Sule Oladejo Asariyu V. The State (1987)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

On the 18th day of October, 1984, the appellant was arraigned before Olowofoyeku, J, sitting at Oyo High Court, and charged with the offence of murder punishable under Section 319 of the Criminal Code Cap. 30 Volume II, Laws of Oyo State of Nigeria, 1978. The charge alleged that on or about the 2nd day of June, 1983, at Mogaji Abogunrin area of Oyo town, he murdered one TIJANI AFOLABI. He pleaded not guilty to the charge.

At the trial nine witnesses gave evidence for the prosecution while the appellant alone testified in his own defence. At the conclusion of the hearing, Olowofoyeku, J. delivered a considered judgment on 8/2/85 wherein he found the appellant guilty, convicted him and sentenced him to death.

The facts of the case proved and accepted by the learned trial Judge, Olowofoyeku, J. are simple and are briefly as follows:

In the early hours of 3rd day of June, 1983, Amusa Yusufu (P.W.1) and Tijani Afolabi – the deceased, were on duty as night guards in the Isale Oyo area of Oyo town when they both heard some sound as if the door or window of a bakery in the vicinity was being opened. The deceased ran towards the direction of the sound and was followed by P.W.1. When the deceased got to the place and was about to arrest the intruder (who turned out to be the appellant), the appellant struck him on the head with a matchet.

Thereupon, P.W.1, on getting to the place hit the appellant on the head with a heavy stick and immediately started blowing his whistle so as to attract the attention of some other night guards in the neighbourhood. The appellant took to his heels and fled into a dilapidated mud building. Meanwhile, a number of night guards who had heard P.W.1’s distress call, pursued the appellant into the mud building which they surrounded after the appellant had locked himself inside. While this was going on, some of the night guards rushed the deceased to the hospital where he died before any assistance could be given to him. Eventually the matter was reported to the Police and the appellant was arrested.

Aggrieved by the conviction and sentence, the appellant appealed to the Court of Appeal, Ibadan Division (consisting of Ogundare, Sulu-Gambari and Onu, JJ.C.A.) and in a considered judgment, the Court unanimously dismissed his appeal. Still aggrieved, he has brought this appeal against his conviction and sentence.

Originally only one ground of appeal was filed and that was the general ground alleging the conviction of the appellant was not supported by the evidence adduced. However when the appeal came up for hearing on the 15th day of October, 1987, Otunba Ajayi-Okunuga for the appellant, sought, and was granted leave to file and argue two additional grounds of appeal. So the three grounds of appeal argued are as follows:

“Ground One

The case against the appellant was not proved beyond doubt as required by law.

Particulars:

The absence of an eyewitness account of the incident made it impossible for the prosecution to prove the case. Because PW1 said that the deceased got there before him, and that the assailant took to his heels as soon as he hit him with a heavy stick. Again it was in the dead of night, obviously one would think that he had no opportunity of observing the incident.

Ground Two

The identity of the appellant is dubious in the extreme; because there is no evidence that he was caught red-handed at the scene of the crime.