Ayo Adegbite V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The Appellant in this appeal was arraigned on an information before the High Court of Ondo State, sitting in Akure, charged with the offence of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Cap 30, Vol. II Laws of Ondo State of Nigeria 1978. The particulars of the offence are that on or about the 7th day of November, 2009 at about 7.00 p.m along Ilu-Abo-Ajegunle Road, within the Akure Judicial Division did murder one Theophilus Afolabi by pouring acid on him. Appellant pleaded not guilty to the charge. During the trial that followed the plea of the Appellant, the prosecution called five witnesses and tendered various documents in evidence which were admitted and marked Exhibits A-O and R. The Appellant testified in person and called five other witnesses. At the end of the trial and in a considered judgment which was delivered on the 27th of February, 2013, Kolawole J found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant’s appeal against the judgment of the trial Court was dismissed by the Court of Appeal

on the 28th of January, 2015. The appeal before this Court is against the decision of the Court of Appeal, Akure Division. The Appellant’s amended notice of appeal dated 29th June, 2015 and filed on the 16th of October, 2015, but deemed filed on the 6th of April, 2017 contains six grounds of appeal.

Parties filed and exchanged briefs of argument. Appellant’s brief of argument settled by Rotimi Aladesanmi Esq of counsel is dated 6th October, 2015 and filed on the 8th October, 2015, but deemed filed on the 6th April, 2017. At page 7 of the said brief a single issue is formulated for determination of this appeal and it reads thus:-

“Whether the prosecution proved its case against the Appellant beyond reasonable doubt, to justify his conviction for the murder of the deceased.”

The Respondent’s brief of argument, settled by Aderemi Olatubora, learned Attorney-General of Ondo State is dated and filed on the 20th September, 2016, but deemed filed on the 6th April, 2017. At page 2 of the said brief a single issue is also formulated for determination of this appeal and it reads thus:-

“Having regard to the quality of evidence led at the trial Court

whether the Court of Appeal was not right to have affirmed the conviction and sentence of the Appellant for the offence of murder.”

Appellant’s reply brief of argument dated 30th September, 2016 was filed on 4th of October, 2016 and was deemed properly filed by this Court on the 6th April, 2017. The sole issue formulated by the parties are similar. I will treat them together.

The facts of this case are simple and straight forward. Theophilus Afolabi the deceased was a resident of Ajegunle. He lived on the same street with the Appellant who he had known very well.

On the 7th of November, 2009 he went to Ilu-Abo a neighbouring village to visit his bosom friend Chief Tayo Falana, alias Teacher. His friend was not at home and so he decided to return home. On his way at about 7.00pm, he was bathed with acid by someone who came out from the bush. He managed to get to the State Hospital Akure where he was admitted for treatment. The following day, being 8th of November, 2009, his wife who visited him at the hospital, said the deceased told her that it was Appellant that attacked him with acid. She reported what her husband told her to the

police who subsequently arrested the Appellant.

In arguing the sole issue for determination of this appeal, learned appellant’s counsel submitted that the prosecution’s case was totally founded on mere suspicion. In a further argument, learned counsel submitted that the failure of the prosecution to call vital witnesses, especially those who came to the scene soon after the attack, including one Ogoja man who the deceased’s wife testified that he helped convey her husband to the State hospital Akure, is fatal to the prosecution’s case. In aid, learned counsel cited Ochiba v State [2011] 48 NSCQR 1 at 32 33; Alake v State [1992] 9 NWLR [Pt. 265] 260;Edoho v State [2004] 5 NWLR [Pt. 865] 17; Igben v State (2015) 8 WRN 94 at 122; Kuda v. State (1991) 8 NWLR [Pt.208] 134 at 147;Odofin Bello v The State [1967] NMLR 1. Still in argument, learned counsel submitted that the issue as to whether it was the appellant who attacked the deceased or not would have been easily resolved if the appellant had been taken to the hospital to hear the deceased’s accusation and to make necessary input to the discussion and/or accusation. Learned counsel accused PW1 of

forging Exhibit E, which is the statement made by the deceased on his hospital bed, as he submitted that the signature the said exhibit is similar to the signature on Exhibit A, the statement made by PW1.