Olusanya Onitilo V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The appellant and one other were arraigned before the High Court of Ogun State sitting at Ijebu-Ode on the 5th day of April 2004 on a two-count charge of conspiracy and murder contrary to Sections 324 and 316 (1) of the Criminal Code Law Cap. 29 Vol. II Laws of Ogun State of Nigeria, 1978. They each pleaded not guilty to the charge. At the trial the prosecution called 8 witnesses while the accused persons testified in their own defence.

The prosecution’s case was as follows; On the night of 5/10/2001, the deceased, a son-in-law to the appellant left home to attend a party at Oke-Eri Village, Ijebu-Ode in the company of a friend. When he failed to return home, his sister, PW1 reported to their father, who in turn made a report of a missing person at the Atan Police station. The case was referred to a team of investigators. Upon enquiry by PW1 and her father from the deceased’s friend as to his whereabouts, they were informed that the deceased visited the appellant. As a result of this information the appellant and some other persons were arrested. In the course of

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investigation the team received information that a headless body was found floating in the river at Ilodu, close to Oke-Eri. It was recovered and taken to the State Hospital Ijebu-Ode for post mortem examination. The team also received information that the deceased was last seen with PW2, a 90-year-old man. He was arrested. He made a statement to the Police. He stated that he was woken up at around 11pm on the night of the incident by the appellant, his co-accused and some other people who brought the deceased to his house with his hands tied. He was told that the deceased was reciting incantations at the home of the appellant. He advised them to take him to the Police station and according to him they left. According to PW6 (one of the investigating police officers), the appellant initially denied any knowledge of the whereabouts of the deceased or of the visit to PW2. PW2 demanded to be allowed to confront him. He was brought out of the cell and as soon as he saw PW2, he broke down, saying he had nothing more to hide but that he would not talk in front of him. According to PW6, the appellant admitted taking the deceased to PW2s house on the fateful

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day. He stated that he confessed that while taking the deceased to the police station, he slumped and died. He further confessed to cutting off his head and ripping open his abdomen and removing his internal organs. The severed head of the deceased was recovered from behind his house from information supplied by him. Subsequently, PW3, the deceaseds sister identified his decapitated body at the mortuary as belonging to the deceased.

The post mortem examination carried out by PW4 on the severed head and decapitated body confirmed that most of the internal organs were missing. He concluded that the cause of death was severe haemorrhage secondary to decapitation. The post mortem report was tendered as Exhibit A. The appellant made several confessional statements, which were admitted in evidence as Exhibits B, C, D, E, F and G respectively.

In his defence, the appellant stated that he met the deceased at a burial ceremony at Oke-Eri Village on the night of 5/10/2001.

After the ceremony, the deceased came to his house which was not far from the venue and asked him to buy him a drink. He refused, because the deceased was allegedly

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drunk, whereupon the deceased began to recite incantations. As he attempted to leave, the deceased pulled him back and began to beat him. He slapped the deceased in return. People around intervened and he decided to take the deceased to PW2’s house since PW2 was his (deceased’s) relation. That he and several of the people around took the deceased to PW2’s house. They left the deceased with PW2 and returned to the party. However, according to him, he left the party about two hours later and tried to trace the deceased because he was afraid that he might return to fight him. He claimed that he came upon the deceased beside a gutter at a place called Onasebora. That on realising that he was dead, he cut off his head and threw his body into the river.

Under cross-examination he admitted cutting the deceased open and removing his intestines and other internal organs. His reason was that it was to make the body easier to carry. He also admitted burying the severed head behind his house. He however denied killing the deceased.

At the conclusion of the trial the learned trial Judge in a considered judgment delivered on 27/7/2005 found the appellant and