The charge preferred against the appellant in the High Court, Orerokpe Division of the former Bendel State, was murder, contrary to section 319(1) of the Criminal Code, Cap. 48 of the Laws of Bendel State of Nigeria, 1976. The allegation against him was that he, on the 25th day of January, 1987, at Okpara Inland in the Orerokpe Judicial Division murdered one Samuel Ariokoko (m).

The prosecution led evidence that on the 25th January, 1987, the deceased, his wife (2nd p.w.), one of the brothers of the deceased (3rd p.w.), and the children of the deceased slept in their house in the night. At about 1 a.m. the deceased woke up his wife (2nd p.w.) and drew her attention to the fact that someone from outside the house was pouring petrol into their sitting room. As a result, they all got up and raised an alarm to which some people respondent. There was a search round the house but no suspect was found.

The 2nd p.w. used a wrapper to clean the petrol poured into the sitting room and went with her children to sleep in the kitchen in front of their house, leaving the deceased and the 3rd p.w. in the house. As the deceased opened the door at the rear of the house to come out and join them in the kitchen she heard a gunshot immediately followed by the deceased shouting: "Hausa has shot me, Hausa has shot me." As the 2nd p.w. ran out of the kitchen she, with the aid of the security light in the place, saw the appellant running past the kitchen with a gun in his hand and a gallon (tin) hanging from his shoulder. The 3rd p.w., who was also wounded by the gunshot, confirmed the evidence of the 2nd p.w. in material particulars. The deceased fell down and died after some time on the spot. Witnesses who saw the deceased on the spot where he fell and subsequently his corpse after his death testified that they saw gunshot wounds on his body/corpse. The evidence of the doctor who performed the post-mortem examination on the corpse of the deceased was that he (the deceased) had some gunshot wounds and that he died as a result of the Gunshot wounds.

The appellant pleaded not guilty and denied the charge. He alleged that he was with one of his brothers in a village in Ondo State at the time of the incident and that he was not the one who killed the deceased. He testified in his own defence and called some witnesses in relation to the defence of alibi raised by him. The learned trial Judge, after due consideration of the evidence before him the submissions of the learned counsel for the prosecution and for the appellant, found the appellant guilty of the charge and sentenced the appellant to death. He accepted the evidence of the 2nd and the 3rd prosecution witnesses and came to the conclusion that it was true that it was the appellant who shot the deceased with a gun on the day of the incident. He also held that the deceased died as a result of the gunshot wounds sustained when the appellant shot him and none of the usual defences was available to the appellant. He rejected the alibi set up by the appellant as it was not, in the circumstances, established.

Dissatisfied with the judgment of the learned trial Judge, the appellant has appealed against it to this court.