Alhaji G. Salimonu & Anor.v. The State (1972)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
The appellants were charged and tried in the High Court of Lagos State by Odesanya, J., and a twelve -man jury for the murder of one Tajudeen Aremu at Olojowon Street, Badiya, Ijora, on or about the 15th day of December, 1970. They were convicted of the offence charged and sentenced to death. Their appeals to this court against that judgment were dismissed on 3rd February, 1972. We now give our reasons for doing so.
According to the prosecution, Yekini Omotosho (2nd P/W) and Tajudeen Aremu (the deceased) both lived at No. 30 Olodan Street, Badiya in Ijora at the material time. They were half-brothers and were also both butchers. At about four o’clock in the morning of 15th December, 1970, Yekini Omotosho left home for his place of work. Before he left, he told Tajudeen Aremu to lock the door of the room at Olodan Street and meet him later. While walking along Olojowon Street where both accused lived, Yekini Omotosho heard some people shouting “thief, thief” some distance behind him. There was moonlight at that early hour of the morning. As a result, he walked back to where the shouting was coming from. On getting to the place, he saw Alhaji Salimonu (1st accused) in a pair of black pants and Saka Ayinla (2nd accused) also in a pair of pants. Each of the accused was holding a matchet and was attacking Tajudeen Aremu with it while he (Tajudeen Aremu) was shouting that he was not a thief and that he was only on his way to the abattoir where he worked. Yekinni Omotosho asked the 1st accused why he was attacking Tajudeen Aremu. The 1st accused replied that if he had not said that Tajudeen Aremu was his brother he would have cut him up and thrown the pieces into the nearby swamp. He further said that he was not afraid of what the Government might do about the incident. While all these altercations were going on, the 2nd accused was standing by the 1st accused. After the altercations, Yekini Omotosho returned to his house at Olodan Street to report what he had seen to his elder brother named Bashiru.
On his return to the spot, he saw about five persons standing there. Among them was a special constable named Cephas Sablah (3rd P/W) who lived nearby and who was known to both Omotosho and Tajudeen Aremu. Omotosho, in the presence of the 1st and 2nd accused who were still at the scene, informed the special constable that it was the 1st and 2nd accused who had attacked Tajudeen Aremu. The two accused said nothing in reply to this accusation. On the instruction of the special constable, Omotosho then carried Tajudeen Aremu, who was then still alive, to a place at Ijora from where he hired a minibus in which he (Tajudeen Aremu) was carried to the Apapa Wharf Police Station. After a report had been made at the Police Station, Omotosho was given a police land-rover with which, accompanied by some policemen, he took Tajudeen Aremu to the Lagos General Hospital where he was admitted.
When Omotosho (1st P/W) returned to the Hospital later that day to see Tajudeen Aremu, he was accompanied by the 1st accused and one of the policemen who went in the land – rover with him in the morning. At the hospital, they all spoke to Tajudeen; the 1st accused said it was a pity he did not know that the wounds he inflicted on Tajudeen were so serious. Tajudeen Aremu died on the following day, that is on 16th December, 1970. The doctor (4th P/W/) who performed the post morterm examination on the body reported that the deceased had multiple lacerations, one about five centimetres (2 ins) long on the back of his skull, another about nine centimetres long on the right of the forehead extending to the outer angle of the right eye, a third about five centimetres long on the left shoulder, a fourth also about five centimetres long on the left elbow dislocating the elbow joint, and a fifth on the left wrist about four centimetres long. There were also superficial lacerations, two centimetres long, on the left forearm and a superficial abrasion of both shoulders. According to the doctor, the laceration on the right forehead extending to the outer angle of the right eye went deep into the skull splitting the skull and entering the brain and resulting in haemorrhage in the brain. The doctor found the cause of death to be due to the cerebral haemorrhage from the injuries received. He also found that the lacerations were consistent with injuries caused by a sharp instrument such as a matchet.
Cephas Sablah (3rd P/W), a special constable who knew the deceased, his half-brother Yekini Omotosho (2nd P/W/), and the two accused persons before the day of the incident and who, as we have said earlier, lived near the scene of the attack on the deceased corroborated part of the testimony of Omotosho. While he, Sablah was asleep in his house at about 4.45 a.m. on 15th December, 1970, he was awakened by somebody shouting “what have I done, what have I done.” He got up and went to the person shouting. When he reached the spot he saw five persons each in a pair of pants and carrying a matchet. There was also another man lying on the ground in a pool of blood. There was full moon at the time. Two of the five men, he recognised as the two accused persons; the first accused was wearing a pair of blue pants. He also identified the man lying on the ground as Tajudeen Aremu, later deceased.
About two minutes after he arrived at the scene, Omotosho turned up. In Omotosho’s presence, Sablah asked the first accused what was happening. The first accused did not reply. Omotosho, in the presence of both accused and to their hearing, then informed Sablah that he saw the two accused attacking the deceased with their matchets. Omotosho further said that the first accused told him that but for him, (Omotosho) and the Government, he would have killed the deceased. None of those present commented on what Omotosho said. Instead, the 1st accused instructed the other four men with him to go into his house. He also went in. Thereafter, Sablah advised Omotosho to go to Apapa Police Station and report the incident.
The two accused persons were arrested on 17th December, 1970, the day after the deceased died. Pursuant to the arrest, Paul Asuquo (5th P/W), accompanied by Omotosho, the two accused persons, P/C/ John Osigwe (1st P/W) and Sergeant Odigie, went to the house of the accused at 18, Olojowon Street, Badiya, armed with a search warrant (Ex. G). When they arrived at Badiya Village, Omotosho first showed the three policemen the spot where the attack on the deceased took place. On coming to a spot nearby where the sand appeared fresh, P.C. Osigwe (1st P/W) in the presence of the accused dug up the sand. Under the sand thus dug up, were buried, five matchets (Ex. A-A4) some of them with blood stains. They took samples of the fresh sand (Ex. F). The search warrant obtained in respect of 18, Olojowon Street was then executed. In the room of the 1st accused, the police recovered a pair of blue pants with stripes (Ex. “B”). A Collins 1970 Diary (Ex. “C”) was also found in a wardrobe in the room. The entry in the diary for 15th December, 1970, the day of the attack on the deceased reads:-
“Some thieves entered our residence/compound through the fence by 4.30 a.m. and stole away twelve various of clothes valued ‘a347 15/’97 and as we heard their legs sound we ran to the place and they are unknown persons and escaped. And we went to Iponri police Station and reported the incident and police recorded it into Station diary.”
They then searched the room of the 2nd accused where they found a shovel (Ex. “D”) with fresh sand on it. P.C. Asuquo entered all the things recovered on the back of the search warrant. Asuquo Osigwe (1st P/W) and the two accused persons then signed the list. Included in the list are one pair of pants, one diary, one shovel, and the five matchets which they had dug up near the house.
On being charged with the murder of Tajudeen Aremu and after being cautioned, each accused made a written statement to the police. In his own statement (Ex. “H”), the first accused described what happened on that fateful night as follows:-
“On the 15th December, 1970, by 4.30 a.m. some thieves entered my compound at the above address through the back fence. When I heard of their footsteps sound, I said “who is that, who is that” and there was no reply. Then I started to shout “ole, ole.” Later my junior brother Saka Ayinla came from his room. Both of us searched round the premises and discovered that the thieves had stolen away twelve different kinds of clothes spread in the compound overnight…. The said clothes belong to me Alhaji Ganiyu Salimonu. By the time I and my brother Saka Ayinla were out of our rooms the thieves were seen jumping out of the compound through the back fence. The thieves were unknown to me and they all escaped before any attempt could be made to arrest them.
At about 5 a.m. of the same day 15/12/70, I went to Iponri Police Station to lodge the complaint and necessary entries were made in the police station diary and I was asked to go home and that the police will be sent to me later on. As I got to my house, I saw police from Apapa who told me that I am invited to Apapa Police Station and I followed them.
On getting to Apapa Police Station, I was told that I injured somebody and I said no that I did not injure anybody.”
The first accused then went on to describe what the police found during the search on 17th December, 1970, in the statement as follows:-
“During the search, the following items were taken by police, (1) one nylon pant, (2) one 1970 diary, (3) one wrapper from one Ibrahim Kayode’s room and (4) one shovel from my brother’s house by name Saka Ayinla. Five cutlasses (containing blood) were found between my house No. 18 Olojowon Street and No. 20 Olojowon Street, Badiya – Ijora outside my promises.
I am not the owner of the these cutlasses and I don’t know the owner. The pair of pants and the diary are mine ………I don’t know how these cutlasses came to the spot where they were found by the police. I did not arrest any of the thieves and I don’t know them. I did not injure anybody and if anybody says he saw me at the scene of crime, he or she is telling lies.”
In his own statement (Ex. “J”) to the police, the 2nd accused confirmed what the first accused said of how the thieves came to their house on 15th December, 1970, how their efforts to catch them proved abortive, and how the 1st accused later made a report at the Iponri Police station. He admitted that a shovel was found in his room but explained that he used the shovel for clearing “waste and dust” from their house. About the five matchets, he wrote as follows:-
“Police took us to a place where they recovered five matchets which recovery was at the back of our fence. I don’t know the owner of the matchets and I did not know how the matchets manage to get there……………….”
The pathologist’s report (Ex. “C”) showed that three of the five matchets and the pair of blue pants (Ex. “B”) had human blood stains on them. It was reported, however, that the particles of sand on the shovel (Ex. “D”) were not the same as those collected at the spot where the cutlasses were buried.
During the trial, the court, members of the jury, together with the witnesses for the prosecution, the accused, and learned counsel for both the prosecution and the defence, visited the locus in quo before the close of the case for the prosecution.
In his defence on oath, the 1st accused denied matcheting anyone on 15th December, 1970. He also denied having a fight with anyone on that day. He repeated the version which he had previously given in his statement to the police. While admitting that the police found the five matchets (Ex. A-A4) opposite his house, he stated that the pair of blue nylon pants (Ex. “B”) was not his own and was not the one recovered by the police in his room. He then pointed out that the colour of the nylon pants recovered in his own room was white. To questions asked under cross-examination, the first accused replied-
“When I woke up at 4 a.m. I did not go to sleep again until I left at 4.45 a.m. for Iponri Police Station. I did not hear any noise. I did not see Sablah. I heard about Tajudeen Aremu after the arrival of the police. The 2nd and 3rd prosecution witnesses did not see me at all that night. I did not see Omotosho at the police station.
The 2nd and 3rd P/Ws did not see me matcheting that deceased…….The 2nd P/W did not tell the 3rd P/W/ in my presence that I matcheted the deceased. I did not follow anyone to the hospital. I did not say sorry to the deceased as I did not visit him.”
The 2nd accused also confirmed the contents of his statement (Ex. “J”) in the oral evidence which he gave in his defence. He denied stabbing anyone on 15th December, 1970. He admitted knowing the 2nd and 3rd P/Ws but denied seeing them on that day. He denied knowing the deceased. He said that the 2nd and 3rd P/Ws never saw them attacking the deceased. Finally, he admitted that the police recovered a Collins Diary and a pair of nylon pants from their house but said that the pants were white not blue. He also admitted that the five matchets were dug out at a spot outside their house.
In his summing up to the jury after the close of the case of both the prosecution and the defence, the learned trial Judge observed in the opening paragraphs as follows:-
“I would like you to understand that you are under no obligation whatsoever to accept my comments or expressions of opinion on any evidence led before you. My opinion on issues of fact may sometime be of some assistance to you, but you should consider yourselves not bound by such an opinion, because briefly put, your function in this matter and mine can be expressed in one sentence; namely, that the facts are for you and the law for me….. You must accept the law from me and from no other source. But you are the sole judges of what the facts are. It is your responsibility and nothing can relieve you of it, to determine what evidence is to be accepted, what evidence is to be rejected, in other words, whether any evidence is to be believed or disbelieved, this is your exclusive province. So if you like, whenever I express any opinion or make a comment on any facts which is crucial in the case you are at liberty to regard me as trespassing upon your province. You are at liberty to reject the comments, to reject the opinion.”
The learned trial Judge then went on to deal with the burden of proof in a criminal case. With respect to this, he summed up as follows:-
“The burden of proof under our law in a criminal case rests squarely upon the prosecution. It is the duty of the prosecution to prove the case against each accused beyond all reasonable doubt. In other words, you cannot find either of the accused guilty unless you are satisfied by the evidence. To be satisfied, after considering the evidence, you must be in a state of mind in which you can feel sure that the prosecution has established the guilt of the accused beyond all reasonable doubt….. If you think that what you have been told about the infliction of matchet cuts on the deceased (Tajudeen Aremu) by the accused may be true ( I repeat the words ‘may be true’) then your verdict must be not guilty.
It means in that circumstances, the prosecution had failed to prove the guilt of the particular accused whose case you are considering beyond all reasonable doubt. You are not to lump the accused persons together; you are to examine the case against each of them separately. If you are left in any degree of doubt about the guilt of either accused, then the particular accused is entitled to be acquitted; any degree of doubt in relation to the guilt will be sufficient to entitle an accused person to an acquittal……..
Let me repeat my words, if you are left in any degree of doubt about the guilt of either accused, your clear and inescapable verdict must be one of not guilty. There is no half way about it, that is your clear duty – any degree of doubt about guilt, not about pieces of evidence. But here I must warn you that even any degree of doubt about any piece of crucial evidence will make it necessary for you to return a verdict of not guilty. (The underlining is ours).
The learned trial Judge pointed out later, when reviewing the facts as given by both the prosecution and the defence, that:-
“the evidence of the 2nd and 3rd prosecution witnesses is crucial to the prosecution.”
He then directed the jury further as follows:-
“If you accept the evidence of the 2nd and 3rd prosecution witnesses, namely Omotosho and Sablah, then the case for the prosecution is proved. The first accused in his statement to the police, Ex. “H”, claimed the nylon pants Exhibit “B” recovered from his room in his presence and signed Exhibit “R” the Police Form with which the things recovered from the house of the 1st and 2nd accused and one Kayode and the matchets were forwarded to Forensic Science Laboratory, Oshodi. ………………………………..
Whatever you may think about the performance of the 1st or the 2nd accused, whatever opinion you may form about their credibility or their reliability, it is your duty to consider their defence. The one thing which must never be out of your mind for a moment during your deliberation is the very important principle in a criminal trial that the accused is not called upon to establish his innocence. An accused for reasons unknown to the court may lie, he may lie his head off on every point. A performance so terrible does not relieve the prosecution of the duty to prove the guilt of the accused beyond all reasonable doubt. The accused sometimes may decide to say nothing. The duty imposed upon the prosecution by the law remains throughout the case. A liar is not necessarily a murderer.” (The underlining is also ours).
In the appeal before us, Mr. Adesanya who appeared for the appellants complained seriously about the portions of the summing up which we have underlined above. His complaint about the first underlined portion was that the learned trial Judge did not direct the jury about what might be considered ” a piece of crucial evidence. The answer to this is clear from the meticulous summing up in which the learned trial Judge clearly referred to the testimony of the 2nd and 3rd prosecution witnesses (the 2nd P/W actually saw the attack on the deceased while the 3rd P/W arrived at the scene not long after and saw each of the two appellants holding a matchet) as being “crucial to the prosecution.”
With respect to the other underlined portion of the summing up (that is, the portion dealing with the nylon pants) Mr. Adesanya complained of misdirection on the part of the learned trial Judge when he observed that the 1st appellant in his written statement to the police (Ex. “H”) claimed the nylon pants (Ex. “E”) which the police recovered from his room in his presence. Learned counsel then submitted that the nylon pants (Ex. “E”) which the police said they recovered from the room of the 1st appellant was blue with stripes whereas the pair of nylon pants which the 1st appellant admitted in his written statement (Ex. “E”) and in the Police Form (Ex. “R”) was not so described. Admittedly the 1st appellant, in his defence on oath, denied that the pair of blue nylon pants with blood stains on it was the one recovered from his room; he said the one recovered was white in colour. Nevertheless, we are unable to discern any misdirection in the summing up since the colour of the nylon pants which the police recovered was not given in either Exhibit “H” or Exhibit “R”.
In considering the summing up as a whole, we have no doubt in our minds that the learned trial Judge had been more than fair to the appellants. Every point that had been made on their behalf was put to the jury, and put fully and fairly. What learned counsel had sought to do was to criticise a paragraph used here and a sentence used there in the course of a long summing up. As we have pointed out on a number of occasions, this court would not interfere with the verdict merely because phrases in certain sentences had been used ambiguously, or where expressions are not as full, as clear, or as exact as they should have been used.
In the instant case, we were of the view that the learned trial Judge did put the case of each of the appellants adequately, fully, and fairly, to the jury. Learned counsel for the appellants had complained about alleged misdirections in respect of two paragraphs in what was clearly a most comprehensive summing up. Having pointed out that, in the con in which the sentences in these paragraphs were used, there was no misdirection, we were satisfied there was nothing which would justify our interfering with the verdict and the appeal of each of the appellants against the conviction was dismissed.
SC.222/71
