Sunday Udosen V. The State (2007) LLJR-SC

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.”

The result was that at the close of the prosecution’s case, there were two irreconcilable versions of evidence as to how the deceased met her death. On the one hand, there was the version of the evidence from the policemen with the appellant on road duty that the appellant had only fired his gun at a Jetta car which had refused to stop at the ordered to do so. According to these witnesses, the body of the deceased was later discovered bleeding at the mammy market near the express road. As against this version was the evidence of PWs’ 5 and 7 conveying that the deceased was deliberately fired at and killed because she had refused to respond favourably to the sexual overtures made to her by two policemen. Remarkably however, PW7, who claimed to have witnessed the killing of the deceased, did not identify the appellant as the one who shot and killed the deceased. Neither did he identify the other policemen said to have been with the appellant just before the deceased was killed.

The appellant testified in his own defence. He said that he was on road duty on 21/11/87 with some other policemen, when a Jetta saloon car sped past the police checkpoint. The car refused to heed all order to stop. The appellant claimed to have heard someone in the escaping car shout “shoot him”. He also heard the leader of the police road duty team say “stop that vehicle.” In reaction, the appellant fired at the tyre of the vehicle. According to the appellant, two other policemen also fired at the same vehicle. The policemen raised an alarm shouting “Armed robbers! Armed robbers”. They got another car to chase the Jetta car. They could not however apprehend it. Later, some women came to the police checkpoint to report that a robber shot down a woman during an exchange of fire. The appellant denied knowing the deceased. As I stated earlier, the trial Judge found the appellant guilty and sentenced him to death. At page 116 of the record, the trial Judge in a five page judgment said:

“After a careful consideration of the evidence and the law involved in this case, I am satisfied that the prosecution has proved its case beyond all reasonable doubts and I have no doubt in my mind as to the guilt of the accused.”

Before he came to the above conclusion, the trial Judge had in a brief evaluation of the evidence said at page 115:

“I have very carefully considered and weighed the evidence before me and 1find as a fact that it was only the accused person who fired his gun on that date during the road block. This was not denied by the prosecution witnesses. I am satisfied and do find as a fact that none of the prosecution witnesses was at the spot where the accused fired his gun except the PW7. The PW2 in his evidence said that the shooting was heard from a distance of about 600 yards. The PW7 testified that the accused and another policeman accosted the deceased Eunice Ikeazuagu and shot her. It is the case of the prosecution that the accused and one P.G. Omozele left the road block and boarded a taxi. The accused did not come back to the base until about 6.30p.m. when they were about to go home. I am satisfied that neither the accused person nor the members of the team fired at the Jetta vehicle. No fire was returned from the Jetta vehicle. This piece of evidence was put in to confuse the issue. It was only the accused person who ran from one lane to another shouting armed robbers! armed robbers! The PW7 impresses me as a faithful witness. He was very sure of his evidence.”

(italics mine)

The court below however took the view that even if the evidence of PW7 was not taken into account, the prosecution had still established the case against the appellant beyond reasonable doubt. At page 193- 194 the court below said:

“I agree with the contention of the respondent’s counsel from all discussed above that from the available evidence without that of PW7 there is sufficient evidence to prove the case of murder against the appellant. Though it appears that most of the points were not discussed and considered by the trial Judge. it seems that he stumbled at the right answer. The learned trial Judge said he carefully considered the evidence and the law before reaching his conclusion. It is enough that he reached a right decision. Such cannot be affected by the fact that it was arrived at an insufficient or even some wrong reason, See Lebile v. Reg. Trustees C. & S. (supra) at p, 22. The prosecution clearly proved that the appellant as a Mopol, killed the deceased by acting recklessly in a ‘trigger happy mood’ fashion in a way dangerous to life. This conclusion reached leaves only a remote possibility in favour of the appellant. The case against him, as proved, has its base on firm probability. I (sic) should be taken as saying that the case against the appellant was proved beyond reasonable doubt.”

I think, with respect to the courts below, that they had not sufficiently borne in mind the inconsistencies in the two versions of the evidence called by the prosecution witnesses before the trial court. The evidence of PW8 Phillip Ibe, a Police A.S.P. was to the effect that the appellant when he left the police station on 21/11/87 for road duty, was issued with 20 rounds of ammunition. At the close of the day, the appellant returned 19 rounds of ammunition. This in effect means that the appellant had expended one round of ammunition. Now, the evidence of PWs’ 2, 3, 4 and 6 was that the appellant fired a gun shot at the Jetta car as it sped away, without stopping at the checkpoint. This piece of evidence in my view explained beyond argument how the 20 rounds of ammunition were reduced to 19. The court below took the view that the guilt of the appellant was established without the evidence of PW7. By the approach of the court below, the guilt of the appellant was established by the evidence of PWs’ 2, 3, 4 and 6, The trial court, on the other hand had come to a different conclusion at page 115 of the record when he said:

“I am satisfied and do find as a fact that none of the prosecution witnesses was at the spot where the accused fired his gun except the PW7.”

In Lori v. State (1980) 8-11 SC 81 at 95-96, this court per Nnamani, JSC said:

“In a charge of murder, the cause of death must be established unequivocally and the burden rests on the prosecution to establish this and if they fail the accused must be discharged. See Rex v. Samuel Abengowe 3 WACA 85; R v. Oledima 6 WACA 202. It is also settled law that the death of the victim must be caused by the act of the accused or put differently it must be shown that the deceased died as a result of the act of the accused. See Sunday Omonuju v. The State (1976) 5 SC 1, Frank Onyenankeya v. The State (1964) NMLR. 34.”

It would appear that the two courts below ran into the difficulty because of the conflicting versions of the evidence before the trial court. The basic situation is that the two versions are so mutually contradictory that they could not both be true. In Onubogu v. State (1974) 9 SC 1, this court per Fatayi-Williams, JSC (as he then was) said at page 20:

“We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which call them to pick and choose between them. They cannot, without showing clearly that one is a hostile witness, discredit one and accredit the other. (See Summer and Leivesley v. Brown & Co. (1909) 25 TLR 745). We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing by cross-examination, the validity of the proffered explanation.”

On the supposition that the version of the evidence given by the PWs’ 2,3,4 and 6 was true, it is clear that the prosecution would have failed to establish an offence of murder against the appellant. These police witnesses were in agreement that a Jetta saloon car driving at speed refused to stop at a police checkpoint when ordered to do so. The appellant in reaction, fired a gun at the tyre of the vehicle. Nobody in the vehicle died. The vehicle on the evidence escaped. Shortly after, the deceased was seen near a mammy market bleeding. It was not quite clear how the gun shot fired by the appellant could have hit the deceased. The position she was, in relation to the vehicle fired at by the appellant was not indicated on the evidence. It was also not shown, the location of the mammy market near the scene in relation to the vehicle fired at with a view to show that the appellant had been reckless by shooting at the vehicle speeding away. Under section 319 of the Criminal Code of Eastern Nigeria, 1963 under which the appellant was charged, it is necessary that the prosecution must show evidence of intent to commit murder.

The section provides:

“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:-

“(1) if the offender intends to cause the death of the person killed, or that of some other person,

(2) if the offender intends to do to the person killed or to some other person some grievous harm;

(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life;

(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;

(5) if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;

(6) if death is caused by willfully stopping the breath of any person for either of such purposes; is guilty of murder.

In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.

In the third case it is immaterial that the offender did not intend to hurt any person.

In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”

The facts of this case do not fall within the scope or doctrine of transferred malice. If the appellant had intended to cause death to the occupants of the Jetta car and had by mistake or incompetence killed the deceased, he would be guilty of murder. But the evidence on record was that he fired at the Jetta car intending to disable it from escaping. Further, there was no evidence that the appellant had intended to cause grievous harm to anybody and had in the process, mistakenly killed the deceased. See – Nungu v. Queen (1953) 14 WACA 379. The crucial element here is that the position of the deceased in relation to the escaping vehicle or the mammy market was never established by the prosecution. The prosecution therefore failed to show the requisite intent under section 319.

I observed earlier that the version of evidence given by PW7 could not stand at the same time with that of PWs’ 2, 3, 4 and 6. PW7 said he saw one of two policemen shoot the deceased. If on the evidence of PW8, the appellant had only failed to account for one bullet, and PWs’ 2, 3,4 and 6 had said they saw the appellant fire a gun shot at the escaping Jetta car, where would the appellant get the extra one bullet fired at the deceased The PW7, not having positively identified any of the two policemen he saw talking to the deceased, and one of whom shot the deceased, had left open the possibility that some other two policemen excluding the appellant shot the deceased.

That aspect aside, the evidence of PW7 seems unreliable. He claimed to have witnessed the gruesome murder of the deceased but did not see the need to report what he had witnessed to the police until several weeks after. At page 69 of the record, PW7 was cross-examined. The exchanges went thus:

“Q: Did you make a statement to the Police

Ans: Yes and I made at Owerri.

Q: You made your statement after one month.

Ans: It took sometime before I made my statement.

G Q: When did you make your statement~

Ans: The husband of the deceased saw me at the scene of the incident and carried me to his house and later came and carried me to the C.I.D., Owerri where I made my statement.

Q: You said in your statement to the police that you accepted to be present at the scene of the incident because you were in sympathy with the husband of the deceased.

Ans: That is correct.

Q: You did not tell police in your statement that the husband of the woman was cursing and asking God to punish the people who were present at the scene and refused to come out to say so.

A.: I told the policeman who took down the statement so.”

Why did it take PW7 a few weeks to report a murder incident to the police and that only after he had seen the husband of the deceased at scene cursing persons who had witnessed the murder of his wife and refused to come forward This seems to me a most unusual reaction in the circumstance.

In Alonge v. I.G.P. (1959) 4 FSC 203 at 204; (1959) SCNLR 516, Ademola, CJF stressing the burden of proof on the prosecution in a criminal case observed:

“Now, the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it and this is the law as laid down in section 137 of the Evidence Ordinance. Cap. 62. The burden of proof lies on the prosecution and it never shifts; and if on the whole evidence the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal”

The case of the prosecution in this case is bedeviled by the conflicting versions of the evidence given by prosecution witnesses. This has led to a situation where each of the versions does not make a consistent story as to who killed the deceased without being linked with the other; and both versions could not possibly have been true or correct. The resulting doubt ought to have been resolved in favour of the appellant.

In the final conclusion, this appeal is allowed. The judgments of the two courts below are set aside. The appellant is discharged and acquitted.

SC.199/2005