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Sule Oladejo Asariyu V. The State (1987) LLJR-SC

Sule Oladejo Asariyu V. The State (1987)

LawGlobal-Hub Lead Judgment Report


On the 18th day of October, 1984, the appellant was arraigned before Olowofoyeku, J, sitting at Oyo High Court, and charged with the offence of murder punishable under Section 319 of the Criminal Code Cap. 30 Volume II, Laws of Oyo State of Nigeria, 1978. The charge alleged that on or about the 2nd day of June, 1983, at Mogaji Abogunrin area of Oyo town, he murdered one TIJANI AFOLABI. He pleaded not guilty to the charge.

At the trial nine witnesses gave evidence for the prosecution while the appellant alone testified in his own defence. At the conclusion of the hearing, Olowofoyeku, J. delivered a considered judgment on 8/2/85 wherein he found the appellant guilty, convicted him and sentenced him to death.

The facts of the case proved and accepted by the learned trial Judge, Olowofoyeku, J. are simple and are briefly as follows:

In the early hours of 3rd day of June, 1983, Amusa Yusufu (P.W.1) and Tijani Afolabi – the deceased, were on duty as night guards in the Isale Oyo area of Oyo town when they both heard some sound as if the door or window of a bakery in the vicinity was being opened. The deceased ran towards the direction of the sound and was followed by P.W.1. When the deceased got to the place and was about to arrest the intruder (who turned out to be the appellant), the appellant struck him on the head with a matchet.

Thereupon, P.W.1, on getting to the place hit the appellant on the head with a heavy stick and immediately started blowing his whistle so as to attract the attention of some other night guards in the neighbourhood. The appellant took to his heels and fled into a dilapidated mud building. Meanwhile, a number of night guards who had heard P.W.1’s distress call, pursued the appellant into the mud building which they surrounded after the appellant had locked himself inside. While this was going on, some of the night guards rushed the deceased to the hospital where he died before any assistance could be given to him. Eventually the matter was reported to the Police and the appellant was arrested.

Aggrieved by the conviction and sentence, the appellant appealed to the Court of Appeal, Ibadan Division (consisting of Ogundare, Sulu-Gambari and Onu, JJ.C.A.) and in a considered judgment, the Court unanimously dismissed his appeal. Still aggrieved, he has brought this appeal against his conviction and sentence.

Originally only one ground of appeal was filed and that was the general ground alleging the conviction of the appellant was not supported by the evidence adduced. However when the appeal came up for hearing on the 15th day of October, 1987, Otunba Ajayi-Okunuga for the appellant, sought, and was granted leave to file and argue two additional grounds of appeal. So the three grounds of appeal argued are as follows:

“Ground One

The case against the appellant was not proved beyond doubt as required by law.


The absence of an eyewitness account of the incident made it impossible for the prosecution to prove the case. Because PW1 said that the deceased got there before him, and that the assailant took to his heels as soon as he hit him with a heavy stick. Again it was in the dead of night, obviously one would think that he had no opportunity of observing the incident.

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Ground Two

The identity of the appellant is dubious in the extreme; because there is no evidence that he was caught red-handed at the scene of the crime.


There is no shred of evidence to show that the appellant was caught at the locus in quo. The proof of the mud-building (which some of the witnesses referred to as dilapidated) is shrouded in ambiguity. For example PW 1 said there were other persons living there, while PW7 said no other persons residing there.

Ground Three

The decision is unwarranted, unreasonable and cannot be supported in view of the evidence adduced in the case.

(a) In general, there are several issues which are fatal to the prosecution’s case. In particular is the doctor’s evidence which was given to certain extent, and was suddenly withdrawn. That must be taken against the prosecution. See Section 148(d) of the Evidence Act Cap. 62.

(b) It was absolutely wrong for the Hon. Justices of the Court of Appeal to set out, as they did to interpret the recorded evidence against the suspect. Whereas it is settled law, that whenever there is a doubt however slight, that the suspect is entitled to the benefit.”

In her brief of argument, Otunba Ajayi-Okunuga set out six issues for determination in this appeal, but having considered the grounds of appeal filed and counsel’s submissions in support of those grounds, I have come to the conclusion that the only two issues which really arise for determination in this appeal are the ones set out at page 2 of Respondent’s brief.

These are:-

“(1) Whether the case against the Appellant was proved beyond reasonable doubt.

(2) Whether there is sufficient evidence to link the Appellant with the commission of the crime.”

I will deal with the second iss ue first for if that issue is resolved in favour of the appellant, the first issue will no longer arise.

The evidence which links the appellant with the crime is that of P.W.1 who claimed to be an eye witness. He testified that he saw the appellant strike the deceased on the head with a matchet before the appellant fled into a mud building, and that he was one of a group of people who were surrounding the mud building when the appellant came out as he was ordered by the Police. With regard to the identity of the appellant he testified as follows:-

“I saw the man who came out when the police asked him to come out. I also saw the man we were pursuing when we pursued him. It was the same man we were pursuing that came out at the behest of the police. The man the police called out and whom we were pursuing is the accused.”

It is true the appellant was not arrested at the scene of the crime but it seems to me that if the evidence of P.W.1 was believed, it would have conclusively proved that it was the appellant that caused the death of the deceased. That evidence, as it happened, was indeed believed by the learned trial Judge, who in his judgment observed as follows:

“I must at this juncture state that in the view of this court, P.w.1 gave evidence quite cogently and in straightforward manner. There was no hesitancy about him during testimony and he convincingly exuded the impression of a truthful witness……….

I believe the evidence of 1st p.w. standing alone as it does as the main prop of the prosecution’s case.”

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Thus on the crucial issue of who murdered the deceased, the learned trial Judge found it was the appellant, basing his finding on the evidence of P.w.1. Now Mrs. Ajayi-Okunuga submitted that the trial Judge should not have believed p.w.1 without giving any valid reason or reasons why his evidence should be rejected. It is trite law that the evaluation of the evidence adduced in a trial by a witness, and the ascription of probative value to such evidence are matters within the exclusive competence of the trial Judge who had the advantage of seeing the witnesses, of watching their demeanour, and of hearing them give evidence. An Appeal Court will not disturb such a trial judge’s findings of fact unless they are perverse – See Shell B.P. Petroleum Development Co. of Nigeria v. His Highness Pere Cole & Ors (1978) 2 SC.183. It has not, in this case, been shown that the findings of the learned trial Judge are in any way perverse.

Now turning to the other matter for determination, the question is – Was the case against the appellant proved by the prosecution beyond any reasonable doubt

Mrs. Ajayi-Okunuga submitted that it was not, and in this regard both in her brief and oral submissions made several points, only three of which in my view, are worthy of consideration. They are:-

(1) That since p.w.1 in his evidence said that the deceased got to the scene of the incident before him, he (p.w.1) could not have witnessed whatever transpired between the deceased and the appellant.

(2) That there was a contradiction in the evidence of p.w.1 and p.w.7 which was capable of casting some doubt on the prosecution’s case; and

(3) That the prosecution should have called as a witness one of the people living in the mud house with the appellant and that “failure to call any of the inmates to testify is against the prosecution under Section 148(d) of the Evidence Act Cap. 62 Laws of Nigeria.”

The first point, I think, has been sufficiently covered by what has been said in this judgment regarding the acceptance of P.W.1’s evidence by the trial Judge.

With regard to the second point about the alleged contradiction in the evidence of the 1st and 2nd Prosecution Witnesses, I entirely agree with the submission of the learned counsel to the Respondent Mrs. Oyelaran, Ag. D.P.P. Oyo State, that even if there was a contradiction in their evidence, it was not a material one. It is trite law that it is not every contradiction in the evidence of the witnesses for the prosecution that may warrant interfering with the decision of a trial judge by an Appeal Court. For a contradiction to be fatal to a case, not only must it relate to a material fact, it must also lead to a miscarriage of justice. See:

Queen v. Ekanem (1960) 5 F.S.C. 14,

Queen v. Iyanda (1960) 5 F.S.C. 263 and

Omisade v. Queen (1964) I All N.L.R. 233.

The alleged contradiction in the evidence of the 1st and 7th prosecution witnesses as to whether some other persons were living in the appellant’s mud building at the time of the incident is a minor one. In my view it is not substantial enough to warrant interference by this Court.

With regard to the third point relating to the failure of the prosecution to call an inmate of the appellant’s house as a witness, it is, I think, pertinent to state here again, as this Court has repeatedly done in several of its recent decisions, that although the burden is on the prosecution to prove its case against the accused beyond any reasonable doubt, in discharging that responsibility, the prosecution is not under any legal obligation to call a host of witnesses. All that the prosecution need do is to call material witnesses to prove its case. See:

Effiong Udofia v. The State (1981) 11-12 SC. 49 at 63.

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Okonofua v. The State (1981) 6-9 S.C. 18 at 48; and

Inusa Saidu v. The State (1982) 4 SC. 41 at p.69.

There is in my view, no merit in this complaint as I am satisfied that all the witnesses called by the prosecution to establish its case are material witnesses.

With regard to the provisions of Section 148(d) relied upon by the learned counsel to the appellant, it is sufficient to say that those provisions are concerned with the withholding of evidence and not with the failure of a party to call a particular witness. See:

Francis Odili v. The State (1977) 4 SC.1

Tewogbade v. Akande (1968) N.M.L.R. 404; and

Manawa Ogbodu v. The State (1987) 3 SC. 497 at 526.

On the evidence adduced at the trial and accepted by the learned trial judge, I am satisfied that the prosecution’s case was proved against the appellant beyond any reasonable doubt.

In this appeal the issues which arise for determination are really issues of facts in respect of which there have been two concurrent findings by the High Court and the Court of Appeal, and the attitude of this Court, which has been stated repeatedly in several decisions, is that in the absence of special circumstances, this Court will not allow a question of fact to be reopened where there have been two concurrent findings of fact. In this case no special circumstances have been shown by the appellant to justify a reconsideration of the two lower courts’ findings of fact. The appeal therefore fails in its entirety and it is accordingly dismissed. The conviction of the appellant and the death sentence imposed on him are hereby affirmed.

ESO, J.S.C.: I have had a preview of the judgment just delivered by my learned brother Kawu J.S.C. I am in full agreement with the views expressed by my learned brother and will also agree with all the orders contained in the said lead judgment.

UWAIS, J.S.C.: I have had a preview of the judgment read by my learned brother Kawu, J.S.C. I agree with the reasons and conclusion therein. I do not wish to add anything.

The appeal is hereby dismissed and the conviction and sentence are affirmed.

AGBAJE, J.S.C.: I have had the opportunity of reading in draft the lead judgment of my learned brother Kawu, J.S.C. I agree with him and for the reasons he gave that the appellant’s appeal lacks merit. Accordingly I too dismiss the appeal. I affirm too the conviction of and the sentence of death passed on the appellant.

CRAIG, J.S.C.: I have had the opportunity of reading the Draft of the lead Judgment of my learned brother Kawu, J.S.C.

I agree with him that the appeal lacks merit and should be dismissed. Accordingly I too dismiss the appeal.

The conviction and sentence passed on the Appellant by the lower Court are hereby affirmed.

Appeal Dismissed.


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