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SGT. LAZARUS ADIELE & ORS V. THE STATE
Delivered by the Court of Appeal, Port Harcourt Division on the 24th of March 2011
APPEAL OF CORPORAL DESMOND ONONOJU
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 second appeal was that of Corporal Desmond Ononuju. He was one of the mobile policemen at the checkpoint at Imo/Anambra boundary along the Onitsha/Owerri Expressway at Mgbidi. He raised three issues in his appeal. The first issue challenged his conviction on the ground that the trial judge relied on the uncorroborated testimonies of his co-accused (his fellow mobile policemen implicated in the shooting), which testimonies contradicted their earlier extra-judicial statements. The second issue was whether the mistake of fact and the application of reasonable force in making an arrest or preventing the escape of a suspect did not avail him while the third issue was whether a case of murder had been made out against him.
On the first issue – the uncorroborated, contradictory evidence of the co-accused persons – Corp. Ononuju argued that the trial Judge should have attached little or no weight to the testimonies of his fellow mobile policemen used to convict him especially as they had all earlier denied participating in the shooting in their extra-judicial statements to the police and had insisted that only the ordinary policemen who pursued the Nissan car in their Algon Jeep shot at the vehicle. However, during trial and while giving evidence on oath, they had all admitted participating in the shooting and implicated Corp. Ononuju in the process.
The Court stated the general principle of law regarding contradiction in the extra-judicial statement of a witness and his evidence on oath thus: “There is no doubt that the law is that where the extra judicial statement of a witness contradicts his later evidence on oath, both evidence must be rejected as unreliable and where it casts doubt on the guilt of the accused, he must be acquitted.”
The Court however differentiated between the status of the extra judicial statement of a witness simpliciter and the extra-judicial statement of a co-accused. The court held: “Where a co-accused denies in his extra judicial statement the participation of himself or the co-accused in the commission of the offence, and he later retracts and gives evidence on oath implicating the co-accused, his evidence in such circumstances is good and legal evidence on which the court can convict. This is because the inconsistency rule does not extend to the testimony and extra judicial statement of an accused person.” The Court explained the rationale behind this principle thus: “The rationale for this is that it is quite possible for an accused to initially deny the charge on behalf of himself and/or co-accused. However, after arraignment his evidence as co-accused on oath that he witnessed and/or participated in the actions that led to the crime is in law taken as strong evidence in relation to the persons involved in the commission of the crime.”
The Court added: “These pieces of evidence on their own do not need corroboration being the evidence of a co-accused … such evidence is admissible for all purposes… it may be viewed with circumspection but it does not need corroboration and the court is not bound to look for corroboration.”
The Court further added that in any event, there was the evidence of an independent witness, PW4 (the owner of a workshop located at the second check point who had witnessed the incident) who testified that the mobile policemen also shot at the car. The Court thus held that the trial judge was right to find that Corp. Ononuju was one of the mobile policemen that shot at the vehicle.
The second issue determined by the court was the statutory defences raised by Corp. Ononuju. He had raised three statutory defences: the defence of mistake of fact covered by Section 25 of the Criminal Code; defence of statutory duty under Sections 4 and 24 of the Police Act and the defence of reasonable force under Sections 261 and 271 of the Criminal Code.
The Court began the resolution of this issue by stating thus: “statutory defences will not avail an accused unless facts showing that the defences are open to him are proved by evidence.” On the defence of mistake of fact, the court stated its effect: “It has long been recognized that mistake of fact, in the sense of a belief in circumstances which, if true, would make the Defendant’s conduct innocent is a “defence” to all criminal charges. A mistake of fact prevents the accused from having the mens rea which the law requires for the crime with which he is charged. Thus, we can safely say that in the case of all offences other than those of strict liability, a mistaken belief in circumstances, which if true would render the act of the accused person an innocent act will afford a defence.” The Court however added that the mistake must be “honest” and “reasonable” to exculpate the accused.
Section 25 of the Criminal Code, which provides for the defence of mistake of fact provides as follows: “A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”
On whether the mistake of fact availed Corp. Ononuju in the circumstances of this case, the court held: “It is pertinent to note that all the prosecution and defence witnesses swore on oath that during the pursuit of the vehicle, the occupants of the vehicle never fired back at any of the two sets of policemen and no weapons or illegal items were found in their possession or even in their homes. There was also no official report or entry made that there had been an armed robbery incident that day prior to the encounter of PW2 and the deceased with the regular policemen. The mobile policemen in my humble view after witnessing the attack by the regular policemen on the vehicle were entitled to believe as the leader of the team called them – Thief! It was only reasonable in my humble view for them to arrive at that conclusion. Well, having arrived at that conclusion and believing that the deceased and PW2 were thieves, does that automatically mean that they should be summarily executed? I think not. The evidence is clear that there was no armed resistance by the victims.”
The court stated clearly: “Killing an unarmed thief is murder not manslaughter.”
Still on the issue of the occupants of the car been unarmed, the court referred to the Supreme Court case of ITESHI ONWE V. THE STATE (1975) 9-11 SC (reprint) 14, where the Apex court had relied on the case of UDO UDO OBOT v. QUEEN. The Court held: “In the latter case the deceased broke into the house of the accused during the night and stole some meat. The accused chased him and cut him with a matchet and he died. His conviction for murder was upheld because the thief was unarmed Verity C.J. in that case held as follows: “A person who in the night finds another in the act of committing a felony is entitled to used such force as may be necessary to apprehend the felon, even to the extent of killing him in order to prevent his escape but it would be an unhappy state of affairs if when he has caught up with the escaping felon who is unarmed, he should be at liberty to hack him to death with a lethal weapon such as a machete. This goes far beyond the force which would be justified by the circumstances and is in our view clearly murder.”
The Court also considered the defence of Corp. Ononuju relying on the provisions of Sections 4 and 24 of the Police Act. Section 4 provides: “The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them, or under the authority of this, or any other Act.”
Section 24 (1) provides: In addition to the powers of arrest without warrant conferred upon a police officer by S.10 of the Criminal Procedure act, it shall be lawful for any police officer and any other person whom he may call to his assistance, to arrest without warrant in the following cases:
(a) any person whom he finds committing any felony, misdemeanor or simple offence, or whom he reasonably suspects of having committed or of being about to commit any felony, misdemeanor, or breach of the peace…..”
The Court held that these provisions could not avail Corp. Ononuju as it does not grant him “a license to execute the occupants of the car summarily and extra judicially.” Relying on the decision of the Supreme Court in IBIKUNLE v. THE STATE (2007) 1 SCNJ 2007, the Court held that “even if the deceased were a thief or a person of dubious character, which the evidence on record in this case does not disclose, the provisions of the Constitution and the Criminal Procedure Act did not license the 2nd Appellant to be the complainant, investigator, Judge as well as executioner all rolled in one.”
The Court also considered the provisions of Section 261 and 271 of the Criminal Code relied upon by Corp. Ononuju in his defence of reasonable force. Section 261 provides: “It is lawful for a person who is engaged in the lawful execution of any sentence, process or warrant, or in making any arrest, and for any person lawfully assisting him, to use force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.” Section 271 provides: “When a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony, and is such that the offender may be arrested without warrant and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested.”
Hon. Justice H.M. Ogunwumiju reading the lead judgment stated: “I concede that the police are supposed to prevent crime and apprehend criminals, however, the peculiar circumstances of this case are such that the mobile policemen need not be trigger happy. Balanced against the duty to prevent and detect crime is the duty to protect lives and property. S.33 of the Nigerian Constitution guarantees the right to life.” She held: “The police can only kill when they are reasonably sure the accused has actually killed or is about to kill or about to escape from the scene of a serious crime. I am of the view that the 2nd Appellant showed a complete disregard for the lives and property of the occupants of the vehicle.”
On the final issue of whether a case of murder was established in the circumstances of the case, Corp. Ononuju had argued that there was no evidence that it was his own gun that shot the fatal bullet. He argued that the two sets of policemen carried different types of guns and the prosecution did not lead evidence as to which type of gun actually killed the deceased. The Court held: “The evidence on record is that when the vehicle driven by PW2 and the deceased got to the mobile police check point, both sets of policemen opened fire on the vehicle when the leader of the regular team shouted Thief! Thief! From that point when they opened fire, there was conceived a common intention to kill the occupants of the vehicle. PW2, PW3 and PW4 testified that the vehicle was riddled with bullets. There is evidence from DW3 at page 132 of the Record that Sgt. Kingsley who later ran away after the incident quickly picked up all the spent shells, which could have served as evidence. I find the argument of learned counsel that because only one bullet killed the deceased, then only one bullet was shot with the greatest respect unacceptable. If a crowd gathered spontaneously to lynch a suspected thief and several blows were struck but only a blow to a particular part of the head killed the deceased, does it mean that in the absence of proof of who threw that particular blow, all the assailants would be let off? That is not the position of the law. The position of the law is that there is no need to investigate into the actual acts committed by individual members of the group. See EMEKA v. THE STATE (2001) 6 SCNJ 254. What happened as revealed by the evidence is like the police spontaneously lynching suspected thieves with the weapons they have on hand. There need be no express agreement between the accused persons before common intention can be inferred. The evidence in this case suggests forcibly common intention to kill on the part of the policemen who fired at the vehicle containing the deceased.”
Relying on the case of the Supreme Court in MOHAMMED & ANOR. v. THE STATE (1980) ALL NLR 138, (1990) 3-4 SC 56, the Court stated, “the law presumes the natural consequences of an act.” The Court held: “…it is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act. There is no doubt that when you shoot with a gun live bullets at a vehicle and the vehicle is not bullet proof, you intend the bullet to penetrate and hit or possibly kill the occupants of the car. That is the only natural consequence when a shot is fired at or into a vehicle as the 2nd Appellant did in this case. I am of the view that the prosecution proved all the elements of the offence of murder against the 2nd Appellant.”
With all the issues resolved against Corp. Ononuju, his appeal was dismissed and his conviction was upheld.