Omoniyi Oladiran V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the leading Judgment)

This is an appeal against the judgment of W. A. Akintoroye, J delivered on 27/11/2008 in the Ondo Judicial Division of the High Court of Justice, Ondo State.

One Mustapha Tijani (as 1st accused) and the appellant (as co-accused) person were arraigned before an Ondo state High Court sitting at Ondo on a two – count charge of conspiracy to commit murder contrary to and punishable under section 516A of the Criminal Code Law, Cap. 30 vol. 11 Laws of Ondo State, 1978 and murder, contrary to Section 316 and punishable under Section 319 of the Criminal Code Law, Cap. 30 Vol. 11 Laws of Ondo State 1978.

The appellant was the 2nd accused at the trial while one Mustapha Tijani was the 1st accused at the trial. The case of the prosecution is that on the 9th day of February 2006 at about 6 pm, the deceased one Gbenga Ojo, while in company of a friend on their way to Sabo in Ondo, met one Friday. The deceased had a discussion with the said Friday, while the discussion was going on, the Appellant alleged that the two, that is, the deceased and Friday, insulted his chairman, that is, the 1st Accused person.

The Appellant then held on to the deceased and started beating him. The 1st accused person then used a plank or wood to hit the deceased on the head after which he (the deceased) fainted and fell down as a result. The deceased was later rushed to the Hospital that night. The following morning the incident was reported to the police it was at the Police Station that the news came that the deceased had died.

The Appellant gave evidence as DW2 at the trial Court. He denied the offences for which he is charged. In his defence however, he said that in the course of the fight, the deceased ran to a shop, took a bottle, broke it on his own head and was later taken to the hospital.

At the close of evidence from both sides and addresses by counsel, the learned trial judge found the Appellant guilty of conspiracy to commit murder and murder and convicted and sentenced accordingly.

Dissatisfied with this judgment, the appellant first filed a Notice of Appeal before this Court on 12-12-2008 and later filed additional grounds of appeal on 4/3/13.

Appellant’s brief of argument dated 6th March 2013 was filed on 24/4/13. Respondent brief of argument dated 23/8/13 was filed on 28/8/13. Learned counsel for the appellant distilled two (2) issues from the eight (8) grounds of appeal filed in this Court.

They are:

1. Whether the learned trial judge was right when he convicted and sentenced the Appellant of murder.
2. Whether the conviction and sentence of the Appellant for conspiracy to kill was proper in law.

These issues were equally adopted for determination in this appeal by the learned counsel for the Respondent.

The complaints of the learned counsel for the appellant in relation to issue No. 1 could be broadly categorized into three parts, arms or segments.

(a) Contradictions in the evidence led by the prosecution.

(b) Evidence of PW3 required warning in law.