Manshep Namsoh Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

KUTIGI, J.S.C.

The appellant faced a one count charge at the High Court of Justice Holden at Kano as follows –

“THE CHARGE

That you MANSHEP NAMSOH on or about the 16th May 1988 at about 1545 hours at Police Mobile Force barracks Hotoro Area of the Kano Municipal Local Government within the Kano Judicial Division, committed the offence of culpable homicide punishable with death in that you caused the death of one MIRI TIMKAT by doing an illegal act, to wit shooting him with a rifle gun on his neck with the intention of causing his death thereby committing an offence under section 221 (b) (sic Section 221 (a) of the Penal Code.”

The charge was read and explained to him and he pleaded not guilty to the charge. At the trial the prosecution called a total number of eleven witnesses while the appellant testified on his own behalf and called one other witness.

The facts of the case on which the prosecution relied may be summarised briefly as follows. The appellant was among 35 policemen who went on township patrol on the fateful day, 16th May 1988. They were each issued with a rifle and ten rounds of ammunition by Sergeant Bulus Fyang (P.W.10). The number of rifle issued to each officer was recorded against the name of each officer before he signed and collected same. Sixteen of the officers including the appellant were put together in one vehicle. The others were put in another vehicle. The patrol unit was under the command of Seth Agolware an Assistant Superintendent of Police. He testified as P.W.5. When the unit was returning from patrol the appellant was sitting inside the vehicle between P.C. Mara Guanshok (P.W.1) and P.C. Isaac Akogwu (P.W.2). Both P.Ws 1 & 2 said while in the vehicle they saw the appellant cocking his rifle. They asked him why and before he said anything, he had shot at the deceased P.C. Miri Timkar, in the neck. The deceased was on duty at the gate of the barrack.

The vehicle stopped. The armoured carrier in which the commander of the unit (P.W.5) was travelling and the other vehicle conveying the remaining policemen which were respectively in front of and behind the appellant’s vehicle also stopped. P.W.5 then ordered all the policemen to come down and stand by their respective vehicles. He instructed them to ground their arms and stand three paces away from their arms. He checked their ammunitions. All the men were found with the correct number of ammunitions issued to them except the appellant who could not account for two of the ammunitions issued to him. P.W.5 ordered the detention of the appellant. He took possession of appellant’s rifle. He said he examined the rifle and found one ammunition to have been expended while one was still in the rifle chamber. P.W.5 said he handed over the rifle together with the magazine and nine live ammunitions he collected from the appellant to Inspector Inuwa Wada (P.W.6). The rifle was identified by its number K2301105.

It was admitted in evidence as Exhibit D. The expended ammunition was tendered as Exhibit E. It was P.W.6 who administered the words of caution before the appellant volunteered to make the statement Exhibit F. The appellant also made additional statement which was tendered as Exh. H by P. W.7 P.W 7 also collected post mortem examination report (Exhibit G) from one Dr Stephen at the Murtala Mohammed Hospital Kano. The doctor carried out post mortem examination on the dead body. Sgt. Bulus Fyang. (P.W.10) was at the material time the person in charge of the arms register at the armoury section. He confirmed that the rifle issued to the appellant was rifle No. No. K2301105 (Exhibit D). When the witness cross’97checked this number with the appellant in the cell, he discovered that the rifle with the appellant was not the one he issued to him. He then ordered all the men to check the numbers of their rifles.

It was then that rifle No. K230 11 05 (Exhibit D) was found with P.C. Isaac Akogwu (P.W.2). P.W.10 said he received the rifle from P.W.2 and examined it. He found one round of ammunition inside the rifle Band one ammunition already used. The rifle with which the appellant was detained was rifle No. K2.’97302006. This rifle was not examined by anyone. It was the rifle Exh. D which was found with P.C. Akogwu (P.W.2) that was used or fired on the day. P.W.5 was informed of this discovery by P.W.10. He simply took the rifle K2301105 and the ammunitions from P.W.10 and that was the end of the matter.

The appellant on the other hand said in his evidence that he was inside the vehicle with others when he heard a sound of a rifle. P. W.5 stopped the vehicles and as he (P.W.5) was asking them who fired the shot, P.W.2 pointed at him. He said P.W.5 ordered him to be detained with his rifle No. K2 ’97 302006. He stressed that necessary entries were made by P.C. Anthony Ado (D.W.2) in the station diary where he was detained. He confirmed that it was Exh. D (Rifle No. K2 301105) that the signed for and collected on 16/5/88. He did not know where Exh. D was at the time of the incident. He voluntarily made the statement Exh.F. He said the additional statement (Exh.H) was a result of ‘E2’80’9cquestion and answer’E2’80’9d session between Sgt. Titus (P.W.7) and himself.

That Exh.H was written wholly by P.W.7 himself. P.C. Anthony Ado (D.W.2) confirmed the story of the appellant about the discovery of rifle K2301105 with P.W.2. He also confirmed that the appellant was brought to him together with rifle K2 ‘97302006 by P.W.5 and that he made immediate necessary entries in the Police Station Diary which was tendered as Exhibit K. He said Exh. D was brought to him by P.W.5 long after the appellant had been detained. He had no idea of the whereabouts of rifle K2 302006 at the time of trial.

In a reserved judgment, the learned trial Judge reviewed the evidence before him including the statements of the appellant under caution (Exhibits F&H) which he regarded as confessions, and found the appellant guilty as charged and sentenced him to death.

Dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal, Kaduna on four grounds of appeal. Three issues were formulated for determination thus –

“(i) Whether the conviction of the appellant can be sustained on the face of the contradictions which are patent in the case of the prosecution and the unexplained issue of the recovery of the rifle gun which released the fatal shot in the hands of P.W.2 Isaac Akogwu immediately after the incident.