Mustapha Mohammed & Anor. V. The State (2006)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the judgment delivered by Popoola, J. while sitting at the High Court of Justice, Ilaro, Ogun State of Nigeria on 26th June, 1997. The appellants were convicted and sentenced to death for the offences of conspiracy to murder and murder of Oladipupo Fasola by the learned trial judge.
On 29th October, 1996 the two appellants, then as accused persons, were arraigned along with two others to wit: Babajide Olufemi and Nojimu Sangosanya for the offences of conspiracy to murder contrary to section 516 and murder of Oladipupo Fasola contrary to section 319(1) of the Criminal Code Law, Cap.29, Vol. 11, Laws of Ogun State of Nigeria, 1978 respectively. The appellants, as well as the other two co-accused persons pleaded not guilty to the two counts.
The prosecution called five (5) witnesses to buttress their case. The evidence adduced by the prosecution witnesses appear very revealing and harrowing. I shall summarise same to the best of my ability. P.W.1 said the deceased – Oladipo Fasola was living with him, being a friend to his junior brother. On 11-8-95 at about 6.00a.m, one small boy by name Ashimiyu Salawu came to tell the deceased that the 1st accused wanted him. The deceased left and was not seen for a long period. PW1 said he asked for and got the house of the 1st accused to ask him the whereabout of the deceased. PW1 said he reported the matter to the Police. The 1st accused denied seeing the deceased but confirmed that he sent Ashimiyu to call him. He could not say where he was. Police got the 1st accused arrested.
PW1 said on 1-9-95, police came to him with a medical doctor, photographer and the 1st accused in the Police vehicle. He followed them and when the vehicle was parked somewhere, they trecked inside the bush. The 1st accused unearthed the deceased from the grave. P.W.1 identified the corpse in a decomposed state with the head missing. PW1 had earlier described the black pant, knicker and white singlet worn by the deceased when he left home.
Cross-examined, P.W.1 said the dresses the deceased was wearing were intact and recognizable.
PW2, Cpl. Olaide Lawal of Crime Branch, Owode Egbado said on 14-8-95, PW1 reported a case of missing person – the deceased. He got the 1st accused arrested. PW2 said he volunteered statements to him on 15-8-95 and on 20-8-95 as well. The two statements are exhibits A & B, respectively. The 1st accused connected one Alhaji Asamu, a transporter at Sango who denied knowing him. He obtained Alhaji Asanu’s statement before referring the case to the S.I.I.B. Eleweran for further investigation.
PW3 is Sgt. Oluwole Babalola attached to the homicide section S.I.I.B, Eleweran, Abeokuta. On 23-8-95, the case was referred to him for investigation. He said on 24-8-95, the 1st accused volunteered a statement to him. Same is exhibit C. PW3 said Alhaji Asamu said that though he knew the 1st accused and had once asked him to pray on his plot of land, he did not discuss any matter of getting someone to drive for him with the 1st accused. PW3 went to one Nofiu Finana who sold a plot of land to the 1st accused situate at Pempe Area. He confronted the 1st accused who denied ever buying a plot of land at Pempe. PW3 said he went there and saw cassava stems destroyed, suggesting a scuffle. He saw a dug gave. Later, he went with the pathologist – Dr. Igbalajobi, PW1, 1st accused and some police men to exhume the body. PW1 identified the body to be that of the deceased who he earlier told them left home with a short black knicker, black pant and a singlet which were all found on the decomposed body without a head. PW3 said the police photographer – Inspector Dosunmu took photograph of the beheaded body.
PW3 said on 2-9-95 the 1st accused again volunteered another statement to him. Same is exhibit D. On 13-9-95 the 2nd accused was brought to the station. PW3 said he volunteered another statement marked exhibits E-E1.
PW3 said on 8-9-95, he confronted the 1st accused as to the whereabouts of the deceased’s head. The 1st accused volunteered another statement which is exhibit F. He said the 1st accused took him to the house of the 3rd accused who was also arrested. The 3rd accused volunteered a statement which is exhibit G. The 3rd accused mentioned the name of the 4th accused who was arrested. He volunteered a statement marked exhibits H-H1.
Cross-examined, PW3 denied using force on the accused persons. He said he did not beat the 2nd accused. He said the 3rd accused is a herbalist and that a herbalist prepares native concoctions.
PW4 is Dr. Olugbenga Olanrewaju Igbalajobi, a registered Medical Practitioner attached to State Hospital, Ilaro. He said on 1-9-95, he was invited by PW3 and other police officers for the exhumation of a corpse at Owode. They picked PW1 at Owode and all drove to a piece of land inside Owode. The body was exhumed and on examination, he found the abdomen and limbs intact. So also, the external genital was intact but the neck and head were missing. He said the floor of the neck was roughened from which he made the conclusion that it was a traumatic amputation of the neck and head. He said PW1 recognised the corpse exhumed to be that of Oladipupo Fashola which had some clothes on – white singlet and a short knicker, dark blue in colour. He said the police photographer took some pictures. He wrote a report which is exhibit 1. He found cause of death to be as a result of traumatic amputation of deceased’s neck and head.
Cross-examined by Mr. Emehin on behalf of 1st & 4th accused persons, P.W.4 again said it is amputation. He said he saw some evidence of spilage of blood on the ground showing that there was a struggle.
P.W.5 is Inspector Remi Dosunmu, a photographer. On 1-9-95, he visited the site of exhumation along with others. They found a freshly dug grave from where they recovered a headless young man with singlet and a black knicker on him. The corpse was examined by PW4 after being identified by PW1 as Oladipupo. He said he took photographs of the corpse, the grave before and after exhumation. He processed the films and printed out the photographs. The negatives and photographs are Exhibits K and L-L5. The prosecution closed their case on 15-4-97.
On 22-4-97, the prosecution applied to amend the 1st count to read section 324 of the Criminal Code Law instead of section 516 originally contained therein. Same relates to statement of offence in respect of conspiracy. There was no objection from any defence counsel. The trial court then ordered that ‘section 516 in count 1 is amended to read section 324 of the Criminal Code’.
There and then, the two counts were read to the accused persons and each of them pleaded not guilty to both counts. Thereafter, the defence opened.
The 1st accused testified as DW1. He said he knew the 3rd and 4th accused persons; but not the 2nd. He denied knowing PW1 and that it is not true that he conspired with the other accused persons; nor did he murder the deceased. He said he knew the deceased. On 20-6-95, the deceased with some other people came to dig a well for him. DW1 said he promised to assist the deceased to get a driving job on his request from one Alhaji Ashamu. DW1 said he promised to take the deceased to Sango. The deceased did not come and he sent one Asimiyu Salawu to call him. DW1 said the deceased promised to come but he did not see him. He was arrested by police and he made statements at Owode and later at Eleweran according to him. He said he did not take the head of the deceased to the house of the 3rd accused.
He said on 1-9-95, he accompanied the police to a bush where they saw a shallow grave from where deceased was exhumed without a head. He identified exhibits L-L5 as the photographs of the headless body of the deceased having singlet and knicker on. He said the 3rd and 4th accused were arrested after he mentioned their names to the police. He said that PW1 came to his house, but not the deceased. He said he was forced to sign a paper after their return from the bush. He maintained that the 4th accused did not introduce the 3rd accused to him. He said he had no other land apart from the one over which he built his house sold to him by one Ganiyu Olanipekun. He denied knowing one Miniru. He said he did not discuss with Alhaji Ashamu about deceased looking for a job and that, the 2nd accused did not introduce the 3rd and 4th accused to him. He admitted that he saw the body of the deceased when exhumed. He knew the 3rd accused on 12-8-95 and never before.
The 2nd accused testified as DW2. He lived at Pempe Area, Owode. He denied knowing the 3rd and 4th accused persons. But he knows the 1st accused person. He knew the deceased. He said before 11-8-95, his house was broken into and it appeared he recognized the voice of the deceased in the group and he confronted him the next day. He said on 11-8-95, he saw the deceased in the house of the 1st accused and used juju – ‘subusere’ to hit him. He fell and was left in the house of the 1st accused. He said he was later arrested. He maintained that he was not in company of the 1st accused to bury the deceased as in 1st accused’s statement read to him. DW2 said he just ran away. He said he did not carry the head to one Alfa. He denied conspiring to kill the deceased.
Cross-examined, DW2 said it was in the morning that he saw the deceased in the house of the 1st accused who was at home. He knew the deceased before that day. He had never met with the 3rd accused. He met 3rd accused first at Eleweran. He said he reported to the Police but he did not mention the name of the deceased. He denied knowing the 4th accused.
The 3rd accused testified as DW3. He lived at Atan, Ota. He knew the 1st and 4th accused but not the 2nd accused. He asserted that on 11-8-95, he was in the farm when the 1st accused brought the head of the deceased to him for native concoction. He used the head in the preparation of medicine. He said he asked for the source and was told that it was that of a dead person. He did not know the deceased.
Cross-examined by the DPP, D.W.3 said the preparation was for ‘awure’ or money making venture. He said the 4th Accused introduced the 1st accused to him and that there was no arrangement to share the money. He used black soap. He burnt the head. It took him one whole day to bum it into ashes in the kitchen.
The 4th accused testified as DW4. He lived at Onigbongbo near Atan, Ogun State. He said he knew the 1st and 3rd accused persons, but not the deceased. On 11-8-95, he was in the market while the 1st accused called him aside to say that a robber was killed and he had severed the head from the body. He asked whether he knew the use and DW4 said no. DW4 said he accompanied him to the 3rd accused and went back to his village. He was later arrested. He denied conspiring to commit murder. He said he did not murder the deceased.
Cross-examined by the DPP, DW4 said he knew the 1st accused for about 8 months; but was not his friend. He never discussed money making charm with him. He said he did not see the 2nd accused at Eleweran. He met him in court.
The above represents a fair detail of the evidence advanced on both sides of the divide at the trial court. Learned counsel on both sides addressed the learned trial Judge. In his well researched and considered judgment, the learned trial judges convicted the 1st and 2nd accused persons before him for conspiracy to murder and murder of Oladipupo Fasola and were sentenced to death.
The 3rd and 4th accused persons were found guilty of unlawful possession of human head, a lesser offence under section 329A of the Criminal Code Law, Cap. 29, Laws of Ogun State as dictated by Section 179 (2) of the Criminal Procedure Law Cap. 30, Laws of Ogun State, 1978. Each of accused 3 and 4 was sentenced to 5 years imprisonment.
The 1st and 2nd accused person felt unhappy with their conviction and sentence and have appealed to this court. The amended notice of appeal filed on 27-9-05 was deemed filed on 20-10-05. Three grounds of appeal accompanied the said notice. It will suffice to only reproduce the issues distilled from the grounds of appeal. And same shall be done shortly anon. Before then, I need to say that the relief sought from this court is ‘to set aside the conviction and sentence imposed on the appellants and in its stead to enter a verdict of discharge and acquittal’.
The two issues distilled at page 3 of the appellants’ brief of argument are as follows:-
“1. Whether the charge of murder preferred against the appellants was proved by the prosecution beyond reasonable doubts?
- Whether the trial of the appellants ought not to have been commenced de novo after the appellants were invited to enter fresh plea to the amended information”.
On behalf of the respondent, the following two issues were formulated for determination.
“(i) Whether from the totality of the evidence adduced at the trial, the prosecution has proved the charge against the appellants beyond reasonable doubt in accordance with section 138 of the Evidence Act (Cap. E. 14) Laws of the Federation of Nigeria, 2004.
(ii) Whether the trial of the appellants ought to have been commenced de novo after the appellants pleaded to the amended charge.”
Arguing issue I on behalf of the appellants, learned counsel submitted that the prosecution failed to prove the case beyond reasonable doubt. He referred to the case of Idemudia v. The State (1999) 7 NWLR (pt.610)202 at 215 as well as S.138(1) Evidence Act, Laws of the Federation of Nigeria, 1990 and S.36 (5) of the 1999 Constitution of the Federal Republic of Nigeria.
Learned counsel felt that the trial judge later made recourse to the confessional statements made by the appellants. He felt that once the appellants denied them, a trial within trial should have been ordered to verify the voluntariness. He cited the case of Ogunye v. State (1999) 5 NWLR (Pt.604) 548 at pp. 570-571. Learned counsel further submitted that because the court believed that the appellants are lying in their oral evidence before the court, does not amount to prove that they killed the deceased for which they must be convicted. He referred to Daniels v. The State (1991) 8 NWLR (Pt.212) 715 at 732. He urged that the court should hold that the prosecution has failed to establish any link whatsoever between the appellants and the death of the victim. He urged that the appeal be allowed.
Arguing issue 1, learned counsel for the respondent pointed out the three vital ingredients which must be proved for the offence of murder. He cited the cases of Ogba vs. The State (1992) 2 NWLR (Pt.222) 164 at 198; Bakare vs. The State (1987) 1 NWLR (Pt.52) 579 at 582; Onah vs. The State (1985) 3 NWLR (Pt.12) 236; Abogede vs. The State (1996) 5 NWLR (Pt.448) 270 at 277.
Learned counsel observed that it is not in doubt that the deceased died. He submitted that the appellants had a common intention to use a human head for money making ritual. And in pursuance of same, they lured the deceased to the house of the 1st appellant and into the waiting hands of the 2nd appellant who used a charm on him as stated by the 2nd appellant in his evidence in chief.
Learned counsel for the respondent observed that the deceased was last seen alive in the house of the 1st appellant and in company of the 2nd appellant. And when the headless body was exhumed, it was still in the dress described by PW1 who saw the deceased going to the house of the 1st appellant. Learned counsel maintained that where an accused person was last seen in the deceased’s company and circumstantial evidence is not only overwhelming but led to no other conclusion, it leaves no room for acquittal. He cited the cases of Emeka v. The State (2001) 14 NWLR (Pt.734) 666 at 685; Nwaeze vs. The State (1996) 2 NWLR (Pt.428) 1.
Learned counsel, observed that the prosecution did not prove who between the appellants actually killed the deceased. What matters is that one of the appellants did in the prosecution of their common intention or design. He cited the case of Alarape v. The State (2001) 5 NWLR (Pt.705) 79 at 103.
Learned counsel felt that a trial within trial was not necessary since the appellants merely denied their statements in their evidence in chief. He submitted that a trial within trial can only be conducted where an accused person alleged that he made the statement under any inducement, threat or promise. He referred to S.28 Evidence Act; Madjemu v. The State (2001) 9 NWLR (Pt.718) 349 at 369; Nsofor v. The State (2002) 10 NWLR (Pt.775) 274 at 289.
Learned counsel submitted that a confession where voluntary is admissible. Once it is taken in accordance with the law and tendered without objection, no amount of retraction will vitiate its admission as a voluntary statement. He referred to Ikemson v. The State (1989) 3 NWLR (Pt.110) 455 at 476; Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383; Kim v. The State (1992) 4 NWLR (Pt.233) 17 at 26.
Learned counsel finally, on the issue, urged us to hold that the conclusion of the trial judge is not perverse and neither has it occasioned any miscarriage of justice.
It is now beyond dispute that in a murder charge, as herein, the prosecution must prove the following:-
(a) The death of the deceased;
(b) the act or omission of the accused which caused the death, and
(c) the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
For the above ingredients of the charge for murder, see Okeke v. State (1999) 2 NWLR (Pt.590) 246 at 273, Ogba v. The State (supra) at p.198; Onah v. State (1985) 3 NWLR (Pt.12) 236.
The learned counsel for the respondent touched on the point that the case was proved even through circumstantial evidence. No reply brief was filed on behalf of the appellants to counter same. I note that the learned trial judge considered the point at pages 90-91 of the transcript record of appeal. One feels tempted to say that the appellants’ counsel conceded the point.
Circumstantial evidence is described as evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. See Akinmoju v. The State (1995) 7 NWLR (Pt.406) 204 at 212. Circumstantial evidence is said to be the best to be relied upon. A witness can lie but circumstances do not. Circumstantial evidence affords better proof beyond reasonable doubt and are never derogatory. See Clark vs. State (1986) 4 NWLR (Pt.35) 381. I must note that such evidence must be narrowly examined; if need be with a tooth comb. See State v. Nafiu Rabiu (1980) 1 NCLR 4 at 50; Adie v. State (1980) 1-2 SC.116. To be sufficient for conviction, circumstantial evidence must point to only one conclusion, namely that the offence had been committed and that it was the accused who had committed it. See Nasiru v. State (1999) 2 NWLR (Pt.589) 87; Teper v. R (1952) A.C. 480. Circumstantial evidence must point unequivocally and irresistibly to the fact that the offence was committed by the accused persons. In order to draw an inference of the accused person’s guilt from circumstantial evidence, there must not be any other co-existing circumstance which would weaken or destroy the inference. See The State vs. Edobor & Ors. (1975) 9-11 S.C. 69 at p.76. The court should not hesitate to draw such presumption or inference that is warranted so long as it is cogent and compelling as to convince a jury that on no rational hypothesis other than the inference can the fact be accounted for. See Esai & Ors. v. The State (1976) 11 SC 39; Peter N. Eze vs. The State (1976) 1 SC 125.
From the evidence before the trial court, PW1 identified the body of the deceased to PW4 – the medical officer who performed autopsy and found cause of death to be as a result of traumatic amputation of the neck and head of the deceased from his body. This is clearly extant in exhibit J. It is clear that Oladipupo Fasola – ‘the man died’ on 11-8-95.
From the evidence garnered at the trial court, it is clear that the 1st appellant sent his junior brother Ashimiyu to call the deceased on 11-8-95 at about 6.00a.m. The deceased went to the 1st appellant’s house and got into the waiting hands of both appellants. The 2nd appellants, in his evidence in chief said he saw the deceased in the 1st appellants’ house on the fateful day and that he used a charm – ‘subusere’ to hit him on the chest and he became weak and fell down. The next thing was the deceased’s indecent burial at 1st appellant’s plot thereafter. Next was the delivery of the deceased’s head to the 3rd accused by the 1st appellant according to that witness on the same 11-8-95 to make ‘awure’, i.e. concoction, for money making.
The appellants were the last linked with the deceased alive. From the whole gamut of the circumstances, appellants are sufficiently linked with the cause of death of the deceased. It will be an eye wash to find otherwise in my humble opinion. The deceased was last in the company of the appellants before they started to embark upon pranks; it seems. The facts of this matter appear similar to those in Peter Igho v. The State (1978) SC 87 at page 90. Therein too, the deceased was last seen in company of the appellant. Eso, JSC at page 90 pronounced as follows:-
“The only irresistible inference from the circumstance presented by the evidence in this case is that the appellant killed the deceased. We can find no other inference from the circumstances of the case. The facts which were accepted by the learned trial judge, amply supported by evidence before him, called for explanation and beyond the untrue denials by the appellant (as found by the learned judged) none was forth-coming. See R v. Mary Ann Nash (1911) 6 CAR 225 at p.228. Though this constitutes circumstantial evidence, it is proof beyond every reasonable doubt of the guilt of the appellant”.
If there are circumstances where cause of death could be inferred from circumstances of the case, I strongly feel that the present case is one of those instances. Same stands out clearly in my view. See Aiguoneghian v. State (2004) 3 NWLR (Pt.860) 367 at 414. Circumstantial evidence herein is very compelling and leaves no room for acquittal. It leads to no other conclusion as all accusing fingers point at the direction of the appellants. See Nwaeze v. The State (1996) 2 NWLR (Pt.428) 1; (1996) 2 SCNJ 42. Circumstantial evidence point only to the appellants and lead conclusively and indisputably to their guilt. I see no co-existing circumstance that weakens the inference drawn. The case was, no doubt, thereby proved beyond reasonable doubt. See Peba vs. State (1980) 8-11 SC 76; Omogodo v. State (1981) 5 SC 5. Such is in line with the dictate of section 138 (3) Evidence Act, Cap.112, LFN, 1990.
Let me now move to the consideration of the appellants’ surmised and miniature complaints in this appeal. I shall treat them in their sequence. It was contended on behalf of the appellants that the learned trial judge ought to have ordered a trial within trial when the appellants denied their statements as in exhibits D and E-E1 respectively made to the police. It should be made abundantly clear that the mere fact that the appellants denied their statements in their evidence in chief does not call for a trial within trial. Such is only conducted where an accused person alleges that he made the statement under inducement, threat or promise. And usually, such is always at the point when the statement is being tendered. See s.28 of the Evidence Act; Nsofor vs. The State (supra) cited by the learned counsel for the respondent. In short, there is no big deal in the stance posed on behalf of the appellants.
It can be seen in exhibits D and E-E1 that the appellants in their statements tried to pass the buck as to who between them slaughtered the deceased on 11-8-95. Appellants’ counsel attempted to capitalize on this point to my utter surprise. It is immaterial in my humble opinion that the prosecution could not prove who between the appellants actually killed the deceased. What matters is that the appellants killed the deceased in the prosecution of their common intention or design to use the deceased’s head for money making venture. The Supreme Court said it all clearly in the case of Alarape vs. The State (supra) at 103 that:-
” In such circumstances, the court, once the execution of common intention or design is established, would be right in asserting that it did not matter on such facts which of the accused persons did what. That is for the simple reason that under the circumstances a fatal blow, though given by one of the accused persons involved, is deemed in the eye of the law to have been given by the rest of his co-accused persons. The persons actually delivering the blow is said to be no more than the hand by which others all strike”.
The above is enough to depict that the submissions given to the contrary on behalf of the appellants appear laughable. They were made to no avail and without reflection on the true state of the law; I am afraid. I should say that a denial of a confessional statement is no reason, without more, for rejecting the statement. Once a statement complies with the law and rule governing the method of taking it and it is tendered and not objected to, it is admissible as an exhibit. No amount of retraction will vitiate its admission as a voluntary statement. The cases of Ikemson vs. the State and Egboghonome vs. The State (supra) cited by respondent’s counsel are in point.
The learned trial judge’s findings of fact were down to earth. I cannot trace any perverse findings on record that can be said to have occasioned any miscarriage of justice.
I am of the clear view that this case has been proved beyond reasonable doubt. All the ingredients have been carefully proved. See Woolmington v. D.P.P. (1935) A.C. 462 at 481; Yongo & Anor v. C.O.P. (1992) 8 NWLR (pt.257) 36; (1992) 9 SCNJ 113 at 123; Onubogu vs. State (1974) 9 SC 1. See S.138 (1) Evidence Act, cap 112, LFN, 1990. Proof beyond reasonable doubt is not proof beyond ‘any shadow of doubt’ as per Uwais, CJN in Nasiru v. State (1999) 2 NWLR (Pt.589) 87 at p.98; see also Akalezi v. State (1993) 2 NWLR (Pt.273) 1 at p.13. Proof beyond reasonable doubt is not ‘proof to the hilt’. See Miller v. Minister of Pensions (1947) 3 ALL. ER 373.
The 2nd issue canvassed on behalf of the appellants is whether the trial of the appellants ought not to have been commenced de novo after the appellants were invited to enter fresh plea to the amended charge. I have noted earlier in this judgment that on 22-4-97 the 1st count relating to conspiracy was slightly amended without any objection by all defence counsel. Thereafter, the learned trial judge took the appellants’ plea along with the two other co-accused persons. Learned counsel for the appellants observed that such a step was wrong. He referred to section 36 (12) of the 1999 constitution as well as the case of Ogunye v. State (1999) 5 NWLR (Pt.604) 548 at 570 and S.215 of Criminal Procedure Act. He felt that by not starting the hearing afresh, the trial was a nullity. He urged the court to discharge and acquit the appellants.
Learned counsel for the respondent referred to section 164(1) of the Criminal Procedure Law, Cap.30, Laws of Ogun State 1978 which provides that in such occasion, the court shall call upon the accused to plead again to an amended charge. Learned counsel further submitted that there was no objection to amendment by the appellants. Amendment did not prejudice the appellants in any manner. He submitted that it is not the purport of S.164 (1) of the law that when a charge is amended the trial must be commenced de novo. He cited the case of The State v. Oladimeji (2003) 14 NWLR (Pt.839) 138 at p.155.
Learned counsel further submitted that the procedure adopted by the trial judge was right and in consonance with the provisions of section 164 (1) of the Criminal Procedure Law of Ogun State, 1978. He felt that it was plain mischief on the part of the appellants’ counsel to argue against the provision of the law.
Let me say it right away that I do not agree in toto that appellants’ counsel embarked upon mischief by arguing against the provision of the law. On my own part, I feel that the appellants’ case was clearly bad and their learned counsel was merely trying to hang on a straw. Unfortunately, he did not take note of the real position of the law on this point. See Nigerian Air Force v. Ex Wing Commander L. D. James (2002) 18 NWLR (Pt.798) 295 at 331-332. See Okwechime v. I.G.P. (1956) FSC 73. Where a charge or count is altered vide S.164 of the law, all that is required to be done is to read the new charge or count to the accused and record his or her plea thereto. The proceedings are deemed to be continued and not disturbed as a result of the alteration. See also State vs. Olatunji (supra) at pp.163-164.
Learned counsel for the appellants argued against the current of authorities when he maintained that the trial was null and void for the reason wrongly diagnosed by him. I am not at one with him. Issue 2 is pointedly resolved against the appellants.
It is difficult to tilt a well considered and balanced judgment as that of the learned trial judge. He had the opportunity of not only hearing the evidence but watched the demeanour of witnesses. I cannot see any perverse findings. And I uphold the judgment of the learned trial judge. See Agbanyi v. The State (1995) 5 NWLR (Pt.369) 22. In short, the decision of the trial court is hereby affirmed.
The learned trial judge watched the demeanour of witness while gathering viva voce evidence in the matter. At page 98 of the transcript record of appeal, he was propelled to forcefully pronounce as follows:-
“The seed of wrongdoing may be sown in secret but the harvest cannot be concealed; and the end of life puts the longest life at par with the shortest. The facts of this case are miserable, sordid and morbid and the deeds carried out therein are most shameful to remember, too ghastly to believe and most salacious to hear. They are hideous, hypocritical and cryptic. They are the harbingers of all evils revealing a story of shame and senseless stupidity, but they reflect the moral decay of the age in which we live in this country and also reflect the 1st and 2nd accused persons as mean, contemptible, Godless and lawless men; and without one particle of honourable or generous feeling for any fellow human being”
I should state it that I was opportuned to read the cold facts on record many times. I am completely at one with the learned trial judge for his strong and down to earth views reproduced above. The real fact of the matter is that the appellants slaughtered the deceased’s neck for the purpose of using the head for concoction in a bid to get rich quick. Such beats one’s imagination. They gave the deceased, another man’s son, a harrowing experience of life. They slaughtered him. PW4 called it traumatic amputation. Such drove shiver into my marrows, It is like a gory fairy tale. But it indeed happened. However, the appellants who planted thorns cannot expect to gather flowers. They sowed the wind and must reap the wild wind. No form of passing on into the great beyond as dictated by law can be too much for them. After the mortal death, they will definitely face the second death. The sentence of death pronounced on each of the appellants will definitely serve as a deterrent to other would be illicit and immoral gold diggers. So shall it be.
In sum, this appeal is completely devoid of merit. It is hereby dismissed in its entirety. The conviction of the appellants for conspiracy to murder and murder of Oladipupo Fasola as well as the sentence of death passed on them are hereby affirmed.
Other Citations: (2006)LCN/1949(CA)
