Monsuru Solola V. The State (2005)

LAWGLOBAL HUB Lead Judgment Report

D.O. EDOZIE, JSC

The 1st and 2nd Appellants as 1st and 2nd accused persons respectively, together with two others, namely Latifu Solola (3rd accused) and Kabiru Solola (4th accused) were initially jointly arraigned at the High Court of Justice, Abeokuta on a two count information with the offences of conspiracy to murder in count one and murder in count two contrary to sections 324 and 316 respectively of the Criminal Code Law (Cap 29), Laws of Ogun State of Nigeria 1978. The particulars of the offences alleged that they with others at large on or about 12th April, 1994 at Igbore in the Abeokuta Judicial Division conspired to murder and did murder one Semiu Gboyega. Each of the four accused persons pleaded not guilty to the charge. Before the trial, the charges against the 4th accused Kabiru Solola were withdrawn and he was used as witness for the prosecution No.2. Thereafter, the trial against the 1st, 2nd and 3rd accused persons continued at the end of which they were all convicted as charged and sentenced to death. Their appeals to the Court of Appeal, Ibadan Division were dismissed. Thereupon, each of the 1st and 2nd Appellants, herein has lodged a further appeal to this court. Latifu Solola the 3rd accused at the trial court and 3rd Appellant at the court below filed no appeal before this court. Nevertheless, he will be referred to hereinafter as the 3rd Appellant.

As stated above, the charges against the 4th accused were withdrawn and he was used as a witness for the prosecution apparently because he was an innocent agent in the commission of the offences charged. As a child of 12 years of age, he is a relation to the Appellants, in that, he is a junior brother of the 1st Appellant, cousin of the 2nd Appellant and the son of the 3rd Appellant. Giving evidence as the star witness for the prosecution, he Kabiru Solola (P.W.2) a child of 12 years of age gave a sworn evidence to the effect that on the fateful day, that is, 12th April, 1984, he was sent by the 1st, 2nd and 3rd Appellants to go and call Semiu Gboyega, the deceased his playmate and a boy with a hunch back under the pretext that they wanted to send him on an errand. The message was conveyed to the deceased in the presence of his father and the unsuspecting deceased was allowed to accompany the P.W.2 who subsequently delivered the deceased to the Appellants and was asked to leave. P.W.2 later left the scene after arranging with the deceased for both of them to meet in the house of Buraimoh their common friend. After waiting for sometime without seeing the deceased, the P.W.2 approached the 3rd Appellant his father to enquire about the deceased but was told that the deceased had left for his home. The following day, the father of the deceased confronted, the P.W.2 on the where about of the deceased. A report was made to the police and the report was recorded as one of a missing child. The P.W.2 observed that his father the 3rd Appellant who used to give him N5 for school then gave him N10.00.

In the night of 14/4/94 between 10p.m. and 11p.m., a woman Bolajoko Oshundeyi (P.W.3) who lived near the Appellants smelt an offensive odour and heard the sound like the opening of the roof of the house from the direction where the Appellants lived. She looked out and saw the 1st Appellant as he dropped the corpse of the deceased. She gripped the 1st Appellant and raised an alarm which attracted other neighbours including Oludotun Awaye (P.W.4) alias Baba Ese. She observed that the head of the deceased had been shaved and the hunch at his back severed.

Sergeant Jasper Agamagrah (P.W.5) was the Investigating Police Officer (IPO) at Divisional Crime branch Ibara who on 13/4/94 received the report made by Dauda Adegboyega that his son the deceased was missing. In the company of other police detectives he searched the houses of the 3r Appellant at 42 Igbore Road. All the rooms in the house were searched except one room which the 1st and 3rd Appellants told them the occupant was in Lagos. The following day, the case was transferred to Eleweran police station where another IPO Sergeant Alfred1’Adeleke (P.W.6) took over the investigation of the case. He, P.W.6, took the statement of the 3rd Appellant under caution. The English and Yoruba versions were admitted as Exhs. C-C1, On 15/4/94, the 1st Appellant was arrested and after being charged and cautioned he volunteered a statement and this being a confessional statement, it was endorsed by a superior police officer as having been made voluntarily. The Yoruba and English versions of the statement were admitted as Exhibits D-D1 respectively after a mini trial. The statement of the 2nd Appellant were admitted in similar circumstances as Exhs. E-E1

The 1st and 2nd Appellants on 19/4/94 made additional statements admitted in evidence after a mini trial as Exhibits G-G1 and H-H1 respectively. On investigation of the case, the IPOs discovered the corpse of the deceased by the side of the house of the 3rd Appellant. Post mortem examination of the deceased was performed by Dr. Ekundayo Adefenwa Sobowale (P.W.I). In his opinion, the cause of the death of the deceased was due to haemorrhagic shock as a result of acute loss of large volume of blood due to the removal of the deceased’s hunch back.

As noted earlier on, all the three Appellants were convicted as charged by the trial court and their convictions were affirmed by the court below. Before this court, each of the 1st and 2nd Appellants has pursuant to his appeal filed separate briefs of argument and in response, the Respondent has filed separate briefs. For the consideration of the appeals, I will adopt the issues as formulated in the Respondent’s briefs, which I consider encompasses the issues contained in the 1st and 2nd Appellants’ briefs. The issues identified by the Respondent in respect of the 1st Appellant’s appeal are:-

“1. Whether the Court of Appeal was right in holding that the trial court had substantially complied with the provisions of section 215 of the Criminal Procedure Law (Cap 30) Laws of Ogun State of Nigeria, 1978 and section 3(6)(a) of the 1979 Constitution.

Whether the Court of Appeal was right in holding that the trial court had rightly admitted and relied on Exhibits D-D1 and, G-G1 being the confessional and additional? statements of the 1st Appellant”

Whether the Justices of the Court of Appeal were right when they held that the evaluation and appraisal of the evidence of the defence before that of the prosecution by the trial court had not shifted the burden of proof on the 1st Appellant and other accused persons.

Whether the Court of Appeal was right in holding that the pronoun-cements of the trial Judge on the offences of conspiracy and murder was not substantial to warrant reversal of the decision of the court.”

In respect of the 2nd Appellant’s appeal the issues as identified in the Respondent’s brief which are identical with those formulated in the 2nd Appellant’s brief are as follows:-

“1. Whether the 2nd accused was lawfully arraigned in accordance with the mandatory provisions of section 215 of the CPA.

Whether by virtue of section 155 of the Evidence Act, P.W.2 was a competent person to testify in the trial of the 2nd accused?”