Christopher Tobi Okolie V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A.(Delivering the Leading Judgment)

The appellant has, by this appeal, challenged his conviction and sentence to death, under section 319 of the Criminal Code of Lagos State, in the judgment delivered by the High Court of Lagos State (the court below) on the 31st March, 2006 by Oyebanji, J.

The appellant was charged with the murder of one Femi Osidele on the 9th June, 2000 at Ikotun in Lagos State.

The prosecution produced Mrs. Mobolaji Abiodun Suberu the aunt and guardian of the deceased as the sole prosecution witness at the trial (P.W.1.), out of the five witnesses listed in the proof of evidence (see page 4 of the record of appeal).

The defence made a no case submission which was dismissed, after which the appellant testified as the sole witness for the defence (D.W.1).

In a well considered judgment dated 31st March, 2006 delivered by the court below, the learned trial judge found that there was sufficient circumstantial evidence to warrant the conviction of the appellant. The lower court held that prosecution has proved the case beyond reasonable doubt and found the appellant guilty of the offence of murder contrary to section 31 of the Criminal Code. The appellant was sentenced to death. (Pages 109 – 122 of the record)

The appellant being dissatisfied filed a notice of appeal against that judgment dated and filed on the 19th June 2006 on the following three grounds:

“1. The learned trial judge erred by upholding the evidence of the prosecution, when they failed to prove the case beyond all reasonable doubt.

2. The trial judge erred in law by convicting and sentenced the appellant without any investigation of the evidence before the court.
3. The trial judge erred in law by convicting and sentencing the appellant based on hearsay evidence.

This original notice was amended with leave of that court by an amended notice of appear dated 4th April 2004 and filed on 7th April, 2009 but deemed filed and served on the 25th June, 2008, which contains nineteen grounds as follows:

“1. The trial judge erred in law when he shifted the onus of proof in a criminal case to the accused person, which led to a miscarriage of justice.

2. The learned trial judge erred in law when he admitted and relied on the hearsay evidence of PW1 in convicting the appellant.
3. The learned trial judge erred in law when he held that the prosecution has proved its case beyond reasonable doubt.
4. The learned trial judge erred in law when he relied solely on circumstantial evidence and the evidence of PW1 in convicting the appellant which evidence was neither direct, cogent, nor conclusive.
5. The learned judge erred in law when he did not consider other probable circumstances in which the deceased might have been injured, leading to his death.
6. The learned trial judge erred in law when he convicted and sentenced the appellant to death without considering the material contradictions in the evidence of PW1 as sufficient to disbelieve her evidence.
7. The learned trial judge erred in law when he failed to consider and evaluate the testimony of the appellant, but accepted wholly the testimony of the sole witness for the prosecution.
8. The learned trial judge erred in law when he failed to consider the possible defences open to the appellant before convicting him.
9. The learned trial judge erred in law when he failed to consider, evaluate and make clear finding on the defence raised by the appellant.
10. The learned trial judge erred in law when he relied heavily on the evidence of PW1 without caution or corroboration.
11. The learned trial judge erred in law when he relied on the hearsay evidence of PW1 to convict the appellant.
12. The learned trial judge erred in law when he convicted and sentenced the appellant to death without considering evidence showing he was under the age of 17 years at the time the crime was committed.
13. The learned trial judge erred in law when he failed to give the appellant opportunity to lead evidence to show that he should not be sentenced to death, and proceeded to impose mandatory death sentence on the appellant, which thereby led to miscarriage of justice.
14. The learned trial judge erred in law when he applied the statutory provisions for the imposition of the mandatory death sentence under section 319 of the Criminal Code Law of Lagos State under which the appellant was charged, convicted and sentenced, which provision is contrary to the provision of the 1999 Constitution and international legal norms.
15. The learned trial judge erred in law in relying on section 319 of the criminal code Law of Lagos State in sentencing the appellant to death, when that provision to the extent that it provides for mandatory sentence of death and excludes the opportunity of the appellant to lead evidence to mitigate sentence, is arbitrary and a contravention of the 1999 Constitution and the judicial discretionary function of sentence.
16. The judgment of the trial court condemning the appellant to death occasioned a miscarriage of justice as the judgment was unreasonable and cannot be supported having regards to the evidence in this case.
17. The learned trial judge erred by upholding the evidence of the prosecution, when they failed to prove the case beyond all reasonable doubt.
18. The learned trial judge erred in law by convicting and sentenced the appellant without any investigation of the evidence before the court.
19. The learned trial judge erred in law by convicting and sentencing the appellant based on hearsay evidence’”

Eight issues were distilled for determination by the appellant as follows:

“1. Whether, after expunging the hearsay evidence of PW1, there still remains any other evidence capable of sustaining the conviction of the appellant.

2. Whether the trial judge was right when she shifted the burden of proof to the appellant, and if she was wrong, whether the error resulted in miscarriage of justice against the appellant.
3. Whether the prosecution has proved beyond reasonable doubt that the appellant was responsible for the death of the deceased.
4. Whether the conviction of the appellant is justified on the level of circumstantial evidence adduced in this case.
5. Whether the contradiction in the evidence of the prosecutions witness did not cast doubt on the guilt of the appellant.
6. Whether the learned trial judge was wrong in failing to consider all the defence open to the appellant, including the defence he raised in his testimony in court and in his earlier statement to the Police.
7. Whether the failure of the learned trial judge to investigate the age of the appellant before sentencing him to death, and the sentence of death passed on the appellant by the trial court was not unlawful, in view of the fact that the appellant was under the age of 17 years at the time the offence was committed.
8. Whether section 319 of the Criminal Code Laws of Lagos state 1994, to the extent that it prescribes mandatory sentence of death on anyone convicted of murder, is contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999, the African charter on Human and People’s Rights on Human and People’s Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990, and international treaties that Nigeria has ratified.”

The respondent however trimmed down the above issues to the following six issues.

“1. Whether after expunging the hearsay evidence of PW1 there still remains any other evidence capable of sustaining the conviction of the appellant.