Adekunle v. State [2006] 14 NWLR (Pt.1000) 717 at 749, per Ogbuagu, JSC:

“Let me observe here that it is becoming very notorious and most disturbing these days when policemen use guns purchased for them with public money and meant for the protection of the citizenry, are freely used to mow down innocent citizens of this country with reckless and careless abandon and in each case or every event, the aggressor policeman is heard to say and rely on “accidental discharge”. Enough, I think, is enough. Unless the courts “put down their feet” so to speak and make it abundantly clear to our policemen in this country that never again will such plea or defense be available to any of them accused of murder or acceptable by the courts, then of course, Nigerians will continuously be sprayed with bullets from the police who will hide on the plea “he was killed by stray bullet” or by “accidental discharge”. I suppose that when a gun is properly locked, stray bullets and accidental discharge syndrome will not occur. Invariably, accidental discharge always occur when some of the drivers are unwilling and refuse to pay the N20.00 (Twenty Naira) or such money being extorted by the police at every check point, (and there are so many on our roads, separated by very short distances). When such drivers refuse to stop, Oh yes, “they must be carrying contraband goods” or some imagined incriminating stuff. This state of affairs, is of common knowledge and it is a notorious fact on our Nigeria roads.”

(2006) LPELR-107(SC).

Notes:

The commonest defence often put forward by police officers when faced with an allegation of murder resulting from the killing of another using firearms is, accidental discharge. By this, the police officer contends that the killing was unintentional and that the bullet which hit the deceased person was only a stray bullet.

The position of the law is that an accidental discharge of a firearm by a person unintentionally and without the attendant criminal malice or negligence resulting in death will not lead to a conviction in criminal trial. See Maiyaki v. State (2008) All FWLR (Pt. 419) 500; Ajose v. State [2002] 7 NWLR (Pt. 766) 302. In other words, where the claim of accidental discharge is proved, the police officer will go scot-free.

However, where the person responsible for the discharge of the firearm is proved to have been reckless or criminally negligent in the process, the defence of accident will not avail or save the person from criminal responsibility.

When is an accidental discharge taken to occur?

The Court of Appeal succinctly answered this question in the case of Andrew Ogboka v. The State (2016) LPELR-41177(CA), per Aboki, JCA, thus:

“It is settled that accidental discharge occurs when a gun discharges or explodes on its own without the bearer operating it. Had it been locked as expected, it would not have exploded and accidental discharge would not occurred.”

The Supreme Court defined “accident” in Umar v. The State  (2014) LPELR-23190-SC as:

“…something which happens outside the ordinary course of events. An event is accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence is so unexpected that a person of ordinary prudence would not be expected to take reasonable precautions against such an occurrence; the act leading to the accident must be a lawful act done in a lawful manner.”

One interesting observation made by the Court of Appeal in Ogboka v State (supra) is that where a person is responsible for a deliberate act, done recklessly or negligently, the person would be liable for the eventual outcome. It is therefore immaterial that the person never desired the result. According to the Court:

“…it is now settled that an accused as in the instant case (Ogboka v State) cannot take refuge in a defense of accident for a deliberate act, even if he did not intend the eventual result.”

It is absolutely disgraceful and disheartening that a policeman would cause the death of any person through recklessness in the handling of firearms and turn around to claim “accidental discharge”. There are numerous reported Nigerian cases on reckless killings by the Police. Hon. Justice Ogbuagu (Rtd) had driven the point beautifully home (as quoted above) when his Lordship remarked that if something is not urgently done, “Nigerians will continuously be sprayed with bullets from the police who will hide on the plea “he was killed by stray bullet” or by “accidental discharge”. Regrettably, some members of the Nigeria Police (especially) and other firearms bearing authorities are yet to discipline themselves in this regard. For instance, the brutality of the Special Anti Robbery Squad (SARS) has been judicially noticed. SARS is one of the sections in the Criminal Investigation Department (CID) of the Nigeria Police, headed by a Commissioner of Police. It is our position that any of them found wanting, at any given time, should be made to face the full wrath of the Law.

The story of the young man killed in Lagos by the Police last Sunday while seeing a live football match (Liverpool v. Tottenham) is horrifying, to say the least. Nevertheless, it is important that full investigation be carried out concerning the incident. The family of the affected man is hereby advised to pursue the case squarely to ensure that justice is done, ultimately.

It is worthy of mention, more importantly, that until the conclusion of investigation in the matter and subsequent prosecution of any person found responsible, it is inappropriate to condemn any body at this time. Social media prosecution and conviction is always discouraged. Notwithstanding, the pressure the influence of social media gives the relevant offices (especially the office of the Inspector General of Police) in critical moments like this is a good one.

Stephen Legal condoles with the family of the deceased and prays the good Lord to grant them the fortitude to bear the irreparable loss and also grant the deceased, a peaceful rest. Amen!