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Trigger happy police is not good police force – Supreme Court

The stand of the Appellant is that he did not expend any of the 20 (twenty) rounds of ammunition issued out to him. Strangely, not…

The stand of the Appellant is that he did not expend any of the 20 (twenty) rounds of ammunition issued out to him. Strangely, not even in the cross examination of the Appellant was this issue of arms and ammunition raised. Balanced against the evidence of the prosecution, the Appellant would appear to me to have successfully proved that he did not expend any part of the ammunition comprising 20 rounds supplied to him and returned same and the AK 47 gun supplied to him intact. Appellant named one Sgt. Jude Onyedu as the Officer from whom the entire riffles used at the check point was received and most probably returned. Neither Sgt. Jude Onyedu nor any other officer detailed in this regard was called to testify in this case. Assistant Superintendent of Police Nathaniel Ononobi who investigated this case of murder and who testified as PW 3 tendered in court two statements made to the police by the 3rd accused person who is the Appellant in this case. Those statements of the Appellant which are dated 15th August, 2002 and 22nd August, 2002 were admitted by the trial Court as exhibits “G” and “G1” respectively. The said exhibits “G” and “G1” do not contain the fact disclosed by the Appellant that he signed for and collected an AK 47 gun with 20 rounds of ammunition. As earlier stated, Appellant made further statements to the police on the 5th September, 2002 and 13th September, 2002.
 These two statements contain the information that the Appellant signed for and received an AK 47 gun with 20 rounds of ammunition which arm and ammunition were returned intact. Curiously, these two statements made by the Appellant as 3rd accused person on the 5th September, 2002 and 13th September, 2002 were not tendered in court by ASP Nathaniel Ononobi. Those two statements made to the police by the Appellant as 3rd accused were available. Why were such vital documents not tendered in court and what is the effect in law of this kind of suppression of evidence? Section 167 of the Evidence Act 2011 states as follows:-
“The court may presume the existence of any fact which it deems likely to have happened regard shall be had to the common course of natural events, conduct and public and private business in their relationship to the facts of the particular case and in particular the court may presume that:
(d) evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.”
In Obianwuna Ogbuanyinya & Ors v. Obi Okudo & Ors (1990) 7 SC (PART 1) 66, this court per Karibi-Whyte, JSC held as follows:-  “the court is free having regard to the common course of natural events, human conduct, public and private business to presume the existence of any fact which it seems likely to have happened in their relation to the facts of a particular case. The court is not obliged to draw the inference although it generally does. But it seems to me that the court will draw the inference where there is no evidence to the contrary.”
In Ignatius Anyanwu & ORS V. Aloysius Uzowuai  & ORS (2009) 13 NWLR (PART 1159) 445 this court also held that, “It is settled law that the court will presume the existence of a fact from the existence of one or more proved facts if such a presumption is irresistible or that there is no other reasonable presumption which fits the proved or admitted facts”.  
What inference would this court be expected to draw from a situation in which of the four statements made to the police by an accused person, the latter two which are more informative and detailed and which have the potential of settling an issue once and for all are suppressed from being tendered just because their contents are detrimental to the prosecution while only the earlier statements are tendered. PW 3 knew he did a shoddy job as far as that area of his investigation was concerned and had he tendered the Appellant’s statements made on the 5th September, 2002 and 13th September, 2002 they would have been detrimental to the prosecution’s case. The non-tendering of these latter statements of the Appellant have created some doubt in my mind about the guilt of the Appellant.
Another aspect of the investigation of this matter which appears to have been slovenly and which agitates my mind is that the red Nissan car in which the deceased was travelling with PW was not tendered. On this aspect of the investigation, PW 3 ASP. Nathaniel Ononobi said as follows “I invited a photographer who took five snapshots of the vehicle. After processing the photograph he gave me the copies …registered the vehicle as an exhibit but later released it on bond to PW 2 after the investigation of ownership as I established that he was the owner.” Going through the whole gamut of the proceedings in the records, there isn’t the slightest indication that the vehicle itself or any of the photographs given by the photographer to PW 3 was tendered. This is a very crucial and important aspect of investigation which the police have failed to carry out.
I would for example imagine that the five snapshots taken by the photographer would cover different positions of the car and ascertain where bullet shots hit the car. Available evidence is that the car was riddled with bullets but there is also the evidence of PW 3, the investigating police officer that after registering the car as an exhibit he handed it back to PW 2 having ascertained that he was the true owner. If it was so riddled with bullets could it continue to be of any functional use to PW 2? At page 11 lines 17 – 18 of the Records, PW 2, Boniface Ozuaba said as follows, “One of the bullet (sic) that punctured my tyre car … “This shows that some of the bullet shots punctured PW 2’ s red Nissan car. Could the intention of whoever shot at the vehicle have been to immobilize it and not to kill the occupants? It is curious that not even one of the snapshots of the car taken by the photographer was tendered. The positioning of the bullet holes on the car might well have been useful in ascertaining the intention of whoever shot at the car – was the intention to kill or cause grievous harm or was the intention simply to stop the vehicle from moving? What was the state of mind of whoever shot at the car?
The mental aspect or mens rea is very important in establishing the guilt or innocence of accused persons in a charge of murder as in other offences except offences of strict liability where the mens rea is dispensed with. It is even more difficult to accept the notion that those who shot at the car had the same common intention. Nevertheless, there is no doubt that the deceased died from gunshot wounds from police firing on the 1J5th August, 2002 along Orlu road junction by Mgbidi in Orlu Judicial Division. Available evidence is that the occupants of the red Nissan car PW 2 Boniface Ozumba who was driving the car and the deceased Christian Owerreoma were not armed and never shot at the policemen throughout the onslaught unleashed on their car. The supposition was that they were thieves.
Statutory defences under Sections 25, 261 and 271 of the Criminal Code and Sections 4 and 24 (1) of the Police Act certainly cannot avail policemen who shoot at an unarmed thief. Available evidence is that aside from being unarmed, they were not robbers. Evidence of PW 2 and an independent witness are to the effect both sets of policemen fired at the speeding red Nissan car driven by PW 2. Autopsy report of PW 5 Dr. Jonathan Nnawuihe Osuji in its simplest terms is that death of the deceased was consistent with a bullet from a gun.” Who fired the lethal shot? Owing to poor investigation by the police, this has not been easy to ascertain. I entertain some measure of doubt that it was the Appellant. Again, this has been due to poor investigation by the police and poor prosecution of this case. As said earlier, there is no doubt that the police at the checkpoint fired at and killed the deceased. Some of the policemen at the checkpoint on the day of the incident have been tried and freed. Who gets convicted? The dailies are littered with gory details of extra judicial killings by trigger happy policemen on our roads especially at checkpoints.
A trigger happy police force is not a good police force. This should be food for thought to the Police High Command. There is the dire need for the training and re-training of the Nigeria Police Force if it is to take its place among the civilized police forces in the world. For now, that is not the case. I grieve for the deceased whose life has been so brutally cut short. In a murder case such as this, there is the legal aphorism observed in all common law jurisdictions that it is better for ten guilty men to be set free than for one innocent man to be sent to the gallows. There are lapses here and there which make it unsafe to convict. I prefer to err on the part of caution and allow the appeal. The Appeal is accordingly allowed. The judgment of the lower court delivered on the 24th March, 2011 affirming the judgment of the  High Court is set aside and the Appellant is hereby discharged and acquitted.
Representation:
J, C. Okafor, Esq., with Uche V. Obi, Esq., Soji Told, Esq, A. E. Wilfred, Esq, and A. M. lanusi, Esq for the Appellant.
S. A. Njoku, Esq., Ron. Attorney-General, Imo State, with C. C. Dimkpa, (Mrs.), Administrator-General, Imo State and K. A. Leweanya (Miss) Principal State Counsel.

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