Momodu Oladele & ORS V. The State (1972)

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FATAYI-WILLIAMS, J.S.C. 

On the 5th January, 1970, Momodu Oladele (1st accused), Jimoh Ajao Amoo, alias Olojukan (2nd accused), Jimoh Atanda Atufata (3rd accused), Salami Akanji alias Onimoto (5th accused), and Asifatu Ishola (6th accused), were convicted of murder contrary to Section 254 of the Criminal Code of the Western State of Nigeria and sentenced to death by Aguda, J., in the Ibadan High Court in Charge No. I/15C/69. Ezekiel Oyebanji (4th accused) having been found not guilty was acquitted and discharged. Earlier, the Larned trial Judge, at the close of the case for the prosecution, had ruled that no prima facie case had been made out against Jimoh Adisa (7th accused) and had discharged him pursuant to the provisions of Section 286 of the Criminal Procedure Ordinance.

With the exception of Salami Akanji, alias Onimoto (5th accused) whose appeal was allowed and whose conviction was thereupon set aside, the appeals of the others to the Western State Court of Appeal were dismissed on 3rd June, 1971.

On 11th January, 1972, we dismissed a further appeal by the 1st, 2nd, 3rd and 6th accused persons to this court. We now give our reasons for so doing.

Briefly, the case for the prosecution, based mainly on the testimony of the 1st, 2nd, 3rd and 4th prosecution witnesses, is as follows. In the morning of 1st July, 1969, a meeting attended by members of the Agbekoya Society, the members of Tepamose society, and other townspeople of Ogbomosho, a town in the Western State, was held in the palace of Oba Olajide Olayode, the Shoun of Ogbomosho. There were about 1000 persons present at the meeting. The main purpose of the meeting was to consider the agitation of the people  of Ogbomosho against the payment of tax in excess of thirty shillings per head per annum. The meeting was addressed by the Shoun and by one Mr. Oyewo, a lawyer, among others. It ended peacefully even though no conclusion was reached regarding their agitation.

At about mid-day that same day, three lorries filled with policemen came into the town of Ogbomosho. There was firing of guns by the policemen. This infuriated some members of the community including the members of the Agbekoya Society. Their fury was directed against the Shoun because according to them, he (the Shoun) had promised them that the police would not come to Ogbomosho to molest them and that he had broken his promise.

A crowd of people, including the members of the Agbekoya Society, soon gathered. They carried dangerous weapons such as clubs, cutlasses, machetes, axes and spears. The crowd grew  bigger and bigger and became very “wild”, singing war songs. They then went towards the Shoun’s palace. Meanwhile, the Shoun with his two brothers Ladipo Olayode (1st P/W) and Oladiran Olayode (4th P/W) and his two messengers Bello Okeyiola (2nd P/W) and Tijani Akanni (3rd P/W), had run into the room of one Abudu in the palace. It was there that one of the messengers Okeyiola (2nd P/W) deserted the runaway group. When the crowd which had by then set fire to the buildings within the palace walls became more rowdy and ferocious, the Shoun with the 1st, 3rd, and 4th P/Ws moved to one Jenpe’s room which was connected to Abudu’s room  by a door. From Jenpe’s room, the shoun, 1st and 4th P/Ws escaped to the house of one Olayiwola (also known as Layi) which is also within the palace walls. They hid in one of the rooms there. It was in this room that the crowd caught up with the Shoun. He was dragged out by the crowd and then brutally attacked within the palace walls. He died on the spot.

Dr. Alli-Balogun (8th P/W) who performed the post -mortem examination on the body of the Shoun (hereinafter referred to as the deceased), testified as to this findings as follows:-

“I found the body to be that of a male adult of about 45 years of age. I found that there was no head. The probable date of death was July 1, 1969. There were no hands and legs. The abdomen was open and there was escape of viscera, that is, the contents of the abdomen. There were matchet cuts on the body mostly in front of the chest and at the abdomen. The body was badly burnt…. In  short the death was caused by the external injuries I have discussed, and they could not have been self-inflicted.”

Among those in the crowd which attacked the deceased on that fateful day were the appellants.

The 1st appellant was seen by the 1st, 3rd and 4th P/Ws among those who attacked the palace of the deceased on 1st July, 1969. He was seen carrying a cutlass and was one of those who rushed into Olayiwola’s house and dragged out the deceased to where he was butchered. The 1st P/W actually saw him use his cutlass on the deceased. After he had been arrested, charged and cautioned, the 1st appellant informed the police in a written statement (Ex. “A1”), that he was in Jos on the day of the attack. The police checked up this alibi and found it to be false. Although he denied telling the police in his statement that he was in Jos, he did not give evidence in his defence.

The 2nd appellant was also seen in the same crowd by the 1st, 3rd and 4th P/Ws. He carried a spear and the spear (Exhibit “P”) was recovered in his house by P.C. Lana Ladejo (6th P/W). The 1st P/W said that he saw him use the spear on the deceased. When charged with the murder of the deceased, he made a written statement (Exhibit “Q”) after he had been cautioned in which he said:

“When I heard this (that the police had entered the town and beating people), I came out with my spear. When I came out with my spear I proceeded to His Highness’s palace.”

He then went on to deny in the same statement that he actually used the spear on the Oba. He also did not give any evidence at the trial.

Although the 3rd appellant was seen by the 1st and 3rd P/Ws among the hostile crowd which attacked the palace on 1st July, 1969, there was no evidence that he carried any dangerous weapon. The 1st P/W, however, saw him wearing a “Juju dress” that day; he also saw him cut some of the flesh of the deceased and take it away. When he was arrested on 9th August, 1969, he had on a “juju dress” but there was no evidence that it was this same dress that he had on when the palace was attacked. After he had been charged with murder and cautioned, the 3rd appellant made a written statement (Exhibit “D1”),  in which he said he was at Ilorin on the day of the attack on the deceased. This alibi was checked by Corporal James Fabiku (7th P/W) and found to be false. The 3rd appellant also did not give evidence in his defence.
The 4th appellant (i.e. the 6th accused) did not testify in his defence, although the case of the prosecution against him was that he was also one of the riotous and menacing mob which attacked the palace and killed the deceased on 1st July, 1969. Tijani Akanni (3rd P/W), actually saw him among those who pursued them to Abudu’s room that day. The prosecution also stated that after he had been charged and cautioned, he volunteered a written statement (Exhibit “U1”) to Corporal James Fabiku (7th P/W) in which he stated inter alia, as follows:-

“At about 3 p.m. the whole town was in confusion, we were hearing gun shots. Garbar of Akogun’s compound went to the town, he came back to tell us that police had entered the town, that police fired and that Kabiyesi had fired Alasa. Then the whole of us Agbekoya members at Mesifa gathered together and we were heading for the palace of Kabiyesi. Some people held cudgels, some matchets, some held guns. I held a cudgel and a whip. Garbar held cudgel. Getting to the palace we were looking for Kabiyesi but we did not see him, many of us entered the palace. I entered the palace myself. We looked for Kabiyesi but he was not seen, he was later found in Layi’s room. I did not enter with them…… he had been murdered before they brought him to us where I was standing in the palace….. When he was brought to us the head and the legs were missing. When I saw that the condition with which he was brought to us was too bad, I brought out 1pounds with which to purchase petrol to be used for burning the remains. I went to buy the petrol myself.”

Notwithstanding the incriminating contents of this statement, the 4th appellant, as we had pointed out earlier, did not go into the witness box to give any evidence at the trial. The learned trial Judge made the following findings of fact regarding the role played by him:-

“The only irresistible inference from the conduct of the accused is that at the time he was joining the crowd of rioters he conceived the idea of murdering the deceased Oba if they found him. For how else can one view his conduct in joining a crowd of people carrying dangerous weapons, burning houses within the palace walls and looking for the Oba. If he did not conceive the idea of murdering the Oba, he could have expressed shock at seeing his dead body and would never have used 1 pounds of his own money to buy petrol to burn the body.”

After considering all the evidence adduced before him, the learned trial Judge said that he had not the slightest doubt in his mind as to the presence of the 1st, 2nd, 3rd and 4th prosecution witnesses at the palace at the time it was invaded by the crowd on 1st July, 1969. He then convicted the appellants of murder as charged after giving the most detailed consideration to the eye-witness accounts of the 1st, 3rd and 4th prosecution witnesses which he said he believed and after finding as follows:-

“Because of their particular relationship with the deceased I have taken extreme care in watching their demeanour and assessing their credibility. In my view, each of the three witnesses was a truthful witness. No doubt in some cases they gave fairly different versions of the same story but it would have been surprising if it had been otherwise bearing in mind the circumstances surrounding the events of that day and the fact that they are all old and illiterate persons, and were subjected to rigorous and pungent cross-examination by seasoned advocates. On the whole, I have found the guilt of the accused persons proved only where I have been convinced beyond the slightest reasonable doubt of such guilt upon the evidence.”

Before us on appeal, learned counsel for the appellants was unable to urge anything in favour of the appellants. Having regard to the overwhelming evidence which the learned trial Judge rightly in our view, accepted, we were also of the view that each of the appellants was rightly convicted of murder as charged. We therefore dismissed their appeals.

SC.150/1971