Awoyemi Tunji V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of I. O. Adeleke J. of the High court of Osun State, delivered at Ila-Orangun on 30/6/2008.

The Appellant was arraigned by an information dated 5/11/2007 on a two count charge of attempt to commit rape and attempt to commit murder contrary to Section 359 and Section 320 respectively of the Criminal Code laws of Osun State.

The case for the prosecution was that the appellant, an electrician and a known friend of the PW1, the husband of the complainant went to the complainant’s house in the morning of 1st March 2007 at about 10a.m. ostensibly to effect some electrical repairs. The complainant (PW2) spotted the Appellant from the louvre window and let him in into the house. He ordered the complainant into her bedroom and demanded for sex. On refusal, he drew out a matchet which he hid under his native wear ‘Jamalia’ and matcheted the complainant severely and severally on various parts of her body.

The PW1 was alerted while in his shop and met her wife in a pool of blood. She was rushed to a local hospital in an unconscious state and later transferred to the Seventh day Adventist Hospital Ile-Ife because of her critical clinical condition and also for neuro surgical treatment. The complainant narrated her story to PW1 and PW3 the moment she regained consciousness and later made a statement to the Police stating that it was the Appellant that caused severe injuries to her body.

The Appellant denied the story of the attack, and set up an alibi that at about 8.00a.m. on the day of the incident, he was at his shop near the shop of the PW1. That, PW1 called him for some electrical work in his house and he explained that, that would be possible for him to do when N.E.P.A. brings light. That he checked PW1 at about 12 noon on that day, but he met his (PW1’s) shop locked. Later, he had the story of what happened to the complainant and joined other sympathizers to commiserate with the PW1’s family while the complainant was in the hospital.

The prosecution called eight (8) witnesses and tendered eight exhibits including the blood stained cloth of the victim complainant and a dark glasses which the complainant claimed was worn on that day by the Appellant but which the Appellant denied.

The Appellant gave evidence in his own defence but did not call any witness. At the end of the trial, the Learned Trial Judge acquitted discharged the Appellant on the count of attempt to commit rape, convicted him of the offence of attempt to commit murder and imposed a life sentence. Aggrieved with the judgment, the Appellant filed an appeal containing four (4) grounds of appeal before this court on 7/2/2011.

Appellants brief of argument dated 18/8/2011 was filed on the same day. Respondents brief of argument dated 14/10/11 was also filed on the same day.

Learned counsel for the Appellants nominated two (2) issues for determination. They are:

(1) Whether the offence of attempt to commit murder was proved against the appellant beyond reasonable doubts. (Grounds 1, 2 and 3)

(2) Whether the prosecution’s evidence of identification of the appellant felt short of acceptable standard (Ground 4).

Learned counsel for the Respondent adopted the issues formulated for the Appellant.

On Issue No.1, counsel submitted that the prosecution has failed to prove the offence of attempt to commit murder beyond reasonable doubt. Counsel referred to the provision of section 320 (1) of the criminal code. Laws of Osun State and observed that the ingredients required to prove the offence are (i) attempt to kill and (ii) in an unlawful manner.