Olusegun Adeboye Vs. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

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

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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

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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

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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

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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 doctors 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

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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

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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

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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

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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

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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;

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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 pre that they were carrying out a lawful arrest.

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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.

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SC.627/2015