Chief Dayo Okondo V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon Justice I. O Akeju of the High Court of Ekiti State delivered on the 4th day of May, 2009 convicting the Appellant of attempted murder punishable under section 320(1) of the criminal code Cap 30 vol. II Laws of Ondo State of Nigeria 1978 as applicable in Ekiti State of Nigeria and sentencing him to a term of imprisonment for three years with an option of fine of N20, 000

For a proper perception, it is instructive to state the facts of the case leading to this appeal. Between 13th and 15th of March 2004, the students of College of Education, Ikere-Ekiti went on rampage over the Ekiti State Government’s proposal to appoint an unpopular candidate as Provost of the College as against the popular Acting Provost.

The Appellant at the material point in time was a Member of Board of Trustees, People’s Democratic Party, a Politician and Chairman of Ekiti State Local Government Service Commission. He is also from Ikere-Ekiti and resident there.

On the 15th March, 2004 the student representatives of the aforesaid college decided and did visit the residence of the Appellant perhaps with a view to pleading with the Appellant over the matter. On their way to the Appellant’s house, Gbenga Jaiyeola, PW1 the victim of the violent demonstration joined the student’s representatives and accompanied them to the Appellant’s house. It is worthy of note that the said Gbenga Jaiyeola was not a student of the college.

On reaching the house of the Appellant the students’ representatives met the absence of the Appellant but met armed Mobile Policemen and the relations of the Appellant at home. According to PW.1, the victim of the offence, stated that he was shot by the Police Orderly to the Appellant, 2nd Accused in the Criminal charge at the trial court on the instruction of the Appellant and the Appellant himself.

The Appellant denied shooting the PW1 and raised the defence of alibi in his extra judicial statement. The appellant did not testify in his own defence but called three witnesses who testify for him as DW1, DW2 and DW3 while DW4 testified for the 2nd accused person, and the 2nd accused testified for himself as DW5.

The learned trial judge found that the Appellant raised the defence of alibi, but that he failed to state the exact time he was with DW1. In a considered judgment delivered on the 4th day of May, 2009, the learned trial judge discharge the Appellant’s Police orderly, the 2nd Accused person of the offence of attempted murder by shooting and acquitted him accordingly, but convicted the Appellant of the said offence and sentenced him to a term of imprisonment of three (3) years or a fine of N20, 000.

In all the prosecution called five (5) witnesses. The defence also called five (5) witnesses including the 2nd accused that was discharged and acquitted.

The Appellant is aggrieved with the aforesaid judgment of the Lower Court, and has appealed to this Hon. Court; vide a Notice of Appeal filed on the 20th May, 2009, upon the following three grounds of appeal. The three (3) grounds of appeal shorn of their particulars are hereby reproduced.

1. Ground One

The learned trial Judge erred in law by convicting the Appellant of the offence of attempted murder by shoot (sic) a gun at one Olugbenga Jaiyeola when it was obvious from a record that the Appellant timeously raised the defence of alibi, and same was properly investigated by the investigating Police Officer and found to be true.

2. Ground Two

The Learned trial Judge erred in law by failing to resolve the reasonable doubts emanated from the evidence in favour of the Appellant.

3, Ground Three:

The judgment of the trial court is unreasonable and unwarranted having regard to the evidence adduced.