Adetokunbo Oguntolu V. The State (1986)
LawGlobal-Hub Lead Judgment Report
MUSDAPHER, J.C.A.
Before the Akure High Court in suit No. AK/13C/83 ADETOKUNBO OGUNTOLU, the appellant herein and one Femi Ajewole were both charged with the murder of one William Ojo. It was alleged that William Ojo was murdered by both of them on the 3rd day of July, 1982 at Iju in the Akure Judicial Division contrary to Section 254(2) and punishable under Section 257(1) of the Criminal Code of the former Western Region of Nigeria now applicable to Ondo State.
Femi Ajewole who was the first accused escaped from custody and was not apprehended to face the trial. It was only the appellant who pleaded not guilty to their joint charge. The trial then proceeded against the appellant at the end of which he was found guilty for the murder of William Ojo and was sentenced to death. It is against his conviction for the murder aforesaid, the appellant has appealed to this court. There was only one ground of appeal filed with the notice of appeal, however with the leave of this court, the appellant was allowed to amend the grounds by the inclusion of six additional grounds of appeal. The original ground of appeal, that is, the first ground was abandoned and accordingly struck out. In compliance with the rules of court, briefs of argument have been filed for both the appellant and the respondent.
The facts of the case for the prosecution put shortly are: On 2nd July, 1982, Femi Ajewole brought some bags of cement to P.W.3 Adewale Gbadebo’s shop, P.W. 3 suspected that the bags of cement were stolen and refused to buy them, however Femi Ajewole off-loaded the cement and went away. P.W.3 after waiting for sometime went and reported the matter to the Police, and for some reason or the other P.W.3 was arrested and detained by the police. The appellant on the 3rd July, 1982 at about 10.00 a.m. came to the house of P.W.3 and told the inmates there, that he knew the whereabouts of the person who brought the stolen cement to the shop of P.W.3 The appellant volunteered to take the P.W.1 KIKELEMO ADEYEYE and the deceased William Ojo to that place. The three of them entered a taxi and went to Iju where they met the 1st accused Femi Ajewole in his father’s house, Ajewole Otaki P.W.7. P.W.1 did not enter the room where Femi Ajewole, William Ojo and the appellant had some discussions. But a few minutes later, they came out and the appellant and Femi Ajewole asked the deceased and P.W.1 to follow them to a certain place. What took place from there could best be set out by reproducing portion of the evidence of P.W.1.
“..Femi Ajewole, as we went further into the bush, asked if William Ojo was a C.I.D. I said he was not but a worker in the Ministry of Education. The two of them slowed down (that is, the appellant and Femi who were in front) and Femi Ajewole walked up and siezed my scarf and tied it round my face, pushed me on the ground. He held me by the neck and tore my pant. And Ajewole had sexual intercourse with me. 2nd accused on the other hand had knocked William Ojo who was crying for help ….. Femi Ajewole took me near to William Ojo and asked me to lie down. 2nd accused told Femi Ajewole to go for a matchet. Ajewole went for a matchet. At the time the 2nd accused held William Ojo by the throat I was still blindfolded but I could see through the scarf. When Ajewole came with the matchet, Adetokunbo took it from him and cut William Ojo on the head and all over the body.”
The dead body of William Ojo was put aside and covered with some rubbish. The appellant and Femi went away whereupon the witness travelled back to Akure and she later informed the Police. During cross-examination she said William Ojo died even before the matchet cuts as the appellant was holding the deceased on his throat and he lying down and not moving. P.W.7 the father of Femi Ajewole testified and confirmed that P.W.1 and William Ojo accompanied the appellant to his house looking for his son Femi Ajewole, he left them that morning but when he returned at 7.00 p.m., he enquired of his son and his visitors, he learnt that his son had returned but has gone out alone. When he again asked about his son at 2.30 a.m., that is, the morning of the 4th July, 1982, Femi was at the house together with the appellant. When P.W.7 was going to Akure early that morning on his motorcycle, the appellant requested the witness to give him lift to Akure as he was going back. It was before they left that the police arrived and both the appellant and Femi ran away. In his evidence, the appellant confirmed mostly what P.W.1 said but claimed that they were attacked by four friends of Femi and he was very much frightened in his cocoyam farm. He said he did not know what happened to the deceased and the 1st prosecution witness. The appellant had also made two statements to the police.
Learned Counsel for the appellant took ground 2 first. This ground states as follows:-
“2. The learned trial Judge erred in law in convicting the appellant of murder when the cause of death of the deceased is uncertain.
Particulars
The learned trial Judge convicted the appellant as aforesaid when –
(i) the doctor who performed the post-mortem on the deceased was not called to give evidence and no medical report of cause of death was tendered, and
(ii) the only eye-witness account of the death of the deceased as given by the first prosecution witness was contradictory and therefore inconclusive.”
It is true that the doctor who performed the post-mortem did not testify at the trial and that the medical report was not tendered. There is evidence though, that the doctor who performed the post-mortem examination was abroad and his whereabouts unknown. For the appellant, it was further complained that the learned trial Judge was wrong not to have allowed P.W.9 and P.M.O. attached to Akure General Hospital to tender the post-mortem report. In my view, the issue of the tendering of the medical report by P.W.9 never arose during the testimony of P.W.9. The learned trial Judge merely mentioned the impropriety of tendering the post-mortem report through P.W.9 in his judgment but nowhere in the record of proceedings is the issue raised. The evidence of P.W.9 is too scanty in my view to enable either party to put the report in evidence through P.W.9, for example, it is not even proved that P.W.9 could identify the handwriting of the doctor who performed the post-mortem nor is there proof that the witness saw the report nor indeed had the report in her custody at the time she was giving evidence. In any event the comment of the learned Judge in his judgment went to no issue involved in the case before him.
It is submitted that whenever a post-mortem examination is performed as in this case, it becomes imperative to call medical evidence to prove cause of death reliance is placed on State v. Adegbami (1968) N.M.L.R. 347. But in that case, there was no eye-witness to the act causing death, which is clearly different from the present case in which P.W.1 said she saw when the appellant held the deceased by the neck and later used a matchet to injure him. And furthermore in this case, the prosecution had proved and explained their inability to produce the doctor to testify.
It has been held on a number of occasions that it is not an immutable requirement of the law that cause of death must be proved by medical evidence. See Kato Dan Musa v. Kano N.A. 9 (1956) 1 F.S.C. at 25. Akpan v. The State (1972) 4 S.C. 6. All that is required to be proved is that the death of the deceased was the direct result of the act of the accused to the exclusion of all other reasonably probable causes. R. v. Nwokocha (1949) 12 W.A.C.A. 453; R. v. Owe (1961) 12 A All N.L.R. 680.
It is further submitted that because, of the impression created by the evidence of P.W.1, during the examination-in-chief that the deceased had died from matchet cuts and during cross-examination when she contradicted herself when she categorically said the deceased had died by strangulation even before the matchet cuts were inflicted makes her testimony unreliable as to the cause of the Death of the deceased. In the learned Counsel’s view what was it that caused the death of the deceased, was it strangulation or was it as a result of matchet cuts?
In my view, the witness was quite categorical that the appellant had knocked down the deceased and had held him by his throat and he died before the matchet cuts, the impression said to be created by the witness that the deceased was killed by the matchet was only borne out by the questions she was asked. The cases of Sunday Archibong v. The State (1972) 10 S.C. 37 and that of Mamman Bande v. The State (1972) 10 Sc. 79 are clearly distinguishable from the facts in the instant case. In those cases, the deaths were not instantaneous and there were doubts as to the causes of the deaths. I can find no material contradiction in the evidence of P. W.1. So this ground of appeal fails.
Ground 3 was argued next. In it, the learned Counsel submits that the learned trial Judge was wrong to have convicted the appellant, when the appellant was not shown to have any motive for murder. The appellant had nothing to do with the stealing of the cement and even P.W.3 did not mention the appellant. It is submitted that it was rather Femi who had motive and according to P.W.1 wanted to kill her and not the appellant. “Motive” is usually the reason for an act or omission, that is what impels one to act, for example, ambition, love, fear, jealousy, envy etc all of which are generally speaking, irrelevant and of no importance in so far as criminal liability is concerned. Nevertheless Section 9(1) of the Evidence Act says any fact showing the existence of a motive is a relevant fact as tending to show that a person did the act alleged against him, see Jimoh Ishola v. The State (1978) 9 and 10 S.C. 81 at 104. But where the conviction for an offence is sufficiently supported and proved by the evidence as a whole, it is no answer or defence to say that no motive has been shown. See John Bamgboye v. A. -G. Western Nigeria (1966) N.M.L.R. 266. This ground is misconceived and is devoid of substance and it accordingly fails.
The appellant’s complaint as per ground 4 is that:-
“The learned trial Judge erred in Law and in the facts in convicting the appellant without properly evaluating the evidence.
Particulars
Proper evaluation of the evidence would have shown that the account of the appellant as to what had happened made more sense than that of the 1st prosecution witness whose account as to-
(a) why she and the deceased went into the bush,
(b) the death of the deceased, and
(c) how and why she was left and allowed to escape were most unconvincing.”
The submission of the learned Counsel for the appellant dwelt on the critical examination of the evidence of P.W.1 and claims at the end that the Judge was wrong to have preferred her evidence to that of the appellant. In my view, the Judge had adequately evaluated all the evidence before him. He had compared and contrasted the entire evidence before he held in his judgment, see page 36 from line 19 thus:-
“I do not believe the accused when he said Femi Ajewole took permission to go and collect the keys with which he would open some doors …. ” and later “…… .I disbelieved the evidence of the second accused as to the emergence of three other people at the scene on the fateful time. I prefer the account of P.W.1 that only the two accused men the deceased and herself, were present in the thick bush.”
And further again, “….. I believe that she could still see what was happening to the deceased even though she was being raped ….. ”
It is clear from the foregoing that the Judge himself critically examined the evidence of P.W.1 and preferred her version of what happened in that bush to that of the appellant. These are findings of fact by the Judge who saw and watched the demeanour of the witnesses testifying before him. An appeal court will not interfere with trial Court’s finding of fact unless it can be shown that the finding is perverse or cannot be justified having regard to the evidence led. I have myself carefully read the evidence and the judgment, and in my view, the Judge had adequately evaluated the evidence and he was justified in accepting as the truth the evidence given by P.W.1. This ground of appeal is also misconceived.
Ground of appeal number 5 states:-
“The learned trial Judge erred in law in relying heavily on what he observed at the locus in quo when such observations were not supported by any note recorded on the visit or thereafter.”
The particulars supplied amount to only a repetition of the ground. While it is true that where a Judge visits the scene of a crime, and if the observations made thereon are to be used in arriving at any decision, the Judge ought to make notes of such observations in the record of proceedings because an inspection of a locus, is as much a part of the entire proceedings in any suit and the rules of evidence apply equally to such inspection as to any other portion of the proceedings. In the instant case, finding of fact have been based on the observations at the inspection and the records are conspicuously silent as to the observations. See Bello v. Kassim (1969) 1 N.M.L.R. 148.
But one may ask what the nature and the effect such observation had on the main case – are they really crucial to the finding of the guilt of the appellant? Or to put it in another way as suggested by the learned Counsel for the appellant. Had the Judge in reaching his verdict heavily relied on those observations? The findings based on the observations are as follows:
(1) “The bush where P.W.1 and the deceased found themselves was a dead end. From my observations, the distance ahead was a thick jungle where no glimmer of light could be seen.”
“I observed from my visit to the scene that the spot lay about half a kilometer from the nearest habitation and in a thick jungle.
However loud anyone might have shouted, people in the nearest house could not have heard.”
(3) “Further on and within the radius of another kilometer, no house or habitation of any type could be seen or imagined, and
(4) “I do not believe the accused when he said that Femi Ajewole took permission to go and collect keys with which he would open some doors. Not even the most idiotic of a man would be deceived that any habitation could be within the site in that jungle.”
In my view, non of these findings including number 4 are of any consequence to the case before the court. The learned trial Judge said earlier in his judgment that he believed P.W.1 when she said she saw the appellant strangulating the deceased. If one expunges all these findings as based upon observations at the locus from the record, there are other sufficient evidence on which the appellant could be found guilty. Furthermore, I do not believe that these findings had in anyway contributed to the crucial finding as to the guilt of the appellant for the murder of William Ojo. Although, the Judge acted irregularly by not recording his observations on the inspection at the locus, in my view, such irregularity occasioned no miscarriage of justice in this case and the finding of guilt was arrived at through independent evidence and was supported by other evidence apart from the said observations.
Next for the appellant, ground six was argued. The ground states:-
“6. The learned trial Judge erred in law in relying on the statements (Exhibits M and M1 and Exhibits N and N1) when these should not have been admitted in evidence.”
It is submitted that the translator into English for Exhibit M and N was not sworn in and that there was improper jurat which did not show that the appellant had understood before signing.
With the greatest respect to the learned Counsel, this ground too is utterly misconceived. The exhibits were tendered and Counsel did not object to their tendering, he cannot now complain that they are inadmissible. Statements of accused persons made to the police are relevant and admissible when they are shown to have been made voluntarily as in this case. The Judge was justified to use them. The testimony of the appellant that he was forced to sign the statement came too late in the day and if any objection as to their admissibility was ever intended to be raised, it should have been raised when the statements were first tendered. In my view, there is no merit in this ground and it accordingly fails.
Ground of appeal number 7 states –
- “The learned trial Judge misdirected himself on the facts when he made the following findings of facts.
Particulars of Misdirection
(a) The learned trial Judge held “the two accused persons lured P.W.1 and the deceased into a jungle about half a kilometer from human habitation under the pretext that some stolen bags of cement of which a brother -in-law of P.W.1 had been accused of being in possession were left by the 1st accused in a house in Iju hush.” Infact there was such evidence, the available evidence led by P.W.3 (the said brother-in-law) being that the Police took away 13 stolen bags of cement.”
(b) the learned trial Judge found “2nd accused held the deceased firmly by the throat until he became helpless and slumped.” Infact there was no such evidence.
(c) the learned trial Judge found “the life of P.W.1 must have been saved by 1st accused to compensate for the animalistic he had on her apart from the fact that this is pure speculation, there was no evidence that the 1st accused saved the life of P.W.1.
(d) the learned trial Judge found “the cause of death of the deceased is not in dispute. Infact for the reasons already given in ground one hereof, the cause of death was far from certain.
(e) the learned trial Judge found “if there was any life left in him after he had been strangled, 2nd accused achieved his purpose in the very presence of P.W.1 by dealing matchet cuts on the deceased.” When there was no evidence of strangulation. Infact the evidence was that the deceased was matcheted to death.”
I cannot myself having read the evidence find any misdirection in all these findings for the learned Judge is entitled to draw reasonable inferences from the evidence before him. In evaluating the available evidence the Judge is not bound to use the actual words of the witnesses as recorded by him. I can see nothing wrong with the Judge’s interpretation of the evidence before him and from the facts accepted by him, the learned trial Judge reached the correct conclusion. This ground of appeal is also devoid of any merit.
Before I part with the judgment, there is a matter which requires some consideration. It is submitted by the learned Counsel for the appellant that since it was only the appellant that stood trial for murder under an information charging both himself and Femi Ajewole and the name of Femi Ajewole was struck out of the charge at the end of the trial, the whole trial was therefore a nullity. This, admitted the learned Counsel, is not one of his grounds of appeal but he submitted that by this defect the trial was void and was incurably void, and he urged us to invoke our powers and declare the trial a nullity.
The appellant’s Counsel tried to make a big storm out of this. It was not alleged that the charge was inadequate or misleading or in any way capable of causing miscarriage of justice or that indeed, the absence from the trial of Femi Ajewole had caused any miscarriage of justice to the appellant. In the case in hand, I can find no ground or reason for saying that there is any grave defect or that the appellant has suffered in anyway because of the way the charge is framed. So far as this appellant is concerned the procedure was regular. All the evidence adduced at the trial, in so far as it affected him, was undoubtedly admissible against him and would have been equally admissible against him if only his name alone had appeared on the charge. In these circumstances, I do not agree that the trial is a nullity.
In the result, all the grounds of appeal argued having failed, this appeal must also fail. And it is hereby dismissed by me. The conviction and sentence of the appellant by Adeloye, J. as he then was on the 25th May, 1984 is hereby affirmed.
Other Citations: (1986) LCN/0019(CA)
