Ozaki & Anor Vs The State (1990)

LawGlobal-Hub Lead Judgment Report

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

This criminal appeal raises important issues. The first is the burden of proof or onus of proof and the second is the question of standard of proof required in criminal cases to secure conviction.

The other equally important issues raised are whether there is need to give direction on the issue of provocation and the issue of self defence when a defence of alibi is raised unsuccessfully in the light of the evidence on record. Finally, there is the question whether an accused can be convicted on the written statement of a co-accused made to the police in his absence. The formulation of these issues by the appellants’ counsel, Chief F.O. Akinrele, S.A.N., runs as follows:

(1) The Court of Appeal having found that there was a misdirection in the assessment of the evidence offered as alibi, was the Court of Appeal right to have dismissed the appeal of the appellants

(2) Was the learned Judge right that there was no evidence on record to consider the case of provocation or self defence as the appellants have retracted the story contained in their statements to the police

(3) Was the Court of Appeal right in holding that there can be no case of provocation for acts done in the absence of the appellants

This appeal is against the decision of the Court of Appeal sitting in Kaduna on appeal from the High Court of Kwara State holden at Lokoja. The information filed in the High Court of Kwara State charged the two appellants herein to wit:

(I) Danlami Zaki and

(2) Tukura Zaki and 5 others namely

(3) Wamba Bawa;

(4) Peter Waiyam;

(5) Musa Baba,

(6) Yusuf and

(7) Shaba Tukura with culpable homicide punishable with death under section 221(a) read in conjunction with section 7 of the penal code.