The State V. Ayimi Shaibu Odomo (2018)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This appeal is against the judgment of the Court of Appeal, Abuja Division, Coram: Abubakar Datti Yayaya, Tinuade Akomolafe Wilson and Moore A. A. Adumien JJCA delivered on the 9th day of May, 2013 wherein the conviction and sentence of the respondent by the trial Court were upturned. The appellant being dissatisfied filed this appeal on the 7th day of June, 2013 upon four grounds amended notice of appeal.

FACTS:

The respondent (Defendant at the trial Court) was arraigned before the Kogi State High Court, along with two other persons, on a two-count charge of Conspiracy and Culpable Homicide punishable with death, contrary to Section 97 (1) and 221 (a) of the Penal Code Law of Kogi State. The appellant (Prosecution at the trial Court) called 4 witnesses, while the respondent testified in person and also called two witnesses.

The case of the appellant was that on the 20th of January, 2009, the respondent, along with 5 (five) other persons drove in a golf car belonging to the respondent to Achangana Junction, Adogo in Ajaokuta Local Government Area of Kogi

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State, and started shooting sporadically in the air. The PW1 and PW2, deceased’s father and uncle respectively, were present at the junction at the relevant time and witnessed the shooting by the respondent and his group, and in the course of which one Isah Jimoh (aka 2-2) who came along with the respondent, shot and killed the deceased Jimoh Adabara and immediately ran away. The PW1 subsequently took the corpse of the deceased to the Police Station and made a report.

The case of the respondent on the other hand is that he was the Youth President in Ajaokuta at the relevant time of the incident. On 20th January, 2009, he saw a group of people fighting along the road and extorting money from passers-by and went to report the acts to the Chief of the village. On the instruction of the Chief, he reported the matter to the Police who went to disperse the group. In the evening of the same day, he received information that there was another outbreak of fight in Adogo and he went to the Area Commander to make a report. The Area Commander assigned Mobile Policemen to him and he went with them to the Police Station in Adogo.

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He was still at the Police Station when information came that somebody had been killed in the fight.

On the 11th day of October, 2018 date of hearing, learned counsel for the appellant, Fredricks E. Itula Esq., adopted the appellant’s brief of argument filed on the 19th May, 2017 and deemed filed on 15/11/17. In it were raised two issues for determination as follows: –

1. Whether it was right for the Lower Court to have set aside the judgment/decision of the trial Court having found that there was no reason to upturn the findings while the trial Court, rejected the defence of Alibi set- up,. (Distilled from Ground 1 of the Notice of Appeal).
2. Whether in view of the eye witness account given by PW1 and PW2, the Court below was wrong to have held that there were discrepancies in the evidence. (Distilled from Ground 2 of the Notice of Appeal).

Respondent being absent and not represented, the brief of argument settled by Yusuf Asamah Kadiri Esq., was taken as adopted.

The brief was filed on 29/9/2017 and deemed filed on 15/11/17 and in it were identified two issues for determination which are, viz:-

i) Whether the Lower Court was right to have upheld the defence of