Abayomi Olalekan V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

This appeal came before us for hearing on Thursday 20th September 2001 and after hearing learned counsel for the appellant arguing in favour of the appeal, I summarily dismissed it as lacking in merit and indicated then that I would give my reasons for so doing today. Here below are my reasons.

This is an appeal against the judgment of the Court of Appeal (Ibadan Division) affirming the conviction of the appellant for the murder of Rabiu Kassim and the sentence of death passed on him by the High Court of Ogun State silting at Ijebu-Igbo.

At the trial of the appellant the prosecution called 9 witnesses and tendered a number of exhibits including the appellant’s statements to the police. The appellant gave evidence in his own defence and rested his case. After addresses by learned counsel for the defence and the prosecution, the learned trial Judge, in a reserved judgment, found the charge of murder laid against the appellant proved and convicted him accordingly. He was sentenced to death.

The case for the prosecution was that on or about 1.00 a.m. on 31st August 1988 at ATIKORI Village, via ljebu-lgbo the appellant came to the residence of the deceased and knocked at the entrance door rather violently. The deceased Rabiu Kassim and his wife, Adebisi Rabiu (PW1) were in the house and asleep at the time. The knock aroused Adebisi Rabiu from sleep but the husband Rabiu Kassim was still sleeping. The appellant broke the entrance door and shot at Rabiu Kassim who was still sleeping at the time. Rabiu Kassim died instantaneously. The appellant following the shooting came into the house, held on to Adebisi, dragged her to the couple’s bed and raped her. He later inflicted some matchet cuts on her; she became unconscious. On regaining consciousness she discovered that the appellant had left taking along with him the deceased’s dane gun and hunter’s lamp, radio and other items belonging to the couple including the sum of N1,000.00. Adebisi went to a neighbouring village – Fowosere Village – and reported what happened to the villagers who took her to the police station at Ijebu-Igbo where a report was made. From the police station, she was taken to the Ijebu Ode General Hospital for treatment. The corpse of the deceased Rabiu Kassim was also taken to hospital morgue at Ijebu-Ode where Dr. Osiyemi performed an autopsy on the body.

Adebisi (PW1), while on admission in the hospital, made a statement to police Corporal Kester Ossai (PW5), then stationed at Ijebu-Igbo police station. In the statement Adebisi mentioned the appellant as her assailant and the murderer of her husband. The appellant who was arrested by the Fowosere villagers in the morning of the incident was again re-arrested by Cpl. Ossai and charged with the offence of murder. He volunteered a statement to Sgt. Ossai in Yoruba language which the latter recorded and read over to the appellant who affirmed that the statement was correctly recorded and thumb-printed it. Cpl. Ossai later translated the statement into English Language. The statement and its English version were tendered and admitted in evidence at the trial. In consequence of the contents of appellant’s statement, five others were arrested but later released as there was no evidence, apart from the appellant’s statement, against them.

The case was later transferred to the State Directorate of Investigation and Intelligence, Abeokuta for further investigation. Here the appellant made another statement to Sgt. Linus Patricks (PW6) through an interpreter, Inspector Alamu Adeosun (PW3). Being a confessional statement, the appellant was taken to DSP Samson Taverto before whom he affirmed the correctness of the statement. The statement was tendered and admitted in evidence at the trial. Sgt. Patricks executed a search warrant in the house of the appellant where a number of items including dane guns, were recovered. Some of the items were identified by Adebisi (PW1) as belonging to her and her husband and stolen from their house on the fateful night.

In his evidence at the trial, the appellant denied committing the offence. He admitted knowing the deceased and his wife Adebisi but denied killing the deceased.

It is on these facts that the learned trial Judge found the appellant guilty. His appeal to the Court of Appeal failed. He has further appealed to this court. Although in his brief of argument filed on his behalf by his learned counsel, only one issue is formulated as arising for determination in this appeal, to wit:

“Whether the learned Justices of Court of Appeal were right in affirming the conviction of the appellant by the learned trial Judge.”

Arguments are, however, proffered on four issues, that is to say, (1) identification of the appellant and (2) the confessional statement; (3) non-consideration of appellant’s defence and (4) 1st PW as a tainted witness. The first two issues come within the ambit of the grounds of appeal raised in the amended notice of appeal.

In resolving this appeal therefore, I shall first consider the two issues.

Issue (1) – Identification of the Appellant:

Both in his briefs and oral submissions, Mr. Fashanu learned counsel for the appellant laid emphasis on the time the incident leading to the death of the, deceased took place. He referred to the evidence of PW1 who put the time at 1.00 a.m. He argued that there was no evidence that there was any lighting in the room at the time, it would be difficult, if not impossible to come to the conclusion that PWI had opportunity to identify the appellant as the assailant that night. He urged the court to apply the test laid down by the Court of Appeal (England) in Raymond Turnbull v. The Queen (1976) 63 Cr. App. R132 at 137 and to hold that the appellant was not properly identified as the assailant.