Grace Akinfe Vs The State (1988)

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P. NNAEMEKA-AGU, JSC

On the 5th of May, 1988, this Court allowed the appeal of the appellant in this appeal and discharged her. but reserved the reasons for the judgment till today. Before an Akure High Court presided over by Adetosoye, J., the appellant, a married woman, was charged, tried, and convicted of the murder of her senior mate, Mufesola Akinfe (hereinafter called the deceased), at Oke Otunba Isunrin Street, Idanre, in the Akure judicial Division of Ondo State, on the 5th January, 1985. Her appeal to the Court of Appeal, Benin Division, was dismissed. On further appeal to this Court she filed one “omnibus” ground of appeal.

Through her counsel, Shola Rhodes, Esquire, she sought and obtained leave to argue three additional grounds of appeal.   Some of the facts which led to the appeal are important In 1984, the deceased was pregnant. Her husband, Chief Akinfe (p. w .2) caused to be prepared for her two types of native medicines one in a schnappes bottle and the other in form of a soup.

The latter was consumed by the deceased within two days, whereas she continued to consume the one in the schnappes bottle for about 30 days. According to the deceased, on the 30th of December, 1984, after taking part of the medicine in the schnappes bottle she started to vomit. The bottle was, however, not handed to the hospital till 1st January, 1985, and nothing was known about its custody during the period of two days. Also some other persons, who did not testify, were said to have given some medicines to the deceased on 30/12/84, which stopped the vomiting and it is not clear what concoction they administered to her.

On the 1st of January, 1985, the deceased was taken to hospital at Idanre. As her condition worsened she was, on the 4th January, 1985, transferred to the State Hospital, Akure, where she died on the following day. The circumstances of death of the deceased raised a furore from the relations of the deceased led by Rufus Owodoti (p.w.l).

They reported the matter to the police. As a result, the deceased’s husband, Chief Akinfe (who testified as)( p.w.2) and the appellant were arrested by the police. Charged, the appellant made a statement (Exhibits B and B 1 dated 6/1/85) to the police. It was a complete denial of the charge. Post mortem examination was held on the 8th of January, 1985, but the result of this was not before the Court. I should mention that it was the brother of the deceased who took the remnant of the medicine to the police.  

A new twist was introduced into the case on the 11 th of February, 1985. On that date some relations of the deceased, those of the husband and those of the appellant trooped to the house of one Chief Adigun Asoga (P. W .3), a traditional healer in order to, as was Staled by P.W.2 himself, find out which of he himself and the appellant killed the deceased.

According to P.W.3, within 5 minutes of their arrival in his house, the appellant with absolutely no promptings, or torture, or manipulation of any kind knelt down and confessed to her being the murderer and begged him to save her life. She told them that she mixed a weed-killer, Gammalin 20, with the medicine in the schnappes bottle. Appellant and her witness however said they had been tortured for 7 days. P. W.3 said he had administered some cautionary words to her before she made the confession, which he duly recorded in a tape recorder.  

As a result of all these the appellant was taken to the police where she was said to have made another statement, Exh. C and C 1, which ,the prosecution regarded as confessional. An objection to its being tendered during the trial on the ground that it was obtained by duress was, after a trial within a trial, over-ruled. The appellant, however, retracted the so-called confession in court. After full hearing, the appellant was, as I have stated, convicted as charged.

The learned counsel for the appellant admirably set out the issues for determination in the appeal thus: 1. Whether it can be said that the Appellant was tried in an atmosphere in which it was possible for her to feel that she was tried by a Judge whose mind was unbiased by his having assumed the role of the prosecutor and the Judge during the trial.

2. Whether the conviction of the Appellant as confirmed by the Court of Appeal can be said to be safe, on the face of the role played by P.W.3, the traditional healer and diviner in extorting confession from the Appellant in the traditional way.

3. Whether it was safe for the Court of Appeal to have confirmed the conviction of the Appellant, when there was no medical evidence to confirm the outcome of the post-mortem on the deceased that she died as a result of poisoning by Gammalin, when there was evidence that P.W.2, on his own admission with others administered other native medicine to the deceased before she died. Learned counsel on both sides adopted their briefs and also addressed us orally in line with their briefs. The gist of the first complaint of the appellant is that the learned trial Judge abandoned his impartial role as an umpire in the case before him and descended into the arena of the conflict.

So, the Court of Appeal was in error to have held that it was wrong for the learned Judge to jump into the arena and in the same breath that it could not be said that he had shown any bias by his questions or preventing the appellant and her witness from giving evidence in their own ways.  

Learned counsel for the respondent, while not disputing that the learned trial Judge descended into the arena, submitted that the trial Judge had not shown any bias by his questions because the extensive cross-examination by him did not affect the facts established by the witnesses and the confessional statement of the appellant.