Adetokunbo Oguntolu V. The State (1986)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

Before the Akure High Court in suit No. AK/13C/83 ADETOKUNBO OGUNTOLU, the appellant herein and one Femi Ajewole were both charged with the murder of one William Ojo. It was alleged that William Ojo was murdered by both of them on the 3rd day of July, 1982 at Iju in the Akure Judicial Division contrary to Section 254(2) and punishable under Section 257(1) of the Criminal Code of the former Western Region of Nigeria now applicable to Ondo State.

Femi Ajewole who was the first accused escaped from custody and was not apprehended to face the trial. It was only the appellant who pleaded not guilty to their joint charge. The trial then proceeded against the appellant at the end of which he was found guilty for the murder of William Ojo and was sentenced to death. It is against his conviction for the murder aforesaid, the appellant has appealed to this court. There was only one ground of appeal filed with the notice of appeal, however with the leave of this court, the appellant was allowed to amend the grounds by the inclusion of six additional grounds of appeal. The original ground of appeal, that is, the first ground was abandoned and accordingly struck out. In compliance with the rules of court, briefs of argument have been filed for both the appellant and the respondent.

The facts of the case for the prosecution put shortly are: On 2nd July, 1982, Femi Ajewole brought some bags of cement to P.W.3 Adewale Gbadebo’s shop, P.W. 3 suspected that the bags of cement were stolen and refused to buy them, however Femi Ajewole off-loaded the cement and went away. P.W.3 after waiting for sometime went and reported the matter to the Police, and for some reason or the other P.W.3 was arrested and detained by the police. The appellant on the 3rd July, 1982 at about 10.00 a.m. came to the house of P.W.3 and told the inmates there, that he knew the whereabouts of the person who brought the stolen cement to the shop of P.W.3 The appellant volunteered to take the P.W.1 KIKELEMO ADEYEYE and the deceased William Ojo to that place. The three of them entered a taxi and went to Iju where they met the 1st accused Femi Ajewole in his father’s house, Ajewole Otaki P.W.7. P.W.1 did not enter the room where Femi Ajewole, William Ojo and the appellant had some discussions. But a few minutes later, they came out and the appellant and Femi Ajewole asked the deceased and P.W.1 to follow them to a certain place. What took place from there could best be set out by reproducing portion of the evidence of P.W.1.

“..Femi Ajewole, as we went further into the bush, asked if William Ojo was a C.I.D. I said he was not but a worker in the Ministry of Education. The two of them slowed down (that is, the appellant and Femi who were in front) and Femi Ajewole walked up and siezed my scarf and tied it round my face, pushed me on the ground. He held me by the neck and tore my pant. And Ajewole had sexual intercourse with me. 2nd accused on the other hand had knocked William Ojo who was crying for help ….. Femi Ajewole took me near to William Ojo and asked me to lie down. 2nd accused told Femi Ajewole to go for a matchet. Ajewole went for a matchet. At the time the 2nd accused held William Ojo by the throat I was still blindfolded but I could see through the scarf. When Ajewole came with the matchet, Adetokunbo took it from him and cut William Ojo on the head and all over the body.”

The dead body of William Ojo was put aside and covered with some rubbish. The appellant and Femi went away whereupon the witness travelled back to Akure and she later informed the Police. During cross-examination she said William Ojo died even before the matchet cuts as the appellant was holding the deceased on his throat and he lying down and not moving. P.W.7 the father of Femi Ajewole testified and confirmed that P.W.1 and William Ojo accompanied the appellant to his house looking for his son Femi Ajewole, he left them that morning but when he returned at 7.00 p.m., he enquired of his son and his visitors, he learnt that his son had returned but has gone out alone. When he again asked about his son at 2.30 a.m., that is, the morning of the 4th July, 1982, Femi was at the house together with the appellant. When P.W.7 was going to Akure early that morning on his motorcycle, the appellant requested the witness to give him lift to Akure as he was going back. It was before they left that the police arrived and both the appellant and Femi ran away. In his evidence, the appellant confirmed mostly what P.W.1 said but claimed that they were attacked by four friends of Femi and he was very much frightened in his cocoyam farm. He said he did not know what happened to the deceased and the 1st prosecution witness. The appellant had also made two statements to the police.

Learned Counsel for the appellant took ground 2 first. This ground states as follows:-

“2. The learned trial Judge erred in law in convicting the appellant of murder when the cause of death of the deceased is uncertain.

Particulars

The learned trial Judge convicted the appellant as aforesaid when –

(i) the doctor who performed the post-mortem on the deceased was not called to give evidence and no medical report of cause of death was tendered, and

(ii) the only eye-witness account of the death of the deceased as given by the first prosecution witness was contradictory and therefore inconclusive.”

It is true that the doctor who performed the post-mortem did not testify at the trial and that the medical report was not tendered. There is evidence though, that the doctor who performed the post-mortem examination was abroad and his whereabouts unknown. For the appellant, it was further complained that the learned trial Judge was wrong not to have allowed P.W.9 and P.M.O. attached to Akure General Hospital to tender the post-mortem report. In my view, the issue of the tendering of the medical report by P.W.9 never arose during the testimony of P.W.9. The learned trial Judge merely mentioned the impropriety of tendering the post-mortem report through P.W.9 in his judgment but nowhere in the record of proceedings is the issue raised. The evidence of P.W.9 is too scanty in my view to enable either party to put the report in evidence through P.W.9, for example, it is not even proved that P.W.9 could identify the handwriting of the doctor who performed the post-mortem nor is there proof that the witness saw the report nor indeed had the report in her custody at the time she was giving evidence. In any event the comment of the learned Judge in his judgment went to no issue involved in the case before him.

It is submitted that whenever a post-mortem examination is performed as in this case, it becomes imperative to call medical evidence to prove cause of death reliance is placed on State v. Adegbami (1968) N.M.L.R. 347. But in that case, there was no eye-witness to the act causing death, which is clearly different from the present case in which P.W.1 said she saw when the appellant held the deceased by the neck and later used a matchet to injure him. And furthermore in this case, the prosecution had proved and explained their inability to produce the doctor to testify.