Murder: What prosecution must prove – SC

The appellant, who was an armourer with the National Intelligence Agency of the rank equivalent of an Assistant Commissioner of Police, came home with his service pistol, a Beretta which the regulations of his Agency forbade him to carry on such private journeys as attending funeral. That morning, a group of people had gathered to […]

The appellant, who was an armourer with the National Intelligence Agency of the rank equivalent of an Assistant Commissioner of Police, came home with his service pistol, a Beretta which the regulations of his Agency forbade him to carry on such private journeys as attending funeral. That morning, a group of people had gathered to embark on a journey to a neighbouring community with appellant who joined a waiting group armed with his pistol. On getting to the compound the appellant brought out his pistol and shot twice towards the river and turned to the deceased and shot him in the chest. The deceased was heard to have shouted – “Ye etein neyol Saiperemor etein neyo!,” meaning in English Language – you have shot me o! Saiperemor has shot me!’ Thereafter, the deceased was rushed to the Ufor hospital, Ugheli where he was confirmed dead by a doctor.
At the trial court, the appellant was charged for the murder of the deceased, Chief Tuomor Obiri, under Section 319 of the Criminal Code Law of Eastern Nigeria, 1963 applicable in Bayelsa State. In the course of the trial, three eye witnesses gave evidence for the prosecution. A medical doctor, PW5 also gave evidence as to the cause of death of the deceased while the Investigating Police Officer PW6 in his evidence tendered the appellant’s pistol used in the shooting incident and some caution statements of the appellant. A prosecution witness who was billed to give evidence as PW4, was withdrawn by the prosecution. The appellant on his part gave evidence in his own defence and also called one witness who gave evidence in support of the defence of the appellant.
The case of the prosecution was that as the people who gathered for the journey to a neighboring community were waiting to set out, the appellant on coming shot twice towards the direction of the river with his pistol before turning towards the deceased and fired the 3rd shot into the chest of the deceased who slumped down and later died in the hospital.
The appellant’s case was that as he was walking towards the entrance of the compound where people were waiting, he stumbled on a stone and his service pistol fell off his waist. He bent down to pick up the pistol and as he did so his finger touched the trigger and it exploded in quick succession twice. The appellant then said he muzzled up the pistol and removed the magazine. That it was at that point that he heard the deceased shouting before he fell down and later died at the hospital. The appellant later reported himself to the Police Station where he also surrendered, his Beretta pistol with nine remaining rounds of ammunition before he was detained.
After hearing the evidence placed before the trial court by the prosecution and the evidence of the appellant and his lone witness in support of the appellant’s defence, the learned trial judge made the following findings thus:
“From the facts of this case and issues canvassed respectively by the learned counsel for the deceased and the learned counsel for the prosecution, in their addresses, I am of the humble opinion that the live issue which calls for determination is:
Whether or not the accused – Chief Saiperemoh Priye Amaremo – is guilty of the murder of late Chief Tuomor Obiri by intentionally shooting the deceased with his service pistol at Bulou-Orua town on the 24th day of November, 2001.”
The learned trial judge after carefully resolving the ancillary and incidental questions, proceeded to resolve the main issue as follows:
“On the substantive issue of whether or not the accused – Chief Saiperemoh Priye Amaremo – is guilty of murder of late Chief Tuomor Obiri, I wish to say that, in view of all that I have said in this judgment, the prosecution has proved beyond reasonable doubt that Chief Saiperemor Priye Amaremo intentionally killed Chief Tuomor Obiri (the deceased) at Bulou-Orua village, Sagbama Local Government Area of Bayelsa State on 24th day of November, 2001.”
The learned trial judge after very carefully considering and ultimately rejecting the defence of accident under Section 24 of the Criminal Code put up by the appellant and after having been satisfied that the appellant had not even attempted to put up a defence of insanity, proceeded and convicted the appellant of the offence of murder and sentenced him to death in accordance with the law on 22nd December, 2005.
In exercise of his constitutional right of appeal against his conviction of murder and the sentence of death passed upon him by the trial High Court of Bayelsa State, the appellant appealed to the Court of Appeal Port Harcourt Division by a Notice and Grounds of Appeal dated 31st January, 2006. After giving the appellant a hearing in his appeal, the Court of Appeal in its judgment delivered on 15th March, 2010, dismissed the appellant’s appeal and affirmed his conviction for murder and the sentence of death. The appellant is now on a further appeal against his conviction and sentence by a Notice and Grounds of Appeal dated 28th May, 2010 and filed on 1st June, 2010, containing 5 distinct grounds of appeal from which the following two issues for the determination of the appeal were distilled in the appellant’s brief of argument:
“1. Whether the defence of accident availed the appellant by virtue of the provisions of S.24 of the Criminal Code (Grounds 1, 2, and 3).
2. Whether the essential elements of murder and the guilt of the appellant were established beyond reasonable doubt as laid down by S.138(1) of the Evidence Act (Grounds 4 and 5).”
The learned appellant’s counsel after quoting the provisions of Section 24 of the Criminal Code referred to the case of Nnamah v. The State (2005) 9 NWLR (Pt. 929) 147, where this court defined accidental event as one that is not intended by the actor. It is not foreseen by him and is not reasonably foreseeable. The appellant, according to counsel, is raising his defence on the last leg of Section 24 of Criminal Code for “an event which occurs by accident”, which supports the evidence in chief of the appellant at the trial court where he testified on the event by saying – “Just at entrance of the family compound, as I was walking briskly, I stumbled on a stone and my service pistol fell off from my waist because it was not in the holster, I immediately bent down to pick it up. As I was picking up my fingers touched the trigger and it exploded in quick succession twice, I muzzled up, that is faced the gun up, and removed the magazine and tucked it into my breast pocket and returned the pistol to my waist.”
This evidence which counsel said was not challenged under cross-examination, the implication was that the prosecution had accepted the truth of the contents of the appellant’s evidence, if the case of Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 at 436, were taken into consideration.
What I have to determine in this issue is whether having regard to the circumstances in which the deceased, Chief Tuomor Obiri, met his death in a penetrating through and through bullet wound on 24th November, 2001, the defence of accident was available to the appellant. Section 24 of the Criminal Code in contention reads: “24. Subject to the express provision of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for any event which occurs by accident.”
The defence being raised under this section as clearly stated by the learned counsel to the appellant in the appellant’s brief of argument was limited or confined only to the second leg of the section which deals with the question of whether the appellant could be convicted for causing the death of the deceased which was an event which occurred by accident. Section 24 of the Criminal Code in relation to the part being relied upon by the appellant does not deal with an ‘act’ but with an ‘event.’ The event within the meaning of the section is what follows from an act. See Audu Umaru v. The State (1990) 3 NWLR (Pt. 138) 363 at 370 and Chukwu v. The State (1992) 1 NWLR (Pt.217) 255 at 269. Thus, for an event to qualify as accidental under the section relied upon by the appellant in this case, it must be a surprise to ordinary man of prudence. That is to say, a surprise to all sober and reasonable people. In other words the test is always objective. See Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 at 692 – 693, Aliu Bello & 13 Ors. v. Attorney General of Oyo State (1986) 5 NWLR (Pt. 45) 828 and Iromantu v. The State (1964) 1 All N.L.R. 311, where this court stated the law that where a person discharges a firearm unintentionally and without attendant criminal malice or negligence, he will be exempted from criminal responsibility both for the firing and for its consequences.
In the instant case the defence of accident put up by the appellant is contained in his separate statements to the Police exhibit ‘J’ made on 24th November, 2001, the very day the event occurred; Exhibit ‘A’ made on 27th November, 2001 and Exhibit ‘B’ made on 29th November, 2001 and his evidence in chief where he testified before the trial Court as DW1. In the first statement in Exhibit ‘J’ the appellant said – “I Chief S. P. Amaremo, during weapon check had an accidental discharge that resulted to the shooting of one Chief Tuomor Obiri of Tomobiri Quarters, Bulou-Orua village, a cousin which later resulted to his death as pronounced by a medical doctor at Ugheli.”