Monday Odu & Anor V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C. 

On 15th February 2001, this court heard the 1st and 2nd appellants’ appeal from the judgment of the Court of Appeal, Benin Division, dismissing their appeals from the decision of the High Court, Edo State. After reading the respective briefs of Counsel for the appellants and the respondent and listening to the oral arguments in elaboration of points made in those briefs this, court dismissed the appeals of the appellants and announced that reasons would be given later. The following are my reasons:

Before I go into the details of this judgment it is pertinent to set down, rather briefly, the facts of this case. The 1st and 2nd appellants had seized the cap and wrist watch of Gregory Iyonmane, the deceased. On 12th of June, 1994, whilst PW1 and the brother of the deceased (PW4) were playing football on Ivbiotor Primary School ground their attention was drawn to an incident where the deceased was trying to retrieve his cap and wrist watch from the 2nd appellant. The 2nd appellant was at that time wearing the cap on his head.

The 1st appellant and the 3rd accused (who was discharged at the High Court) were present at the scene. The 3rd accused kicked and slapped the deceased. He also used his stick and hit the deceased with it. The 1st appellant brought out a dagger and gave it to the 2nd appellant who then stabbed the deceased with it. The deceased fell down. PW4 confronted the 2nd appellant. The 2nd appellant used the same knife and stabbed him (PW4) on the back. PWI tried to stop the 2nd appellant from inflicting further injuries to PW4. He too was cut on the right thumb. The 1st appellant and the 3rd accused thereafter ran away from the scene. The 2nd appellant threw away the dagger and ran. PW1 and PW4 ran after him and held him.

The trial opened on 18th September, 1996. The prosecution called seven witnesses to prove their case against the five accused persons. At the close of the prosecution’s case a no case submission was made in respect of the 4th and 5th accused persons. The court in its ruling sustained the submission and discharged them. The 1st, 2nd and 3rd accused were called upon to open their respective defences. At the end of the trial and in a considered judgment the learned trial Judge concluded as follows:

“I therefore find the 1st accused person guilty of conspiracy in count 1 of the charge and he is convicted. I find the 2nd accused person guilty of conspiracy in count 1 and he is convicted. I find the 1st accused guilty in Count 2 of the murder of Gregory Iyomane and he is convicted. The charge in both counts, has not been proved sufficiently against the 3rd accused person. In accordance with Section 246 of the Criminal Procedure Law, the 3rd accused person is discharged and acquitted,”

Dissatisfied with the judgment, the appellants appealed to the Court of Appeal. The court below considered all the issues raised in the appeal and dismissed it. The appellants have finally come before this court contesting the dismissal of their appeal by the Court of Appeal.

Learned Counsel for the 1st appellant identified the following two issues for the determination of 1st appellant’s appeal.

“(1) Whether having regard to the evidence before the court, the Learned Justices of the Court of Appeal were right in holding that the defence of alibi put up by the 1st appellant had been dislodged by the prosecution.

(2) Whether having regard to the evidence the prosecution proved its case beyond reasonable doubt against the 1st appellant”.

The issues formulated by the learned Counsel for the 2nd appellant read as follows:

“1. Whether the upholding by the Court of Appeal of the sentence passed on the 2nd appellant by the trial High Court when the prosecution failed to prove its case beyond reasonable doubt did not occasion miscarriage of justice (from Grounds 2).

2. Whether having regard to the circumstances of the case, the Court of Appeal was right to have held that the defence of provocation, self-defence and accident did not avail the 2nd appellant (from Ground 1 and 2).
3. Whether the sentence passed on the 2nd appellant by the trial High Court was not void having regard to the fact that the 2nd appellant was not convicted by the High Court of the offence of murder”. The respondent’s Counsel identified issues similar to the issues raised by the appellants.

I will start with the issue of alibi. The 1st appellant in his statement to the police, Exhibit G, stated as follows:

“…I remember that on 13/6/94, I travelled to Kaduna to see my father, Odu Peter, a serving soldier at Kaduna Military Cantonment. I returned to Benin on 23/2/95 and when people told me that ” the police was (sic) looking for me, I reported myself to the police. I did not take part in any fight between Ikponwosa or any other person or persons on 14/6/94. I did not carry any knife or dagger used in killing Gregory Iyonmane. I was not present during the fighting …”