Abeke Onafowokan V The State (1987)

LawGlobal-Hub Lead Judgment Report

KAZEEM, J.S.C

In this appeal, the appellant was the 1st Accused person at the trial. She and her daughter, one Adesunbo Onafowokan, who was then the 2nd Accused person, were convicted by Bakare, J. at the High Court of Lagos State for murdering one Ganiyu Shittu the deceased on 22nd April, 1981 at Lagos.

They were both sentenced to death. On an appeal to the Court of Appeal in Lagos, against those convictions, the appeal of Adesunbo, the daughter, succeeded on the ground that the case against her was not proved beyond reasonable doubt, and her conviction was quashed. She was thereafter acquitted and discharged. The mother, (the present Appellant) has further appealed to this Court against the decision of the Court of Appeal.

It is necessary for a better understanding of the whole case to set out the facts as well as the evidence adduced at the trial by both the prosecution and the defence. The prosecution’s case was that on 21st April, 1981 the family of the Appellant was living in the same premises at 23, Koseh Street, Lagos and were co-tenants with one Alhaja Bintu Shittu, P.W.1 (the mother of the deceased).

On that day, there was an altercation between Amudat Shittu A (P.W.3), the daughter of P.W.1 and Adesunbo, the appellant’s daughter, because she had gone to interrupt P.W.3 while she was drawing water from a tap in the compound. The altercation developed into a big fight which involved the families of both women and as a result, some of them got injured. Neighbours and other co-tenants later intervened, and the combatants retired into their respective rooms apparently still feeling aggrieved.

On the following day, that is, the 22nd April, 1981, one Babatunde Shittu (P.W.2) and the deceased (both children of (P.W.1) together with their friend, one Fatai Tanimola (PW.4) came to visit P.W.1 and found injuries all over her body. Upon enquiry, she narrated to them what happened the previous day. Thereafter, the three of them went to the apartment of the appellant, in order to inquire about the misunderstanding with a view to effecting a settlement.

During discussion, another altercation ensued and the appellant was said to have issued a threat that she would teach P.W.1 a lesson that she would never forget. At that stage, Ganiyu, the deceased, spoke and said that if the appellant should ever harm his mother in any manner, she would be punished by the State. On hearing that statement, the appellant was said to have held the deceased by the belt on his trousers.

The appellant’s daughter was also said to have joined her mother in trying to drag the deceased into their apartment, but they did not succeed. According to P.W.2’s testimony, he said: “as Ganiyu (the deceased) was coming down the steps in front of the 1st accused’s (the appellant) apartment the 2nd Accused carried a frying pan containing oil from a burning stove in the corridor of her apartment and poured it on Ganiyu’s body from the back. The oil spilled onto Fatai (P.W.4) who was standing near to Ganiyu. Ganiyu who wore a silk shirt was shouting hot oil! hot oil! when the 1st Accused (Appellant) got hold of the stove and threw it against Ganiyu. Ganiyu’s cloth caught fire and he was in flames.”

Thereafter Ganiyu the deceased died at the hospital as a result of the extensive burns he received at that time. Both Amudat (P.W.3) and Fatai (P.W.4) who said they were at the scene, testified in the same vein. Thus, the sum total of the evidence adduced by the prosecution witnesses (P.W.2, 3 and 4) was that by the combined and simultaneous action of the appellant and her daughter in pouring hot oil and throwing the stove at the deceased, he received extensive burns on 22nd April, 1981 at 23, Koseh Street, Lagos from which he died.

Shortly put, the defence of the Appellant was that the deceased and a host of others came to her apartment on 22nd April, 1981 in connection with the incident of the previous day and as they assaulted her, she held on to two of them. But the deceased managed to run away. It was neighbours who appealed to her before she released the two persons she held. She denied throwing any stove at the deceased let alone to cause the burns responsible for his death. She called another witness who corroborated her evidence in material particulars. In her own defence, Adesunbo, the Daughter denied being present at the scene at the time the incident occurred. She put up an alibi that she was at her market place when she was sent for that some people were fighting with her mother; and that by the time she got home, the persons had gone away. Even though that evidence was corroborated by a witness, the alibi was not investigated by the police.

In his judgment, the learned trial Judge Bakare, J. believed the evidence of both Babatunde Shittu (P.W.2) and Fatai Tanimola (P.W.4) as representing what actually happened on the 22nd April, 1981. He disbelieved the evidence of Amudat (P.W.3) as untruthful because she admitted under cross-examination that she was told what she said in Court by some one at the hospital. He also disbelieved the defence of both the appellant and her daughter and regarded their evidence as an afterthought. On the alibi put up by the daughter, the learned trial judge said:

“The alibi set up by the 2nd Accused was only to make a defence to the charge. Koseh Street, and Daddy Alaja Street are in the same vicinity and the witness to the 2nd Accused could have been invited to the scene after the incident.”

In the result, the learned trial Judge convicted the appellant and her daughter and sentenced both of them to death. An appeal was lodged against that decision to the Court of Appeal in Lagos.

At the Court of Appeal, Ademola J.C.A, who delivered the lead judgment found that Babatunde Shittu (P.W.2) did not say in his Extra-judicial statement – Exh. G – which he made on the day of the incident, that the 2nd Accused was at the scene of the incident, let alone to pour hot oil on the body of the deceased. Even though P. W. 2 in his explanation, attributed the omission of 2nd Accused’s name in Exh. G to the facts that he was so worried by the event that he was not himself when he wrote the statement, his evidence was regarded as unreliable by the Appellate Judge. Consideration was also given to the fact that the Investigating Police Officer (P.W.7) said that he relied on the extra-judicial statement of Amudat Shittu (P.W.3), a witness who was disbelieved by the trial Judge as untruthful, before he arrested the 2nd Accused. Finally, reference was made to the defence of alibi put up by the 2nd Accused which was never investigated by the police and which the learned trial Judge did not fully consider in his judgment and in conclusion, the learned appellate Judge held that it would be unsafe to convict the 2nd Accused on the evidence adduced against her. Consequently, the appeal of the 2nd Accused was allowed, her conviction was set aside and she was acquitted and discharged. The Court of Appeal confirmed the conviction of the Appellant.