ADEGBOYEGA IBIKUNLE V. THE STATE
(2007) LPELR – 8068 (SC)
Delivered by the Supreme Court on the 12th of January 2007.
SUMMARY OF FACTS:
On the 21st of May 2000, police officers from the Marine Division in Asaba, Delta State went out on an operation, a crackdown on suspected armed robbers in the town. They were vastly successfully and had arrested some armed robbers at two hotels in the town. Based on intelligence given by the appellant, Adegboyega Ibikunle, a police sergeant in the team, they headed to No. 12B, Oritshe Street, Cable Point, Asaba in search of a notorious armed robber named ‘Nonso’. Nonso had recently escaped from police custody and based on information supplied to the team by Sergeant Ibikunle, he was suspected to be holed up in an apartment belonging to his late father at that address.
The team of police officers got to the residence at about 2a.m and knocked on the door of the apartment. Mr. Godspower Edeha was in the apartment with his wife and another female relative and refused to open the door even after the police officers identified themselves and fired warning shots in the air. Both Mr. Godspower’s wife and neighbors testified during the trial that he repeatedly said: “I am not Nonso. I am Godspower Edeha. I am an Isoko man. I am a driver.” When they refused to open the door, the officers forced the window open and fired tear gas canisters inside the apartment and the three occupants quickly moved into a bedroom and locked the door. Sergeant Ibikunle jumped into the apartment and in order to gain access into the bedroom fired a shot from his rifle into the door. The shot hit Mr. Godspower in the thoracic cavity and after the bedroom door was open, the police officers discovered that he was indeed not ‘Nonso’ whom they had come searching for. Apparently Nonso and his brother had moved out of the apartment two weeks earlier.
The sergeant that fired the shot was tried for the murder of Mr. Godspower and on the 26th of September 2001, the Delta State High Court found him guilty of murder and sentenced him to death. The Court of Appeal dismissed an appeal he filed against the judgment on the 8th of April 2004. He further appealed to the Supreme Court and in a judgment delivered on the 12th of January 2007, the Supreme Court dismissed his appeal and upheld his conviction and sentence.
The sergeant relied on the constitutional and statutory defence of reasonable force in the performance of a lawful duty and relied on the provisions of Section 33 (2) (b) of the 1999 Constitution, Section 7(1) & (2) of the Criminal Procedure Law and Section 4 of the Police Act. The sergeant did not however advance any argument based on the provisions of Section 4 of the Police Act and the reliance on that provision of the law was deemed abandoned.
The task of the court in this case was to determine whether the use of a firearm by the sergeant in the circumstances of the case was reasonable in line with the provisions of the law relied upon. Section 7(1) and (2) of the Criminal Procedure Law (CPL) permit the Police to break the outer door or inner door or window of a place in order to effect entry into such a place in which the police has reason to believe that the person sought to be arrested has entered. Hon. Justice S.U. Onu delivering the lead judgment stated: “In the case at hand, the appellant successfully broke open the outer window of the premises and after gaining ingress into the apartment of the deceased he fired the gunshot into the bedroom of the deceased.” He held: “In this regard, I reject the submission that the act of the appellant who had already secured ingress into the apartment of the deceased before shooting into the deceased’s bedroom with a lethal weapon can reasonably be described as seeking entrance under the provisions of Section 7(1) and (2) of the CPL.
The position of the Apex court was that the provisions of the CPL relied upon does not permit an officer to summarily execute any person who refuses to allow him ingress into an apartment that he believes a suspect has entered. Hon. Justice Onu stated: “…Even if the deceased were to be a thief or a person of dubious character, a fact not disclosed on the record, the provisions of the Constitution and the Criminal Procedure Law did not license the appellant to be the complainant, investigator, as well as the Judge and executioner, all rolled into one.” This position was re-echoed by Hon. Justice Onnoghen who stated: “The law does not permit or license any person, be he a policeman or soldier or otherwise to be the complainant, investigator, Judge and executioner all at the same time.”
On why the use of firearms was unreasonable, the court considered the circumstances of the case. Hon. Justice Onu said: “…there is evidence from PW5 and PW 10 that the apartment of the deceased had been completely surrounded and overwhelmed by the policemen to prevent any escape by the deceased… the deceased did not pose any scintilla of danger to the appellant.” He therefore called the use of firearms in the circumstances of the case “totally unreasonable, highly intimidating and uncalled for.” Sergeant Ibikunle argued that his intention was merely to incapacitate the deceased and not kill him which is why he fired only one shot and at the downward end of the door. Onu J.S.C. stated: “Whatever part of the door he shot at, by shooting the deceased through the door, there can be no doubt that the appellant intended to cause death or inflict on him grievous bodily harm.”
The Court also considered the provisions of Section 33 (2) of the 1999 Constitution relied upon as a defence in the suit. The provision stipulates thus: “A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –
- For the defence of any person from unlawful violence or for the defence of property;
- In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
- For the purpose of suppressing riot, insurrection or mutiny.
Reacting to the sergeant’s reliance on the constitutional provision, Hon. Justice A.M. Mukhtar held: “In fact when one looks at the overall evidence before the trial court closely, it will be very difficult for a reasonable man to discern why the appellant would think he can avail himself of the defence in the said section 33(2) of the Constitution. In the first place, there is no concrete evidence that the appellant was in imminent danger of unlawful violence, or that he was defending any property. In the second place, even if there was evidence that he went to the scene of the incident to effect lawful arrest or to prevent the escape of the deceased, there was nothing to show that the deceased was about to escape and that he was lawfully detained. Lawful arrest in the circumstance of this case cannot be given its correct connotation, because the person they went to arrest was different from the person that was in the room they went to and that was eventually killed.”
The Apex Court therefore applied the legal presumption that a man intends the natural and probable consequence of his acts and held: “In the case at hand, the probability of death resulting from the act of the appellant was high in view of the fact that the weapon used is a gun which by nature is lethal. It is trite knowledge that the result of shooting a person with a gun is either to cause the death of the victim or cause him grievous hurt.”
Hon. Justice Onnoghen in his judgment also admonished the police and asked it to re-consider its modus operandi. Relaying better ways of dealing with the situation, he said: “The facts of this case has made it necessary for us to have a rethink about the modus operandi of our police force and may advise the wisdom in adopting the approach of investigation before arrest instead of arrest before investigation as is hitherto the vogue. If the method of investigation before arrest were to have been adopted in this case, the true facts would have been apparent before any arrest was contemplated. For instance, the apartment and its occupants could have been under surveillance prior to any arrest, if need be. Even after the deceased refused to open his door at that time of the night, some policemen could have been posted to watch the apartment till daybreak when positive identification could have been made.”
Sergeant Ibikunle’s appeal was dismissed by the Supreme Court and his conviction and sentence upheld. The conclusions reached unanimously by the courts in this case are:
- Sergeant Ibikunle caused the death of Mr. Godspower with the knowledge that his act would cause the death or grievous bodily harm to Mr. Godspower.
- The presence of Sergeant Ibikunle in Mr. Godspower’s apartment was not in furtherance of a lawful arrest in the circumstances permitted by law.
- The force used by Sergeant Ibikunle was beyond the extent and not in the circumstances permitted by law.
- The use of firearms after ingress had been effected into the apartment of the deceased was unreasonable in the circumstances of the case.
The present Chief Justice of Nigeria, Hon. Justice W.S.N. Onnoghen who also sat on the panel that heard the appeal stated: “I am compelled by the facts and circumstances of this case coupled with the now notorious extra judicial killings of innocent people by some members of the Nigeria Police to condemn the inability of some members of the police force to realize that the foundation of the police institution is preservation of life and property. There is the urgent need to revisit the criteria used in recruitment of policemen. The instant extra judicial killing by a member of the Nigeria Police Force is one too many.”
He also said: “It is the unfortunate acts of policemen like the appellant that have made it near impossible for Nigerians to really consider the police as their friend.”