Jimoh Awopejo & Ors V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

At the conclusion of the trial conducted by Olagunju J (as he then was), each of the appellants was convicted of the offence of culpable homicide punishable with death, contrary to section 221(a) of the Penal Code. The learned trial Judge thereafter sentenced each of the appellants to death.

Dissatisfied with the decision, the appellants appealed to the Court of Appeal. After reviewing the facts and the evidence and in a considered judgment, the Court of Appeal dismissed the appeal of each of the appellants.

The appellants have now come before this court appealing against the decision of the Court of Appeal in which it affirmed the conviction and sentence passed on each of them by the High Court.

The facts of the case are undisputed. A chieftaincy dispute over the succession to the stool of Bale of Oke-Oyi town led to the death of one Alhaji Issa Atanda. The Kwara State Government made two conflicting announcements on 28/9/93 and 29/9/93 concerning the successor to the stool. The Government carelessly announced two different persons for the same stool. The announcement polarized the small community into two, each faction supporting one of the candidates announced by the Government. Tension was high in the village. An irate crowd singing war songs visited the house of the father of the deceased and threw stones into the premises. They dispersed when it began to rain heavily. They came back the following day. This time they were armed with guns and lethal weapons. On seeing them armed, PW2, who was the father of the deceased, came out of his house and ran towards the house of his son, Alhaji Issa Atanda. The mob pursued him. He entered the house and met Alhaji Issa Atanda and his wife standing outside their room. The mob came into the house and attacked Alhaji Issa Atanda. Alhaji Issa Atanda, his father (PW2) and his wife (PW4) entered a room and locked the door. The mob broke the door, entered the room and savagely attacked Alhaji Issa Atanda in the presence of his wife and father. Alhaji Issa Atanda collapsed and died in the room. The body was dragged out of the room and the irate mob threw stones on the corpse.

The father of the deceased identified seven members of the mob who entered the room and killed his son. They were arrested and arraigned before the court for the offence of culpable homicide punishable with death. As I mentioned earlier, in this judgment, the trial High Court found them guilty as charged and sentenced each of them to death. The convictions and sentences were affirmed by the Court of Appeal.

Learned counsel for the appellants, Yusuf Ali, SAN, identified six issues for the determination of this appeal. The issues are as follows:

“1. Whether the court below was right to have endorsed the trial court’s holding that the failure of the prosecution to elicit any evidence on the identification of the corpse of the deceased to the doctor that performed the postmortem examination was not fatal in the circumstances of this case.

2. Whether the court below was right to have agreed with the trial court that the abridgment and failure of the prosecution to observe strictly the mandatory provisions of sub-rule 3(2)(b) of the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970 was not fatal to the trial of the appellants and whether the difference between the charge and the evidence led was not fundamental to have vitiated the trial.
3. Whether the court below was correct to have agreed with the way and manner the trial court first reviewed, considered and accepted the case of the prosecution ever before considering at all the defences of the appellants which led to a failure of justice and truncation of the appellants’ right to fair hearing.
4. Whether the court below acted properly in agreeing with the trial court that there were no material unexplained contradictions in the case of the prosecution, and by picking and choosing between the evidence of the prosecution witnesses.
5. Whether the court below was right to have confirmed the decision of the trial court on the rejection of the alibi of the appellants which in effect put a higher burden of proof on the appellants.
6. Whether the court below was right to have agreed with the trial court that the prosecution proved its case as enjoined by law inspite of all the errors highlighted in the prosecution’s case”.

The Solicitor-General of Kwara State who settled the respondents’ brief, adopted the issues formulated by the appellants’ counsel.

Learned counsel for the appellants opened his submission on the issue of identification of the corpse of the deceased to the doctor who performed an autopsy on the body of the deceased and referred to the following observation made by Amaizu J.C.A. in his judgment:

“Exhibit 10 is a medical report which was issued by the doctor that performed the autopsy on the body of the deceased. The doctor did not give evidence in the Court below. He is dead. PW3 who was stated in the report to have identified the corpse to the doctor did not give evidence of the identification. There is therefore no nexus between the corpse of the deceased and Exhibit 10.

It is to be appreciated however that the real purpose of identification of a corpse is to ensure that there is no miscarriage of justice. The identification is therefore necessary in order to avoid a situation where an accused may be convicted for the murder of a person who is alive. It has to be remembered that both parties agreed that Alhaji Issa Atanda is dead. Exhibit 8, 8A, 6, 9 & 9A the negative and print of the photographs of the deceased body confirm this. It is in evidence that he died on the spot after he was attacked. It seems to me therefore that in the light of the evidence, which the learned trial Judge believed even if Exhibit 10 is expunged, it is not fatal to the prosecution’s case. This is because the evidence of the prosecution from which the court decided the cause of death of the deceased showed unequivocally the nexus between the death of the deceased and the unlawful acts of the appellants.”

Yusuf Ali, SAN, argued that it is clear from the observation of the learned trial Judge that the doctor who wrote the medical report Exhibit 10, did not give evidence before the trial court. PW3 who was stated in the exhibit to have identified the corpse to the doctor did not say a word on the point in his evidence. Learned counsel further stated that there is no nexus between the corpse of the deceased and Exhibit 10. Yusuf Ali, SAN submitted that there must be certainty of the identification of the corpse of a deceased to the medical officer who performed the postmortem examination. He argued that it is the nominal requirement of the law to avoid miscarriage of justice.

In this submission Yusuf Ali, SAN is saying that the failure of PW3 to state that he was the person who identified the corpse of the deceased to the medical officer is fatal to the prosecution’s case. I do not think so. The facts of this case show that the identity of the deceased was not in doubt. The death occurred in a small community where all parties involved are known and could easily be identified. The deceased was a well-known personality in the community.