The State V. Ezekiel Fasina Anibijuwon & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment)

The respondents were arraigned before the High Court of Osun State, Ilesa Judicial Division on a two-count charge of conspiracy and murder as follows:

Statement of Offence

Conspiracy: contrary to and punishable under Section 324 of the Criminal Code, Cap. 30 Volume II Laws of Oyo State of Nigeria, 1978 as applicable in Osun State.

Particulars of Offence

Ezekiel Fasina Anibijuwon II ‘m’ (2) Isaac Olufisayo Ajewole ‘m’ (3) Lamidi Ladokun ‘m’ (4) Oseni Taiwo Ayegbajeje ‘m’ (5) Ezekiel Olu Operinde ‘m’ and (6) Femi Oguntade ‘m’ on or about the 6th day of October, 1999 at Ilesa in Ilesa Judicial Division conspired to murder Israel Adekunbi Fadahunsi ‘m’.

Statement of Offence

Murder: Contrary to and punishable under Section 319 (1) of the Criminal Code Cap, 30 Volume II Laws of Oyo State of Nigeria, 1978 as applicable in Osun State.

Particulars of Offence

Ezekiel Fasina Anibijuwon II ‘m’, (2) Isaac Olufisayo Ajewole ‘m’, (3) Lamidi Ladokun ‘m’ (4) Oseni Taiwo Ayegbajeje ‘m’ (5) Ezekiel Olu Operinde ‘m’ and (6) Femi Oguntade ‘m’ on or about the 6th day of October, 1999 at Ilesa in Ilesa Judicial Division murdered Israel Adekunbi Fadahunsi ‘m’.

The respondents all pleaded not guilty to the two counts. The case proceeded to trial. The prosecution called ten witnesses and tendered several exhibits. At the close of the prosecution’s case, the respondents made a no case submission. It was overruled and they were called upon for their defence. The respondents each testified on their own behalf and called two additional witnesses. At the conclusion of the trial the learned trial Judge in a considered judgment delivered on 15/8/05 found each of the respondents not guilty on each count of the charge and discharged and acquitted them accordingly.

The appellant was dissatisfied with the judgment and filed a notice of appeal dated 26/8/2005 containing the omnibus ground of appeal. With leave of court the appellant filed an amended notice of appeal dated 29/7/08 containing four additional grounds of appeal.

The facts that gave rise to this appeal, as can be gathered from the record of proceedings and the briefs of arguments filed are as follows: The deceased, Chief Israel Adekunbi Fadahunsi, the Asolo of Ilase-Ijesa, an elderly man, had a long standing history of asthma and had been the 6th respondent’s patient at his hospital, Ireti-Ayo Hospital (hereinafter referred to as the Hospital) for more than 18 years before the incident that gave rise to the charge took place. The 6th respondent is a retired Superintendent Nursing Officer. On 3/10/99 Chief Fadahunsi’s in law, Thomas Ajayi Ogunfolabi, who testified as PW1, took him to the hospital for treatment. It was decided to try herbal treatment. He was placed on admission and his granddaughter, Mary Lawrence (PW2) stayed with him. On the night of 5/10/99 he began to agitate that he wanted to leave the hospital. In the morning of 6/10/99 he sent PW2 to his home at Ilase-Ijesha about 25km away to bring his driver and vehicle to take him home.

He became restless when PW2 did not return on time and was seen going in and out of the hospital and complaining to the hospital staff. By the time PW2 returned with the driver later in the day, the old man was nowhere to be found. In spite of a thorough search nothing was seen or heard from him again until sometime in April 2000 when a headless corpse was discovered buried in a shallow grave at the deceased’s family farmland at Ibisomi Village at Ilase Ijesha. The body was exhumed and later identified to be that of the deceased. An autopsy was performed on the body and the cause of death was said to be cutting off of the head.