Mustapha Mohammed & Anor. V. The State (2006)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the judgment delivered by Popoola, J. while sitting at the High Court of Justice, Ilaro, Ogun State of Nigeria on 26th June, 1997. The appellants were convicted and sentenced to death for the offences of conspiracy to murder and murder of Oladipupo Fasola by the learned trial judge.

On 29th October, 1996 the two appellants, then as accused persons, were arraigned along with two others to wit: Babajide Olufemi and Nojimu Sangosanya for the offences of conspiracy to murder contrary to section 516 and murder of Oladipupo Fasola contrary to section 319(1) of the Criminal Code Law, Cap.29, Vol. 11, Laws of Ogun State of Nigeria, 1978 respectively. The appellants, as well as the other two co-accused persons pleaded not guilty to the two counts.

The prosecution called five (5) witnesses to buttress their case. The evidence adduced by the prosecution witnesses appear very revealing and harrowing. I shall summarise same to the best of my ability. P.W.1 said the deceased – Oladipo Fasola was living with him, being a friend to his junior brother. On 11-8-95 at about 6.00a.m, one small boy by name Ashimiyu Salawu came to tell the deceased that the 1st accused wanted him. The deceased left and was not seen for a long period. PW1 said he asked for and got the house of the 1st accused to ask him the whereabout of the deceased. PW1 said he reported the matter to the Police. The 1st accused denied seeing the deceased but confirmed that he sent Ashimiyu to call him. He could not say where he was. Police got the 1st accused arrested.

PW1 said on 1-9-95, police came to him with a medical doctor, photographer and the 1st accused in the Police vehicle. He followed them and when the vehicle was parked somewhere, they trecked inside the bush. The 1st accused unearthed the deceased from the grave. P.W.1 identified the corpse in a decomposed state with the head missing. PW1 had earlier described the black pant, knicker and white singlet worn by the deceased when he left home.

Cross-examined, P.W.1 said the dresses the deceased was wearing were intact and recognizable.

PW2, Cpl. Olaide Lawal of Crime Branch, Owode Egbado said on 14-8-95, PW1 reported a case of missing person – the deceased. He got the 1st accused arrested. PW2 said he volunteered statements to him on 15-8-95 and on 20-8-95 as well. The two statements are exhibits A & B, respectively. The 1st accused connected one Alhaji Asamu, a transporter at Sango who denied knowing him. He obtained Alhaji Asanu’s statement before referring the case to the S.I.I.B. Eleweran for further investigation.

PW3 is Sgt. Oluwole Babalola attached to the homicide section S.I.I.B, Eleweran, Abeokuta. On 23-8-95, the case was referred to him for investigation. He said on 24-8-95, the 1st accused volunteered a statement to him. Same is exhibit C. PW3 said Alhaji Asamu said that though he knew the 1st accused and had once asked him to pray on his plot of land, he did not discuss any matter of getting someone to drive for him with the 1st accused. PW3 went to one Nofiu Finana who sold a plot of land to the 1st accused situate at Pempe Area. He confronted the 1st accused who denied ever buying a plot of land at Pempe. PW3 said he went there and saw cassava stems destroyed, suggesting a scuffle. He saw a dug gave. Later, he went with the pathologist – Dr. Igbalajobi, PW1, 1st accused and some police men to exhume the body. PW1 identified the body to be that of the deceased who he earlier told them left home with a short black knicker, black pant and a singlet which were all found on the decomposed body without a head. PW3 said the police photographer – Inspector Dosunmu took photograph of the beheaded body.

PW3 said on 2-9-95 the 1st accused again volunteered another statement to him. Same is exhibit D. On 13-9-95 the 2nd accused was brought to the station. PW3 said he volunteered another statement marked exhibits E-E1.

PW3 said on 8-9-95, he confronted the 1st accused as to the whereabouts of the deceased’s head. The 1st accused volunteered another statement which is exhibit F. He said the 1st accused took him to the house of the 3rd accused who was also arrested. The 3rd accused volunteered a statement which is exhibit G. The 3rd accused mentioned the name of the 4th accused who was arrested. He volunteered a statement marked exhibits H-H1.

Cross-examined, PW3 denied using force on the accused persons. He said he did not beat the 2nd accused. He said the 3rd accused is a herbalist and that a herbalist prepares native concoctions.

PW4 is Dr. Olugbenga Olanrewaju Igbalajobi, a registered Medical Practitioner attached to State Hospital, Ilaro. He said on 1-9-95, he was invited by PW3 and other police officers for the exhumation of a corpse at Owode. They picked PW1 at Owode and all drove to a piece of land inside Owode. The body was exhumed and on examination, he found the abdomen and limbs intact. So also, the external genital was intact but the neck and head were missing. He said the floor of the neck was roughened from which he made the conclusion that it was a traumatic amputation of the neck and head. He said PW1 recognised the corpse exhumed to be that of Oladipupo Fashola which had some clothes on – white singlet and a short knicker, dark blue in colour. He said the police photographer took some pictures. He wrote a report which is exhibit 1. He found cause of death to be as a result of traumatic amputation of deceased’s neck and head.

Cross-examined by Mr. Emehin on behalf of 1st & 4th accused persons, P.W.4 again said it is amputation. He said he saw some evidence of spilage of blood on the ground showing that there was a struggle.

P.W.5 is Inspector Remi Dosunmu, a photographer. On 1-9-95, he visited the site of exhumation along with others. They found a freshly dug grave from where they recovered a headless young man with singlet and a black knicker on him. The corpse was examined by PW4 after being identified by PW1 as Oladipupo. He said he took photographs of the corpse, the grave before and after exhumation. He processed the films and printed out the photographs. The negatives and photographs are Exhibits K and L-L5. The prosecution closed their case on 15-4-97.