Otunba F. E. Sowemimo Vs The State (2004)
LAWGLOBAL HUB Lead Judgment Report
C. PATS ACHOLONU, JSC
The appellants were charged with the murder of one Tunde Oredipe, tried, convicted and sentenced to death by hanging. They appealed to the Court of Appeal, which reduced the conviction of murder to that of manslaughter in which that Court imposed some sentence. The appellants not obviously still satisfied with the Judgment of the Court of Appeal thereupon appealed to this Court and framed two issues for determination. The State equally cross -appealed.
However in arguing the appeal, the learned counsel for the Appellants dropped issue one and relied on issue two which is,
Whether the learned Justices of the Court of Appeal were right when they affirmed the decision of the trial Court that the defence of alibi properly set up by the 3rd Appellant Babatunde Sowemimo (herein refer (sic) to as 2nd Appellant) was not proved by the Appellant.
The respondent equally framed two issues for determination, which are;
Whether the Court of Appeal was right to have affirmed the decision of the trial Court that P.W.4 was an expert in determining the cause of death of the deceased.
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Whether the Court of Appeal was right when it affirmed the decision of the trial Court rejecting the alibi set up by the 3rd Appellant.
Of course with the appellant’s Counsel having dropped issue one (1) it goes without saying that the corresponding issue No. 1 that features in the Respondent’s brief equally goes.
The Cross-Appellant not satisfied with judgment of the Court of Appeal appealed and framed two substantial issues to wit;
Whether it is the correct position of the law as held by the Court of Appeal that there is a legal or evidential burden on the prosecution in all cases to establish through evidence the use of a knife, cutlass, axe or other heavily weighted object and to tender those items before an intention to kill can be proved.
Whether it is the correct position of law as stated by the Court of Appeal that lack of knowledge that a particular act might cause death or that ignorance about the precocious state of a deceased person’s health or ignorance that torture could kill, is a mitigating circumstance in a charge of murder.
The Cross-Appeal is in respect of the 3 Appellants whose convictions for murder were reduced to that of manslaughter. The 2 Cross Respondents equally adopt the same issues as framed by the Cross Appellant. I shall come to this later and examine the substance and competence of the Cross-Appeal.
By dropping the issue in respect of the 1st Appellant there is therefore no appeal to be urged on the 1st Appellant. In order words, the judgment of the Court of Appeal against him is not being pursued on the appeal in this Court.
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Now facts being the fountainhead of law, I shall set down in synopsis the facts of this case. The prosecution in its case had stated that the 1st Appellant/Cross Respondent’s son one Ayo Ola Sowemimo had stolen a sum of N310, 000.00 belonging to his father and escaped. The deceased’s connection with the theft of the money was that Otunba Sowemimo had said that Tunde Oredipe was given a sum of N80,000.00 out of the money stolen. In spite of the effort by one Omolara Samuel to warn Tunde of the presence of the appellants who were looking for him, he Tunde voluntarily went to them to supposedly clear himself. Sometime later when no one could see Tunde again, Omolara Samuel, the parents of Tunde and his sister went to the house of the 1st Appellant where they saw Tunde with his hands and feet tied and was being beaten mercilessly by the appellants with plastic hose-pipe, electric cable and horsetail. Omolara said that he warned the 1st Appellant that Tunde was not of strong health and therefore if they continued to beat him, he Tunde might die. The parents of the deceased also corroborated the evidence of P.W.1 on how he was being mercilessly beaten and went further to state that in the morning following the beating which took place at about midnight previously, the body of Tunde was seen in the mortuary. P.W.4 who did the post mortem examination testified as follows;
“On the 10/1/96 at 4.30 p. m. I examined the body of late Tunde Oredipe. The body was identified to me by Frances Bisuga a family friend at the mainland Hospital mortuary Yaba. I found a well nourished male adult with multiple abrasives on the left check bone, (2) extensive abrasion over both left and right anterior chest wall with three lineal mulb on the left side (3) lineal abrassia right and left lateral chest wall lineal mulb about 10 c. m. (4) Lineal abrasions right and left flanks (5) wide abrasion both shoulders (6) wide and lineal abrasion lateral right and left upper halves of the arms (7) Abrasions left anterior auxiliary fold (8) Abrasions over the right scapular (9) Abrasions over right posterior chest wall (10) Dark hupes pigmented patches soft over the right ankle anteriorly.
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All the internal organs appear normal except the sleen which is moderately enlarged.
In summary I found a well nourished healthy looking male adult with multiple extensive abrasions over the body. However all the internal organs appear intact with no internal bleeding or brides. (SIC)
My findings are (SIC) consistent with physical violence. The cause of death is nexogenic(s) shock. Shock is a service of complex systemic reaction of the body done to external or internal stimuties.
In case of nerogenic shock, it is due to traumatic external injury on the body resulting in the stopping of sympathetic nervous system leading to reduced cardiac out put hypotension and invariously lack of oxygen in the brain and the heart. Depending in the duration of the external injury the shock would lead to a complete brain death and cardiac arrest leading to death.
The injuries led to nerogenic shock I do not think the injuries can be self inflicted.
The injuries are not consistent with a fall”.
The 2nd Appellant whose appeal is still on course apart from denying the accusation of being one of those who murdered the deceased set up a defence of alibi-claiming that he was never present on the date the act was perpetrated at Ilorin but rather he was at Ijebu-Ode. The 1st Appellant denied killing the deceased but rather said that it was the beating he had from the crowd who lynched him that was responsible for his death.
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Now, the only issue I have to consider in response to the appellants brief is whether the Court of Appeal was right to have affirmed that the defence of alibi set up by the 2nd Appellants 3rd Cross Respondents was not proved.
In all, therefore, the issues before the Court to determine are:
(a) The proof of the defence of Alibi
(b) Whether in all cases the prosecution must prove and tender as exhibits such items as knife, cutlass, axe or other heavily weighted objects before an intention to kill can be proved. And
(c) That lack of knowledge of the victim’s state of health or ignorance that torture could kill is a mitigating circumstance in a charge of murder.
The 2nd Appellant/Cross Appellant in his testimony in Court said:
“from the 1st December – 31st December 1995. I was at Ijebu-Ode. From 1st January 1996 – 13th January 1996 I was at Ijebu – Ode. I have never been to Ilorin anytime”
under the cross examination he said:
“I told the Police that I was in Ijebu-Ode when (the) incident happened …….. I do not know why the Police should be looking for me 2 days after my arrival at Lagos from Ijebu-Ode ………… it was Yekini who wrote down my name for the Police to arrest me. I do not know why Yekini should put down my name. I do not know the 2nd accused”.
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In his submission, the learned counsel for the appellants submitted that the trial judge did not satisfactorily evaluate the defence of Alibi raised by the 2nd Appellant. The word “alibi” is a Latin expression meaning. “I was elsewhere”. Exhibit K which was said to be the statement of the 2nd Appellant Jude Sowemimo when tendered in the Court below was not objected to by the Counsel for the accused persons in the Court of 1st instance. Because of the alibi he now set up at the trial, I would reproduce some portions of his statement to the Police which is Exhibit K:
“I later left Ijebu-Ode I then went back to my uncle’s house Rtd. Capt Funso Sowemimo at No. 13 Akowojo till the time of the incident I was living with my uncle Rtd. Capt. Emmanuel Funso Sowemimo. On 30th of December 1995. I was sleeping, when they came and woke me up with the other people sleeping in the compound. During the interrogation my Rtd. Capt. Emmanuel Funso Sowemimo, Engineer and Mutiu were the people that tied Tunde and the three of them started beating Tunde as they were asking questions from Tunde. As Tunde’s father was from his son and said that they should not beat Tunde again that he will ask from Tunde whether he took the money the Rtd. Capt. Emmanuel Funso Sowemimo started beating Tunde’s father and I dragged Tunde’s father to the down stair Tunde later called Sidi to come, and told Sidi that he did not share any money that Ayo was telling lies against him that Sidi should go and ask from him. The two captain’s wives did not beat Tunde but they were sitting down there. It is Engineer, Mutiu and Rtd. Capt. Emmanuel Funso Sowemimo that beat Tunde”
It is evident that his testimony in Court was at variance with the statement tendered which was not objected to at all when tendered in Court. To buttress his case that the defence of alibi was made at an earliest opportunity the learned Counsel for the Appellant cited the
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case of Otti V. The State (1993) 4 N.W.L.R. (Pt.290) at 675 on the importance of the necessity of the Plea of alibi being raised at an earliest opportunity. In the present case it is manifestly evident that apart from the fact that the defence of alibi was not raised at the earliest opportunity the 2nd Appellant evidence in Court was completely at variance with and seriously contradicted the statement he made to the Police which when tendered was not objected to. In expatiating the issue of the so called alibi and its worthiness or substantiality the Appellant’s counsel cited the case of Adisa V. The State (1991) 1 N.W.L. R. (Pt. 168) 490 in which the Court of Appeal stated the necessity of the persecution to seek for an adjournment to investigate an alibi. It could have been the case if the Court below did not conceive that what the accused was putting on as a defence was falsity manufactured in the course of the trial to gain reprieve. The evidential proof of this witness to rebut the charge that he was one of those who beat the deceased was sham and watery and is comparable to the case Riu Biggs 1839 2 M and Robb 199 where the prisoner on a charge of robbery the prosecution was allowed to rebut the alibi by proving that shortly before the attack on him the prisoner had robbed another person. See also R V. Rooney (1936) 7 c P.5 17. It should be observed that the graphic manner the 2nd Appellant described in most detailed form what transpired in the 1st Appellant’s house shows that he was present. He admitted pushing the father of the deceased down stairs when the father objected to the beating his son was being subjected to. I really fail to see how this Court would seriously consider the so – called defence of Alibi of the 2nd appellant when;
(a) He never raised his defence at the earliest opportunity he had;
(b) When during his evidence he tried to disown his statement Exhibit K stating that he is an illiterate and could neither read nor write, yet he admitted having read up to standard 6;
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(c) When his defence of alibi contradicts in material particulars – in fact completely at variance with Exhibit.
In the case of Odili V. The State (1997) 4SC. P. I., the Supreme Court had held thus particularly in repudiating the defence that sought to strengthen the plea of Alibi raised so late in the day;
“We also reject accused’s vague attempt to raise the defence of alibi since the alibi lacks condor. Accused at nowhere in his statements Exhibits 1 and 2 mention his wife D.W.2. Had the accused wanted police to investigate his purported defence of alibi he should have at the earliest opportunity furnished the police with full details of the alibi to enable the police to check on the details. Failure of the accused to furnish the particulars of his alibi in our view, weakens the defence of the accused”.
The attempt by the 2nd appellant to hoodwink the Court by his mumbo-jumbo story which seeks to show that he was not at the scene of the crime was designed to divert the mind of the Court which was an effort that did not seriously understand the implication of the plea of the Alibi. It is a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else where most probably there were people who could testify that at the time of the alleged incident or act he was not at the scene of the crime unless he is capable of being in two places at the same time. To my mind there is nothing to fault the judgment of the Court of Appeal in affirming the rejection of the most puerile defence of alibi set up which is just a ruse.
The Respondent in this case had filed a cross-appeal and indeed went to the extent of addressing the Court on the nuances of the cross- appeal in a brief. The Appellant filed an objection to the competence of the cross-appeal arguing that the Cross-Appellant did not
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obtain the leave of the Court for the cross-appeal. In the cause of proceedings, the court found as facts that;
(a) the cross-Appellant did not apply for an extension of time for leave to cross-appeal and
(b) did not equally seek the leave of the Court to file the cross- appeal.
There was no reasonable or discernible defence or answer to this obvious lapse on the part of the Cross-Appellant. Counsel for the Cross-Appellant admitted that the Cross-Appellant did not obtain the required leave. That being the case there is no cross-appeal and the brief based on an incompetent appeal is worthless being equally incompetent.
In the final result the main appeal is dismissed and the judgment of the Court of Appeal is affirmed. The cross-appeal being incompetent is hereby struck out.
SC. 45/2002
