Briefly, the facts of the case as related by the respondent through PW1 Kunmi Iyiola the elder brother of the deceased Abiodun Iyiola, who gave an eye witness account of the incident were that on the 26th day of August, 1990 both the deceased who was an apprentice motor (trailer) driver, and himself left their house at Ogbere Babanla at about 4.30 a m in order that the deceased might meet his master at Oremeji by 5 a m. As they got to a place called and known as Okikiade, seven men accosted them and asked where they were going to at that time of the day. When PW1 and the deceased tried to answer, the men ordered them to prostrate. They obeyed and in that condition PW1’s hands were tied with ropes. Thereafter, PW1 and the deceased were attacked with machetes and cutlasses.

The deceased tried to escape but due to the severe injury he suffered from the machete cuts, he fell down and became unconscious. Thereafter the seven men ordered PW 1 to take them to his house. When they nearly got to his house, the men ran away. It was then that PW 1 was able to report the incident at the Agugu Police Station.

A police sergeant was detailed to accompany PW1 to the scene of the incident. Abiodun Iyiola was then taken to a hospital at Aremo for treatment. He died later in the hospital at about 10.15 a m on the same day i.e. 26/8/90.

According to PW1 the four accused persons arraigned at the trial court were among the seven men that accosted the deceased and himself. The body of the deceased was later taken to the State Hospital, Adeoyo where Dr. M A Aboderin performed the post mortem examination on the body. However, before the commencement of the trial, Dr. Aboderin died and the post mortem report was tendered and admitted in evidence by Dr. T I Ipadeola as exhibit “K”.

The Certificate of Occupancy issued to the plaintiff was granted on the mistaken belief that title was declared in favour of his assignor pursuant to the decision of the Grade II Area Court since the fact that the matter went on appeal up to the customary court on appeal was never disclosed.

The appellant made one (1) extra judicial statement to the police.

The Yoruba and English versions of the statement were tendered and admitted at the trial as exhibits I and II respectively. In exhibit I the appellant narrated how he and the other accused persons pursued the deceased, macheted him until he fell down. Exhibit 1 was thus treated as a confessional statement.

In his defence at the trial, the appellant vehemently denied making exhibit 1 thus retracting the confessional statement. In his evidence on oath he gave an account totally different from the contents of the extra judicial statement. In his evidence in chief the appellant raised for the first time the defence of alibi when he claimed that he was in Ondo province at all times material to the commission of the offence.

The learned trial judge believed the evidence of the prosecution and found that the evidence of PW 1 was corroborated by exhibit 1 made by the appellant and exhibits A B and C made by PW1 as to the role played by the 3rd accused appellant in the death of the deceased. The trial judge rejected the defence of alibi raised by the appellant and consequently the appellant was found guilty of murder and was sentenced to death.

The was also found guilty of the lesser offence of ordinary assault on the second count. The three other accused persons were acquitted and discharged on both counts.