Jimoh Awopejo & Ors. V. The State (2000)

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AMAIZU, J.C.A.

This is an appeal against the judgment of Olagunju J. (as he then was), of the Kwara State High Court sitting at Ilorin Judicial Division.

The judgment was delivered on the 30th of October, 1998.

The appellants, seven of them in number, stood trial for the offence of culpable homicide punishable with death, contrary to Section 221 of the Penal Code. At the trial, the prosecution called eleven witnesses and tendered some Exhibits. The appellants gave evidence and called altogether twelve witnesses. At the close of the defence, and after the learned counsel had submitted their written addresses, the learned trial Judge in a reserved judgment found the charge proved. The eleven appellants were accordingly sentenced to death by hanging. The appellants were dissatisfied with the judgment and, each filed a notice and ground of appeal against judgment.

The facts as found by the learned trial Judge may be summarized as follows:

There was a dispute over the succession to the vacant stool of the head of the local community, to wit, Bale of Oke Oyi. On 28/9/93 and 29/9/93 there were conflicting announcements about the appointment to the stool. The community was polarized into two factions.

The announcement of the 29/9/93 brought the supporters of a faction into the street. They sang offensive and threatening songs and paraded round the village. When they got to the house of the deceased’s father, they threw stones into the house. They ran round the compound and lit a bonfire. The stone hit a woman who was inside the house, by a name “Ibitokun”. The crowd was eventually dispersed by a heavy down pour. In the morning that is on 30/9/93 the crowd regrouped. This time they were armed with guns, cutlasses cudgel, etc. They marched to the house of the deceased. When the deceased saw the crowd, he and the wife ran inside the house. The deceased’s father also ran from his house to the deceased’s house. The three entered a room and locked themselves inside. The appellants who led the crowd broke into the room, killed the deceased and dragged the corpse outside.

Pursuant to the Rules of this Court, the learned counsel for the appellants and the respondent filed and exchanged their respective briefs of argument. The learned counsel for the appellants identified the following four issues for determination:-

“1. Whether the learned trial Judge was right to have picked and chose which of the prosecution witnesses to believe and those not to believe and in proceeding to convict the appellants upon contradictory pieces of evidence adduced by the prosecution at the trial without any explanation by the prosecution?

2. Whether the learned trial Judge was not in error to have convicted the appellants when the evidence adduced at the trial was materially at variance with the charge preferred against them and whether the approach adopted by him did not truncate the right of the appellants to even treatment with regard to the review of the respective cases of the prosecution and the defence?
3. Whether the trial court was justified in law in overruling the defence of alibi raised by the appellants and for failing to consider other possible defence(s) opens to the appellants at the trial?
4. Whether the prosecution proved its case beyond reasonable doubt to justify the conviction and sentence of all appellants as done by the trial court for the offence of culpable homicide punishable with death”.

For the respondent, the learned Principal State Counsel also formulated four issues for determination viz:-

“1. Whether the prosecution proved its case beyond reasonable doubt to justify the conviction and sentence of all the appellants as done by the trial court for the offence of culpable homicide punishable with death.

2. Whether the inconsistencies and or mix up in the testimonies of the prosecution witnesses are materially substantial to have occasioned a miscarriage of justice against the appellants.
3. Whether the evidence led by the prosecution at the trial of the appellant are at variance with those contained in the proof of evidence.
4. Whether the trial court was wrong to have overruled the defence of alibi raised by all the appellants.”

I find that the appellants’ issues for determination sufficiently cover all the matters in controversy in this appeal. It is my view that the said issues are good and sufficient for the consideration of this appeal.

Before us, the parties through their counsel adopted their briefs for argument.

The learned Senior Advocate of Nigeria, Yusuf Ali Esq, of counsel, cited additional authorities in support of issue 1, 3 and 4 namely:-