Muslim Folorunsho V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This Appeal is against the judgment of the Lagos High Court Lagos delivered by O. A Williams J. on the 15th of January, 2010.

The appellant stood trial before the lower court on a single count charge dated 18th of January 2007 for murder contrary to Section 319 (1) of the Criminal Code Law Cap C17, vol. 2, Laws of Lagos State 2003;

“Particulars of offence;

Muslim Folorunsho (M) on or about the 2nd day of August 2005 along Marina Street, Lagos Island in Lagos judicial division did shoot with an AK47 Rifle and murdered one Perry Samuel”

Prosecution called 5 witnesses while the defence did not call any evidence but rested their case on the prosecution’s case.

At the conclusion of trial, the lower court evaluated the evidence and found the accused guilty and sentenced him to death by hanging. The accused/appellant being dissatisfied with the judgment filed an amended notice of appeal which this court deemed as properly filed on 4th March 2014.

Appellant’s grounds of appeal less particulars are reproduced as follows;

1. The learned trial judge erred in law and in fact when she treated exhibits P3, the statement of the appellant as corroborating the evidence of PW1, PW3 and PW4 that the appellant fired a gun at the occupants of the car in which was the deceased.
2. The learned trial judge erred in law when she relied on facts contained in exhibit P3W to support the case of prosecution.
3. The learned trial judge erred in law and in fact when she found and held that it was the bullet from the gun fired by the appellant that hit and led to the death of the deceased.
4. The learned trial judge erred in law and in fact when she found and held that the prosecution was able to prove beyond and held that the prosecution was able to prove beyond reasonable doubt the cause of death and the appellant caused the death of the deceased.
5. The learned trial judge erred in law and in fact when she found and held that there was no need to tender a medical certificate of cause of death.
6. The learned trial judge in law and in facts in her findings and decisions on Section 149(d) now Section 167(D) of the Evidence Act Laws of the Federation on the failure of the prosecution to produce and tender the autopsy report and the medical certificate of cause of death.
7. The learned Trial judge erred in law when she found that Section 33(2) b of the Constitution of the Federal Republic 1999 did not apply to avail the appellant.
8. The learned Trial judge erred in law when she proceeded with the trial of the suit despite the absence of the defence counsel.”

Parties settled briefs: Appellant’s Amended Brief of Argument was settled by M. Aderemi Bashua Esq. M. A Bashua & Co dated 12th day of February 2014 filed on 20th/2/14 and Respondent’s Amended brief of Argument is dated 9th of June, 2014 and filed on 10/6/2014, which was settled by Rotimi Odutola (Mrs.) Chief State Counsel, DPP, Ministry of Justice Lagos State.

From the grounds of appeal the Appellant distilled the following issues

1. Whether the learned trial judge was not wrong in treating exhibit p3 as corroborating evidence that appellant shot at the occupants of the car wherein the deceased was. (from ground 1).
2. Whether the reliance by learned trial judge on the contents of and statement in exhibit p3 was not wrong (from grounds 2.)
3. Whether the prosecution was able to establish or prove conclusively the cause of death and that the appellant caused the death to warrant convicting him for murder?

(From grounds 3, 4, 5 and 6)

4. Whether the defendant in this suit had a fair trial considering the manner the defence counsel handled the murder trial; (from ground 8.)

The Respondent adopted all the issues formulated by the appellant, though Mrs Odutola had filed a Respondent’s Notice in her brief of Argument which she withdrew at the hearing of the appeal and the Appellant consequently withdrew its notice of preliminary objection and Appellant’s Reply both dated and filed on 11th June 2014.

In dealing with the issues I will take Issues, 1 & 2 together since they flow from the same evidence.

Issue 1 & Issue 2