Donatus Ndu V. The State(1990)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.S.C.

On Thursday the 4th day of October, 1990, the appeal of Donatus Ndu against his conviction and sentence to death was dismissed by me. I indicated then that I would give my reasons for the dismissal of the appeal today. I now proceed to do so.

It is generally accepted that the hearing of addresses from counsel before delivery of judgment is an important exercise in judicial proceedings in our courts. The entire proceedings may be declared a nullity if a counsel is denied the right to address the court at the close of evidence. The main issue that calls for a decision in this appeal is whether the refusal by the trial court to grant counsel adjournment to enable him prepare his address is necessarily a denial of his right of address, if by the refusal counsel could not address the court.

The appellant, Donatus Ndu, was charged upon an information with the murder of one Jemilatu Shoetan, a girl. The offence punishable under section 319 of the Criminal Code law, Cap.31 , Laws of Lagos State was said to have been committed on or about the 15th day of December, 1979 at Iganmu, Lagos State. The accused was also charged with the offences of

(a) Arson,

(b) Assault with intent to prevent arrest and

(c) Wilful and unlawful damage to property, offences said to have been committed at the same time and place.

At the address stage of the proceedings the three additional counts were withdrawn by the prosecution when attention was drawn by the court to section 339 of the criminal procedure law of Lagos State regarding the impropriety of joining the said three counts with a charge of murder. The said three counts were therefore struck out and the accused discharged in respect of the three.

The prosecution called a total of ten witnesses. Three witnesses, including the accused, testified for the defence. At the close of the case for the defence on 11th November, 1982, learned counsel to the defence refused to address the court after his application for adjournment to another date had been turned down by the court. The reason for the refusal and its justification or otherwise will be adverted to later in this judgment. Only counsel for the state addressed the court.

In his judgment, after a meticulous review of the evidence adduced before him and after due consideration of the defences open to the accused along with the applicable laws, the learned trial Judge, Okuribido J., came to the conclusion that the prosecution had proved beyond reasonable doubt that the accused on the 16th day of December, 1979 with intent to do grievous harm to the deceased unlawfully killed her. The learned trial Judge was satisfied that the accused must be deemed to have intended the death of the deceased. He accordingly found the accused guilty of murdering the deceased contrary to section 316(2) of the Criminal Code law, an offence punishable under section 319(1) of the same law. The accused was therefore sentenced to death by hanging.

Dissatisfied with the judgment, the accused appealed to the court of appeal on a number of grounds. One of the issues canvassed before the court of appeal was the question of the refusal of the learned trial Judge to grant the application of the defence counsel for an adjournment to enable him prepare his address. The defence contended that the refusal amounted to a denial of fair hearing to the appellant.

In a reserved judgment, (concurred in by Ademola and Awogu, JJ.C.A.) Babalakin, J.C.A. was satisfied that the appellant was not prejudiced by the refusal to grant an adjournment for address in that all the defences open to the appellant on the fact of the case were adequately considered by the learned trial Judge and that the principle of fair hearing entrenched in the 1979 Constitution was not breached. He also considered other issues raised by the grounds of appeal and found the complaints of the appellant baseless. The court of appeal accordingly dismissed the appeal and affirmed the conviction and sentence passed on the appellant by the trial court.

Still dissatisfied, the accused has now appealed to this court on a number of grounds. For one to fully appreciate the reasonableness or uselessness of the complaints of the appellant, it is necessary to set out the relevant facts of the case placed before the trial court before drawing attention to the grounds of appeal and/or issues for determination in the appeal. The appellant was at the time material to this case a tenant at No.2A Adeleye Street, Orile Iganmu. His landlord was Tajudeen Adisa Shoetan, P.W.1., who lived at No.2 Adeleye Street adjacent to No.2A. The deceased lived with P.W.1, her uncle. Going by the prosecution’s case, on the night of 15th December, 1979 when P.W.1 was walking along the corridor of No.2A, the appellant blew some black powdery substance on him. This incident led to an altercation between them. The appellant slapped P.W.1 and drew out a dagger. P.W.1 accompanied by P.W.3, Oluwole Olawunmi, an accounts clerk residing also at No.2 Adeleye street reported the incident at Iponri police station.

Two police officers went to the scene in company of P.W.1 and P.W.3. At the scene, on knocking at the door of appellant and was told he was being invited to the police station, the appellant opened the door came out armed with a dagger and stabbed Corporal Adetunji, P.W.4 on the shoulder. Corporal Olabisi and P.W.4 sped away as they were pursued by the appellant. The appellant returned to his room, later came out armed with a dagger and carrying a pestle and a bottle of kerosine. With the pestle, he damaged P.W.1’s car No.LAD 3897 and set it on fire after sprinkling kerosine on it. He damaged another car with registration No.OY 5713 W. He apparently returned to his room. While P.W.3 and Jemilatu, the deceased, were trying to put out the fire, the appellant appeared at the scene still armed with a dagger and threatened to kill all of you tonight.