Sunday Olatunji V. The State (2009)

LawGlobal-Hub Lead Judgment Report

MODUPE FASANMI, J.C.A.

This is an appeal against the decision of Ogun State High Court of Justice Holden at Abeokuta in Abeokuta Judicial Division which was delivered on the 17th of July 2003.

The Appellant was charged at the trial Court with the murder of his wife Fausat Sunday at Owode Egba on 29th September, 1999. The Appellant shot the wife with a gun during a quarrel which resulted from the wife’s demand for money with which to feed their child. The case proceeded to trial and after concluding evidence on both sides and sequel to taking the final addresses, the trial Judge convicted the Appellant of the offence of murder and consequently sentenced him to death. Dissatisfied with the judgment of the trial court the Appellant filed a notice of appeal on the 8th of October 2003 and appealed to this Court.

Appellant’s brief was dated and filed on the 26th of January 2005 but was deemed properly filed and served on the 15th of September 2005. The Respondent did not file the Respondent’s brief even though the statutory period allowed for the Respondent to do so have lapsed. Appellant subsequently filed an application on the 21st of November, 2005 to hear the appeal on the Appellant’s brief alone in default of the Respondent’s brief. Application was granted on the 8th of April 2009.

At the hearing of the appeal, learned Counsel for the Appellant adopted his brief and relied on the arguments contained therein. Respondent’s Counsel was served with the hearing notice. Appellant’s Counsel distilled four issues for determination from the five amended grounds of appeal as follows:

(1) Whether the learned trial Judge was right in law to convict the Appellant of the offence of murder without first taking all the evidence before the Court into consideration.

(2) Whether the learned trial Judge was right in law to convict the Appellant of the offence of murder even though the prosecution did not investigate, at all, the defence of alibi made by the Appellant to the police ever before the Appellant was arraigned in court.

(3) Whether the learned trial Judge was right in law to:

(i) receive the sworn testimony of a child in evidence without first determining whether the child was sufficiently intelligent to understand questions put to him and

(ii) Conduct part of the trial of the Appellant in a language neither understood by nor interpreted to the Appellant.

(4) Whether the learned trial Judge was right, in law, to convict the Appellant of murder when the prosecution did not prove its case against the Appellant beyond reasonable doubt.

A cursory look at the issues formulated by learned counsel for the Appellant reveal that Issues 1 & 4 are fragmented and split to the extent that they can be said to be proliferated as far as the primary complaint of the Appellant against the decision of the lower court is concerned. The point dealt with in the two issues by learned Counsel for the Appellant is that the prosecution did not adduce material and sufficient evidence to prove the guilt of the Appellant beyond reasonable doubt as required by law.

To avoid repetition issues 1 & 4 will be dealt with together in this judgment. Learned Counsel for the Appellant submits that the learned trial Judge believed and accepted Exhibit B as the confessional statement of the Appellant without considering and evaluating the contradictory testimonies of P.W2 & P.w4. He argued that the failure of the learned trial Judge to consider the testimonies of P.W2 and P.W4 made it impossible for the trial court to resolve the contradictions between these testimonies on one hand and exhibit B on the other hand as to whether the Appellant voluntarily confessed to the crime. He referred to the case of IKEMSON V. THE STATE (1989) 3 N.W.L.R Part 110 page 455 at 467 para H. He further submitted that proper foundation was not laid before admitting exhibit B. It (i.e. exhibit B) was a secondary evidence, the original thereof having been lost with the case file. He urged the court to expunge exhibit B from the record and no reliance whatsoever should be placed on it. He submitted that the learned trial Judge ought to have evaluated all the evidence adduced by both sides before believing exhibit B assuming it was admissible. He referred to the cases of AWOPEJO VS. THE STATE (2002) 6 W.R.N 1 S.C pages 11-12 and OZIGBE V. AIGBE (1977) 7 S.C at page 1. He urged the court to resolve the doubt in P.W2’s testimony in favour of the Appellant.

He canvassed further that there was no eye witness account of the Appellant shooting the deceased. The nearest the prosecution came to an eye witness evidence was the evidence of P.W3 who testified that the deceased and the Appellant were quarrelling and he later heard the deceased shouted for help. He submitted that in the absence of an eye witness, the prosecution should at least tender both the gun used by the Appellant to shoot the deceased and the forensic laboratory report to show that the gun was fired, that the pellets retrieved from the body of the deceased matched those fired by the gun and that the finger prints of the Appellant were on the gun.