The appeal herein emanates from the dismissal of the Appellant's appeal by the Court of Appeal, Benin Division on 8th April, 2004. This was sequel to his conviction and being sentenced to death for the murder of one Godspower Edeha by the Delta State High Court sitting at Asaba coram: Umukoro, J. on 26th September, 2001.

The facts of the case briefly stated, are that the Appellant, a Police Sergeant attached to the Marine Division, Nigerian Police, Asaba, Delta State on 21/5/01 was one of the Police officers engaged in operations against armed robbers terrorizing Asaba township. That the Police after successfully arresting some of the suspected armed robbers at two hotels, the Divisional Police Officer (DPO) who testified in the trial Court as 1 OPW, led some of the Police officers including the Appellant to No. 12B Oritshe Street Cable Point, Asaba in search of one "Nonso" a suspected notorious armed robber who recently escaped from Police custody and was suspected to be at that address that night.

Unknown to 10PW, the DPO and his men, Nonso and his brother, Ibe, had only two weeks earlier, moved out of the premises which belonged to their late father 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 the premises that night, they knocked at the door of the apartment which they thought was Nonso’s but 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.

Still believing foolhardily that the man inside was Nonso, as he refused to state that he was not Nonso, and he was not prepared to open his door even after firing warning shots into the air, the Police officers forced the window open and fired tear gas inside the apartment. The man still did not open the door but instead was warning the Police officers to leave or else he would kill any Police officers who dared to come inside with the cutlass he was holding.

The Appellant summoned courage and jumped into the apartment through the window but the man who had been talking to the Police officers had quickly moved into the bedroom and locked it up. After over two hours, the Appellant, in an effort to incapacitate the deceased and effect his lawful arrest, fired a single shot from a rifle (Exhibit "E") at the downward end of the bedroom door in order to gain access and effect his arrest, but the gunshot turned out to be fatal. When the Police officers brought out the deceased from the apartment, it dawned on them that the deceased was hit in the abdomen and that he was not the notorious "Nonso" who they were in search of.

The Appellant's trial ended in his conviction and sentence to death by hanging. His conviction and sentence were affirmed by the lower Court. Dissatisfied with the decision of the lower Court, the Appellant appealed to the Supreme Court.