Daniel Adeoye V. State (1999)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

The appellant was charged with the murder of one Gabriel Nwosu. He was arraigned before the High Court of Lagos State before Oduneye. J. on 17th February 1994 when his plea was taken after the charge had been read over to him. He pleaded not guilty to the charge. The prosecution, on that date; called two witnesses after whose evidence the trial was adjourned to 10/3/94. On 10/3/94, although the appellant (who was all along in prison custody), was not produced in court. The learned trial Judge, notwithstanding this fact which he recorded in the record of proceedings for the day, nevertheless proceeded with the trial in the absence of the appellant. The prosecution called two further witnesses one of whom (PW3) was a vital eye witness. At the end of the testimony of these two witnesses further trial was adjourned to 7/4/94. At the conclusion of trial, and after addresses by counsel for the prosecution and the defence, the learned trial Judge convicted the appellant of murder and sentenced him to death.

He appealed unsuccessfully to the court below. He has now further appealed to this court upon 7 original grounds of appeal. With leave of this court an additional ground of appeal was added. It reads:

“8. The learned Justices of the Court of Appeal erred in law in hearing and determining the appeal herein when the judgment being appealed against was a nullity.”

The particulars to the ground are omitted.

The appellant, through his counsel, Ademola Akinrele Esqr., filed his brief of argument on 12/12/97. The respondent failed to file its own brief. The appeal was set down for hearing on 18/10/98. In view of the issue raised in the appeal and based on ground 8 above, this court ordered that the original record of proceedings in the trial Judge’s handwriting he produced on or before 18/12/98 and the hearing of the appeal was adjourned to 4/2/99. Before the latter date, the respondent had filed a motion for extension of time to file respondent’s brief and to deem the brief already filed and served duly filed and served. On the application coming before the court on 4/2/99 and not being opposed by Mr. Akinrele, it was granted as prayed.

In the appellant’s brief the following issues are set down as calling for determination in this appeal, to wit:

“Issue I

Whether the courts below were right in law to have failed or refused to consider the defences raised by the appellant on the ground that the said defences were inconsistent and contradictory.

Issue II

Whether the inconsistency in the evidence of the PW2 and PW3 on the one hand and PW7 on the other hand was de minimis or whether it was material contradiction and if it is material, whether the conviction of the appellant is sustainable.

Issue III

Whether in the circumstances of the case, Hajia Rabiu Mohammed was a material witness and as such, whether the refusal and or omission of the prosecution to call her or tender her written statement raises the presumption in section 149 (d) of the Evidence Act and therefore fatal to the case of prosecution.

Issue IV