Egheghe V. State (2020)
LAWGLOBAL HUB Lead Judgment Report
UWANI MUSA ABBA AJI, J.S.C.
On Sunday 16 October 2011, the deceased with his mother closed from church service at Christ Embassy, along Sani Abacha Expressway, Yenagoa, and boarded a motorcycle separately. At the police checkpoint, the police officer collected N50 from the rider which caused the deceased to exclaim “Oga policeman, don’t you people go to church even on Sunday. Pity this poor man now.” With this harmless remark, the police officer slapped the deceased for interference with his duty, which triggered the cyclist to speed off to avoid further beatings. The police however chased them, caught the deceased on the shirt, pulled him down and shot him severally to death.
The appellant (policeman) with two other fellow police officers were charged to Court. The two others were discharged while the appellant was convicted as charged and sentenced to death by hanging. The lower Court affirmed his conviction, hence this appeal. In arguing the appeal, the appellant formulated 2 issues for the determination of the appeal:
- Whether the Court below was right in its judgment
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delivered on 8 December 2016 to have upheld the appellant’s conviction and sentence to death by hanging by the trial High Court, which gave the verdict without proper and adequate consideration of the defences proffered by the appellant?
- Whether the prosecution proved its case beyond reasonable doubt against the appellant?
I shall collapse the 2 issues into one:
“Whether by the standard of proof beyond reasonable doubt, the appellant’s conviction can be sustained?”
In his desperate defence, the appellant argued that his self defence and defence of accident were not properly considered.
His case is that the deceased pursued them with a pair of scissors and in fact got him injured and in self-defence, he used his gun to demobilize him. For the plea of accident, he testified that he never knew that his gun was on rapid mode when he shot the deceased. A terse excerpt of the appellant’s case reads:
“I wanted to run away from him also, but I could not run because I was already weak. I managed to cock my rifle in order to demobilize him and to stop him from further havoc. Unknowing to me that my rifle was at rapid
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mode. Immediately I fired at him, he fell on the ground.”
To knock down the evidence and testimony of the appellant, the respondent in proof of their case, called witnesses. PW1, being the mother of the deceased that was with him when the harassment and shooting took place, gave evidence, especially at page 48 of the record, that after the police chased her son with their vehicle, they tried to catch him but could not and one said “shoot him, shoot him.” That the appellant shot and shot at the deceased’s head until it was shattered and the brain came out. That after he was dead, they entered their vehicle and hurriedly left. PW2, the pathologist testified that 9 bullet wounds were inflicted on the deceased, with 5 on the head, both hands and the right hip had 2 bullet wounds each. That the wounds on the head caused compound fractures on the skull bones and laceration of the brain. His conclusion was that the cause of death was multiple gunshot injuries. PW3, the IPO, gave evidence that “there was overreaction by shooting the deceased with life ammunition to death.”
The lower Court having dispassionately and
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meticulously considered the case of the appellant before it, variously held that:
“…granted that he was armed with a pair of scissors… still was in a weaker and disadvantaged position than the 3 policemen put together and armed with a smoke gunner and AK 47.
…A pair of scissors in the face of an AK 47 in the hand of 3 trained police combatants, is obviously not enough to incite reasonable apprehension of imminent death or grave harm as to warrant the usage of the AK 47 in order to quell the situation.
The death of the deceased could have been avoided if the appellant had towed the line of caution and reasonableness by retreating… The appellant provoked the event or incident that led to the death of the deceased and as such cannot hide under the guise of self-defence.”
Indeed, the defences put up by the appellant are not only vexatious but nothing than a cock and bull story! This is in fact the most laughable and spurious defence to test the standard of proof beyond reasonable doubt. The defences put up by the appellant are like a camel passing through the eye of a needle!
It is the duty of the Court to consider all the
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defences available to the accused person, even when raised based on the presumption of innocence of the accused person. See Sani v. State (2015) All FWLR (Pt. 811) (2015) 15 NWLR (Pt. 1483) 522, (2017) LPELR-43475 (SC). However, the law only takes cognizance of such defences that are founded on requirements capable of being objectively tested on the basis of facts relevant to the particular defence. Thus, Courts do not fish for or speculate over defences available to an accused. The facts which constitute such defences must be apparent enough from the evidence on record to enable the Court to consider them. It must, therefore, be reiterated that Court must not, in the absence of evidence of such defence or defences on records, speculate. The appellant in the present appeal is only but fishing for defences which cannot avail him or are irreconcilable.
On self-defence,Sections 32(3) and 286 of the Criminal Code provides as follows:-
“32. A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances…
(3) when the act is reasonably necessary in order to resist actual and
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unlawful violence threatened to him, or to another person in his presence. But this protection does not extend to an act or omission which would constitute an offence of which grievous harm to the person or another or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful assistance or conspiracy rendered himself liable to have such threats made to him.”
“286 When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault. Provided that the force used is not intended, and is not such as is likely to cause death or grievous harm. If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence even though such force may cause death or grievous harm.”
It is the law, that the
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defence of self-defence is open and available only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. It is his entitlement to use and apply such force to defend himself as he believes, on reasonable grounds, to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm. However, if the act said to be a self-defence is committed after all danger from the assailant is past and by way of revenge, then the defence will not be available to such an accused person. See Per Ariwoola JSC in Afosi v. State (2012) All FWLR (Pt. 612) 1723, (2013) 13 NWLR (Pt. 1371) 329, (2013) LPELR-20751 (SC).
If the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such self-defence, as in the present case, then the defence cannot avail the appellant. Thus, it is lawful if the nature of the assault on the appellant is such as to cause reasonable apprehension of death or grievous harm for him to use such force on the deceased that is
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necessary to defend himself. This does not arise if he is no longer in apprehension of death but rather an unjustified aggressor, who retaliated in a disproportionate manner, then the killing is considered intentional, and the defence of self-defence will not avail him. In other words, the guiding principles are necessity and proportion; the force must have been necessary and it must have been reasonable, and the two questions that must be addressed by the trial Court are – (1) on the evidence, was the defence of self defence necessary (2) was the injury inflicted proportionate to the threat offered, or was it excessive? In this case, it is clear by the evidence before the trial Court that the answers to the aforesaid questions are in the negative. The defence of self-defence was not necessary, and the 9 fatal gunshots the appellant inflicted on the deceased , were not proportionate to whatever threat the deceased offered him on that fateful day. The force he used on him was excessive and inexcusable. See Per Augie, JSC in Idagu v. State (2018) LPELR-44343 (SC).
Based on the above principle and consideration of self defence, the lower Court in the 2nd
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paragraph of page 217 balanced the matter thus:
“…looking at and starting with the narration as to who attacked who first, I find it a bit worrisome that 3 trained police officers were on duty, one of them armed with a smoke gunner and the other being the appellant was armed with an AK47 Rifle (exhibit D5), and still they were so disadvantaged and powerless that they were so easily disarmed by the deceased standing alone with a pair of scissors. If on the face of the AK47, the smoke gunner and 3 police officers put together, the deceased standing alone was able to assail on those 3 trained police officers, then they were not fit to be on duty at that road block. From every indication and considering the circumstances, it is not plausible that the deceased was the aggressor or assailant at the time. I am satisfied that the deceased fell a victim of the aggression when he was slapped by the policeman who he merely asked if he does not go to church even on Sunday and that he should pity the poor motorcyclist from whom he collected N50.00 (Fifty Naira). That innocuous remark was not enough to earn the deceased a slap by the PW1.”
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However, by the evidence of PW1 (mother of the deceased) and PW2 (the pathologist), the deceased was shot 9 times by the appellant under the strange and incredible defence of self-defence and accident! The innocent remark of the deceased to the police officers is infinitely too little to spark and ignite the dastardly action of the appellant. Even after the remark, the police officers deliberately pursued the deceased who was on motorcycle and not power bike, to shoot at him with 9 bullets. What is lawful that for such a remark, the deceased should even be chased or beaten by the police, how much more to be shot? Indeed, there is no way accident or self-defence can avail the appellant who carried out a deliberate act. It is 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. It needs to be stressed that the act leading to the accident must be a lawful act done in a lawful manner. Thus for an event to qualify as accidental under Section 24 Criminal Code (C.C.), it must be a surprise to the ordinary man of prudence, that is, a surprise to all sober and
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reasonable people. The test is always objective. 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. See per Bage, JSC in Adegboye v. State (2017) LPELR-42099 (SC).
Instead of the appellant to be apologetic and seek for mercy or accept his fate, he is busy scrambling for defences like a drowning man looking for anything to hold unto for safety. This does not operate like that in criminal defences. A man intends his actions and although every available defence is open to him, he cannot pick and dump them the way he likes to depend and rely on accident in one breath and then jump to self-defence are mutually exclusive and cannot agree or avail the appellant. Although the two defences are exculpatory where proved, the facts to prove them cannot flow in the same case. This is because the defence of accident is not deliberate, willed or intentional, while that of self-defence is deliberate, calculated and premeditated. In fact, having raised these 2 defences which are mutually exclusive at
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the same time and in the same case, the appellant’s case is fatally dead ab initio and sufficient now to knock off this appeal. Per Onnoghen, JSC, in Jimmy v. State (2013) 18 NWLR (Pt. 1386) 229, (2014) All FWLR (Pt. 714) 103, (2013) LPELR-20333 (SC), explained it further thus:
“I need to state that by the nature of the defence of self-defence and accident, they are clearly odd bed fellows; they cannot operate side by side in single case as the facts needed to support one are not the same with the facts needed to establish the other.”
In the present case, both the trial Court and intermediate Court had dutifully considered whether the defences of self-defence and accident, from the available facts, could avail the appellant in anyway, and dismissed them as unavailing. I must also dismiss the appeal. This issue is against the appellant and I hereby affirm the concurrent decisions of both the trial and lower Courts.
SC.304/2017