Olabode Abirifon V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C.

This appeal has same antecedent with its sister i.e. SC/103/2011. All the facts, the grounds of appeal and the issues for determination are the same. I am really in pains in giving this judgment separately because of the non-consolidation of the two appeals, though they were tried and convicted in a joint trial at both the trial court and the court below.

The simple facts are as follows:

The appellant herein, along with others: Sunday Abirifon and Mathew Olomi Abirifon were charged with conspiracy, and murder of one peter John, an indigene of former Bendel State. He was an annual labourer to Mr. Mathew Oloni Abirifon (father to the appellant). Mr. Mathew Oloni Abirifon owed Peter John (the deceased) an amount of money in the sum of thirty thousand Naira (N30,000.00) being money due to the deceased as his annual dues for the year 2008. It was in a bid to avoid the payment of the money to Late Peter John that Mr. Mathew Oloni Abirifon conspired with his children and murdered the deceased, The charge was brought before the Ekiti State High Court holden at Ado Ekiti (trial court) pursuant to Sections 324 and 319(1) of the Criminal Code Laws of Ondo State as applicable in Ekiti State. Before trial commenced however, Mr. Mathew Oloni Abirifon and Sunday Abirifon died and their names were struck out, subsequently, from the trial court’s cause list, now leaving the names of the appellant and one other.

On arraignment, the appellant pleaded not guilty to the two counts charge. The case then proceeded for full trial. Witnesses were called. Exhibits were tendered. After the close of evidence and defence, respective learned counsel for the parties addressed the court. At the end of trial, the learned trial judge found the appellant guilty as charged, convicted him and sentenced him to death.

Dissatisfied, the appellant appealed to the Court of Appeal sitting in Ilorin. His appeal was unsuccessful as it was dismissed. The appellant appealed further to this court on a sole ground of appeal.

In compliance with this Court’s Rules, parties filed and exchanged briefs of argument. The learned counsel for the appellant distilled the following issue for determination:

“Whether the prosecution proved its case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the 1st appellant by the Court of Appeal.”

Learned counsel for the respondent adopted the issue formulated by the appellant as set out above.

In his submissions, the learned counsel for the appellant mainly relied on Section 138(1) of the Evidence Act is to emphasize the position of the law that it is the prosecution which bears the burden of proof beyond reasonable doubt as there was neither eye-witness evidence, nor compelling circumstantial evidence for the prosecution. The conviction of the appellant was predicated on the confession of the appellant which was either wrongly admitted in evidence; made involuntarily or even retracted. The corroborating evidence was not independent of the confession it seeks to corroborate. Some of the prosecution witnesses, learned counsel submitted, were without any credit whatsoever and there were inconsistencies in their testimonies. The foregoing facts leave lingering doubts in the case of the prosecution. It is learned counsel’s further submission that the trial court and the court below never seriously considered appellants defence of alibi. Learned counsel urged this court to allow the appeal.

In his brief of argument the learned DPP for the respondent, submitted on his sole issue, after stating the ingredients of the offence of murder and some decided cases, that the prosecution employed two methods, i.e. confessional statement and circumstantial evidence to prove the guilt of the appellant and that the prosecution proved beyond reasonable doubt the offence of conspiracy to commit murder and murder against the appellant. The lower courts were right in convicting and sentencing the appellant and no miscarriage of justice was suffered by the appellant. This court is urged to affirm the conviction and sentence of the appellant.

Now, the main complaint of the appellant in both the court below and this court is that the trial court was wrong in convicting and sentencing him to death on the offence of murder when the prosecution failed to prove the offence beyond reasonable doubt in that:

a) the conviction of the appellant was not based on any eye-witness testimony;

b) the conviction was based on uncorroborated/independent evidence: