Fatai Adele Vs The State (1995)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, JSC.

On 21st November, 1982, there was an affray at Atewolara Garage, Mushin, during which members of the National Union of Road Transport Workers Association (NURTWAN), and the Road Transport Employers Association (RTEAN) fought each other. During the skirmishes, one Sesan Idowu Moses was murdered. Many arrests were made, and at the end of investigations, nine members of NURTWAN were charged with the murder of Sesan Idowu Moses. Before the trial opened, the charges against 2nd, 5th and 6th accused were dropped and 1st accused escaped from custody while awaiting trial.

The prosecution led evidence against the remaining five accused persons, namely, Motu Folorunsho as 3rd accused, Bashim Awofe, 4th, Abiodun Ogunleye, 7th, Fatai Adele, 8th and Motu Jimoh as 9th accused person. At the conclusion of the trial, the learned trial Judge discharged the 7th accused and convicted the 3rd, 4th, 8th and 9th accused persons. On appeal to the Court of Appeal, the learned justices (Coram: Sulu Gambari, Niki Tobi and Ubaezonu, JJ.C.A.) allowed the appeal of Mufu Folorunsho, BashiRU Awofe and Mufu Jimoh. They appeared before the Court of Appeal as 1st, 2nd and 4th appellants respectively. Thus leaving only Fatai Adele 3rd appellant whose appeal was dismissed to contest his conviction in an appeal before this Court.

Fatai Adele filed two grounds of appeal before this court and his counsel formulated two issues for the determination of the appeal from those grounds. Learned counsel for the respondent formulated similar issues, couched in a simple language, from the grounds. The two counsel are therefore ad-idem that the following issues shall be questions for the determination of this appeal:

“1. Whether the Court of Appeal properly evaluated the evidence of P.W.3 against the appellant before using it to confirm the conviction and sentence of the appellant by the High Court.

2. Whether the Court of Appeal properly evaluated the plea of Alibi put forward by the appellant.”

Learned counsel for the appellant, on issue 1, submitted that the Court of Appeal was in error to hold that there was no where to show where the learned trial Judge disbelieved the evidence of P.W.3 Counsel said that the learned trial Judge discredited and rejected the evidence of P.W.3 on at least two occasions. The first was when the learned Judge was discharging and acquitting the 7th accused notwithstanding that P.W.3 testified before the court and said that he saw both the 7th and 8th accused persons matcheting the deceased. The second occasion was when the learned trial Judge convicted and sentenced the 3rd, 4th and 9th accused persons notwithstanding the evidence of P.W.3 that he did not see any of them among the crowd, at the scene of the crime. Although learned counsel for the respondent replied that the trial court did not disbelieve the evidence of P.W.3, it is plain from the judgment of the trial court that the learned trial Judge was in doubt over the evidence of P.W.3.

It is therefore relevant in this judgment to reproduce the evidence of P.W.3 and thereafter analyse what the learned trial Judge said in his evaluation of that evidence. In his testimony before the court P.W.3 said:

“When we saw accused and crowd we were running for our lives. We saw accused with cutlasses hence we ran. We were running to the police station. We met the accused and crowd and could not enter. They chased us and matcheted one Sunday. There we saw the accused and crowd running after the deceased Idowu Moses. He sells tea and eggs at the garage. One of the crowd (sic), now at large tripped the deceased. The 1st Accused started to matchet the deceased. The 7th and 8th accused were matcheting the deceased. I saw wife of deceased (P.W.1) coming towards the scene. The men started throwing bottle at her. l had to hide in a chemist’s shop and hid myself. Deceased fell unconscious.”

While considering the defence put forward by the 7th accused learned trial Judge referred to the above testimony, because P.W.3 had identified the 7th accused in the crowd. The learned trial Judge in his judgment expressed some doubt over the veracity of the testimony of P.W.3 in connection with the witnesses identification of the 7th accused at the scene of the crime.

The doubt is clear in the following extract from the learned trial Judge’s Judgment:

“The principal eye witness in this case was P.W.! the wife of the deceased. She did not testify that she saw the 7th accused at the time of the assault on the deceased, Sesan Idowu Moses. P.W.3 appeared tome equivocal as to whether or not the 7th accused was at the scene. P.W.3 estimated the crowd he saw as about 200 and that there was a crisis situation at the scene.

Having regard to the testimony of P. W.3 and the evidence of the 7th accused and his father, there is doubt in my mind as to whether or not the 7th accused was present and took part in matcheting the deceased.” In his evidence before the trial court P.W.3 identified the 1st, 7th and 8th accused persons attacking the deceased with a matchet. It should be noted that the 8th accused is Fatai Adele, the appellant in this appeal. If the learned trial Judge was in doubt about the testimony of P.W.3 in connection with the attack on the deceased which led hint to discharge and acquit the 7th accused, the 8th accused ought to have benefited from this doubt and be discharged as well. The learned justice of the Court of Appeal, Niki Tobi, JCA, who wrote the leading judgment in the appeal filed by four appellants before that court, with respect, made inconsistent findings in respect of the trial Judge’s evaluation of the evidence of P.W.3.

The learned justice of the Court of Appeal questioned the manner in which the learned trial Judge seemed to have dismissed the evidence of P.W.3 and thereafter said:

“There is no where the learned trial Judge disbelieved the evidence of P. W.3. Rather, he believed the evidence of the witness, a situation which resulted in the acquittal of the 7th accused person.”