Dare Jimoh & Anor V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the conviction and sentence of the Appellants to death on a two count charge of Conspiracy to Commit Murder and Murder by an Ijebu Ode High Court presided over by Osidipe J. in suit No. HCJ/8C/2000 delivered on the 15th October 2003. The Charge is as follows –

COUNT ONE

STATEMENT OF OFFENCE

CONSPIRACY TO COMMIT MURDER contrary to and punishable under section 324 of the Criminal Code Cap 29 Laws of Ogun State of Nigeria 1978.

PARTICULARS OF OFFENCE

DARE JIMOH ‘m’, AKEEM FATAI ‘m’ on or about the 27th day of October 1999 at No. 4 Madasa Lane, Off Odutola Street, Ijebu-Ode, in the Ijebu-Ode Judicial Division conspired together to commit the offence of murder contrary to Section 324 of the Criminal Code Cap 29 Laws of Ogun State of Nigeria 1978.

COUNT TWO

MURDER contrary to and punishable under Section 319(1) of the Criminal Code Cap 29 Laws of Ogun State of Nigeria 1978.

PARTICULARS OF OFFENCE

DARE JIMOH ‘m’, AKEEM FATAI ‘m’ on or about the 27th day of October 1999 at No. 4 Madasa Lane, Off Odutola Street, in the Ijebu-Ode Judicial Division unlawfully killed one Kemi David ‘f’ and thereby committed an offence contrary to Section 319(1) of the Criminal Code Cap 29 Laws of Ogun State of Nigeria 1978.

They pleaded not guilty to the charge. The prosecution called a total of six witnesses and relied on a number of exhibits while the Appellants gave evidence for them and called no witnesses. The case for the prosecution is that the residence of the deceased one Kemi David was attacked by some persons who robbed, raped and slaughtered her with a knife in their possession on or about the 27th October 2009 at Madasa Lane, Ijebu-Ode as her siblings had gone out on a night vigil. Following an alarm that thieves had raided the area in which the deceased lived, a neighbourhood vigilante group came out in search of the miscreants. PW1, a civil servant by name Olasunbo Keshiro had in the process seen one Adedayo Odukoya hiding in a banana farm with his hand stained in blood. He took him to the vigilante group who took him to the police where he confessed to having robbed, raped and murdered the deceased Kemi David. He, Adedayo Odukoya said he was not alone in the perpetration of these dastardly acts and named and took the police to the houses of the Appellants where they were also arrested by the police. Later Adedayo Odukoya died in custody from gunshot wounds he allegedly sustained while trying to escape from police custody. The Appellants were thereafter arraigned, tried, convicted and sentenced to death by hanging. It is against this judgment that the Appellants have appealed.

The Appellants filed two separate Notices of Appeal and two separate Briefs of Arguments while the Respondent’s Brief of Argument ‘takes care of the issue raised in both Briefs of Arguments of the Appellants.

The Appeal came up for hearing on the 17th January 2011. The records of the Court for that day showed that neither the 2nd Appellant nor his Counsel was present in Court though there was proof that hearing Notice for that day (17th January 2011) had been served on the 2nd Appellant through his Counsel, Joseph Wobike on the 4th November 2010. This Court also noted that the 2nd Appellant had filed his Brief of Argument. The said Brief of Argument of the 2nd Appellant is dated the 22nd July 2005 and was filed on the 29th July 2005. This Court having dug into its record and discovered that all the parties had filed their respective Briefs of Argument invoked the provisions of Order 17 Rule 9(a) of the Court of Appeal Rules 2007 to hear the Appeal. The said Order 17 Rule 9(4) of the Court of Appeal Rules 2007 provides as follows;