Emmanuel Olabode V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

This is an appeal against the judgment of the Court of Appeal, (Ibadan division) (hereinafter referred to as the court below) delivered on the 26th of March, 2007 upholding the judgment of the High Court of Justice sitting in Ibadan by which the appellant had been sentenced to death by hanging in a charge of murder of one Kehinde Omotanwa contrary to and punishable under Section 319(1) of the Criminal Code, Cap 30, Volume 11, Laws of Oyo State of Nigeria, 1978.

The appellant had been charged before the High Court of Justice sitting in Ibadan for the murder of the said Kehinde Omotanwa (Male) on or about 18th of March 2001 at the New Garage Area, Orita Challenge, Ibadan. After taking his plea, the trial commenced with the prosecution calling five witnesses. The accused/appellant gave evidence but called no witness.

On the 18th of March, 2001, at the deceased’s workshop, at New Garage Area, mechanic under one Adeleke Balogun who testified as PW1, the accused/appellant, a panel beater, poured petrol on the deceased and set him ablaze. Consequently the deceased sustained severe burns all over his body. On seeing that the deceased was burning, the appellant hastily left the scene of the to Adeoyo State Hospital, Ibadan where he was admitted for medical treatment. At a point in time after the incident, the appellant surfaced in the hospital to see the deceased on admission for treatment. There, he undertook, in writing, to be responsible for the medical bill of the deceased, the written undertaking was tendered in the course of the proceedings as Exhibit C, However, the deceased died 14 days thereafter. As I have said, hence the accused/appellant was charged with his murder. After taking evidence of the prosecution witnesses and the only evidence from the defence side who, incidentally, was the appellant himself, and of course, the final addresses of counsel for both sides, the trial Judge, in a reserved judgment delivered on the 31st of October 2002 found the appellant guilty as charged and accordingly convicted him and finally sentenced him to death by hanging. Dissatisfied with the judgment, the appellant lodged an appeal to the court below. After taking the addresses of counsel representing the appellant and the prosecution based on their respective briefs of arguments, the court below, in unanimous decision delivered on the 26th of March 2007 dismissed the appeal while affirming the conviction and sentence passed by the trial High Court. Again, being dissatisfied with the aforesaid judgment of the court below, the appellant has appealed to this court by Notice of Appeal filed on the 20th of April 2007. The said Notice carries four grounds of appeal. Three issues were formulated from the said four grounds for determination by this court, and as set out in the appellant’s brief of argument filed on the 6th of March 2008, they are as follows:

“(1) Whether the Court of Appeal was correct in its conclusion that the arraignment of the accused person was valid having regard to the strict requirements of Section 36(6) of the 1999 Constitution and Section 215 of the Criminal Procedure.

(2) Whether the Court of Appeal was correct in holding that the evidence of PW1 and PW2 was not hearsay and whether the Justices of Appeal were right in treating the incidence of the three eye witnesses as unnecessary for the prosecution case

(3) Whether in the absence of supportive oral testimony by the pathologist, there was reasonable basis for the acceptance by the Court of Appeal of the medical report as sufficiently proving the cause of death”.

The prosecution/respondent for its part identified four issues for determination as set out in the respondent’s brief of argument filed on the 29th of April 2008, they are in the following terms:

(1) Whether the appellant was properly arraigned before the trial court.

(2) Whether the evidence of PW1 and PW2 before the trial court was hearsay.

(3) Whether failure on the part of the respondent to call the pathologist who performed the post-mortem examination on the deceased to give evidence before the trial court was fatal to the respondent’s case.

(4)Whether the prosecution proved its case before the trial court beyond reasonable doubt”.

When this appeal came before us for argument on 26th February 2009, Mr. Kazeem, learned counsel for the appellant adopted his client’s brief of argument filed on 6th March 2008 and the appellant’s reply brief filed and served on the 26th of February 2009 and urged us to allow the appeal. On his part, Mr. Lana, the Attorney-General for Oyo State appearing for the respondent, adopted his client’s brief of argument filed on 29th April 2008 and urged us to dismiss the appeal.

I have had a careful reading of the issues both parties have raised and it is my respectful view that they are all similar. Therefore Issue No. 1 in the appellant’s brief which is similar to Issue No.1 in the respondent’s brief shall be taken together. Issue No 2 in the appellant’s brief which is a replica of issue No 2 in the respondent’s shall also be taken together. Issue No.3 in the respondents brief shall be taken together with issue No.3 in the respondent’s brief for similar reasons. I shall finally take issue No. 4 in the respondent’s brief separately.