Isaac Ogunniyi V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

The Appellant was arraigned with two other accused persons at the High Court of Justice, Oyo State sitting at Ogbomosho for the following offences: (a) conspiracy to commit murder (b) murder (c) causing grievous bodily harm and (d) unlawful possession of criminal charms.

At the trial, the case for the prosecution is that on the 14th of February 2001 at about 12 noon, Basiru Raji (PW2) and his family arrived Oko-Ile their home town, having been earlier driven out of the town as a result of the Chieftaincy dispute between them and one Oba Gabriel Adepoju Adeyemo (a co-accused). P.W.2 and his family were in front of one pa Omoboyede’s house when Joseph Areo and Emmanuel Oke, two of the supporters of Oba Gabriel Adepoju Adeyemo, accosted them and demanded for why they were in Oko-Ile, having been told not to come back to the town. Oba Gabriel Adepoju Adeyemo’s supporters thereafter went and rang the church bell to gather other supporters. Oba Gabriel Adepoju Adeyemo thereafter led his supporters including the Appellant to attack P.W.2, his family and his supporters. In the course of this attack, the Appellant and two other co-accused killed Azeez Raji while some other persons were injured.

At the trial, the Respondent called six witnesses and tendered several exhibits whilst the Appellant and two other co-accused called eleven (11) witnesses including themselves. The learned trial Judge in his judgment delivered on the 29th of October 2008 found the Appellant and the co-accused guilty of the offences of Conspiracy to commit murder and murder of Azeez Raji. He sentenced them to death by hanging. Dissatisfied with the judgment, Appellant appealed to this court against his conviction. The notice of appeal is dated 13th January 2009.

In accordance with the Rules of this Court, parties exchanged briefs of argument. Appellant’s brief of argument is dated 26th of April 2010 but filed on the 9th of July 2010. It was deemed properly filed and served on the 16th of December 2010. Respondent’s brief of argument is dated 8th of April 2011 but filed on the 12th of April 2011. It was deemed properly filed and served on the 21st of June 2011. Appellant distilled two issues for determination as follows:-

(1) Whether the prosecution proved its case beyond reasonable doubt;

(2) Whether the learned trial Judge properly evaluated the evidence before coming to its conclusion convicting the accused persons for conspiracy and murder.

The Respondent distilled a sole issue for determination thus:

Whether the court below was right in holding that the prosecution proved its case against the Appellant beyond reasonable doubt.

I consider the sole issue distilled by the Respondent as appropriate to effectually dispose of this appeal.

Learned Counsel for the Appellant submitted that an analysis of the evidence will show that the prosecution did not prove the guilt of the Appellant beyond reasonable doubt. He submitted that in exhibit 1 made on 16/2/2001, 2nd P.W, stated the people he claimed attacked his brother, the deceased thus:

“The people I saw that day are (1) Isaac Ogunniyi Aboderan (Baba Racheal alias) (2) Emmanuel Olayiwola Oke (3) Joseph Areo (4) Ayangade James (5) Bisi Ajani (m).”

This witness when giving evidence in chief did not state whether Isaac Ogunniyi Aboderan (Baba Rachel) mentioned in Exhibit 1 is the same person he referred to as the 3rd Accused person whose name simply is Isaac Ogunniyi. Submitted that Appellant could not be guilty of the offence of murder if the Appellant matchetted the deceased when the 1st Accused had axed Raji Azeez.

Learned counsel for the Appellant argued further that the learned trial Judge was wrong to have considered the evidence of 1st P.W. – 4th P.W. as evidence of eye witnesses without considering the evidence of 1st D.W. – 8th D.W. who were also eye witnesses before concluding that the Appellant attacked the deceased. He contended further that 1st P.W. – 4th P.W. are members of the deceased’s family and therefore are tainted witnesses. He argued further that the contradiction in the evidence of the prosecution witnesses of how the fight started between the parties ought to have been resolved in favour of the Appellant.