Otunba F. E. Sowemimo Vs The State (2004)

LAWGLOBAL HUB Lead Judgment Report

C. PATS ACHOLONU, JSC

The appellants were charged with the murder of one Tunde Oredipe, tried, convicted and sentenced to death by hanging. They appealed to the Court of Appeal, which reduced the conviction of murder to that of manslaughter in which that Court imposed some sentence. The appellants not obviously still satisfied with the Judgment of the Court of Appeal thereupon appealed to this Court and framed two issues for determination. The State equally cross -appealed.

However in arguing the appeal, the learned counsel for the Appellants dropped issue one and relied on issue two which is,

Whether the learned Justices of the Court of Appeal were right when they affirmed the decision of the trial Court that the defence of alibi properly set up by the 3rd Appellant Babatunde Sowemimo (herein refer (sic) to as 2nd Appellant) was not proved by the Appellant.

The respondent equally framed two issues for determination, which are;

Whether the Court of Appeal was right to have affirmed the decision of the trial Court that P.W.4 was an expert in determining the cause of death of the deceased.

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Whether the Court of Appeal was right when it affirmed the decision of the trial Court rejecting the alibi set up by the 3rd Appellant.

Of course with the appellant’s Counsel having dropped issue one (1) it goes without saying that the corresponding issue No. 1 that features in the Respondent’s brief equally goes.

The Cross-Appellant not satisfied with judgment of the Court of Appeal appealed and framed two substantial issues to wit;

Whether it is the correct position of the law as held by the Court of Appeal that there is a legal or evidential burden on the prosecution in all cases to establish through evidence the use of a knife, cutlass, axe or other heavily weighted object and to tender those items before an intention to kill can be proved.

Whether it is the correct position of law as stated by the Court of Appeal that lack of knowledge that a particular act might cause death or that ignorance about the precocious state of a deceased person’s health or ignorance that torture could kill, is a mitigating circumstance in a charge of murder.

The Cross-Appeal is in respect of the 3 Appellants whose convictions for murder were reduced to that of manslaughter. The 2 Cross Respondents equally adopt the same issues as framed by the Cross Appellant. I shall come to this later and examine the substance and competence of the Cross-Appeal.

By dropping the issue in respect of the 1st Appellant there is therefore no appeal to be urged on the 1st Appellant. In order words, the judgment of the Court of Appeal against him is not being pursued on the appeal in this Court.