Akibu Hassan Vs The State (2001)

LAWGLOBAL HUB Lead Judgment Report

KASTINA-ALU, J.S.C. 

At the Ibadan High Court the appellant was, along with Wahabi Adisa and Saka Adekunle, charged with the murder of one Abiodun Iyiola contrary to section 319(1) of the Criminal Code Cap. 30 Volume II, Laws of Oyo State, 1978.

On the second count, appellant, along with Wahabi Adisa, Saka Adekunle and Rasaki Layiwola, was charged with assault occasioning harm. The case was heard by Adekola, J. (as he then was) who on 27/1/92 in a reserved judgment found only the appellant guilty of murder on count 1 and sentenced him to death accordingly. On the second count Adekola, J. also found only the appellant guilty of lesser offence of ordinary assault contrary to and punishable under section 351 of the Criminal Code. The three other accused persons were acquitted and discharged on both counts.

The appellant’s appeal to the Court of Appeal, Ibadan Division, was dismissed. This appeal is from the judgment of the Court of Appeal.

Against that judgment, the appellant has canvassed in the main that he never took part in the murder of the deceased. He also denied ever making Exhibits I and II which the two courts below held to be confessional statements. The questions stated for determination in the appellant’s brief of argument appear to bear on these issues. They are:

1. Whether in view of the nature and quality of evidence adduced by the prosecution, the Court of Appeal did not err in affirming that the trial Judge rightly convicted and sentenced the appellant to death for murder.
2. Whether the learned trial Judge rightly found that exhibits I and II were actually made by the appellant. If the answer is Yes, whether the exhibits could rightly and properly be used to corroborate the evidence of PW1, Exhibits A, B, and C.
3. Whether the appellant’s identity was properly established without doubts.
4. Whether the lower court was right to have affirmed the appellant’s conviction for a lesser offence of ordinary assault.

The respondent formulated three issues for determination which read as follows:

1. Is the Court of Appeal (lower court) in error by believing the contents of Exhibits I and II thereby affirming the conviction and sentence of the appellant by the trial court.
2. Whether the identity of the appellant was in doubt.
3. Whether the Court of Appeal was right to have affirmed the appellant’s conviction for lesser offence of ordinary assault.

Briefly, the facts of the case as related by the respondent through P.W.1 Kunmi Iyiola the elder brother of the deceased Abiodun Iyiola, who gave an eye witness account of the incident were that on the 26th day of August, 1990 both the deceased who was an apprentice motor (trailer) driver, and himself left their house at Ogbere Babanla at about 4.30 a.m. in order that the deceased might meet his master at Oremeji by 5 a.m. As they got to a place called and known as Okikiade, seven men accosted them and asked where they were going to at that time of the day. When PW1 and the deceased tried to answer, the men ordered them to prostrate. They obeyed and in that condition PW1’s hands were tied with ropes. Thereafter, PW1 and the deceased were attacked with machetes and cutlasses.

The deceased tried to escape but due to the severe injury he suffered from the machete cuts, he fell down and became unconscious. Thereafter the seven men ordered PW 1 to take them to his house. When they nearly got to his house, the men ran away. It was then that PW1 was able to report the incident at the Agugu Police Station.

A police sergeant was detailed to accompany PW1 to the scene of the incident. Abiodun Iyiola was then taken to a hospital at Aremo for treatment. He died later in the hospital at about 10.15 a.m. on the same day i.e. 26/8/90.

According to PW the four accused persons arraigned at the trial court were among the seven men that accosted the deceased and himself. The body of the deceased was later taken to the State Hospital, Adeoyo where Dr. M. A. Aboderin performed the post mortem examination on the body. However, before the commencement of the trial, Dr. Aboderin died and the post-mortem report was tendered and admitted in evidence by Dr. T. I. Ipadeola as Exhibit “K”.

The appellant made one (1) extrajudicial statement to the Police. The Yoruba and English versions of the statement were tendered and admitted at the trial as Exhibits I and II respectively. In Exhibit I the appellant narrated how he and the other accused persons pursued the deceased, macheted him until he fell down. Exhibit I was thus treated as a confessional statement.

In his defence at the trial, the appellant vehemently denied making Exhibit I thus retracting the confessional statement. In his evidence on oath he gave an account totally different from the contents of the extra-judicial statement. In his evidence-in-chief the appellant raised for the first time the defence of alibi when he claimed that he was in Ondo province at all times material to the commission of the offence.

The learned trial Judge after a careful and thorough evaluation of the evidence before him, believed the evidence of the prosecution and found that the evidence of PW1 was corroborated by Exhibit I made by the appellant and exhibits A, B and C made by PW1 as to the role played by the 3rd accused/appellant in the death of the deceased. The defence of alibi raised by the appellant was rejected by the trial Judge and consequently the appellant was found guilty of murder and was sentenced to death. He was also found guilty of the lesser offence of ordinary assault on the second count.

The learned trial Judge in the course of his judgment said: