Abeke Onafowokan & Anor V. The State (1986)
LawGlobal-Hub Lead Judgment Report
ADEMOLA, J.C.A.
The appellants, mother and daughter, were arraigned before the High Court in Lagos in the Lagos Judicial Division on an information charging them with murder of one Ganiyu Shittu on the 22nd day of April, 1981 contrary to Section 319 of the Criminal Code Law of Lagos State. They pleaded not guilty to the charge.
The brief facts as could be made out from the evidence of the prosecution witnesses and as was found by the learned trial Judge can be summarized thus:-
The two families of the prosecution witnesses and the appellants have lived together in a compound at 27 Koseh Street, Lagos for upwards of 8 years before this incident.
On the 21st of April 1981, there occurred a fight between a daughter of one Alhaja Bintu Shittu, the mother of the deceased and the second appellant over the right to fetch water first at the common tap in the compound. This fight was witnessed by the first appellant and her husband but it was a neighbour who separated and pacified the fighters. The mother of the deceased was also present at the scene and after the co-tenant had separated the two fighters she ordered her daughter – 3rd P.W. Amudat Shittu to go into her own house. But it happened that the father of the second appellant, who was present, wanted the fight to continue and towards that end assaulted the mother of the deceased and caused her harm by pushing her to the floor and injuring her.
The next day which was the 22nd of April 1981, the 2nd P.W. Tunde Shittu accompanied by his brother – Ganiyu (the deceased) and the 4th P.W. Fatai Tanimola paid a visit to the deceased’s mother. The mother, Bintu Shittu who is 1 P.W. in this case told them about how she sustained an injury a day previous and they in return offered to see that a settlement between the two families is reached. In consequence of that, the 2nd and the 4th P.W. and the deceased went to the apartment of the appellants. At the apartment of the appellants, an altercation arose between the deceased and the first appellant which resulted in the deceased being held by the first appellant and some hot words being uttered. The deceased struggled to escape from the hands of the first appellant and the second appellant was said to have taken hot ground nut oil which was on a stove and poured some on the back of the deceased. It was said that the first appellant threw the burning stove on Ganiyu, the deceased, who had already got hot oil on his cloth and body. There was flame on the body of Ganiyu who rushed out of the house. Some of the burning oil spilled on to the 4th P.W. and there was commotion about fire in the premises. The deceased, Ganiyu was badly burnt and had to be taken to the hospital where a few days after he died. The cause of death in the opinion of the doctor who gave evidence was extensive burns consistent with burns from naked flame or from very hot substance.
The first appellant testified in her defence and called a witness. Her defence was to the effect that she was sitting in her room between 6 and 7 p.m. on that fateful day nursing her sick child when eight persons including the deceased rushed in. According to her, the deceased identified her as the person wanted. Thereafter, three of the persons who came in began to beat her. She held on to two of her assailants and the rest left. She was holding on to the two men when her witness, the second appellant and her other co-tenants came to the scene. The witness who came in rescued the two assailants from her and thereafter the assailants disappeared. She denied knowledge of what happened to the deceased. She claimed the ownership of the stove. She said the 2nd P.W. was not one of the assailants and was not present on the premises. She admitted that there had been a fight between the second appellant and the P.W. 3 the previous day over who had the right to take water from the tap first. Her witness on getting to the scene saw that three persons rushed out to the street from the house on the day in question. The first was a man later known to her to be the deceased was completely in flames; the second a woman who had flames on her back and the third, a child who had flames on her ear. She went to the aid of the child and later when she got into the room she saw the appellant holding on to two men. She appealed to the woman to release the two men. She saw a burning stove on the ground and while she was appealing to the first appellant, second appellant and other persons entered the house. 1st Appellant released the two men upon her telling her what she had seen happened to people outside.
The second appellant in her own defence told the story of her coming to the house in consequence of what she heard was happening which made her to lock up her shop. On her way home, she was accompanied by a witness who gave evidence and two other co-traders who joined her in coming home. She came to the house and saw her mother, the first appellant holding on to two strange men. She noticed the witness who gave evidence for her mother. She did not see Ganiyu Shittu at the scene and she did not witness what happened to them. A witness called by her gave evidence in support of her story and how she was called by a small boy who gave her a piece of information and how she accompanied the second appellant to the house joined by two other co-traders on the way. This witness also saw the first accused in her sitting room holding on to two men. The first appellant released the two men on the plea of the witness.
The learned Judge after a review of the evidence and making finding of facts disbelieved the story of the appellants and the alibi put up by the second appellant, convicted the appellants for the offence charged. The appellants have therefore appealed to this Court.
For the appellants, Mr. Kehinde Sofola, S.A.N had filed a brief in which he identified the issues arising out of this appeal as follows:-
- Whether the learned trial Judge was in error in placing reliance on the evidence of P.W.2 in convicting the Appellants;
- Whether the learned trial Judge was in error in rejecting or disregarding the defence of alibi raised by the 2nd Appellant;
- Whether the guilt of the Appellants was proved beyond reasonable doubt as required by law.
Learned counsel for the respondent, Mr. Alatishe, Assistant Director of Public Prosecutions, Ministry of Justice, Lagos State in his brief agreed with the issues as identified by the appellants counsel.
I shall now go to the submissions made on behalf of the appellants by Mr. Kehinde Sofola.
Mr. Sofola made the point in his oral submission in the course of his argument that the case is a fabricated one to implicate the appellants. He referred to the evidence of the mother of the deceased to show that there are other tenants living in the house who must have been present at the time of the incident and it is significant that the prosecution did not think it fit to call any of those people. Instead, learned counsel continued, reliance was placed upon the evidence by the prosecution witness who were related to the deceased and a friend of these witnesses. That, he submitted, should make the court wary in accepting the evidence of these witnesses against appellants.
Learned counsel submitted that one of the prosecution witnesses – 2 P.W. could be said not to be present at the scene contrary to what he deposed to in evidence. He asked the court to look at what the witness said in Exhibit G where he wrote on the day of the accident thus:-
“As Ganiyu struggled to escape from her hands she quickly carried a burning stove with hot ground nut oil she was using and threw it on Ganiyu, the fire quickly spread on Ganiyu burning. Ganiyu ran outside with fire in his body.”
This was a reference to what the first appellant did on the day in question. The impression from that statement is that the first appellant did it all and no mention was made of the second appellant but when one turns to his evidence on record, we get the following recorded:-
“As Ganiyu was coming down from the steps in front of the first accused apartment, the second accused carried the frying pan containing oil from a burning stove in the corridor of her apartment and poured it on Ganiyu’s body from the back.”
Continuing his evidence as recorded, 2 P.W. said further:
“Ganiyu who wore a silk shirt was shouting hot oil! hot oil! When the first accused got hold of the stove and threw it against Ganiyu. Ganiyu’s cloth caught fire and he was in flames. Ganiyu ran outside into the street.”
Learned counsel submitted that the inconsistency was so glaring that one should come to the conclusion that 2 P.W. was not present. He referred to a page in the record where the first appellant said 2 P.W. was not present. Learned counsel drew attention to the statement made on the 15th of May 1981 by the 2 P.W. which is at page 5 of the Record but was not tendered in evidence where in the witness wrote that it was the second appellant alone who inflicted injuries on Ganiyu with hot vegetable oil on the burning stove and poured it on Ganiyu. Learned counsel contended that no mention was made of the first appellant in that statement. Counsel then disagreed with the way the learned Judge tried to explain off these inconsistencies which he contended were against the rule laid down in Queen v. Joshua (1964) 1 All N.L.R. page 1 at page 3. He contended that the statement made by the 2 P.W. in Exhibit G cannot be ignored because it was the text of it that the learned Judge should use in knowing whether the witness could be relied upon. He cites Udoh v. The Queen (1964) All N.L.R. page 25 and submitted that evidence of the 2 P.W. given at the proceedings must be treated as unreliable and therefore no findings upon that could be supported. Mr. Sofola then dwelt on the alibi of the second appellant which he said was not investigated by the 7 P.W. the Investigating Officer. On the alibi put forward by the second appellant, the learned Judge said as follows:-
“The alibi set up by the second accused is only to make a defence to the charge. Koseh Street and Daddy Alaja Street are in the same vicinity and the witness to the second accused could have been invited to the scene after the fire incident. The witness to the first accused saw from where the three fire victims ran into the street. I am satisfied that the prosecution has proved the case against the accused persons beyond reasonable doubt”.
Learned counsel argued that these conclusions are supposed to be finding of facts which will invalidate the defence of alibi but he pointed out that these findings are not supported by evidence and the Court of Appeal on the authority of Queen v. Ogbada (1961) All N.L.R. page 700 at 702 should disregard these findings. The Learned counsel then pointed out that the evidence on record from D.W.1 was that when she arrived at the scene of the fire incident, she saw people run out. It was after she had gone into the house of the first appellant and has asked for the release of the two people held by the first appellant that the second appellant came in with others. He submitted that until the end of the case, the prosecution offered no evidence to dislodge this fact except to rely on the evidence of the 2 P.W. Learned counsel submitted that the conviction of the second appellant cannot be grounded on the evidence of the 2 P.W. which he had submitted was unreliable. The alibi not having been dislodged by the prosecution, the result must necessarily be in the discharge of the second appellant. The evidence of 2 P.W. being tainted as it cannot be used to convict the first appellant as well.
Mr. Alatishe in reply to the submission made on behalf of the appellants said there was no plan to fabricate evidence against appellants⢠. It is true that P.W.2 was a brother of the deceased but that is not enough to discredit his evidence. The 7 P.W. identified the exhibits used on the deceased as belonging to the first appellant. In the course of his argument, learned counsel accepted that the case against the second appellant is not strong and would therefore not urge anything more in support of the conviction.
In respect of the first appellant, he was of the view that the case against her is strong. In the first place, her story as given in evidence was disbelieved. There is again contradiction in her evidence in court which contrast with that of her witness. He therefore urged that her conviction be sustained.
I do not think I would put it as high as Mr. Sofola did during the course of his submission that this is a fabricated case against the appellants. The story of the incident that happened at No. 23 Koseh Street on that day is a real one. It is tragic for everyone concerned but it will be going against all commonsense to describe it or the evidence given on it as fabricated. Given the background before the incident of the fire, there was a quarrel between two young persons which involved their parents. It may well be that some of the pieces of evidence given may be exaggerated and tending to implicate persons against whom there had been some animus. Be that as it may, it is the duty of the court to sift the evidence thoroughly and use that which is reliable or credible to arrive at a decision. A criticism had been made by Mr. Sofola that the witnesses for the prosecution, that is the eye witnesses to the event, had been relations of the deceased and a friend of the deceased. That may be so but that reason by it self does not make the evidence inadmissible but that fact can only make a tribunal adjudicating on the case to be circumspect in the reception of their evidence. That is a duty cast on the court in the circumstances of this case. How far the learned Judge in the court below has discharged this duty is the main thrust of the argument of Mr. Kehinde Sofola in this appeal.
I start first with the second witness, Tunde Shittu whom Mr. Sofola had described his evidence in court as unreliable. I think he is correct. He is correct in respect of his evidence about the second appellant. In Exhibit G, a statement made to the Police on the very day of the incident which incidentally was not part of the proof of evidence used by the prosecution at the commencement of this proceeding against the appellants, witness made no mention at all of the second appellant let alone ascribing to her a role in the whole incident. But in his evidence in Chief, based no doubt upon his statement he later made to the Police on the 15th day of May, 1981 weeks after the incident, he was able to mention what part second appellant played in the whole incident. It should not be forgotten that the second appellant and the sister of the 2nd P.W. who had previous to this incident had a fight as to who had the right to draw water first at the water pump in the premises in which they both live. This could be an example of animosity nursed by a relation of the deceased against the second appellant. Still on the second appellant and the issue of animosity, the 3rd P.W. – Amudat Shittu, a sister both to the deceased and the 2nd P.W. brought in the name of the second appellant in a statement made to the Police on the same day 15th May, 1981 his brother made his own statement to the Police. But in her evidence in court she said thus:
…………..
The next I heard was the shout of fire, fire, I went out to see what was happening I saw a burning stove and a frying pan on the step leading to the apartment of the accused persons, 1met nobody at the scene of the burning stove. I came out of the house and the neighbours told me something. I did not see P.W.2 Ganiyu and Fatai. Following what I was told I went to the General Hospital, Lagos. There I saw Ganiyu on admission. He suffered from burns all over his body which was being bandaged. On the 23/4/81 Ganiyu died.”
(Italics mine).
“When in the statement I spoke about the 2nd accused pouring oil on the deceased and the 1st accused throwing burning stove at him, I was repeating what the deceased told me in the hospital, I was not present at the scene when it happened.
(Italics mine)
It would not be out of place while still on this point to mention what the 7th P.W., a Policeman Remmy Anaekwe who investigated the case, said:
“On the strength of the statement of P.W.3 I arrested the 2nd Accused at 23 Koseh Street. At the Police station, I charged her with the offence of murder and cautioned her. ”
In the light of all these, the question the learned Judge in the court below should have asked himself is: Would it be safe to convict the second appellant given all the circumstances of these pieces of evidence? The answer in my view must be NO.
The matter does not end there. The second appellant has put up a defence of alibi. The 7th P.W. under cross-examination had this to say:-
“I did not investigate the truth or otherwise of the statement made by the 2nd accused.”
There is in my view a duty cast on the Police to investigate the truth or other wise of the statement made by an accused person where such an accused person has set up a defence of alibi. For not having done so, it will be very difficult for the prosecution to dislodge the defence based upon such alibi that an accused person has put up. In this case, the second appellant in her statement in Exhibit F did give an account of where she was, how she came to the scene of the incident and the people with her at the time she came to the scene of the incident. She called evidence to support the defence of alibi in her statement to the Police. That being the positon, there was then a duty on the court to consider the defence of alibi put up by the second appellant.
What evidence she had produced to support her defence of alibi and whether there was a stronger evidence by the prosecution put against her evidence.
As Sir Adetokunbo Ademola, C.J. (as he then was) said in The Queen v. Ayodele Turner & Others (1957) W.N.L.R. page 34 at page 35:-
“It is hardly necessary for me to point out that unless there is a stronger evidence against it a court cannot lightly disregard the evidence of an alibi.”
Here again, can it be said that the learned Judge had considered the defence of alibi put up by the appellant? Having regard to what the learned Judge said at the concluding portion of his judgment which had been reproduced earlier on, is he not lightly disregarding the defence of alibi put up by the second appellant? The answer, in my view, is in the affirmative.
From the premise of all I have said above, the appeal of the second appellant must be allowed. Her conviction of murder is set aside and the sentence of death passed upon her is hereby quashed.
Now, to the case of the first appellant. In my view, it stands on a different footing entirely from that of the second appellant. If I disregard the evidence of the 2nd P.W. against her which I must do, I am left with the evidence of the 4th P.W. alone. He claimed to be an eye witness and was present at the scene. Although he is a friend of the deceased, nevertheless his evidence is admissible but subject to being treated with some caution. Nobody has said during the course of the trial that he was not at the scene as it was said of the 2nd P.W. He described the part played by the first appellant in throwing a stove at the deceased and that previous to the throwing incident, the deceased and the first appellant had engaged in an altercation which led to the appellant holding on to the clothes of the deceased and the deceased struggling to be free from the hold of the first appellant. These pieces of evidence were not challenged seriously by the appellant. In fact, the first appellant did not deny holding on to the deceased at any time during the incident. The 1st Appellant’s witness saw a man covered with flames running out from the premises into the street. She also saw other people who had been injured by the fire incident. The Appellant in her evidence made no mention of any fire incident let alone knowing about the people who had been injured by it. Her knowledge of it came later when she got to the Police Station and was told what happened. Her witness deposed to the fact that on the very day of the incident, she explained to her on getting to her room what she had seen happened and that it was in consequence of her explanation that she released the men she was holding on to.
In the face of all these, it will be too much to expect the learned Judge to believe her evidence that she had no part to play in the incident that led to the burns on the deceased person. The learned Judge did not give her credence and I cannot either. In the circumstances, her appeal fails. It is hereby dismissed. Her conviction for the offence of murder is hereby sustained and the death penalty pronounced on her is hereby confirmed.
Other Citations: (1986) LCN/0022(CA)
