Wasiu Babatunde Mudasiru V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of an Oyo State High Court of Justice sitting in Ibadan in charge No. 1/18C/2004 delivered on the 29th of November 2006. The Appellant was charged with the offence of murder contrary to and punishable under section 319 subsection 1 of the Criminal Code Cap 30 Volume II Laws of Oyo State of Nigeria 1978.

The facts of the case are that the Appellant was the driver of the deceased and P.W3 was the gateman. On the morning of 17/6/2002, the Appellant took the deceased out in his car and they returned home in the afternoon. When the gateman (P.W3) was permitted by the deceased to go on break, the Appellant was asked to man the house-gate. On return of P.W3, he did not meet the Appellant at the gate. P.W3 then helped himself to the opening of the gate by putting his finger through the latch.

On entering, he saw the appellant emerging from the back of the house and the Appellant informed P.W3 that he failed to be at the gate because the deceased asked him to wash plates inside the house. He also told P.W3 that the deceased had asked him to carry the mattress already put inside a car to a lady at Mokola. Appellant further informed P.W3 that the deceased was sleeping inside and did not want to be disturbed. Appellant later drove out with the mattress inside the car.

About (1st) one and half hours later, the Appellant returned with the car and parked it. He asked P.W3 to collect the car keys and return same to the deceased. P.W3 refused on the ground that it was not the practice for him to return car keys. Appellant then went inside the house to return the keys. He came out sharply afterwards to call P.W3 and both entered the house where P.W3 found the deceased lying on the floor of one of the rooms in the house dead. P.W2, P.W4 and P.W5 noticed that the deceased had some injuries on his body. The eye glasses of the deceased were broken. There were fresh scratch marks and bruises on the neck, body and hands of the Appellant. When asked how he sustained the bruises, Appellant said he got the injuries as a result of a fight he had with his wife shortly before the incident. The medical report exhibit B issued was to the effect that the’ deceased died as a result of multiple injuries with strangulation/asphyxiation.

The prosecution closed its case having called 9 witnesses while the Appellant testified on oath as a witness in his defence. The learned trial Judge having appraised the case for both parties, convicted the Appellant and sentenced him to death by hanging.

Dissatisfied with the judgment, Appellant appealed to this court on three grounds of appeal. The notice of appeal was filed on the 12th of Dec. 2006. By a motion dated 30th Dec. 2008 but filed on 2/1/09, Appellant obtained the leave of this court on the 7th of April, 2009 to file and argue two additional grounds of appeal.

Pursuant to the rules of this court, parties filed and exchanged briefs.

Appellant’s brief of argument is dated and filed on the 15th of April, 2009. Appellant’s brief of argument was settled by Oluwole Aina Esq. At the hearing of the appeal, Learned Counsel adopted and relied on the brief of argument. Learned Counsel for the Appellant distilled three issues for determination as follows

(1) Whether the learned trial Judge was right in sentencing the accused person to death when the ingredients of the offence of murder were not established by the circumstantial evidence that did not point directly and exclusively to the accused person but rather indicated the possibility of some other person(s) having opportunity to and might have killed the deceased.

(2) Whether the learned trial Judge was right to convict the accused without the prosecution proving its case beyond reasonable doubt as required in criminal trials.

(3) Whether the whole trial is not vitiated by a gross violation of the Appellant’s constitutional right to fair hearing and a real likelihood of bias on the part of the learned trial Judge.

The Respondent’s brief of argument settled by N. A. Abiola is dated and filed on the 29th of April, 2010. It was deemed filed on the 15th of June, 2010 He adopted and relied on the arguments in the aid brief.

Respondent distilled two issues for determination thus: