SGT. LAZARUS ADIELE & ORS V. THE STATE
Delivered by the Court of Appeal, Port Harcourt Division on the 24th of March 2011
SUMMARY OF FACTS:
Boniface Ozumba was travelling in his Nissan Sunny Car with his brother-in-law, Christian Owerreoma on the 15th of August 2002. They came to a police check point along Orlu Road Junction by Mgbidi in Imo State and was ordered by the police to stop. They refused to stop and instead sped off. The policemen at the checkpoint chased after them in an Algon Jeep firing at their car as they did so. They soon got to another checkpoint /road block at Imo/Anambra boundary along Onitsha/Owerri expressway where mobile policemen were stationed. The policemen from the first checkpoint who were in hot pursuit in their Algon Jeep raised an alarm that they were chasing armed robbers and the mobile policemen at the second checkpoint also opened fire on the Nissan car. The car eventually stopped with the two occupants severely wounded. They were taken to the hospital where Mr. Owerreoma was later pronounced dead.
Seven policemen were charged to court for murder – Inspector David Poli, Sergeant Lazarus Adiele, Corporal Desmond Ononuju, Inspector Victor Chiaka, P.C. Augustine Ochiaga, Bonny Aikhadueki and Inspector Sunday Uwadiegwu (who died during the trial). These policemen comprised of police officers from the first checkpoint who chased in the Algon Jeep (Insp. David Poli who drove, Insp. Sunday Uwadiegwu who led the patrol team on duty and Sgt. Adiele) and the mobile policemen from the second checkpoint who opened fire after the alert that the occupants were armed robbers (Corp. Desmond Ononuju, Corp. Bonny Aikhadueki, Inspector Victor Chiaka and P.C. Augustine Ochiaga).
At the trial, the policemen’s defence was that the men were suspected to be armed robbers because they refused a lawful order to stop their vehicle at a police check point which necessitated firing at the vehicle in order to apprehend them. At the conclusion of the trial, the court acquitted three policemen and found Sgt. Lazarus Adiele, Corp. Desmond Ononuju and Corp. Bonny Aikhadueki guilty and sentenced them to death by hanging. They each appealed their convictions and the different appeals were consolidated. In a judgment delivered on the 24th of March 2011, the Court of Appeal overturned the conviction of Sgt. Adiele but upheld the conviction of the other two police officers.
ISSUES IN THE APPEAL
The first appeal considered was that of Sgt. Lazarus Adiele and the court considered two issues with respect to his appeal. The first issue was in relation to contradiction of witnesses. Sgt. Adiele argued that there were contradictions in the evidence of the witnesses which ought to have been resolved in his favour. The second issue deals with the evidence of a co-accused and how much evidential value should be placed on it. Under this issue, the court considered the difference between the extra-judicial confessional statement of an accomplice and a co-accused as well as the difference between the extra-judicial confessional statement and the evidence on oath of a co-accused. Finally, the court expounded on the evidence of a tainted witness and whether a conviction based on the uncorroborated evidence of a tainted witness can stand.
The court after reviewing the record of evidence found that there were no contradictions in the evidence of the witnesses. Only one witness, Corp. Ononuju testified that he saw Sgt. Adiele shoot at the vehicle while the other witnesses testified generally about the shooting and specifically about the other officers charged with him. The court found that this did not amount to contradictions. Relying on the decision of the Supreme Court in AGBO V. THE STATE (2006) 6 NWLR Pt. 977 Pg. 545 at Pg. 564, the Court held that “A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. In other words, two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains some minor differences in details.”
The Court thus held that even though the evidence of other witnesses did not specify that Sgt. Adiele was one of the shooters, they cannot be said to contradict that of Corp. Ononuju who stated that he saw Sgt. Adiele shoot at the car.
The second issue that the court determined in the appeal of Sgt. Adiele was the weight to be placed on the uncorroborated evidence of an accomplice/co-accused. Sgt. Adiele argued that he ought not to have been convicted on the uncorroborated testimony of Corp. Ononuju who is an accomplice and co-accused. He argued that his being tried along with Sgt. Adiele made Corp. Ononuju a tainted witness. He also argued that his evidence was actuated by malice and anger because Sgt. Adiele had earlier given evidence that implicated him. He stated that the court therefore ought to have received the testimony of Corp. Ononuju with caution and ought to have warned itself before accepting same.
The court first differentiated between the status of an accomplice and a co-accused, citing the provisions of the Evidence Act. The Court defined an accomplice as “someone not at that time jointly charged with the Accused and having no criminal charge to face.” The Court also referred to the definition given by the Supreme Court in UTTEH V. THE STATE (1992) 2 NWLR (Part 223) 257 thus: “an accomplice is (a) a participant in the actual crime charged (participes criminis) (b) a receiver of the property stolen (c) Where a person is charged with a specific offence on a particular occasion, and evidence is admissible and has been admitted of having committed crimes of identical type on other occasions, as proving system or intent or negating accident, parties to such other similar offences. I would add that accessories before or after the fact of a crime are accomplices. The factual difference is that the accomplice is not charged with the offence but is now a witness for the State in respect of the charge against the accused.”
Regarding the value of the evidence of an accomplice, the court cited the provisions of Section 178 (1) and (2) of the Evidence Act: “S.178 (1) and (2) of the Evidence Act provide thus:
S.178 (1) An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice:
Provided that in cases tried with a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the accused, the judges shall warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so and in all other cases the court shall so direct itself.
(2) Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.”
What about the extra-judicial confessional statement of a co-accused. The court relied on the provisions of Section 27 (3) of the Evidence Act: “Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or jury where the trial is one with jury, shall not take such statement into consideration as against any of such other person in whose presence it was made unless he adopted the said statement by words or conduct.” The Court thus held that the extra-judicial confessional statement made by a co-accused cannot be used to convict his fellow accused person. It is however a different position with the evidence of a co-accused. What is the difference between the extra-judicial confessional statement of an accused person and his evidence on oath? The Court stated: “An extra judicial statement given by a co-accused remains a statement not his evidence. It is binding on the maker only. … Where an Accused person repeats the contents of his statement to the police in his statement on oath, in the witness box, or gives fresh evidence on oath against a co-accused it becomes evidence for all purposes and is admissible against a co-accused.” The Court thus made the distinction between the provisions of Section 27(3) and 178(2) of the Evidence Act.
The Court thus held that the evidence of Corp. Ononuju against Sgt. Adiele given during his testimony in the witness box was “sufficient, satisfactory and credible on its own to ground a conviction under ordinary circumstances.” It was held that “While the court is expected to regard the uncorroborated evidence of a co-accused with circumspection, the law does not impose a duty on the court to warn itself before convicting on it.”
The Court then went on to decide whether the evidence of Corp. Ononuju was tainted. It had been argued on behalf of Sgt. Adiele that the evidence of Corp. Ononuju was tainted because he had his own purpose to serve which was to save himself from the consequences of the shooting. The court defined a tainted witness as “a witness who though not an accomplice is a witness who may have his own purpose to serve.” The Court also relied on the definition of the Supreme Court in CLEMENT OGUONZEE V. THE STATE (1998) 4 SCNJ 226, “a tainted witness includes a witness who is biased or likely to be biased or a witness whose evidence contradicts his extra judicial statement or whose evidence is unsafe to rely upon to convict an accused person.” How should the evidence of a tainted witness be treated? The Court held “a trial judge should in prudence warn himself before accepting without some corroboration the evidence of such a witness.”
Was Corp. Ononuju a tainted witness? The Court held: “There is no doubt in my mind that the evidence of DW 3 should be regarded as tainted. I have already indicated above that he belonged to the 2nd set of mobile policemen who mounted the road block and I agree with the learned 1st Appellant’s counsel that he may want to shift the blame for the shooting unto the 1st set of policemen among whom was the 1st Appellant. He had something to gain by trying to shift the blame to the 1st set of policemen.” The court thus held that the lower court should have been circumspect before convicting solely on his evidence and should have looked for any evidence to corroborate it, to strengthen it with fresh evidence of another witness. The Court held: “The authorities say the court should be wary and warn itself before convicting on the uncorroborated evidence of a tainted witness. The cautiousness is one of substance, not of form. The judge must not merely indicate on the record that he is aware of his duty to be cautious and that he has warned himself- which is a matter of form, he must demonstrate that he heeded the warning- that is a matter of substance. Apart from that, the D.W.3 did not mention at the earliest opportunity the name of the 1st Appellant. By the time D.W.3 made a statement to the police on Exh G2 when the incident was being investigated, he would have known the names of all those involved in the incident. When an eye witness omits to mention at the earliest opportunity the names of the persons he said he saw committing an offence, a court must be careful in accepting his evidence given later unless a satisfactory explanation is given as to why the names were not mentioned at the earliest opportunity.”
The Court thus held that in the circumstances of the case, “The evidence of an uncorroborated tainted witness cannot be proof beyond reasonable doubt that the 1st Appellant participated in the shooting that culminated in the death of the deceased.” The Court held that there is doubt as to the guilt of Sgt. Adiele and that the doubt must be resolved in favour of the accused person. His appeal was therefore allowed, the judgment of the lower court with respect to his conviction and sentence was set aside and a verdict of not guilty entered for him.