Asimiyu Alarape & Ors V. State (2001)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

The appellants, Asimiyu Olanrewaju Alarape, Adebayo Kehinde, Olorunwa Adubuleja and Aliu Rasaki were on the 31st day of October, 1996 jointly arraigned before the High Court of Justice, Ogun State, holden at Ijebu-Igbo, charged with the offence of murder contrary to section 316 and punishable under section 319(1) of the Criminal Code Law. Cap. 29, Vol. 11, Laws of Ogun State of Nigeria 1978.

The particulars of the offence charged are as follows:-

“Asimiyu Olanrewaju Alarape (m), Adebayo Kehinde (m), Olorunwa Adubuleja (m), Aliu Rasaki (m) on or about the 22nd day of September, 1993 at Oke Alafia Area of Ijebu-Igbo in the Ijebu-Igbo Judicial Division murdered one Safiriyu Oshineye.”

Each of the accused persons pleaded not guilty to the charge and the prosecution called a total of 11 witnesses and tendered some exhibits at the trial. The accused persons testified on oath on their own behalf and jointly called one witness.

The substance of the case as presented by the prosecution is that following incessant raids and/or attacks the Oke Alafia Quarters of Ijebu-Igbo was subjected to by armed robbers, the residents set up an organised night watch service by themselves over the area. This night-watch service was commonly referred to by the people as “vigilante” duty. The purpose was to check and to ward off the said menace of armed robbers. The night guards were usually armed with cutlasses, sticks, whips, protective juju and torch lights. They were under strict injunction never to carry guns. They were also under strict directive to bring any suspect caught or arrested to the elders who in turn would hand them over to the police.

In the night of the 22nd day of September, 1993, P.W.2 Lateef Osineye, P.W.3 Kabiru Karimu together with many others of the vigilante group were on night patrol duty at Oke Alafia Quarters of Ijebu-Igbo. The team carried out their night-watch patrol operation in different groups. None of them on duty that night was armed with a gun.

At about mid-night, precisely at 12.30 a.m. of the 23rd September, 1993, one of the vigilante groups at the northern side of Oke Alafia Quarters comprising of six men and in which P.W.2 served sighted a group of armed robbers from where they laid ambush. In this group of thieves, was the 1st appellant, Asimiyu Olanrewaju Alarape. The 1st appellant was identified from the security light in front of the house near where this group of night guards laid ambush. This group of night guards on sighting the robbers raised an alarm, shouting “thieves, thieves”. As a result, the thieves which comprised about 7 persons tried to escape and ran in different directions but were hotly pursued. P.W.2, in particular, with his group pursued one of the said robbers. The other groups of the night guards raced towards the direction the alarm came from. These included the group manned inter alia by P.W.3 Kabiru Karimu, the deceased Safiriyu Osineye and others. This particular group were watching the southern end of Oke Alafia Quarters. P.W.3 and the deceased led their group in the chase although the deceased ran ahead of P.W.3 by some two meters. The next that was heard was a gun shot from the direction they were running to. The deceased had been shot on his chest and he instantly fell down, and died on the spot. The other group then ran to the scene where the deceased was shot down and, observing that the robbers had killed him, proceeded to the house of P.W 1, the Ward Head of Oke Alafia Area to report the incident. A report of the murder was later made to the police that night. The police visited the scene of crime and observed the gun shot injuries to the chest and ribs of the deceased. His corpse was taken to the Ijebu-Ode mortuary where the doctor performed post-mortem examination on the body.

It is part of the prosecution’s case that in the course of investigation of the case, all the four appellants were arrested, charged and cautioned. They respectively made voluntary statements to the police. In Exhibit D, D1 which would appear to be confessional in nature, the 1st appellant stated that at about midnight on the 22nd September, 1993 he and the 2nd, 3rd, and 4th appellants together with one Leke and Mufutau went to Oke Alafia Quarters of Ijebu-lgbo for the removal of items of property they had stolen the previous night but had hidden in the bush in the area. The 4th appellant was carrying a dane gun as they left for this operation. They had in fact recovered the stolen goods and were returning to their base when they were challenged by the night guards who raised an alarm and shouted “thieves, thieves”. The gang consequently took to their heels but were pursued by the night guards as they tried to escape. The night guards caught Leke but he managed to escape. As the night guards continued to pursue them, the 1st appellant turned and shot the deceased who slumped on the ground. Following this development, the 1st appellant and his gang abandoned their loot, ran in different directions and managed as a result to escape. The 1st appellant shot the deceased night guard with the dane gun which the 4th appellant and Leke brought along with them for the operation. The thieves subsequently reassembled at about 4.30 a.m. in their base at ado Area. Oke Alafia, Ijebu-Igbo.

The prosecution also relied on the written statements of the 2nd, 3rd and 4th appellants under caution. In Exhibit E, E1, the 2nd appellant explained how all the four appellants with two others set out for their operation in question from the house of the 1st appellant at midnight of the 22nd September, 1993. They were to recover certain properties they stole the previous night and had hidden somewhere in the bush there too, the 3rd appellant in his statement Exhibit F., F1 stated how all six of them embarked on their operation in issue following a meeting they held in the house of the 1st appellant at about 8.00 p.m. of that night in connection with the operation. Thereafter, they setout for Oke Alafia Quarters to ‘execute their operation at about mid-night of that same day. Essentially the details in the written statements of the 2nd and 3rd appellants were the same as those of the 1st appellant in all material particulars and it is unnecessary to recount them all over again.

There was finally the statement of the 4th appellant. Exhibit H. HI. This strictly speaking, is not confessional in that he denied that the gang was armed with a dane gun for the operation or that they shot or killed any of the night guards. He however. admitted that he knew the 1st – 3rd appellants as thieves. He also confessed that he had been carrying out joint stealing raids with the 3rd appellant and that their last operation was in 1993 when, whether, they raided a certain farm at Osun Area of Ijebu-Igbo and stole palm products. He also confessed that he took part in the midnight operation of the 22nd September, 1993 along with the 1st-3rd 13 appellants and two others.

The case for the defence in their testimony before the court was a total denial of the charge. The 1st appellant testified that he knew nothing about the murder of the deceased in the night of the 22nd September, 1993. In particular, he denied making any confessional statement to the Police in connection with the murder of the deceased. He admitted his signatures in Exhibit D, D1 but claimed that he did not know their contents. He was tortured and threatened before he signed them. He also denied firing the gun shot that killed the deceased.

The 2nd appellant similarly denied the charge and stated that he signed his statement to the police without knowing its contents after he was tortured. He did not participate either with the 1st appellant or any other persons in the killing of the deceased or any one else in the night of the 22nd September 1993 or at any other time before or after that date. He denied making any confessional statement to the police in connection with this charge.

In the same vein, the 3rd appellant denied he was involved in anyway with the murder of the deceased. He signed some documents, the contents of which he knew nothing about. He denied telling the police in his statement that it was the 1st appellant that Shot and killed the deceased.