Ezekiel Adekunle V. The State (1989)

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NNAMANI, J.S.C 

The appellant herein was charged with murder contrary to Section 316(3) and punishable under Section 319 of the Criminal Code Cap. 30 Vol. 11 Laws of Ondo State of Nigeria in that on or about the 26th day of January 1987, he murdered one Felicia Ejide.

He was tried at the Ikere-Ekiti Judicial Division of the Ondo State High Court, and on 15th April, 1988, Fawehinmi, J. convicted him and sentenced him to death. The appellant appealed to the Court of Appeal Benin Judicial Division (Coram Omo, Musdapher and Ejiwanmi JJ.C.A.) which on 21st February, 1989 dismissed his appeal and affirmed the conviction and sentence. The appellant has now appealed to this Court.

The facts of this tragic case have been fully set down in the judgments of the trial Court and the Court of Appeal. I can only set them down briefly here. Felicia Ejide was a woman of about 70 years at the time of her death. For about 8 years prior to her death, she had been very ill and visits to various native doctors or herbalists did not seem to have helped her.

She was so sick that she often sobbed. Her illness was in the nature of mental breakdown. Although she lived in a room next to her husband’s (D.W.1) room, it was her daughter, Plebeian P. W.2, who looked after her and occasionally brought her food. The other members of her husband’s family claimed that she cursed them from time to time. They demanded that she, Felicia, be taken away from the compound.

At a meeting at the palace of the Ogogo, it was resolved that Ejide be taken away from the compound and P.W.2 agreed to do so. On the 26th July, 1987, P.W.2 accompanied by her aunts, P.W.3 and P.W.4, arrived at about 7 p.m. to take her mother away. She tied her mother on her back in the manner in which mothers tie their children in our land. P.W.2 claimed that as they were leaving the compound the appellant followed them jeering and calling her mother a witch. He was joined by other people.

A little further, according to her, the appellant pulled at her cloth making her and her mother to fall to the ground. While on the ground, the appellant threw heavy block pieces on her mother causing her severe injuries. Others joined in throwing the blocks. Later on she carried her badly injured mother to her uncle’s home and went to lodge a report to the Police that same night.

By the time she came back with the Police, her mother had died. The appellant denied the charge and raised a defence of alibi which was supported by several witnesses including P.W.2’s father and deceased’s husband, D.W.1.

In the appeal in this Court, the appellant filed 8 grounds of appeal which I do not propose to set down. Both learned Counsel to the appellant, Mr. Olanipekun, and Mrs. Modupe Fasanmi learned Deputy Director of Public Prosecutions of Ondo State for the Respondent, filed copious and well reasoned briefs of argument for which I think I ought to commend them. The issues for determination as identified by both learned counsel are similar, but I shall take those indicated by Mr. Olanipekun as they appear to bring the main issues in this appeal into sharper focus. According to learned counsel to the appellant these issues are as follows:

“1. Whether the defence of alibi timorously put forward by the appellant and confirmed by the police upon investigation was properly rejected by the trial and lower courts.

2. Whether it was proper for the learned trial Judge (and the Court of Appeal) to have treated D. W. 1) Jacob Komolafe as a ‘suspect or biased witness’ thereby rejecting his evidence which strongly favors the appellant.
3. Having regard to the equivocal finding of P. W. 1, the medical doctor, as recorded in Exhibit A and his evidence in Court, whether it is still safe to convict the appellant of the offence of murder.
4. Whether all the ingredients of the offence of murder contrary to Section 316(3) of the Criminal Code of Ondo State were proved and/or established against the appellant before the learned trial Judge.
5. Whether it was proper for the learned trial Judge to have convicted the appellant under Section 316(2) of the Criminal Code without amending the charge and taking the appellant’s plea.
6. Whether the evidence adduced by the prosecution irresistibly led to the guilt of the appellant and/or whether or not the prosecution proved the case against the appellant beyond reasonable doubt.”

Issues Nos. 2 and 5 were fully agitated before the trial court and the Court of Appeal and I find nothing that will justify my reopening them in this Court. I shall only deal with issue No.6 briefly as that issue is dependent on the views 1 form on issues Nos. 1, 3 and 4. In my view, this appeal turns on these 3 issues and these were infact the issues fully argued in the briefs of argument and expatiated in oral argument.

Before taking on these issues, however, it is essential to mention that there are concurrent findings of facts of both the trial Court and the Court of Appeal in this appeal. Neither in his brief nor in oral argument did Mr. Olanipekun advance any special circumstances why this Court should depart from them. Most of these findings went to the issue of credibility which would have been more difficult to upset. I shall refer to these findings which must now be regarded as established facts. On page 57 of the record of proceedings, the learned trial Judge asserted that the straight forwardness of the case rested upon the following singular features:

“1(a) That the accused and Plebeian Adedara (P.W.2) are well known to each other and that they both come from the same Osolo Compound in Ikere-Ekiti.

(b) That P. W.3 and P. W.4 are equally well known to him.