Elizabeth Ogundiyan V. The State (1991)

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A. O. OBASEKI, J.S.C.

This appeal came up for hearing on the 24th day of January, 1991 and after hearing counsel for the appellant in oral argument and reading the briefs filed by the parties together with the record of proceedings and judgment, I found the appeal totally devoid of merit. I then dismissed the appeal, affirmed the decision of the Court of Appeal and reserved the reasons for my judgment till today. I now proceed to give the reason.

The appellant was arraigned before the High Court of Ogun State, Sagamu, and tried for the offence of the murder of Florence Fadeke Ogundiyan contrary to Section 319(1) of the Criminal Code Cap. 29 Vol. 11 Laws of Ogun State of Nigeria and convicted. She was then sentenced to death. The short facts of the case are as follows:

The appellant and the deceased were wives of Thomas Adewale Ogundiyan. They were married to him under customary law which allows polygamy. Apparently, the appellant and the deceased never enjoyed the peace of each other. They always had disagreements and enjoyed quarrelling with each other. However, they lived together with their husband in the same house and he seemed to have the situation under control until the 2nd day of December, 1986 when the situation got out of hand. Narrating the events, he said in his testimony before the court:

“At about 6.30 a.m. on 16/12/86 the deceased and the accused person exchanged hot words on the cleaning of the toilet and bathroom which the accused person accused late Florence of not keeping clean. I intervened and pleaded with them not to quarrel on that as the children on holidays would clean it.

I left home for work at about 7.30 a.m. By about 8.20 a.m., message reached me at petrol station at Isale Oko, Sagamu, that the deceased and the accused person were fighting. On getting home, I saw the accused person and queried her what would have led to the fighting and she replied that it was over the cleaning of the toilet and bathroom.

When I asked her the whereabout of the deceased, she said she did not know but neighbours told me she had been rushed to the hospital. I raced to the hospital and it took time before I could see her. I saw her at around 10-11a.m., in the hospital bed. She was badly burnt. Her young daughter Bisi had her hair burnt and there were small burns on her face. She too was treated in the hospital… On getting home after seeing the deceased in hospital, Fadeke’s people came with policemen to my house.

On entering late Fadeke’s room, I saw kerosine on the floor. Smoke covered the house as well as Fadeke’s room when I first returned home. When I came back the second time with the police, we entered the room and we still saw kerosine on the floor. The entrance door curtain to late Fadeke’s room was burnt. There was a used tin of paint and kerosine was around it. There was kerosine on the mattress and everywhere in the room”.

Under cross-examination, he said

“I was not present during the fighting. The deceased later died of the injuries.”

Testifying on his findings at the autopsy, Dr. Babatunde, Josiah Olasode said:

“External examination of the corpse revealed burns over the anterior chest, i.e. the front of the body as well as on the back of the body. Both arms and thighs were also burnt and the anterior of the face. In fact, 70% of the body was burnt. The burns were deep and superficial.

From the findings, she died from kidney failure due to severe burns.”

The deceased died on the 22/12/86. But before she died, the police took a statement in anticipation of death (Dying Declaration) from her, Exhibit 10. The statement Exhibit 10 reads in part