Sunday Udosen V. The State (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The appellant was at the Okigwe High Court of Imo State charged with the offence of murder. It was alleged that he, on 21-11-87, murdered one Eunice Ikezuagu along Umulolo-Okigwe/Enugu Express Road. The case was heard by Okoroafor, J. The appellant was on 13-12-91 found guilty, as charged and accordingly sentenced to death.

Dissatisfied, the appellant brought an appeal against the judgment of Okoroafor, J. before the Court of Appeal, Port Harcourt (hereinafter referred to as the ‘court below’). On 28/12/2005, the court below in a unanimous judgment affirmed the judgment of the trial court. The appellant has come before this court on a final appeal. In the appellant’s brief filed by his counsel before this court, the issues for determination in the appeal were identified as the following:

“1. Whether the prosecution proved its case against the appellant beyond reasonable doubt as required by law.

2. Whether the evidence of PW7 upon which the learned trial court convicted the appellant was properly and legally admissible.
3. If the answer to issue No.2 were (sic) rendered in the negative and in favour of the appellant, what would be the proper order to be made in the circumstance.

Would it be a trial de novo or an acquittal

4. Alternatively, whether the defence of accident under section 24 of the Criminal Code was not available to the appellant.”

The respondent formulated two issues for determination in the appeal. I shall be guided in the consideration of the appeal by the issues raised by the appellant, which said issues, amply accommodate the respondent’s issues. The appellant’s issues could be conveniently considered together. I shall so consider them.

At the trial, the prosecution in its case against the appellant, called ten witnesses. The appellant, who testified in his own defence, did not call any witness. The case made by the prosecution broadly speaking, was that, on 21/11/87, the appellant, a police corporal, was on road duty with some other policemen at about 4p.m. along Okigwe-Enugu Express Road. Whilst there, the policemen saw a Jetta saloon car with its headlights on which sped past the police checkpoint and in the process refused to stop despite being ordered to do so. The appellant, in reaction opened gun fire on the car shouting in the process “armed robbers, armed robbers.” The car did not stop. The appellant, with another police corporal, boarded a taxi which happened to be around at the time and pursued the Jetta saloon car. A little later, an alarm was raised that the body of a woman was found along a lane of the Enugu-Okigwe Express Road. She was bleeding. She was Eunice Ikezuagu (hereinafter referred to as ‘the deceased’). It was not quite clear how she had come by her injuries, going by the testimony of the other policemen on road duty with the appellant, who had observed the incident. The appellant had fired only one gun shot at the Jetta saloon car. No one else on the evidence available had fired a gun shot. At the close of duty for the day, an inventory taken at the police station to which the appellant and the other policemen on road duty with the appellant reported, revealed that, the ammunitions given to the appellant before he went on the road duty were more than he returned. There was evidence that the appellant expended one of them.

Those who at the trial testified for the prosecution included the policemen who were on road duty with the appellant when the incident occurred. These policemen, PWs’ 2, 3, 4 and 6 gave substantially the same evidence. PW4 testified that a mammy market was in the direction at which the appellant had fired a gun at the Jetta car. The evidence of PW6 is eye-opening and I reproduce it in full.

“I know the accused person. On 21/11/87 at about 4.30p.m. when I and the other policemen were on road block check along Enugu – Port Harcourt Express Road at Umulolo junction Okigwe, I and other three policemen were on Enugu Express lane we saw an approaching Jetta Volkswagen car with full light on at a top speed. I ordered my men to stop it. They tried to stop it but it refused to stop. We shouted to the people on the Port-Harcourt lane to stop it. We shouted stop!, stop! the vehicle! The vehicle was passing on Enugu lane. The next I heard was a gun shot on the opposite side. The distance from my side to the opposite side was about 800 yards when we heard the gun shot we shouted running towards the vehicle. It was at that time I saw the accused crossing to the road with his gun at the hanger position. He was going from Port-Harcourt to Enugu lane. He told me that the vehicle did not stop and he opened fire and the vehicle replied and that those people were armed robbers. He entered another vehicle and said he was pursuing them. I mobilized my men to pursue the vehicle. We pursued the vehicle with another vehicle. I could not see the vehicle we came back to Umulolo junction. When we came back we did not see the accused person. Five of us including the accused person pursued the vehicle. I did not see the accused until we closed. A woman came and reported to me that a woman fell down when the policemen were exchanging fire with the armed robbers. I asked the woman to show us the place. I found the woman dead in pool of blood at the mammy market. I reported the matter at Okigwe Police Station …”

The evidence of PW5 however was a departure from the drift of the evidence given by PWs’ 2,3,4 and 6 who were the policemen on road duty with the appellant. At pages 62-63 of the record, PW5 testified inter alia thus:

“I went back to Okigwe and made a report and told the police that I suspected a foul play. A few weeks before the incident my wife had confided in me with a reasonable anxiety that there was a particular mobile policeman who embarrassed and harassed her with illicit love overture to her and whenever she told him that she was married he would take offence or appear angry and started brandishing the gun to intimidate her. I took the deceased to the Umulolo junction to look for the policeman. I did not see the policeman. I took her to the Inspector who was in charge of the team and introduced her to him and pleaded with him to protect her. The market where the deceased went to was at Umulolo junction where the check point was. The deceased was running a restaurant at Orlu and the name of the restaurant was Green Repire restaurant, Orlu. Members of the police force eat there. After my report to the police they arrested the accused and charged him with murder.”

It is apparent from the evidence of PW5 reproduced above that his version of events would appear to suggest that the deceased had been deliberately fired at and killed by the appellant because she refused to succumb to some amorous overtures from some of the policemen on road duty.

PW7, a meat seller, who claimed to have witnessed the events which led to the death of the deceased gave a piece of evidence more explicit and in tandem with the evidence given by PW5. At page 67 of the record PW7 said:

“At about 3.30 p.m. that afternoon I had kept the meat for sell a woman who used to buy the meat came. When the woman was coming I saw two policemen coming from the other side of the road. They started to call the woman with signs. The woman did not answer them. When they met the woman they asked her if she did not hear when they were calling her. The woman told them that she did not hear when they were calling her. They told her something which I did not hear. What I heard the woman tell them was if they do not know her husband and if they did not know that she was married. After the woman had told them that I heard one of the policeman asked her if she was Queen Elizabeth. The woman did not answer them but turned. It was at that time that one of the policemen asked the other to “dash” her bullet. The other shot the woman. They ran and everybody at the scene ran away. I ran away and hid myself under a heap of electric poles and from there I was watching my meat. The woman fell down when she was shot and I ran away. The woman was shot at the small market at the junction where people buy and sell. After the woman had been shot the policemen gathered at the place and stopped the traffic from both sides of the road. They talked together and dispersed. I did not hear what they said.”