Godwin Alao V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment)

This appeal emanates from the judgment of the High Court of Justice of Edo State (“The lower court” for short) delivered by Edigin J, on the 19th of June, 2007.

At the conclusion of the trial, His Lordship convicted the present appellant (the 2nd Accused, at the lower court) and his younger brother Omokhefe Alao) of the offence of murder and sentenced the present appellant to death. The 1st accused person or convict being a minor, was dealt with under Section 12 of the Children and Young Persons Law and detained at the pleasure of the Governor of Edo State, pursuant to Section 40(6) of the Criminal Procedure Law of Edo State.

The facts of the case which gave rise to this appeal are simple and straightforward. Prior to the 14th day of February 2005 when the offence was committed, the brothers of the deceased person on one part and the appellant and his brothers on the other part, had some misunderstanding which ultimately led to the first prosecution witness, one Ovie Julius and his brothers including the deceased person (one Edwin Asaba Ovie) to report the dispute at the Sabongida-Ora Police Station. The said misunderstanding later generated into a serious fracas leading to the murder of the deceased by the 1st accused person and the appellant herein. During the trial of the two accused persons at the lower court, the prosecution called four witnesses and tendered four exhibits to prove the two count charge of conspiracy and murder, contrary to Sections 516 and 319 (1) respectively of the Criminal code cap 43 Vol. II Laws of Bendel State of Nigeria, 1976, applicable in Edo State of Nigeria. Each of the two accused persons testified for his own defence and called witnesses in their defence at the lower court. At the conclusion of the trial, the two accused persons were found guilty as charged and the present appellant (2nd accused) was convicted of murder and sentenced to death. Dissatisfied with the decision of the lower court, he appealed to this court vide his Notice of Appeal dated 4th July, 2007 containing two grounds of appeal. However later with leave of this court granted on 29/6/2009, the appellant filed two additional grounds of appeal jerking up the total grounds of appeal to four.

The two grounds of appeal contained in the original Notice of Appeal and the other two grounds of appeal contained in the Additional Grounds of Appeal are reproduced hereunder along with their particulars for ease of reference.

GROUND OF APPEAL IN THE ORIGINAL NOTICE OF APPEAL

GROUND ONE

“1. The learned trial judge erred in law when it (sic) picked and choose from the contradictory evidence of the prosecution witnesses to convict the 2nd accused person.

PARTICULARS OF ERROR

(d) In criminal matters the cases of the prosecution is taken as a whole.

(e) It is not the duty of the trial judge to pick and choose which evidence of the prosecution witnesses to believe or to disbelieve.

(f) PWI and PW4 contradicted themselves materials on how the deceased was murdered.

GROUND TWO

2. The learned trial Judge erred in law when it (sic) failed to rely on the evidence of an independent witness but relied on the evidences of relations of the deceased to convict the 2nd accused person for murder.

PARTICULARS OF ERROR