This was an appeal
against the judgment of the High Court which convicted and sentenced the appellant to death by hanging for the offences of conspiracy and murder. The Court of Appeal, in a unanimous decision, allowed the appeal.
History of the Case:
Court of Appeal:
Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Akure
Names of Justices that sat on the appeal: Kudirat
Motonmori Olatokunbo Kekere-Ekun, J.C.A. (Presided), Chinwe Eugenia Iyizoba, J.C.A. (Read the Leading
Judgment), Moore A. A. Adumein, J .C.A.
Appeal No.: CA/B/144C2/2007
Date of Judgment: Thursday, 12th July, 2012 Names of Counsel: Olakunle Agbebi, Esq. – for the Appellant
A.O. Adeyemi-Tuki [Mrs.], D.P.P. (with her, Taiwo Olubodun Esq., DD.C.L. and Alaba Ogunyemi, Esq., S.LD.) – for the Respondent High Court:
Name of the Court: High Court of Ondo State, Akure
Name of the Judge: Fagbe, J.
Olakunle Agbebi, Esq. – for the Appellant
A.O. Adeyemi-Tuki [Mrs.], D.P.P. (with her, Taiwo Olubodun Esq., DD.C.L. and Alaba Ogunyemi, Esq., S.LD.) – for the Respondent
IYIZOBA, J.C.A. (Delivering the Leading Judgment): The appellant Aderemi Omotayo was arraigned as 2nd accused before Fagbe, J. of the High Court of Ondo State sitting at Akure on the 29th day of July, 2003 along with two other co-accused persons, Feyisayo Olatise 1st accused and Fredrick Akintade 3rd accused on a two-count charge of conspiracy and murder contrary to Sections 324 and 319 of the Criminal Code, Cap. 30, Volume II, Laws of Ondo State of Nigeria, 1978 (now Cap. 37, Volume 1 Revised Laws of Ondo State).
The prosecution’s case is that the deceased, Joseph Olatunde was on the 20th day of September 1996 shot and killed in the sitting room of the 1st accused at his residence at Ubi Camp Idanre by the 1st accused who conspired with the appellant herein and the 3rd accused to carry out the unlawful act. It was alleged that the 1st accused had deposited two bags of Indian hemp in the farm of the deceased. The deceased found the bags in his farm and raised an alarm which led to their disposal. The 1st accused on two separate occasions 12th and 19th of September, 1996 sought to see the deceased without success.
On the 20th of September, the 1st accused sent his wife to the house of the deceased to fetch him. The wife of the deceased who at the trial testified as PWI in her evidence said that she followed her husband to the house of the 1st accused carrying her baby. There, they met the 1st accused, the appellant herein, the 3rcl accused and others. PWI testified that the 1st accused confronted the deceased as to why he raised alarm over the Indian hemp he (the deceased) found in his farm. At this stage PWI said that her baby started crying and the 1st accused advised her to take her baby home for attention. She then left. While she was away attending to her baby, she heard the sound of a gun shot and returned to the house of the 1st accused to find her husband lying dead in the sitting room of the 1st accused. She claimed that she saw a gun later identified as belonging to the 1st accused on top of a table in the sitting room.
The three accused in their defence told a different story.
They claimed that the 1st accused and the deceased were engaged in an argument over missing cocoa beans belonging to the 1st accused which the 1st accused alleged were stolen by the deceased. In the scuffle that followed, a crowd gathered. The deceased then walked into the house of the 1st accused and what followed was the sound of a gun shot. When the 1st accused rushed to see what happened, the found the doors locked from within. When the people around peeped from the window of the house, they ‘found the deceased lying down, having shot himself. The Police later broke into the house to gain access to the corpse of the deceased. The appellant had made three statements to the Police: Exhibit I made on 21/9/96;
Exhibit J made on 21/9/96 and exhibit D 1 made on 24/9/96. Exhibit J is in line with the oral evidence of the appellant in court and the case of the defence as set out above. Exhibits I and Dl differed as to the cause of the dispute between the 1st accused and the deceased.
They both confirm the case of the prosecution that the cause of the dispute was the Indian hemp found in the farm of the deceased but maintained that the deceased shot himself in the living room of the 1st accused.
At the trial of the case, the prosecution called five witnesses.
The appellant and the other accused persons testified on their own behalf and called no other witness. Learned counsel for the parties filed written addresses which were duly adopted. The learned trial Judge found the appellant and the other two accused guilty as charged on count 1 of conspiracy and sentenced them to 14 years imprisonment. On count 2, the learned trial Judge found them guilty of murder and sentenced them to death by hanging.
By an amended notice of appeal dated 19th April 2010, the appellant herein filed a separate appeal containing three grounds
of appeal. The grounds of appeal without their particulars are as follows:
1: Ground One
That the learned trial Judge committed a grave error in law and in fact in convicting the appellant of the offences of conspiracy and murder and sentencing him to death when the prosecution failed to prove any direct or positive act or omission of the appellant that resulted in the death of the deceased and thereby failed to prove his guilt beyond reasonable doubt.
2: Ground Two
That the learned trial Judge erred in law and in fact in convicting the appellant of the offences of conspiracy and murder and sentencing him to death in the light of the material contradictions in the evidence of the prosecution witnesses which were never resolved.
3: Ground Three
That the learned trial Judge erred in law when he called on the appellant to prove his innocence contrary to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and thereby occasioned a grave miscarriage of justice.
Out of the three grounds of appeal, the appellant distilled two issues for determination. The issues are:
1.Whether the learned trial Judge was right in holding that the prosecution proved a case of murder against the appellant beyond reasonable doubt particularly in the light of evidence adduced?
2.Whether the defence put up by the appellant was considered?
In his brief of argument, learned counsel for the respondent adopted the above issues. Both counsel argued the two issues together.
Learned counsel for the appellant Olakunle Agbebi Esq. after setting out the law on burden of proof in murder trials and what the prosecution must prove to secure a conviction for murder submitted relying on the case of R. v. Nwokocha (1949) 12 WACA 453 that the prosecution failed abysmally to prove that the act of the appellant caused the death of the deceased and that the appellant knew that death or grievous bodily harm would be the probable consequences of his act. Counsel submitted that the evidence adduced by the prosecution as regards the events and circumstances that led to the death of the deceased did not allude or point to any direct or indirect act of the appellant that caused the death of the deceased. Counsel further submitted that a perusal of the record of appeal shows also that there is no evidence on record by any of the prosecution witnesses of anything said, done or omitted to be done by the appellant that can be linked to the death of the deceased or as to be the probable cause of his death. Counsel consequently submitted that the learned trial Judge was wrong to have held that the prosecution proved a case of conspiracy and murder against the appellant.
Mrs. A. O. Adeyemi-Tuki, D.P.P., Ministry of Justice, Ondo State for the respondent in her brief of argument relying on the case of Adeniji v. State (2001) 13 NWLR (Pt. 730) 375 at 397 E-F submitted that the learned trial Judge correctly relied on circumstantial evidence in view of the absence of direct eye witness account of the shooting. Learned counsel argued that the evidence of the witnesses called by the prosecution coupled with other circumstantial facts proved at the trial connected perfectly in an
unbroken chain of events leading to the murder of the deceased. I have set out just the crux of the arguments of both counsel. Further details of their submissions will be considered as the need arises in the course of the judgment.
As succinctly put by Mr. Olakunle Agbebi for the appellant, the presumption in section 36(5) of the Constitution of the Federal
Republic of Nigeria, 1999 that an accused person is innocent until proven guilty places a very heavy burden on the prosecution.
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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