Abiye Batubo Vs The State (1972)
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The accused, who is the appellant, was convicted on a charge of killing one Beatrice Nna, hereinafter referred to as the deceased. He was sentenced to death at the Port Harcourt High Court on the 16th of September, 1971.
His appeal against conviction was heard on the 15th August, 1972, and dismissed. We now give our reasons for dismissing the appeal. The fact that the deceased was burnt to death is not disputed. The deceased, Beatrice Nna, and two relations, a boy and a girl, lived in a room in the boy’s quarters of the premises known as 9, Abiriba Street, Diobu. The two remaining apartments in the boys’ quarters consist of a room and a kitchen.
The accused and one Dawari Higgwe shared the room, whilst the kitchen was used exclusively by the deceased. The main building in the compound was occupied by one Franklin Higgwe (6th P.W.) Accused and Dawari Higgwe were maintained by Francis Higgwe; as they were fed by him there was no cause for either of them to use the kitchen in the boys’ quarters.
A girl by the name of Dakoru West (2nd P.W.) lived with her relation Franklin Higgwe in the main storey building. There was another elderly woman in the house referred to as the mistress who was taking care of the children of the 6th P.W. in the main building. The accused, a close relation of Franklin Higgwe, being of the same mother, had come to stay there to spend the vacation. On the 2nd of September, 1970, the deceased with three others, comprising her two young relations and a visitor, went to the kitchen in the morning to cook. Whilst there the 2nd P.W. saw the deceased and three others engulfed in flames. It is alleged that the fire was caused by petrol. They were badly burnt and, as a result, the four people died. The medical officer, one Dr. Frank Eke, the 3rd P.W. called at the trial of the accused, gave evidence of his findings on the post mortem examination he performed on the corpse of the deceased. He observed some scanty brownish half burnt hair on the left lateral side of the scalp.
The deceased was pregnant, with a foetus about 24 weeks old; her axillary and pubic hairs were partially burnt; the whole body peeled off, and the skin gave way, on little touch. According to the doctor the blistered body was consistent with the resulting effect of dry heat burns. The evidence which connects the accused with the offence, is both direct and circumstantial. Dakoru West P.W.2, who witnessed the incident, gave evidence that, on the morning of the 2nd of September, 1970, she was in the upper floor of the apartment of her ‘brother’ Franklin Higgwe, the 6th P.W. Incidentally the accused is also referred to as a ‘brother’ of the 6th P.W. and was, therefore, well-known to the 2nd P.W. She said that the accused who was a student at Baptist High School, Port Harcourt, had come to spend his holiday with them. According to Dakoru West (P.W.2) on the morning of the material day, whilst she was upstairs, she suddenly heard the deceased shouting that Dewari’s brother “had poured petrol on me and had killed me.”
She (2nd P.W.) then peeped through the window to see what was happening. Her graphic description of the scene was as follows:-
“On hearing her shout I looked down through the window and saw fire burning in front of the kitchen. I also saw people burning – Beatrice Nna (deceased). Baby, Chijiakor and Webilor were burning. I also saw a pail/ bucket burning with fire. I also saw the accused running out of the yard and looking behind him. At that time I called the attention of my mistress to see the accused as he was running away. My mistress came out of her room and through the window. She asked me and the small children to go downstairs. When I came downstairs. I saw Beatrice (deceased) alight and burning. On the instruction of my mistress I went upstairs to take care of my mistress child.”
She also gave the description of the dress worn by the accused on that day. She identified in court the shirt (jumper) worn by the accused as well as a burnt piece of cloth as part of the trousers also worn by him. She also identified a burnt bucket as belonging to one Dewari, with whom the accused shared a room in the boys’ quarters. She concluded her evidence that earlier that morning and before the incident, she had seen the deceased Beatrice cooking in the kitchen with firewood, and her three relations were sitting with her in the kitchen. Under cross-examination she confirmed that, as deceased (Beatrice) was burning she shouted that the brother of Dewari had killed her.
She also confirmed seeing the accused running away from the compound on the road along Abiriba Street towards the Baptist Church. The doctor, whose findings have been referred to previously, said that the burns were caused by inflammable fluid. According to him, dry-heat burns as observed on the deceased are caused by open flames. He stated that petrol is an example of an inflammable fluid. He also estimated the age of the accused as being between 18 and 25 years. The 4th Prosecution witness, one Eferebo Jones, lived at 12 Oguta Street which backs on 9, Abiriba Street. He was attracted to the scene by the shouting and stated that he observed that the deceased was completely burnt. He also stated that it was about 8.30 a.m. that he got to the scene. The deceased was screaming and shouting that a boy living in a room poured petrol on her.
He corroborated the evidence of P.W.2 that there was a bucket lying on the ground at the scene, and which he (3rd P.W.) found to be ‘hot’ He had known the accused previously because his mother lived in the same compound as himself at Buguma. He also knew that at that time the accused was living in the same room with one Dewari at 9, Abiriba Street. Deborah Lawson, the 5th P.W., described the accused as her nephew. She gave evidence that she saw the accused on 2/9/70 at her premises, at 11, Liberation Drive, and on enquiry accused told her that he had come for food. This was about 8 o’clock in the morning. She described the dress worn by the accused that morning. The type and colour of the dress correspond with those described by the 2nd P.W., Dakoru West. She arranged that the accused be given food, and then left for the hospital. On her return she met the accused still in her (5th P.W.) premises. She noticed that the accused had changed his dress from that which he wore that morning, instead had on a wrapper tied about his loin, and a singlet. The accused told her on enquiry that he had changed his dress because the jumper and trousers he had on in the morning were soaked. A little later Franklin Higgwe (6th P.W.) came to Deborah Lawson’s house and told her certain things. In consequence of this Deborah Lawson (5th P.W.) and Franklin Higgwe (6th P.W.) took the accused to the Police Station. The accused had on him the singlet and the wrapper. At the Police Station the accused was handed over to the Police. On receipt of certain information, a Police Officer (7th P.W.) followed Deborah Lawson (5th P.W.) to her residence.
A search of the premises was conducted. In the kitchen at 11 Liberation Drive, the Police recovered a jumper. Continuing the search the Police recovered the remnant of a burnt pair of trousers at the back of the yard. Deborah Lawson (5th P.W.) identified the jumper and the burnt remnant of the pair of trousers as the jumper and trousers (unburnt then) worn by the accused when he visited her that morning. It is proper at this stage to refer to the version of the story as told by the accused in his defence at his trial about his burnt trousers. He said:- “It is correct my trousers were burnt at 24, Station Road (later Liberation). I burnt the trousers with matches.” 2 Under cross-examination he deposed:- “I changed my dress that morning at prosecution witness 5’s place because it was wet; and I burnt the trousers because the pair was useless.”
The 7th prosecution witness took charge of the investigation into this matter when report was first made at the General Police Station. When the case was taken over by the “Homicide Squad,” he handed it over to one of the Police Officers in that Squad, who gave evidence as the 8th prosecution witness. He took over all the exhibits recovered by the 7th prosecution witness. He stated that the remnant of the trousers accused admitted as burnt by him, as well as the burnt pieces of cloth found at the scene of crime, all smelt of petrol.
The accused in his defence denied the allegations against him, especially that made by the 2nd prosecution witness, who had said that she saw the accused running away when the deceased was screaming and shouting that he the accused had killer her. At one stage the accused denied seeing the 2nd P.W. on the morning of the incident, but later he admitted seeing her in the main building. In answer to the question as to what he thought was the reason for the incriminating evidence given by the 2nd P.W., the accused replied that he could not conceive of any reason. Although he denied ever seeing petrol in his life, he nevertheless admitted knowing that petrol is an inflammable liquid. He did not challenge the evidence of the 5th P.W. or that of the 7th P.W. The learned trial Judge considered the evidence before him meticulously and analysed each aspect critically. He concluded that the accused committed the offence as charged and convicted him.
Before us on appeal learned counsel for the appellant was granted leave to argue three grounds of appeal in substitution for the original grounds filed with the notice of appeal. The fresh grounds read:-
“1. The learned trial Judge erred by relying on opinion evidence which put the age of the appellant as not below 18 years when proof of age was highly necessary in determining the proper sentence for murder.
2. The learned trial Judge erred in law by omitting to ask the appellant if he had anything to say by way of ALLOCUTUS before passing sentence of death by hanging on him when by virtue of the tender age which the “Appellant honestly believed to be sixteen (16) years the Court ought to have passed life sentence on the Appellant under Section 368 (3) of the Criminal Procedure Cap. 31, Law of the Eastern State of Nigeria.
3. By omitting to pass sentence of death by hanging on the Appellant in accordance with the provision of Section 367 of the Criminal Procedure Law Cap. 31, Laws of the Eastern Region, Nigeria, the sentence of death passed by the learned trial judge is nugatory, void and of no effect.”
On ground one reliance was placed on Sections 420 and 368(3) of the Criminal Procedure Law, CAP. 31 in volume 2 of the Laws of Eastern Nigeria. The sections respectively read:
“420. Where an offender found to have committed a capital offence has not attained the age of 17 years the provisions of subsection (3) of section 368 shall apply”.
“368. (3) Where an offender who in the opinion of the court has not attained the age of 17 years is found guilty of a capital offence sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such offender to be detained during the Governor’s pleasure and if so ordered he shall be detained in accordance with the provisions of Part XLIV notwithstanding anything to the contrary in any written law.”
There is, in this case, medical evidence, which was uncontradicted, that the age of the accused was between 18 and 25 years at the time of the commission of the offence. The court accepted it. The defence did not put any other age in issue nor call any evidence to challenge that of the doctor who testified for the prosecution. The learned trial judge held thus:
“I therefore hold that in the absence of any proof to the contrary the accused was not below the specified age of 18 years at the time of the fire tragedy and see nothing to quarrel with in regard to the medical evidence on the age of the accused.”
This disposes of ground one.
On grounds two and three learned counsel referred to the case of Eyo Okpo v. The State (1972) 2 S.C. 26. It was pointed out to counsel, however, that that decision did not support his complaints on the two grounds of appeal. He agreed with this view and, therefore, offered no further argument.
As we pointed out earlier the case against the accused was based. mainly on the evidence of the only eye-witness-2nd prosecution witness-and inferences drawn from the subsequent actions of the accused as deposed to by the 5th, 6th, 7th and 8th prosecution witness. There is also the medical evidence that only an inflammable fluid like petrol could produce dry-heat which caused the burns resulting in the death of the deceased. There was also the evidence of other burnt or partially burnt exhibits which were recovered in circumstances which connected the accused with the offence. It is the cumulative effect of all these that the learned trial judge extensively and critically analysed, as well as the defence of the accused, which was an outright denial, on which the conviction is based.
Before us the findings of the learned trial judge were not challenged. Since we saw no merits in the argument on the only ground of appeal argued before us, we therefore dismissed the appeal for these reasons.
Other Citation: (1972) LCN/1330(SC)