The Queen Vs Gidado Iyanda (1960)

LawGlobal-Hub Lead Judgement Report

ADEMOLA, CJF

The appellant was convicted in the High Court of the Northern Region on the 31st of May, 1960, for the offence of arson contrary to section 443 (a) C.C.; the count of the information reads:-

“Gidado Iyanda on the 27th day of October, 1959, in the Ilorin Province wilfully and unlawfully set fire to the house of Salimonu Ajape.”

He has appealed to this Court against his conviction.

The evidence against the appellant was mainly evidence of witnesses who alleged they saw him that night. Aremu Atanda (1st witness for prosecution) woke up that night and noticed flames near the house he slept. He rushed out with his children and raised an alarm. He saw what he called the shadow of a person running. He saw Salimonu’s house on fire. Other persons in the village ran out of their houses. Ramonu Akano who ran out as a result of the alarm saw the shadow of a person whom he recognised as the appellant. At the same time he saw Salimonu’s house on fire. He ran to the backyard apparently in the direction appellant ran and he saw him setting fire to a small hut which is communal building of the village. He shouted and called the appellant’s name. He chased the appellant who took to his heels. During the chase he stumbled and fell whilst the appellant ran away. Meanwhile Suberu Ayinde, another villager, who had also seen and recognised the appellant, joined the chase. He followed the appellant up to his house about a mile away. When the appellant entered his house, Suberu tied some grass to the back of the house, which he showed next morning to the Police.

At the close of the case for the prosecution, as it evidently became obvious that the evidence against the appellant was largely directed to his setting fire to the hut, the learned Crown Counsel sought for and obtained leave of the Court to add what he called an alternative charge, which now charged the appellant with setting fire to the hut. It reads:-

“Gidado Iyanda on or about the 27th day of October, 1959, in the Ilorin Province wilfully and unlawfully set fire to a but in the village of Odonigi the joint property of the villagers.”

The learned trial Judge disbelieved the defence of alibi put forward by the appellant and in the penultimate paragraph of his judgment, said;-

“I am satisfied beyond any doubt that he was seen setting fire to the but at Odonigi. There is no direct evidence showing that he also put Salimonu’s house on fire, but I have no difficulty in inferring from all the circumstances that he did so or was privy thereto. I accordingly find him guilty on the 1st count and make no finding on the 2nd count which is the alternative and will remain on the file.”

Chief Rotimi Williams, Counsel for the appellant, submitted that the learned trial Judge erred in law in adding to the information after the close of the case for the prosecution a fresh charge for an offence on which the appellant was not committed for trial. He referred to sections 162 and 163 of the Criminal Procedure Ordinance, which deal with the matter of addition to a charge, and asked us to consider the provisions of section 340 of the Criminal Procedure Ordinance, which in his submission does not allow an offence not disclosed in the depositions to be added during a trial. These sections he submitted must be read together.

Whilst we do not think this is an opportune time to consider the effects of sections 162, 163 and 164 of the Criminal Procedure Ordinance with section 340, we think it right to say that we cannot support the learned trial Judge in the exercise of his discretion by adding the alternative charge.

Counsel further argued that the learned Judge was wrong in finding the appellant guilty on the 1st count when the evidence tendered by the prosecution relates only to the 2nd count, which count was wrongly added; such evidence he submitted was wrongly admitted against the appellant. We hold the view that in the circumstances of the case, it was competent for the learned Judge to draw inference from the fact that as the appellant was seen setting the but on fire, he was responsible for the house on fire nearby, or, if somebody else had set that house on fire, they were both working in concert, and for which offence the appellant would be equally guilty. We think it is a reasonable inference to draw that two fires at the same time almost on the same spot are started by the same man or two different men working in concert.

Our attention was drawn by Counsel to certain contradictions in the evidence of witnesses for the prosecution; we have given due consideration to these contradictions and have come to the conclusion that they are not of such magnitude for us to interfere with the conclusions reached by the learned trial Judge. In the circumstances this appeal will be dismissed.

Appeal dismissed.

Other Citation: (1960) LCN/0841(SC)