Adebisi Adesakin V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A (Delivering the Leading Judgment)

This appeal arose from the judgment of the Kwara State High Court, presided over by Hon. Justice Halima Saleeman, and delivered on 07/07/2009. In that judgment, the lower court convicted the appellant, along with another accused person, for the four offences he was charged with.

As can be garnered from the record of proceedings in the lower court, the appellant, Adebisi Adesakin, was arraigned, together with two other accused persons, Kamaru Yusuf and Salihu Oyewale, on a four-count information of criminal conspiracy to kidnap, criminal conspiracy to commit culpable homicide, kidnapping and culpable homicide punishable with death against one Omobolanle Moses punishable und.er sections 97, 274 and 221 of the Penal Code.

From the evidence on record, the facts of that case, leading to this appeal, are not complicated. The deceased, Omobolanle Moses, was an 8-year old little girl living with Rachael Oyelamin, the mother of Alimi Olanrewaju (PW4), in Irra town in Oyun Local Government Area of Kwara State. Sometime in August, 2007, precisely on 27/08/2007, she, Omobolanle Moses, got missing. A search party was constituted which went in search of her. The bizarre development was reported to the police at Ilemona police Station who asked the searchers to continue for twenty-four hours. When they failed to see her, they went back to the police who swung into action.

The police at Ilemona Police Station went into investigation which revealed that the appellant and the other appellant, Kamaru Yusuf, both living in Zacheus Road, Ore, Ondo State kidnapped and killed the deceased by strangulation. In the course of investigation, they were apprehended at Ore in Ondo State. Based on their information to the police that they took the deceased’s head to one Salihu Oyewale, the third accused person in the information, for money making ritual, they (the police) arrested the latter too.

After their arrest, the case was transferred to the State Criminal Investigation Department (SCID), homicide section, police headquarters, Ilorin on 02/09/2007. Thereafter, the police at the State CID carried out their investigations. Subsequently, the Attorney-General of Kwara State sought and obtained the leave of the lower court pursuant to sections 7 and 185 (b) of the Criminal Procedure Code, to prefer a charge of conspiracy, kidnapping and culpable homicide punishable with death against the appellant and the other two accused persons on 10/04/2008. Sequel to that leave, they took their plea to those offence on 16/01/2008. They pleaded not guilty to them.

Following that not guilty plea, the case went into a full-scale trial. In proof of the information, the prosecution, which, had since dissolved into the respondent, fielded 8 witnesses, PW1-PW8, and tendered about 11 exhibits, exhibits P1 – P11. The accused persons each testified as a witness and called another witness, DW4, to disprove the charge. In the course of the proceedings, specifically during the examination-in-chief of PW3 and PW8, there were objections to the admissibility of the extra-judicial confessional statements of the appellant and Kamaru Yusuf on account of involuntariness. These objections led to the lower court conducting trial-within- trial proceedings. It, eventually, in considered rulings overruled the objections and admitted those statements as exhibits P8 and P11 respectively.

At the close of evidence from the appellant, the counsel addressed the lower court. On 07/07/2007, the lower court gave its judgment. It convicted the appellant and Kamaru Yusuf for all the offences in the four-count information, but discharged Salihu Oyewale of the offence of Criminal conspiracy for want of evidence. The lower court, on pages 125-126 of the record, sentenced the appellant, to 7 years imprisonment for conspiracy to kidnap, 7years imprisonment for the offence of kidnapping, 14 years imprisonment for the offence of conspiracy to commit culpable homicide and death sentence for the offence of culpable homicide punishable with death.

The appellant was aggrieved by that decision. Hence, he filed a 5-ground notice of appeal contained on pages 131-135 of the record, on 27/07/2011, after obtaining an order of this court to file same outside the statutory period allowed by law. He prayed the court for ”An order allowing the Appeal set aside the conviction and sentence imposed on the appellant and discharge and acquit him of the offence of conspiracy, to kidnap and kidnapping. Conspiracy to commit homicide and homicide preferred against him” Consequently, parties filed and exchanged briefs of argument as enjoined by law.

The appeal was heard on 25/01/2012 when parties adopted their exchanged briefs of argument. Learned counsel for the appellant, Dr. Akin Onigbinde, adopted the appellant’s brief of argument, filed on 06/10/2011, as representing his arguments in support of the appeal which he urged the court to allow by discharging and acquitting the appellant. In the same vein, learned counsel for the respondent, M.A. Oniye, ACSC; Ministry of Justice, Ilorin, adopted the composite respondent’s brief, filed on 05/12/2011, as forming his submissions against the appeal which he prayed the court to dismiss.

In the appellant’s brief of argument, he formulated two issues for determination viz:

(1) WHETHER having regard to the totality of Evidence placed before the court, the conviction of the Appellant for the offences charged, by the Learned justified.

(2) WHETHER failure of the Learned Trial Judge to properly evaluate the defence of Alibi raised by the Appellant has not occasioned a grave miscarriage of Justice.

In the respondent’s brief of argument, two, out of the four, issues for determining distilled by the respondent are relevant to this appeal. They are: