Omosule Iduwe 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 from the decision of Honourable Justice S.A. Bola of the Ondo State High Court sitting at Okitipupa Judicial Division delivered on the 26th day of September, 2006.

The Appellant was charged with four (4) others by way of Information with the offence of Murder, contrary to Section 316(2) and punishable under Section 319(1) of the Criminal Code Cap. 30 Vol. II Laws of Ondo State of Nigeria 1978.

The prosecution brought an application withdrawing against the 2nd – 5th accused persons on the basis that the 2nd accused who was on police bail could not be found and the 3rd – 5th accused persons were not indicted in the legal advice issued by the Ministry of Justice, Ondo State. The application was granted and the case went for full trial.

The case of the prosecution against the Appellant was that on the 19th of February, 2003, the wall of the Appellant’s room was perforated and his money which was N185,000.00 was stolen by unknown person while he was outside. He did not see anybody stealing the money, he however later suspected his wife’s half brother. One Adediran Omogunloye who lived in another camp because he did not come to sympathize with him as others did.

The Appellant later left his camp to meet the deceased in his camp and challenged him of stealing his money. The deceased denied the allegation. Thereafter, the Appellant took the deceased to another camp where the deceased parents were. They asked the deceased if he was the one that stole the money and he still denied the allegation. An herbalist was invited who performed divination and said the deceased was the person who stole the money.

In spite of this, the deceased continued to deny the allegation. The deceased was later taken away to the Appellant’s camp where his legs were tied together and was hung on a kolanut tree by the house of the Appellant. The Appellant with others at large tortured the deceased by flogging him severely, setting fire underneath him, pouring hot red oil into his ears so that he could confess to allegation of stealing the Appellant’s money. About two days later, the deceased was rushed to the hospital by his brother, one Segun Omogunloye for treatment.

However, he could not recover from the torture and died at the hospital on 23rd day of February 2003.

The Appellant, on the other hand said the family of the deceased asked him to take the deceased away. He said he later left the camp with his wife for their own camp and later travelled to Okitipupa to repair his car. That it was when he came back to the camp the second day that he was told that the deceased had been taken to the hospital at Ode Irele for treatment. He visited the deceased at the Hospital. That on the 23/2/2003, he was informed by one Kola and Modimu that the deceased had died and that some boys were looking for him. He went to the police station voluntarily to report and was accompanied there by his brother Modimu. That they were both arrested at the police station where they made statements.

At the hearing, the prosecution led three (3) witnesses while the accused Appellant testified for himself and called a witness to testify. At the close of the case, the Appellant was found guilty, convicted and consequently sentenced to death.

Dissatisfied with his conviction and sentence, the Appellant filed a Notice of Appeal (containing four (4) grounds of appeal) in this court on 29/09/06.

By leave of this Honourable Court granted on 13/07/2011, the Appellant filed an Amended Notice of Appeal (Containing eight (8) grounds of appeal) on 3/8/2011.

Briefs of argument were filed and exchanged. Appellant’s brief of argument dated 10/4/2014 was filed on 11/4/2012 and deemed properly filed on 17/5/2012. The Respondent’s brief of argument dated 17/7/2012 was filed on 18/7/2012 and deemed filed on 6/5/2013. Learned Counsel for the Appellant nominated three (3) issues for determination as follows:

i. whether the trial judge was wrong to have admitted and relied on Exhibit A, B and C (Extra Judicial Statements) without expunging same from the records before convicting the Appellant (Grounds 1, 2, 5, 6 and 7).