Solomon Adekunle V. The State (2001)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A. 

The appellant, Solomon Adekunle was a Police sergeant attached to Odogbolu Police unit. He was on anti-crime patrol duty on 7th February, 1997 along Shagamu/Benin express-way. The patrol team was led by Silvester Okparaji (PW2), an Assistant Superintendent of police. Others in the patrol team, apart from the appellant and the said leader of the team, included one Inspector Ojo, Oyewole Ogunbowale – a police constable, and two soldiers. On arrival at the express-way, the team was divided into two parts by the team leader, Silvester Okparaji. The appellant, Oyewole and a soldier were in a team and that team was stationed along the Benin/Shagamu side of the road. The team leader and the others were on the Shagamu/Benin side of the expressway. The two groups were about 100 metres apart.

A few minutes after the arrival of each of the groups on its side of the express-way the team leader (PW2) said he heard gun shots from the Benin/Sagamu unit. The man (P.W.2) said he shouted who fired. He said he saw the appellant walking towards a bus bound for Lagos with passengers. The appellant told the team leader (PW2) in reply to his enquiry as to who fired the gun that he was the one who fired. P.W.1 said he quickly disarmed the appellant by collecting the rifle in the man’s possession. He then moved towards the bus. On getting to the bus, he found that three men and a girl, Alice Tominiyi, inside the bus had been hit by bullets from the gun shots. PW2 said he rushed the victims to Ijebu-Ode General Hospital. He thereafter took the appellant to Odogbolu Police station where the incident was reported to the Divisional Police Officer. He later on the same day returned to the Ijebu-Ode General Hospital to see the conditions of the four victims of the gun shots. There, he found that while the three men were responding to treatment, the condition of the girl, Alice Tominiyi, was deteriorating. The girl was therefore transferred from the General Hospital to the Ogun State University Teaching Hospital, Sagamu (OSUTH). But the girl eventually died at OSUTH on 8th February, 1997, a day following the shooting incident.

The appellant was arraigned before Ijebu-Ode High Court for the murder of the girl, Alice Tominiyi contrary to section 319(1) of the Criminal Code Laws, of Ogun state. The particulars of the offence preferred against him are that the appellant, “on or about the 7th day of February, 1997 at Ijagun junction along Benin/Sagamu Expressway in the Ijebu-Ode Judicial Division murdered one Alice Tominiyi”. The information was filed after the consent of the Hon. Judge had been sought and obtained as required under section 340(2)(b) of the Criminal Procedure Law. The consent was dated 24th February, 1998. The names of seven witnesses were given at the back of the information. But only two out of the seven witnesses actually testified at the hearing before Osidipe, J. sitting at ljebu-Ode High Court in Ogun state. The two witnesses gave their evidence on 13th September, 2000. The reason why the other witnesses listed on the information failed to testify was that the police failed to serve the subpoenas issued in respect of the five absent witnesses. The five witnesses on whom the police failed to serve subpoenas include the driver of the bus and the doctor who performed the post-mortem examination on the corpse of the deceased.

The case first came up for hearing before the learned trial Judge on 28th June, 1999. The charge was read to the appellant and his plea was taken on that day. But the case could not go further on that day because the prosecution wanted an adjournment to enable the police process server make effort at serving the witnesses. The case then had to be adjourned. Similar adjournments were granted on many occasions for the same reason of inability of the police process server to serve the witnesses. In fact, a new dimension was introduced into the affair when the prosecution informed the court at the hearing on 7th March, 2000 that the police said they could not trace the original case file. The prosecution eventually had to proceed with the trial on 13/9/2000 by using the copies of the documents, in the duplicate case file in its possession and the two witnesses available. The two available witnesses were the Investigating Police Sergent, Oluwole Babalola (PW1) and the team leader, ASP Silvester Okparaji (PW2).

The case for the prosecution is as given in evidence by the two witnesses. The only witness who gave an account of the incident was ASP Silvester Okparaji (PW2). As earlier stated above, he told the court he was about 100 metres away from the appellant when he heard gun shots from the Benin/Sagamu unit headed by the appellant.

The relevant portion of his evidence as recorded is as follows:

“On 7/2/97, I went out with my team on patrol at Ijagun junction on the express way. Others with me were the accused, P.C. Oyewole Ogunbowale, two soldiers, Inspector Ojo. At the scene, I divided my officers into 2 groups with the accused, Oyewole and a soldier on the Benin/Sagamu while myself and others were on Sagamu/Benin. We were about 100 metres apart. Some few minutes after my arrival, I heard gun shots from the Benin/Sagamu unit. I shouted for who fired, I saw accused walking towards a bus bound for Lagos with passengers. The accused told me he was the one who fired. I quickly disarmed him and moved towards the bus, I found out three men and a girl Alice had been hit by the bullets. I rushed the victims to Ijebu-Ode General Hospital. I took the accused to Odogbolu Police Station and reported the incident. Exhibits C and C1 are the SMG and bullets recovered from the accused after disarming him. I reported to my D.P.O. I went back to see the conditions of the victims. While the men responded to treatment, Alice condition however deteriorated and I got her transferred to OSUTH Sagamu. I bought blood for the girl but on 8/2/97, her condition became worse and she eventually died”.

The other witness Sgt. Oluwole Babalola (PW1), was the Investigating Police Officer. He told the court that the case was referred to him on 11/2/97 while he was on duty at Eleweeran Police Station in Abeokuta along with the exhibits. The exhibits handed over to him were the SMG rifle and the bullets. He also told the court that the appellant made a statement to him in English language and that the case file was missing. A photocopy of the statement made by the appellant was tendered by the witness and admitted without objection as Exh. A. Also tendered by PW1 and admitted without objection are a photocopy of the medical report admitted as Exh.B, the SMG rifle and five bullets admitted as Exhs. C & C1- C3 and the bloodstained shirt of the deceased.

The two witnesses were duly cross-examined by learned counsel for the appellant. The prosecution thereafter closed its case since none of the other five witnesses whose names were listed on the information was available to testify. The reason given for their inability to testify was that the Police Process server failed to serve the subpoenas issued in respect of each of the said witnesses. The defence informed the court that it was resting its case on that of the prosecution. Counsel for the parties then addressed the court and the case was adjourned for judgment.

The court delivered its reserved judgment on 13/10/2000. The learned trial Judge after reviewing the evidence placed before him in the matter and all the legal points raised in the court, came to the conclusion that the prosecution has proved a case of murder against the appellant. He accordingly convicted the accused and sentenced him to death by hanging. The present appeal is against the conviction and sentence passed on the appellant by the court.

Three notices of appeal were filed by the appellant. They were respectively filed on 2/11/2000, 19/11/2000, and 8/11/2000. The parties filed their briefs of argument in this court. In the appellant’s brief, leave of this court was sought to abandon the two notices of appeal respectively filed on 2/11/2000 and 19/11/2000. The present appeal is therefore based on the notice of appeal filed on 8/11/2000. That notice of appeal contains three grounds of appeal. The following single issue was formulated in the appellant’s brief.

“Whether the learned trial Judge was right in convicting the appellant of the offence of murder.”

Two issues are however formulated in the respondent’s brief. The two issues are as follows: