IN THE COURT OF APPEAL
IN THE ADO-EKITI JUDICIAL DIVISION
HOLDEN AT ADO-EKITI
ON WEDNESDAY, 16TH MAY, 2018
Appeal No: CA/EK/10C/2017
Before Their Lordships:
AHMAD OLAREWAJU BELGORE, JCA
FATIMA OMORO AKINBAMI, JCA
PAUL OBI ELECHI, JCA
LEAD JUDGMENT DELIVERED BY BELGORE, JCA
This an appeal against the judgment of the High Court of Ekiti State holding at Omuo-Ekiti Judicial division in Suit No. HOM/1C/2013, delivered by his Lordship Hon. Justice A. Adesodun on the 21st day of June, 2016.
The two accused persons were arraigned before the High Court at Omuo-Ekiti Judicial division on the 10th day of June, 2014 upon information containing two Courts.
The Statement of offence and particulars of offence contained in the information were:
Count 1: STATEMENT OF OFFENCE
MURDER Contrary to Section 316 (91) and Punishable under Section 319 of the Criminal Code Law of Ekiti State, 2012.
PARTICULARS OF OFFENCE
ADEYEMO SEGUN, BABANIWURA GBOYE FESTUS, and others all large, on or about the 13th day of September, 2011 at Iluomoba-Ekiti in Omuo Judicial Division murdered one Yeti Abubakar.
COUNT 2: STATEMENT OF OFFENCE
MURDER, contrary to Section 31(1) and punishable under Section 319 of the Criminal Code Law of Ekiti State, 2012.
PARTICULARS OF OFFENCE
Adeyemo Segun, Babaniwura Gboye Festus and other at large, on or about the 13th day of September, 2011 at Iluomoba Ekiti in Omuo Judicial Division Murdered one Sikiru Amadu.
Each of the two accused persons pleaded not guilty to the two counts.
The prosecution in support of their case called five (5) within and tendered the following exhibits.
(1) Negative Photographs showing damages done to the Police Station Iluomoba-Ekiti as Exhibit 1 & 1A.
(2) Photographs of the Police Counter showing damages done to Police Station as Exhibit 2, 21-28 wine Exhibit 29 as the Photograph of the Station Office showing injury sustained.
(3) Statement of the 1st accused Adeyemo Segun dated 6/10/2011 as Exhibit 3:02.
Each of the two Accused persons gave evidence is their defence and called three (3) other witnesses.
The following exhibits were tendered by the accused persons in support of their defence:
1. Statement of Iyabo Aroso dated 3rd day of October, 2011 as Exhibit 3:0
2. Statement of Abiodun Oluwatoba dated 7th day of October, 2011 as Exhibit 3:01.
3. Statement of Babaniwura Festus dated 10th day April, 2012 as Exhibit 3.03.
A brief Summary of the facts of the case is that on 13th September, 2011 one Abiodun Oluwatoba (who testified as Prosecution witness 4) a Commercial motorcycle conveyed two Fulani man from Ikole Ekiti. He was taking them to Ijan-Ekiti upon an agreed fare. According to him on getting to the outskirt of Iluomoba Ekiti on their way to ijan Ekiti, he was barricaded by several Okada riders led by the 1st accused (Adeyemo Segun) who was also riding an Okada and forced him to stop, he pounced on him and his two passengers. After beating them to their satisfaction, they took PW4 and his Passengers to Iluomoba Police Station. PW4 claimed he was informed by a Chief at the Police Station that his two Passengers were thieves.
According to PW4 his motorcycle was seized. Shortly thereafter he stated that the 2nd Accused (BABANIWURA FESTUS) came into the Police Station and described himself as king of boys and was being hailed by the Mob.
PW4 stated that the 2nd Accused and his gang ransacked the Police Station. They broke into the Police Cell and brought out the two Fulani men. Then the 2nd Accused smashed the head of one of the Fulani men on the counter who died on the spot.
He was putting on a red T. Shirt. He identified the dead man in Exhibit 2.04. According to PW4 he was bound in Chain, both at the legs and hands. He stated that the 2nd Accused disposed him of his valuables, money, phone and dress. He claimed he was brought out of the cell before being tied up. Then he contacted his people. He made Exhibit 3.01 at Police Headquarters Abuja.
PW1 Asp. Oyeniyi Idowu was the Station Officer at Iluomoba-Ekiti, he confirmed that the Mob attacked the Police Station shortly after the two Fulani men and PW4 were brought to the Police Station. The Mob had wanted to lynch the three men saying that they were armed robbers knowing the town. He quickly called his Divisional Police Officer, who came and address the Mob. The PW1 was able to retrieve men from the Mob and put them in Police cell. Shortly after the Divisional Police Officer had left, the Mob became riotous and surrounded the Police Station, the Mob had gone to the back of the Police Station to attack the cell.
While he went to the back of the Police Station, the mob attacked him. He was hit by an object on the face, and was also hit with a stick on the waist which made him passed out.
He later woke up in the hospital. According to the PW1, the two accused were in the mob. The Mob armed themselves with sticks and other objects. The bench used in the Police station was thrown unto the roof of the Police Station.
He knew the two accused person very well in the town before the incident.
One of the Police men that investigated the case was Abert Adeniyi and testified as Prosecution Witness 2 (PW2). He gave the name of the two deceased as Yetti Abubakar and Sikiru Ahmoch. He knew the 1st Accused, as he was identified as one of the person who killed the deceased persons in their investigation.
They took the Photograph of the deceased in the vehicle of SARS. The bodies were deposited at the morgue in the State Teaching Hospital, Ado-Ekiti, where the Seriki Fulani identified their bodies. Yetti Abubakar was in red T. Shirt and Sikiru Ahmodu in white/black T. Shirt. According to PW2 Iyabo Aroso was at the scene when the 2nd deceased was killed. Iyabo Aroso PW3 the Mother of PW4 testified that she heard her son had been arrested at Iluomoba and was about to be killed. She immediately ran to Iluomoba Police Station.
On getting to the Police Station, she thought it was her son that was being killed, she started pleading that her son was not a thief. She saw the 1st Accused with an axe and a wood which he used to hit the head of the victim when she got there and she shouted. The 1st Accused made attempt to hit her with the axe in his hand, but men prevented him from hitting her. She was taken to the palace of the regent where she claimed 1st Accused hit her with a stone on the head while the 2nd accused flogged her with his belt on her arm. According to her, it was the 1st Accused and the Mob that were beating the victim when she got to the scene. She stated that on 6/7/2014 and 8/7/2014 the 2nd Accused came to her house at Ikole to plead for forgiveness and even gave the child of PW4 N300.
Following a petition received from one Alhaji Rua Magaji by the Inspector – General of Police which was endorsed to the monitoring unit for investigation, PW5 (Sergeant Musa Dauda) and his team swung into action. The Petition alleged that the 1st Accused and others attacked his son Sikiru Ahmodu and Yetti Abubakar. The investigation of the team revealed that the deceased were not armed robbers. 1st Accused was arrested and his statement was tendered as Exhibit 3.02.
They visited the scene and nobody said the deceased robbed them of anything. They said, their investigation revealed a case of malicious damages Murder, Conspiracy and assault occasioning harm. The case file was returned to the Commissioner of Police with directive that others involved in the act be arrested. The 2nd Accused was among those who committed the offence, and effort to arrest him was futile. He was later arrested. The 1st Accused mentioned the name of the Accused in Exh. 3.02. That Exh. 3.02 was not made in desperation. 2nd Accused had problem with a prostitute and the case was reported to the Police, this led to his arrest. It was then discovered that the 2nd Accused was already on the list of person wanted by the Police.
The 2nd accused on the other hand said he knew nothing about the incident. He pleaded Alibi. That he was at Lagos at the time of the incident and only learnt about the incident on Facebook. He admitted being called king of boys.
The witness for the 1st Accused Ayo Friday DW3 said on the day of the incident 1st accused took him to the Police Station to see those arrested as armed robbers terrorizing the Community. He however did not see anybody as they were already in Police cell. He engaged the 1st Accused as rider of his motorcycle.
DW1 Remigius Babaniwura the father of the 2nd Accused testified for the 2nd Accused. He said the 2nd Accused was not at Iluomoba at the time of the incident, while Babaniwura Aderonke the wife of the 2nd Accused said there she and her husband were at Lagos at the time of the incident.
In his final address, learned counsel for the Accused persons urged the Court to discharge and acquit the accused persons as the prosecution has failed to establish the case against the accused person acting so many cases in support of his contention.
In the same vein, the learned counsel prosecuting urged the Court to find the accused guilty as charged and to convince them accordingly. He equally cited decided cases to support his argument.
In delivering the judgment, his Lordship Hon. Justice A. Adesodun raise a sole issue for determination. The issue is whether the Prosecution based on evidence before the court has proved the case against the Accused beyond reasonable doubt.
According to the learned Justice the three (3) element of murder was well proven, citing the cases of STATE V. OGBUBUNJO (2001) FWLR (Pt. 37) 1097 at 1108, UBANI V. STATE (2004) ALL FWLR (Pt. 7191) 1533 at 1546.
The two Accused person were therefore found guilty of the offence of murder as charged and convicted accordingly. Each of the two Accused person is hereby sentenced to death by hanging.
It is against the decision of the High Court, that the appellant has appealed to this Court. Pursuant to the leave of this Court granted on the 16th day of October, 2017, on Amended Notice of Appeal contained four Grounds of Appeal was filed on the 26th day of October, 2017. The four grounds of appeal are-
GROUND 1 (ONE) ERROR IN LAW
The Learned trial Judge erred in law when he relied on the evidence of Prosecution witnesses who are not eye witnesses to the commission of Crime in convicting the Appellant of the offence of Murder.
Particulars of Error
1. The only eye witness was PW3 whose evidence was not corroborated by any other person.
2. The evidence of PW3 before the Court shows that PW3 is a tainted witness having alleged that she was almost killed by the Appellant who in any event did not assault, bear or done any harm to PW3.
3. There was no legally admissible evidence on which the Court could hinge the guilt of the accused person for which reason the Court did not consider the evidence before the Court but decided the guilt of the accused person on hearsay evidence.
GROUND 2 (TWO)
The Learned trial Judge erred in law when he convicted the Appellant of Murder despite the failure of the Prosecution in discharging the burden of proof beyond reasonable doubt as the evidence adduced is insufficient to ground or sustain the ingredient of a Murder charge.
Particular of error
1. It is evidence that the alleged crime for which the Appellant was convicted was not witnessed by any of the Prosecution witnesses, yet the Court convicted the Appellant on the evidence of PW3 without corroboration.
2. The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police discharges the Prosecution of Mandatory burden of proof beyond reasonable doubt in a criminal trial.
3. The evidence adduced by the Prosecution against the Appellant which the Court believed and based its decision no conclusion based on law.
GROUND 3 (THREE) ERROR IN LAW
The entire trial as it relates to the Appellant is a nullity, the trial having been conducted against the Appellant’s right to fair hearing.
Particulars of Error
1. The Law is that the Court is bound to consider any defence offered by an accused person in a criminal trial this, the Court failed to do in this case.
2. The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police make their evidence not reliable and there for liable to rejection in clear breach of law and judicial authorities that an accused person cannot be condemned unheard.
GROUND 4 (FOUR) ERROR IN LAW
The Judgment of the High Court is unreasonable and cannot be supported having regard to the evidence.
Parties filed their respective briefs of argument. In the Appellant’s Brief of Argument, three issues are formulated for determination in this appeal, namely:
ISSUE NO 1.
Whether the Court was right in convicting the Appellant of Murder in the absence of any legally admissible evidence. This issue covers ground 1 (One) of the grounds of Appeal.
ISSUE NO. 2
Whether the Prosecution discharged mandatory burden of proof imposed on it by law so as to justify the conviction of the Appellant for murder. This issue covers ground 2 (Two) of the grounds of Appeal.
ISSUE NO. 3
Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and evidence adduced by his witness. This issue cover ground 3 (Three) of the grounds of Appeal.
The Respondent distilled a sole issue for determination, viz: Whether the Appellant was not properly convicted of the offences as charged by virtue of the evidence adduced and admitted at his trial before the lower Court. (Ground 1).
Issue No. 1
The lower Court was right in convicting the Appellant of murder, based on legally admissible evidence. Issue No. 2.
The prosecution discharged the mandatory burden of proof imposed on it by law and the conviction of the Appellant for murder is justified.
Issue No. 3
The learned trial Judge considered the evidence of the Appellant and his witness. He appraised same and came to right decision. I do not see any reason whatsoever to annul the trial and the convicting of the Appellant.
All the three issues formulated by the Appellant having been resolved against him, this appeal must fail and it is accordingly hereby dismissed.
The decision of the lower Court in charge No. HOM/1C/2013 delivered on the 21st day of June, 2016 convicting and sentence the Appellant is hereby affirmed.
This appeal against the decision of the High Court of Ekiti State, delivered by Hon. Justice A. Adesodun on the 21st day of June, 2016, in charge HOM/1C/2013.
I had the advantage of reading in advance, the judgment just delivered by my learned brother AHMAD OLAREWAJU BELGORE, JCA.
All the issues for determination in the Appeal had been extensively and exhaustively dealt with in the lead judgment.
I have nothing useful to contribute to the well researched reasoning and conclusions arrived at, in the lead judgment. I adopt same as mine and accordingly dismiss the appeal.
I also affirm the decision of the lower Court in charge No: HOM/1C/2013 delivered on the 21st day of June, 2016.
I read in draft the leading judgment just delivered by my learned brother Ahmed Olarewaju Belgore JCA. I agree with the reasoning and conclusion arrived at. There is nothing further that can be said further.
I therefore subscribe that the appeal is not meritorious and must fail. Accordingly, it is hereby dismissed and the decision of the trial Court is affirmed. Appeal dismissed.
Tunde Adeoye, Esq. For Appellant(s)
Gbemiga Adaramola Esq., with him, A. A. Moshood Esq. and O. Y. Bashiru Esq. For Respondent(s)