Ayo Adegbite V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal from the decision of D. I. Kolawole J. of the High Court of Ondo State sitting at Akure delivered on the 27th day of February 2013.

The Appellant was initially arraigned in court before his Lordship, Hon. Justice Odusola sometimes in February, 2011. The trial commenced and was closed, while the court adjourned for address. However, the address was stalled and the case was re-assigned to another judge to start de novo.

The Appellant was consequently arraigned on the 10th day of October, 2012 before Honourable Justice D. I. Kolawole upon a one count charge of murder contrary to Section 319 of the Criminal Code Cap. Vol. 11 Laws of Ondo State of Nigeria, 1978.

The case of the prosecution is that the Appellant was the one who poured acid substance on one Afolabi Theophilus (deceased) at about 7p.m., along Ilu-Abo Ajegunle Road on the 7th November, 2009 which consequently led to his death on the 6th December 2009 at the University Teaching Hospital, Ibadan.

That before the deceased’s death, he made statement to the police at the general hospital that it was the Appellant known as Ayo Ngbada that poured acid on him. The deceased equally told his wife (PW1) and his friend who visited him in the hospital at Akure and Ibadan (PW2) that it was the Appellant that poured acid on him.

The Appellant, on the other hand relied on the defence of alibi that he was at the wedding ceremony of his sister-in-law and was running errand at the time of the incident. The prosecution called five (5) witnesses and tendered Exhibits, the Appellant called five (5) witnesses and in addition gave evidence as DW6.

The learned trial judge delivered judgment on 27th day of February 2013 and found the Appellant guilty of murder and thereby sentenced him to death.

Dissatisfied with the conviction and sentence, the Appellant at first, on 7/5/2013 filed a Notice of Appeal containing a single ground of appeal. Later and by an order of this Honourable Court the Appellant filed an Amended Notice of Appeal (containing four (4) grounds of appeal) on 24/3/2014.

Appellant’s brief of argument dated 28/3/2014 was filed on 31/3/2014. Respondent’s brief of argument dated 11/6/2014 and filed on the same day was deemed filed on 27/10/2014. Learned Counsel for the Appellant nominated three (3) issues for determination to wit:

1. Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in view of the wrongly admitted and inadmissible evidence relied upon by the learned trial court to found the Appellant’s conviction and sentence.
2. Whether the identification evidence in this case properly linked the Appellant to the murder of Theophilus Afolabi.
3. Whether the Appellant’s right to fair hearing was not breached due to non-consideration of the defence of alibi raised by him.

Learned Counsel for the Respondent also formulated three (3) issues for determination as follows:-

1. Whether or not the trial court relied on wrongly admitted or inadmissible evidence to convict the Appellant.
2. Whether the identification evidence in this case properly linked the Appellant to the murder of the deceased, Theophilus Afolabi.
3. Whether the learned trial judge having regard to the evidence adduced at the trial properly considered and evaluated the defence of alibi raised by the Appellant.

Learned Counsel for the Appellant started his submission, first, from the angle that the information which led to the conviction of the Appellant was not dated as required by the provision of Section 337 of the Criminal Procedure Law cap. 31 Vol. 2, Laws of Ondo State of Nigeria 1978. He argued that in a serious charge like murder, the prosecution must comply with all statutory provisions enabling it to institute criminal proceedings against an accused person. Such statutory, requirements constitute a condition precedent to the trial of an accused person.

He referred to the case of Madukolu v. Nkemdilim (1963) 1 All NLR 587 at 593 and submitted that the Appellant’s whole trial is incompetent, condition precedent having not been fulfilled. Counsel submitted, referring to the decision of the Supreme Court in Agbule v. VWR & P. Co. Ltd (2013) All FWLR (Pt. 688) 829 at 862 – 863 that an invalid and defective information cannot found a valid trial.

Still on issue 1 and in case the above submissions are discountenanced, Learned Counsel submitted that it is incumbent upon the prosecution to prove the charge against an accused person beyond reasonable doubt. He referred to the provision of Section 135 (1) of the Evidence Act 2011 and the cases of Nweke v. The State (2001) 5 NSCQR 360 at 372; Onafowokan v. The State (1987) 7 SC (Reprint) 198 at 202 but conceded that the prosecution can discharge the above burden by direct evidence or circumstantial evidence or confessional statement.