Augustine Ike V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of Ogun State High Court of Justice, Ijebu-Ode Division in charge no. HCJ/IC/2004 delivered on the 16th of March 2005 wherein the Appellant was convicted for the offence of murder contrary to Section 316 (1) and punishable under Section 319(1) of the Criminal Code Law Cap 29 Laws of Ogun State of Nigeria 1978.

The Appellant was arraigned before an Ijebu-Ode High Court together with the 2nd accused person – Lucky Rapido on 5th day of April, 2004 on one count charge of the murder of Abiodun Oloti on or about the 28th day of November 2002 contrary to Section 316 (1) and (2) and punishable under section 319(1) of the criminal code Law cap 29, Laws of Ogun state of Nigeria 1978. The offence was committed at Orita J6 via Ogbere in the Ijebu-ode Judicial Division of Ogun State.

At the trial, the Respondent called six witnesses and tendered two exhibits which were exhibits “A” Statement of 2nd Accused dated 29/11/02 and “B” – Statement of the 1st accused now Appellant dated 1/12/02, while the Appellant gave evidence in his defence and called two witnesses. At the end of the trial Appellant was convicted of the offence as charged and sentenced to death by hanging on the 16th of March 2005. In the same judgment, the learned trial Judge held that the Respondent (prosecution) did not prove any crime against the 2nd accused person consequently discharged and acquitted him.

Being aggrieved by the decision, Appellant filed a notice of appeal to this court on the 23rd of March 2005. With the leave of this court, Appellant filed three additional grounds of appeal on the 3rd of February 2009 but was deemed properly filed and served on the 22nd of April 2009. In line with the practice of the court, briefs of argument were filed by learned counsel representing the parties to the appeal. Appellants brief of argument was filed on 3/2/09 but deemed properly filed and served on 22/4/09 while the Respondent’s brief of argument was filed on 5/10/09 but deemed properly filed and served on the 28th of Sept 2010.

The facts of the case from evidence adduced by the Respondent were that on 23/11/02, P.W.2 one Sunday Arugbo a commercial motor cyclist accidentally hit a woman with the motorcycle as a result of which the woman sustained injuries. Family members of the said woman took her to the hospital for treatment and paid. Meanwhile the Appellant seized the motorcycle. P.W.3 Sunday Akintoye the owner of the motorcycle later refunded the money paid for treatment to the victim’s husband. On 27/11/02, P.W.3 went in company of P.W.4 Idowu Aderibole to retrieve the motorcycle from the Appellant. The Appellant and one other person allegedly beat up P.W.3 and P.W.4, p.w3 escaped while p.w4 was detained by the Appellant in his house. P.W.3 then reported to a Police Officer friend who accompanied him to the Appellant’s house where the Policeman was also allegedly beaten up and his clothes torn by Appellant, 2nd accused and one other man. The Policeman and P.W.3 left the scene. On 28/22/02, P.W.3 went to the Appellant’s house with a group of people including the deceased to effect the release of p.w.4. There he met some people with the Appellant who resisted their efforts of amicable settlement of the issue that led to the detention of P.W.4. As a result, an argument ensued which resulted in a fight. The Appellant ran inside in a fury, came out with a gun and as a result of which the crowd dispersed into hiding except the deceased who said the Appellant was his friend and so could not shoot him. The 2nd accused person then ordered the Appellant to “spray them”. The Appellant shot at the deceased, one Bidoun Oloti who fell and died.

At the hearing, of the appeal learned counsel for the Respondent urged the Court to deem the Respondent’s brief of argument date 5th October, 2009 and filed the same date as having been properly filed and served.

Learned Counsel for the Appellant did not oppose. The Respondent’s brief of argument dated and field 5th October, 2009 was deemed as properly filed and served on 28th September, 2010. Learned Counsel for the Appellant adopted and relied on the Appellant’s brief as the argument in support of the appeal. He urged us to allow the appeal for the reasons set out in the brief and to set aside the conviction and sentence of the Appellant. Learned Counsel for the Respondent also adopted and relied on the Respondents brief of argument and urged the Court to dismiss the appeal and uphold the conviction and sentence of the lower Court.

From the four grounds of appeal, learned Counsel for the Appellant formulated a sole issue for determination thus:

Whether in all the circumstances of this case, the Respondent proved the charge of murder against the Appellant beyond reasonable doubt as required by law.

The sole issue was also adopted by the Respondent in its brief of argument although couched differently thus:

Whether from the totality of the evidence adduced, the Respondent proved its case beyond reasonable doubt.

The sole issue covers the Appellant’s grounds of appeal for dissatisfaction with the decision appealed against. Since they have been fully addressed by the learned Counsel for the parties in their respective briefs, I intend to determine the appeal on the issue formulated by the Appellant. Issue One

Whether in all the circumstances of this case, the Respondent proved the charge of murder against the Appellant beyond reasonable doubt as required by law.