Adekunle Oluwafemi Alo V. The State (2015)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C. 

The appeal is against the judgment of the court of Appeal Benin Division delivered on the 4th June, 2010. The lower court dismissed the appellant’s appeal against his conviction and sentence by the Ondo State High Court sitting in Akure.

The background briefly is that on 30th March, 2004, the appellant and two other accused persons were arraigned before an Ondo State High Court sitting in Akure on a two count charge of conspiracy to commit murder and murder contrary to sections 324 and 316 of the criminal code, Cap 30, Vol. II Laws of Ondo State, 1978 respectively. The accuseds each pleaded not guilty to the two counts charge. The case against the accused persons was that on or about the 8th of March, 2001, the appellant together with one Segun Oluwole and one Adeoyo Idowu conspired to murder and murdered one Olanrewaju Disu (deceased).

In proof of the accuseds’ guilt, the prosecution called 7 witnesses while the 1st accused (now the appellant), and the 2nd accused person each gave evidence in his own defence, but did not call any other witness. The 3rd accused did not testify and called no witness. The testimonies of P.W.1, P.W.2 and P.W.3 were substantially similar. They all testified that the appellant and the deceased went out together in the deceased’s parents’ vehicle on the 8th day of March, 2001 along with P.W.1 which vehicle was driven by the deceased. They testified to the fact that the deceased and the 1st accused person (appellant) were friends. They also agreed that P.W.1 alighted from the vehicle at a spot while the deceased and the appellant alone headed for a certain destination on the fateful day.

It is also the witnesses’ evidence that at about 2.00p.m. on the day in question, the deceased’s whereabouts was not known; that the appellant who was last seen with the deceased stated in his statement (Exhibit ‘D’) that he parted ways with the deceased at about 9.00am on this fateful day upon alighting from his vehicle; that the appellant, however later stated in his confessional statement (Exhibit ‘E’) that he master-minded and executed the murder of the deceased in connivance with the 2nd accused person.

On the part of the 1st accused/appellant, his oral testimony was that he was in the police custody when the Investigating Police officer (I.P.O.) told him that the deceased had died. He denied being involved in the deceased’s murder. He stated that he was tortured to confess. However, under cross-examination, he agreed that the information contained in (Exhibit ‘E’) was correct.

The 2nd accused person who also testified on his behalf said he was arrested and locked up in the cell. It was while he was in the cell that P.W.4 told him that he was one of the people who allegedly murdered the deceased. He denied the allegation profusely. In his testimony, he said he was severely tortured to make a confession but maintained his innocence. He denied knowing about the death of the deceased or having anything to do with it. He also stated that he was elsewhere on that particular day the deceased was last seen.

In answering questions whether he knew the 3rd accused, the witness said that he knew him for the first time in the year 2000 when they consulted him for ‘Ifa’ divination as to the person who stole a sum of N5,000.00 belonging to the mother of the deceased; that ever since then he had no cause to see or meet the 3rd accused until this case.

The 3rd accused in his statement raised the defence of alibi which was investigated and found to be true. His counsel therefore rested their case on the evidence adduced by the prosecution and the 1st and 2nd accused persons.

At the close of evidence from both sides and addresses by counsel, the learned trial judge in a considered judgment delivered on the 18th day of July, 2005 found the appellant guilty of conspiracy to commit murder and murder and proceeded to convict him accordingly. The 2nd and 3rd accused were however discharged and acquitted.

The appellant was dissatisfied with the conviction and sentence. Hence, he filed an amended Notice of Appeal before the lower court which unanimously dismissed the appeal and affirmed the judgment of the trial court. The appellant was again dissatisfied with that decision and has now further appealed to this court by a Notice of Appeal filed 23rd August, 2010 and raised five grounds of appeal.

In accordance with the rules of court, briefs of arguments were filed on the 21st December, 2010 and 15th December, 2011 on behalf of the appellant and respondent respectively. At the hearing of the appeal on the 11th December, 2014, both counsel adopted and relied on their respective briefs of arguments. While the counsel Mr. Seni Adio urged that the appeal be allowed and the appellant be discharged and acquitted, Mr. A. A. Adegbomire, represented the respondent and urged that the conviction and sentence should be affirmed and the appeal be dismissed.

From the five grounds of appeal raised, three issues were formulated on behalf of the appellant. The issues are substantially the same in material particular with those of the respondent. I will therefore reproduce the following formulation by the appellant as adequate:-

1. Were the Learned Justices of the court of Appeal right in affirming the conviction and sentence of death of the Appellant solely on the Appellant’s confessional statement in spite of the manifest contradictions in the prosecution’s evidence before the trial court (Grounds 1 and 3 of the Appellant’s Notice of Appeal).
2. Were the Learned Justices of the Court of Appeal right in holding that the prosecution proved its case beyond all reasonable doubts at the trial court (Grounds 2 and 5 of the Appellant’s Notice of Appeal).
3. Were the Learned Justices of the Court of Appeal right in upholding the conviction and sentence of the Appellant on the same and similar evidence on which the co-accused persons were discharged and acquitted (Ground 4 of the Appellant’s Notice of Appeal).

ISSUE ONE poses a question challenging the propriety of the lower court in affirming the conviction and sentence of death on the appellant solely on his confessional statement in the circumstance of this case.