Eze Ibeh Vs The State (1997)

BELGORE, J.S.C. 

This is an appeal against decision of the Court of Appeal upholding the conviction of the appellant for the murder of two brothers called Dawodu brothers. He was sentenced to death by the trial High Court of Lagos State on 23rd February, 1989.

The appellant, a policeman attached to Mobile Unit had, on 17th November, 1987, arrested a taxi driver, Clement Alumona, for some contravention and took him to Adeniji Adele Police Station on Lagos Island. The alleged offence by the taxi driver was at the Mainland. The appellant was accompanied by his colleague in the Mobile Unit P.W. 10, James Onabrakpeya. While reporting the case at Adeniji Adele Police Station, P.W.7, Sebastine Duru, who was a traffic warden, rushed in to alert the police that his colleague, with whom he was on duty at Idumagbo Road junction, was being beaten up by a mob.

The traffic warden under attack is P.W.11, Omogo Ogali. As the P.W.7 was reporting, another person, a civilian this time came to lodge a similar complaint – however, this civilian was never called as a witness and his name was never given; but it was on record that he urged the police to act with immediate dispatch. Michael Omochi, P.W.5, a non-commissioned officer detailed P.W.6, Cpl Ogunmola, to accompany P.W.7 to the scene. One wonders what prompted this inadequate reaction to a serious report of mob-action. However as P.W.6 was going to the scene, the appellant and P.W.10 joined him in the Mercedes Benz saloon brought by the civilian who came to lodge the report. They all got to the scene at Idumagbo Road junction.

At the scene, there was a large crowd in the middle of which were P.W.11, Omogo Ogali, and the driver of a Volvo Saloon. P.W.11 was held by the crowd and P.W.7 in company of two other policemen went to rescue P.W.11; the appellant went into a different direction. In the middle of the crowd and the attendant commotion, there were two or more rapid gun shots. At this, the crowd started dispersing as everybody ran for cover. The gun shots were from the rifle of the appellant. Another witness reported the gun shots differently: there was a first gun shot followed by two other gun shots, making three gun shots in all. Everybody ran for their life including P.W.6, P.W.10 and the traffic warden who went to the scene with the appellant. P.W.7.

When everybody had deserted the scene the dead bodies of Saka and Sule Dawodu, two brothers, were on the ground. P.W.6 went to report at Adeniji Adele Police Station and in his trail a few minutes later was the appellant. Shortly after, a crowd arrived at the station with the corpses shouting that these were the people shot and killed by the appellant. P.W.6, P.W.7 and P.W.10 in their evidence said they heard the gun shots but that they never knew from which gun and who fired them. P.W.12 (Buari Liasu), P.W.14 (Karimu Alabi) and P.W.15 (Alhaji Yakubu Alao) said they saw the appellant shoot the two brothers. The summary of each of these three civilian witnesses is that on the fateful day they heard some commotion and saw these traffic wardens arguing with a man driving a Volvo car. A crowd gathered round the scene and after a while one of the two traffic wardens who had left the scene returned later with two mobile policemen, one of whom is the appellant, the two carried rifles. The appellant dragged Sule Dawodu (deceased) from where he stood and held him by the trousers. Later, Saka Dawodu, Sule’s brother arrived and was pleading that Sule be released. The appellant warned Saka not to interfere and as Saka was moving away he was shot twice in the back. He fell. A moment later a shot rang out again from the appellant’s rifle and hit Sule. The two brothers died. All these allegedly occurred with the crowd still in place. The three witnesses said the policemen and the traffic wardens pleaded with the appellant to no avail. These three witnesses were prosecution witnesses. The evidence of the other prosecution witnesses at the scene is interesting. P.W.10, Cpl James Onabrakpeya, got to the scene in the Mercedes saloon of the civilian that went to alert the police station. On alighting at the scene, he saw a Volvo car “surrounded by a large crowd” and fighting was going on.

It was when he got to the Volvo car that he heard a shot ring out at which he took to his heels together with Cpl. Ogunmola (P.W.6). Similarly P.W.6 got to the scene with P.W.10 and saw a large crowd in the middle of which was a Volvo car. As he was asking the driver of the car some questions he heard a shot ring out. Looking back he saw the appellant waving his gun and he went back to the police station. On his way to the station he heard two other gun shots; he however admitted in cross-examination that he never recorded in his statement at the station that he heard two other shots. P.W.6 and P.W.10 – ran away on hearing the shots from the gun. The scene, Anikantamo market, is just ten minutes walk to Adeniji Adele Police Station. He admitted that in his statement at the station he wrote that he “tried to calm the situation”, however by his evidence in chief he omitted this and presented an air of someone not running away from the scene. In cross-examination his so-called attempt to calm the situation was to talk to the Volvo driver and the traffic warden.

The P.W.11, Omogo Ogali, the traffic warden at the centre of the incident leading to the appellant and others running to the scene, had this to say among others:

“I remember 17th November 1987. I was attached to Central Police Station Adeniji Adele Road, Lagos on that day. My hours of duty were 6 a.m. to 2. p.m. On 17/11/87 I was posted on duty at Idumagbo junction Lagos with another Traffic Warden named Sebastian Duru.

On that day i.e. 17/11/87 at about 12.45 p.m. I contravened a Volvo car registration number LA 16 AN for flouting the Lagos State Edict on odd and even number arrangements. I told the driver of the Volvo car to follow me to the station. He refused to do so. He then drove his car dangerously towards me wanting to knock me down. I jumped on the car’s bonnet and the driver drove the car with me on the bonnet to Anikantamo Street, Lagos. The distance between where I contravened the car and from where he drove with me on the bonnet to Anikantamo Street is about the distance between the road at the back of this court to the road in front of it (i.e. between Tafawa Balewa Square and Igbosere Road, Lagos – Court puts this distance at about 100 metres).

At Anikantamo Street the driver stopped the car, came out of the car started shouting “Ole, Ole” (thief, thief), and he started beating me. Some people came round and joined the driver in beating me. They tore my uniform. Sebastian Duru who was on duty with me came along and when he saw what was happening to me he quickly ran to the Police Station to lodge a report. He brought along some policemen whom I do not know. Shortly after this, I heard the sound of gun shot. I then became unconscious and I did not know what was happening. After a while, I recovered and I went to the police station.

The people had stopped beating me when the policemen came. I was unconscious hence I did not know what was happening after a while. I do not know whether or not the people molested the policemen when they came.

I did not know the accused person until after the incident when I was told certain things at the police station.

From the Police Station I was taken to the Police Clinic at Falomo where I was admitted for one night. I was brought from Falomo to go and write a statement at Adeniji Adele.

Cross-Examined by Mrs. Ofulue: I did not see Sebastian Duru when he came back to the scene at Anikantamo Street. I did not see him when he came back with the policemen. I sustained injury in my mouth when the people were beating me. Apart from the driver of the Volvo car, I cannot recognise any of the members of the public who joined the driver in beating me.

I cannot estimate the number of persons in the crowd that gathered while I was being beaten up. I am unable to say for how long I was unconscious. I now say I had recovered from my unconscious state when heard the gunshot.” (sic)

This evidence represents graphically what led to the reinforcement of the appellant and two others to the scene an obviously inadequate action. The evidence of P.W.11 remains uncontradicted. He was not only attacked by the mob after the Volvo car driver almost ran him over with the car, but he was beaten to unconsciousness whereby he never knew much of what happened during the shooting incident. The only person this witness could remember is the driver of the volvo car who almost killed him. This driver of the Volvo car has disappeared completely from this case as if he was irrelevant. The Volvo car to this day has not been claimed where it was towed to. i.e. the Adeniji Adele Police Station. Has the car no registration number Could the owner not be found These are the mysteries of this case. Could it be silence of conspiracy All these have not been explained by the prosecution. Why was the driver of the Volvo car attempting to run over the P.W.11 having driven the vehicle so recklessly towards him

The appellant. like his colleague. held a rifle of K-2 make. But it is pertinent to find out how many shots were fired from the appellant’s gun. There is no doubt whatsoever that shots from the appellant’s gun killed the Dawodu brothers. The uncontradicted story of P.W.11 graphically indicates the scene arrived at by the appellant and other policemen from Adeniji Adele Central Police Station. It was a scene of a large crowd that had beaten the P.W.II to state of unconsciousness.

The reinforcement of three policemen and a traffic warden sent by an inspector was certainly inadequate. The evidence of Yakubu Alao (P.W.15) where he said:

“The traffic warden returned to the scene with two mobile policemen. The three of them joined the traffic warden at the scene. I saw the four of them running on the street and around the market.”

Could not be true as the centre of activity was at the place where the Volvo car was with the P.W.11 on the ground lying unconscious. Also untrue is the evidence of this witness that the other policemen pleaded with the appellant not to shoot and that he shot and that he then ran away from the scene. It was four days later he (P.W.15) showed up at the Police Station to volunteer as a witness.

In his defence the appellant, a private with 23 Mobile Police Force, Keffi Street, Lagos, gave evidence, remaining uncontradicted. It was the manner that a taxi driver drove past him and the others at the road block that led him to suspect that he might have armed robbers in the car; this led to the pursuit of the taxi in another car. The taxi was finally arrested at Ijora but its passengers were no longer inside. The taxi then headed back to the Island to the Central Police Station. It was while the complaint was being lodged that the incident leading to this case was reported as explained earlier in this judgment. As Cpl. Ogunmola was instructed by Inspector Omachi to go to the scene, Ogunmola said as the complaint was about a mob action he could not go alone and the appellant and his mate volunteered to follow him.

At the scene, he saw a large mob with one of them holding a traffic warden (P.W.11) by the shirt; when the man holding the traffic warden saw them, he let go his shirt at which P.W.11 fell to the ground. As his colleagues were trying to lift up the P.W.11, he, the appellant, arrested the man who he saw holding the P.W.11. The mob then became hostile saying in pidgin English “who carry Mobile Policemen come here” “Is that a matter for Mobile Policemen” “These thieves have come here again”. With these hostile remarks from the mob he felt something at the back of his neck, and turning round he found he had been hit with a stick; others rushed at him; some gripped him and tried to disarm him.

A struggle then ensued, and the mob attempted to take his gun, it accidentally fired and a bullet hit his left ear. He was issued four bullets and all went out at once. At this, everybody ran away including his colleagues. He was attacked during the struggle to snatch his gun to the extent that his uniform was in complete tatters. This evidence remains totally uncontradicted. It took two days before he was taken to police clinic where he was treated. The evidence of his injured ear is not contradicted.

As the crowd dispersed from the scene he went back to Central Police Station where he was told the two brothers had died.

The defence in the cross-examination of P.W. 12, Buari Liasu, indicated that the evidence of this witness was in contradiction with his statement to the police and wanted to tender his statement. Learned trial Judge, rightly in my opinion, held there were indeed contradictions and admitted the statement as Exhibit 10. The principle of our legal system in respect of criminal prosecution is that the prosecution must prove its case beyond reasonable doubt on all material facts. The story that the appellant first took aim, in a crowd, at Saka Dawodu and shot him, then took aim at his brother, Sule Dawodu and also shot him is not supported beyond reasonable doubt. The appellant claimed he held the man who held P.W.11 by the shirt, that being the case it was Sule Dawodu that he held; this is supported by evidence of P.W.12, (Liasu Buari). The appellant in his evidence said of the gun he had with him with four bullets inside as follows:

“I have seen exhibit 7. It is the type of gun that was issued to me on 17th November 1987.

“It is not difficult to remove the safety catch when the riffle is cocked. If two or three persons are struggling for possession of the gun, the position of the safety catch can be shifted to rapid firing and riffle will explode (fire) rapidly”.

This testimony is backed by that of D.W. 3 (Akpan Uwemedimo Umo) an Assistant Superintendent of Police with the unit of the appellant. He testified to the fact that appellant was always a calm, intelligent person who neither drank nor smoked. He said of the gun issued to the appellant on that day as follows.

“I have seen Exhibit 7. It is a K. 2 Rifle. I am familiar with K. 2 Rifles. The K.2 Rifle has a magazine. When the Magazine is in place and the Rifle is cocked, it can be fired. But if whoever is handling the gun is not ready to fire it, the safety catch can be put in position so that the Rifle cannot fire. Any slight touch can release the safety catch.”

Again, under cross-examination this witness said –

“RE-EXAMINATION: All the bullets in a gun when the gun is on rapid firing will come out in a split second with a dragging sound but each bullet making its own sound in very rapid succession. In a rowdy situation the rapid firing may not be distinct. The person in whose possession a gun is, decides in his discretion when to cock it.”

The learned trial Judge seemed to have divided the evidence of prosecution witnesses into” two -the official witnesses” made up of policemen, and “non-official witnesses” made up of civilians. He was ready to believe the evidence of prosecution as to how the Dawodu brothers were killed. He however was ready to believe the evidence of civilians who testified that the appellant deliberately shot the deceased persons and those who testified that they only heard the gun shots and ran for cover. What is not disputed is that there was a commotion at the scene involving a Volvo car driver and a traffic warden. All civilian witnesses, especially those who worked at the scene deliberately omitted the confrontation between this mysterious Volvo car driver and the traffic warden that led to the unfortunate visit to the scene by the appellant. The ballistic expert, who was a prosecution witness testified about the riffle used but failed to advert to the number of bullets inside the gun and the effect if accidentally the control was on automatic.

The appellant in his evidence said on getting to the scene he saw a traffic warden resting on the Volvo car held by somebody. He rescued the traffic warden who happened to be P.W.11 who claimed he was beaten to unconsciousness. This evidence is not contradicted – P.W. 11 was taken to hospital for treatment and he got to police station with his uniform torn. The evidence of the prosecution, that the learned trial Judge believed, is full of contradictions, whereas the defence of the appellant has not only been consistent but also supported by the events leading to his being deployed to the scene to rescue the traffic warden from an irate crowd.

The contradictions are so material that the case for prosecution is not without doubt. (Umeh v. The State (1973) 2 SC 9; S. 137(1) Evidence Act). The proper role of the court in a criminal trial is to evaluate all the evidence before it and be sure that the case for prosecution has been proved beyond reasonable doubt and convicted; but if there is doubt, whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused person.

Learned trial Judge found contradictions in the evidence of P.W.6 between his statement to the police and his testimony in court but held that the P.W.6 in court gave further evidence. With great respect, these contradictions have not been explained and remain as part of prosecution ‘s case. Once there is contradiction and it remains unexplained that will be doubt on the evidence of that witness; if the witness is for the prosecution and the contradiction happens to be material as in this case, a doubt then exists and the benefit of it must be given to the accused. The learned trial Judge devoted much of his judgment justifying the evidence of prosecution despite the contradictions and outrightly rejected the evidence of the defence.

It is not the practice of an appellate court to disturb the trial court’s findings of fact except where the findings are at variance with the evidence and are therefore perverse. The impression the trial court had was that the appellant got to the scene, cocked his gun, aimed first at Saka dawodu and shot at him, then with Sule dawodu still around he aimed his gun at him and shot him, all in a large crowd that was hostile with nobody else being injured and with nobody then running away. Whereas the appellant, who never knew the brothers before that very time of the incident said he was attacked and attempt was made to snatch the gun from him in the process of which the safety catch went off and the gun rapidly released the only four bullets issued to him. He was injured in the ear by one of the bullets.

This story of the appellant remains uncontradicted. The appellant reported back at the Adeniji Adele Police Station bleeding and his uniform was torn to tatters. The proceedings are replete with the state of the appellant after the incident and his o state was consistent with the attack on him by the crowd that first attacked P.W.11 which necessitated reinforcement from the Police Station. On the whole evidence, the Court of Appeal also overlooked the contradictions and failed to see that the evidential burden of proof beyond reasonable doubt cannot be found in prosecution’s case (Esanghedo v. The State (1974) 9 SC 1; (1989) 4 NWLR (Pt.113) 57; Okonji v. The State (1987) 1 NWLR (Pt. 52) 659.

It must be pointed out also that the burden remains the same for the prosecution to prove the guilt of an accused person beyond reasonable doubt whether the accused is a civilian or a person in one of the disciplined uniformed forces.

It must however be clearly herein expressed that the learned Judge made a fundamental error, contrary to our jurisprudential tradition, in the assessment of the evidence of prosecution witnesses and this unfortunately goes to the very basis of the conviction. He divided the prosecution witnesses into two: the “official witnesses” comprising the policemen, and the “non-official witnesses” comprising the civilians. There is nothing like this division of prosecution or defence witnesses in Evidence Act or the procedural law as to criminal prosecution; neither is there a division like this in even civil matters. Learned trial judge then went ahead to disbelieve the “official witnesses” and believed the “non-official witnesses”.

In our law, the prosecution, in calling all their witnesses as to substance of the offence must have certainty and unanimity in what they testify, if there are divergent testimonies in this regard by these witnesses such divergent testimonies will result in what is known as contradictions. Unless such contradictions are resolved they lead to doubt, the benefit of which must be given to the accused person. But in the instant case there are facts from both the two classes of witnesses as done by the trial judge that greatly supported the case for the defence and by rejecting even in some cases partly the testimonies of some so-called “official witnesses”, it did great injustice to the case for the accused who is now the appellant. For example, the appellant said he was attacked by some members of the large crowd, just as the traffic warden who was beaten unconscious but in his case the attempt was to snatch his rifle from him. In the process the only four bullets inside accidentally discharged, wounding him in the ear and killing the dawodu brothers.

At that stage, he had no more ammunition in the rifle and to frighten everybody off he had to threaten with the empty gun by waving it from right to left. Of course everybody ran away and he was able to escape. Without considering the depth of this evidence by the appellant and the so-called “official prosecution witnesses”, the point was totally missed as to the crux of the defence. Looked at as a whole, this failure of the trial judge to dispassionately look at all evidence in accordance with the law robbed him the opportunity to prevent his decision leading to injustice.

In all prosecution cases, the evidence put in by the prosecution must be considered in its totality. The time honoured practice of deciding on hostile witness must be borne in mind. Once the prosecution discovers a witness is giving contrary evidence to what he already said in his depositions to the police, the options are as follows: one, if the witness intimates before he goes into witness box that he would change his story, the prosecution will apply to the court that he would be called only for cross-examination as his evidence is contrary to his previous deposition. The court will accede to this and the evidence of this witness will be of no value to either side.

Secondly, if the witness resiles on getting into the witness box on his previous deposition on the same case, the prosecution applies to treat him as a hostile witness. In such cases the witness will be declared a hostile witness if the court rules so. But before ruling, the court must be satisfied as to the discrepancy in his previous deposition and evidence on oath. Once satisfied the court will rule the witness a hostile witness to be cross-examined by the prosecution. Without availing itself of this procedure the prosecution that dumps all contradictory testimonies before the court cannot have verdict of conviction. In the instant case, however, the trial court made fundamental error as to the assessment of the evidence of the prosecution and the defence evidence that the conviction is not just. Unfortunately the Court of Appeal inadvertently ignored the gross defect in upholding the trial court’s decision.

In conclusion, I find great merit in this appeal. The conviction of the appellant for murder cannot be allowed to stand in the face of all the contradictions in the case for the prosecution. This is a case of accidental discharge of the appellant’s gun when he was physically being attacked to seize his gun from him rather than a deliberate act to shoot. The conviction and sentence of death for murder passed by the trial court and upheld by the Court of Appeal are set aside. I enter a verdict of discharge and acquittal.

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Other Citation: (1997) LCN/2797(SC)