Adelakun Ayinde & Ors Vs The State (1972)

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B. A. COKER, J.S.C. 

The appellants were four of eight persons charged with the murder on the 8th August, 1968, at Igbokele of one Olubodun. They were tried by the High Court, Ibadan, (Craig, J.), convicted of the offence as charged and sentenced to death. The 1st appellant, Allen Kolawole, was the 2nd accused in the High Court. The 2nd appellant, Ezekiel Ipadeola, was the 8th accused in the High Court.

The 3rd appellant, Salawu Alao, was the 6th accused in the High Court. The case against the accused persons was that on the 8th day of August, 1968, they were in the company or gang of rioters who were siding with the Bale of Sagbo in the land dispute between him and the Alado of Ado-Awaiye; that on the day named in the charge the rioters, including the appellants, were all armed with various types of lethal weapons such as cudgels, sticks, cutlasses, etc., that whilst one Olubodun (later deceased) and some of his colleagues siding with the Alado of Ado-Awaiye went to work in their farm at Igbokele, near Iseyin in the Ibadan Judicial Division, they were severely attacked by the rioters with the weapons they were carrying and that in the attack they had killed Olubodun.

The corpse of Olubodun was not seen and indeed has not been seen but there was evidence from the mother of Olubodun (Comfort Folashade, the 1st P.W.) that she saw her son last on the 8th August, 1968, when he was going to his farm at Iseyin and that she had not seen him again despite her search. There was also evidence from one Amos Olajimi (3rd P.W.) that he was in the company of Olubodun and others of  his colleagues when they were attacked by the appellant, the 8th accused, i.e. 2nd appellant, Ezekiel Ipadeola, leading the onslaught. He testified that the members of his party were severely beaten-up in their farm and that whilst some of them escaped and ran away others of them, including the witness, were unable to do so as they had been severely injured. Those injured were subsequently carried by the appellants to the main road from the farm and precisely to a spot where there were some rocks. This witness further testified that Olubodun was later brought out to the site of the rocks but that at that time he was already dead. He testified on this point as follows:-

“After they had deposited Olubodun on the road, they left us there on the spot and went away. When they returned, one of the crowd lifted his arm, and it was lifeless, he did the same thing to the leg, and it was limp. I then told them that Olubodun was dead.  One of them said that Olubodun was not dead and that he was merely tired.”

Another of those beaten-up and deposited at the site of the rocks was Lamidi Ajetunmobi (4th P.W.). He identified the appellants as members of the gang that attacked them on the day in question in their farm at Igbokele.  He said that as the accused persons arrived in a riotous manner he stood up to them and asked them what they wanted and that they replied that they had come to fight them as the cocoa-farm where they were working belonged to them.  He continued:

“It was one Gbolagade, Bale Sagbo’s son was the one who answered my questions. He said that the crowd should beat us up and he was the first to hit me with a stick. After this, all the others started hitting me, If I ran in one direction, they would hit me, if I went in another direction, they would hit me, and they all continued to beat us in this fashion. After they had beaten us soundly, they all left. When the crowd left, only three of us remained at the scene of the fight, Amos Olajimi, Olubodun and myself.  The three of us were in pain and we were shouting and writhing in agony. Olubodun was crying in pain.  He was saying, “I am dying, I am dying.”  The fight happened at about 10. 00 a.m.”

He stated further that, the gang then went away but returned later in the evening and that by that time Olubodun was already dead. He described how Olubodun died as follows:-

“By this time Olubodun had died. When he was going to die, he breathed heavily and said I end my life here.”

The same story was told by Gbadamosi Oni (5th P.W.) and one of the friends of Olubodun. He confirmed that the Igbokele farm was part of the land on which there was a dispute between the Bale of Sagbo and the Alado of Ado-Awaiye. Isaiah Idowu (7th P.W.) who also went in company of Olubodun to the farm on that day, gave evidence to the same effect.

In the course of time the Police arrived at the scene and effected the arrest of the appellants. Later, they all made statements to the Police and at their trial they gave evidence in their own defence. In his statements to the Police, produced in evidence as Exhibits 5, 6 and 7, the 1st appellant, Allen Kolawole, stated that at about 9 a.m.on the 8th August, 1968, a number of villagers carrying “cutlasses, baskets and some other weapons” went with Oyebanji, the Bale of Onikaninkanin village, to the farm at Igbokele and that when they returned in the evening they complained that at the farm they had fought some Egba farmers; none had told him that anybody was killed in the course of the fight and that in any case he was sick on that day and so was excused by the Bale from going to the farm with the other members of the Bale’s party. He further stated that on the following day he was arrested by the Police whilst in the company of his wife at the “motor-park, Iseyin, waiting for the lorry going to Ibadan.”  

In his testimony in court he said much the same thing but tried to retract his references to the names of other accused persons. The 2nd appellant, Ezekiel Ipadeola, also made a statement to the Police. This was admitted in evidence at the trial as Exhibit 12 (English translation Exhibit 12A). In that statement, he said that on the 8th August, 1968, and in obedience to the Bale’s summons, the villagers, including himself, assembled in the village square and there they were addressed by the Bale of Sagbo “that we should all go to Igbokele cocoa-farm to fight with the Egbas.” He stated further as follows in the statement:-
“When we were going we were all holding cudgels. When we got there, we started fighting. Three out of the Egbas we fought were wounded.  When we saw that they were wounded we carried them to the main road. I was one of the people that carried them to the main road. After we had carried them to the main road, we left them there and we all left for our village. Later we came back again to the spot we left the three men and we carried two of them to a rock, behind Anglican School, Igbokele, for treatment. The reason why the third man was not taken to the rock where we took the two men to was that we discovered that he had died. When we discovered that the man had died, myself, Laye, Idowu, Lasisi and others who I cannot remember their names left for where the other two wounded persons were kept, to treat them.”

At his trial and in the course of his testimony he denied having gone to the Igbokele farm; he denied having fought any Egba farmers and he denied having voluntarily made any statement in the fashion of Exhibit 12 (or 12A).  He stated that it was a policeman (P.C. Lana Ladejo, 8th P.W.) who had written out the statement Exhibit 12 and forced him to thumb-impress it. He said he had all along been living with his father at Ikereku village in Ibadan district and that indeed on the 8th August, 1968, he was living there. Similarly the 3rd appellant, Salau Alawu, made two statements to the Police. They were admitted in evidence as Exhibit 8 (English translation Exhibit 8A) and Exhibit 9. In those statements he said that although he heard the village bell summoning the villagers to a meeting, he remained in his house and went nowhere on the 8th August. He further stated that later he heard that there was fighting between the Ibadans and the Egbas and saw men, women and children running helter-skelter. He then got hold of his bicycle and departed from the village. In his evidence at the trial he told the same story. The 4th appellant as stated before, was the 6th accused in the High Court and his name is Asiru Ajani. He too made a statement to the Police after, according to him he was arrested by 6 Egba farmers at Ogbolasa Village and taken to the Police Station at Iseyin. His statement was admitted in evidence as Exhibit 10 (English translation Exhibit 10A).  In that statement, he said he was one of the gang of villagers from Onikaninkanin village that had attacked Egba farmers at Igbokele farm on the 8th August, 1968. He stated further:-
“When we got to the farm where the Egbas were working, we could only lay hand on three of the Egbas, the rest ran away. There we started quarrelling with them……… When we were beating those three men, they fell down and could not move again…….. On the day of the incident, the whole of us were holding sticks which we used in beating the three men. When the three Egbas were mercilessly beaten and could not stand up they were carried to the main road………..I was among the people that carried the three men to the main road………. After some time, we all came back to the main road where the three Egbas were lying and discovered that one out of the three men had died. We were about 200 persons that went there…..When we discovered that one person had died we carried the remaining two behind Anglican School, on a rock where we treated them with hot water……As we were treating these two men, Banji and some people who I do not know their names and I cannot identify them if I see them, left us at the rock where the two men were lying and went and carried away the dead person to an unknown place.”

At the trial, and in the course of his evidence, he tried to resile from that statement. He said that all he had told the Police was that he knew nothing about any fight having taken place at Igbokele on the 8th August, 1968, and certainly that he did not take part in any such fight. He stated that on the day of the offence, he was at Salami Village some two miles to Onikaninkanin village.

The learned trial Judge who saw and heard the witnesses concluded that Olubodun was indeed dead although his body or corpse was not accounted for by the prosecution at the trial. He found that each and every one of the appellants was a member of the riotous crowd that attacked the Egba villagers working at Igbokele farm on the fateful day and of whom Olubodun, now deceased, was one. The learned trial Judge also found that the statements ascribed to the appellants were indeed voluntarily made by them and that those statements represented their free expressions of their recollection of what they did at a time when the stories must be freshest in their minds. He accordingly convicted them as charged and sentenced them accordingly.

They appealed to the Western State Court of Appeal against their conviction and their appeals were dismissed. They then appealed to us in this court and the principal points of complaint were that:-

(i) the corpus delicti was not found and it was therefore unsafe to convict the appellants of the murder of Olubodun; and

(ii) the evidence which the trial Judge had accepted must be regarded as non-cumulative and inconclusive inasmuch as all the principal witnesses were members of the same community.

Although learned counsel made futile attempts to disparage the evidence in support of the corpus delicti we were convinced that he did not succeed in doing so. There was abundant and reliable evidence as to the fate of Olubodun. His colleagues who were as well assaulted by the appellants saw him die and indeed one of them, Lamidi Ajetumobi (4th P.W.) heard him say that he was ending his life “on these rocks.” On this point the learned trial Judge directed himself thus:-

“The law as regards the absence of a corpus delicti is that a court may still convict an accused person of murder even though the dead body cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed.

See Criminal Appeal Reports 1. In the case of Joseph Ogundipe & Others v. The Queen 14 WACA 485, one Apalara, a moslem preacher, was attacked by a group of persons and carried into a house at Tapa Street. Thereafter, he was not seen again. But on investigation, human blood was found leading from this house into the Lagoon. The men were convicted of murder, and on appeal, the West African Court of Appeal held that there was sufficient circumstantial evidence to show that Apalara died from the injuries inflicted on him.”
He then reviewed the evidence of the witnesses who stated that they heard Olubodun die and concluded as follows:-

“On the overall evidence, I am satisfied that the prosecution has from the evidence of the 3rd and 4th P.W.s sufficiently established the death of Olubodun and I find that he died soon after he was carried to the main road.”

Indeed, the confessional statements of both the 2nd and the 4th appellants confirmed that Olubodun was dead.

We call to mind that this point was raised by the appellants in their appeal to the Western State Court of Appeal and that court saw no reason to disturb the findings of the learned trial Judge thereon. We thought ourselves that the learned trial Judge properly directed himself on the law concerning the corpus delicti, that that direction postulated that there must be sufficient and compelling evidence pointing to the death of the deceased, that in the case in hand there was such evidence and that the learned trial Judge was right to conclude on the evidence in this case that the death of Olubodun on the day named in the charge was established.

As stated before, it was also argued before us that the evidence accepted by the learned trial Judge as an eye-witness account of the murder of Olubodun was non-cumulative and of doubtful probative value. The case for the prosecution was that Olubodun, one of the farmers who went to their farm together at Igbokele, had died as a result of an attack on them in that farm by a gang of rioters including the appellants. In those circumstances, it may as well be accepted that the only persons who witnessed this incident were the same farmers and those who by the action of the appellants were rendered incapable of escaping and were still alive and still able to tell the story of what they had seen and heard in their farm on that day. If, as indeed it happened, the court accepts that story, the probative value of their evidence must be judged against their credibility and if they are severally credible or found to be so, their evidence is clearly acceptable and would support a conviction where such evidence is sufficient. The learned trial Judge himself was conscious of the need for care in this respect and concerning this aspect of the case he commented as follows in the course of his judgment:-

“I would however agree with the learned counsel for the defence that in assessing the credibility of the four eye witnesses, one should give the consideration to the background of the whole case. For example, one of the witnesses admitted that because of the land dispute, he regarded all the Sagbo side as their enemies and another said that if he had his way, he would arrest all the villagers at Onikaninkanin for the murder of Olubodun. In these type of cases there are bound to be some exaggerations, but if witnesses deliberately set out to be untruthful, the duty of the court is to disregard such evidence. For the purpose of this case, however, the background notwithstanding, I will accept or reject the evidence of all the witnesses (be they for the defence or for the State) from what I have observed and what impression I formed whilst they gave evidence; for, it is my view that in spite of the bitterness between the parties, it is still possible for the witnesses to speak the truth about what they had seen and heard.”

In arguing this appeal before us learned counsel for the appellants had drawn our attention to a decision of the West African Court of Appeal in R. v. Thompson U. Essien (1938) 4 WACA 112. We have read this decision and it is sufficient to observe that whilst the learned trial Judge in that case did not, in the present case the learned trial Judge did specifically, advert to the possibility of the whole evidence having been tailored by the witnesses to meet the case. We thought, in agreement with the learned trial Judge in this case and the Western State Court of Appeal, that it was open to the judge to conclude that the eye-witnesses were credible and reliable witnesses and to accept their evidence.

In these circumstances all the grounds of appeal argued on behalf of the appellants failed and we dismissed the appeal at the hearing.

Other Citation: (1972) LCN/1484(SC)