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.

By setting aside the conviction of the 2nd Accused, the Court of Appeal had in effect regarded the evidence of P.W.2 as unreliable and as such it found it unsafe to convict not only on the evidence of P.W.2, but also on that aspect of the evidence of P.W.4 which incriminated the 2nd Accused. No appeal was lodged by the prosecution against the acquittal of the 2nd Accused; but a further appeal was lodged by the Appellant against her conviction to this Court on several grounds which I consider unnecessary to set down here. However, the main question for determination emanating from those grounds is: having disregarded the evidence of P.W.2, will it be safe to rely on the evidence of p.W.4 and that portion of the evidence of P.W.2 incriminating the appellant, in convicting her It must of course be noted that both of them unequivocally testified that the 2nd Accused was not only present at the scene and poured hot oil on the deceased; but that her mother – the appellant – also simultaneously threw a burning stove at the deceased. Evidence however showed that the 2nd Accused was elsewhere at that material time.

It is a cardinal principle of our criminal law that in all cases, the burden of proving that any person has been guilty of a crime or wrongful act, subject to certain exceptions (which are not applicable here), is on the prosecution: And if the commission of a crime is directly in issue in any civil or criminal proceeding, it must be proved beyond reasonable doubt. See Section 137(1) of the Evidence Law of Lagos State Cap 39 of Laws of Lagos State. Thus in a Privy Council case of R. v. Basil Ranger Lawrence (1932) 11 NLR. 6, Lord Atkin at p. 7 observed that “it has to be remembered that it is an essential principle of our Criminal law that a criminal charge has got to be established by the prosecution beyond reasonable doubt.” Three years later in Woolmington v. D.P.P. (1935) A.C. 426 at p 481, Lord Sankey, L.C. said that:”

If at the end of and on the whole case, there is a reasonable doubt created by the Evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with malicious intentions, the prosecution has not made out the case and the prisoner is entitled to an acquittal. ”

See also Okagbue v. Commissioner of Police (1965) N.M.L.R. 232 where this Court held that “the burden of proving the accused guilty rests throughout on the prosecution,” In that case, the Court found that the prosecution failed to prove its case beyond reasonable doubt and the appeal was allowed.In the instant case, the evidence of P.W.2 had been impugned as unreliable by the Court of Appeal which found it unsafe to confirm the conviction of the 2nd Accused on that evidence. It was the same witness who testified that the appellant acted simultaneously with the 2nd Accused in causing the deceased’s death.

If it was not proved that the 2nd Accused was present at the scene of the incident, would it also be safe to rely on her evidence in convicting the appellant The Court of Appeal had disregarded her evidence – against the appellant and that decision had not been challenged in this appeal. In the circumstances I am also of the view that it will be unsafe to rely on the evidence of P.W.2 in convicting the appellant. That leaves for consideration the evidence of P.W. 4 against the appellant.

The main theme of P.W.4’s evidence was that he saw the appellant at 23, Koseh Street, Lagos in the evening of 22nd April, 1981, and that she threw a burning stove at the deceased who had been soaked with hot oil by her daughter (the 2nd Accused). It was as a result of that combined action that the deceased ultimately died and although the appellant did not deny being at the scene, she however denied throwing any hot stove at the deceased. Hence, the trial court was left to consider whether or not to believe the evidence of P.W.4 alone against the denial of the appellant. If the 2nd Accused was not at the scene of the incident to pour the hot oil on the deceased, would it be safe to accept the testimony of P.W.4 that he saw the appellant simultaneously throwing the hot stove on the deceased It should be remembered that the law requires the guilt of an accused person to be proved beyond reasonable doubt; and that if there is any lingering doubt, the accused person must be given the benefit of that doubt.

Having regard to the circumstances of this case, I am inclined to accept the submission of learned counsel for the appellant that the evidence of P.W.4 has raised a doubt that he saw the appellant throwing a hot stove at the deceased when it was proved that the 2nd Accused whom he said was there at the time was elsewhere at that material time. If there is a doubt, the appellant ought to be given the benefit of that doubt. In the result, I will allow the appeal, set aside the appellant’s conviction; and order her discharge and acquittal.

ESO, J.S.C.: I have had a preview of the judgment just delivered by my learned brother Kazeem, J.S.C. and I am in full agreement that the appeal be allowed. I also agree with all the orders.

Other Citation: (1987) LCN/2335(SC)