Apamadari & Anor v. State (1996)

LawGlobal Hub Lead Judgment Report – COURT OF APPEAL

DALHATU ADAMU, J.C.A. (Delivering the Lead Judgment)

The appellants along with 7 other accused persons were jointly charged before the chief Magistrate Court Oshogbo on 16/11/83 on a six count charge for various offences including conspiracy, wilful and unlawful damage to properties and threat to life. All the accused persons (including the appellants) pleaded not guilty to the charge.

They were granted bail by the Chief Magistrate who also tried them summarily. At the trial, the prosecution called 8 witnesses while the 1st accused (now deceased) gave evidence in defence of himself and other accused persons.

At the end of the trial and in a judgment delivered on 21/11/84, all the accused persons (including the appellants) were convicted by the Chief Magistrate and sentenced to jail terms.

Being dissatisfied with the judgment, the appellant and 5 other accused persons appealed to the High Court, Oshogbo. The appeal was heard by the High Court which delivered its judgment on 16/7/87.

In the said judgment the High Court affirmed the convictions and sentences passed on all the appellants on counts 3 and 4 while their conviction on count 2 under Section 451(1)(a) of the Criminal Code were quashed but substituted with convictions under Section 451 of the same Code. They were each sentenced to 2 years IHL. The appellants have now appealed to this Court against the judgment of the appellate High Court.

The prosecution’s case against the appellants is that on 6/11/83 the appellants together with 7 other accused persons wilfully and unlawfully damaged a three storey building, three bungalow buildings, one armoury and the fence surrounding Woleola Estate, Oshogbo, property of one Alhaji Jimoh Lawal Woleola.

The appellants’ case at the trial Court was that by a deed of transfer (tendered as Exhibit 13) the land upon which the properties mentioned above were erected was conveyed to the 1st accused person/appellant (now deceased) by the said Alhaji Jimoh Lawal Woleola. The appellants both at the trial Court and at the appellate High Court raised the defence of bona fide claim of right under Section 23 of the Criminal Code which was rejected by the two Courts. Hence they brought this appeal.

When the appeal came up for hearing, the appellants’ counsel informed this Court that only the 4th and 6th appellants whose names are given above (i.e. Alhaji Lasisi Apamadari and Ewuola Agboola) are the only appellants now before this Court in the appeal. The 1st appellant, Busari Olawepo Lawal is now deceased while the other appellants in the case were not granted bail pending appeal and they have since finished serving their jail terms. Thus only the 4th and 6th appellants whose names are given above are now the only appellants before this Court.

This point was noted by this Court which also noted an earlier application to substitute the names of the two appellants in place of all the appellants in the case which was granted on 17/2/94. Also at the hearing of appeal on 5/11/96, the respondents did not appear though there was a proof of service on them of the hearing notice. They also did not file any brief of argument after service of appellant’s brief on them since 8/3/93. The learned counsel for the appellant Mr. Ogunwole after drawing our attention to these facts urged us to proceed with the hearing of the appeal in default of the respondents’ appearance and or filing their brief.

We considered the oral application by the appellants’ counsel and upon ascertaining that the respondents were served with the appellants’ brief since 1993 and they failed to file their brief, we granted the application under Order 6 Rule 9 of the Court of Appeal Rules 1981 (as amended). The appellants’ counsel then adopted their brief of argument filed on 5/3/93. The appeal was thus heard in default of respondents’ brief.

The appellants filed 5 (five) grounds of appeal with their notice (see pages 229-231 of the record). In the appellant brief the following 3 (three) issues for determination are also formulated:-

ISSUES FOR DETERMINATION
“3.01 Whether under Section 23 of the Criminal Code the appellants are entitled to an acquittal of the charge brought against them.
3.02 Whether the burden of proof is on the 1st appellant that all the land in Exhibit 12 has been transferred to him.
3.03 Whether the learned appellate Judge of the High Court was right in giving the appellants the maximum punishment provided under Section 451 of the Criminal Code without considering the option of fine.”

The appellants’ brief also states that issue No. 3.01 relates to grounds 2 and 3; issue no. 3.02 relates to ground 1, while issue no. 3.03 covers ground 4.