Alli Dogo V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of the Oyo State High Court of Justice in suit no.I/47/04 delivered on the 22nd of June, 2006.

Briefly, the facts of the case are that Appellant on the 8th day of May, 2003 while on guard as a night watchman murdered one Engineer Isiak Lawal at Adeojo Estate, Old Ife Road, Ibadan. The case of the Appellant according to him was that at about 9.30p.m-10p.m on the 8th of May 2003, the deceased and four other occupants of a Corolla Car came to the gate of the Adeojo Estate at old Ife Road, Ibadan after the said gate had been locked. Appellant accosted them and enquired from them what they wanted. Instead of responding to the Appellant’s enquiries, they forced themselves into the Estate after damaging the Appellant’s single barrel gun which was issued to him by his employers. Appellant thinking that they were armed robbers ran after them while armed with another gun he took from his co-night or security guard for the second time.

Appellant ordered the deceased and his cohorts to stop. Instead of obeying the Appellant’s instruction, they attempted to seize or destroy the only weapon now available to the two night guards to safeguard the said Estate. Appellant struggled the gun with one of them and in the process the gun exploded and killed the deceased. The remaining four persons fled. Appellant and his partner later reported the incident to the Chairman of the Landlord Association and the Secretary who finally reported the matter to the Police. The prosecution called two witnesses while the Appellant testified for himself. The learned trial Judge found the Appellant guilty of murder.

Being dissatisfied with the said judgment, Appellant filed his notice of appeal containing three grounds of appeal. With the leave of this court, Appellant filed amended notice and grounds of appeal pursuant to the Order of this court made on the 22nd of October, 2009.

In compliance with the rules of this court, Appellant’s brief of argument was settled by S. O. Agwinede Esq and filed on the 20th of April, 2010 while Respondent’s brief of argument was settled by Mrs. A. E. Gade Senior Legal Officer in the Ministry of Justice Ibadan, Oyo State. It was filed on 25th October, 2010 but was deemed properly filed and served on 20/1/11.

Respondent filed a preliminary objection on the 28th of September, 2010.

The arguments on the preliminary objection were incorporated into the Respondent’s brief of argument filed. Appellant filed his reply brief on the 20h of January, 2011.

Appellant distilled three issues for determination from the grounds of appeal filed as follows: 2 (1) Whether the learned trial Judge was right in holding that Exhibit “B” was a confessional statement.

(2) Whether the learned trial Judge proceeded upon wrong principles of law in convicting the Appellant on Exhibit “C’.

(3) Whether the evaluation of evidence and findings of facts by the learned trial Judge were proper given the circumstances of this case?

Respondent distilled a sole issue for determination thus:

“Whether on the state of the evidence before the Lower court, the learned trial Judge was justified in convicting the Appellant for the offence of the murder of Engineer Isiaka Abiodun Lawal?

Before considering the merit of the appeal, it is necessary to consider the preliminary objection raised by the Respondent at pages 2-3 in paragraphs 3.00-3.04 of the brief. Learned Counsel for the Respondent submitted that the amended notice of appeal dated the 14th of July, 2009 was signed by the Appellant’s Counsel and not the Appellant himself as required by the Rules of this court, hence the amended notice of appeal is incompetent. This therefore robs this court of jurisdiction to entertain the appeal and same should be struck out. He placed reliance on the case of THE STATE VS. JAMMAL (1996) 9 N.W.L.R Part 473 page 384 at 399 where the learned jurist Ogbuagu J.S.C had this to say: “that a notice of appeal in a criminal appeal filed in the lower or trial court which was signed by a counsel for the Appellant instead of the Appellant himself is defective by virtue of Order 4 Rule 1 of the Court of Appeal Rules 1981”