Ifeanyi Chukwu V. The State (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C. 

The appellant was convicted of murder in the High Court of Oyo State sitting at Ibadan. The Court of Appeal, by majority decision, upheld the conviction and sentence of death of the trial court; thus the appeal to this court.

The appellant was accused of murder of one Aliu Mohammed, a night guard in the service of Solomon Oluyemi, Akinlawon, P.W.1. In the early hours of 30th October, 1986, the P.W.1 was in bed but not asleep and he heard some noise like that of people jumping over his fence. From the adjacent house and he got up to have a look. His premises, according to P.W.1, was well lit. He went to one of the far rooms to peep and saw “two of the strange men” climbing up the flight of stairs of his house with the deceased pursuing them.

The deceased was holding a stick and the strange men who had got near the kitchen got hold of some empty bottles and attacked the deceased after breaking the bottles by hitting him on the head. The sharp edges of the broken bottles were used to hit the deceased on the head until he fell down in a pool of blood. By that time (when the deceased fell down), according to P.W.1, his wife and children had joined him in shouting for help to the other neighbours. Some of the neighbours came out and so did some of the night watchmen in the neighbourhood.

The P.W.2, Julius Oladejo Ojeshina, a tenant of P.W.1 on the ground floor said he heard some commotion outside and heard the voice of the deceased warning some people against jumping over the fence into their premises and he (P.W.2) had to peep through the sliding doors. He saw some movement leading him and his family shouting “thief! thief !” in Yoruba language. Some men, according to him passed in front of the door to the staircase leading to the first floor where P.W.1 lived; he saw the deceased running after them and later he heard the sound of breaking of glasses. The neighbours had started coming out.

He said he saw the accused (appellant) in a black pair of trousers and a white long sleeved shirt as according to him, the place was well lit that night. He “wanted to come out through the front door when ……….. saw the present accused with a crate of Coca Cola bottles which he was throwing at the front door to keep me inside.” According to this witness, this accused (appellant) ran towards the gate and after attempting to force it open and failed, he then called “Ayo, Ayo” and he and the person he called Ayo ran to the fence, the appellant thereafter helped “Ayo” to jump over the fence and the two ran away threatening to come back. They ran towards the University College Hospital Secretariat Road, Ibadan.

It was then the P.W.2 opened his door and “ran to the gate to open” it for his neighbours. He saw the deceased on the ground unconscious, bleeding from the head. Police on patrol later arrived at the scene and took the deceased to the Hospital, i.e. University College Hospital, Ibadan, where he was admitted but died between 0930 hours and 1000 hours. According to both the P.W.1 and P.W.2, the whole incident of the attack by the marauders occurred around 0130 and 0200 hours of 30th October, 1986. The two witnesses testified that they later heard there was somebody arrested and went to the police station where they saw the appellant and identified him as one of those that attacked their house the night of the incident, but that was on 31st October, 1986.

According to P.W.2 the appellant that he was able to identify at the police station was not wearing the same dress he wore when their house was attacked. The witness who said he came out to open the gate for the neighbours confessed under cross-examination that he actually never came out when confronted with the statement he made to the police about his not going out. It is instructive to quote part of the evidence of this P.W.2 in cross-examination which runs as follows:

“I made the statement now shown to me but I must have been confused when making the statement as I did not go out that night. I would not know that our neighbours and other night guards arrested the first stranger they saw the following night because the robbers threatened to come back.”

The P.W.1 saw three suspects attacking the house but he never described the persons he saw and why he definitely identified the appellant P.W.3, Jimoh Amoo’s testimony was that he saw the appellant with two men and sometime later he heard the shout of “thief! thief!” and ran to the place. He saw the accused throwing bottles at all the night watchmen around.

The second day, at night, he saw the appellant and challenged him and called the neighbouring watchmen by whistle and arrested him. He was particularly vigilant as the brigands promised to come back so that when he saw the man (appellant) on 31st October, 1986 barely twenty four hours after the attack of the previous night they had to arrest him.

The appellant volunteered to take P.W.3and the other guards to where he was coming from but they refused; the appellant kept on asking if they (the guards) would kill him. After the attack on 30th October, 1986, P.W.4 was the one that led a team of police to the P.W.1 ‘s house on the distress call and not on patrol. The attackers had left the scene where he saw broken louvre glasses on the floor.

The accused told P. W.3 he was a driver but he was obviously not believed. P.W.4, the policeman, believed the P.W.3 and the other “night watchmen” were vigilantes. However, P. W.5 testifying for the prosecution positively identified the appellant as a fellow driver and that the police brought him to his place of work around the end of October, 1986. This witness was not cross-examined as his testimony favoured the appellant.

The P.W. 7, the investigating police sergeant recovered from the appellant a “white shirt and a pair of old brown pair of trousers that he wore that night”. He also recovered from the scene of crime empty “double barreled shell” and fifteen empty bottles of small stout in a crate. He also recovered a bunch of keys from the appellant. On cross-examination, the P.W.7, a police sergeant, left to investigate a serious crime, had this to say: