David Obue V. The State (1976)

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S. SOWEMIMO, J.S.C.

The appellant has appealed to this court from a judgment of the Western State Court of Appeal, Ibadan, which confirmed the conviction for murder and sentence of death passed on him, by the High Court of the Western State at Ado-Ekiti on 25th March, 1974.The case for the prosecution is that the incident on which the charge is based took place on 1st May, 1973.

The evidence of two prosecution witnesses which was relied upon is that of the 6th and 2nd prosecution witnesses in that order. The 6th prosecution witness in his evidence said:”………. I know Chief Emmanuel Ogunmola, he has since died. On 1/5/73 I went to the farm that morning. On my way home at about 9 a.m. I met the deceased on the way. He was working in his farm by the road side. At his request I loaned him 50K…………………..

“XXd:- When I saw the deceased he wore only singlet with which he worked in his farm…………………………………………

2nd P. W. on the other hand stated inter alia as follows:”…I know Chief Emmanuel Ogunmola. He was a chief in my village. He has since died. One day two years ago I went to Gbeduku farm. On my way I found the deceased lying on the road. I called on him he could not answer, later he answered me. I examined his body and I noticed he was covered with dried blood … …

XXd:- The deceased had a singlet and a pair of trousers on. There was no other clothes on him. I know the farm of the deceased. I found the deceased in his farm. His farm is adjacent to the motor road. The farm contained hill rocks.”

These are the only two witnesses who gave direct evidence of the clothes the deceased had on, on 1/5/73. No evidence was available as to what clothes the deceased wore and what articles he carried when going to the farm on 1/5/73. If the prosecution had thought or intended to rely on the evidence of the wearing apparel of the deceased and articles carried by him to the farm, this could easily have been obtained from the inmates of the deceased chief’s residence.

It is also surprising that the prosecution did not investigate from either the 2nd or 6th prosecution witness whether apart from the singlet and pair of trousers they said the deceased had on, on 1/5/73, they also saw any torn garment, dane gun, cutlass (matchet) and bag lying anywhere in the farm. Even the witness who gave out a loan of 50 kobo to the deceased did not see any other person working with the deceased in his farm. Neither of the two witnesses saw any recently-dug heaps ready for the planting of yams. We shall refer to the absence of these material facts when we come to consider the tests applied to verify the truth of the “confessional” statement admitted in evidence as exhibit H.

The prosecution next proceeded to prove the arrest of the appellant. The 5th prosecution witness stated inter alia:

“I know Chief Emmanuel Ogunmola. He has since died. One day sometime in 1973 I was returning from farm towards evening I saw the accused in the bush. I noticed he wore a garment which the deceased used to wear, he also carried dane gun, a cutlass, and a small bag of salt, (Exhibits A, B, C, & D identified as the articles I saw with the accused). I recognised them as belonging to the deceased.”

The 7th prosecution witness in evidence said inter alia:

“I know the accused. One Sunday last year in consequence of a direction of the Olishua of Ishua, myself and members of my society were sent out in search of the accused. On our way we received information from school children regarding the whereabout of the accused . We followed the direction, we saw the accused and we approached him and took him before the Olishua. When I first saw the accused, he was carrying a gun, cutlass and a bag, and was wearing a garment. Ex.E identified as the garment the accused wore, and exhibits A, Band D identified as the articles he carried. The accused was standing by the road side.”

No other member of the society who went with this witness gave evidence.

The other witness, the investigating police constable, is the 3rd prosecution witness and he stated inter alia: