal in the attempt to resolve the ultimate issue of whether the conviction of each of the appellants is supported by legal and credible evidence in the record.

I start my deliberation with the case of the 1st appellant. The uncontested facts are that the deceased young men ECHONO ITOLO and ROBERT INALEGWU died in the night of 23/12/2000 and 24/12/2000 of gun shot injuries from the five man police patrol team led by the 1st appellant. This is contained in the evidence of all members of the team, the PW3, PW6 and PW7. It is also uncontroverted that only the 1st appellant, 2nd appellant and the 3rd accused (since deceased) each had a rifle on the night in question. The other two, PW4 and PW5 who were police constables were not armed. One controversy is as to the person or persons amongst the 1st appellant, 2nd appellant and 3rd accused that killed the deceased persons.