David Omotola V The State (2009)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

Thirteen accused persons including the five appellants were arraigned before the High Court, Ado-Ekiti for conspiracy and murder of one Chief Olajide Esan on 18th June, 1999 at Ikoro-Ekiti in Ekiti State of Nigeria. Before the trial commenced, two of the accused persons had died.

The accused persons were tried by Kowe J. The prosecution called 24 witnesses in all. Some of the accused persons testified in their own defence and called witnesses. On 12-01-05, the trial judge delivered judgment. The 2nd, 3rd, 5th, 8th, 9th and 11th accused persons were discharged and acquitted. The 1st, 6th, 7th and 10th accused persons were found guilty of the offences of conspiracy to murder and murder of Chief Olajide Esan on 18/6/99. Each was sentenced to death. The 4th accused was found guilty on the first count of conspiracy to murder but not guilty of murder and sentenced to 14 years imprisonment. Each of the accused persons who were found guilty including the 4th accused was dissatisfied with the judgment of the trial court. Each brought an appeal before the Court of Appeal, Ilorin (hereinafter referred to as the court below). On 10-12-07, the court below in its judgment dismissed the appeal of each of the appellants and affirmed the conviction and sentence imposed by the trial judge. The appellants have come on a final appeal before this Court. The 1st and 2nd appellants jointly retained one counsel who filed a brief for them while each of the 3rd, 4th and 5th appellants retained a separate counsel. This has imposed the necessity to consider serially each of the appellant’s brief filed by the different counsel.

In the appellant’s brief filed by counsel for the 1st and 2nd appellants (who were respectively the 1st and 6th accused persons before the trial court), the issues for determination in the appeal were stated to be the following:

“1. Whether the Court of Appeal was not in error in pronouncing upon the remote and immediate causes of the murder of the deceased before considering the issues submitted for its determination and whether the approach of the Court of Appeal has not occasioned miscarriage of justice on the appellants.

2. Whether the Court of Appeal was not in error in dismissing the defence of alibi raised by the appellants.
3. Whether the Court of Appeal was not in error in affirming the conviction of the appellants thereby failing to apply to the appellant’s benefit favourably available evidence on record and in placing reliance on the evidence of tainted witnesses called by the prosecution.
4. Whether the Court of Appeal was right in affirming the conviction of the appellants on weak circumstantial and contradictory evidence adduced by the prosecution.
5. Whether the Court of Appeal was right in affirming the conviction of the appellants when their guilt was not proved beyond reasonable doubt and the issue of their identification was riddled with so many irregularities.”

The respondent’s counsel in his brief adopted the five issues for determination as formulated by the appellant’s counsel.

It is desirable, for an appreciation of the facts as discussed in this judgment to expose fully the nature of the events or history leading to the murder of the deceased, Chief Olajide Esan. Necessarily, the preamble as discussed relates to all the appellants in this appeal and not just the 1st and 2nd. The case of the prosecution was that nearly all the accused persons in the case were residents of a town called Ikoro-Ekiti or who had something to do with the said town. Both the 1st appellant and the deceased were well-known personalities in the town and it would seem that each had a respectable followership in relation to two distinct issues which caused a schism between them. The Oba of Ikoro-Ekiti died. There was the need to appoint a successor. The 1st appellant and the deceased supported rival candidates. This also led to a civil suit instituted by the deceased against the 1st appellant for libel. The deceased, a lawyer, had judgment in his favour for N55,000.00 as damages for libel against the 1st appellant. Another cause of disagreement arose out of the desire of the deceased to set up a road transport union with the object of reducing the transport fares payable by the commuters in Ikoro-Ekiti who regularly travelled to adjoining towns. The 1st appellant was the head of another union which had regulated transportation fares in Ikoro-Ekiti which fares the deceased considered excessive and exploitative. The deceased got some people around himself to launch the union on 14-6-1999. It was given in evidence that the 1st appellant and his group resisted the attempt by the deceased to set up what was considered a rival union. Bonfires were lit on the highway leading to the township. A new launching fixed for 14-06-1999 was in the process aborted. A new date was fixed for 18/6/1999. There was evidence before the trial court that the 1st appellant’s group openly said that the deceased would not live to take part in the launching fixed for 18/6/1999. It turned out that indeed, the deceased was murdered in the night of 17th – 18th June, 1999 only a few hours before the scheduled launching.

Now, to the first of the issues raised by counsel. Was the court below in error to have first broadly stated the background facts on the nature of the case against the appellants before considering the issues for determination in the appeal before it The appellant’s counsel has argued that the court below had virtually pre-accepted the facts relied upon by the prosecution at the trial court before considering the case of the appellants in the appeal. It was submitted that this approach resulted in a miscarriage of justice.

A perusal of the lead judgment of Agube J.C.A. at the court below shows that the learned Justice first reviewed the nature of the rancorous situation that existed between the 1st appellant and the deceased before considering the issues for determination in the appeal. I do not think that this was a wrong approach in the writing of a judgment. It is in my humble view, a good approach to preface the consideration of issues with an explanation of the matters which led to the occurrence or dispute over which the court is called upon to adjudicate. This enables a reader of the judgment to understand the issues as discussed later in the judgment. A judgment may appear abstract and unintelligible to a reader who had not previously known the antecedents of a matter being considered. An exposition of the background facts leading to a dispute ought not to harm the case of any of the parties unless the court in such exposition demonstrates an acceptance or rejection of the defence or the prosecution’s case. The court below in this case had opened its judgment by stating thus:

“Before delving into arguments of counsel and the resolution of the issues formulated, it is only pertinent to give a resume of the facts of the case. As can be gleaned from the evidence, which the trial court accepted in relation to the five appellants in this appeal, the deceased, a seventy-six year old legal practitioner of forty-two years post-call was before he met his gruesome death and at all times, material to this case, the Chief Sakoro or head of Kingmakers in Ikoro-Ekiti and second only in rank to the Olukoro of Ikoro (otherwise, the Oba of Ikoro)”

As made clear in the above passage of the judgment of the court below, the learned Justice of the court below who wrote the lead only opened its judgment by highlighting or restating the facts which the trial court had accepted. I do not see how the statement could be considered as injurious to the interest of the appellants as would make it amount to a miscarriage of justice. It seems to me that the manner in which a judgment is to be written cannot be made universal to judges. Each judge has his own style and each case often calls for an approach considered most useful to make the particular judgment good enough for the occasion. The important thing is that all the known elements in a good judgment must be incorporated. In this connection, I gratefully adopt the observation of Akintan J.S.C. in Ogba v. Onwuzo (2005) 14 NWLR (Pt.945) 331 at 334-335 where he said:

“Judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some well-known constituent parts. Thus, some of the constituent parts which a good judgment must contain in case of a trial court include: (1) the issues or questions to be decided in the case; (2) the essential facts of the case of each party and the evidence led in support; (3) the resolution of the issues of fact and law raised in the case; (4) the conclusion or general inference drawn from the facts and the law as resolved; and (5) the verdict and orders made by the court. See Oro v. Falade (1995) 5 NWLR (Pt. 396) 385 at 407-408; Mogaji v. Odofin (1978) 4 SC 9; Ojogbue v. Nnubio (1972) 1ANLR (Pt.2) 226; and Olomosola v. Oloriawo (2002) 2 NWLR (Pt.750) 113 at 125.”

The result of the above is that issue 1 must be and is decided against the 1st and 2nd appellants.

The 2nd issue is a complaint by the 1st and 2nd appellants that the defence of alibi raised by them was wrongly rejected by the two courts below. The record of court clearly reveals that the appellants raised the defence of alibi. Appellants counsel has argued that the court below erred by failing to hold that the appellant’s defence of alibi ought to have succeeded having regard to the fact that there was evidence before the trial court to sustain the defence.