ADEGBOYE v. STATE

CITATION: (2017) LPELR-42099(SC)

In the Supreme Court of Nigeria

ON THURSDAY, 13TH APRIL, 2017Suit No: SC.627/2015

Before Their Lordships:

IBRAHIM TANKO MUHAMMAD Justice of the Supreme CourtMARY UKAEGO PETER-ODILI Justice of the Supreme CourtKUMAI BAYANG AKA'AHS Justice of the Supreme CourtAMINA ADAMU AUGIE Justice of the Supreme CourtSIDI DAUDA BAGE Justice of the Supreme Court

BetweenOLUSEGUN ADEGBOYE - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI1. CRIMINAL LAW AND PROCEDURE - DEFENCE OF ACCIDENT/SELF-DEFENCE: The distinction

between the defence of accident and self-defence"The defences the appellant tried to raise i.e. self defence and accident are not mutually exclusive butthey rather contradict each other. See: Bello v. Attorney - General of Oyo State (1986) 5 NWLR (Pt. 45)828. Adelumola v. State (1988) 1 NWLR (Pt. 73) 683: Umoru v. State (1990) 3 NWLR (Pt. 138) 363 andSule v. State (2009) 17 NWLR (Pt. 1169) 33. Thedefence of accident could be raised if there was a scuffle between the deceased and the appellant and inthe process, one of them accidentally pulled the trigger and the cartridge was released and thedeceased was shot in the process. But this was not the case as Exhibit "D" shows that the deceased wasshot at the back which is clear evidence he was running away. A man is presumed to intend the naturalconsequences of his act and when an event is said to have occurred by accident, it is implied that it wastotally unexpected by the doer of the act and it was also not reasonably expected by any ordinaryperson, the reasonable man of the law. See: Adelumola v. State {1988) 1 NWLR (pt. 73) 683. For selfdefence to avail an accused under the Criminal Code for a charge of culpable homicide punishable withdeath, the accused must have had a reasonable belief that his life was in danger and the quality of theforce used on the deceased must be the same as that against which the accused defended himself.See:Okonji v. State (1987) 1 NWLR (Pt. 52) 659."Per AKA'AHS, J.S.C. (Pp. 7-8, Paras. E-E) - read in context

(201

7) LP

ELR-42

099(

SC)

2. CRIMINAL LAW AND PROCEDURE - DEFENCE OF JUSTIFICATION: Nature of the defence ofjustification"...The defence is concerned with extra judicial killing of a suspect by the police in the course of carryingout an arrest. This Court lbikunle v. State (2007) 2 NWLR (Pt. 1019) 546 considered the constitutionaland statutory defences implied in Section 33(2)(b) of the 1999 Constitution and Section 7(1) and (2) ofthe Criminal Procedure Law. The case had to do with the forceful entry into a house where a notoriousarmed robber called Nonso who escaped from police custody was suspected to be staying. lt turned outthat the armed robber and his brother had moved out of the premises two weeks earlier and theapartment they vacated was now occupied by a different person who turned out to be the deceased.When the Police Officers got to the premises on the fateful night, they knocked at the door of theapartment which they thought was Nonso's. The male voice emanating therefrom did not emphaticallydeny that he was Nonso but he would not open the door in spite of the fact that the Police Officersidentified themselves. Consequently, the police officers forced the window open and fired tear gas insidethe apartment. The man still did not open the door but instead warned the police officers to leave or elsehe would kill any police officer who dared to come inside with the cutlass he was holding. The appellantused cement block to damage the window and jumped through the window into the apartment despiteefforts by the leader of the team to disarm and control him. Meanwhile the deceased had moved into thebedroom and locked himself. On gaining access into the apartment and after two hours of search andnot finding, the deceased to effect his arrest fired a shot from the rifle he was carrying at the downwardend of the bedroom door which hit the deceased on the abdomen and this led to the death of thedeceased. He was then charged with the murder of the deceased at the High Court of Delta State andwas convicted at the end of the trial. His appeal to the Court of appeal was dismissed which led to hisfurther appeal to the Supreme Court. In determining the appeal, this Court considered the provisions ofSection 33(2)(b) of the Constitution of the Federal Republic of Nigeria 1999 and Section 7(1) and (2) ofthe Criminal Procedure Law and the extent of the force used by the appellant. In the lead judgment byOnu JSC which was concurred in by the other Justices on the panel, he held that the statutory defencesimplied in Section 33(2)(b) of 1999 Constitution and Section 7(1) and (2) of the Criminal Procedure Lawcannot avail the appellant since none of them granted him license to summarily execute the deceasedextra judicially and rejected the submission that the act of the appellant who had already securedingress into the apartment of the deceased before shooting into the deceased bedroom with a lethalweapon could reasonably be described as seeking entrance under the provision of Section 7(1) and (2)of the Criminal Procedure Law. He reasoned that even if the deceased were to be a thief or a person ofdubious character, the provisions of the Constitution and Criminal Procedure Law quoted above did notlicence the appellant to be the complainant, investigator, Judge as well as executioner, all rolled intoone.Aloma Mukhtar JSC (as she then was) in dismissing the appeal said:- "...When one looks at the wholeevidence before the trial Court closely, it will be very difficult for a reasonable man to discern why theappellant would think he can avail himself of the defence in the said Section 33(2) of the Constitution. Inthe first place, there was no concrete evidence that the appellant was in imminent danger of unlawfulviolence or that he was defending any property. In the second place, even if there was evidence that hewent to the scene of the incident to effect lawful arrest or to prevent the escape of the deceased, therewas nothing to show that the deceased was about to escape and that he was lawfully detained."Onnoghen JSC (as he then was) condemned the growing trend of extra judicial killings by membersNigeria Police Force when he stated at pages 582-583 thus:- "I am compelled by the facts andcircumstances of this case coupled with the now notorious extrajudicial killings of innocent people by some members of the Nigeria Police Force to condemn the inabilityof some members of the police force to realise that the foundation of the police institution ispreservation of life and property. There is the urgent need to revisit the criteria used in the recruitmentof policemen. The instant extra judicial killing by a member of the Nigeria Police Force is one too many.Appellant did not only in his duty as a policeman to protect the people but has no regard for the sanctityof human life. He was not only overzealous but extremely reckless in his action on the day inquestion............... it is the unfortunate acts of policemen like the appellant that have made it nearimpossible for Nigerians to really consider the police as their friend. The facts of this case has made itnecessary for us to have a rethink about the modus operandi of our police force and may advise thewisdom in adopting the approach of investigation before arrest instead of arrest before as is hitherto thevogue."Per AKA'AHS, J.S.C. (Pp. 13-17, Paras. C-E) - read in context

(201

7) LP

ELR-42

099(

SC)

3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER : Essential ingredients that must beproved by the prosecution to ground a conviction for murder"In a charge of murder such as the case at hand, the prosecution is required to establish the followingingredients:-(a) that the deceased died;(b) that death of the deceased was caused by the accused;(c) that the accused person intended to either kill the victim or cause him grievous bodily harm.See Njoku v The State (2013) 2 SCM 177 at 180."Per PETER-ODILI, J.S.C. (P. 31, Paras. C-E) - read incontext

4. CRIMINAL LAW AND PROCEDURE - DEFENCE OF JUSTIFICATION: Nature of the defence ofjustification"Section 33 (2) (b) of the 1999 Constitution (as amended) is in line with Section 271 of the Criminal CodeLaw. It stipulates thus:-"33(2): A person shall not be regarded as having been deprived of his life in contravention of thissection, if he dies as a result of the use, to such extent and in such circumstances as are permitted bylaw, of such force as is reasonably necessary,(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained..." A referenceto the Criminal Code of Ogun State would be of assistance and in this regard, the Attorney General ofOgun State as counsel for the respondent and in his bounden duty as officer of the Court had called theCourt's attention to it. Section 271 Criminal Code Law, Ogun State, "271: When a peace officer or policeofficer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felonyand is such that the offender may be arrested without warrant and the person to be arrested takes toflight in order to avoid arrest, it is lawful for the peace officer or police officer and for any other personlawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of theperson sought to be arrested, and if the offence is such that the offender may be punished with death orwith imprisonment for seven years or more, may kill him if he cannot by any means otherwise bearrested." The Supreme Court had warned itself and other Courts in the application of the Constitutionalprovision, Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN), Police Act and inrelation to facts akin to the case at hand in the case of: Adegboye lbikunle v State (2007) 2 SCM page 73at 76 wherein it was held that,"The statutory defences implied in these provisions (33 (2) (b) of the 1999 Constitution, Section 7 (1)and (2) of the Criminal Procedure Law and Section 4 of the Police Act) cannot avail the appellant, moreso that none of them granted him a license to summarily execute the deceased extra-judicially. Even ifthe deceased were to be a thief or a person of dubious character....... the provisions of the Constitutionand Criminal Procedure Law (ibid) quoted above did not license the appellant to be the complainant,investigator, Judge as well as executioner.. all rolled into one."?I shall refresh my mind with the fact and the circumstances of the case of lbikunle v State referred toabove which is similar to the instant case. In the said case, the appellant being a police officer had gonein company of his fellow police officers to effect an arrest of a certain armed robbery suspect whoescaped from police custody. The police including the appellant then traced the said armed robberysuspect to a particular address where they believed the suspect was on that night. Unknown to theappellant and his colleagues, their armed robbery suspect had moved out of the address about 2 weeksbefore and someone else who turned out to be the deceased was living in the address.?The police knocked on the door but the deceased refused to open the door. The deceased did not alsoemphatically deny that he was the suspect the police was looking for. The deceased did not open hisdoor even after the police fired warning shots into the air. The deceased still did not open his door butinstead warned the police that he would kill any police officer who dare come inside his room with acutlass he was holding. The appellant in the case, summoned courage and jumped into the deceased'sapartment through the window but the deceased who had been talking to the police officers had quicklymoved into the bedroom and locked it up. After over two hours, the appellant in an attempt toincapacitate the deceased and effect his lawful arrest fired a single shot from a rifle at the downwardend of the bedroom door in order to gain access and effect his arrest, but the gunshot turned out to befatal when the police officers brought out the deceased, it dawned on them that the deceased was hit inthe abdomen and that he was not the notorious suspect who they are in search of. The conviction of theappellant was re-affirmed by the Supreme Court."Per PETER-ODILI, J.S.C. (Pp. 35-38, Paras. A-D) - read incontext

(201

7) LP

ELR-42

099(

SC)

5. CRIMINAL LAW AND PROCEDURE - DEFENCE OF ACCIDENT: Condition for the defence of accidentto avail an accused person charged for murder"It is now settled, that an accused person as in the instant case, cannot take refuge on a defence ofaccident for a deliberate act even if he did not intend the eventual result. See the case of OGHOR VSTHE STATE (1990) 3 NWLR (Pt. 139) 484 at 502. The test of the plea or defence of accident is alwaysthat if the act even though unlawful, is not such that would, from the view of a reasonable man, causedeath or grievous bodily harm though death resulted therefrom, the person charged can only at most,be convicted of manslaughter. See the case of THOMAS VS THE STATE (1994) 4 SCNJ (Pt.1) 102 at 109,(1994) 4 NWLR (Pt. 337) 129 per Wali JSC. It need to be stressed, that the act leading to the accidentmust be a lawful act done in a lawful manner. Thus for an event to qualify as accidental under Section 24Criminal Code (C.C.), it must be a surprise to the ordinary man of prudence, that is, a surprise to allsober and reasonable people. The test is always objective. See ADEMOLA VS. THE STATE (1998) 1 NWLR(Pt.73) 683 at 692-693. ( 1988) 3 SCNJ 68.It must always be borne in mind that Section 24 of theCriminal Code does not deal with an "act" but an "event" and the event within the meaning of thesection, is what apparently follows from an act. See AUDU UMARU VS THE STATE (1990) 3 NWLR (Pt.138) 363 at 870, DANIELS VS THE STATE (1991) 8 NWLR (Pt. 212) 715, CHUKWU VS THE STATE (1992) 1NWLR (Pt. 217) 255. NWALI VS THE STATE (1991) 5 SCN 14. SOLOMON ADEKUNLE VS THE STATE, 26NSCQR 11, 1137 at pages 1393-1394."Per BAGE, J.S.C. (Pp. 49-50, Paras. A-C) - read in context

(201

7) LP

ELR-42

099(

SC)

KUMAI BAYANG AKA'AHS, J.S.C. (Delivering the

Leading Judgment): This appeal was heard on Thursday,

19th January, 2017 and adjourned to Friday, 14th April,

2017 for delivery of judgment. Since 14/4/2017 is Good

Friday which is a public holiday, the date for delivery of

judgment had to be brought forward to Thursday 13th

April, 2017.

This appeal is against the judgment of the Court of Appeal,

lbadan Division delivered on 26/6/2015 which affirmed the

judgment of Hon. justice O. A. Onafowokan of the High

Court of Justice, Ogun State, ljebu-Ode Judicial Division.

The judgment of the High Court which convicted the

appellant and sentenced him to death by hanging for the

murder of one Tunde Adegboyega contrary to Section 319

of the Criminal Code Law of Ogun State was delivered on

16/10/2014. The appellant being dissatisfied with the

judgment of the Court of Appeal affirming the conviction

and sentence passed on him by the High Court has further

appealed to this Court.

The facts giving rise to this appeal are as follows:

Following a petition of threat to life written on behalf of

Chief Titilayo Odusanya (PW1) to the Area Command

Division, Ijebu Ode the Area

1

(201

7) LP

ELR-42

099(

SC)

Commander directed Michael Agboola (PW4), the appellant

and one Corporal Hamzat, all Police Officers attached to

the Nigeria Police Area Command, lgbeba, ljebu-Ode to

investigate the case. On 10/3/2009, the three Police

Officers booked for arms and left in company of the

petitioner and his brother to Oloke, Alli village, Ogun State

to arrest all those who were mentioned in the petition

including the deceased. On getting to the village, PW4

arrested the deceased and handed him over to Corporal

Hamzat and the appellant. While Chief Odusanya and PW4

were discussing on how to arrest the other people

mentioned in the petition, the deceased allegedly

attempted to escape and the appellant pursued him and in

the process shot and killed him. The appellant in his

defence, denied killing the deceased intentionally and

stated that the deceased attempted to snatch his rifle and a

struggle ensued. He suddenly heard a gunshot and

discovered that it was the deceased who received the gun

shot from which he died. In other words, the appellant was

setting up a defence of accidental discharge. At the close of

the case, the appellant was found guilty and sentenced to

death. His appeal to the

2

(201

7) LP

ELR-42

099(

SC)

Court of Appeal was dismissed and he appealed further to

this Court.

The Notice of Appeal contained ten grounds of appeal from

which the following three issues were formulated:-

1. Whether the learned Justices of the Court of Appeal,

lbadan Division were right to have relied on the evidence of

PW3, PW4 and Exhibit "D" and the AK 47 rifle the appellant

had in his possession as a police man on the day of the

incident to hold that prosecution proved its case beyond

reasonable doubt to the effect that the appellant

intentionally and voluntarily killed the deceased - Tunde

Adegboyega to justify the affirmation of the conviction and

sentence of the appellant for murder.

2. Whether the learned Justices of the Court of Appeal,

lbadan Division were right to have affirmed the conviction

and sentence of the appellant by the learned trial Judge for

murder inspite of the fundamental contradiction depicted in

the case of the prosecution which ought to have been

resolved in favour of the appellant.

3. Whether the learned Justices of the Court of Appeal,

lbadan Division were right to have affirmed and adopted

the learned trial judge's conviction and

3

(201

7) LP

ELR-42

099(

SC)

sentence of the appellant when the prosecution failed to

disprove the appellant's defence of self defence pursuant to

Section 32(3), 32(4) and 286 of the Criminal Code and not

exhaustively considered the appellant's additional defence

of accident pursuant to Section 24 of the Criminal Code

law, Laws of Ogun State of Nigeria, 2006 and also not

considering and upholding the defence open to the

appellant under Section 33(2) of the Constitution of Federal

Republic of Nigeria 1999.

The respondent formulated two issues for determination.

They are:-

1. Whether the learned Justices of the Court of Appeal were

right to have affirmed the decision of the trial Court that

the prosecution proved the offence of murder against the

appellant.

2. Whether the appellant can be availed by the defences of

self defence and accident raised by the appellant at the

trial of his case as well as whether the appellant can be

availed by Section 33(2) of the 1999 Constitution.

The issues formulated by the respondent best capture the

essence of this appeal and in particular issue 2 which is

whether the appellant can be availed by the defences of self

defence and accident raised by the appellant as

4

(201

7) LP

ELR-42

099(

SC)

well as whether the appellant can be availed by Section

33(2) of the 1999 Constitution.

In the evaluation of the evidence called by the prosecution

vis-a-vis the charge, the learned trial Judge considered the

oral evidence of PW3, the autopsy report, Exhibit "C" which

he tried to resile from when he gave his oral evidence in

Court and made the following findings at Pages 53-54 of

the record;

“The evidence of the circumstance of death was more

strengthened by Exhibit “D” – the Medical Report which

expresses the doctor’s observation on the corpse examined

thus:-

“Brought in dead with gunshot wound. Entry point (back)

beside the (Lt) Scapular. Exit point on the chest (Lt)

between the 4th and 5th intercostal space”.

The PW2 confirmed Exhibit “D” in his oral testimony and

neither he nor Exhibit “D” was challenged. Exhibit “D” not

only shows consistency in the evidence of gunshot, it

identifies vividly the part of the victims body (i.e. the chest

region) that was hit by the gunshot. Interestingly the

accused person not only confirmed on oath that gunshot

from his rifle killed the

5

(201

7) LP

ELR-42

099(

SC)

deceased when he said “suddenly, I heard a gunshot from

my rifle…. I also saw the deceased lying on the ground”, he

also admitted that much in his extra-judicial statement

which was admitted without objection as Exhibit “C”, the

accused person wrote;

“……Corporal Hamzat Sulaiman took him to a bench where

he sited (sic) with the suspect and myself, two of us carried

AK 47 rifles… suddenly the suspect…. resulted into

violence by pushing the corporal away. Corporal Hamzat

fell down with his rifle… as I wanted to assist him, the

suspect took to his heels to escape…. I then pursued him to

effect re-arrest… I then cocked my rifle to muzzle up and

shot at air to scare the mobs, along the process my hand

mistakenly touched the trigger of the riffle, as a result, the

suspect was accidentally shot..”

The good thing about Exhibit “C” which is confessional is

that it was written by the accused person himself; it was

also admitted without objection. It is therefore not

bedeviled by the usual issue of voluntariness or retraction

and as such its veracity is not in

6

(201

7) LP

ELR-42

099(

SC)

question.”

The learned trial judge then held as follows:-

“I hold that Exhibit “C” establishes the truth of what it

says. That being the case, when Exhibit “C” is considered

along with the evidence of PW4 and Exhibit “D”, it leads to

the irresistible and unequivocal conclusion that it was the

shooting of the deceased by the accused that killed the

deceased. I find as a fact that the accused person, in

attempt to re-arrest the deceased, pursued him and

apparently not being able to match his pace, shot him from

the back and he fell and died.”

The Court below agreed with the findings made by the

learned trial judge. No one is left in doubt that it was the

appellant who shot the deceased at his back in order to re-

arrest him when he made an effort to escape. The defences

the appellant tried to raise i.e. self defence and accident

are not mutually exclusive but they rather contradict each

other. See: Bello v. Attorney - General of Oyo State

(1986) 5 NWLR (Pt. 45) 828. Adelumola v. State

(1988) 1 NWLR (Pt. 73) 683: Umoru v. State (1990) 3

NWLR (Pt. 138) 363 and Sule v. State (2009) 17

NWLR (Pt. 1169) 33. The

7

(201

7) LP

ELR-42

099(

SC)

defence of accident could be raised if there was a scuffle

between the deceased and the appellant and in the process,

one of them accidentally pulled the trigger and the

cartridge was released and the deceased was shot in the

process. But this was not the case as Exhibit "D" shows that

the deceased was shot at the back which is clear evidence

he was running away. A man is presumed to intend the

natural consequences of his act and when an event is said

to have occurred by accident, it is implied that it was totally

unexpected by the doer of the act and it was also not

reasonably expected by any ordinary person, the

reasonable man of the law. See: Adelumola v. State

{1988) 1 NWLR (pt. 73) 683. For self defence to avail an

accused under the Criminal Code for a charge of culpable

homicide punishable with death, the accused must have

had a reasonable belief that his life was in danger and the

quality of the force used on the deceased must be the same

as that against which the accused defended himself.

See:Okonji v. State (1987) 1 NWLR (Pt. 52) 659.

In resolving issue 3 which centered on contradictions in the

case of the prosecution, the lower Court found that

8

(201

7) LP

ELR-42

099(

SC)

there were no material contradictions in the evidence of

PW1, PW3 and PW4. Despite the resolution of this issue,

learned counsel for the appellant hammered on the fact

that there were fundamental contradictions in the case of

the prosecution which were not resolved in favour of the

appellant in line with judicial principles. I am unable to find

any contradictions to warrant tampering with the

concurrent findings made by the two lower Courts.

The only point which merits serious consideration by this

Court is the attention which the Hon. Attorney-General of

Ogun State drew on the invocation of Section 271 of the

Criminal Code Law of Ogun State an its application in

determining the culpability of the appellant for the offence

of murder.

The section provides as follows:-

"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 to be arrested

takes to flight in order to avoid arrest, it is lawful for the

peace officer or police officer and for any other person

lawfully assisting him to use such force

9

(201

7) LP

ELR-42

099(

SC)

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."

Section 33(2)(b) of the 1999 Constitution (as amended)

appears to have further strengthened S. 271 of the

Criminal Code Law. lt provides:-

“33(2) 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.

(b) In order to effect a lawful arrest or to prevent the

escape of a lawful arrest or to prevent the escape of a

person lawfully detained…..”

The appellant fired the fatal shot in an effort to prevent the

escape of the deceased from lawful custody. In analyzing

the evidence adduced at the trial, the lower Court reached

the following conclusion regarding the shooting of the

deceased by the appellant.

1. The belief by the appellant that the deceased was

escaping;

10

(201

7) LP

ELR-42

099(

SC)

and

2. His desire to get the deceased re-arrested in

consequence of which he shot into air.

The finding by the lower Court that the appellant shot into

the air is not tenable considering the fact that Exhibit "D",

the medical report specified the entry point was at the back

beside the scapular and the exit point was from the chest

between the 4th and 5th intercostal space. lf the bullet had

landed on the deceased's head, then there would be a

probability that the appellant shot into the air.

I agree with the submission of the learned counsel for the

respondent that the defence of accident by the appellant

raised in Exhibit "C" and in his evidence at the trial is

clearly an attempt by him to evade responsibility for his

action. It will cause no surprise to a reasonable man if

death resulted from the shot fired by the appellant having

aimed at the deceased's back and the likely consequence of

the act of the appellant is death of the victim. The gun shot

fired by the appellant which killed the deceased was

therefore not an accidental discharge but a voluntary

action by the appellant aimed at preventing the escape of

the deceased.

The appellant

11

(201

7) LP

ELR-42

099(

SC)

also claimed that he shot the deceased accidentally in the

course of defending himself from being attacked by the

members of the community where the deceased was being

arrested and when he gave evidence during his defence, he

said he was struggling with the deceased when the gun

went off. The evidence of PW4 debunked the claim that he

was afraid of the community attack and it was in the

process that he shot the deceased because the shooting had

taken place before the community gathered and as I had

said earlier there was no scuffle between the appellant and

the deceased as the entry point of the bullet was on the

back of the deceased. The appellant therefore shot the

deceased at the back with the intention of killing him or

causing him grievous injury. The learned trial judge found

that the defences of accident and self defence put up by the

appellant were a phantom, frivolous and an afterthought

and described the shooting of the deceased as reckless and

unwarranted. The lower Court found that the trial Court

duly considered the defences put up by the appellant

before convicting him. It observed that the deceased was

not armed with any weapon and therefore did not

12

(201

7) LP

ELR-42

099(

SC)

deserve to be shot with an AK47 rifle.

Although the Court below found that it was as a result of

the deceased's attempt to escape after his arrest that led

the appellant to shooting and killing him, it did not go

further to consider the statutory defence which the learned

Attorney-General of Ogun State drew our attention to

under Section 271 of the Criminal Code Law and further

reinforced in Section 33(2)(b) of the 1999 Constitution.

The defence is concerned with extra judicial killing of a

suspect by the police in the course of carrying out an

arrest. This Court lbikunle v. State (2007) 2 NWLR (Pt.

1019) 546 considered the constitutional and statutory

defences implied in Section 33(2)(b) of the 1999

Constitution and Section 7(1) and (2) of the Criminal

Procedure Law. The case had to do with the forceful entry

into a house where a notorious armed robber called Nonso

who escaped from police custody was suspected to be

staying. lt turned out that the armed robber and his brother

had moved out of the premises two weeks earlier and the

apartment they vacated was now occupied by a different

person who turned out to be the deceased. When the Police

Officers got to

13

(201

7) LP

ELR-42

099(

SC)

the premises on the fateful night, they knocked at the door

of the apartment which they thought was Nonso's. The

male voice emanating therefrom did not emphatically deny

that he was Nonso but he would not open the door in spite

of the fact that the Police Officers identified themselves.

Consequently, the police officers forced the window open

and fired tear gas inside the apartment. The man still did

not open the door but instead warned the police officers to

leave or else he would kill any police officer who dared to

come inside with the cutlass he was holding. The appellant

used cement block to damage the window and jumped

through the window into the apartment despite efforts by

the leader of the team to disarm and control him.

Meanwhile the deceased had moved into the bedroom and

locked himself. On gaining access into the apartment and

after two hours of search and not finding, the deceased to

effect his arrest fired a shot from the rifle he was carrying

at the downward end of the bedroom door which hit the

deceased on the abdomen and this led to the death of the

deceased. He was then charged with the murder of the

deceased at the High Court of Delta State

14

(201

7) LP

ELR-42

099(

SC)

and was convicted at the end of the trial. His appeal to the

Court of appeal was dismissed which led to his further

appeal to the Supreme Court. In determining the appeal,

this Court considered the provisions of Section 33(2)(b) of

the Constitution of the Federal Republic of Nigeria 1999

and Section 7(1) and (2) of the Criminal Procedure Law and

the extent of the force used by the appellant. In the lead

judgment by Onu JSC which was concurred in by the other

Justices on the panel, he held that the statutory defences

implied in Section 33(2)(b) of 1999 Constitution and

Section 7(1) and (2) of the Criminal Procedure Law cannot

avail the appellant since none of them granted him license

to summarily execute the deceased extra judicially and

rejected the submission that the act of the appellant who

had already secured ingress into the apartment of the

deceased before shooting into the deceased bedroom with a

lethal weapon could reasonably be described as seeking

entrance under the provision of Section 7(1) and (2) of the

Criminal Procedure Law. He reasoned that even if the

deceased were to be a thief or a person of dubious

character, the provisions of the Constitution and

15

(201

7) LP

ELR-42

099(

SC)

Criminal Procedure Law quoted above did not licence the

appellant to be the complainant, investigator, Judge as well

as executioner, all rolled into one.

Aloma Mukhtar JSC (as she then was) in dismissing the

appeal said:-

“…When one looks at the whole 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 was 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.”

Onnoghen JSC (as he then was) condemned the growing

trend of extra judicial killings by members Nigeria Police

Force when he stated at pages 582-583 thus:-

“I am compelled by the facts and circumstances of this case

coupled with the now notorious extra

16

(201

7) LP

ELR-42

099(

SC)

judicial killings of innocent people by some members of the

Nigeria Police Force to condemn the inability of some

members of the police force to realise that the foundation

of the police institution is preservation of life and property.

There is the urgent need to revisit the criteria used in the

recruitment of policemen. The instant extra judicial killing

by a member of the Nigeria Police Force is one too many.

Appellant did not only in his duty as a policeman to protect

the people but has no regard for the sanctity of human life.

He was not only overzealous but extremely reckless in his

action on the day in question............... 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. 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 as is

hitherto the vogue."

Coming back to the instant appeal, the facts reveal that on

the receipt of the complaint in writing of the Solicitors to

17

(201

7) LP

ELR-42

099(

SC)

PW1 of threats to life addressed to the Area Commander

ljebu-Ode, the Area Commander endorsed the Petition to

the anti-robbery section where PW4 was the officer in-

charge for investigation. PW4 detailed the appellant to

investigate the case. On 10/3/2009, he (PW4), the appellant

and Sgt. Hamzat accompanied the complainant to Oloke -

Alli. He saw the deceased and one other person riding on a

bicycle in Bolorunduro in Ondo State but did not arrest him

until they reached Oloke - Alli. After the arrest, he handed

the deceased over to the appellant and Sgt. Hamzat. They

were all seated on a bench and the deceased attempted to

escape but the appellant shot him dead.

Exhibit "E" was the letter written by chief Adebiyi

Odugbesan on the instructions of PW1 and addressed to the

Area Commander Nigeria Police Force, Area Command,

lgbeba, ljebu-Ode alleging threat to life.

The letter reads:-

"Adebiyi Odubgesan & co.

Barristers & Solicitors

Humility Chambers

15, Folagbade Street, Apebi lunction

Opp. Central Mosque P. O. Box 239 ljebu-ode

26th February, 2009.

The Area Commander

Nigeria Police Force

Area

(201

7) LP

ELR-42

099(

SC)

18

(201

7) LP

ELR-42

099(

SC)

Command

lgbeba

ljebu-ode.

Sir,

THREAT TO LIFE

We act as Solicitors to Chief (DR.) TITILAYO ODUSANYA

and Mr. SEGUN ODUSANYA of 85 Olokoku Street, ljebu

Ode. Both of them are hereinafter called "our clients".

Our clients are the landlords of the Camp known as

Ajelanwa in Oloke Ali Community of ljebu East Local

Government Area.

Our Clients are constrained to instruct us to write this

petition to your office on their behalf and bring to your

notice the criminal acts of MESSRS ADEGBOYEGA TUNDE,

SUNDAY AGAGA and MUTIU, all of Ajelanwa Camp in

Oloke Ali, Community.

On the 26/2/2009, Mr. Adegboyega Tunde threatened to

disorganise Ajelanwa Camp within the next two weeks by

ensuring that our clients’ representative at the camp, Mr.

Gbenga Ambali, is killed or abducted while Mr. Sunday

Agaga and Mutiu also threatened to ambush Mr. Gbenga

Ambali. The aforementioned people are out to kill or maim

Mr. Gbenga Ambali because he did not allow them to carry

out their criminal activities within the area as he always

checkmate (sic) them.

We hereby respectfully request that your good office to

ensure that an urgent action is taken

19

(201

7) LP

ELR-42

099(

SC)

in respect of their threats as there is no doubt that they

intend to make good their threats. Suffice to say that these

threats are not mere ones that can be overlooked.

Yours truly

Signed: CHIEF ADEBlYl ODUGBESAN

FOR: ADEBIYI ODUGBESAN & CO.

This was the letter that kick-started the process that led to

the arrest of the deceased.

From the statement which PW1 made at the Police Station

tendered as Exhibit “A” PW4 merely informed the deceased

that he was under arrest but did not disclose the offence

which the deceased committed. When the deceased

demanded to know his offence, PW4 told him that he

(deceased) would be informed when they reached the office

(Police station). The deceased was handed over to the

appellant and Hamzat. He went on to say in Exhibit "A":

"The said Inspector now call (sic) me aside, he was

discussing with me on how to look for motor cycle and go to

the next village, Cpl Segun slapped Tunde Adegboyega.

Inspector now warn Cpl Segun to stop beating the man. As

we were discussing, I look back, I saw Cpl. Hamzat fell

down, I saw Cpl. Segun pursuing Tunde Adegboyega to the

backyard. The next thing we

20

(201

7) LP

ELR-42

099(

SC)

heard gun shot. The man now said yeee. l went there to see

what was happening, I met Tunde Adegboyega in the pool

of his blood, he has already gave up the ghost...."

A close analysis of the account given by PW1 in Exhibit "A"

reveals that there was a misunderstanding between PW1's

agent, Gbenga Ambali and the appellant which led to some

verbal altercation and Gbenga Ambali reported the incident

to PW1. PW1 in turn instructed his lawyers to write a

petition to the Area Commander, Nigeria Police Force

lgbeba, ljebu-Ode. The Area Commander minuted the

petition to PW4 to deal with the petition. It does appear

that investigation was not carried out before the deceased

was arrested. While the deceased was in the custody of the

appellant and Hamzat, the appellant slapped the deceased

and PW4 reprimanded the appellant for what he did.

Shortly thereafter the appellant shot the deceased.

The scenario painted above fits into what Onnoghen JSC (as

he then was) described in lbikunle v. State supra or pages

583 as "arrest before investigation" It is most likely that if

proper investigation had been carried out, there would

have been no need for a formal arrest.

21

(201

7) LP

ELR-42

099(

SC)

The Police would have advised the parties to maintain the

peace since there is no evidence that the deceased or any

of the other persons mentioned in Exhibit "E" physically

assaulted Gbenga Ambali to the extent that there was a

serious threat to his life. It is obvious that it was the

appellant who provoked the deceased to attempt escaping

after his arrest since he was seen slapping the deceased.

Even if the deceased attempted to escape without being

molested by the appellant, the appellant should have aimed

at his legs to demobilise him from escaping instead of

taking a shot at his back. Although Section 271 of the

Criminal Code Law allows for the use of force when

effecting arrest, which could lead to the killing of the

person to prevent his escape, it was not reasonable for the

appellant to fire at the deceased at the back. While the

invocation of Section 271 CPL would create a doubt on the

appellant being convicted and sentenced to death for

murder, nevertheless he should not be completely

exculpated from blame because of the growing incidence of

policemen shooting people to death at the slightest

opportunity under the pretext that they were carrying out a

lawful arrest.

22

(201

7) LP

ELR-42

099(

SC)

Having regards to the circumstances of this case, Section

33(2) of 1999 Constitution does not avail the appellant and

the firing of the gun at the back of the deceased to prevent

him from escaping from lawful custody was not reasonable

in the circumstances. The conviction for the offence of

murder under Section 319 Criminal Code is substituted for

manslaughter and the appellant is hereby sentenced to 10

years imprisonment with hard labour. The sentence is to

take effect from the time he was convicted for murder.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I had the

advantage of reading in draft the judgment just delivered

by my learned brother Aka'ahs JSC. I agree with my lord in

his reasoning process and conclusion. Although there is a

law which permits a law enforcement officer to resort to a

certain force even if it will involve taking away of one’s life

to inhibit one from absconding from arrest, circumstances

beyond any reproach proved that the appellant

mismanaged his fire-arm in shooting at the deceased The

appellant should have resorted to other means of arrest

than resorting to the last resort of shooting directly at the

victim

I agree with my learned

23

(201

7) LP

ELR-42

099(

SC)

brother Aka'ahs JSC in tempering justice with mercy by

reducing appellant’s sentence from death by hanging to life

imprisonment This may serve a lesson to the appellant and

other law enforcement officers assigned to handle deadly

weapons

MARY UKAEGO PETER-ODILI, J.S.C.: I agree in totality

with the judgment just delivered by my learned brother,

Kumai Bayang Aka'ahs JSC and to underscore that support,

I shall make some remarks.

This is an appeal against the judgment of the Court of

Appeal, Ibadan Division delivered on the 18th day of May,

2015 and which judgment's lead was anchored by

Mudashiru Nasiru Oniyangi JCA affirming the conviction

and sentence to death of the appellant by the High Court of

Ogun State, Ijebu - Ode.

FACTS BRIEFLY STATED:

The facts as presented by the prosecution through its

witnesses at the trial Court are that the Area Commander's

Office, Ijebu - Ode received a petition of threat to life from

Chief Titilayo Odusanya (PW1). The appellant with PW4 and

another police officer name Corporal Hamzat were detailed

to investigate the case.

On the 10th of March 2014, the PW4, the appellant and

Corporal Hamzat booked

(201

7) LP

ELR-42

099(

SC)

24

(201

7) LP

ELR-42

099(

SC)

for arms and ammunitions and they went to Oloke-Alli

village to arrest those mentioned in the petition, one of

whom is the deceased person.

On getting to the village, the deceased was arrested by the

PW4 and handed over to Corporal Hamzat and the

appellant. While Chief Odusanya (PW1) and the PW4 were

discussing on how to arrest the other people mentioned in

the petition, the deceased allegedly attempted to escape

and the appellant pursued him and in the process shot and

killed him.

The appellant in his defence denied intentionally killing the

deceased and stated that the deceased attempted to snatch

his rifle and it was while both of them were struggling for

the rifle that he suddenly heard a gunshot and he

discovered the deceased person got shot and died.

At the close of the defence, counsel on both sides filed

written addresses.

In a well considered judgment delivered on 16th October

2014, the appellant was found guilty by the trial Court and

sentenced him to death Please see page 48 to 58 of the

record of appeal.

The appellant being dissatisfied with the judgment of the

trial Court appealed to the Court of Appeal, Ibadan Division

against the

(201

7) LP

ELR-42

099(

SC)

25

(201

7) LP

ELR-42

099(

SC)

judgment of the trial Court. The appeal was heard on the

27th day of April 2015 after brief of argument had been

filed and exchanged by both parties. The judgment of the

Court of Appeal was delivered on the 26th day of June,

2015 in which the conviction and sentence by the trial

Court were affirmed. It is in further dissatisfaction that

appellant has now appealed to this Apex Court.

On the 19th day of January, 2017 date of hearing, the

appellant's learned counsel, Chief Henry Eshijionam Omu

adopted his brief of argument filed on 14/9/2015 and in

it, formulated three issues for determination, viz:-

1. Whether the learned justices of the Court of

Appeal, Ibadan Division were right to have relied on

the evidence of PW3, PW4 and Exhibit 'D' and the

AK47 rifle the appellant had in his possession as a

policeman on the day of the incident to hold that

prosecution proved its case beyond reasonable doubt

to the effect that the appellant intentionally and

voluntarily killed the deceased - Tunde Adegboyega to

justify the affirmation of the conviction and sentence

of the appellant for murder,

2. Whether the learned justices of the Court of

Appeal, Ibadan

26

(201

7) LP

ELR-42

099(

SC)

Division were right to have affirmed the conviction

and sentence of the appellant by the learned trial

judge for murder in spite of the fundamental

contradictions depicted in the case of the prosecution

which ought to have been resolved in favour of the

appellant.

3. Whether the learned justices of the Court of

Appeal, Ibadan Division were right to have affirmed

and adopted the learned trial judge's conviction and

sentence of the appellant when the prosecution failed

to disprove the appellant's defence of self defence

pursuant to Sections 32 (3), 32 (4) and 286 of the

Criminal Code and not exhaustively considered the

appellant's additional defence of Accident pursuant to

Section 24 of the Criminal Code Law, Laws of Ogun

State of Nigeria, 2006 and also not considering and

upholding the defence open to the appellant under

Section 33 (2) of the Constitution of the Federal

Republic of Nigeria. 1999.

Dr. Olumide Ayeni, Attorney General of Ogun State for the

respondent adopted the brief of the respondent settled by

F. F. Fakolade, Principal State Counsel of Ogun State. He

distilled two issues for determination, viz:-

1. Whether the learned justices of

27

(201

7) LP

ELR-42

099(

SC)

the Court of Appeal were right to have affirmed the

decision of the trial Court that the prosecution proved

the offence of murder against the appellant,

2. Whether the appellant can be availed by the

defences of self defence and accident raised by the

appellant at the trial of his case as well as whether

the appellant can be availed by Section 33 (2) of the

1999 Constitution,

The issues as crafted by the respondent are simple, easy to

utilise and cover the questions in contention and I shall

make use of them in the determination of this appeal.

ISSUES 1 AND 2:

The questions therein raised are whether the Court of

Appeal was right to have affirmed the decision of the trial

Court in its conviction of the appellant for murder. Also

whether the defences of self defence and accident did not

avail the appellant. Again if Section 33 (2) of the 1999

Constitution was not available to the appellant.

Learned counsel for the appellant contended that the

prosecution failed to prove its case beyond reasonable

doubt. That the prosecution did not prove that the

purported act of the appellant caused the death of the

deceased and that same was intentional

28

(201

7) LP

ELR-42

099(

SC)

with knowledge that death or grievous bodily harm was its

probable result. That there was no evidence of an

eye witness to the confrontation between the appellant and

the respondent leading to the death of the deceased and

the Court below placed too much weight on the

uncorroborated evidence of PW3, PW4 and Exhibit 'D'.

It was further submitted that there were fundamental

contradictions in the case of the prosecution and the

absence of medical evidence conclusively linking the death

of the deceased to the appellant which have to be resolved

in favour of the appellant. He referred to the cases of:-

Chukwu v The State (2013) All FWLR (Pt.666) 425 at

437; Oshiba v The State (2011) 12 SCNJ 526; Ugwu v

The State (2002) FWLR (R.103) 330 at 343 - 344;

Tunde Adara v The State (2000) All FWLR (Pt.311)

1777 at 1787; Ogbu v The State (2007) All FWLR

(Pt.361) 165; Nigerian Air Force v Obiosa (2003) 4

NWLR (Pt.810) 333; Onuchukwu v The State (1998) 4

SC 49 at 57 etc.

For the appellant, it was further contended that the Court

below had not considered the self defence as defence put

up by the appellant who would have exculpated him from

blame in view of the

29

(201

7) LP

ELR-42

099(

SC)

confrontation presented by the deceased. Also, that the

lower Court did not consider the defence of the appellant

that the death was accidental. Again, showing a failure in

the consideration of the matter by the two Courts below is

the fact that the two Courts did not take into account the

defence provided under Section 32 (3) and (4) of the

Criminal Code not to talk of Section 33 (2) of the 1999

Constitution of the Federal Republic of Nigeria for the

appellant, a policeman under the Nigerian Police acting

within his official duties. He cited Apugo v The State

(2006) 16 NWLR (Pt.1002) 227; Musa v The State

(2009) 7 MJSC 52 at 88; Chukwu v The State (1992) 1

NWLR (Pt.217) 255 at 267; Iromantu v The State

(1964) 3 NSCC 228 at 229; Amayo v The State (2002)

FWLR (Pt.91) 1571 at 1588; Lado v The State (1999) 9

NWLR (Pt.619) 369; Arabi v The State (2001) 12 WRN

158.

The learned Attorney-General for the respondent in a

commendable display of responsibility as an officer of the

Court in the temple of justice and not to get an advantage

and conviction at all cost, while urging the Court in line

with the position of the respondent according to the brief of

argument, referred the Court to the

30

(201

7) LP

ELR-42

099(

SC)

Criminal Code Law 1916 which has now been adopted in

the Criminal Code of Ogun State 1964 currently

in application under Section 271 and also Section 33 (2) of

the 1999 Constitution.

Learned counsel for the respondent submitted that the

Court should take a holistic view of the offence charged,

the defences proffered and the laws as they affect the

circumstances of the appellant in operation as an officer of

the law with a suspect escaping from arrest or lawful

custody.

In a charge of murder such as the case at hand, the

prosecution is required to establish the following

ingredients:-

(a) that the deceased died;

(b) that death of the deceased was caused by the

accused;

(c) that the accused person intended to either kill the

victim or cause him grievous bodily harm.

See Njoku v The State (2013) 2 SCM 177 at 180.

In the concurrent findings of the two Courts below, what is

available is that the ingredients above stated were

established beyond reasonable doubt. In fact a reference to

pages 142 - 144 of the record would show what the Court

below stated and that is as follows:-

"What is now left is whether or not the shooting was

(201

7) LP

ELR-42

099(

SC)

31

(201

7) LP

ELR-42

099(

SC)

intentional. The fact of this case as can be garnered

from the evidence of PW4 and the appellant points to

one and only conclusion that, when the appellant

opined that the deceased took steps to escape, he

pursued him so as to re-arrest the deceased. Another

story by the appellant is that himself and the

deceased were struggling with the rifle he (the

appellant) had in his possession when the rifle

exploded and thereby killing the deceased. Another

story by the appellant is that he shot into the air and

suddenly he found the deceased dead on the

ground. PW4 said from where he was standing with

PW1 the complainant petitioner, he noticed the

commotion with the appellant, the deceased and

Corporal Hamzat and subsequently the pursuit of the

deceased by the appellant to the back of the house

and from where he heard a gunshot. On getting there,

he saw the deceased lying on the ground dead. From

the foregoing, it is logical, reasonable and

unequivocal to say that it is from the gun

32

(201

7) LP

ELR-42

099(

SC)

the appellant was carrying that the shot which exited

the bullet that hit the deceased and killed him came

from. Three things can be noted here: The belief by

the appellant that deceased was escaping. Secondly,

his desire to get him arrested and the shooting into

the air. All these put together reasonably point to

nothing other than that it is the appellant that fired

the AK47 rifle he was holding so as to put the

deceased to a halt and prevent him from escaping.

The position of the law is that direct evidence to

prove the cause of death, must connect death of the

victim with act or omission of the accused such as the

medical evidence. Showing that injury that resulted in

death is consistent with such inflicted by the accused

particularly where victim dies in the course of attack,

The evidence of PW3 and coupled with Exhibit 'D' the

medical report points to nothing other than that the

deceased died of the gunshot he received. The

gunshot is not from anywhere or person but from that

fired by the appellant from the "AK47" rifle he was

carrying. See Uguru v State (2002) FWLR (Pt.103)

330 and Young Ukauwa Uguru v The State (2002) 4

SC (Pt.II) 13 at 21."

33

(201

7) LP

ELR-42

099(

SC)

Oniyangi JCA anchoring the judgment of the Court below

stated further thus:-

"Also, the appellant never in evidence, said the body

of the deceased examined by PW3 is not that of the

deceased who was arrested by their team. The story

by the counsel representing the appellant that PW4

said there were plaster all over the body of the

deceased when he was arrested and that of PW3 the

Medical Doctor that there was no other wound on the

deceased, cannot change the direct and positive

evidence of PW4 and the appellant that it was the

deceased that was arrested, and that was killed at the

same venue that was examined by PW3 and that the

result of the examination is that contained in Exhibit

"D".

Therefore, and from the totality of the evidence and

the exhibits and coupled with the instrument used i.e

AK47 rifle, the appellant intended to terminate and

sniff out life from the deceased."

What comes out glaringly and without dispute is that the

appellant, a police officer in the quest to have the

deceased's arrest secured, shot the deceased at the back

and he died therefrom. Then is thrown up the question if

the statutory defence implied in the provision of

34

(201

7) LP

ELR-42

099(

SC)

Section 33 (2) of the 1999 Constitution availed the

appellant.

Section 33 (2) (b) of the 1999 Constitution (as amended) is

in line with Section 271 of the Criminal Code Law. It

stipulates thus:-

"33(2): 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,

(b) In order to effect a lawful arrest or to prevent the

escape of a person lawfully detained..."

A reference to the Criminal Code of Ogun State would be of

assistance and in this regard, the Attorney General of Ogun

State as counsel for the respondent and in his bounden

duty as officer of the Court had called the Court's attention

to it. Section 271 Criminal Code Law, Ogun State,

"271: 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 to be arrested takes to flight

in order to avoid arrest, it is lawful for the peace

officer or

35

(201

7) LP

ELR-42

099(

SC)

police officer and for any other 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."

The Supreme Court had warned itself and other Courts in

the application of the Constitutional provision, Section 33

of the 1999 Constitution of the Federal Republic of Nigeria

(CFRN), Police Act and in relation to facts akin to the case

at hand in the case of: Adegboye lbikunle v State (2007)

2 SCM page 73 at 76 wherein it was held that,

"The statutory defences implied in these provisions

(33 (2) (b) of the 1999 Constitution, Section 7 (1) and

(2) of the Criminal Procedure Law and Section 4 of

the Police Act) cannot avail the appellant, more so

that none of them granted him a license to summarily

execute the deceased extra-judicially. Even if the

deceased were to be a thief or a person of dubious

character....... the provisions of the Constitution and

Criminal Procedure Law (ibid) quoted above did not

36

(201

7) LP

ELR-42

099(

SC)

license the appellant to be the complainant,

investigator, Judge as well as executioner.. all rolled

into one."

I shall refresh my mind with the fact and the circumstances

of the case of lbikunle v State referred to above which is

similar to the instant case. In the said case, the appellant

being a police officer had gone in company of his fellow

police officers to effect an arrest of a certain armed

robbery suspect who escaped from police custody. The

police including the appellant then traced the said armed

robbery suspect to a particular address where they

believed the suspect was on that night. Unknown to the

appellant and his colleagues, their armed robbery suspect

had moved out of the address about 2 weeks before and

someone else who turned out to be the deceased was living

in the address.

The police knocked on the door but the deceased refused to

open the door. The deceased did not also emphatically deny

that he was the suspect the police was looking for. The

deceased did not open his door even after the police fired

warning shots into the air. The deceased still did not open

his door but instead warned the police that he would kill

any

37

(201

7) LP

ELR-42

099(

SC)

police officer who dare come inside his room with a cutlass

he was holding.

The appellant in the case, summoned courage and jumped

into the deceased's apartment through the window but the

deceased who had been talking to the police officers had

quickly moved into the bedroom and locked it up. After

over two hours, the appellant in an attempt to incapacitate

the deceased and effect his lawful arrest fired a single shot

from a rifle at the downward end of the bedroom door in

order to gain access and effect his arrest, but the gunshot

turned out to be fatal when the police officers brought out

the deceased, it dawned on them that the deceased was hit

in the abdomen and that he was not the notorious suspect

who they are in search of. The conviction of the appellant

was re-affirmed by the Supreme Court.

The case at hand while on all fours with the Adegboye

Ibikunle v State (supra) provides an unfortunate

scenario as the deceased did not threaten the appellant and

was even warned. It was the appellant who had earlier

slapped the deceased giving the impression of greater force

being used on him and so may have produced the fear on

the deceased for which he ran off

38

(201

7) LP

ELR-42

099(

SC)

and the appellant firing him from behind. It is to maintain

the balance between law enforcement as protected by

Section 271 Criminal Code Act and Section 33 (1) of the

1999 Constitution and the rights of the potential suspect

that one is inclined to go along with the findings of the two

Courts below and holding a little back from reaching the

conclusion of culpability of the appellant for murder and

rather anchor on manslaughter.

From the foregoing and the well articulated lead judgment

that I also allow the appeal in part and sentence the

appellant for manslaughter in line with the 10 years term

given.

I abide by the consequential order made.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the

lead Judgment delivered by my learned brother - Aka'ahs,

JSC, and I agree that this Appeal should be allowed in part,

bearing in mind the earnest intervention of the Hon.

Attorney-General of Ogun State, Dr Olumide Ayeni, on

behalf of the Appellant.

At the hearing of the Appeal, Dr. Ayeni pointed out that the

Appellant was a Police Officer, and referred this Court to

Section 271 of the Criminal Code Law of Ogun State, which

provides as follows:

"When a

(201

7) LP

ELR-42

099(

SC)

39

(201

7) LP

ELR-42

099(

SC)

... 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 police officer ... 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 punishable with death

or with punishment for seven years or more, may kill

him if he cannot by any means otherwise be arrested."

The Hon. Attorney-General's position is that if the above

Section fits, the State will be happy to concede the Appeal,

but if this Court finds that it is not applicable, the State will

abide by this Court’s decision. He also urged this Court to

do justice according to the law taking into consideration

the defence open to the Appellant, under that Section.

As my learned brother noted, the said Section 271 is

supported by Section 33 (2) (b) of the Constitution (as

amended), which says -

"A person shall not be regarded as having been

deprived of his life

40

(201

7) LP

ELR-42

099(

SC)

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.

(b) In order to effect a lawful arrest or to prevent the

escape of a person lawfully detained."

In this case, acting on a Petition titled "Threat to Life";

written by Solicitors to Chief (Dr) Titilayo Odusanya and Mr

Segun Odusanya, the Appellant and two other Police

Officers, booked for arms and left Ijebu-Ode with the

Petitioners to Oloke-Ali Village, to arrest all those

mentioned in the Petition, including the deceased, Tunde

Adegoyega.

To cut a long story short, PW4, who led the team of

Policemen, arrested the decease, and handed him over to

the Appellant and one Corporal Hamzat. Apparently, the

deceased attempted to escape from where he was seated

with the Appellant and the said Corporal, and the Appellant

pursued him to the back of the house, where he shot him.

In his Statement to the Police [Exhibit C] that he wrote

himself, the Appellant said he pursued the deceased to

effect re-arrest and that-

I then cocked my rifle to muzzle up and shot at air to scare

41

(201

7) LP

ELR-42

099(

SC)

the mobs, along the process my hand mistakenly touched

the trigger as a result, the suspect was accidentally shot.

In his defence, the Appellant narrated a different story, as

follows-

Myself and the deceased started dragging each other in

front of the house. He dragged me to backyard of the house

where he saw a plank and wedged it at my left leg. I then

fell down together with him. I sustained injury on my left

knee. The deceased then grabbed my rifle. We were

struggling with the rifle together. I do not want my rifle to

go to the wrong hands because he can use the rifle against

me and if eventually he succeeded in disarming me, he can

make away with my rifle and use the rifle to terrorize

innocent people. While the struggle lasted, I called for help

from my colleagues to rescue me but nobody came to my

rescue. As we were struggling for the rifle, the deceased

incited the villagers against us by saying “E le won, E bo

won” (chase them and attack them). As we were struggling

for the rifle, suddenly I heard a gunshot from my rifle. I

thought I was dead because I met myself on the ground.

When I regained consciousness, I saw my rifle on the

42

(201

7) LP

ELR-42

099(

SC)

ground in front of me. I also saw the deceased lying down

on the ground. I quickly got up and picked up my rifle. As I

was picking my rifle, my people came. They rushed to the

scene. My O/C then instructed us to retreat from the village

for possible attack from the villagers. We then retreated

back to the station.

The medical examiner, who testified as PW3, and tendered

Exhibit D, his Medical Report, said the entry point of the

gunshot was through the deceased's back, while the exit

was on the left side of his chest.

PW4, who led the team, testified that while he was

discussing with Chief Titilayo Odusanya, on the side, he

heard a loud shout from Corporal Hamzat, and looked to

see him lying on the floor; and that -

The bench on which they sat down was on top of him. His

rifle fell apart. I now discovered that as they sat down on

the bench, the deceased was sitting at one end of the bench

so when he stood up, the weight of Corporal Hamzat at the

other end was too much. That was why he fell. In the

process, Corporal Hamzat was injured and the deceased

escaped while the Accused person (Appellant) pursued him.

The next thing I heard was a gunshot and

43

(201

7) LP

ELR-42

099(

SC)

the deceased shouted. There and then the villagers came

out en-masse and I order a retreat. We left the place.

Under cross-examination, PW4 stated as follows-

I and Chief Titilayo went to a distance to discuss how to get

the others arrested, that was when I heard Corporal

Hamzat shouted (sic). I found the bench they sat on fell on

him. There and then the deceased fled while the Accused

(Appellant) pursued him to the side of the house.

PW4 also said that when the deceased escaped, the

Appellant chased him to the back of the house, from where

they heard the gunshot, and when they got to the place,

they saw the deceased on the ground.

In finding the Appellant guilty, and convicting him for

murder, the learned trial Judge, O. A. Onofowokan, J ,

stated as follows-

The question now is which to believe, claim of

accident as a result of mistaken touch of the trigger

or accident as a consequence of struggling for the

rifle. Neither is credible and nothing but an

afterthought. On the defence of the self-defence, the

material contradiction in the statement of the

Accused- Exhibit C and his evidence on oath makes

the submission of counsel that the

44

(201

7) LP

ELR-42

099(

SC)

Accused was in apprehension of death – porous,

preposterous and indeed, speculative. Even at that---

there is no evidence, direct or circumstantial,

showing that the accused was attacked or was under

any threat of attack from the deceased to make him

kill the deceased. The deceased could not be

attacking the Accused and still got shot at from the

back. The two defences therefore fail.

The learned trial Judge concluded as follows at 57/58 of the

Record –

Both the prosecution and the Accused are substantially on

common ground on the facts and circumstances leading to

the death of the deceased. It is not in dispute that the

deceased died, neither is it in dispute that it was the

Accused Person that shot and killed the deceased. To

exculpate himself of criminal responsibility, however, the

Accused put up the defences of accident and self-defence,

which defences I found to be phantom, frivolous and

afterthought. In fact, the accused has no cognizable

defence for his reckless and unwarranted action in shooting

the deceased. His action cannot be justified and indeed

condemnable…

In the circumstances .. I am of the considered view

that it

45

(201

7) LP

ELR-42

099(

SC)

will be foolhardy to even imagine that the Accused,

who in attempt to arrest a suspect and not a convict

recklessly aimed his gun, obviously at close range at

the deceased and shot him from the back in the

critical area of the chest region had another (sic)

intention than to kill or cause the deceased grievous

bodily harm. His clear intention, which I found proved

from the accepted evidence on record, was to kill or

cause the deceased grievous bodily harm. His clear

intention, which I found proved from the accepted

evidence on record, was to kill or cause the deceased

grievous bodily harm. I find the evidence of the

prosecution overwhelming and substantially credible

in discharge of the evidential burden on it. I find the

guilt of the Accused of the offence of murder proved

beyond reasonable doubt and I convict him

accordingly.

In dismissing the Appeal and affirming the decision of the

trial Court, the Court below, per Oniyangi, JCA, held that

“the Appellant intended to terminate and snuff out life from

the deceased”. He concluded -

The deceased, who was not armed with any weapon,

cannot deserve to be shot with an AK47 rifle by the

46

(201

7) LP

ELR-42

099(

SC)

Appellant in a bid of alleged defence. There is nothing

to justify that the deceased launched any attack on

(him) to warrant being shot with gun, and which

resulted into the deceased’s instant death.

The lower Courts have spoken, and there is nothing this

Court can do about their concurrent findings on facts

except to accept the said facts. See Ogoala V. The State

(1991) 2 NWLR (Pt 175) 506 SC.

However, the attention of the two lower Courts were not

drawn to provisions of Section 271 of the Criminal Code

Law of Ogun State; who is to say what their decision would

have been if that was done?

The Hon. Attorney-General of Ogun State, Dr Olumide

Ayeni, has done well in bringing the said law to the

attention of this Court, and I thank him for putting justice

first above other considerations.

The bottom line is that juxtaposing the said findings of fact

with the said provision of the law, the only option open to

this Court is to reduce the conviction of the Appellant from

murder to manslaughter. Shooting the deceased at the

back is certainly far from reasonable.

In the circumstances, this Appeal is allowed in part. I abide

by the

(201

7) LP

ELR-42

099(

SC)

47

(201

7) LP

ELR-42

099(

SC)

consequential orders made by Aka'ahs, JSC, in the lead

Judgment.

SIDI DAUDA BAGE, J.S.C.: I have had a preview of the

lead Judgment delivered by my learned brother – Aka’ahs,

JSC., and I agree with all the reasoning and the conclusion

arrived at.

Let me add just a few words of my own in total support to

the lead Judgment. The sum total of the case of the

Appellant is one of involuntary manslaughter. It is an

unlawful killing without malice afore thought express, but

may be implied. There was gross negligence (though it may

be otherwise lawful act to prevent an escape from justice).

However, holding a gun, loaded with Live ammunition will

result into an unlawful act, if care is not taken. Such an

unlawful act which a sober and reasonable person, would

inevitably realize must subject the victim to the risk of

some harm resulting from the said act. The Exhibit 'D'

speaks for itself, the medical report. It specified the injury

caused to the deceased person by the unlawful act of

Appellant. The report specified the entry point was at the

back side of the scapular and the exit point was from the

chest between the 4th and 5th intercostal space.

48

(201

7) LP

ELR-42

099(

SC)

It is now settled, that an accused person as in the instant

case, cannot take refuge on a defence of accident for a

deliberate act even if he did not intend the eventual result.

See the case of OGHOR VS THE STATE (1990) 3 NWLR

(Pt. 139) 484 at 502. The test of the plea or defence of

accident is always that if the act even though unlawful, is

not such that would, from the view of a reasonable man,

cause death or grievous bodily harm though death resulted

therefrom, the person charged can only at most, be

convicted of manslaughter. See the case of THOMAS VS

THE STATE (1994) 4 SCNJ (Pt.1) 102 at 109, (1994) 4

NWLR (Pt. 337) 129 per Wali JSC. It need to be

stressed, that the act leading to the accident must be a

lawful act done in a lawful manner. Thus for an event to

qualify as accidental under Section 24 Criminal Code

(C.C.), it must be a surprise to the ordinary man of

prudence, that is, a surprise to all sober and reasonable

people. The test is always objective. See ADEMOLA VS.

THE STATE (1998) 1 NWLR (Pt.73) 683 at 692-693. (

1988) 3 SCNJ 68.

It must always be borne in mind that Section 24 of the

Criminal Code does not deal with an "act" but an "event"

and the

49

(201

7) LP

ELR-42

099(

SC)

event within the meaning of the section, is what apparently

follows from an act. See AUDU UMARU VS THE STATE

(1990) 3 NWLR (Pt. 138) 363 at 870, DANIELS VS

THE STATE (1991) 8 NWLR (Pt. 212) 715, CHUKWU

VS THE STATE (1992) 1 NWLR (Pt. 217) 255. NWALI

VS THE STATE (1991) 5 SCN 14. SOLOMON

ADEKUNLE VS THE STATE, 26 NSCQR 11, 1137 at

pages 1393-1394.

ln the circumstance of the present case, I agree with the

lead Judgment, that the defence of accident cannot avail

the present Appellant. I again agree with the lead Judgment

that the conviction for the offence of murder under Section

319 of the Criminal Code, be substituted for manslaughter.

I also abide by the term of imprisonment and the labour

attached together with the time it will take effect as

contained in the lead judgment.

50

(201

7) LP

ELR-42

099(

SC)