IN THE COURT OF APPEAL
ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN
ON MONDAY THE 13TH DAY OF NOVEMBER, 2017
BETWEEN THEIR LORDSHIPS:
CHIDI NWAOMA UWA JUSTICE COURT OF APPEAL
HAMMA AKAWU BARKA JUSTICE COURT OF APPEAL
BOLOUKUROMO MOSES UGO JUSTICE OF APPEAL
APPEAL NO: CA/IL/C.59/2017
BETWEEN
OJOLUYO TOMINIYI ………………….. APPELLANT
AND
THE STATE……………………………. RESPONDENT
JUDGEMENT (DELIVERED BY HAMMA AKAWU BARKA, JCA)
This appeal emanated from the judgment of the Kwara State High Court sitting in Ilorin the Kwara State Capital in charge No: KWS/57C/2016 between The State vs Ojoluyi Tominiyi, delivered on the 22nd of December, 2016 wherein the accused now appellant was convicted and sentenced to life imprisonment.
The germane facts originating the appeal commenced where the appellant was arraigned upon a one count charge on the 14/1/2016 under section 282 of the Penal Code. The charge later amended to read:
“that you Ojoluyi (M) on or about the 08/09/2015 at about 2pm at Awudere Compound, Offa, Kwara State within the Jurisdiction of this Honourable Court commit (sic) an illegal act to wit rape one Mustapha Mariam, a Nine years old primary school girl and use a white handkerchief to wipe the blood gushing out from her private part and went away with it, and you thereby committed an offence punishable under section 31(2) of the Kwara State Child Right Law.”
The accused person pleaded not guilty to the one count charge read to him, necessitating the case going to full trial. The case for the prosecution at the trial in a nutshell, was that on the 08/09/2015 in the afternoon hours, the victim one Mariam Mustapha, a nine year old primary school pupil came from school to their residential house at Awudere Compound, Offa, Kwara State, where the accused/appellant forcefully dragged her into one other room, and raped her. The prosecution further stated that after raping his victim, the accused/appellant used a white handkerchief to wipe off the blood gushing out from the vaginal cavity of the prosecutrix, asked for her parent’s names and then ran away.
In an effort at proving its case, the prosecution called four witnesses, including PW1 the prosecutrix/victim, PW2, PW3 the parents of the victim, and PW4, one Owoniyi B. Lanre a NSCGC officer attached to the Ilorin Command Office, Ilorin who investigated the alleged offence. The Accused/Appellant gave evidence in his defense and called two other witnesses, Omotola Ojoluyi (DW2) sister to the accused person, and (DW3) Kehinde Adeoye, said to be his friend.
At the close of hearing and adoption of written addresses, the lower court found for the prosecution, convicted the accused person and sentenced him to life imprisonment.
Dissatisfied with the decision of the lower court, appellant on the 17th of March, 2017 filed Notice of Appeal predicated on eight grounds to this court. The appeal having been entered on with the full particulars of the alibi at the earliest time, so as to shift the duty of investigating the alibi on the prosecution. See Ighalo vs, The State (2016) 17 NWLR (pt. 1540) 1 @ 18.
This is more so as the evidence of the prosecution fixed the accused person at the scene of the crime, His defence of alibi therefore cannot stand and fails. See Ekanem vs. The State(2017) 4NWLR (pt. 1554) 85 @103, Ebenehi vs. The State (2009) 6 NWLR (pt. 1138) 43, Ehimiyien vs. State (2017) All FWLR (pt. 868) 728 @ 748.
On whether the prosecution is obligated to call Anjola as witness, it is the position of the law that the prosecution is under no obligation to call any particular witness or number of witnesses. The duty of the prosecution is to prove its case, even if it means calling a single witness. See Ofordike vs. The State (2017) 3 NWLR (pt. 1553) 468 @485. In the instant case , the prosecution felt no need to call the said Anjola though listed as a witness. They are not obliged to call him. Infact, where the accused thinks that his evidence was essential to the just decision of the case, the defense was at liberty to call him. See Victorv. The State (2013) 12 nwlr (PT.1369) 465.
From all the deductions made so far, I am unable to …
Signed:
HAMMA AKAW BARKA
JUSTICE, COURT OF APPEAL
REPRESENTATION
Femi Makinde for the Appellant
Funsho D. Lawal, Solicitor-General & Permanent Sceretary, Kwara State , with Abdullahi Yusuf (ACSC), M.J. Orire (Mrs) (PSC), and Y. B. Yusuf (SCI) for the Respondent.
CA/IL/C.59/17.
CHIDI NWAOMA UWA, JCA
I was opportune to read before now the draft of the judgement delivered by my learned brother HAMMA AKAWU BARKA, JCA. I am in agreement with His Lordship that the appeal lacks merit and the order dismissing same. The appeal stands dismissed.
Signed:
CHIDI NWAOMA UWA
JUSTICE, COURT OF APPEAL
APPEAL NO: CA/IL/C.59/2017
BOLOUKUROMO MOSES UGO JCA
I had read in advance the judgement delivered by my learned brother Hamma Akawu Barka J.C.A. I agree with him that the appeal is unmeritous. In the event, I also dismiss it.
Signed:
BOLOUKOROMO MOSES UGO
JUSTICE, COURT OF APPEAL.
