Read Part 2 here.
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 BONNY ALKHADUEKI
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 third appeal was that of Corporal Bonny Alkhadueki. He was one of the mobile policemen at the checkpoint at Imo/Anambra boundary along the Onitsha/Owerri Expressway at Mgbidi. He raised two issues in his appeal. In the first issue, Corp. Bonny challenged his conviction on the ground that the prosecution failed to prove that the death of Mr. Owerreoma was from a direct act of his, i.e, that the fatal bullet that killed Mr. Owerreoma was fired from his gun. In his second issue, he also raised the statutory defences of justification and reasonable force in the performance of his lawful duties relying on the provisions of Section 271 of the Criminal Code and Sections 4 and 24 of the Police Act.
Corp. Bonny argued that though it was affirmed at the trial that Mr. Owerreoma died from gunshot wounds, the prosecution did not answer the crucial question of which among the policemen actually fired the bullet that killed him. He argued that there was no evidence placed before the court that showed the particular person that shot the fatal bullet. He further argued that there was no common intention among the policemen to kill Mr. Owerreoma and this created reasonable doubt which ought to have been resolved in his favour. In response, the prosecution argued that it is not necessary to prove who fired the actual bullet that killed Mr. Owerreoma as it had proved that all the policemen acted in concert and it was thus not necessary to prove which of them did the act that constitutes the crime as they would all be guilty of the crime.
The Court agreeing with the submissions of the prosecution stated that “the law is that where it is proved that two or more persons acted in concert when the act or omission which constituted the offence was actually made or done it is not necessary to show which of them did or made the act or omission, as long as it is proved that one of them must have done so.” The Court relied on the provisions of Sections 7 and 8 of the Criminal Code. Section 8 of the Criminal Code provides thus: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of such purpose, each of them is deemed to have committed the offence.”
The position as laid down by the Court is that the common intention may be inferred from the circumstances of the case. Thus, when the red Nissan car got to the second check point where the mobile policemen were and they joined the other policemen in shooting at the vehicle, a common intention was formed from that moment to kill the occupants of the vehicle.
Using an example, the Court stated: “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.” The Court added: “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.”
The Court concluded that issue by stating thus: “There is no doubt that when you shoot with a gun live with 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 3rd Appellant did in this case. This issue is resolved against the 3rd Appellant.”
The second issue raised the defences of justification and lawful excuse provided for in the Criminal Code and the Police Act. Section 271 of the Criminal Code 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.”
Deciding whether the above provision was applicable in this case, Hon. Justice H.M. Ogunwumiju reading the lead judgment held: “In my humble view, for this section to avail a peace or police officer, there must be in evidence the certainty that the person had committed a felony. The law does not envisage the case of suspicion against the person to be arrested. There must have been a prima facie case made out by the circumstances that indeed a felony had been committed and the police officer is in the process of arresting a particular individual for a particular offence which is a felony. The offender may have committed the offence in the presence of the peace or law officer or there must be evidence prima facie linking the felony with the person sought to be arrested. In my humble view that is the only circumstance when a policeman can be allowed “to kill” while proceeding to effect such arrest.”
Giving an example of when the provision would avail a police officer, the Court held: “If for instance the deceased was alleged to have committed an offence and police investigation led them to him at his hideout or house and he took flight to escape arrest or after arrest and he was killed, S.271 would avail the policemen.” Regarding the circumstances of this case, she held: “Let us concede that the victims disobeyed lawful order to stop, that does not amount to a felony. In the circumstances of this case, the two sets of policemen had no cause to go on a shooting spree. I am of the view that the shooting of the deceased was needless and indefensible and that the policemen shooting at the vehicle knew that they would cause grievous bodily harm or death to the occupants of the vehicle.”
The Court in further illustrating this point referred to the 1975 Supreme Court case of ITESHI ONWE V. THE STATE where the Supreme Court had referred to an earlier decision of Verity C.J. in the case of UDO UDO OBOT V. QUEEN. In the OBOT case, the deceased broke into the house of the accused at night and stole some meat. The accused chased him and cut him with a machete leading to his death. The Court upheld his conviction for murder because the deceased thief was unarmed. Verity C.J. held thus in the case: “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 then went ahead to consider the provisions of the Police Act and whether they availed Corp. Bonny. Section 4 of the Police Act 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” while 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…..”
Holding that these provisions does not constitute a defence in the circumstances of this case, the Court held: “S.4 and S.24 (1) of the Police Act cannot avail the 3rd Appellant moreso that none of them granted him a license to execute the occupants of the car summarily and extra judicially. The effect of the opinion held by the Supreme Court in IBIKUNLE v. THE STATE (2007) 1 SCNJ 2007 per Onu JSC is 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 concluded by stating: “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 crime or arrest.”
The Court of Appeal thus dismissed the appeal of Corp. Bonny and affirmed the verdict of the trial court convicting him or murder and sentencing him to death. Therefore, from the three appeals, Sgt. Lazarus Adiele’s conviction was overturned because he had been convicted on the uncorroborated testimony of a tainted witness while the convictions of Corp. Desmond Ononuju and Corp. Bonny Alkhadueki were upheld.