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:-

1. Whether the learned trial Judge was in error in placing reliance on the evidence of P.W.2 in convicting the Appellants;
2. Whether the learned trial Judge was in error in rejecting or disregarding the defence of alibi raised by the 2nd Appellant;
3. 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:-