Adebayo Adetola Vs The State (1992)

LawGlobal-Hub Lead Judgment Report

U. OMO, J.S.C.

The appellants are three of the six persons who were charged in the Lagos High Court on three counts of conspiracy to commit armed robbery, armed robbery and murder, contrary to sections 402(1)(a), 403 and 319(1) of the Criminal Code of Lagos State.

Whilst the three appellants were convicted of the murder of one Muyili Tijani, a security man, and of the lesser offence of robbery contrary to section 402(1) of the Criminal Code; the 4th to 6th accused were discharged of the crime of murder, but convicted of robbery simpliciter and sentenced to 21 years imprisonment. The charge of conspiracy was withdrawn and struck out. All of the accused except the 4th accused, appealed against their conviction to the Court of Appeal where their convictions and sentences were affirmed, except for the 5th accused whose appeal was allowed. It is against this judgment of the Court of Appeal that the appellants have appealed to this Court.

The case fur the prosecution in the trial Court is that the three appellants were part of an armed gang which forcibly invaded the house of Mrs. Jumoke Oshodi at Gbagada on the night of 11/12/82, led by the 1st appellant. Whilst there, they robbed the inmates of the house of various household items and some cash, and in the process murdered Mrs. Oshodi’s nightguard- Muyili Tijani. P.W.1 and P.W.3, who lived in the premises, gave eyewitness account of the robbery and identified the six persons charged as part of the murderous crowd with the help of illuminated globes at the four comers of the house and other bright lights outside. They specifically identified the appellants as the persons who killed the deceased night guard.

All the accused persons gave evidence in their defence, denying the offences charged. Most of them pleaded alibis and some called witnesses in support of their plea. The 1st accused/appellant “charged” P.W. 1 (the complainant) with being a tainted witness.

The learned trial Judge in his reserved judgment largely believed the evidence of the prosecution, rejecting the defences of alibi arised. The eye-witness accounts of P.W.1, and P.W.3 were believed. Consequently the accused persons were found guilty as stated earlier in this judgment.

The three appellants to this Court filed briefs in support of their appeals. In those of the 2nd and 3rd appellants, after stating the facts and history of the case, counsel stated they had nothing to urge in favour of the appellants and called for the unequivocal affirmation of the judgments of the trial court, and the Court below. Only the 1st appellant filed a brief of argument challenging the decision of the Court below, and urging this Court to allow his appeal and set aside the judgment of the court below.

Four issues for determination are set out in the brief of the 1st appellant as follows:-

“1. Whether P.W.1 and P.W.3 are tainted witnesses in this case.

2. Whether the Justices of the Court of Appeal were right in holding that the defence of ALIBI raised by the Appellant was demolished by the evidence of P.W.1 and P.W.3.
3. Whether the contradictions in the evidence of P.W.1, P.W.3 and P.W.7 vitiated the Appellant’s conviction for robbery and murder.
4. Whether the offences of armed robbery and murder were established against the appellant when the cause of death was not conclusively proved by the prosecution.”

The respondent in its joint brief raised five issues for determination, thus:-

“1. Whether PW 1 and PW3 were tainted witnesses.

2. Whether the defence of alibi was available to the 1st appellant.
3. Whether there were material contradictions in the case of the prosecution.
4. Whether the prosecution proved the cause of death of the deceased.
5. Whether the case was proven against the 2nd and 3rd appellants.”

Both the 1st appellant and the respondent are agreed on what is the first issue which I will now proceed to consider.The complaint of the 1st appellant here is very succinctly put by the respondent in it’s brief thus:-

“The main thrust of the argument of the 1st appellant in this respect is that PW1 was ‘nursing grudges’ against the 1st appellant which grudges made the 1st PW a tainted witness. It is the contention of the 1st appellant that PW1 approached the 1st appellant to sell his land to PW 1’s friend which offer the 1st appellant turned down. It is concluded by the 1st appellant therefore that as the 1st appellant failed to sell his land to PW 1’s friend, PW 1 maintained grudges against the appellant which grudge coloured her evidence.”

In the course of his oral submission on this issue before us, learned senior counsel for the 1st appellant was asked