Akpakpan V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This is an appeal against the judgment of the Calabar Division of the Court of Appeal or Court below or lower Court, Coram: Chioma E. Nwosu-lheme, Stephen Jonah Adah and Joseph Olubumi Kayode Oyewole JJCA delivered on the 24th day of May, 2017 in which the Court below dismissed the appeal of the appellant and allowed the cross-appeal filed by the respondent substituting the life imprisonment imposed by the trial Court per G. Abraham J., for manslaughter with a sentence of death for murder. Presently, the appellant is serving the life imprisonment to which he was sentenced by the Court of trial at the Uyo Federal Prison.

The Appellant, PC IMO AKPAKPAN was charged before the Akwa Ibom State High Court of Justice, Itu Judicial Division on a lone issue charge of murder.

The case of the prosecution was that on the 5th day of August, 2010 along Nasarawa goat Market Road, Itam in Itu Judicial Division, the Appellant, PC IMO AKPAKPAN murdered one Idongesit Okon Tom.

The Appellant, PC IMO AKPAKPAN was a police constable who was on patrol duty with four other police officers from D division, Itam, Uyo. In the course of duty, the appellant conducted a stop and search and eventually stopped the deceased, Idongesit Okon Tom who had no particulars for his motorcycle which resulted in the motorcycle being impounded in the police vehicle. The team was headed by PW1, ASP Magdiel Douglas Peison who directed all the police officers to put the deceased motorcycle without particulars into the police vehicle and for the police officers to enter the police vehicle to move the impounded motorcycle to the police station. While the vehicle was about making a U-turn, the Appellant deliberately jumped down from the van cocked his gun- AK47 rifle and shot at the deceased and the bullet hit on the tarred floor, re-bounced or ricocheted and pierced through the deceased stomach who died two weeks later in the hospital.

Magdiel Douglas Peison (PW1), an Assistant Superintendent of Police (ASP) and the commander in patrol testified on 31st July, 2012 that they were five (5) in number including the Appellant who went out on patrol when he directed that a stop and search be conducted at Nasarawa street and all the other four (4) police officers came down for that purpose. While conducting the stop and search, the deceased came along carrying a passenger at the back of his motorcycle and he was stopped by the Appellant who demanded for his particulars and further observed that the deceased’s plate number was not genuine. PW1 further testified that he ordered for the motorcycle to be picked into the police vehicle and taken to the station but that the Appellant was still standing and arguing with the deceased and his friend. He stated that he shouted at the Appellant who entered the vehicle but while the vehicle was moving slowly to take a U-turn, the Appellant opened the door and came down. The Appellant fired at the deceased. The bullet penetrated the motorcycle rider, hit the ground and hit the friend at the upper lid of the eye. The bullet hit the rider on the stomach and penetrated through the back of the deceased. The shot was a close range. Under cross-examination, PW1 testified that when he asked the Appellant why he fired the motorcycle rider, the Appellant responded that he was confused. See pages 56 – 59 of the Record of Appeal.

Sylvanus Atila (PW 2), an Inspector of Police who was in the team on duty with the Appellant and also at the scene of the incident testified on 31st July, 2012 that the Appellant was quarrelling with the deceased when the commander of the patrol team (PW1) directed the Appellant to enter the vehicle with the other police officers. The Appellant obeyed and entered the vehicle but while the driver was reversing the vehicle, the Appellant dropped down and went back to quarrel with the motorcycle rider. While in the vehicle they heard a gunshot which they came out, they found the motorcycle rider lying on the floor. See pages 59 – 61 of the Record of Appeal.

Daniel Ikoedem (PW3), a police constable who was in the team on duty with the Appellant and also at the scene of the incident testified on 21st November, 2012 that the commander of the patrol team had ordered for the deceased motorcycle to be booked and taken to the police station. That the deceased requested to know which station his motorcycle was being taken to and further stated that if the motorcycle was taken to ‘D’ Division he would take it free of charge. The Appellant jumped down at that juncture from the patrol vehicle cocked his rifle and he heard the sound of a shot. When he got down from the vehicle he saw the motorcycle rider on the ground in the pool of his blood. See Pages 62-63 of the Record of Appeal.

Gabriel Sunday (PW4), an inspector of police testified as the Investigating Police Officer (IPO) on 11th April, 2013 that the Appellant confirmed in his statement dated 6/8/2010 that he actually cocked his rifle and fired which bullet eventually hit the deceased in the stomach. In the course of investigation, PW4 recovered the gun used by the Appellant, an AK47 rifle with 19 remaining rounds of live ammunition having shot one round. PW4 also testified that one Idongesit Okon Tom is dead and that he died from a gunshot fired by the Appellant as is evident from the Exhibit 1, Statement of the Appellant, Exhibit 3, 3A, 3B, Photographs of the deceased and Negatives, Exhibit 4, Autopsy Report and Exhibit 6, 6A, the AK47 Rifle and cartridge containing 19 live ammunitions tendered in the course of his testimony. See pages 66 – 71 of the Record of Appeal.

The prosecution called four witnesses and tendered ten exhibits. The appellant testified in his own defence and called no witness. The Appellant testified for himself at trial as DW1. He testified that they were 5 policemen in number conducting a stop and search and while directing vehicles to stop, he stopped and searched one particular motorcycle (deceased). He requested for the particulars of the motorcycle but the deceased did not have them and the motorcycle had no registration number. Then his superior (PW1), asked all the policemen to get into the vehicle. As he crossed the road to enter the vehicle, the motorcyclist and the passenger held him, one in front and the other behind. They began to drag him and demanded for their motorcycle. They also began to drag the rifle that the Appellant was holding. In the process, one of them pulled the trigger and a shot was fired. The bullet that came out hit the ground before hitting the motorcyclist (deceased). See Pages 72 – 74 of the Record of Appeal.

The oral evidence of the Appellant was contrary to what the Appellant said in his extra-judicial statement to the police with regard to how the gun was fired. The Appellant stated in one breath that the trigger was pulled during a struggle and in another breath stated that he cocked the rifle and fired same.

In its considered judgment of 19th December, 2013, the learned trial judge disbelieved the evidence of the Appellant and found the Appellant guilty of manslaughter and sentenced him to life imprisonment. The judgment of the trial Court is found at pages 79-84 of the Record of Appeal.

The Court below dismissed the appeal of the Appellant and allowed the Respondent’s Cross-Appeal. The Court below found the Appellant guilty of Murder and sentenced him to death by hanging on 24th May, 2017. The judgment of the Court below is found at pages 194 – 211 of the Record of Appeal.

Dissatisfied with the judgment, the Appellant has further appealed to this Court vide a Notice of Appeal filed on 21st June, 2017. The Notice of Appeal is found at pages 216 – 219 of the Record of Appeal.