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In The Supreme Court of Nigeria On Friday, the 26th day of January 2007
S.C. 199/2005
Before Their Lordships
Between
And
Judgement of the Court delivered by George Adesola 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 P.W.7 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 had 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, P.Ws. 2, 3, 4 and 6 gave substantially the same evidence. P.W.4 testified that a mammy market was in the direction at which the appellant had fired a gun at the Jetta car. The evidence of P.W.6 is eye-opening and I reproduce it in full.
"I know the accused person. On 21/11/87 at about 4.30 p.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 lane 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 Umololo 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 police men 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 P.W.5 however was a departure from the drift of the evidence given by P.Ws. 2, 3, 4 and 6 who were the policemen on road duty with the appellant. At pages 62-63 of the record, P.W.5 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 police man 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 Resturant 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 P.W.5 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.
P.W.7, 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 P.W.5. At page 67 of the record P.W.7 said:
"At about 3.30p.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 1 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 policemen ask 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 away 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 police checkpoint when 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 P.Ws. 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 lo her by two policemen.
Remarkably however, PW.7, 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 policeman said lo 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 21/1 1/87 with some other policemen, when a Jetta saloon car sped past the police checkpoint. The car refused to heed an 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 I find 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 P.W.7. The PW2 in his evidence said that the shooting was heard from a distance of about 600 yards. The P.W7 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.O. 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 P.W.7 impresses me as a faithful witness. He was very sure of his evidence."
(Underlining mine)
The court below however took the view that even if the evidence of P.W.7 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 P.W.7 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 P.W.8 Phillip Ibe, a Police A.S.P. was to the effect that the appellant when he left the police station on 21/1 1/87 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 P.Ws. 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 P.W.7. By the approach of the court below, the guilt of the appellant was established by the evidence of P.Ws. 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 P.W.7."
In Lori v. State [1980] 8-11 SC. 81 at 95-96, this Court per Nnanumi 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 Samuel Abengowe 3 W.A.C.A. 85; R vs. Oledima 6WACA 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 Omoniyi v. The Stale [1976] 5 SC. I; Frank Onyenankeya v. The Stale [1964] N.M.LR. 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. Queen [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 called 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 P.Ws 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 slop at a police checkpoint when ordered to do so. The appellant in reaction tired 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 tired 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 wilfully 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 any body and had in the process mistakenly killed the deceased. See R v. Maye Nimgu [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 P.W.7 could not stand at the same time with that of P.Ws. 2, 3, 4 and 6. P.W.7 said he saw one of two policemen shoot the deceased. If on the evidence of P.W.8, the appellant had only failed to account for one bullet, and P.Ws 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 P.W.7, 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 P.W.7 seems unreliable. 1 le 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, P.W.7 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.
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 the 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 P.W.7 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, 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 of which the law lays upon it and the prisoner is entitled to an acquittal....."
The case of the prosecution in this case is bedevilled 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.
Judgement delivered by Sylvester Umaru Onu, J.S.C
Having been privileged to read in draft the judgment of my learned brother Oguntade ,JSC just delivered, I agree with him that the appeal must be allowed in the face of the conflicting evidence which albeit, the court below (the Court of Appeal, Port Harcourt affirmed).
In the first place, the prosecution called a total often prosecution, witnesses majority of whom were police men.
The first of two versions of the dastardly incident that led to the deceased’s death was as to how the appellant along with eight other mobile policemen, were on 21st day of November, 1987, posted to a Road Block duty at Umulolo Okigwe, on the Enugu-Aba Express Road when without any instruction or authority, the Appellant fired his gun on a fast moving car that broke through a police barrier. The firing occurred at a point where a mammy market was in session an offence punishable under section 319 (1) of the Criminal Code.
Secondly, how was the case proved when there was no connection between the woman killed and the side of the Enugu-Aba Expressway from which the gun rang out vis a vis the entire story as to how relatively placed is the market and the distance from which the gun was fired? While it was further the prosecution's case that some of the policemen on the road block duty with the Appellant were PW2 - Cpl Stanley Amadiegwu, PW3 - Godspower Anyanwu, PW4-Sgt Dennis Imosili, and PW6 - Inspector Isa Ambori among others, it was common ground that the police officers, at about 4:20pm of 21st November, 1987, while they were on road duty at the aforesaid Umulolo along the Aba Enugu Express Road, and saw a Volkswagen Jetta car "on top speed" on the Enugu - Aba Lane of the road with head lights on. The driver of the said Jetta car,was said to have ignored all orders by the policemen on its lane to stop. The Appellant, along with the PW2, Stanley Amadiegwu and others, it was further added, were posted to man the Aba-Enugu Lane of the road, while PW4 with another team, were manning the Enugu-Aba Lane of the )Express Road. PW3, Godspower Anyanwu for his part, testified
"There was no attack from the people in the vehicle that drove past. The woman who was killed (Eunice Ikezuagu) was not in the Jetta car."
(Brackets are mine)
He further stated as follows:
"As a police officer you can use your firearm when you are in danger and no other way to escape and also in protection of anybody. In emergency, while on duty there must be an instruction from a senior officer before a policeman can use his firearm...”
He more emphatically testified as follows:
"There is a mammy market near the road block just opposite Aba Lane. There was no encounter with armed robbers that day."
(Emphasis supplied)
Cross examined. PW3 stated that the much he would do in a situation where a vehicle broke through police road block, is to pursue it and that he would not fire into a vehicle, until he was satisfied that the occupants were armed robbers. For PW4, Dennis Imoisili, his evidence at page 57 lines 28-30 is as follows:
We signalled the car to stop and it did not stop. At about 450 yards from us we heard the accused crossing the road shouting “armed robbers” “armed robbers” . He ran from Aba to Enugu-Aba Express lane with shouting of “armed robbers”
(Emphasis supplied)
Reference was next made to page 59, line 4-5 wherein PW4 stated thus:
"The gun was shot towards the place the mammy market was holding ....... The accused said that he fired at the vehicle. PW6 was the leader of the mobile police officers by name Inspector Isa Ambori. His account of the incident especially as to the number of gun shots he heard, was riddled with self contradictions of absurd degree.”
(Underlining is mine for emphasis)
For PW8 the IPO, one Philip Ibe (an ASP) he testified as follows:
"After seeing the scene and after hearing the police at Okigwe I ruled out the case of armed robbery. I invited the mobile police for question (sic) including the accused person. I took them to the scene of crime. After interrogation. I found out that it was the accused that shot (sic) the deceased."
(Underlining is mine).
As to how relatively placed is the market in which the deceased met her death, I am in entire agreement with my learned brother Oguntade, JSC to resolve the benefit of doubt created thereby in Appellant's favour. Accordingly, the judgments of the two courts below are set aside. The Appellant is discharged and acquitted.
Judgment delivered by Umaru Atu Kalgo, J.S.C.
I have read in advance the judgment of my learned brother Oguntade JSC just delivered. I am in full agreement with his reasoning and conclusions reached therein. He has, in my respectful view, carefully and properly considered all the issues arising in the appeal and I agree with him that the appeal ought to be allowed. Accordingly, I allow the appeal, set aside the decisions of the trial court and the Court of appeal and discharge and acquit the appellant.
Judgment delivered by Mahmud Mohammed, J.S.C.
The judgment just delivered by my learned brother Oguntade JSC in this appeal was read by me in draft before today. I agree with his reasons and conclusion that this appeal has merit and therefore deserves to succeed. This is because from the evidence on record, the prosecution gave two versions of how the deceased met her death. One version from the evidence of the police officers in the patrol team with the appellant was that the appellant fired at a moving Jetta car which refused to obey the orders of the police to stop at the checkpoint. Later, the corpse of the deceased was found in the market place bleeding from a bullet wound. As the appellant was the only police on duty at the spot who failed to account for one bullet, circumstantial evidence pointed at him as being responsible for the death of the deceased under reckless circumstances of using his gun to cause the death of the deceased.
However the second version of the evidence led by the prosecution on how the deceased lost her life was through the evidence of P.w.5 the husband of the deceased and P.w.7 who claimed to be an eye witness not only to the shooting of the deceased by the appellant but also to the events that occurred between the appellant and the deceased that resulted in the act of shooting resulting in the death of the deceased. The trial court accepted both conflicting versions of the prosecution's case and convicted the appellant of murder. On appeal, the court below which did not see nor heard the witnesses who gave conflicting evidence, accepted one version as narrated by P.w.5 and P.w.7 and affirmed the conviction of the appellant. There is no doubt whatsoever that from the conflicting evidence adduced by the prosecution as to how the deceased was killed, strong doubt had been raised from the evidence which the law requires to be resolved in favour of the appellant.
Accordingly, I also allow the appeal, set aside the conviction and sentence of the appellant by the trial court and affirmed by the court below and acquit and discharge the appellant.
Judgment delivered by Ikechi Francis Ogbuagu, J.S.C.
This appeal, I must confess, has given me some concern. I will demonstrate the reasons for my concern in this Judgment. Firstly, there is the concurrent finding of fact by the two lower courts and the attitude of this Court not to interfere except in given circumstances, is no longer in doubt.
Secondly, in the index of the Records, Nos. 11 and 12, there are two Statements of a P.W.7. The name of the said P.W. 7 is Cpl. Godson Omonsienlen - Cpl. No. 103698. The first statement appearing at pages 18 and 19 is/was made on 23rd November, 1987 and the second statement at page 20 is/was made on 3rd December, 1987. I have searched in vain in the Records, where the statement to the police of the P.W.7 - one Onyemerekwe Nmuoduche, is contained. His evidence appears at pages 66 to 71 of the Records. I have also perused the Records, and I cannot find where Cpl. Godson Omonsienlen ever testified at the trial court. I note that in the "No case" submission at pages 86 to 87, Chief Ejimofor - learned counsel for the Appellant, did not say a word about the evidence of P.W.7 - either the Police Cpl or the meat seller.
The Appellant in his first statement to the Police on 23rd November, 1987 at pages 29 and -30 of the Records stated inter alia, as follows:
".......... I looked across Enugu lane and saw the mobile policemen on that lane waving a Jetta Car to stop but the car did not stop, immediately the car passed the road block what I heard was a terrible shooting from the Jetta Car, I ran across and released one bullet on the car but it was still going ......................”
“...................When we went back to the scene of the incident, I discovered that a body (sic) (lady) who were (sic) (was) around during the incident was shot down by the armed robbers".
(The underlining mine)
In the second statement appearing at pages 30 and 31 of the Records and made on the same date - 22nd November, 1987, the substance of which are the same with the first statement, the Appellant stated inter alia, as follows:
".............. It was on the strength of the shooting I returned fire when we came back to the point, I discovered that during the incident a lady unknown to me, was hit down. Though during the firing everybody on that lane scattered........."
(The underlining mine)
In a third statement appearing at page 32 of the Records and made on the 25th November, 1987, the Appellant stated as follows:
"In addition to my former statement, I have to state that I fired which I admitted but before I return fire to the said vehicle from my position, Sgt. Dennis father's name unknown to me and Cpl. Goddy had already fired on the said vehicle, I did not want to speak for anybody, I though (sic) since I have admitted returning fire to the said vehicle, they will say the truth themselves. Why I returned fire to the vehicle was that after the said officers had fired the vehicle which the shooting was heard, the vehicle did not stop. That is all.”
Eleven (11) witnesses including the Medical Doctor testified for the prosecution. The Appellant, in his evidence in -chief at pages 92 to 94 of the Records after the "No case" submission of his learned counsel had been overruled, stated inter alia, as follows:
"........ I know all the prosecution witnesses except the P. W.7. ............ When we got there I was deployed under the Police Inspector Ise Ambore ... I was deployed with P. W.2 and two others.......... When the car broke through the barrier I heard "shoot him" from the direction of the car. Mbore gave a command to stop the vehicle. He said "Hey stop that vehicle". When that command was given I fired at the tyre of the vehicle. I fired one bullet. One Omosele fired. One Sgt. Omonsienlen fired from another unit.
After firing, the vehicle did not stop. Alarm was raised "Armed robbers, Armed robbers!”......... When I went back some women reported that a robber shot down a woman during exchange of fire and that they had reported the matter to the Inspector........... When I heard the command of the Inspector I am expected to fire at the tyre of the vehicle. I did not see the deceased. I did not see the dead women (sic). There are about three huts on the scene as at that time people were selling and buying there. The Jetta car was about 14 yards from that hut when I fired at it.”
The cross-examination of the Appellant was anchored, based on or directed mainly, to the evidence of P.W.7 - a meat seller. It was suggested to him that the deceased who was said to be the Proprietress of "Green Virgin Restaurant", was killed by him because she refused making love with the Appellant and "to stop her pride that her husband is a lay magistrate". That he killed the deceased in company of another policeman Goddy Imoisili.
Now, part of the submissions of the learned counsel for the Appellant at pages 103 and 104 of the Records, appear as follows:
"......... The evidence of the accused person coupled with Exhibit A - A2 show that the accused fired one bullet on the day of this incident. The contention that the accused was not the only one who fired that day was corohmited (sic) (meaning corroborated) by the evidence of PW6 Inspector Isa Ambore who testified that after the death of the deceased one woman came to him to report that while the policemen were exchanging gune (sic) (meaning gun) fire with the Suspected armed robbers one woman came to him that a woman was hit by bullet ............."
Learned counsel referred to the evidence of the PW6, which according to him, is that "when I came back I called my men together in order to know who and who among them participated in firing. I heard gun shots this was rapit (sic) gun shot. There was more than one gun shot (sic)".
From the Records, the further submissions are recorded inter alia, as follows:
"From this evidence the issue is which bullet killed the deceased" Asks court to hold that it was not the bullet fired by the accused that killed the deceased. Refers the court to the case of R v. Isa Abudehi (sic) 1981 All WLR 668 at 669. There is no nexus whatsoever between the act of firing at the deatar (sic) car and the deceased.
Submits that the confusion of the prosecution that by the mere fact that the accused participated in firing on the day of the incident caused the death of the deceased. It implies on suspicion. Refers the court to the evidence of PW7. Says the evidence of PW7 is different from that of P.W.3, 4, 5 and 6............"
The reply and submissions of the learned counsel for the prosecution - Okorie, Esq, are significant and remarkable.
They appear at page 106 of the Records. After referring to the evidence of P.Ws 2, 3, 4 and 6 respectively, the following appear inter alia, as follows:
"............... There is evidence before the Court on which the court will find there was a shooting incident which involved only the accused person out of more than one policemen on duty on that day. Urges the court to hold that it was this shooting incident that left a woman down on the spot. ............ Submits that the cause of the death of the woman's death was from the shooting incidents. Refers the court to the evidence of PW1. This has satisfied the provision of Section 308 of the Criminal Code. From the evidence of the PW2, PWS, PW4, PW6, PW7, PW9 and PW10, he urges the court to hold that it was only the accused person who did not return at the end of the day complete rounds of ammunitions issued to him instead of 20 rounds assigned to him, he returned 19. Asks the court to hold that it was only the firing bullet that killed the deceased. Asks the court to consider the evidence of the PW7 the only civilian witness who was at the material time selling grass cutter to the deceased woman, the court will hold that the person who killed the deceased is a police officer ................"
(The underlining mine)
I note that his further submissions that appear at pages 107 to 111 of the Records are conflicting in material respects. At page 107, the following appear, inter alia:
"................ From the totality of the evidence asks the court to hold that it was the accused who was the only person who fired that day and that it was the firing that killed the deceased. Submits that the killing is unlawful based on the evidence of PW2, PW3, PW4 and PW6 respectively within the of section 306 C.C (sic) in that it was not authorized by the superior police officer in charge of the road block or by a sentence of a court.............. Submits that the accused intended to kill, not merely to do grievous bodily harm to the people in the Delta vehicle who for all intents and purposes are innocent citizens on a private journey..........."
(The underlining mine)
At page 109, the following appear, inter alia:
"............ says the accused did not aim at the tyre of the vehicle but at the deceased.........."
What am I trying to show? One may ask. My answer is that from the case of the prosecution and as shown even from the address/submissions of its learned counsel, it is on one hand or in one breath, that it was, albeit, "the careless" or the negligent" or if you like, " the reckless" act of the Appellant of firing/shooting, that caused the death of the deceased having regard to the evidence of the PW2 to PW6 and 8 to 10 PWs. On the other hand or in another breath, that the Appellant deliberately killed the deceased because she refused the love overtures of the Appellant to her having regard to the evidence of the PW.7. So, there are two materially conflicting versions of how the deceased met her death. It therefore, can be seen and appreciated why in the beginning of this Judgment, I confessed that this case and/or appeal, has given me some concern.
This is a case where the Appellant did not deny that he fired a gun shot. He lied when he testified that other policemen with him also fired their respective gun. This is because, the evidence showed/shows that all the other policemen, accounted correctly the number of bullets issued to each of them. It was only the Appellant, who admitted that he fired at the tyre of the speeding Jetta car (sometimes called "Delta"). But the evidence of the PW7 who the trial court believed and the court below affirmed or justified the finding and holding of the trial court, in my respectful view, materially, complicated matters. His said evidence made or rendered the case of the prosecution, very and most worrisome and confusing to me. More worrisome because, as I have stated the trial court believed him. Worse still, this witness never made a Statement to the Police at any time before he testified in court. How he became a Police or Prosecution witness, is a matter of conjecture or speculation.
Now, at page 115 of the Records, the learned trial Judge, stated inter alia, as follows:
"I have very carefully considered and weighed the evidence before me and I find as 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 PW.7..........."
I am satisfied that neither the accused person not (sic) (meaning nor) the members of the team fired at 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!
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