Doyin Alagbe V. The State (2007)

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JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment delivered by Abimbola, J. on 10th May, 2001 while sitting at the High Court of Justice, Ogbomoso, Oyo State of Nigeria.

On 15-2-07 when the appeal was heard, the respondent who was served was not represented by counsel. Since a brief of argument was filed on behalf of the respondent, the appeal was taken as argued vide Order 6 Rule 9(5) Court of Appeal Rules, 2002.

At the trial court, the appellant was charged for the offence of manslaughter contrary to section 317 of the Criminal Code, Cap 30 Volume II, Laws of Oyo State of Nigeria, 1978 and punishable under section 325 of the same law.

As extant on page 48 of the transcript record of appeal, the charge was read in English language and explained to the appellant on 28th March, 2000. She said she understood the charge and pleaded not guilty. Thereafter, in a bid to prove their case, the prosecution called six witnesses and tendered seven exhibits. In her defence, the appellant testified and called one witness.

It is apt at this point to assemble the facts in this matter. The prosecution’s case was that one Valentine Akajiofor, appellant’s intended husband, had an earlier relationship with another lady which resulted in the birth of Ifeoluwa – the deceased on 23rd August, 1993. The deceased, who was about five years old at the material time, stayed with P.W.1 – his maternal grandmother. The deceased attended Tabernacle Nursery and Primary School also known as the United Gospel Faith Tabernacle Nursery and Primary School where P.W.2 was the headmistress.

On 25th February, 1998, at about 2.00 p.m., the deceased got home earlier than the usual time as he was supposed to attend a lesson after the normal school hours till 3.00 p.m. This prompted P.W.1 to ask the deceased why he came home early. The deceased told P.W.1 that ‘one aunty’ gave him coca-cola to drink and instructed him to go home immediately while the ‘aunty’ went to his father’s shop. As P.W.1 wanted to take the deceased back to school, he started to vomit. The deceased was rushed to a nearby clinic and thereafter to Baptist Hospital, Ogbomoso where he passed on the following day; 26-2-98.

Two medical reports issued by one Dr. J. O. Akinjise were admitted as exhibits 1 and 1A respectively. They were tendered through one Dr. Gbadero Adedosu – P.W.1. Sequel to a report made by the hospital authority to the Police based on the history stated by P.W.1, the appellant was arrested and she made a series of statements. In Exhibit 2, she denied the allegation while in Exhibit 3, she admitted same. In Exhibit 5, she said she was induced by P.W.5 to admit the offence charged. P.W.5’s reaction to exhibit 5 was tendered as exhibit 6.

At the trial the appellant said she was in her husband’s shop at the material time on 25-2-98 in company of her husband’s younger sister, DW2. She was informed by her husband of what happened to the deceased whom she said she never met but had knowledge of his existence and that she did not commit the offence. D.W.2 confirmed that she was with the appellant at the material time.

The learned trial judge was duly addressed by learned counsel on both sides of the divide. The trial judge relied squarely on the medical reports and the appellant’s confessional statement as in exhibit 3 to find that the appellant ‘killed the deceased in circumstances that constitute murder under section 316(1) of the Criminal Code Law’. This stance appears rather strange to me. However, prudence prevailed as the learned trial judge found the appellant guilty for the offence of manslaughter upon which she was arraigned and tried. She was found guilty, convicted and sentenced to 10 years imprisonment with hard labour.

The appellant felt unhappy with the stance posed by the learned trial judge and appealed to this Court. The Notice of Appeal dated 8th August, 2001 carries five grounds of appeal.

The appellant’s brief of argument dated 28th September, 2004 was filed on 29th September, 2004. The lone issue for determination formulated on page 4 of the brief of argument reads as follows:

“Whether the prosecution discharged the burden of proving the guilt of the appellant beyond reasonable doubt.”

The Respondent, at page 3 of its own brief of argument agreed with the issue couched on behalf of the appellant as reproduced above.