Bamidele Simeon V. The State (2014)

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 Honourable Justice D. I. Kolawole of the Ondo State High Court sitting at Akure Judicial Division on the 27th day of June 2012.

The case of the prosecution against the Appellant was that on or about the 26th day of April, 2009 at Oda Barracks in Akure, the Appellant killed one Godwin Ocheidu by hitting him with an axe. Both the Appellant and the deceased were policemen living at the Oda police station barracks before the Appellant got transferred to Abuja and left the Oda police station barracks before the Appellant got transferred to Abuja and left his wife behind in the barracks.

The Appellant lodged a complaint in the night of 26th April 2009 at the Oda Division of the Nigeria Police Akure that he caught the deceased a police officer making love to his wife in his own apartment within the same police barracks where they both shared apartments. That the deceased died from the wound he sustained due to the attack on him by the Appellant.

The Appellant on the other hand said that when he returned to Akure very late at night at about 11.45 p.m on the day of the incident, he got to his house and met the front door fastened with a padlock. On moving to the backyard, he discovered that the backdoor was not locked. Curiously, he entered his house and moved towards the bedroom.

On getting there, he discovered a man on top of his wife in his bedroom having sex. They separated as soon as they noticed his presence. He made efforts to grab the man without success, he hit the man in the chest but the man escaped. He raised alarm and the man jumped into the bush.

It was also the case of the defence that there were no eye witnesses to the event and that the only minute evidence connecting the Appellant to the act alleged is Exhibit C.

The Appellant denied in his evidence in court that he axed the person he found with his wife with anything at all. And, contends further that on the night of the attack on the man whom he met sleeping with his wife, he did not know that it was Godwin Ochiedu.

The prosecution called three (3) witnesses and tendered some Exhibits including two extra judicial statements of the Appellant Exhibits A and C. The Appellant did not call any witness but testified in his own defence.

At the close of evidence the learned trial judge relied on the Appellant’s extra judicial statements especially the confessional statement Exhibit C to find that the Appellant killed the deceased but considered that the defence of provocation availed the Appellant, found the Appellant guilty of manslaughter and sentenced him to six (6) years imprisonment.

Dissatisfied with the conviction and sentence, the Appellant filed a Notice of Appeal containing three (3) grounds of appeal in this court on 23/10/13.

Learned counsel for the Appellant nominated two (2) issues for determination as follows:

1. Whether in view of the evidence on the record the prosecution successfully proved the essential ingredients of the offence of manslaughter beyond reasonable doubt against the Appellant.
2. Did the learned trial judge evaluate or properly evaluate all the evidence before finding the Appellant guilty and if not, did not his failure to do so occasion a miscarriage of justice.

Learned Counsel for the Respondent adopted the two issues formulated by the Appellant.

On issue 1, learned counsel for the Appellant reminded us that the Appellant was charged with the offence of murder. He reiterated the ingredients of the offence of murder by reference to the provision of Section 316(1) and (2) of the Criminal Code and cases of Ochuko Tegwonor v The State (2008) 1 NWLR (Pt. 1069) 630; Ogba v State (1992) 2 NWLR (Pt. 222) 164; Nwaeze v The State (1996) 2 NWLR (Pt. 428) 1 and Giva v The State (1996) 4 NWLR (Pt. 443) 375.