Segun Oduneye V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The appellant was arraigned before an Oyo High Court presided over by M. A. Owoade, J on a two count charge of conspiracy to commit murder and the murder of Chief Amuda Olorunkosebi, the late Ashipa of Oyo, on or about the 26th day of November, 1992, at Ijawaya village, contrary to and punishable under sections 516 and 319 of the Criminal Code, Cap. 30, Volume II, Laws of Oyo State of Nigeria, 1978.

The trial commenced on the 12th of February 1998 wherein the prosecution fielded a total of 14 witnesses. The appellant, on his part, testified on oath and called his wife, DW1, as a witness. Both learned counsel for the appellant and the prosecution respectively addressed the court. The learned trial Judge thereafter delivered his judgment on the 18th of June, 1998 whereupon he discharged and acquitted the appellant on the second count charge of murder but convicted him on the first count charge of conspiracy to commit murder and sentenced him to seven years imprisonment, without option of fine.

Dissatisfied with the judgment of the trial court, the appellant appealed to the court below which confirmed his conviction and sentence, hence the appellant’s further appeal in this court.

I shall first outline the evidence of the key witnesses in this case. The case for the prosecution is that the appellant in company of one Abiodun Faseyitan came to the deceased and requested for a parcel of land suitable for fish pond and cattle poultry (sic). Consequent to this, the appellant and Abiodun Faseyitan (hereinafter referred to as Faseyitan) visited the deceased and inspected the site in company of agents or representatives of the deceased on two occasions between the months of October and November 1992. PW1, Alhaji Ganiyu Ajiboye, testified that when the appellant and Faseyitan came back to the deceased he, the deceased, requested him to take them to the pond site at Ijawaya. PW1 recognised the appellant as one of the persons whom he took to the site. The visit to the site was in a Datsun Bluebird with Registration No. KD 1586 DU, driven by the appellant while he sat in front with him and Faseyitan sat at the back. On the way to the site they collected Gbadamosi Oyelakin and Raimi Ishola. And after visiting the site Gbadamosi Oyelakin and Raimi Ishola were dropped at their homes and he, PW 1, proceeded with the accused and Faseyitan to show them the deceased’s personal pond as directed by the deceased and thereafter the three of them went to report their mission to the deceased.

On the insistence of Faseyitan and in the presence of the appellant and the deceased, Faseyitan demanded that the deceased should accompany them to the site to confirm that the site belonged to him. The visit to the site was fixed for 26/11/92. On that day, after a naming ceremony attended by the deceased, PW 1 accompanied the deceased, along with the appellant and Faseyitan and some others to the site. At this time, Faseyitan, the deceased, PW1, Raimi Ishola and the appellant rode together to the site. On arrival at the site, PW1, said that they saw a masked person who suddenly emerged, threatened them and pointed a gun at them. Faseyitan then brought out a picture of Alaafin of Oyo and showed it to the deceased and said that this is the person he should ask about these matters. At this point the deceased bent down but PW1 did not see whether the gun shot, hit the deceased or not, because he fled as soon as he heard the gun shot, leaving Faseyitan and the appellant there. He also saw another masked person who was armed with a matchet. On his return to Ijawa, he discovered that Raimi Ishola had been matcheted. The witness later reported the incident at the Police Station.

It was only in 1994, while in the company of one Ayankojo that witness saw the appellant, identifying him as the person who was always, in the company of Faseyitan. Subsequently, he made a report of this to the police in Lagos that they had seen the appellant. One Police Officer, named Tinubu was detailed to go with them to Ibadan where, with the assistance of two other police officers, the appellant was arrested. Later witness identified the appellant, having earlier in an identification parade, identified Faseyitan.

PW2, Alhaji Raimi Ishola, was another key witness for the prosecution and virtually confirmed the testimony of PW 1 particularly on the issues surrounding the death of the deceased. PW4, Lasisi Ayankojo, confirmed how while in PW1’s company efforts were made to locate the appellant at his house at Ibadan and his subsequent arrest. On 3rd May 1995 the matter was assigned to PW5, Mojeed Olajide Tinubu, an Assistant Superintendent of Police. There was also PW7, James Oyelowo Jenfa, a Surveying Assistant who accompanied the appellant and others to the site sought to be sold by the deceased to the appellant and Faseyitan. He readily identified the appellant, as the person who drove them to the site on 19th November, 1992. Again, one Sunday Adeyinka, PW8, a motor mechanic at Mokola, Ibadan testified as the person, who on the instruction of Faseyitan changed the system of the Datsun Bluebird car being used by the appellant and Faseyitan from right hand drive to left hand drive, sometime in December 1992. PW 10, Raimi Buraimoh, bought the Datsun Bluebird from Faseyitan after the change in the system from right hand drive to left hand drive.

The appellant testified in his own defence. A striking aspect of his testimony is that appellant denied ever meeting the deceased and further denied involvement in the charges of conspiracy or murder of the deceased. He however admitted that Exhibit “P2” – a photocopy of the passport of the Alaafin of Oyo – was recovered in the house. He also admitted that Faseyitan served as a pointer to the police who came to arrest him in 1993 with regard to this case. Appellant’s wife DW1 also testified on behalf of the defence and asserted that the appellant was not in talking terms with Faseyitan at the material time to the case.

As already stated, after the confirmation of appellant’s conviction and sentence by the Court of Appeal, appellant undauntedly shifted the legal battle to this court. His learned counsel filed three grounds of appeal on his behalf and therefrom formulated three issues for determination namely:

“1. Whether the learned Justices of the Court of Appeal were not wrong in confirming the appellant’s conviction for conspiracy inspite of the finding of the learned trial Judge that “The prosecution has not fixed the action or inaction of the accused with the death of the deceased”,

2. Whether the learned Justices of the Court of Appeal were not wrong when they held that the failure by the prosecution to call Abiodun Faseyitan and Alaafin of Oyo was not fatal to the prosecution’s case.
3. Whether the contradictions in the case of the prosecution are sufficiently material to justify the discharge and acquittal of the appellant by the Justices of the court below.

Learned counsel for the respondent also identified three issues for determination, namely:

“1. Whether the prosecution, proved the charge of conspiracy against the appellant beyond reasonable doubt.

2. Whether the failure of the prosecution to call certain witnesses is fatal to the case of the prosecution.
3. Whether the court below, was right in affirming and upholding the conviction of the appellant.”

The two respective sets of issues for determinations identified by both parties are identical and there is hardly much to choose between them. Nevertheless, I prefer to tackle the resolution of the issues herein by relying more on the appellant’s set of issues.